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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).
Marvin W. BROWN, Appellant, v. GASTON COUNTY DYEING MACHINE COMPANY, Appellee.
No. 71-1268.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 6, 1971.
Decided March 28, 1972.
Rehearing En Banc Denied May 22, 1972.
Robert Belton, Charlotte, N. C., (J. LeVonne Chambers, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., Jack Greenberg, William L. Robinson, New York City, and Chambers, Stein, Ferguson, & Lanning, Charlotte N. C., on brief), for appellant.
Brown Hill Boswell, Charlotte, N. C. (J. W. Alexander, Jr., Blakeney, Alexander, & Machen, Charlottte, N. C., on brief), for appellee.
Before CRAVEN and BUTZNER, Circuit Judges, and DUPREE, District Judge.
BUTZNER, Circuit Judge:
This is an appeal from the district court’s dismissal of an individual claim and class action alleging racial discrimination in hiring, promotion, pay, and other terms and conditions of employment. The suit is founded on Title VII, § 703(a) of the Civil Rights Act of 1964, and 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866. We modify the judgment concerning the individual claim, vacate the judgment dismissing the action brought on behalf of the class, and remand the case for further proceedings.
I
The defendant, Gaston County Dyeing Machine Co., manufactures and installs custom-made machines for dyeing textile yarns or threads under high pressure. The machines, essentially large vessels weighing several tons with numerous fittings and connections, are assembled by welder-fabricators who must be able to read blueprints and weld to exacting tolerances. Welder-fabricators are among the company’s best paid employees.
Marvin Brown, the individual plaintiff, claims that he was denied promotion to higher paying welder-fabricator classifications because he is black. The company counters that Brown was offered unfettered opportunity to advance, but that he lacked the ability and temperament to do the work required of him. Resolution of these conflicting claims depended largely upon the credibility of witnesses, and since the district judge’s findings are supported by the evidence, they are binding upon us. Fed.R.Civ.P. 52(a).
In 1960, Brown, who had finished a welding course at North Carolina Agricultural and Technical College, was hired by the company for one of its lower paying jobs. The district judge found that
“Brown asked for employment as a welder and was given to understand by supervisory people that it was premature to try to place a Negro in a job as welder with the defendant.
“However, in 1961, [the company’s president] instructed his plant managers to give Brown a job as a welder and try to help him make progress in that work. . . .” 325 F.Supp. at 542.
The president’s directions were followed and Brown was promoted to welder-trainee. He then progressed through various steps to welder-fabricator, class B.
The district judge’s findings establish that the company violated 42 U.S.C. § 1981 by denying Brown a welding job because of his race from the time he applied in 1960 until he was employed as a welder-trainee in 1961. Brown, therefore, is entitled to back pay measured by the difference between the wages he would have earned had he been initially employed as a welder-trainee and his actual wages. Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir.), cert. denied, United Order of Am. Bricklayers and Stone Masons, Local 21 v. Waters, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970).
The district judge, for reasons fully stated in his opinion, found that Brown was not a victim of racial discrimination after he was employed as a welder-trainee. This finding also depended largely upon the credibility of witnesses. It, too, is supported by the record and is binding upon us. Since this finding covers the period Brown worked for the company after the effective date of the Civil Rights Act of 1964, he is not entitled individually to the relief he seeks under Title VII of the Act, and his remedy is limited to § 1981 for the earlier period.
II
While Brown has not proved his own Title VII claim, the class of employees he represents is not for this reason deprived of a remedy. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 428 (8th Cir. 1970); cf. Jenkins v. United Gas Corp., 400 F.2d 28, 31 (5th Cir. 1968). The district court, cognizant of this rule, considered the class action on'its merits. Rejecting the company’s claim -that the evidence demonstrates no discrimination against minorities, the district court said, “[A]t least in prior years, welding and high pay in the defendant’s shop were not for black men.” 325 F.Supp. at 543. However, it found that the company, possibly spurred by this suit, had recently undertaken a number of measures to eliminate the racial discrimination it practiced in the past. Consequently, the court dismissed the action for lack of evidence to support relief for the class.
Although the company has employed black workers for many years in low paying jobs, it was not until 1961, when Brown was promoted to welder-trainee, that any had been assigned to welding. From 1958 to 1968, the company offered an after-hours training program for welding, blueprint reading, and shop math. Only one black employee was admitted to the program in that decade. For at least six years, it has employed three black leadmen, but these three are paid less than other leadmen who are white. The company advertises that it is an “equal opportunity employer,” but it has no objective, formal guidelines for hiring, promotion, and transfer, or for giving notice of vacancies within the plant except by word of mouth.
Starting in the late 1950’s, the company integrated its facilities, sports, and social functions. Since 1965 it has made affirmative efforts to recruit black workers as a part of its routine employment procedure, and it has provided opportunities for black employees to transfer into welder-fabricator or machine shop classifications. Some have accepted the transfers; others, after initially accepting, returned at their own request to lower paying jobs.
The district court found that Gaston County where the defendant’s plant is located, has a black population of approximately 13 percent. In September 1969, black employees constituted less than ten percent of the defendant’s total work force. As of the same date they comprised approximately 13 percent of the hourly rate production employees, but this percentage had slipped to less than 11 percent by the time of the trial in October 1970. The following table shows employment by race in each of the company’s job classifications of hourly rate production employees as of September 1969:
Analysis of these statistics shows that of the 45 job classifications, black workers are employed in only 11. Slightly less than half of these employees are relegated to two positions, grinding and pickling, and industrial ■maintenance (janitors). Both of these jobs are rated ''near the bottom of the company’s pay scale, and neither affords employees much opportunity for advancement to higher paid positions. Significantly, both of these classifications are almost completely segregated. Each has six black employees and only one white employee. Sandblaster is the classification of another comparatively low paying job, and it, too,' is filled by black employees. In contrast, although 55 persons are employed in welding jobs, only one is black. And in the top 18 classifications having a pay range exceeding $3.00 an hour, there are 102 white and three black employees. But even these three, who are classified as leadmen, receive less than $3.00 an hour while their white counterparts are paid at a rate in excess of $3.00.
Courts have often observed that proof of overt racial discrimination in employment is seldom direct. E. g., United States v. Jacksonville Terminal Co., 451 F.2d 418, 442 (5th Cir. 1971); Marquez v. Omaha District Sales Office, Ford Division, 440 F.2d 1157, 1162 (8th Cir. 1971); Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584 (1954). Recognizing this, we have found “error in limiting Title VII to present specific acts of racial discrimination,” United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970), and it is now well established that courts must also examine statistics, patterns, practices and general policies to ascertain whether racial discrimination exists. United States v. Jacksonville Terminal Co., 451 F.2d 418, 442 (5th Cir. 1971); Graniteville Co. v. EEOC, 438 F.2d 32, 41 (4th Cir. 1971); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971); United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970); United States v. Hayes International Corp., 415 F.2d 1038, 1044 (5th Cir. 1969). We need not decide whether the 1969 statistics, revealing as they are, should be regarded as conclusively showing violation of Title VII or whether they establish a prima facie case. It is sufficient to hold that they have not been rebutted by the company’s efforts since 1965 to hire and promote black employees.
In United States v. Bethlehem Steel Corp., 446 F.2d 652, 655 (2nd Cir. 1971), the court identified the lack of “fixed or reasonably objective standards and procedures for hiring” as a discriminatory practice. Gaston’s employment policies suffer the same deficiency. The company lacks objective guidelines for hiring, for pay increases within job classifications, and for promotion or transfer from one job to another. Employment and promotion policies that operate without objective standards for the direction of supervisory personnel may appear impartial, but recently we cautioned: “Practices, policies or patterns, even though neutral on their face, may operate to segregate and classify on the basis of race at least as effectively as overt racial discrimination. Particularly is this so if a history of past discrimination is developed.” United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970). Elusive, purely subjective standards must give way to objectivity if statistical indicia of discrimination are to be refuted. “Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant.” Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158 (1971).
Here, in the absence of objective criteria applied to all workers alike, the statistics indicate that race is the only identifiable factor explaining the disparity between the jobs held by white employees and those held by black employees. The proof discloses no objective standards based on education, experience, ability, length of service, reliability, or aptitude to account for the preferential employment of white workers. Cf. United States v. Jacksonville Terminal Co., 451 F.2d 418, 449 (5th Cir. 1971).
Moreover, the record discloses that notices of vacancies are not posted, and news of them is passed along by word of mouth. When job classifications are as segregated as they are in this company, delay in learning about a vacancy in an all white category may in itself discriminate against a black employee who hears of it only after it has been filled. This practice resembles the lack of a formal transfer system which we criticized in Dillon. 429 F.2d at 802, 804. It differs little from a hiring policy of referral by employees that has been condemned because it favors the family and friends of white employees over black job seekers who have no way of knowing about an opening. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970); United States v. Sheet Metal Workers, Local 36, 416 F.2d 123, 137 (8th Cir. 1969); see Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L. Rev. 1109, 1152 (1971).
In sum, the lack of objective guidelines for hiring and promotion and the failure to post notices of job vacancies are badges of discrimination that serve to corroborate, not to rebut, the racial bias pictured by the statistical pattern of the company’s work force.
III
The district court was impressed with' the efforts of the company to remedy the discrimination of prior years. Counsel for the plaintiff, though pressing for full injunctive relief, candidly acknowledges that the company has recently improved many of its practices. But the transition to a shop free from discrimination is as yet incomplete. Progress already made has chiefly occurred since the institution of this suit. If this litigation is prematurely terminated, members of the class run the risk that this progress will abruptly end. Therefore, we will adopt the remedy fashioned in Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 428 (8th Cir. 1970), which the plaintiff somewhat reluctantly proposes as an alternative measure. There the court of appeals directed the district judge to retain the case on his docket a reasonable time to insure continuance of the company’s policy of equal employment opportunities.
Accordingly, the case is remanded to the district court for retention on its docket for a reasonable time. If, at the end of this period, the court finds that the company’s employment policies have completely eliminated the unlawful practices prohibited by § 703(a), it may dismiss this action. However, if any unlawful employment practices remain, the court must order appropriate injunc-tive relief. In either event, the plaintiff is entitled to recover his costs and reasonable counsel fees. Robinson v. Lorillard Corp., 444 F.2d 794 (4th Cir. 1971); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Parham, supra, 433 F.2d at 429.
The judgment is affirmed in part, vacated in part, and the case is remanded for further proceedings consistent with this opinion.
. Brown v. Gaston County Dyeing Machine Co., 325 F.Supp. 541 (W.D.N.C.1970). This case was previously here on appeal of the issue of exhaustion of remedies. Brown v. Gaston County Dyeing Machine Co., 405 F.2d 887 (4th Cir. 1968), cert. denied, Pilot Freight Carriers, Inc. v. Walker, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969).
. Section 703(a) of the Act, 42 U.S.C. § 2000e-2(a) (1970), provides:
“It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) fo limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
. 42 U.S.C. § 1981 provides:
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
. Compare Parham v. Southwestern Bell Telephone Company, 433 F.2d 421, 426 (8th Cir. 1970) (statistics as a matter of law establish a violation of Title VII), with Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971) (statistics create a prima facie case of discrimination). See Developments in the Law — Employment Discrimination and Title VII of the Civil Bights Act of 1964, 84 Harv.L.Rev. 1109, 1154 (1971).
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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sc_lcdisagreement
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the 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.
RELFORD v. COMMANDANT, U. S. DISCIPLINARY BARRACKS, FT. LEAVENWORTH
No. 98.
Argued December 15-16, 1970
Decided February 24, 1971
BlacKMUN, J., delivered the opinion for a unanimous Court.
Judson W. Detrick, by appointment of the Court, 397 U. S. 1020, argued the cause and filed briefs for petitioner.
Solicitor General Griswold argued the cause for respondent. With him on the brief were Assistant Attorney General Wilson, Deputy Solicitor General Springer, Beatrice Rosenberg, and Roger A. Pauley.
Mr. Justice Blackmun
delivered the opinion of the Court.
In O’Callahan v. Parker, 395 U. S. 258, decided June 2, 1969, by a five-to-three vote, the Court held that a court-martial may not try a member of our armed forces charged with attempted rape of a civilian, with housebreaking, and with assault with intent to rape, when the alleged offenses were committed off-post on American territory, when the soldier was on leave, and when the charges could have been prosecuted in a civilian court. What is necessary for a court-martial, the Court said, is that the crime be “service connected.” 395 U. S., at 272.
O’Callahan’s military trial, of course, was without those constitutional guarantees, including trial by jury, to which he would have been entitled had he been prosecuted in a federal civilian court in the then Territory of Hawaii where the alleged crimes were committed.
O’Callahan already has occasioned a substantial amount of scholarly comment. Much of it characterizes the decision as a significant one because it is said to depart from long-established, or at least long-accepted, concepts. Some of the literature is generally approving. Some of it is generally critical. Some of it, as did the O’Callahan dissent, 395 U. S., at 284, forecasts a period of confusion for both the civil and the military courts. Not surprisingly, much of the literature is concerned with the issue of O’Callahan’s retrospectivity. Some writers assert that the holding must be applied retroactively. Others predict that it will not be so applied. Naturally enough, O’Callahan has had its references in the federal courts of appeals and in a significant number of cases in the United States Court of Military Appeals.
In the present federal habeas corpus case, instituted several years after the applicant’s conviction by court-martial, certiorari was granted “limited to retroactivity and scope of O’Callahan v. Parker . . . 397 U. S. 934 (1970). We thus do not reconsider O’Callahan. Our task here concerns only its application.
I
Isiah Relford, in 1961, was a corporal on active duty in the United States Army. He was stationed at Fort Dix, New Jersey.
On September 4, 1961, the visiting 14-year-old sister of another serviceman, who was on leave from his Army station at Fort Campbell, Kentucky, and who came to Fort Dix when his wife delivered a child at the base hospital, was abducted at the point of a knife from an automobile in the hospital’s parking lot as she waited for her brother. The girl was raped by her abductor.
A few weeks later, on October 21, the wife of an Air Force man stationed at McGuire Air Force Base, adjacent to Fort Dix, was driving from her home on the base to the post exchange concession, also on the base, where she worked as a waitress. As the woman slowed her automobile for a stop sign, a man gained entry to the car from the passenger side and, with a knife at her throat, commanded the woman to drive on some distance to a dirt road in the fort’s training area. She was raped there.
The second victim, with her assailant still in the automobile, was able to make her predicament known to military police. The assailant was apprehended and turned out to be Relford. He immediately admitted consensual intercourse with the victim. The next morning, after a brief interrogation, he confessed to kidnaping and raping both women.
At the time of each incident Relford was in civilian clothes.
It is undisputed that these events all took place on the military reservation consisting of Fort Dix and the contiguous McGuire Air Force Base.
Relford, in due course, was charged with raping and kidnaping each of the women, in violation of Arts. 120 and 134, respectively, of the Uniform Code of Military Justice, 10 U. S. C. §§ 920 and 934. He was tried by a general court-martial in December 1961 and was convicted on the four charges. Relford’s sentence was the forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and death. The customary reference to the staff judge advocate was made and the convening authority approved. U. C. M. J. Arts. 60-65, 10 U. S. C. §§ 860-865. Upon the review by the Army Board of Review, required under the Code’s Art. 66, 10 U. S. C. §866, the conviction was sustained; the sentence, however, was reduced to hard labor for 30 years, total forfeitures, and a dishonorable discharge. The Court of Military Appeals denied a petition for review on September 24, 1963. United States v. Relford, 14 U. S. C. M. A. 678.
Relford’s case thus became final more than five and a half years prior to this Court’s decision in O’Callahan v. Parker.
In 1967, Relford, being in custody in the United States Disciplinary Barracks at Leavenworth, Kansas, filed his application for a writ of habeas corpus with the United States District Court for the District of Kansas. He alleged inadequate representation by counsel in the military proceeding. Chief Judge Stanley found no merit in the claim and denied the application. On appeal, Relford repeated the inadequate-representation claim and, for the first time, raised questions as to the admissibility of his confession, as to a lineup procedure, and as to the fairness of his military trial. The Tenth Circuit reviewed all these claims on the merits, but affirmed the District Court’s denial of relief. Relford v. Commandant, 409 F. 2d 824 (1969).
The Tenth Circuit’s opinion was filed on April 23, 1969, several weeks prior to this Court’s decision in O’Callahan v. Parker. The issue as to the propriety of trial by court-martial, perhaps understandably, was not raised before Judge Stanley or on the appeal to the Tenth Circuit; the issue, however, had been presented in O’Callahan’s chronologically earlier appeal in his habeas proceeding. See United States ex rel. O’Callahan v. Parker, 390 F. 2d 360, 363-364 (CA3 1968).
II
This case, as did O’Callahan, obviously falls within the area of stress between the constitutional guarantees contained in the Constitution’s Art. Ill, § 2, cl. 3, in the Sixth Amendment, and possibly in the Fifth Amendment, on the one hand, and, on the other, the power vested in the Congress, by the Constitution’s Art. I, § 8, cl. 14, “To make Rules for the Government and Regulation of the land and naval Forces,” with its supportive Necessary and Proper provision in cl. 18, and the Fifth Amendment’s correlative exception for “cases arising in the land or naval forces.”
Relford argues that O’Callahan’s, requirement that the crime be “service connected” before a court-martial may sit demands that the crime itself be military in nature, that is, one involving a level of conduct required only of servicemen and, because of the special needs of the military, one demanding military disciplinary action. He further states that the charges against him- — like those against O’Callahan — do not involve a level of conduct required only of servicemen. He maintains that occurrence of the crimes on a military reservation and the military-dependent identity of one of his victims do not substantially support the military’s claim of a special need to try him.
In further detail, it is stated that the Court in O’Callahan recognized that a court-martial “remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved,” 395 U. S., at 265; that military courts, of necessity, are not impartial weighers of justice, but have as their primary consideration the enforcement of the unique discipline required of a fighting force; and that, as a consequence, the court-martial must be limited to the “least possible power adequate to the end proposed.” United States ex rel. Toth v. Quarles, 350 U. S. 11, 23 (1955), citing Anderson v. Dunn, 6 Wheat. 204, 231 (1821).
It is then said that the level of conduct Relford is alleged to have violated, that is, intercourse only with consent, is the very same level required in the civilian community and is not altered by considerations of military dependency; that his alleged crimes are no more military than were O’Callahan’s; that the ability of the military to perform its mission remains the same whether the crimes with which he was charged were committed on base or off base; that any interest in the maintenance of order on the base is adequately served by apprehension of the offender and trial in a civilian court; that the on-post/off-post distinction has little meaning; that it is the nature of the crime that is important; that the crimes charged to Relford stand in contrast to purely military crimes such as desertion, absence without leave, missing movement, assaulting a superior commissioned officer, and being drunk on duty, U. C. M. J. Arts. 85, 86, 87, 90, and 112, 10 U. S. C. §§ 885, 886, 887, 890, and 912; and that only crimes of the latter type have “an immediate adverse impact upon the ability of the military to perform its mission,” and are “proper subjects for the exercise of military jurisdiction.”
Ill
In evaluating the force of this argument, the facts of O’Callahan and the precise holding in that case possess particular significance. We repeat: .O’Callahan was in military service at the time and was stationed at a base in American territory. His offenses, however, took place off base in a civilian hotel while he was on leave and not in uniform.
Mr. Justice Douglas, in speaking for the Court, said:
“In the present case petitioner was properly absent from his military base when he committed the crimes with which he is charged. There was no connection — not even the remotest one — between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked performing any duties relating to the military. Moreover, Hawaii, the situs of the crime, is not an armed camp under military control, as are some of our far-flung outposts.
“Finally, we deal with peacetime offenses, not with authority stemming from the war power. Civil courts were open. The offenses were committed within our territorial limits, not in the occupied zone of a foreign country. The offenses did not involve any question of the flouting of military authority, the security of a military post, or the integrity of military property.” 395 U. S., at 273-274.
We stress seriatim what is thus emphasized in the holding:
1. The serviceman’s proper absence from the base.
2. The crime’s commission away from the base.
3. Its commission at a place not under military control.
4. Its commission within our territorial limits and not in an occupied zone of a foreign country.
5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
6. The absence of any connection between the defendant’s military duties and the crime.
7. The victim’s not being engaged in the performance of any duty relating to the military.
8. The presence and availability of a civilian court in which the case can be prosecuted.
9. The absence of any flouting of military authority.
10. The absence of any threat to a military post.
11. The absence of any violation of military property.
One might add still another factor implicit in the others:
12. The offense’s being among those traditionally prosecuted in civilian courts.
IV
This listing of factors upon which the Court relied for its result in O’Callahan reveals, of course, that it chose to take an ad hoc approach to cases where trial by court-martial is challenged. We therefore turn to those factors in Relford’s case that, as spelled out in O’Callahan’s, bear upon the court-martial issue.
It is at once apparent that elements 4, 6, 8, 11, and 12, and perhaps 5 and 9, operate in Relford’s favor as they did in O’Callahan’s: The offenses were committed within the territorial limits of the United States; there was no connection between Relford’s military duties and the crimes with which he was charged; courts in New Jersey were open and available for the prosecution of Relford; despite the Vietnam conflict we may assume for present purposes that the offenses were committed in peacetime and that they were' unrelated to any problem of authority stemming from the war power; military authority, directly at least, was not flouted; the integrity of military property was not violated; and the crimes of rape and kidnaping are traditionally cognizable in the civilian courts.
Just as clearly, however, the other elements, present and relied upon in O’Callahan’s case, are not at hand in Relford’s case. These are elements 1, 2, 3, 7, and 10: Relford was not absent from the base; the crimes were committed on the military enclave; the second victim, because of her duties at the post exchange and because of the fact that her abduction and the attack upon her took place as she was returning to the PX at the end of a short and approved break in her work, was engaged in the performance of a duty relating to the military; and the security of two women properly on the post was threatened and, indeed, their persons were violated.
There are still other significant aspects of the Relford offenses: The first victim was the sister of a serviceman who was then properly at the base. The second victim was the wife of a serviceman stationed at the base; she and her husband had quarters on the base and were living there. Tangible property properly on the base, that is, two automobiles, were forcefully and unlawfully entered.
Y
With the foregoing contrasting comparison of the pertinent factual elements of O’Callahan with those of Rel-ford’s case, we readily conclude that the crimes with which Relford was charged were triable by a military court. We do not agree with petitioner when he claims that the “apparent distinctions” between this case and O’Callahan “evaporate when viewed within the context of the 'service-connected’ test.” We stress: (a) The essential and obvious interest of the military in the security of persons and of property on the military enclave. Relford concedes the existence of this vital interest. (b) The responsibility of the military commander for maintenance of order in his command and his authority to maintain that order. See Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886 (1961). Relford also concedes this, (c) The impact and adverse effect that a crime committed against a person or property on a military base, thus violating the base’s very security, has upon morale, discipline, reputation and integrity of the base itself, upon its personnel and upon the military operation and the military mission, (d) The conviction that Art. I, § 8, cl. 14, vesting in the Congress the power “To make Rules for the Government and Regulation of the land and naval Forces,” means, in appropriate areas beyond the purely military offense, more than the mere power to arrest a serviceman offender and turn him over to the civil authorities. The term “Regulation” itself implies, for those appropriate cases, the power to try and to punish, (e) The distinct possibility that civil courts, particularly nonfederal courts, will have less than complete interest, concern, and capacity for all the cases that vindicate the military’s disciplinary authority within its own community. See W. Winthrop, Military Law and Precedents 725 (2d ed. 1896, 1920 Reprint) ; Wilkinson, The Narrowing Scope of Court-Martial Jurisdiction: O’Callahan v. Parker, 9 Washburn L. J. 193, 208 (1970). (f) The very positive implication in O’Callahan itself, arising from its emphasis on the absence of service-connected elements there, that the presence of factors such as geographical and military relationships have important contrary significance, (g) The recognition in O’Callahan that, historically, a crime against the person of one associated with the post was subject even to the General Article. The comment from Winthrop, supra, at 724:
“Thus such crimes as theft from or robbery of an officer, soldier, post trader, or camp-follower . . . inasmuch as they directly affect military relations and prejudice military discipline, may properly be— as they frequently have been — the subject of charges under the present Article. On the other hand, where such crimes are committed upon or against civilians, and not at or near a military camp or post, or in breach or violation of a military duty or order, they are not in general to be regarded as within the description of the Article, but are to be treated as civil rather than military offenses.” (Footnotes omitted.)
cited both by the Court in O’Callahan, 395 U. S., at 274 n. 19, and by the dissent at 278-279, certainly so indicates and even goes so far as to include an offense against a civilian committed “near” a military post, (h) The misreading and undue restriction of O’Callahan if it were interpreted as confining the court-martial to the purely military offenses that have no counterpart in nonmilitary criminal law. (i) Our inability appropriately and meaningfully to draw any line between a post’s strictly military areas and its nonmilitary areas, or between a serviceman-defendant’s on-duty and off-duty activities and hours on the post.
This leads us to hold, and we do so hold, that when a serviceman is charged with an offense committed within or at the geographical boundary of a military post and violative of the security of a person or of property there, that offense may be tried by a court-martial. Expressing it another way: a serviceman’s crime against the person of an individual upon the base or against property on the base is “service connected,” within the meaning of that requirement as specified in O’Callahan, 395 U. S., at 272. This delineation, we feel, fully comports with the standard of “the least possible power adequate to the end proposed” referred to in O’Callahan, 395 U. S., at 265.
By this measure, Relford’s alleged offenses were obviously service connected. There is, therefore, no constitutional or statutory barrier and Relford was properly tried by a court-martial.
VI
We recognize that any ad hoc approach leaves outer boundaries undetermined. O’Callahan marks an area, perhaps not the limit, for the concern of the civil courts and where the military may not enter. The case today marks an area, perhaps not the limit, where the court-martial is appropriate and permissible. What lies between is for decision at another time.
VII
Having reached this result on the court-martial issue, the additional issue that the parties have argued, of O’Callahan’s retrospectivity, need not be decided. See Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461 (1945). We recognize that the retro-activity question has important dimensions, both direct and collateral, and that the Government strongly urges that the question be decided here and now. We have concluded, however, that the issue is better resolved in other litigation where, perhaps, it would be solely dis-positive of the case. We take some comfort in the hope that the present decision should eliminate at least some of the confusion that the parties and commentators say has emerged from O’Callahan. ,
Affirmed.
Everett, O’Callahan v. Parker — Milestone or Millstone in Military Justice?, 1969 Duke L. J. 853; McCoy, Equal Justice for Servicemen: The Situation Before and Since O’Callahan v. Parker, 16 N. Y. L. F. 1 (1970); Nelson & Westbrook, Court-Martial Jurisdiction Over Servicemen for “Civilian” Offenses: An Analysis of O’Callahan v. Parker, 54 Minn. L. Rev. 1 (1969); Wilkinson, The Narrowing Scope of Court-Martial Jurisdiction: O’Callahan v. Parker, 9 Washburn L. J. 193 (1970); Wurtzel, O’Callahan v. Parker: Where Are We Now?, 56 A. B. A. J. 686 (1970); The Supreme Court 1968 Term, 83 Harv. L. Rev. 7, 212-220 (1969); O’Callahan v. Parker, 395 U. S. 258 (1969): New Limitation on Court-Martial Jurisdiction, 61 J. Crim. L. C. & P. S. 195 (1970); Comment, 22 Baylor L. Rev. 64 (1970); Comment, 18 J. Pub. L. 471 (1969); Comment, 21 Mercer L. Rev. 311 (1969); Comment, 7 San Diego L. Rev. 55 (1970); Comment, 15 Vill. L. Rev. 712 (1970); Comment, 21 S. C. L. Rev. 781 (1969); Note, 70 Col. L. Rev. 1262 (1970); Note, 18 Kan. L. Rev. 335 (1970); Note, 3 Loyola U. L. Rev. 188 (1970); Note, 24 U. Miami L. Rev. 399 (1970); Note, 68 Mich. L. Rev. 1016 (1970); Note, 48 N. C. L. Rev. 380 (1970); Note, 64 Nw. U. L. Rev. 930 (1970); Recent Cases, 49 Ore. L. Rev. 237 (1970); Note, 23 Sw. L. J. 948 (1969); Note, 37 Tenn. L. Rev. 421 (1970); Note, 44 Tul. L. Rev. 417 (1970); 36 Brooklyn L. Rev. 259 (1970); 19 Buffalo L. Rev. 400 (1970); 38 Geo. Wash. L. Rev. 170 (1969); 31 Ohio St. L. J. 630 (1970); 22 Vand. L. Rev. 1377 (1969).
McCoy, supra; 61 J. Crim. L. C. & P. S. 195; Note, 18 Kan. L. Rev. 335; 19 Buffalo L. Rev. 400; Comment, 18 J. Pub. L. 471.
Everett, supra; Nelson & Westbrook, supra; Wilkinson, supra; Wurtzel, supra; Comment, 15 Vill. L. Rev. 712; Note, 24 U. Miami L. Rev. 399; 38 Geo. Wash. L. Rev. 170; 22 Vand. L. Rev. 1377.
Comment, 22 Baylor L. Rev. 64; Comment, 18 J. Pub. L. 471; Note, 18 Kan. L. Rev. 335; Note, 23 Sw. L. J. 948; Note, 24 U. Miami L. Rev. 399; 31 Ohio St. L. J. 630.
Wilkinson, supra; Comment, 22 Baylor L. Rev. 64; Note, 64 Nw. U. L. Rev. 930.
Nelson & Westbrook, supra; Comment, 21 S. C. L. Rev. 781; Note, 3 Loyola U. L. Rev. 188, 198 n. 67; 44 Tul. L. Rev. 417, 424.
See, e. g., Latney v. Ignatius, 135 U. S. App. D. C. 65, 416 F. 2d 821 (1969); Harris v. Ciccone, 417 F. 2d 479, 488 (CA8 1969), cert. denied, 397 U. S. 1078; Gallagher v. United States, 191 Ct. Cl. 546, 423 F. 2d 1371 (1970), cert. denied, 400 U. S. 849; Silvero v. Chief of Naval Air Basic Training, 428 F. 2d 1009 (CA5 1970); King v. Moseley, 430 F. 2d 732 (CA10 1970); Zenor v. Vogt, 434 F. 2d 189 (CA5 1970).
United States v. Borys, 18 U. S. C. M. A. 547, 40 C. M. R. 259 (1969); United States v. Prather, 18 U. S. C. M. A. 560, 40 C. M. R. 272 (1969); United States v. Beeker, 18 U. S. C. M. A. 563, 40 C. M. R. 275 (1969); United States v. DeRonde, 18 U. S. C. M. A. 575, 40 C. M. R. 287 (1969); United States v. Boyd, 18 U. S. C. M. A. 581, 40 C. M. R. 293 (1969); United States v. Cochran, 18 U. S. C. M. A. 588, 40 C. M. R. 300 (1969); United States v. Chandler, 18 U. S. C. M. A. 593, 40 C. M. R. 305 (1969); United States v. Crapo, 18 U. S. C. M. A. 594, 40 C. M. R. 306 (1969); United States v. Harris, 18 U. S. C. M. A. 596, 40 C. M. R. 308 (1969); United States v. Castro, 18 U. S. C. M. A. 598, 40 C. M. R. 310 (1969); United States v. Henderson, 18 U. S. C. M. A. 601, 40 C. M. R. 313 (1969); United States v. Riehle, 18 U. S. C. M. A. 603, 40 C. M. R. 315 (1969); United States v. Williams, 18 U. S. C. M. A. 605, 40 C. M. R. 317 (1969); United States v. Paxiao, 18 U. S. C. M. A. 608, 40 C. M. R. 320 (1969); United States v. Smith, 18 U. S. C. M. A. 609, 40 C. M. R. 321 (1969); United States v. Shockley, 18 U. S. C. M. A. 610, 40 C. M. R. 322 (1969); United States v. Rose, 19 U. S. C. M. A. 3, 41 C. M. R. 3 (1969); United States v. Armstrong, 19 U. S. C. M. A. 5, 41 C. M. R. 5 (1969); United States v. Rego, 19 U. S. C. M. A. 9, 41 C. M. R. 9 (1969); United States v. Camacho, 19 U. S. C. M. A. 11, 41 C. M. R. 11 (1969); United States v. Cook, 19 U. S. C. M. A. 13, 41 C. M. R. 13 (1969); United States v. Armes, 19 U. S. C. M. A. 15, 41 C. M. R. 15 (1969); United States v. Morisseau, 19 U. S. C. M. A. 17, 41 C. M. R. 17 (1969); United States v. Peak, 19 U. S. C. M. A. 19, 41 C. M. R. 19 (1969); United States v. Plamondon, 19 U. S. C. M. A. 22, 41 C. M. R. 22 (1969); United States v. Sharkey, 19 U. S. C. M. A. 26, 41 C. M. R. 26 (1969); United States v. Weinstein, 19 U. S. C. M. A. 29, 41 C. M. R. 29 (1969); United States v. Allen, 19 U. S. C. M. A. 31, 41 C. M. R. 31 (1969); United States v. Safford, 19 U. S. C. M. A. 33, 41 C. M. R. 33 (1969); United States v. Frazier, 19 U. S. C. M. A. 40, 41 C. M. R. 40 (1969); United States v. Nichols, 19 U. S. C. M. A. 43, 41 C. M. R. 43 (1969); United States v. Hallahan, 19 U. S. C. M. A. 46, 41 C. M. R. 46 (1969); United States v. Huff, 19 U. S. C. M. A. 56, 41 C. M. R. 56 (1969); United States v. Keaton, 19 U. S. C. M. A. 64, 41 C. M. R. 64 (1969); United States v. Easter, 19 U. S. C. M. A. 68, 41 C. M. R. 68 (1969); United States v. Stevenson, 19 U. S. C. M. A. 69, 41 C. M. R. 69 (1969); United States v. Everson, 19 U. S. C. M. A. 70, 41 C. M. R. 70 (1969); United States v. Fryman, 19 U. S. C. M. A. 71, 41 C. M. R. 71 (1969); United States v. Higginbotham, 19 U. S. C. M. A. 73, 41 C. M. R. 73 (1969); United States v. Adams, 19 U. S. C. M. A. 75, 41 C. M. R. 75 (1969); United States v. Wysingle, 19 U. S. C. M. A. 81, 41 C. M. R. 81 (1969); United States v. Gill, 19 U. S. C. M. A. 93, 41 C. M. R. 93 (1969); United States v. McGonigal, 19 U. S. C. M. A. 94, 41 C. M. R. 94 (1969); United States v. Fields, 19 U. S. C. M. A. 119, 41 C. M. R. 119 (1969); United States v. Bryan, 19 U. S. C. M. A. 184, 41 C. M. R. 184 (1970); United States v. Blackwell, 19 U. S. C. M. A. 196, 41 C. M. R. 196 (1970); Mercer v. Dillon, 19 U. S. C. M. A. 264, 41 C. M. R. 264 (1970); United States v. Peterson, 19 U. S. C. M
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Maida Ludvik SHERIS, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee. Maida Ludvik SHERIS, Appellee, v. The TRAVELERS INSURANCE COMPANY, Appellant.
Nos. 73-1462, 73-1463.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 7, 1973.
Decided Feb. 12, 1974.
James H. Simmonds, Arlington, Va., and Richard A. Mehler, Washington, D. C. (Lawrence S. Schaffner, Washington, D. C., on brief), for Maida Ludvik Sheris.
James C. Gregg, Washington, D. C., for The Travelers Ins. Co.
Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges.
BUTZNER, Circuit Judge:
This appeal questions the apportionment of an attorney’s fee between a workmen’s compensation carrier and the administratrix of an estate who recovered damages for the wrongful death of an employee. The district court used only the compensation installments actually paid as a basis for assessing the carrier’s proportionate share of the fee. We conclude that the entire compensation award furnished the appropriate basis for apportionment, subject to a credit allowable to the carrier. Accordingly, we vacate the judgment and remand the ease for further proceedings.
William T. Sheris perished in the crash of a transatlantic aircraft. Because his death occurred during the course of his employment, the Industrial Commission of Virginia awarded his widow and minor children compensation payable by his employer’s insurance carrier, the Travelers Insurance Company, in 400 weekly installments of $45, totaling $18,000. Mrs. Sheris, suing in district court as administratrix of her husband’s estate, also received $75,000 from the airline responsible for his death. From her share of the recovery against the airline, she paid an attorney’s fee of $25,000. Thus, while this litigation is cast in terms of apportioning an attorney’s fee, it is really an attempt by Mrs. Sheris to obtain from Travelers partial reimbursement for her outlay.
Before the court made final distribution of the $75,000, a dispute over Travelers’ right to subrogation was submitted to the Industrial Commission. In that forum, Mrs. Sheris contended .that the subrogation provisions of the Workmen’s Compensation Act were inapplicable because the airline’s liability rested on contractual aspects of the Warsaw Convention and the damages recovered by the estate were in the nature of insurance. The Industrial Commission ruled against Mrs. Sheris, holding that Travelers was subrogated to the estate’s rights against the airline. Consequently, it ordered that Travelers should be reimbursed for the weekly installments it had already paid, aggregating $5,040, and it relieved the company of future payments. Thus, Travelers was saved harmless from liability on the entire $18,000 award. The Supreme Court of Virginia affirmed, Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972). Neither the Commission nor the Court apportioned counsel fees.
Returning to the district court, the parties sought distribution of the award. Travelers asked to be repaid the sum of $5,040 without contribution for counsel fees, because Mrs. Sheris had opposed its right of subrogation. Mrs. Sheris urged that the carrier be assessed a fee of $6,000 based on the entire compensation award of $18,000. The court accepted neither party’s position. It ruled Travelers’ contribution for fees should be based on $5,040, the amount of compensation it had paid, rather than its potential liability of $18,000. It made no adjustment for Travelers on account of Mrs. Sheris’ opposition to subrogation. Accordingly, from the $75,000 recovery against the airline, the court awarded Travelers $5,040 less 33%% which it deducted for Travelers’ share of the fee. Dissatisfied, both parties appealed.
The Virginia Workmen’s Compensation Act allows either the employer or the employee to sue the person responsible for the employee’s injury except for reasons not pertinent to this case. If the employer sues, he may retain from the damages he recovers a sum sufficient to reimburse himself for the compensation paid, or payable, to the employee, but he must account to the employee for money collected in excess of the award. If the employee sues, the employer is entitled to be reimbursed for compensation already paid and to be discharged from liability for future payments to the extent that the judgment against the wrongdoer is sufficient to satisfy the compensation award. The balance may be retained by the employee. In either instance, the employer’s workmen’s compensation insurance carrier stands in the shoes of the employer.
For many years an employer who sued the wrongdoer has been authorized to deduct reasonable attorney’s fees before remitting to the employee. But before 1960 an employee who brought suit was not entitled to charge any attorney’s fees against the employer’s share of the recovery. Frequently these rules placed all of the expense of suing a wrongdoer on the injured employee or his survivors even though the employer or his compensation carrier benefited substantially. To remedy this inequity, the legislature amended the Workmen’s Compensation Act by apportioning attorney’s fees between the employer and employee as their respective interests may appear regardless of who instituted the suit.
The Supreme Court of Virginia has not been called upon to decide the correct basis for apportioning an attorney’s fee when the employee’s recovery against the wrongdoer is in excess of both the paid and unpaid portions of a compensation award. Several courts, however, have interpreted apportionment statutes similar, though not identical,-to Virginia’s. They have ruled that apportionment must be based on the full liability of the employer—the compensation it has paid in the past and the amount that it would be required to pay in the future were it not for the employee’s successful suit.
The reasoning of these cases is sound. It rests on the conclusion that there is no rational distinction between the benefit an employer enjoys from being reimbursed for compensation payments already made and the benefit of being released from the obligation to make future compensation payments. Therefore, as one court has pointed out, it is reasonable to assume that the legislature intended the attorney’s fee to be prorated to the extent of the benefits the employer received from the recovery against the wrongdoer. Stated negatively, there is nothing to indicate that when the Virginia legislature directed proration of the fees as the interests of the parties may appear, it intended that only part of the interest of the compensation carrier should be taken into account.
While some compensation awards may be modified with respect to future payments, the employee’s right of apportionment should not be defeated. The prospect of modification, however, is a factor that a court should consider in light of the contingency that may affect the award. In the case before us, the possibility of modification of the award presents no problem. Upon Travelers’ application, the Industrial Commission released it from future payments because Mrs. Sheris and her children recovered $75,000 from the airline.
Travelers asserts that cases from other jurisdictions are not persuasive because Va.Code Ann. § 65.1-42 (1973) expressly provides that the employer’s share of attorneys’ fees shall be deducted from the compensation actually paid. This provision, Travelers argues, shows conclusively that proration of attorneys’ fees must be based on installments of an award already paia, and not on the unpaid installments.
The difficulty with Travelers’ position is that it overlooks the significance of the 1960 amendment to the Compensation Act. The principal substantive change was the enactment of a new section recodified as § 65.1-43 providing that upon the recovery of damages by either the employer or the employee against the wrongdoer, the court should apportion reasonable attorney’s fees between the employer and the employee as their interests appear. To carry out this substantive change, the amendment modified two existing sections dealing respectively with suits brought by the employer and suits brought by the employee. These modifications are procedural. They are designed to insure that the attorney’s fees shall be apportioned in accordance with the substantive changes made in § 65.1-43 when the proceeds of the judgment against the wrongdoer are disbursed.
Section 65.1-42, on which Travelers relies, simply authorizes a deduction of a proportionate share of the fee from the reimbursement payable to the employer “as provided in § 65.1-43.’’ It is obvious, therefore, that § 65.1-42 is not, as Travelers contends, a limitation on the general apportionment statute, § 65.1-43. Section 65.1-42 does not deal expressly or by implication with the employer’s obligation for attorney’s fees arising out of the release of future payments that would have been due under the compensation award were it not for the employee’s successful suit. This question is governed by § 65.1-43, which explicitly states that apportionment must be made as the respective interests of the employer and employee appear.
Travelers’ interest in the recovery of $75,000 against the airline is substantially the same with respect to both the paid and unpaid portions of the compensation award. Travelers was relieved from liability from both parts of the award for precisely the same reason —Mrs. Sheris’ suit against the airline. Fortuities affecting the time required to bring that litigation to a successful conclusion determined in part the amount of compensation that remained unpaid. But these fortuities, similar to those attending all litigation, furnish no rational criteria for determining a just apportionment of the attorney’s fee. We conclude, therefore, that Travelers’ obligation to pay a part of the attorney’s fee must be based on the full compensation award of $18,000.
We turn next to Travelers’ cross appeal which charges that because of Mrs. Sheris’ opposition to its right of subrogation, the court erred in assessing any fees against it. Travelers’ argument, we believe, does not defeat Mrs. Sheris’ claim, but it is a factor the court must consider in apportioning the attorney’s fee between the parties.
The Compensation Act’s direction to apportion fees as the interests of the parties may appear is broad enough to encompass this situation. Travelers has benefited by Mrs. Sheris’ suit against the airline, and under the Act it must pay its share of the fee. But the company also had to spend its own money when Mrs. Sheris assumed an adversary position on the issue of subrogation. Therefore, the district court should allow as a deduction from the fee that Travelers would otherwise owe, the amount it reasonably expended to perfect its right of subrogation. In this way the mandate of the statute requiring consideration of the interests of both parties will be fully observed.
The judgment of the district court is vacated, and the ease is remanded for further proceedings consistent with this opinion. Each party shall bear its own costs.
. Va. Code Ann. §§ 65.1-41 and 42 (1973). The text is quoted in notes 14 and 15, infra.
. Va. Code Ann. § 65.1-41 (1973). The text is quoted in note 14, infra.
. Va. Code Ann. § 65.1-42 (1973). The text is quoted in note 15, infra. Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972).
. Va. Code Ann. § 65.1-112 (1973).
. See VEPOO v. Mitchell, 159 Va. 855, 164 S.E. 800, 167 S.E. 424, 425 (1933) (dictum).
. See Stancil v. United States, 200 F.Supp. 36, 44 (B.D.Va.1961) (dictum). Travelers’ reliance upon Stancil is misplaced. In Stancil claim was made only for apportionment of attorney’s fees on the basis of the compensation already paid, and, therefore, the court had no occasion to discuss the issue presented in the case now before us.
. Oh. 89, § 39.1 [1960] Va.Acts 108. This section has been recodified as Va.Code Ann. § 65.1—43 (1973). It provides:
“In any such action, or claim for damages, by such employee, his personal representative or other person against any person other than the employer, and in any such action brought, or claim asserted, by the employer under his right of subrogation provided for in § 65.1-41, if a recovery is effected, either by judgment or voluntary settlement, the reasonable expenses and reasonable attorney’s fees of such claimants shall be apportioned pro rata between the employer and the employee, his personal representative or other person, as their respective interests may appear.”
. Dowhy v. Moyer, Inc., 278 F.2d 753 (3rd Cir. 1960) ; Yeager v. Heckman, 158 F.Supp. 933 (E.D.Pa. 1957) ; Caputo v. Best Foods, Inc., 17 N.J. 259, 111 A.2d 261 (1955) ; Dante v. Gotelli, Inc., 17 N.J. 254, 111 A.2d 267 (1955) ; McMullen v. Maryland Casualty Co., 123 N.J.Super. 248, 302 A.2d 181 (1973) ; Wall v. Conn. Welding & Machine Co., 197 Pa.Super. 360, 179 A.2d 235 (1962) ; Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425 (1958) ; cf. Security Ins. Co. of Hartford v. Norris, 439 S.W.2d 68 (Ct.App.Ky. 1969) (apportionment based on equitable, not statutory, grounds) ; see Atleson, Workmen’s Compensation : Third Party Actions and the Apportionment of Attorney’s Fees 19 Buffalo L. Rev. 515, 532 (1970).
. See Yeager v. Heckman, 158 F.Supp. 933, 935 (E.D.Pa. 1957).
. See Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425, 428 (1958).
. See note 15, infra.
. Ch. 89, §§ 65-38, 39 and 39.1 [1960] Va. Acts 108. The Workmen’s Compensation Act was revised and recodified in 1968. Ch. 660, §§ 65.1-41, 42, and 43 [1968] Va. Acts 1130. The text of these sections was not affected by the 1968 recodification. For convenience, the recodified section numbers have been used in this opinion.
. The text of this section is quoted in note 7, supra.
. Section 65.1-41 of the Va. Code Ann. (1973) provides:
“The making of a lawful claim against an employer for compensation under this Act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce, in his own name or in the name of the injured emjdoyee or his personal representative, the legal liability of such other party. The amount of compensation paid by the employer or the amount of compensation to which the injured employee or his dependents are entitled shall not be admissible as evidence in any action brought to recover damages. Any amount collected by the employer under the provisions of this section in excess of the amount paid by the employer or for which he is liable shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less a proportionate share of such amounts as are paid by the employer for reasonable expenses and attorney’s fees as provided in § 65.1-43
[The 1960 Amendment is italicized].
. Section 65.1-42 of the Va. Code Ann. (1973) provides:
“In any such action by such employee, his personal representative or other person against any person other than the employer, the court shall, on petition or motion of the employer at any time prior to verdict, ascertain the amount of compensation paid and expenses for medical, surgical and hospital attention and supplies, and funeral expenses, incurred by the employer under the provisions of this Act, and deduct therefrom a proportionate share of such amounts as are paid by the plaintiff for reasonable expenses and attorney’s fees as provided in § 65.1-43; and in event of judgment against such person other than the employer the court shall in its order require that the judgment debtor pay such compensation and expenses of the employer, less said share of expenses and attorney’s fees, so ascertained by the court out of the amount of the judgment, so far as sufficient, and the balance, if any, to the judgment creditor-[The 1960 Amendment is italicized].
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_numresp
|
10
|
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.
MEDICAL LAUNDRY SERVICE, A DIVISION OF OPLCO, INC., Plaintiff-Appellant, v. The BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA, BIRMINGHAM; S. Richardson Hill, both as an individual and in his capacity as President of the University of Alabama (“UAB”); Dennis Sanchez, both as an individual and in his official capacity as Assistant Director of the Department of Pharmacy at UAB; Vance Alexander, both as an individual and in his official capacity as Associate Director of the Department of Pharmacy at UAB; Herman Lazarus, both individually and in his official capacity as Director of the Department of Pharmacy at UAB; James E. Moon, both individually and as Administrator of the University of Alabama Hospitals; Bob Cummings, both individually and as Associate Director of Purchasing at UAB; Clark Taylor, both individually and in his official capacity as Associate Administrator for Operations at UAB; Lester Elliot, both individually and in his official capacity as Supervisor of the Linen Service Department at UAB; Martin Novak, both individually and in his official capacity as Assistant Administrator for Operations of UAB; et al., Defendants-Appellees.
No. 86-7852.
United States Court of Appeals, Eleventh Circuit.
March 23, 1988.
Fred McCallum, Jr., Lange, Simpson, Robinson & Somerville, Richard Patrick Carmody, Birmingham, Ala., for plaintiff-appellant.
Ina B. Leonard, Office of Counsel, Katherine S. Weed, Birmingham, Ala., for Board of Trustees of the University of Alabama, et al.
Leura J. Garrett, Asst. Atty. Gen., Montgomery, Ala., amicus for the State of Ala.
Before RONEY, Chief Judge, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
The issue to be addressed in this opinion is whether plaintiff has a legally protected property interest, which is a prerequisite to plaintiffs procedural due process claim brought pursuant to 42 U.S.C. § 1983. In order to establish a procedural due process claim under the Fourteenth Amendment for deprivation of property, plaintiff must show that its contract with the state constitutes a protected property interest.
Plaintiff Medical Laundry Service held a contract with the University of Alabama in Birmingham for provision of laundry services to University hospitals in Birmingham. The contract was terminated by the Board of Trustees of the University of Alabama approximately one month after performance under the contract had begun. Plaintiff brought suit against the Board of Trustees of the University of Alabama and hospital officials (hereafter referred to collectively as the “State”) for violation of plaintiffs procedural and substantive due process rights under § 1983. The district court granted the State’s motion for summary judgment on both counts. We find no merit in plaintiffs substantive due process claim and affirm without further discussion the district court’s grant of summary judgment on that claim.
The scope of plaintiff’s property interest under § 1983 is defined by state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). Article I, § 14 of the Constitution of the State of Alabama provides: “That the State of Alabama shall never be made a defendant in any court of law or equity.” The State argues that plaintiff cannot enforce its contract, Hutchinson v. Board of Trustees of the University of Alabama, 288 Ala. 20, 256 So.2d 281 (1971), and thus plaintiff has no enforceable property interest. Without a property interest, plaintiff’s procedural due process claim would fail. Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972).
The district court, adopting this argument, entered summary judgment for defendant. We reverse.
Although the Alabama Constitution makes the instant contract unenforceable “in any court of law or equity,” Alabama has established a Board of Adjustment with jurisdiction to hear such claims. Section 41-9-68(a) of the Code of Alabama provides in relevant part:
When claims are ... presented to the board of adjustment ... it is directed to determine the amount of the ... damage arising from contract ... and to award and find the person entitled to payment and the amount, if any, which should be paid....
Section 41-9-69 provides:
The board of adjustment in its findings of facts and its findings and awards as to the amount of payment may also find the agency, commission, board, institution or department of the state of Alabama which inflicted the injury or damage complained of, if it finds there is injury or damage done to persons or property, and may adjudge and find that said damage shall be paid out of the appropriation made to the agency, commission, board, institution or department of the state of Alabama whose employees, servants, agents or instrumentalities inflicted the damages and injuries complained of; provided, that the board of adjustment may order the payment of any claim out of any fund or funds appropriated for the purposes of this division.
Section 41-9-72 provides:
The treasurer of the state of Alabama is authorized and directed to pay the warrants of the comptroller, drawn pursuant to the findings and awards of the board of adjustment out of any money in the treasury of the state of Alabama as directed by such findings and awards.
Although the plaintiff cannot enforce its contract in any court of law or equity, Alabama has provided an administrative procedure to “adjust” plaintiff’s contract claim. The State argues that the remedy afforded by the Board of Adjustment is a mere privilege, a matter of legislative grace. John E. Ballenger Construction Co. v. State Board of Adjustment, 234 Ala. 377, 175 So. 387 (1937). However, the Supreme Court has expressly rejected the State’s proposed distinction between a “right” and a privilege. In Board of Regents v. Roth, 408 U.S. at 571, 92 S.Ct. at 2706, 33 L.Ed.2d 548 (1972), the Court stated: “[T]he court has fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges’ that once seemed to govern the applicability of procedural due process.” In Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), the Court held:
We have made clear in Roth, supra [408 U.S.] at 571-72 [92 S.Ct. at 2706], that “property” interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, “property” denotes a broad range of interests that are secured by “existing rules or understandings.”
We conclude that the provisions whereby the Board of Adjustment “adjusts” claims is just such a set of rules securing plaintiff’s interest in the instant contract. The fact that the Supreme Court of Alabama has referred to the Board of Adjustment procedures as a mere matter of grace, Ballenger, supra 175 So. at 390, does not alter our conclusion. The language of the Alabama statute directs the Board of Adjustment to determine the amount of damage and directs the treasurer of the state of Alabama to pay pursuant to the awards of the Board. Ala. Code § 41-9-68(a), § 41-9-72 (1975). The State has referred us to no authority suggesting that the Board of Adjustment makes determinations in a completely arbitrary manner, and we see no reason to assume that it does.
With respect to plaintiff’s substantive due process claim, the district court’s grant of summary judgment is affirmed. With respect to plaintiff’s procedural due process claim, the district court’s grant of summary judgment is reversed.
AFFIRMED in part, REVERSED in part, and REMANDED.
. The law is clear that decisions of the Board of Adjustment are not appealable. Moody v. University of Alabama, 405 So.2d 714 (1981). The fact that its decisions are not appealable does not mean that the Board does not conduct its business in a fair and reasoned manner. In fact, it is directed to follow as a guide the rules of negligence and workmen's compensation, when applicable. See Ala.Code § 41-9-68(a).
. Other issues, including res judicata, collateral estoppel and the application of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), were neither addressed by the district court nor briefed on appeal, and therefore should be addressed initially on remand.
With respect to Chief Judge Roney’s dissent, we agree that a breach of contract is not, in and of itself, a constitutional violation. Although contract rights can be property, a breach of contract by a state does not necessarily amount to a deprivation of property without due process of law. Because we have had no briefing about what process was due to this plaintiff on the termination of the contract or whether Alabama provided due process or denied due process to this plaintiff, we leave it to the district court on remand to consider those questions.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Appellee, v. Joseph Ralph FIORE, Defendant-Appellant.
No. 869, Docket 35229.
United States Court of Appeals, Second Circuit.
Argued April 23, 1971.
Decided May 17, 1971.
Joseph W. Ryan, Jr., Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., E. D. New York, and David G. Trager, Asst. U. S. Atty., of counsel), for appellee.
Henry K. Chapman, New York City for defendant-appellant.
Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.
FRIENDLY, Circuit Judge:
After a jury trial in the District Court for the Eastern District of New York, Joseph Ralph Fiore was convicted on all counts of a four-count indictment charging him with sales of heroin on December 3, 1969, and January 12, 1970, in violation of 21 U.S.C. § 174 and 26 U.S.C. § 4704(a).
Late in November 1969, Thomas Bennett, Jr., a confidential informant apparently used in previous narcotics investigations, was employed by the Government to aid in the investigation of the activities of Fiore, proprietor of a small store in the Astoria section of Queens, N. Y. There was extensive trial testimony by narcotics agents that on December 3, 1969, Bennett entered the store with $1,000 in Government funds and no narcotics on his person and ultimately emerged without the $1,-000 but with a white paper bag including, among other things, a plastic bag containing about two-thirds of an ounce of heroin. There was also a recorded (and subsequently transcribed) telephone conversation between Bennett and Fiore, initiated on the next day by one of the agents, relating (at least inferentially to a shortage in the quantity of heroin delivered. On January 12, 1970, Bennett again entered the store with $1,000 in Government funds and with no narcotics on his person. Once more he emerged without the money, this time bearing a magazine bound with Scotch tape around the edges, which contained a plastic bag filled with heroin — approximately the same quantity as before.
Bennett testified before the grand jury concerning his conversations with Fiore and his purchases within the store. Thereafter he was sentenced by a New York State court to a term in Clinton State Prison. Shortly before the trial the State released him temporarily to the custody of the federal authorities, and he went over his proposed testimony with one of the agents and the prosecutor.
After the jury had been selected, the prosecutor informed the judge, out of the jury’s presence, that Bennett had experienced a sea change and was refusing “to even physically cooperate in coming up to this courtroom.” Testimony by one of the agents consumed the balance of the day and part of the next. Bennett’s attitude had not changed. He was forcibly brought into the courtroom by two marshals and two narcotics agents, the jury having been excused, and the judge persuaded him to sit in the witness chair. After the jury’s re-, turn, the judge asked Bennett to raise his right hand and be sworn. Bennett answered that he refused to testify. After an inconclusive colloquy at sidebar, subsequent to which Bennett again refused to be sworn, the court instructed the prosecutor to “proceed.” Preliminary questions were met with refusals to answer or statements of ignorance or forgetfulness why he (Bennett) had been brought to court. When the proseeutor asked permission to examine Bennett “as a hostile, reluctant witness,” defense counsel said “the question of reluctance is not the issue.” The court then ruled that Bennett “can now be questioned as a hostile witness.” The prosecutor proceeded to ask Bennett whether he had testified before the grand jury, and Bennett said “I don’t remember.” There followed a protracted pas de deux, with the prosecutor reading portions of Bennett’s grand jury testimony, framed by the questions, “Were you asked the following questions and did you give the following answers?” and “Were you asked those questions and did you give those answers?,” and with Bennett almost invariably offering such responses as “I might have,” “I don’t recall,” “I don’t know whether I did or not,” or “I refuse to answer.” No pertinent objections were made by defense counsel. After a luncheon recess Bennett said he would like to get a lawyer and indicated that he wished an “adjournment” for that purpose. The court decided to proceed and asked Bennett “to please cooperate to the extent of being asked questions and make whatever answers you want,” assuring him that it would “protect” him. The reading of questions and answers before the grand jury resumed, with results similar to those already described. At the end of this, defense counsel said, “I have no questions on cross.”
On the next day, after testimony by another agent, the Government called the reporter who had taken down the grand jury testimony in order to authenticate the questions and answers. Again there was no pertinent objection, and the Government rested. Defense counsel then moved to strike all of Bennett’s testimony on the ground that he had not been sworn. The judge denied this, not as having been made too late but as lacking merit. In its charge the court instructed that if the jury found Bennett to have been a recalcitrant witness, his grand jury testimony might be used as affirmative evidence of the facts stated; to this defense counsel excepted.
If prompt objection had been taken, it would have been clear error to allow Bennett’s grand jury testimony to be received as evidence — indeed, to have allowed the prosecutor to ask him any questions at all. Although F.R.Cr.P. 26 does not expressly require an oath, it refers the admissibility of evidence and the competency of witnesses to “the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” There is no room for doubt what those principles require in this context. Wigmore instructs that “for all testimonial statements made in court the oath is a requisite,” 6 Evidence § 1824 (3d ed. 1940) (emphasis in original). See also Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, Rule 603, reprinted in 51 F.R.D. at 385.
The Government’s argument is not that anything said by Bennett while in the witness chair was receivable — indeed, he said nothing that was of any value to its case — but that, under the principle enunciated in United States v. De Sisto, 329 F.2d 929, 933-934 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964), and followed in United States v. Insana, 423 F. 2d 1165, 1170 (2 Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970) and United States v. Mingoia, 424 F.2d 710, 712-713 (2 Cir. 1970), Bennett’s presence rendered admissible his previous sworn testimony before the grand jury. The reliance is misplaced. In these cases the witness had been sworn and was available for meaningful cross-examination on the issue whether his present alleged lack of recollection of the defendant’s participation in the crime or his previous sworn testimony to the contrary was the truth — indeed, although this is not decisive, in De Sis-to, the alleged lack of specific recollection had been brought out in cross-examination itself. Similarly Rule 801 of the proposed Federal Rules of Evidence, in defining certain prior statements as not hearsay, limits the definition to cases where “the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement,” 51 F.R.D. at 413, see also at 415, 416. Our decisions, and the considerably broader proposal in Rule 801, rest on Wigmore’s view that “The whole purpose of the Hearsay rule has been already satisfied [because] the witness is present and subject to cross-examination [and] [t]here is ample opportunity to test him as to the basis for his former statement.” 3 Evidence § 1018 (3d ed. 1940), quoted in California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Here Bennett was not subject to cross-examination by the defendant, both because he had refused to take the oath and thus was not a witness at all and because he had made it evident that he would refuse to give testimony of any sort. Under such circumstances the admission of his grand jury testimony would appear to offend not only the hearsay rule, even in the liberalized form adopted by this circuit, see 3A Wigmore, Evidence § 1018 at 997-998 (Chadbourn rev. 1970), but the confrontation clause of the Sixth Amendment as well, Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).
The Government says that, even if this be so, we should nevertheless affirm because of the failure to make appropriate objection until the Government had rested its ease. If we were faced only with an omission to take the oath and Bennett had been cross-examined or there was any indication that he could have been, the argument would have much in its favor, see Wilcoxon v. United States, 231 F.2d 384, 387 (10 Cir.), cert. denied, 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469 (1956). But those were not the facts here. Even with the facts as they were, we would hardly have reversed if the judge had sustained the belated objection when it was made, and had instructed the jury to disregard the grand jury testimony; despite the practical impossibility of the jury’s doing so, this would have been proper in light of counsel’s failure to make timely objection. But here, having been apprised of the objection, sound as we hold it to have been, the judge overruled it and told the jury it might consider the testimony. Although we can understand his sympathy with-the prosecution’s unexpected predicament, we cannot square his rulings either with recognized principles of evidence or with the Sixth Amendment’s command.
While we are thus constrained to reverse the conviction, we refuse to direct dismissal of the indictment, as Fiore requests. We are by no means certain that, in the absence of any significant evidence by the defense, the testimony of the agents was not sufficient to take the case to the jury. Furthermore, no one can be sure that Bennett’s attitude at a second trial will be the same as at the first. The record does not disclose the length of his New York sentence; as he approaches the end of it or if he is now or soon becomes eligible for parole, the prospect of a federal sentence for contempt may have a more chastening effect. If this does not happen, it is not beyond possibility that the Government may be able to establish that Bennett’s recalcitrance was due to “the suggestion, procurement or act of the accused,” see Motes v. United States, 178 U.S. 458, 471-472, 20 S.Ct. 993, 998, 44 L.Ed. 1150 (1900) in which event, as recognized in Douglas v. Alabama, supra, 380 U.S. at 420, 85 S.Ct. 1074, a different rule would apply. If ever there was a case where resort to the principle of Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 94 L.Ed. 335 (1950), is appropriate, this is it.
The judgment of conviction is reversed and a new trial ordered.
. The conversation ostensibly concerned a shortage of shoe polish. There was testimony that the bag of heroin was contained inside a shoe-polish carton, one of the items with which Bennett emerged upon leaving Fiore’s store.
. After the judge had requested Bennett to take the oath and told him he could refuse to testify after being sworn, defense counsel asked to “make a suggestion.” This was that “[w]e are treading on dangerous ground” and “[y]ou [the judge] may be exceeding your authority to have him take the oath.” So far as we ean gather anything from this, it is that counsel was making a suggestion against the judge’s threatening to place Bennett in contempt for what might be a legitimate exercise of the privilege against self-incrimination.
. If Bennett’s testimony had been given at a prior trial, where he would have been subject to cross-examination, rather than only before the grand jury, where he was not, his conduct at the instant trial might have rendered him “unavailable,” cf, 5 Wigmore, Evidence § 1042, 4 Wigmore, Evidence § 1317(b) (3d ed. 1940), and his testimony thus admissible.
. We cannot take the colloquy recited in fn. 2 as an adequate objection.
. The Government does not suggest that if defense counsel had made earlier objection, it could have adduced proof of this at the trial.
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_appel1_1_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
The HICKS CO., INC., etc., Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee. Thomas WHEELER et al., Petitioners, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee. Thomas WHEELER, Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee.
Nos. 72-1058 to 72-1060.
United States Court of Appeals, First Circuit.
Heard Oct. 3, 1972.
Decided Dec. 6, 1972.
John M. Doukas, Boston, Mass., for appellants.
Murray S. Horwitz, Atty., Tax Division, Department of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, and Richard W. Perkins, Attys., Tax Division, Department of Justice, were on brief, for appellee.
Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
CAMPBELL, Circuit Judge.
Thomas and Shirley C. Wheeler and The Hicks Company, Inc. (hereafter collectively “taxpayers”) appeal from the Tax Court’s decisions 56 T.C. 982, upholding the Commissioner’s determination of unreported income, federal income tax deficiencies and fraud penalties.
No liability for a fraud penalty was assessed against Mrs. Wheeler. 26 U.S. C. § 6653(b) (Supp.1972).
The Hicks Company, Inc. (which for a period after July 22, 1958 was known as The Lynn Corporation, and is hereinafter referred to as “Lynn”) is a Massachusetts corporation. It filed income tax returns for each of the taxable years ending on July 31, of 1957, 1958 and 1959. During those years Thomas Wheeler was its sole stockholder, its president, treasurer and a director. He set its policies, directed its activities and made the necessary management decisions.
Thomas Wheeler and his second wife, Shirley, filed joint income tax returns for each of the years 1957 through 1959 (and an amended 1959 return several years later). Thomas Wheeler also filed a joint return for the year 1956 with his first wife, Ruby.
These proceedings are concerned with alleged deficiencies and fraud with respect to taxes shown in each of the foregoing returns.
We are satisfied from our review of the record and of the Tax Court’s detailed findings regarding each of the alleged tax deficiencies that the former affords substantial support for the latter. We agree with the appellee that it is not sufficient for the taxpayers to show that other and different findings might have been made on the same evidence. “To draw inferences, to weigh the evidence and to declare the result” was the function of the Tax Court. Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 938, 82 L.Ed. 1346 (1938), rehearing denied, 305 U.S. 669, 59 S.Ct. 56, 83 L.Ed. 434 (1938).
We are further satisfied that the Commissioner more than met his burden before the Tax Court of proving by clear and convincing evidence that the deficiencies were due to fraud with intent to evade taxes. We find nothing to add to the Tax Court’s careful analysis of the evidence and its warranted and, indeed, virtually inescapable conclusions therefrom.
Accordingly, we proceed to what we believe to be the crucial issue presented on this appeal: namely, the Tax Court’s receiving into evidence of an official transcript of the sworn testimony of Raymond L. White, a major prosecution witness at the 1964 trial of Thomas Wheeler on criminal charges of wilful evasion of the payment of income taxes. Criminal No. 63-163-F (U.S.D.C., Mass.) Wheeler was convicted in the district court on four counts; he appealed; and this court reversed, set aside the verdict, and remanded for a new trial. Wheeler v. United States, 351 F.2d 946 (1st Cir. 1965). The reversal resulted from our ruling that the district court had committed harmful error when it refused to permit Wheeler’s counsel (who now represents all three taxpayers in the present case) to ask White, on cross examination, “have you claimed or will you claim an informer’s reward in this case?” We held that exclusion of the question improperly infringed upon Wheeler’s right of cross examination.
Thirteen months after our decision, Thomas Wheeler pleaded nolo contendere to the four counts upon which he had been originally tried, was adjudged guilty, and was fined, terminating the criminal case without a new trial. The witness, Raymond L. White, thereafter became mentally incompetent. When in 1970 the present cases were tried before the Tax Court, he was 72 years old, had been confined for two years in a Veterans Administration Hospital, and was certified by the Hospital’s Chief of Staff to be incompetent and unable to testify.
The taxpayers do not now question that White was permanently unavailable. They concede that if there were sufficient identity of parties and issues between the former and the present proceedings, and if Thomas Wheeler’s right to cross examination had been fully protected at the former trial, the transcript would be admissible. See Mattox v. United States, 156 U.S. 237, 244, 15 S.Ct. 337, 39 L.Ed. 409 (1895). California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). But they contend that his former testimony is inadmissible because of the absence of those crucial qualifying factors.
We reject taxpayers’ contention that there was insufficient identity of parties and issues. Absolute identity is not required. What must exist — and we believe existed here — is sufficient identity of issues to ensure that cross examination in the former case was directed to the issues presently relevant, and that the former parties were the same in motive and interest. 5 Wigmore, Evidence, § 1386 (3rd Ed. 1940).
The first count1 in the criminal indictment against Wheeler was for willful evasion of tax by him and his wife in 1957. It related to the same tax, and raised substantially the same issues, as do the present assertions of deficiency and fraud for that year. The constituent elements of criminal tax evasion and of civil tax fraud are identical. Moore v. United States, 360 F.2d 353, 356 (4th Cir. 1965).
The other three criminal charges were for Wheeler’s willful evasion of Lynn’s 1957, 1958 and 1959 taxes. While Lynn was not a party as such, Wheeler had been its principal officer and in total control of Lynn. The criminal charges against Wheeler for evasion of Lynn’s taxes presented issues essentially similar to those raised by the present assertions of fraud and deficiency for the same taxable years against Lynn directly.
Thus we find adequate identity of parties and interest.
Taxpayers’ remaining point, that excluding the question about informer’s reward rendered the cross examination incomplete, is a more serious one. But under all the circumstances we think that thé Tax Court did not err by admitting the former testimony.
White’s testimony at the criminal trial is contained in just under 300 pages of transcript of which nearly 200 pages are of cross examination. The cross examination was vigorous. Its only obvious deficiency was the erroneous exclusion by the court, over counsel’s objection, of the question whether White had claimed or would claim an informer’s reward. The trial court stated that there had been “no foundation for the fact that he was an informer”, and invited an offer of proof. Wheeler’s attorney then stated, though without providing substantiation, “If allowed to answer, the answer would be ‘yes’.” He then proceeded with his examination.
In holding the court to have erred, we said that White was the Government’s principal witness, that he had been employed by Wheeler and by various corporations with which Wheeler was connected, and that had the jury known he planned to claim a reward in the event of Wheeler’s conviction, the probative value of his testimony would be weakened. Wheeler v. United States, supra, 351 F.2d at 947. We indicated that no further foundation was required to ask a question bearing so obviously upon such a witness’s credibility.
The Government argues for admissibility on two grounds: that new evidence produced before the Tax Court shows that White was not an informer and did not, in fact, claim a reward; and that greater leeway is traditionally afforded to courts in non-criminal jury-waived trials to receive evidence.
The evidence before the Tax Court tending to show that White had not been an informer was as follows: Special Agent Dougherty of the Internal Revenue Service testified to seeing and meeting an anonymous informant in the Wheeler case in June, 1959. Upon being shown White’s picture, he testified that White was not the informant. Another I.R.S. employee testified that he was the custodian of the only informant’s claim file in Massachusetts, and that a search revealed no claim for reward by White or any one else relative to persons and corporations in this case. Finally, Special Agent Ansbigian testified that he was assigned to investigate the taxpayers on September 24, 1959, and has since supervised the investigation and been involved with the case to the date of the present Tax Court trial. He disclaimed any knowledge of White’s being an informer, and testified to efforts made by White, during the initial investigation, to cover up certain incriminating matters.
The foregoing evidence does not, of course, squarely meet taxpayers’ argument that the cross examination of White was and remains incomplete. It does, however, provide strong grounds from which to infer now that exclusion of the question could not be harmful to Wheeler and the other taxpayers. It is difficult to believe that White would have intended to claim a reward without his informer’s status being known at least to Ansbigian, the I.R.S. agent in charge of the case or to Dougherty; or without the claim (if made) appearing in the file.
While the deficiency in cross examination was originally serious enough for us to reverse Wheeler’s jury conviction, we think it appropriate, in light of the new evidence making it most improbable that White was an informer or had claimed or would claim a reward, to make a fresh evaluation, for purposes of the present non-jury proceeding, of the harmfulness of the trial court’s initial error. Plainly former testimony, to be admissible even in a civil non-jury trial, must have included a reasonable opportunity to cross examine. McCormack on Evidence (2nd Ed. 1972), § 255. However, we live in a real world where choices between imperfect alternatives must be made. White is now unavailable. We must decide whether the single imperfection in his cross examination was so harmful to the appellants as to require the exclusion of vital and detailed testimony by a key witness who, but for this matter, was subjected to the most searching and extensive cross examination. Not only is there now uncontradicted evidence irom which to infer that the informer issue was without basis, but we are considering the use of White’s testimony by an experienced Tax Court judge in a civil proceeding, not by a jury in a criminal case. The Tax Court was on notice of the contention that White might have been seeking an informer’s reward. It could consider and, if it so desired, could even assume that possibility together with other facts (including the considerable volume of evidence corroborative of many aspects of White’s testimony) in deciding White’s overall credibility.
We say, in brief, that the adequacy of cross examination must be viewed in light of the present proceedings as a whole, not in isolation. Were we to believe that the original error carried with it any substantial possibility of affecting the outcome of these proceedings, we would not hesitate to reverse.
But on the entire record, the erroneous exclusion of the informer question from the otherwise complete cross examination seems insufficiently prejudicial for us to conclude that reasonable opportunity to cross examine was denied. The transcript was properly admitted.
Taxpayers object to the Tax Court’s admission of White’s signed statement (or affidavit) dated November 19, 1959 given to, and authenticated at the trial by Special Agent Ansbigian. The statement lists certain checks as drawn by White in 1957 and recorded in the cash disbursement journal of Lynn. White was the assistant treasurer of Lynn from 1957 through 1959. He maintained Lynn’s books and records and was in charge of Lynn’s accounting, office personnel and general office work during the period. Thomas Wheeler had authorized White to cooperate with Ansbigian after the investigation had commenced in 1959, and he was aware that Ansbigian was being furnished books, records and tax data in November of 1959. The statement was properly received. It was an admission against Lynn and Wheeler made by their agent concerning a matter within the scope of his then existing agency. See Joseph T. Ryerson & Son, Inc. v. H. A. Crane & Brother, Inc., 417 F.2d 1263, 1269 (3rd Cir. 1969). McCormick on Evidence (2d Ed., 1972), § 267. See also Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates (March 1971), Rule 801(d)(2) and comments.
Taxpayers also object to White’s question and answer transcript of February 19, 1960, which the Tax Court, after excluding at the trial, referred to in an opinion footnote as having been relied upon “in making some of our findings of fact.” The Government argues that the transcript was admissible on the same theory as White’s affidavit. Alternatively it argues that it was merely cumulative. We agree at least with the latter point. Whether or not actually considered by the Tax Court, it could scarcely have affected the outcome as White’s statements therein concerning matters material to the Tax Court’s findings were repeated in White’s own testimony and in the testimony of Special Agent Ansbigian.
Affirmed.
. The Commissioner found, and the Tax Court affirmed, the following deficiencies and penalties:
Taxable Year Ended
The Hides Go. Inc. Income Tax Deficiency
Addition to Tax for Fraud
July 31, 1957 $14,174.52 $ 7,087.26
July 31, 1958 23,495.25 11,747.63
July 31, 1959 37,216.42 18,608.21
Taxable Year Ended
Thomas and Shirley Wheeler Income Tax Deficiency
Thomas Wheeler Addition to Tax for Fraud
Dec. 31, 1957 $18,050.14 $ 9,724.64
Dec. 31, 1958 2,264.29 1,132.14
Dec. 31, 1959 1,417.80 3,631.80
Taxable Year Ended
Thomas Wheeler Income Tax Deficiency
Thomas Wheeler Addition to Tax for Fraud
Dec. 31, 1956 $ 3,351.46 $ 1,675,73
. Wheeler’s conviction was on one count alleging the willful evasion of the payment of federal income taxes due and owing to the United States by him and his wife for the year 1957, and on three counts of willful evasion of tax due and owing by S. D. Hicks & Son Co., and Lynn for the years ended July 31 of 1957, 1958 and 1959. (Lynn and S. D. Hicks & Son Co. were one and the same, the lattei*’s name having been changed to the former on July 22, 1958.)
. We are not troubled by the fact that Mrs. Wheeler was not a party to the criminal proceeding. Xo fraud penalty has been asserted or found as to her, and her interest was and is in no respect divergent from her husband's.
. There is no merit to taxpayers’ assertion that the district court’s refusal to hold AA’hite, after completion of direct and cross examination, “in the custody of the court” so that counsel could call him later as AVheeler's own witness further vitiated the former testimony. AVliite was a resident of the district, anil could have been summonsed had Wheeler's counsel so desired. There is no evidence that any attempt was made to recall him.
. The Government urges that Civil Rule 43(a) announces a policy of inclusion rather than exclusion of probative evidence.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Daniel UNTERMYER, Plaintiff-Appellant, v. Donald HELLBUSH, San Mateo County Probation Officer, Defendant-Appellee.
No. 72-2422.
United States Court of Appeals, Ninth Circuit.
Jan. 2, 1973.
Paul K. Robertson, Palo Alto, Cal., for plaintiff-appellant.
Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Robert R. Grannuchi, Karl S. Meyer, Deputy Attys. Gen., San Francisco, Cal., for defendant-appellee.
Before HAMLEY, KOELSCH, and WRIGHT, Circuit Judges.
PER CURIAM:
Appellant sought a writ of habeas corpus, attacking his conviction in the California state court for possession of marijuana. The district court denied the petition and, on this appeal, we affirm that disposition. Appellant was given a suspended sentence by the state court judge and is now on probationary status.
Appellant was stopped in a motor vehicle by a local police officer in Ather-ton, California. Marijuana was discovered in the vehicle, the officer seeing it in plain view. Untermyer here contests only the constitutionality of the initial stop, contending that the marijuana subsequently discovered should have been suppressed as the fruit of that stop.
Late in November, at 11:00 p.m., the police officer was patrolling in a residential area in which burglaries had recently been committed. He saw a small foreign car, darkened, parked in front of a darkened home. Appellant was walking from the house to the car. As the officer approached, appellant entered on the passenger side of the vehicle, and the car drove ahead 25 to 30 feet before the headlights were turned on. After following in his patrol car for a quarter of a mile, the officer stopped appellant’s car.
The reason given by the officer for the stop was that his suspicions had been aroused by the circumstances related above and he stated that his intention was to identify the occupants of the vehicle. On these facts, the district court determined that the police stop of the car did not constitute arbitrary or harassing action. The court correctly stated the rule in this circuit:
“The standard applicable under the Fourth Amendment to vehicle ‘stops’ by police for investigatory purposes, as distinguished from the more rigorous probable cause standard applicable to an arrest, is whether the ‘stop’ is based on a founded suspicion.”
Our statement of the rule in Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966) has since been reaffirmed since the Supreme Court’s decisions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The Supreme Court has concluded that the Terry standard is no different from our own. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In that case, the Court said:
“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams at 146, 92 S.Ct. at 1923.
The unusual circumstances and appellant’s unusual conduct were such as to lead the local police officer “reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).
Affirmed.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_adminaction_is
|
B
|
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.
CLEARY v. BOLGER.
No. 57.
Argued November 14-15, 1962.
Decided January 14, 1963.
Irving Malchman argued the cause for petitioner. With him on the briefs was William P. Sirignano.
Joseph Aronstein, by appointment of the Court, post, p. 805, argued the cause and filed a brief for respondent.
John T. Casey and Benj. J. Jacobson filed a brief for the New York State District Attorneys Association, as amicus curiae.
Mr. Justice Harlan
delivered the opinion of the Court.
This case draws in question the propriety of the issuance of a federal injunction restraining petitioner, a state officer, from giving evidence in a pending state criminal prosecution and a state administrative proceeding.
The facts, as found by the two lower courts, are as follows. About 8:30 one Saturday morning in September 1959 federal Customs officers observed respondent, a hiring agent and longshoreman licensed by the Waterfront Commission of New York Harbor, enter a deserted pier, carry out a cardboard carton, and place it in a car parked at the pier entrance. The officers, who were concerned about the recent frequency of thefts, particularly of liquor, in the New York waterfront area, followed respondent's car for a short distance and then ordered him to stop. A search of the automobile revealed that the cardboard carton contained only empty soda bottles, but that the glove compartment contained a number of spark plugs and windshield wipers, some of which were stamped “Made in England.” Respondent was asked whether he had obtained any liquor from the piers, and he admitted that he had six or eight bottles at home which he had purchased from members of ships' crews who in turn, he said, had bought them from ships’ stores.
The agents then took respondent into custody; he was brought to the Customs office, denied permission to use the telephone, and questioned until shortly before 11 a. m. During this period he signed a document consenting to a search of his home by the Customs officers, who had told him that the consent form was unnecessary since they already had enough information to warrant a search but that he might as well sign it to save them trouble. He had at first refused to sign such a consent without consulting a lawyer. The agents then drove respondent to his home in New Jersey and, without a search warrant, gave it a thorough search, which uncovered some 75 bottles of liquor, a Stenorette tape recording machine made in West Germany, and various other items of apparent foreign origin, such as perfumes, linens, costume jewelry, etc. These articles, thought to have been illegally acquired, were brought'back to Customs headquarters in New York, where, starting about 4 p. m., respondent was again questioned.
By this time the Waterfront Commission, a bi-state agency of New York and New Jersey which worked in close cooperation with the Customs Service in matters of law enforcement on the waterfront, had been informed of respondent’s arrest, and two Commission detectives were present when the interrogation resumed. Petitioner Cleary was one of these detectives. After respondent had revealed that he maintained a tool room in the basement of an apartment house in New York, petitioner and a Customs officer accompanied respondent to this tool room, but nothing suspicious was discovered and they returned to Customs headquarters at 5:45 p. m.
After he had been told that he did not have to make a statement, respondent was sworn and interrogated by Customs officers in the presence of a Customs Service reporter, who recorded the questions and answers verbatim. Petitioner was present and could have participated in the questioning, though he did not do so. Respondent admitted that with the exception of a few items that he had purchased from crew members most of the articles seized at his home had been taken by him from piers where he worked. He also said that he had taken the Stenorette tape recorder from a lighter moored at one of the piers. At 7:30 p. m. respondent was released.
No charges were lodged against respondent by the federal authorities. But a month later he was arrested by the New York City police on a charge of grand larceny for the theft of the Stenorette tape recorder, and shortly thereafter the Waterfront Commission temporarily suspended his licenses as hiring agent and longshoreman. The criminal charge was subsequently reduced to petit larceny and scheduled for trial in the Co.urt of Special Sessions of New York City. A hearing looking to the revocation of respondent’s licenses was deferred by the Waterfront Commission pending the outcome of the criminal case.
After the petit larceny charge had been set for trial, respondent instituted the present action in the United States District Court for the Southern District of New York seeking to enjoin the federal Customs officers and petitioner from using in evidence any of the seized property or his incriminating statement, and from testifying with respect thereto, in the state criminal trial or Waterfront Commission proceeding. He also sought return of the seized property. The basis for the action was the claim that the seized property and the incriminating statement were the products of illegal conduct on the part of the federal officers.
The District Court granted such relief, limited however, to the property seized at respondent’s home, to the incriminatory statement made following his arrest, and to testimony respecting these matters. It held that the search and seizure at respondent’s home violated Rule 41 (a) of the Federal Rules of Criminal Procedure, in that it had been made without a search warrant, and that his incriminating statement had been procured in violation of Rule 5 (a) of those Rules, in that respondent had not been taken before a United States Commissioner within a reasonable time after his arrest, and was also “the result ... of the illegal search and seizure.” In consequence of these illegalities an injunction against the federal officers was thought to follow. An injunction against petitioner was deemed necessary to make the injunction against the federal officials effective. 189 F. Supp. 237. The Court of Appeals affirmed by a divided vote. 293 F. 2d 368. Since the use of federal equity power in the premises presented important questions touching upon federal-state relationships in the realm of state criminal prosecutions, we brought the case here. 368 U. S. 984.
Accepting for present purposes the holdings of the two lower courts with respect to the conduct and enjoin-ability of the federal officers, we nevertheless conclude that the injunction against this petitioner was improvidently issued.
Courts of equity traditionally have refused, except in rare instances, to enjoin criminal prosecutions. This principle “is impressively reinforced when not merely the relations between coordinate courts but between coordinate political authorities are in issue.” Stefanelli v. Minard, 342 U. S. 117, 120. It has been manifested in numerous decisions of this Court involving a State’s enforcement of its criminal law. E. g., Pugach v. Dollinger, 365 U. S. 458; Douglas v. City of Jeannette, 319 U. S. 157; Watson v. Buck, 313 U. S. 387; Beal v. Missouri Pac. R. Co., 312 U. S. 45. The considerations that have prompted denial of federal injunctive relief affecting state prosecutions were epitomized in the Stefanelli case, in which this Court refused to sanction an injunction against state officials to prevent them from using in a state criminal trial evidence seized by state police in alleged violation of the Fourteenth Amendment:
“[W]e would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range — would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court— all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.” 342 U. S., at 123-124.
The two courts below recognized the validity of these considerations but thought that injunctive relief was nonetheless required by Rea v. United States, 350 U. S. 214. In that case the accused had been indicted in a federal court and had moved for an order under Rule 41 (e) of the Federal Rules of Criminal Procedure suppressing the use in evidence of certain narcotics seized under a search warrant invalid on its face. The District Court granted the motion. Despite the order, however, one of the federal officers who had secured the search warrant caused the accused to be rearrested and charged, in a state court, with possession of the same narcotics in violation of a state statute, and threatened to make the State’s case by his testimony based on the evidence seized under the illegal federal warrant. The accused then moved in the Federal District Court to enjoin the federal agent from testifying in the state proceeding. This Court, invoking its “supervisory powers over federal law enforcement agencies” (id., at 216-217), reversed the denial of an injunction and directed that the requested relief be granted in order to prevent frustration of the Federal Rules under which suppression had been ordered. Both lower courts in the present case evidently took Rea to mean that federal officers transgressing the Federal Rules of Criminal Procedure may always be enjoined from utilizing their ill-gotten gains in a state criminal prosecution against the victim or from directly or indirectly passing them along to state authorities for such use.
We need not, however, determine in this instance the correctness of the lower courts’ broad reading of the Rea case, cf. Wilson v. Schnettler, 365 U. S. 381, on the basis of which the federal officers here were enjoined. For in any event Rea does not support the injunction against this petitioner, a state official. The Court in Rea was at special pains to point out that the federal courts were not there “asked to enjoin state officials nor in any way to interfere with state agencies in enforcement of state law,” 350 U. S., at 216, and further that “[n]o injunction is sought against a state official,” id., at 217. The opinion is barren of any suggestion that any inroads on Stefanelli were intended.
It is no answer to say, as the Court of Appeals did, that this petitioner “is not being enjoined in his capacity as a state official, but as a witness invited to observe illegal activity by federal agents,” 293 F. 2d, at 369. For it is abundantly clear that the petitioner was present at these occurrences precisely and only because of his official connection with the Waterfront Commission. The District Court expressly found that it was “[t]he Waterfront Commission,” not petitioner, which “had been informed of [respondent] Bolger’s detention,” 189 F. Supp., at 244, and that petitioner “was present at the questioning [of Bolger] as a representative of the Waterfront Commission,” id., at 255.
Nor can the injunctive relief against this petitioner find justification in the rationale that it was required in order to make the injunction against the federal officers effective. Such relief as to him must stand on its own bottom. We need not decide whether petitioner’s status as a state official might be ignored had it been shown that he had misconducted himself in this affair, that he had been utilized by the federal officials as a means of shielding their own alleged illegal conduct, or that he had received the evidence in direct violation of a federal court order. Here the District Court found that petitioner was not a factor in the federal investigation and that his presence there was simply “the result of the commendable cooperation between the Customs Service and the Commission who were both concerned with law enforcement on the waterfront.” 189 F. Supp., at 255. On this record the upshot of the matter is that, insofar as this state official is concerned, nothing in Rea justifies disregard of the teachings of Stefanelli. Nor is the vitality of the principles on which the latter case rested sapped by this Court’s decision in Mapp v. Ohio, 367 U. S. 643, overruling Wolf v. Colorado, 338 U. S. 25, which had refused to extend to the States the exclusionary rule of Weeks v. United States, 232 U. S. 383. For in denying the injunctive relief there sought Stefanelli expressly laid to one side any possible impact of Wolf. 342 U. S., at 119-120.
The withholding of injunctive relief against this state official does not deprive respondent of the opportunity for federal correction of any denial of federal constitutional rights in the state proceedings. To the extent that such rights have been violated, cf., e. g., Mapp v. Ohio, supra, he may raise the objection in the state courts and then seek review in this Court of an adverse determination by the New York Court of Appeals. To permit such claims to be litigated collaterally, as is sought here, would in effect frustrate the deep-seated federal policy against piecemeal review.
To the extent that respondent’s claims involve infractions merely of the Federal Criminal Rules, we need not decide whether an adverse state determination upon such claims would be reversible here. Cf., e. g., Gallegos v. Nebraska, 342 U. S. 55. For in any event we do not think that an injunction against this state official is justified in the circumstances of this case. Assuming that such relief was properly granted here as to the federal officials in the exercise of federal-court supervisory power over them, we consider that a supplementing injunction should not issue against a state official, at least where, as here, there is no evidence of a purpose to avoid federal requirements and the information has not been acquired by the state official in violation of a federal court order. Such direct intrusion in state processes does not comport with proper federal-state relationships.
We conclude ■ that the injunction as to this petitioner should not have been granted, and that the judgment of the Court of Appeals must accordingly be
Reversed.
See De Veau v. Braisted, 363 U. S. 144.
The other Waterfront Commission detective, Machry, had apparently left the scene at an earlier stage. He was not joined as a defendant in the present action.
Respondent also instituted a second federal action against the Waterfront Commission and its members, seeking to enjoin the use of the same evidence in the license-revocation proceeding. That suit was dismissed by the District Court and is not involved here.
The District Court held that respondent’s arrest and the search of his automobile by the- federal agents were not illegal, and also denied return of any of the property seized at respondent’s home on the premise that it was contraband. Neither of those determinations is before us.
Rule 41 (a): “Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge of the United States or of a state, commonwealth or territorial court of record or by a United States commissioner within the district wherein the property sought is located.”
Rule 5 (a): “Appearance before the Commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith.” See McNabb v. United States, 318 U. S. 332.
It should be noted that respondent did not allege in his complaint that the matter in controversy exceeded the sum or value of $10,000, or that diversity of citizenship existed. See 28 U. S. C. §§ 1331, 1332. Nor did he allege that the District Court had jurisdiction to enjoin petitioner incidental to its supervisory power over federal law enforcement agencies, cf. Rea v. United States, 350 U. S. 214, 217, or that 28 U. S. C. § 1343 conferred jurisdiction. But, in view of our determination that equitable power should not have been exercised with respect to this petitioner, it is not necessary to resolve the questions whether the complaint stated a cause of action as to him or whether federal jurisdiction existed or was adequately invoked. See Stefanelli v. Minard, 342 U. S. 117, 120.
Rule 41 (e) provides that the material suppressed “shall not be admissible in evidence at any hearing or trial.”
The Court of Appeals was also disposed to think that the propriety of the District Court’s injunction was not affected by this Court’s decision in Mapp v. Ohio, 367 U. S. 643, which came down after this ease had left the District Court.
None of the federal officers involved in this action has sought review in this Court. And for reasons stated in this opinion there is otherwise no need for determining the propriety of the injunction as to them in order to dispose of the case before us.
“In the case at bar the wrongful activities were all those of federal officers and were conducted or directed by them. All that was done during the period of unlawful detention, and particularly the taking of the incriminating statement from Bolger, was being done on behalf of the United States. Cleary was merely a witness to them.” 189 F. Supp., at 256.
We attach no significance to the District Court’s remark that petitioner’s “presence might have been an additional inducement to Bolger to answer questions more freely” (189 F. Supp., at 255) because Bolger, when originally picked up by the'federal officers, had exhibited concern about the possible effect of his transgressions on his longshoreman’s license. The record is barren of any evidence indicating that petitioner was brought into the situation for the purpose of intimidating Bolger or that he in fact did so.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_circuit
|
L
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Howard Donald S. WASHINGTON, Appellant, v. UNITED STATES of America, Appellee.
No. 21105.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 12, 1968.
Decided May 20, 1968.
Mr. George C. Davis, Washington, D. C., with whom Mr. John D. Conner, Washington, D. C. (both appointed by this court) was on the brief, for appellant.
Mr. James A. Strazzella, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Seymour Glanzer, Asst. U. S. Attys., were on the brief, for appellee.
Before Danaher, Burger and Leventhal, Circuit Judges.
DANAHER, Circuit Judge:
Convicted of violations of the narcotics laws, this appellant contends that the District Court erred in denying his motion to suppress the use in evidence against him of some 15 capsules containing heroin. He argues that when he discarded an envelope containing the heroin capsules, he acted in apprehension of an impending arrest' for which, at least up to that moment, the police lacked probable cause.
Before the District Court was evidence that on July 11, 1966 about 3:30 P.M., two police officers, specially trained and experienced in investigations of narcotics violators, were dressed in old clothes. While on investigative duty, they observed the appellant who was known to them as a narcotics addict mingling with and talking to yet other known narcotics users in an area much frequented by such people. While maintaining such surveillance, one of the officers saw the appellant receive money from and pass something to one of the group whereupon the officers approached.
The appellant commenced to walk away. The officers walked after him. He then began to hasten his steps and so did the officers. As he crossed the street at a run, he discarded an envelope from which a few capsules were then spilled onto the street. One officer picked up the capsules, identified them as of the type usually found in the possession of narcotics violators and called to the other officer “Stop him— I’ve got the stuff,” or words to that effect. The appellant was then placed under arrest, as the District Judge found.
In Dorsey v. United States it was contended that there had been an illegal search where narcotics had been seized by two narcotics squad officers who were engaged in a similar preventative patrolling mission. We observed:
“If policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations as they encounter them. All we hold here is that this was one of those situations, and that the police response to it was a justifiable one which did not project their law-enforcement responsibilities beyond permissible constitutional limits.”
Earlier in Green v. United States, we remarked that officers in the course of an investigation may ask questions before making an arrest. Under the circumstances there disclosed, we concluded that the narcotics officers were entitled to ask a known addict if he were still using narcotics and, if so, to make an effort to induce him to inform them as to the sources of his supply. One of two men under observation responded to the police call but the other took flight. His precipitous action, we observed, constituted one more circumstance to be taken into account by the officer who followed him. It was then concluded that, all circumstances considered, the trained, experienced narcotics officers acted reasonably as they moved toward the appellant. We observed:
“He could have declined to talk. He could have refused to halt. The officers certainly would have had no right whatever, then and there without more, either to seize him or to search him.”
This appellant would have us say that he was unlawfully compelled to give evidence against himself when he discarded the contraband for he knew that he possessed the heroin and feared that it would be discovered if he were placed under arrest.
There had been no arrest. There had been no search. Washington himself threw down the envelope containing the narcotics. After the evidence had thus come to light, the District Court assuredly was free to reach a conclusion of reasonableness respecting the conduct of the officers. The ensuing arrest was not unlawful.
We find no error.
Affirmed.
. 125 U.S.App.D.C. 355, 372 F.2d 928 (1967).
. Id. at 358, 372 F.2d at 931.
. 104 U.S.App.D.C. 23, 259 F.2d 180 (1958), cert, denied, 359 U.S. 917, 79 S.Ct. 594, 3 L.Ed.2d 578 (1959).
. Id. at 24, 259 F.2d at 181.
. But in the circumstances shown the police certainly were privileged to question him if for no other reason than that he give a good account of himself. Freeman v. United States, 116 U.S.App.D.C. 213, 214, 322 F.2d 426, 427 (1963); cf. Brown v. United States, 125 U.S.App. D.C. 43, 46 n. 4, 365 F.2d 976, 979 n. 4 (1966); Lee v. United States, 95 U.S. App.D.C. 156, 221 F.2d 29 (1954).
. Cf. Jackson v. United States, 112 U.S. App.D.C. 191, 301 F.2d 515, cert. denied, 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17 (1962).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_decisiontype
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F
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
VENDO CO. v. LEKTRO-VEND CORP. et al.
No. 76-156.
Argued January 19, 1977
Decided June 29, 1977
RehNQUist, J., announced the Court’s judgment and delivered an opinion, in which Steivart and Powell, JJ., joined. Blackmun, J., filed an opinion concurring in the result, in which Burgee, C. J., joined, post, p. 643. Stevens, J., filed a dissenting opinion, in which Brennan, White, and Marshall, JJ., joined, post, p. 645.
Earl E. Pollock argued the cause for petitioner. With him on the briefs was Lambert M. Ochsenschlager.
Barnabas F. Sears argued the cause for respondents. With him on the brief were James E. S. Baker and Thomas L. Brejcha, Jr.
Mr. Justice Rehnquist
announced the judgment of the Court and delivered an opinion in which Mr. Justice Stewart and Mr. Justice Powell join.
I
After nine years of litigation in the Illinois state courts, the Supreme Court of Illinois affirmed a judgment in favor of petitioner and against respondents in the amount of $7,363,500. Shortly afterwards the United States District Court for the Northern District of Illinois enjoined, at the behest of respondents, state proceedings to collect the judgment. 403 F. Supp. 527 (1975). The order of the United States District Court was affirmed by the Court of Appeals for the Seventh Circuit, 545 F. 2d 1050 (1976), and we granted certiorari to consider the important question of the relationship between state and federal courts which such an injunction raises. 429 U. S. 815 (1976)
The Illinois state-court litigation arose out of commercial dealings between petitioner and respondents. In 1959 petitioner Vendo Co., a vending machine manufacturer located in Kansas City, Mo., acquired most of the assets of Stoner Manufacturing, which was thereupon reorganized as respondent Stoner Investments, Inc. Respondent Harry H. Stoner and members of his family owned all of the stock of Stoner Manufacturing, and that of Stoner Investments. Stoner Manufacturing had engaged in the manufacture of vending machines which dispensed candy, and as a part of the acquisition agreement it undertook to refrain from owning or managing any business engaged in the manufacture or sale of vending machines. Pursuant to an employment contract, respondent Harry Stoner was employed by petitioner as a consultant for five years at a salary of $50,000, and he agreed that during the term of his contract and for five years thereafter he would not compete with petitioner in the business of manufacturing vending machines.
In 1965, petitioner sued respondents in state court for breach of these noncompetition covenants. Shortly thereafter, respondents sued petitioner in the United States District Court for the Northern District of Illinois, complaining that petitioner had violated §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2. Respondents alleged that the covenants against competition were unreasonable restraints of trade because they were not reasonably limited as to time and place, and that the purpose of petitioner's state-court lawsuit was to “unlawfully harass” respondents and to “eliminate the competition” of respondents. App. 22, 25.
Respondents set up this federal antitrust claim as an affirmative defense to petitioner’s state-court suit. Id., at 31-32. However, prior to any ruling by the state courts on the merits of this defense, respondents voluntarily withdrew it. Id., at 82.
The state-court litigation ran its protracted course, including two trials, two appeals to the State Appellate Court, and an appeal to the Supreme Court of Illinois. In September 1974, the latter court affirmed a judgment in favor of petitioner and against respondents in an amount exceeding $7 million. Vendo Co. v. Stoner, 58 Ill. 2d 289, 321 N. E. 2d 1. The Supreme Court of Illinois predicated its judgment on its holding that Stoner had breached a fiduciary duty owed to petitioner, rather than upon any breach of the noncompetitive covenants. This Court denied respondents' petition for a writ of certiorari. 420 U. S. 975 (1975).
During the entire nine-year course of the state-court litigation, respondents’ antitrust sdit in the District Court was, in the words of the Court of Appeals, allowed to lie “dormant.” 545 F. 2d, at 1055. But the day after a Circuit Justice of this Court had denied a stay of execution pending petition for certiorari to the Supreme Court of Illinois, respondents moved in the District Court for a preliminary injunction against collection of the Illinois judgment. The District Court in due course granted this motion.
That court found that it “appear [ed] that the [noncom-petition] covenants . . . were overly broad,” 403 F. Supp., at 533, and that there was “persuasive evidence that Vendors activities in its litigation against the Stoner interests in Illinois state court were not a genuine attempt to use the adjudicative process legitimately.” Id., at 534-535. . Recognizing that there is a “paucity of authority” on the issue, id., at 536, the District Court held that the injunctive-relief provision of the Clayton Act, 15 U. S. C. § 26, constitutes an express exception to 28 U. S. C. § 2283, the “Anti-Injunction Act.” The court further found that collection efforts would eliminate two of the three plaintiffs and thus that the injunction was necessary to protect the jurisdiction of the court, within the meaning of that exception to § 2283.
The Court of Appeals affirmed, finding that § 16 of the Clayton Act was an express exception to § 2283. The court did not reach the issue of whether an injunction was necessary to protect the jurisdiction of the District Court.
In this Court, petitioner renews its contention that principles of equity, comity, and federalism, as well as the Anti-Injunction Act, barred the issuance of the injunction by the District Court. Petitioner also asserts in its brief on the merits that the United States District Court was required to give full faith and credit to the judgment entered by the Illinois courts. Because we agree with petitioner that the District Court’s order violated the Anti-Injunction Act, we reach none of its other contentions.
Ill
The Anti-Injunction Act, 28 U. S. C. §2283, provides:
“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction,' or to protect or effectuate its judgments."
The origins and development of the present Act, and of the statutes which preceded it, have been amply described in our prior opinions and need not be restated here. The most recent of these opinions are Mitchum v. Foster, 407 U. S. 225 (1972), and Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281 (1970). Suffice it to say that the Act is an absolute prohibition against any injunction of any state-court proceedings, unless the injunction falls within one of the three specifically defined exceptions in the Act. The Act’s purpose is to forestall the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court. Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U. S. 4, 9 (1940). Respondents’ principal contention is that, as the Court of Appeals held, § 16 of the Clayton Act, which authorizes a private action to redress violations of the antitrust laws, comes within the “expressly authorized” exception to § 2283.
We test this proposition mindful of our admonition that
“[a]ny doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy.” Atlantic Coast Line R. Co., supra, at 297.
This cautious approach is mandated by the “explicit wording of § 2283” and the “fundamental principle of a dual system of courts.” Ibid. We have no occasion to construe the section more broadly:
“[It is] clear beyond cavil that the prohibition is not to be whittled away by judicial improvisation.” Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 514 (1955).
Our inquiry, of course, begins with the language of § 16 of the Clayton Act, which is the statute claimed to “expressly authorize” the injunction issued here. It provides, in pertinent part:
“[A]ny person . . . shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings . . . .” 38 Stat. 737, 15 U. S. C. § 26.
On its face, the language merely authorizes private injunctive relief for antitrust violations. Not only does the statute not mention § 2283 or the enjoining of state-court proceedings, but the granting of injunctive relief under § 16 is by the terms of that section limited to “the same conditions and principles” employed by courts of equity, and by “the rules governing such proceedings.” In 1793 the predecessor to § 2283 was enacted specifically to limit the general equity powers of a federal court. Smith v. Apple, 264 U. S. 274, 279 (1924) ; Toucey v. New York Life Ins. Co., 314 U. S. 118, 130 n. 2 (1941). When § 16 was enacted in 1914 the bar of the Anti-Injunction Act had long constrained the equitable power of federal courts to issue injunctions. Thus, on its face, § 16 is far from an express exception to the Anti-Injunction Act, and may be fairly read as virtually incorporating the prohibitions of the Anti-Injunction Act with restrictive language not found, for example, in 42 U. S. C. § 1983. See discussion of Mitchum v. Foster, infra.
Respondents rely, as did the Court of Appeals and the District Court, on the following language from Mitchum:
. . [I]t is clear that, in order to qualify as an ‘expressly authorized' exception to the anti-injunction statute, an Act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding. This is not to say that in order to come within the exception an Act of Congress must, on its face and in every one of its provisions, be totally incompatible with the prohibition of the anti-injunction statute. The test, rather, is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding.” 407 U. S., at 237-238. (Emphasis added, footnote omitted.)
But we think it is clear that neither this language from Mitchum nor Mitchum’s ratio decidendi supports the result contended for by respondents.
The private action for damages conferred by the Clayton Act is a “uniquely federal right or remedy,” in that actions based upon it may be brought only in the federal courts. See General Investment Co. v. Lake Shore & Mich. So. R. Co., 260 U. S. 261, 287 (1922). It thus meets the first part of the test laid down in the language quoted from Mitchum.
But that authorization for private actions does not meet the second part of the Mitchum test; it is not an “Act of Congress . . . [which] could be given its intended scope only by the stay of a state court proceeding,” 407 U. S., at 238. Crucial to our determination in Mitchum that 42 U. S. C.
§ 1983 fulfilled this requirement — but wholly lacking here— was our recognition that one of the clear congressional concerns underlying the enactment of § 1983 was the possibility that state courts, as well as other branches of state government, might be used as instruments to deny citizens their rights under the Federal Constitution. This determination was based on our review of the legislative history of § 1983; similar review of the legislative history underlying § 16 demonstrates that that section does not meet this aspect of the Mitchum test.
Section 1983 on its face, of course, contains no reference to § 2283, nor does it expressly authorize injunctions against state-court proceedings. But, as Mitchum recognized, such language need not invariably be present in order for a statute to come within the “expressly authorized” exception if there exists sufficient evidence in the legislative history demonstrating that Congress recognized and intended the statute to authorize injunction of state-court proceedings. In Part IY of our opinion in Mitchum we examined in extenso the purpose and legislative history underlying § 1983, originally § 1 of the Civil Rights Act of 1871. We recounted in detail that statute’s history which made it abundantly clear that by its enactment Congress demonstrated its direct and explicit concern to make the federal courts available to protect civil rights against unconstitutional actions of state courts.
We summarized our conclusion in these words:
“This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.” 407 U. S., at 242.
Thus, in Mitchum, absence of express language authorization for enjoining state-court proceedings in § 1983 actions was cured by the presence of relevant legislative history. In this case, however, neither the respondents nor the courts below have called to our attention any similar legislative history in connection with the enactment of § 16 of the Clayton Act. It is not suggested that Congress was concerned with the possibility that state-court proceedings would be used to violate the Sherman or Clayton Acts. Indeed, it seems safe to say that of the many and varied anticompeti-tive schemes which § 16 was intended to combat, Congress in no way focused upon a scheme using litigation in the state courts. The relevant legislative history of § 16 simply suggests that in enacting § 16 Congress was interested in extending the right to enjoin antitrust violations to private citizens. The critical aspects of the legislative history recounted in Mitchum which led us to conclude that § 1983 was within the “expressly authorized” exception to § 2283 are wholly absent from the relevant history of § 16 of the Clayton Act. This void is not filled by other evidence of congressional authorization.
Section 16 undoubtedly embodies congressional policy favoring private enforcement of the antitrust laws, and undoubtedly there exists a strong national interest in antitrust enforcement. However, contrary to certain language in the opinion of the District Court, 403 F. Supp., at 536, the importance of the federal policy to be “protected” by the injunction is not the focus of the inquiry. Presumptively, all federal policies enacted into law by Congress are important, and there will undoubtedly arise particular situations in which a particular policy would be fostered by the granting of an injunction against a pending state-court action. If we were to accept respondents’ contention that § 16 could be given its “intended scope” only by allowing such injunctions, then § 2283 would be completely eviscerated since the ultimate logic of this position can mean no less than that virtually all federal statutes authorizing injunctive relief are exceptions to § 2283. Certainly all federal injunctive statutes are enacted to provide for the suspension of activities antithetical to the federal policies underlying the injunctive statute or related statutes. If the injunction would issue under the general rules of equity practice — requiring, inter alia, a showing of irreparable injury — but for the bar of § 2283, then clearly § 2283 in some sense may be viewed as frustrating or restricting federal policy since the activity inconsistent with the federal policy may not be enjoined because of § 2283’s bar. Thus, were we to accede to respondent’s interpretation of the “intended scope” language, an exception to § 2283 would always be found to be “necessary” to give the injunctive Act its full intended scope, and § 2283 would place no additional limitation on the right to enjoin state proceedings. The Anti-Injunction Act, a fixture in federal law since 1793, would then be a virtual dead letter whenever the plaintiff seeks an injunction under a federal injunctive statute. Whether or not the state proceeding could be enjoined would rest solely upon the traditional principles of equity and comity. However, as we emphasized in Mitchum, 407 U. S., at 243, the prohibitions of § 2283 exist separate and apart from these traditional principles, and we cannot read the “intended scope” language as rendering this specific and longstanding statutory provision inoperative simply because important federal policies are fostered by the statute under which the injunction is sought. Congress itself has found that these policies, in the ordinary case, must give way to the policies underlying § 2283. Given the clear prohibition of § 2283, the courts will not sit to balance and weigh the importance of various federal policies in seeking to determine which are sufficiently important to override historical concepts of federalism underlying § 2283; by the statutory scheme it has enacted, Congress has clearly reserved this judgment unto itself.
Our conclusion that the “importance,” or the potential restriction in scope, of the federal injunction statute does not control for § 2283 purposes is consistent with the analysis of those veryjesotatutes which we have in..the.past held to be exceptions to the Anti-Injunction Act. See Mitchum, supra, at 234-235, and nn. 12-16. The original version of the Anti-Injunction Act itself was amended in 1874 to allow federal courts to enjoin state-court proceedings which interfere with the administration of a federal bankruptcy proceeding. Rev. Stat. § 720. The Interpleader Act of , 1926, 28 U. S. C, § 2361, the Frazier-Lemke Act, 11 U. S. C. § 203 (1940 ed.), and the Federal Habeas Corpus Act, 28 U. S. C. § 2251, while not directly referring to § 2283, have nonetheless explicitly, authorized injunctive relief against state-court proceedings. The Act of 1851 limiting liability of shipowners/ 46 U. S. C. § 185, provided that, after deposit of certain funds in the court by the shipowner, “all claims and proceedings against the owner with respect to the matter in question shall cease.” The statutory procedures for removal of a case from state court to federal court provide that the removal acts as a stay of the state-court proceedings. 28 U. S. C. § 1446 (e).
By limiting the statutory exceptions of § 2283 and its predecessors to these few instances, we have clearly recognized that the Act countenancing the federal injunction must necessarily interact with, or focus upon, a state judicial proceeding. Section 16 of the Clayton Act, which does not by its very>s essence contemplate or envision any necessary interaction with) state judicial proceedings, is clearly not such an Act.
IV
Although the Court of Appeals did not reach the issue, the District Court found that, in addition to being “expressly authorized,” the injunction was “necessary in aid of its jurisdiction,” a separate exception to § 2283. The rationale of the District Court was as follows:
“The Court also holds that § 2283 authorizes an injunction here because further collection efforts would eliminate two plaintiffs, Stoner Investments and Lektro-Vend Corp., as parties under the case or controversy provisions of Article III since they would necessarily be controlled by Vendo. Vendo’s offer to place the Stoner Investment and Lektro-Vend stock under control of the Court does not meet this problem because as a matter of substance Vendo would control both plaintiff and defendant, requiring dismissal under Article III. Thus the injunction is also necessary to protect the jurisdiction of the Court.” 403 F. Supp., at 536-537.
In Toucey v. New York Life Ins. Co., 314 U. S., at 134-135, we acknowledged the existence of a historical exception to the Anti-Injunction Act in cases where the federal court has obtained jurisdiction over the res, prior to the state-court action. Although the “necessary in aid of” exception to § 2283 may be fairly read as incorporating this historical in rem exception, see C. Wright, Federal Courts § 47, p. 204 (3d ed. 1976), the federal and state actions here are simply in per- sonam. The traditional notion is that in personam actions in federal and state court may proceed concurrently, without interference from either court, and there is no evidence that the exception to § 2283 was intended to alter this balance. We have never viewed parallel in personam actions as interfering with the jurisdiction of either court; as we stated in Kline v. Burke Construction Co., 260 U. S. 226 (1922):
“[A]n action brought to enforce [a personal liability] does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata . . . .” Id., at 230 (emphasis added).
No case of this Court has ever held that an injunction to “preserve” a case or controversy fits within the “necessary in aid of its jurisdiction” exception; neither have the parties directed us to any other federal-court decisions so holding.
The District Court’s legal conclusion is not only unsupported by precedent, but the factual premises upon which it rests are not persuasive. First, even if the two corporate plaintiffs would cease to litigate the case after execution of the state-court judgment, there is no indication that Harry Stoner himself would lose his standing to vindicate his rights, or that the case could not go forward. Nor does it appear that the two corporate plaintiffs would necessarily be removed from the lawsuit. As far as the record indicates, there are currently minority shareholders in those corporations whose ownership interests would not be affected by petitioner’s acquisition of majority stock control of the corporations. Under the applicable rules for shareholder derivative actions, see Fed. Rule Civ. Proc. 23.1, the shareholders could presumably pursue the corporate rights of action, which would inure to their benefit, even if the corporations themselves chose not to do so. Finally, petitioner offered to enter a consent decree which assuredly would eliminate any possibility of petitioner’s acquiring control of the corporations. See App. 209-210, 258. The injunction in this case was therefore, even under the District Courts’ legal theory, not necessary in aid of that court’s jurisdiction.
Our conclusion that neither of the bases relied upon by the District Court constitutes an exception to § 2283 is more than consistent with the recognition that any doubt must be resolved against the finding of an exception to § 2283, Atlantic Coast Line R. Co., 398 U. S., at 297; a holding that there is an exception present in this case would demonstrably involve “judicial improvisation.” Clothing Workers, 348 U. S., at 514.
Reversed and remanded.
In addition to respondents Stoner and Stoner Manufacturing, petitioner also sued respondent Lektro-Vend Corp. Lektro-Vend had developed a radically new vending machine, and it was Stoner’s relationship with Lektro-Vend that formed the basis of the lawsuit.
The Court of Appeals’ summary of the state-court litigation is illustrative:
“The suit was filed in Kane County, Illinois on August 10, 1965; the complaint charged breach of noncompetition covenants; an amended complaint also charged theft of trade secrets. After a bench trial the court on December 16, 1966 found for Vendo. Judgments against Stoner for $250,000 and against both defendants for $1,100,000 were granted. Stoner and Stoner Investments were enjoined from further acts of competition.
“An appeal was taken to the Appellate Court of Illinois. That court entered its decision on, January 30, 1969, . . . 105 Ill. App. 2d 261, 245 N. E. 2d 263. The court held that no trade secrets were involved, the noncompetition covenants were valid and enforceable, and the covenants had been breached by the defendants. The grant of injunctive relief was affirmed. The court also held that though the trial court erred in striking the affirmative defense based on the federal antitrust laws, it was correct in denying the defense based on the Illinois antitrust laws. The cause was remanded for a determination of damages and further proceedings.
“Upon remand the defendant withdrew its affirmative defense asserted under the federal antitrust laws. The trial court, after hearing evidence, entered judgments against Stoner and Stoner Investments which totaled $7,363,500.
“Upon a second appeal to the Illinois Appellate Court, the court decided, on September 12, 1973, 13 Ill. App. 3d 291, 300 N. E. 2d 632, that the trial court erred in the measurement of damages. The case was remanded for assessment of damages in accordance with the Appellate Court’s original opinion.
"Upon appeal to the Illinois Supreme Court on September 27, 1974, . . . 58 Ill. 2d 289, 321 N. E. 2d 1, the appellate court was reversed and the trial court’s judgments were affirmed. The Supreme Court in deciding the case constructed a different theory of recovery — the breach of a fiduciary obligation on the part of Stoner — than had been asserted by Vendo.” 545 F. 2d 1050, 1055 n. 4 (CA7 1976).
“Quite apart from any liability which may be predicated upon a breach of the covenants against competition contained in the sales agreement and the employment contract, it is clear that Stoner violated his fiduciary duties to plaintiff during the period when he was a director and an officer of plaintiff.” 58 Ill. 2d, at 303, 321 N. E. 2d, at 9.
This issue was not presented to this Court in the petition for cer-tiorari, and the Court of Appeals did not discuss it in its opinion.
Prior to the enactment of § 16, private injunctive relief was not authorized for antitrust violations. Paine Lumber Co. v. Neal, 244 U. S. 459 (1917). As far as the legislative history indicates, the sole purpose of § 16 (§ 14 in the original drafts) was to extend to private parties the right to sue for injunctive relief. The following passage, taken in its entirety from H. R. Rep. No. 627, 63d Cong., 2d Sess., 21 (1914), demonstrates what Congress had in mind in enacting § 16:
“Section 14 authorizes a person, firm, or corporation or association to sue for and have injunctive relief against threatened loss or damage by a violation of the antitrust laws, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity under the rules governing such proceedings. Under section 7 of the act of July 2, 1890, a person injured in his business and property by corporations or combinations acting in violation of the Sherman antitrust law, may recover loss and damage for such wrongful act. There is, however, no provision in the existing law authorizing a person, firm, corporation, or association to enjoin threatened loss or damage to his business or property by the commission of such unlawful acts, and the purpose of this section is to remedy such defect in the law. This provision is in keeping with the recommendation made by the President in his message to Congress on the subject of trusts and monopolies.”
See also S. Rep. No. 698, 63d Cong., 2d Sess., 17-18 (1914).
In California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972), this Court held that harassing and sham state-court proceedings of a repetitive nature could be part of an anticompetitive scheme or conspiracy. In Otter Tail Power Co. v. United States, 410 U. S. 366 (1973), one of the allegations was that the federal-court defendant had instituted and supported state-court litigation for anticompetitive purposes in violation of the antitrust laws. The District Court had enjoined the defendant from “[instituting, supporting or engaging in litigation, directly or indirectly, against cities and towns, and officials thereof, which have voted to establish municipal power systems . . . .” Jurisdictional Statement, O. T. 1972, No. 71-991, p. A-115. This Court vacated and remanded to the District Court for consideration, in light of the intervening decision of California Motor Transport, of whether the state-court litigation came within the “mere sham” exception announced in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961). Those cases together may be cited for the proposition that repetitive, sham litigation in state courts may constitute an antitrust violation and that an injunction may he to enjoin future state-court litigation. However, neither of those cases involved the injunction of a pending state-court proceeding, and thus the bar of § 2283 was not brought into play.
Nothing that we say today cuts back in any way on the holdings of these two cases; what we must here decide is whether such a lawsuit may be enjoined by a federal court after it has been commenced, notwithstanding the bar of the Anti-Injunction Act. While we conclude that it may not, nothing in our opinion today prevents a federal court in the proper exercise of its jurisdiction from enjoining the commencement of additional state-court proceedings if it concludes from the course and outcome of the first one that such proceedings would constitute a violation of the antitrust laws. With respect to this future litigation, the injunction will prevent even the commencement of a second such action, and the principles of federalism do not require the bar of § 2283. This distinction' is totally consistent with the realization that the true bona fides of the initial state-court litigation is often not apparent :
“One claim, which a court or agency may think baseless, may go unnoticed; but a pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused.” California Motor Transport, supra, at 513.
Any “disadvantage” to which the federal plaintiff is put in the initial proceeding is diminished by his ability to set up the federal antitrust claim as an affirmative defense, reviewable by this Court under 28 U. S. C. § 1257 (3), and his ability to sue for treble damages resulting from the vexatious prosecution of that state-court litigation.
Petitioner has catalogued the following federal statutes, and suggests that each would be so^ affected:
“E. g., 7 U. S. C. § 216 (§ 315 of the Packers and Stockyards Act of 1921); 7 U. S. C. §2050a (Farm Labor Contractor Registration Act); 7 U. S. C. § 2305 (a) (§ 6 of the Agricultural Fair Practices Act of 1967) ; 12 U. S. C. § 1731b (i) (§ 513 of the National Housing Act); 12 U. S. C. § 1976 (Bank Holding Company Act); 15 U. S. C. § 78aa (Securities Exchange Act of 1934); 15 U. S. C. § 298 (relating to the false stamping of gold and silver); 15 U. S. C. § 433 (providing for suits by farmer’s cooperative associations against discrimination by boards of trade); 15 U. S. C. §§ 1114 (2), 1116, 1121 (providing for injunctive relief against trademark infringement); 15 U. S. C. § 2073 (Consumer Product Safety Act); 15 U. S. C. § 2102 (Hobby Protection Act); 17 U. S. C. § 112 (providing for injunctions against violation of any right sechred by the copyright laws); 26 U. S. C. § 9011 (b) (Presidential Election Campaign Fund Act); 29 U. S. C. § 412 (Labor-Management Reporting and Discl&sure Act); 42 U. S. C. §2000e-5 (Title VII (Equal Employment Opportunities) of the Civil Rights Act of 1964); 42 U. S. C. §§ 6305, 6395 (e) (Energy Policy and Conservation Act); 45 U. S. C. § 547 (Title III of the Rail Passenger Service Act of 1970); 49 U. S. C. §§ 1 (20), 322 (b)(2), 916, 1017(b) (Interstate Commerce Act);
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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songer_stpolicy
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
James A. HEACKER and wife Marie Heacker, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellees.
No. 17623.
United States Court of Appeals Fifth Circuit.
Sept. 25, 1959.
Edward J. Dees, Dallas, Tex., for appellants.
Donald K. King, Whitney R. Harris, Dallas, Tex., Grover Sellers, Sulphur Springs, Ark., for appellees.
Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.
CAMERON, Circuit Judge.
Appellant James A. Heacker, individually and in behalf of his wife, Marie Heacker, instituted this action for damages in the district court alleging negligence of the agents, servants and employees of the appellee Southwestern Bell Telephone Company resulting in injuries to Marie Heacker when she fell on the ice-covered sidewalk along the front of the appellee’s premises in Greenville, Texas. This is an appeal from a summary judgment granted by the court below in favor of defendant-appellee. The determinant questions presented are whether appellant Marie Heacker, at the time of the accident, was within the scope of her employment, and whether the filing of a claim for Workmen’s Compensation, receipt of medical expenses and other compensation' thereunder, constitutes an election of remedies or estops the appellant from maintaining a common law action.
We think the facts involved in these questions are uncontroverted and are revealed clearly by the pleadings, the deposition of Marie Heacker (attached to the motion for summary judgment), and statements and argument of counsel before the district court which appear in the record.
Marie Heacker was a career employee of Southwestern Bell Telephone Company employed in 1935, assigned to the telephone exchange in Dennison, Texas in 1943. In the latter part of January, 1956, having attained the position of service assistant, she was temporarily assigned on an expense account covering meals, lodging and travel, to the exchange in Greenville, Texas, there to instruct the local operators in problems which would arise in connection with the pending conversion to the dial system.
After arrival in Greenville, Mrs. Heacker found accommodations in a local hotel situated several blocks from the telephone exchange. The injury involved in this case was suffered a few minutes before 8:00 a. m. on' Feb. 3rd. Mrs. Heacker, on that morning, left the hotel at approximately 7:40 a. m. with another employee and began walking to the telephone office, as she had done on two or three previous mornings. It was a cold and icy day and the sidewalks between the hotel and the exchange were, for the most part, difficult of travel due to the accumulation of ice and snow thereon. Because of the treacherous condition of the sidewalk, the two employees of Southwestern chose to walk in the streets a substantial portion of the journey between the hotel and the exchange building.
Upon arrival at a point directly in front of the Southwestern Building, the two ladies crossed the street and, after Mrs. Heacker had stepped from the street onto the sidewalk running across the front of the exchange building, she attempted to take a second step on the sidewalk, slipped and fell on the icy surface, fracturing the radius and ulna bones of her right wrist.
Within a short period of time after her injury, she was taken to a local clinic and placed under the care of an orthopedist. Three days later she was visited by two representatives of Southwestern, at which time she signed a completed printed form entitled “Notice of Injury and Claim for Compensation, Texas Workmen’s Compensation,” in which she gave notice of her injury, filed a claim for compensation due under the Workmen’s Compensation Law of Texas, and requested that the Industrial Accident Board take action on her claim as soon as possible. On the basis of this claim, the Texas Compensation Insurance Company paid to Mrs. Heacker $1,810.71, which sum represents compensation due from the date of the injury until the time of her return to work on June 23, 1957, computed at the rate of $25 per week for a total of seventy-two weeks and three days. Medical expenses based upon this claim in the amount of $1,467.64 were also paid by the Texas Compensation Insurance Company. Later surgery was performed January 14, 1957. On June 24, 1957, Mrs. Heacker resumed her duties with the appellee. During her absence from work she had received full pay for the first year, and half pay thereafter.
This action was brought by her husband on Feb. 3, 1958. The complaint alleges that Southwestern and those acting in its behalf were guilty of negligence with respect to Marie Heacker relating generally to the condition of the sidewalk in front of the premises of said company at Greenville, Texas on the day of the accident and that Marie Heacker, because of said negligence and the injury resulting therefrom, was permanently incapacitated from performing her usual duties of employment and suffered damages in the amount of $50,500. Southwestern filed its answer denying the charge of negligence and disclaiming any liability to plaintiff by reason of the accident and injuries.
Southwestern thereafter filed its motion for a summary judgment upon the grounds (1) that the exclusive remedy of the employee in this controversy for the accidental injury was under the Workmen’s Compensation Law of Texas against the insurance carrier of Southwestern Bell Telephone Company, and (2) that by filing her claim for compensation with the Industrial Accident Board and accepting compensation thereunder, Marie Heacker elected to pursue her remedy under the Workmen’s Compensation Law of Texas, and is thereby precluded from maintaining this common law action against her employer.
Generally, the question of whether an employee was acting within the scope of his employment is an issue of fact to be resolved by the jury. Texas Indemnity Insurance Co. v. Hubbard, Tex.Civ.App.1940, 138 S.W.2d 626; New Amsterdam Casualty Co. v. Hosch, Tex. Civ.App.1935, 78 S.W.2d 633. Where, however, as here, the relevant evidence is so indisputed and so conclusive that reasonable minds cannot reach different conclusions, the question becomes one of law. See Croswell v. Commercial Standard Ins. Co., Tex.Civ.App.1933, 56 S.W.2d 918; Maryland Casualty Co. v. Williams, Tex. Civ.App.1932, 47 S.W.2d 858; Texas Employers’ Insurance Association v. Sewell, Tex.Civ.App.1930, 32 S.W.2d 262.
Out of the phenomenal industrial growth of this century arose the conviction among the public that the common law rules of liability were unsuitable to afford adequate relief to the countless number of persons sustaining injury in their employment. The belief became widespread that the burden of employment-connected deaths and injuries should rest with employers.
Workmen’s Compensation statutes have been quite generally enacted whereunder compensation is paid without regard to common law rules of liability to those injured in the course of their employment. 58 American Jurisprudence, Workmen’s Compensation, § 2, p. 575. Either by statute or by court decision, it is generally established that such statutes should be liberally construed as to coverage. This is true in Texas whose law governs. Hooper v. Great American Indemnity Co., 5 Cir., 1939,102 F.2d 739; Federal Surety Co. v. Ragle, Tex.Civ. App.1930, 25 S.W.2d 898; Vernon’s Annotated Texas Statutes, Article 8306 et seq. While there are many cases from Texas courts denying coverage to employees while going to and from the place of their employment, there are many holding the other way and this case, in our opinion, falls within the latter group. It is clear that under the Texas Statute, injuries are compensable which result from risks inherent in, or incident to, the conduct of the employer's business without regard to the time or place the accident occurred.
In National Surety Corp. v. Bellah, 5 Cir., 1957, 245 F.2d 936, we held that an employee injured in a restaurant on the company premises during her lunch period was entitled to compensation notwithstanding the fact that the injury occurred outside of her normal hours of service and that she was not discharging any specific duties connected with her employment at the time of the accident.
In Federal Surety Co. v. Ragle, supra, the employee was injured while attempting to crank an automobile in which he was to ride home after work. The Texas Commission of Appeals, in affirming the action of the Court of Civil Appeals in granting compensation, said: “Since it was not required * * * that Ragle should spend the nights or time not at work at the well * * * it was necessary * * * that he leave the well and go somewhere for rest and sleep and return thereto for duty. Whatever dangers or perils he encountered in leaving or approaching the premises were encountered in the usual and customary manner that he might perform the duties imposed by his contract of service.” And later, in the same opinion: “It is also equally well established that all dangers and perils incident to the usual and customary methods of entrance to and retirement from employer’s premises or zone of employment were perils incident to and ‘arising out of employment,’ as provided for under article 8309 R.S. 1925.”
In Ragle, the Commission dealt at length with Texas cases on the subject of whether injuries sustained going to and from work were compensable and leaned heavily upon the Supreme Court case of Cudahy Packing Co. of Nebraska v. Par-ramore, 1923, 263 U.S. 418, 426, 44 S.Ct. 153, 155, 68 L.Ed. 366. That case, in the words of the Commission, “involved the construction of a similar statute enacted by the state of Utah.” There, the customary method of ingress and egress to the Cudahy Packing Plant was down a road and across some railroad tracks. Parramore, an employee of Cudahy was killed at this crossing on his way to work one morning. The Supreme Court, in holding that the accident resulting in the death of Parramore arose out of the course of his employment, made the following observation:
“Here the location of the plant was at a place so situated as to make the customary and only practical way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way. He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so and this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected. The railroad over which the way extended was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer.
“We attach no importance to the fact that the accident happened a few minutes before the time Parra-more was to begin work, and was therefore, to that extent, outside the specific hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.” [263 U.S. 426, 44 S.Ct. 155.]
In the case before us, the hazards of the snow and ice were perils confronting the public in general. Persons utilizing the streets and sidewalks in the ordinary course of their day’s activities were free, as was Mrs. Heacker most of the distance between the hotel and the Southwestern Building, to choose the routes they would take, avoiding those areas which in their judgment appeared to be impassable. In her deposition, Mrs. Heacker stated that on several occasions between the hotel and the exchange, it was necessary to walk in the street to avoid particularly dangerous areas. It appears from her deposition that this power of selection terminated upon her arrival in front of appellee’s premises. In order to reach the premises where her employment required her to be, she was required to negotiate the icy sidewalk in front of the Southwestern Building. It was a hazard or peril incident to her employment on the day of the accident.
In Texas Employers Insurance Association v. Cobb, 1938, 118 S.W.2d 375, the Texas Court of Civil Appeals declared that where an employee, whose duties required that he travel from place to place collecting accounts, was asphyxiated in a motel on a Sunday night, the accident causing his death was within the coverage envisioned by the Texas Workmen’s Compensation Statute. The court, in that case, concluded that the duty imposed upon him by the character of his employment to go from place to place at the instance of his employer formed a causal connection between the accident and the employment.
The responsibilities and duties imposed upon Marie Heacker by virtue of her employment required that she travel from Dennison, Texas to Greenville, to ñnd lodging in the latter city and to pass back and forth between her chosen place of lodging and the telephone exchange building. On the day of the accident, the weather was cold and the sidewalks covered with snow and ice, but the responsibilities of Marie Heacker remained the same. It is not necessary for us to decide whether an injury resulting from an accident occurring a block or more away could be said to have arisen from her employment. The place of accident was, for all practical purposes, a part of the premises of the appellee. Marie Heacker had no alternative but to attempt to- cross the hazardous sidewalk fronting these premises. Her employment contemplated her doing just that before the hour on which her duties would commence.
In our view, the danger inherent in any attempt of Marie Heacker to cross the ice-bound sidewalk in front of appellee’s premises on her way to work cannot be other than a peril or hazard incident to or connected with her employment, and we hold that the injury was within the coverage of the Texas statute. Under Article 8306, § 3, Vernon’s Texas Civil Statutes, employees injured within the scope of their employment and their representatives have no right of action against their employer, and their sole remedy is under the Workmen’s Compensation Statute of Texas. It is, therefore, clear that the court below did not err in granting the motion of the company for a summary judgment. The judgment is, therefore,
Affirmed.
. Cf. Republic Underwriters v. Terrell, Tex.Civ.App.1939, 126 S.W.2d 752.
. Federal Surety Co. v. Ragle, Tex.Com. App.1931, 40 S.W.24 63, 64; and Federal Surety Co. v. Ragle, Tex.Civ.App.1930, 25 S.W.2d 898.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_r_fed
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
FORMULA ONE MOTORS, LTD., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 21, Docket 85-6086.
United States Court of Appeals, Second Circuit.
Argued Sept. 19, 1985.
Decided Nov. 21, 1985.
Victor M. Metsch, New York City (Stephen H. Reese, Hartman & Craven, New York City, on brief), for plaintiff-appellant.
Amy Rothstein, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Steven E. Obús,. Asst. U.S. Atty., New York City, on brief), for defendant-appellee.
Before LUMBARD, OAKES and NEWMAN, Circuit Judges.
JON O. NEWMAN, Circuit Judge.
Formula One Motors, Ltd. (“Formula One”) appeals from a judgment of the District Court for the Southern District of New York (John E. Sprizzo, Judge) dismissing for lack of subject matter jurisdiction its complaint seeking damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), 2671-2680 (1982). Formula One alleged that agents of the Drug Enforcement Administration (“DEA”), in the course of executing a warrant to seize and search an automobile that Formula One was importing into the country, had destroyed the automobile. The District Court ruled that the claim fell within the exception to the FTCA for claims “arising in respect of ... the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.” Id. § 2680(c). We affirm.
Formula One purchased a 1971 Mercedes Benz convertible in Italy in October 1983 and arranged for shipment of the automobile to the United States. In January 1984, DEA agents, armed with a search warrant, seized the automobile from a shipping container at Crestwood Trucking, Inc. in Keney, New Jersey, and, while searching for narcotics, allegedly disassembled the car so completely and damaged so many parts as to render the vehicle effectively destroyed. After the DEA rejected appellant’s claim for damages to the automobile, appellant filed a claim in the district court under the FTCA, seeking compensation for the $28,000 it paid for the automobile, $3,819.66 in shipping charges and customs duties, and $66,250, the alleged approximate resale value of the automobile. On cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), the district court granted the Government’s motion and dismissed the complaint for lack of subject matter jurisdiction.
Discussion
The FTCA gives district courts exclusive jurisdiction of civil actions seeking money damages from the United States “for injury or loss of property ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b). The FTCA also provides, however, a list of exceptions in which section 1346(b) does not apply; if a situation falls within one of the statutory exceptions, the district courts lack subject matter jurisdiction over the claim. See Birnbaum v. United States, 588 F.2d 319, 322 (2d Cir.1978).
Among the exceptions in the FTCA is section 2680(c), which exempts the United States from liability for
[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.
The Government contends that the claim for damage to appellant’s automobile is a claim “arising in respect of ... the detention of any goods ... by ... any other law-enforcement officer.” In the Government’s view, section 2680(c) applies to damage incurred in the course of any search and seizure undertaken by any law enforcement officer. The terms of the statute, construed in light of the doctrine of ejusdem generis, might suggest a more narrow reading. First, it can be argued that the “detention” to which section 2680(c) applies is not every physical seizure preliminary to a search but only a possession effected in the course of assessing or collecting any tax or customs duty. Second, it might also be thought that the specification of “any officer of customs or excise” followed by “any other law-enforcement officer” implies that other law enforcement officers are covered only when their actions are in aid of customs or excise functions of the Government. Nevertheless, several circuits have ruled, with scant discussion, that section 2680(c) applies to detentions beyond the context of customs duties and taxes, e.g., United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1490-91 (10th Cir.) (Department of Agriculture), cert. denied sub nom. Jarboe-Lackey Feedlots, Inc. v. United States, — U.S. —, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984); United States v. Lockheed L-188 Aircraft, 656 F.2d 390, 397 (9th Cir.1979) (Federal Aviation Administration); United States v. 1500 Cases, More or Less, 249 F.2d 382, 384 (7th Cir.1957) (Food and Drug Administration), though the contrary view has been expressed, see A-Mark, Inc. v. United States Secret Service, 593 F.2d 849, 850 (9th Cir.1978) (Tang, J., concurring). The Supreme Court has noted the ambiguity as to the reach of the phrase “any other law-enforcement officer,” but has not determined whether the section 2680(c) exemption is limited to the customs or excise context. See Kosak v. United States, 465 U.S. 848, 852 n. 6, 104 S.Ct. 1519, 1522-23 n. 6, 79 L.Ed.2d 860 (1984).
In the instant case we are satisfied that the detention of the automobile and its search by DEA agents fell within the scope of section 2680(c), without determining whether the exemption would apply to searches by law enforcement officers with no relationship to the customs or excise functions. The DEA agents seized and searched an automobile that had been shipped from abroad and was still in its shipping container. The agents were searching for smuggled narcotics, though, as it happened, no drugs were found. The seizure of an automobile still in transit from overseas and a search of that automobile for narcotics are sufficiently akin to the functions carried out by Customs officials to place the agents’ conduct within the scope of section 2680(c).
Appellant does not dispute this view of the statute’s coverage, but nonetheless contends it is inapplicable because the results of the agents’ conduct exceeded the normal consequences of a “detention” and constituted a “destruction” of the car. The purported distinction is unavailing. In Kosak v. United States, supra, the Supreme Court declined to limit section 2680(c) to claims based on the fact of detention, such as diminution in market value, and construed it to cover any claim “arising out of” a detention, including a claim stemming from negligent storage or handling of the detained property. 104 S.Ct. at 1524. Nothing in Kosak suggests that the Supreme Court, reading the exemption broadly in a case involving damaged antiques, intended to precipitate a distinction between goods damaged and goods destroyed. Indeed, the contention advanced and rejected in Kosak was that section 2680(c) should not apply to “ ‘the negligent ... destruction of property while it is in the possession of the customs service.’ ” Id. at 1523 (emphasis added).
Appellant is mistaken in contending that footnote 3 of the Kosak opinion evidences the Court’s refusal to decide the “destruction” issue. In that footnote, the Court declined to consider a claim of destruction of property other than the detained property. A valuable item had been destroyed by Customs agents in the course of searching Kosak’s home. The claim concerning destruction of this property was left unresolved, not for any doubt as to whether a “destruction” of detained goods was covered by section 2680(c), but because the claim had not been presented to the Court of Appeals. See 104 S.Ct. at 1522 n. 3.
At argument, appellant urged that the agents’ conduct should render the United States liable because they dismantled the car and damaged its parts to an extent far beyond what was reasonably required to determine whether the vehicle contained narcotics. Appellant suggests that the agents were motivated by malice. Though some might think that a sufficiently minute examination of the car could have been made without leaving it unusable, we see no basis for reading into section 2680(c) a limitation concerning the reasonableness of the agents’ conduct in searching the detained property. The exemption serves to insulate the United States from litigation over precisely such issues. Whether the United States ought to be liable for an excessively damaging means of carrying out a search of detained property is a matter for consideration by Congress. Cf. Pub.L. No. 93-253, § 2, 88 Stat. 50 (1974) (amending 18 U.S.C. § 2680(h) to render United States liable for law enforcement officers’ misconduct with respect to persons). Moreover, we decide only that the officers’ alleged conduct does not subject the United States to liability; we have no occasion to consider the liability of the officers. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
The judgment of the District Court is affirmed.
. The movie, "The French Connection," showed law enforcement officers disassembling an expensive automobile in a thorough search for narcotics and reassembling it without any apparent trace of damage. Of course, the film may have understated the thoroughness of an agent's search, or overstated his reconstruction skills, or failed to reckon with new smuggling techniques that secrete drugs from discovery except upon a complete and damaging dismantling of an automobile.
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_origin
|
C
|
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.
Daniel ANDERSEN, Petitioner-Appellant, v. James THIERET, Warden, Respondent-Appellee.
No. 89-1574.
United States Court of Appeals, Seventh Circuit.
Argued April 3, 1990.
Decided June 5, 1990.
As Amended June 11, 1990.
Frank C. Lipuma, Mayer, Brown & Platt, Chicago, Ill., for petitioner-appellant.
Nathan P. Maddox, Asst. Atty. Gen., Office of the Atty. Gen., Criminal Appeals Div., Springfield, Ill., for respondent-appel-lee.
Before WOOD, Jr., EASTERBROOK and MANION, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
Daniel Andersen brings this habeas petition to challenge his incarceration at the Menard Correctional Center in Menard, Illinois. Andersen alleges that his confession to these crimes was not voluntary and that the state trial court violated his Miranda rights by admitting into evidence certain statements he made shortly after his arrest. The district court denied Andersen’s petition and we affirm.
I. Factual Background
On the night of January 19, 1980, Cathy Trunko was stabbed in the chest three times near her home in Chicago, Illinois. Only her assailant witnessed the attack. A passerby found Cathy lying on the sidewalk, covered with blood. By the time she was found, medical assistance was no help, and Cathy eventually succumbed to her wounds. An Illinois state trial court convicted petitioner Andersen of attempted rape and murder in connection with this attack and sentenced him to concurrent thirty and fifty-five year sentences. On direct appeal, the Illinois Appellate Court affirmed Andersen’s conviction, and that court’s decision contains a full narrative of the crime and Andersen’s arrest. See People v. Andersen, 134 Ill.App.3d 80, 82-94, 479 N.E.2d 1164, 1166-74, 89 Ill.Dec. 158, 160-68 (1985). A less-detailed version of the facts is necessary to an understanding of this case.
The voluntariness of the petitioner’s confession predominates the issues in this appeal. After his arrest, Andersen told the following story to the police. At about 10:00 P.M. on January 19, 1980, he had been drinking and felt a need for sex. Andersen obtained a knife from a toolbox in the attic of his home, placed it in his boot, and walked outside. He saw Cathy Trun-ko, a woman he had known for twelve years. Not wishing to be caught for the crime he was contemplating, Andersen went to his car and got a pair of gloves.
Next, Andersen came alongside Cathy and struck up a conversation. When they passed her home, Cathy informed Andersen that she had to go inside for a moment to give her mother some cigarettes. She came back outside, and they resumed their walk. In front of a church, Andersen told Cathy to wait on the front steps while he went around back to urinate. When out of her sight, he took the knife from his boot and placed it on some stairs where he could reach it from the sidewalk. Andersen put on his gloves and returned to Cathy, walking with her toward the stairs.
When they got close enough to the stairs, Andersen bent down and picked up the knife. He put his arm around Cathy, kissed her, and said he wanted to make love. She refused. He forced her to the ground and fondled her. Cathy spit in his face. She tried to escape and started to scream. Andersen then thrust the knife into her chest, once in each breast and “once in the middle.” As he fled, Cathy was crawling on the ground. Andersen then discarded his knife and gloves, but the knife was later recovered by the police in an area that Andersen agreed was the place he had thrown it.
This was the story that Andersen related five days later, on January 24, 1980, after his arrest for disorderly conduct. Petitioner’s mother had asked her friend, Officer Riley, to bring the defendant home as he was drunk, had a weapon, and was driving his silver Ford Pinto. Riley passed this information along to another police officer who soon spotted the silver Pinto. This second officer stopped the car, but the defendant was not in it; a friend had agreed to drive it because Andersen was too drunk to drive. The officers and the friend then proceeded to the mother’s house. They saw the defendant walking toward them. The police searched Andersen but found no weapon. One of the officers asked the defendant’s mother if she wanted the defendant left with her or taken to the station. She said the defendant had been causing a disturbance so she signed a disorderly conduct complaint against him.
Nothing in the record suggests that at this point, the police suspected Andersen of the Trunko murder, but he soon provided them with a reason to do so. During the five-minute ride to the police station, there was some conversation about the weapon that the defendant’s mother said he had, but the defendant denied he had one, saying he was just out drinking. After an interval of silence, Andersen then blurted, “I stabbed her”; the arresting officer asked, “Who?”; and Andersen responded, “Cathy.” At the suppression hearing before the state trial court, the arresting officer testified that this exchange occurred before Andersen was read his Miranda rights, but at trial the same officer testified that the statement was made after Miranda warnings. Although the state trial court suppressed any statements made before Miranda warnings, this colloquy was allowed into evidence consistent with the testimony at trial and on the basis that it occurred after Miranda warnings.
After Andersen was read his Miranda warnings, he responded that he knew them and that he wished to waive them. The police then questioned him further about the stabbing, and this is when he gave the disputed confession to the police. What happened at the station house is a matter of conflicting evidence. Andersen contended that he was roughly handled and injured by the police, that he was misled by a “good officer” routine, and that his oral and written confessions were involuntary under all the circumstances. The degree of the petitioner's intoxication was also disputed. Some of the petitioner’s witnesses said that he was drunk, that he had a chronic alcohol problem, and that he had smoked parts of two marijuana cigarettes. Finally, Andersen contended that his confession was merely a script story, concocted by him and the officer who had promised to be his friend.
The state trial court, based upon the credibility of the witnesses and considering the contradictions in the testimony of the defendant’s witnesses, determined that the defendant’s confession was voluntary. In oral findings reproduced as an appendix to this opinion, the trial court rejected Andersen’s contention that intoxication rendered him susceptible to police suggestions that he confess. His speech was found not to be slurred; he walked normally, displayed no lack of coordination, had no hand tremors, no difficulty focusing his attention, and gave coherent answers. When the defendant reviewed a draft of his written confession, he had the presence to change the word “shooting” to “stabbing.” Similarly, the trial court found that no physical coercion had occurred. In sum, the state trial court rejected Andersen’s evidence.
Both parties consented to the entry of a final judgment on the habeas petition by a United States magistrate. Relying on the factual findings of the state trial court, the magistrate did not conduct an evidentiary hearing. The magistrate concluded that Andersen had not shown his confession was involuntary, rejected Andersen’s Miranda claims, and denied the petition. Andersen now appeals that decision pursuant to 28 U.S.C. §§ 636(c)(3), 1291.
II. Discussion
A. Voluntariness of Confession
The threshold issue is the correct standard for reviewing the magistrate’s decision on the voluntariness of Andersen’s confession. As a habeas petitioner, Andersen is entitled to a federal district court’s de novo review of the voluntariness issue under Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985), and we have interpreted Miller to require de novo appellate review of the district court’s decision on voluntariness, see United States v. Hawkins, 823 F.2d 1020, 1022-23 & n. 1 (7th Cir.1987). This standard of review has recently come under attack, see, e.g., United States v. Rutledge, 900 F.2d 1127, 1128-29 (7th Cir.1990); Weidner v. Thieret, 866 F.2d 958, 961 (7th Cir.1989); Sotelo v. Indiana State Prison, 850 F.2d 1244, 1253-55 (7th Cir.1988) (concurring opinion), and even replaced by an abuse of discretion standard when we exercise discretionary jurisdiction under 28 U.S.C. § 636(c)(5), see Wilson v. O’Leary, 895 F.2d 378, 383 (7th Cir.1990). Nevertheless, because an ultimate resolution is not necessary for our decision, we will follow the example of Sotelo and leave the question for another day. 850 F.2d at 1247 n. 4; see also Rutledge, 900 F.2d at 1129 (declining to decide question where litigants did not challenge the correct standard of review). Therefore, we will review the magistrate’s decision on voluntariness de novo.
Before considering the substance of Andersen’s petition, we must pause because the state trial court’s choice of words complicates our decision. Where the state trial judge orally stated that he believed none of Andersen’s statements “were obtained as a result of” possible police misconduct, he could have been clearer. A rhetorician might quibble with this language; saying that something is not “the result of” a sequence of events is not literally the same as saying the sequence of events did not occur. Cf. Weidner, 866 F.2d at 960, 964 (granting evidentiary hearing to habeas petitioner to clarify state trial court’s findings that no threats or coercion had “induced” the confession). But a state trial court’s findings on voluntariness need not be talismanic, especially where the findings are rendered orally. In this case, the state trial judge carefully surveyed the evidence that had been presented, considered the credibility of the witnesses, and then rendered his findings. The state trial judge’s findings manifest his clear intent to repudiate Andersen’s excuses for his confession. That is enough for us to easily infer the underlying factual findings he must have made. His findings are adequate.
Turning to the merits, we must presume correct subsidiary factual findings of the state courts. 28 U.S.C. § 2254(d). Before this presumption can arise, the state court must have resolved the merits of a factual dispute. Id. § 2254(d)(1). In essence, subsection 2254(d)(1) of the habeas statute merely codifies the self-evident proposition that a state court must have made a finding on a particular factual issue before a federal court can defer to that finding. See Townsend v. Sain, 372 U.S. 293, 313-14, 83 S.Ct. 745, 757-58, 9 L.Ed.2d 770 (1963). A federal court, however, is not limited to express factual findings made by the state court; it must also rely on any resolution of factual disputes that can be fairly inferred from the state court record. See LaVallee v. Delle Rose, 410 U.S. 690, 694-95, 93 S.Ct. 1203, 1205-06, 35 L.Ed.2d 637 (1973); Townsend, 372 U.S. at 314-15, 83 S.Ct. at 757-58. For example, where a habeas petitioner’s story would have led the state trial court to conclude the petitioner’s confession was involuntary, the state court’s finding of voluntariness implies that petitioner’s version of the facts was rejected. See LaVallee, 410 U.S. at 692-93, 93 S.Ct. at 1204-05. (habeas petitioner alleged police brutality and torture).
We think this is a similar ease; the state trial court’s discussion of the evidence and its conclusion that Andersen’s confession was voluntary is fairly interpreted as a rejection of his version of the facts. In the absence of evidence to the contrary, we must assume that the state courts applied the correct constitutional standards to this case. Townsend, 372 U.S. at 314-15, 83 S.Ct. at 757-58. If the state courts had credited his story, these standards would have required them to conclude that Andersen’s confession was involuntary. The physical abuse that Andersen claims occurred would have led to a finding of involuntariness. See, e.g., Stein v. New York, 346 U.S. 156, 182, 73 S.Ct. 1077, 1091, 97 L.Ed. 1522 (1953) (When physical violence is present, “there is no need to weigh or measure its effects on the will of the individual victim.”); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) (confession involuntary where defendant was whipped); see also 1 W. LaFave & J. Israel, Criminal Procedure § 6.2(c) (1984) (collecting cases). Food, sleep, and water deprivation and a mentally coercive interrogation would also have caused the state courts to conclude that Andersen’s confession was involuntary. See, e.g., Brooks v. Florida, 389 U.S. 413, 88 S.Ct. 541, 19 L.Ed.2d 643 (1967) (deprivation of food and water, combined with conditions of confinement, made confession involuntary); see also Colorado v. Connelly, 479 U.S. 157, 163 n. 1, 107 S.Ct. 515, 520 n. 1, 93 L.Ed.2d 473 (1986) (collecting cases); 1 W. LaFave & J. Israel, Criminal Procedure § 6.2(c) (1984) (collecting cases). Because Andersen alleged the police’s use of “third-degree methods” and the state trial court refused to exclude the confession from evidence, we may assume the state court found the “facts against the petitioner, the law being, of course, that third-degree methods necessarily produce a coerced confession.” Townsend, 372 U.S. at 315, 83 S.Ct. at 758.
We need not rely exclusively on our own inferences that may be drawn from the state trial court’s findings. The Illinois Appellate Court rejected Andersen’s plea to find his confession involuntary by saying, “It is evident that the trial court chose to believe [the interrogating officer’s] testimony rather than that of the defendant’s witnesses.” 134 Ill.App.3d at 95, 479 N.E.2d at 1175, 89 Ill.Dec. at 169. Whether a factual finding is made by a state trial or state appellate court is inconsequential; subsection 2254(d) applies a presumption of correctness to both. See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Because the Illinois Appellate Court’s statement could be read either as an interpretation of the state trial court’s findings or as an independent factual finding that the defendant’s witnesses were not credible, we need not base our holding on it. Nevertheless, to the extent this statement can be interpreted as a finding of fact, it provides another reason for our decision.
Andersen also urges that the record as a whole does not support the state trial court’s findings. See 28 U.S.C. § 2254(d)(8). While it is true that the state trial judge never made a finding as to Andersen’s specific blood alcohol level at different times, this was hardly necessary. The state trial court’s finding necessarily rejected Andersen’s claim that he was overborne by a combination of intoxication and coercive police tactics. This finding is hardly illogical given that at least nineteen hours elapsed between Andersen’s last drink and his confession. As to Andersen’s allegations that he was physically abused and mentally coerced, he admits that he is the only witness. We agree with the Illinois Appellate Court’s observation: the state trial court obviously chose to credit the testimony of Andersen’s custodians rather than his own. The testimony of these witnesses provides ample support for the state trial court’s findings.
Andersen has not shown that any of the exceptions in 28 U.S.C. § 2254(d) are applicable, and we must presume the accuracy of the state trial court’s factual findings. Because the state trial court rejected Andersen’s story of a third-degree interrogation, the record contains no support for a finding that Andersen’s confession was involuntary. The police did not arrest Andersen because they suspected him of the Trunko murder. Rather, Andersen was properly arrested on a disorderly conduct charge initiated by his mother, and the police uncovered Andersen’s involvement in the murder as a follow-up to surprise statements he made shortly after his arrest. Even reviewing the magistrate’s decision de novo, we must find that Andersen voluntarily confessed to the Trunko murder.
B. Admissibility of Custodial Statements
Andersen and his prosecutors agree that the following exchange occurred while Andersen was in custody:
ANDERSEN: “I stabbed her.”
POLICE OFFICER: “Who?”
ANDERSEN: “Cathy.”
The parties argue over whether this conversation occurred before or after Andersen was given Miranda warnings and whether the admission of this statement violates the dictates of Miranda. While the state contends that Andersen waived this argument by not squarely presenting it in his petition for leave to appeal to the Illinois Supreme Court, see Nutall v. Greer, 764 F.2d 462, 465 (7th Cir.1985), we find that Andersen sufficiently presented the issue to the Illinois state courts to preserve it for federal habeas review.
At a suppression hearing, the arresting officer testified that Andersen made these statements before Miranda warnings, but at trial, the same officer stated that the statements were made after Miranda warnings. Although the state trial judge had excluded any of Andersen’s statements made before Miranda warnings, the arresting officer was allowed to testify as to this colloquy on the basis of trial testimony that it occurred after Miranda warnings. However, the timing of this conversation is inconsequential. Even if the statements were made before warnings were given, they could have been properly received into evidence, because Andersen volunteered his initial statement and the arresting officer’s reflexive question does not constitute an “interrogation” for purposes of Miranda. Therefore, Andersen was not prejudiced by the admission of these statements.
Shortly after his arrest, the police asked Andersen if he had a gun, an arguably proper line of questioning to protect the officers’ safety. See New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Despite this initial questioning, we agree with the Illinois Appellate Court that Andersen’s statement a few minutes later was initially volunteered. This lapse of time and the nonresponsive character of Andersen’s statement removes any possibility that Andersen was responding to police interrogation about a gun when he stated, “I stabbed her.” By its own terms, Miranda does not apply to volunteered statements, and thus Andersen’s first exclamation could be properly received into evidence. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).
Furthermore, the police officer’s responsive question, “Who?,” did not require full Miranda warnings before its utterance. See, e.g., United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir.1985) (no interrogation occurred where drug dealer saw police officers were confiscating his notebook and said, “You can’t take that,” to which a police officer responded, “Why” and drug dealer stated, “I can’t run my business without that.”), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986); Papile v. Hernandez, 697 F.Supp. 626, 630-31 (E.D.N.Y.1988) (no interrogation occurred where police officer asked, “What kind of a deal?” in response to habeas petitioner’s spontaneous offer, “I want to make a deal.”); Turner v. Sullivan, 661 F.Supp. 535, 538 (E.D.N.Y.1987) (no interrogation occurred where habeas petitioner had initiated exchange by stating, “My leg is hurting,” to which police officer responded, “What happened to you?”), aff'd, 842 F.2d 1288 (2d Cir.), cert. denied, 487 U.S. 1240, 108 S.Ct. 2913, 101 L.Ed.2d 944 (1988); 1 W. LaFave & J. Israel, Criminal Procedure § 6.7(d) (1984). The police officer’s question was a neutral response, intended to clarify Andersen’s puzzling declaration; it was not coercive interrogation that Miranda seeks to prevent. Therefore, the police officer’s question and Andersen’s response could have been properly admitted. On the facts of this case, the spontaneous colloquy, which was initiated by the accused, did not require full Miranda warnings before it could be admissible.
III. CONCLUSION
Andersen has not established an exception to the general rule that we must presume correct the findings of the state trial court, and consequently, there is no basis upon which we can find his confession involuntary. Also, Andersen has not established a violation of Miranda. Accordingly, the judgment of the district court denying his petition for a writ of habeas corpus is
Affirmed.
Appendix
Oral Findings of the State Trial Judge:
All right. The Court has heard extensive evidence, witnesses on the defendant’s motion to quash and also, the second motion. The motion to suppress statements has heard arguments of Counsel. And the matter was taken under advisement and continued today’s'date for the Courts [sic] ruling and finding of fact.
The Court will not comment in great detail prior to making the finding of fact, but the Court will comment as to one facet because in the Court’s opinion, it is one of the crutial [sic] elements as indicated in the motion to quash and also, in the motion to suppress. And that is the defendant’s condition at the time of his arrest and at the time of giving the purported statements as to his sobriety or lack thereof.
Different witnesses have testified and most of them have commented on his condition at the time that they saw him. And the comments have been as to the — one witness indicated the word he — his opinion was “drunk.” Another one indicated he was “dead drunk.” Another one indicated he was “intoxicated.” However, upon the particular witnesses being questioned further, as to the basis for their opinion, they then came up with statements as or admissions they had not seen the defendant consume any alcohol.
Some indicated they had seen him consume only one drink. Others indicated the basis of their opinion was merely the fact they smelled the odor of alcohol on his breath, however, they indicated that he was able to drive a car, to walk without stumbling and his speech, although it was raspy, they could understand what he was saying. And that he was coherent. So, there’s a great divergence as to his condition. And the Court must consider the credibility of the witnesses as testified based upon the basis that they indicated for their conclusion that he was drunk or dead drunk or intoxicated, according to the words that were used by the different witnesses that testified.
Although there is contradiction in the record as to the witnesses [sic] statement as to what occurred at the time that the defendant was taken into custody in front of his house; one witness indicated that he was being held over the top of a van. Another witness indicated that he was being placed with his hands over the hood of a car — hood of the police car. And the other witness indicated that he was being held with his hands over the — it would be the top of the police car, but covering the windows to the back. There’s an indication they could hear everything that was being said, even though the windows were rolled up in the squad car. There was even testimony from the defendant’s mother that the windows were rolled up in the squad car, but she still could hear Norman Menagus (sic) hollering from the rear of the squad car, which she placed quite a distance from her home, which all goes to the credibility and the weight the Court had to give the testimony aduced [sic].
Based upon the totality of the evidence presented to the Court, in considering the credibility the Court has aduced [sic ], based upon those witnesses [sic] testimony, the Court finds as follows:
The Court finds, first, in my first ruling that deals with the motion to quash, the Court finds that the arrest of the defendant was not a pretex [sic ] or a subterfuge arrest. The Court finds that the defendant’s arrest took place when he was placed in the squad car at 5191 South Hermitage immediately after the complainant Mrs. Anderson [sic ] signed a complaint for disorderly conduct.
The Court further finds that there, the arrest was based upon probable cause and, therefore, the defendant, Daniel Anderson’s [sic], motion to quash the arrest is denied.
Now, as to the motion to suppress statements, the Court finds that the defendant was in custodial arrest when he was placed in the police car in front of his home after Mrs. Anderson [sic] had signed the complaint for disorderly conduct. The Court further finds that the statements made in the squad car between the time of leaving the house and arriving at the police station at 85th and Lowe and also, the statements made in the parking lot of the police station at 35th and Lowe were not volunteered statements. And the Court finds that the defendant had not knowingly waived his right of Miranda rights at the time that those statements were given. Therefore, as to those statements only, the defendant’s motion to suppress those statements is sustained.
Now, as to the subsequent statements given inside the police station, the Court finds that prior to such interrogation, the defendant was advised of his Miranda rights and that he knowingly and intelligently waived those particular rights. The Court further finds that the defendant was capable of appreciating and understanding the full meaning of his Miranda rights and waive them voluntarily, knowingly and intelligently.
The Court further finds that the statements were not obtained as a result of the interrogation, in contradiction of the defendant’s request for food and water while manacled to the lock-up. The Court further finds that the statements were not obtained as a result of undue questions for a lengthy period of time for the promises of leniency being made to the defendant.
The Court further finds that the statements were not obtained as a result of physical coercion or psychological or mental coercion and were not obtained as a result of confronting the accused with evidence which had been obtained in derogation of his Constitutional rights. The Court also finds that the statements were not obtained as a result of material misrepresentations made to the Defendant. Therefore, as to the remaining statements, the defendant’s motion to suppress is denied.
. The Supreme Court has now made clear that in the absence of coercive police conduct, a criminal defendant’s mental state alone cannot make his confession involuntary. Colorado v. Connelly, 479 U.S. 157, 163-67, 107 S.Ct. 515, 520-22, 93 L.Ed.2d 473 (1986). Therefore, Andersen’s intoxication by itself could not support a finding of involuntariness and is relevant only to the extent it made him more susceptible to mentally coercive police tactics.
. At oral argument, we asked whether the magistrate had applied an incorrect quantum of proof in deciding that the petitioner’s confession was voluntary. On two occasions in his written opinion, the magistrate stated that the petitioner "must prove beyond a reasonable doubt" that his confession was involuntary. Of course, the correct standard is that the petitioner prove by a preponderance of the evidence that his confession was involuntary. See United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1015 (7th Cir.1987); Martin v. Wainwright, 770 F.2d 918, 925 (11th Cir.), cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986). Because petitioner never raised this argument except in response to questions at oral argument, he has waived it. In addition, the magistrate correctly identified the proper quantum of proof in other places in his opinion, convincing us that any prejudice to the petitioner was minimal.
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:
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songer_state
|
56
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Andrija ARTUKOVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 81-7415.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 4, 1982.
Decided Dec. 1, 1982.
Ronald H. Bonaparte, Los Angeles, Cal, for petitioner.
Allan A. Ryan, Jr., Director, argued, for respondent; Clarice R. Feldman, Los Angé-les, Cal., Rodney G. Smith, Washington, D.C., on brief.
Before GOODWIN and SCHROEDER, Circuit Judges, and SOLOMON District Judge.
The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation.
GOODWIN, Circuit Judge.
Andrija Artukovic filed a petition to review an order of the Board of Immigration Appeals revoking his stay of deportation under § 243(h) of the Immigration and Nationality Act of 1952. 8 U.S.C. § 1253(h) (as amended 1978) . We vacate the order of the board.
Artukovic entered the United States in 1948 on a visitor’s visa using a false name. He was given two extensions of his temporary stay, but did not depart when they expired.
In 1951, the Immigration and Naturalization Service brought deportation proceedings against Artukovic because, he had entered under a false passport and because he had overstayed his visitor’s visa. Artukovic applied for a suspension of deportation under Section 19(c) of the Immigration Act of 1917 (39 Stat. 874). The Immigration and Naturalization Service hearing officer denied the suspension after a hearing in 1952.
In 1953, the hearing officer’s decision was affirmed by the Board of Immigration Appeals. Because Artukovic had failed to qualify for suspension of deportation under section 19(c), the board ordered him deported. That order was not executed because of a pending request by the Yugoslavian government to extradite Artukovic for trial on 22 counts of . murder. See Artukovic v. Boyle, 140 F.Supp. 245 (S.D.Cal.1956), aff'd sub nom., Karadzole v. Artukovic, 247 F.2d 198 (9th Cir.1957), vacated and remanded, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958).
On January 15, 1959, the United States Commissioner -for the Southern District of California denied extradition because the Yugoslavian government had failed to offer sufficient evidence to support its indictment and there was no evidence to provide reasonable or probable cause to believe that Artukovic was guilty of participation in crimes committed by others in the government. United States v. Artukovic, 170 F.Supp. 383 (S.D.Cal.1959).
On May 22, 1959, the Regional Commissioner of the Immigration and Naturalization Service granted Artukovic a stay of deportation under § 243(h) of the Immigration Act of 1952 on the ground that Artuko-vic would be subject to persecution if he were deported to Yugoslavia.
In 1977, when the commissioner attempted to revoke the stay, Artukovic obtained a district court injunction preventing the government from revoking the stay except by motion before the board to reopen or reconsider under §§ 3.2, 3.8, or 242.22 of Title 8 of the Code of Federal Regulations. Artukovic v. Bell, No. CV-77-2333-IH (C.D.Cal. September 19, 1977) (amended February 27, 1980).
In 1978, Congress amended the Immigration Act to provide that members of Nazi governments of Europe who had persecuted people because of their race, religion, national origin, or political opinion were de-portable and were not eligible for stays under § 243(h). Pub.L. No. 95-549, Title I, §§ 103-04, 92 Stat. 2065-2066 (1978) (codified at 8 U.S.C. §§ 1251(a)(19), 1253(h)). The Immigration and Naturalization Service then moved the board to reconsider Artukovic’s stay. Artukovic argued that the stay could not be revoked without a reopening for a full factual hearing. The board revoked the, stay without a hearing. It held that the factual findings of the 1953 decision were sufficient to determine that Artukovic was no longer eligible for a § 243(h) stay and applied administrative res judicata. This appeal followed.
Artukovic argues that: (1) the 1978 amendment to § 243(h) does not apply to his case; (2) the 1978 amendment is unconstitutional; and (3) the board did-not follow proper procedures in revoking his stay. REACH OF THE 1978 AMENDMENT
Artukovic contends that § 405(a) of the Immigration Act of 1952, 66 Stat. 166 (codified at 8 U.S.C. § 1101, note (1976)), was intended to insure that only the 1917 Immigration Act would apply to all proceedings started before 1952. He argues that because his deportation proceedings began before 1952, the 1978 amendment to § 243(h) does not apply to his case.
Section 405(a), 8 U.S.C. § 1101, note, provides:
(a) “Nothing contained in this Act, [this chapter] unless otherwise specifically provided therein, shall be construed to affect .the validity of any ... proceeding ... or any status ... at the time this Act [this chapter] shall take effect; but as to all such ... proceedings ... the statutes .. . repealed by this Act [this chapter] are, unless otherwise specifically provided therein, hereby continued in force and effect....”
This is merely a “savings clause” to insure that the 1917 Act would continue to apply to cases pending in 1952 if not “otherwise specifically provided” for in the 1952 Act. See Lehmann v. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957). It does not bar Congress from passing legislation that affects the status of anyone whose immigration proceedings began before 1952. Moreover, the legislative history of the 1978 amendment indicates that Congress intended it to apply retroactively to Nazi war criminals who were not deportable under earlier immigration laws. H.Rep. No. 95-1452, 95th Cong., 2d Sess. 3, reprinted in 1978 U.S.Code Cong. & Ad.News 4700, 4702. The 1978 statute applies to this case.
CONSTITUTIONALITY OF THE 1978 AMENDMENT TO § 243(h)
Before 1978, § 243(h) of the Immigration Act of 1952 authorized the Attorney General to stay the deportation of any alien who would be subject to persecution if deported. The 1978 amendment withdrew the protection of § 243(h) from members of the Nazi governments of Europe who had “ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.” 8 U.S.C. §§ 1253(h)(2)(A) and 1251(a)(19).
Artukovic contends that the 1978 amendment is a bill of attainder and ex post facto law because it withdrew the basis for his stay of deportation. Deportation, however, is not a punishment; it is simply a refusal by the government to harbor persons whom it does not wish to harbor. Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913). The prohibition against ex post facto laws and bills of attainder does not apply to deportation statutes. Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 764, 99 L.Ed. 1107 (1955) (construing ex post facto clause); Rubio de Cachu v. Immigration & Naturalization Serv., 568 F.2d 625, 627-28 (9th Cir. 1977) (bill of attainder clause).
Congress may establish grounds for deportation that apply retroactively. Lehmann v. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957); Mulcahey v. Catalanotte, 353 U.S. 692, 77 S.Ct. 1025, 1 L.Ed.2d 1127 (1957). In this case, Congress has merely withdrawn the basis for Artukovic’s temporary, discretionary stay of deporta-, tion. If Congress may establish retroactive grounds for deportation, it has the privilege of restricting the discretionary relief available to aliens for whom there already exist grounds for deportation. Artukovic has no basis for asserting that the 1978 amendment does not apply to his case.
Artukovic also argues that the word “persecution” in the 1978 amendment is unconstitutionally vague. The term “persecution” appears in at least two other immigration statutes. See 8 U.S.C. §§ 1153(a)(7), 1253(h). This court has interpreted “persecution” in § 1253(h) as “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.” Kovac v. Immigration and Naturalization Service, 407 F.2d 102, 107 (9th Cir.1969). Accord, Moghanian v. U.S. Dept. of Justice, etc., 577 F.2d 141, 142 (9th Cir.1978). The Board of Immigration Appeals defines the term more narrowly in relation to § 1253(h) as threatening a person’s “life or freedom ... on account of his race, religion, nationality, membership in a particular social group, or political opinion.” Moghanian, 577 F.2d at 142. Under these circumstances, Artukovic’s vagueness challenge is not persuasive.
THE BOARD’S PROCEDURES IN REVOKING THE STAY
Artukovic asserts that the board should not have revoked his stay under the 1978 law without first granting him an evidentiary hearing before an immigration judge, whose decision could then be appealed to the board. We agree.
The regulations give the board jurisdiction over motions to reopen or to reconsider its decisions, including stays of deportation. 8 C.F.R. § 3.2. Artukovic’s stay was granted by the. Regional Commissioner, not the board, but the regulations treat decisions made by the commissioner before 1962 as decisions of the board for purposes of reopening or reconsideration. Therefore, the board had jurisdiction over the government’s motion to reconsider the commissioner’s 1959 stay of Artukovic’s deportation.
Although a motion to reopen must offer to prove “new facts” at a “reopened hearing,” 8 C.F.R. § 3.8(a), there is no such requirement for a motion to reconsider. The board interprets this regulation to permit reconsideration rather than reopening where a motion requests the board to apply a change in the law, because there are no “new facts” to prove. Thus the board relied on administrative res judicata in revoking Artukovic’s stay. While the board’s interpretation is entitled to the deference ordinarily given to an agency’s interpretation of its own procedural regulations, see Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 544-55, 98 S.Ct. 1197, 1211-17, 55 L.Ed.2d 460 (1978), reconsideration was not an appropriate procedure in Artukovic’s case. The 1978 law’s creation of new factual categories requires a reopened hearing to determine whether Artu-kovic comes within- the new categories.
The issue raised by the government’s motion to reconsider was whether the 1978 amendment to § 243(h) made Ar-tukovic ineligible for a stay. The government sought to rely on a suspension of deportation hearing, initiated by Artukovic almost thirty years earlier, to prove that Artukovic fell within a statute passed in . 1978. Basic principles of res judicata and of collateral estoppel preclude this procedure. Even where an issue has been actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is generally not precluded where there has been an intervening change in the governing law or where the burden of persuasion has shifted from the time of the first action to the second. See Restatement (Second) of Judgments § 28 (1982). Moreover, in the' administrative law context, the principles of collateral estoppel and res judicata are applied flexibly. See, e.g., United States v. Lasky, 600 F.2d 765, 768 (9th Cir.1979), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979).
In the 1952-1953 deportation hearings, the primary issue was whether Artukovic had entered and remained in this country illegally, by entering under a false name and remaining after his visa had expired. The burden was on Artukovic to show that he was entitled to a discretionary suspension of deportation. Artukovic attempted to qualify for suspension on the grounds of economic detriment to his one and one-half year old United States citizen child. The hearing officer found that he had failed to prove serious economic detriment, and that he had not sustained his burden of proving good moral character.
Under the 1978 law, Congress intended that the government prove the alien’s membership in the described class by “clear, convincing and unequivocable [sic] evidence.” H.Rep. No. 95-1452, 95th Cong. 2d Sess. 3 (1978), 1978 U.S.Code Cong. & Ad. News 4712.
The 1978 statute places the burden on the government. The offensive use of collateral estoppel raises a question of fair procedure. There are, of course, cases in which the offensive use of collateral estoppel is both efficient and fair to the parties. See, e.g., Mendoza v. United States, 672 F.2d 1320 (9th Cir.1982). But this is not such a case.
The government may not rely on a hearing convened thirty years ago for a different purpose raising different issues under a different statute as a substitute for the evidence required by the 1978 law. Due process requires that the government must reopen the case for a new hearing at which it must prove by clear and convincing evidence that Artukovic possesses the personal culpability which would bring him within the 1978 law. The 1953 hearings were not, and could not have been, directed to this question.
Vacated.
. Section 243(h), 8 U.S.C. § 1253(h) provides:
“(1) The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(19) of this title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion;
(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that—
(A)the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion, ...”
8 U.S.C. § 1253(h), as amended by Act of October 30, 1978, Pub.L. No. 95-549, Title I, § 104, 92 Stat. 2066, and Act of March 17, 1980, Pub.L. No. 96-212, Title II, § 203(e), 94 Stat. 107.
Section 1251(a)(19) provides:
. “Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who.. .
(19) during the period beginning .on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—
(A) the Nazi government of Germany,
(B) any government in any area occupied by the military forces of the Nazi government of Germany,
(C) any government established with the assistance or cooperation of the Nazi government of Germany or
(D) any government which was an ally of the Nazi government of Germany,
ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.”
8 U.S.C. § 1251(a)(19), as amended by Act of October 30, 1978, Pub.L. No. 95-549, Title I, § 103, 92 Stat. 2065.
. We also note that the decision made reference to the then-pending extradition proceeding by the Yugoslavian government. This proceeding, which was subsequently dismissed on the merits, may have been a significant factor in the decision to withhold discretionary relief at that time.
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_state
|
06
|
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".
WESTERN FRUIT GROWERS, Inc., et al. v. UNITED STATES.
No. 9717.
Circuit Court of Appeals, Ninth Circuit.
Dec. 5, 1941.
G. V. Weikert, of Los Angeles, Cal., for appellants.
Wm. Fleet Palmer, U. S. Atty., and William F. Hall and Walter M. Campbell, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.
Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.
STEPHENS, Circuit Judge.
The complaint herein is entitled “For Injunction to Enforce and to Prevent Violation of Agricultural Marketing Agreement Act of 1937” and alleges that it is a proceeding brought under Section 8a(6) of the said Agricultural Marketing Agreement Act of 1937, 7 U.S.C.A. § 601 et seq., and that its purpose is to enforce the provisions of Order No. 2 of the Secretary of Agriculture regulating the handling of oranges and grapefruit grown in the States of California and Arizona, and to prevent and restrain the defendants from handling oranges in current of interstate commerce in violation of the provisions of said order.
It is alleged that the defendants Western Fruit Growers, Inc.; Orange Belt Fruit Distributors, Inc.; Edwards Fruit Co., Inc.; California Fruit Distributors; United Citrus Growers, Inc.; Shippers Sales Corporation; Pioneer Citrus Distributors; American Fruit Growers, Inc.; Associated Anaheim Growers, Inc.; Green and Gold Groves, Inc.; Fred W. Krinard and Russell G. Krinard, copartners; Lloyd A. Evans, Ernest E. Evans and Roy E. Evans, co-partners; B. C. Rooke; Frank Belmont and E. T. Wall are all shippers of oranges in interstate and foreign commerce. Seven of the above named defendants are alleged to be also growers. Two of said defendants are alleged to be non-profit agricultural cooperative marketing associations.
The defendant Amalgamated Citrus Growers Association is alleged to be an unincorporated association of orange growers residing in California. As to this defendant there is no allegation that it is engaged in shipping oranges.
The defendants Sydney Yates, R. P. Allen, W. H. Anderson, Dan Henry, Melvin Bordeaux, Oliver Baker, Jerome Wallace, Coalson C. Morris, H. O. Michel, and John B. La Mar are alleged to be members of the Advisory Committee of said Amalgamated Citrus Growers Association.
The promulgation of Order No. 2 of the Secretary of Agriculture is then alleged, and then follow allegations of certain injunctions heretofore issued by the United States District Court; and allegations of violation of the Order by various of the defendants.
For the orderly consideration of the questions raised by this appeal, the defendants may be grouped as follows:
1. Defendants who, it is alleged, had been enjoined by the United States District Court from violation of the order prior to August 22, 1940 (the importance of this date will be hereinafter referred to). Defendants falling within this classification are: Western Fruit Growers, Inc.; Edwards Fruit Company, Inc.; American Fruit Growers, Inc.; Fred Krinard and Russell Krinard, doing business as Krinard Packing Company; and B. G. Rooke. In this connection it is alleged in the complaint that the injunction restrained “Hugh David Edwards, individually and doing business under the firm name and style of the Edwards Fruit Company” from handling or shipping oranges grown in California or Arizona in interstate commerce in violation of said Order; and that the defendant Edwards Fruit Company, Inc., “is the successor to and alter ego of the said Hugh David Edwards”. (Placing the Edwards Fruit Company in this classification is on the assumption that it is properly alleged that this defendant is the alter ego of Hugh David Edwards doing business under the firm name and style of the Edwards Fruit Company. It is unnecessary to decide this question in this case, but see our opinion in Edwards v. United States, 9 Cir., Nov. 19, 1941, 123 F.2d 465.
2. Defendants who, it is alleged, had been enjoined from violation of the order subsequent to August 22, 1940, but prior to the filing of the complaint in the instant action: Orange Belt Fruit Distributors, Inc.; California Fruit Distributors; United Citrus Growers, Inc.; Pioneer Citrus Distributors; Associated Anaheim Growers, Inc.; Green and Gold Groves, Inc.; and Frank Belmont.
3. Defendants who have not been enjoined from violation of the order, but who, it is alleged, are violating the terms of the order. The defendants falling within this group are: Shippers Sales Corporation and Lloyd A. Evans, Ernest M. Evans and Roy E. Evans, copartners doing business as Evans Bros. Packing Co. It should be noted in passing that the allegation of violation by all of these defendants is that they are in violation of the order “in that they have failed and refused to report the shipments of oranges in interstate commerce made by them, and each of them, since said date”. This allegation will be discussed later.
4. Defendants as to whom there is no allegation as to restraint or violation. They are: E. T. Wall; Amalgamated Citrus Growers Association; and Sydney Yates, R. P. Allen, W. H. Anderson, Dan Henry, Melvin Bordeaux, Oliver Baker, Jerome Wallace, Coalson C. Morris, H. O. Michel, and John B. LaMar, individually and as members of the Advisory Committee of Amalgamated Citrus Growers Association. It should be noted here that only E. T. Wall is alleged to be a shipper of oranges, the allegation as to the other defendants in this group being that they are growers of oranges. The order involved in this action is made applicable to shippers, and not growers.
Then follows the allegation in the complaint that the defendants have conspired, confederated and agreed among and with themselves to defeat said Order No. 2, by filing, on August 22, 1940, in the Superior Court of the State of California in and for the County of Los Angeles an action wherein they sought to enjoin the members of the committees charged with the administration of the order from enforcing the same, and wherein they also sought to have said State Court declare said Order to be invalid. It is alleged that the State Court on August 29, 1940, issued a temporary restraining order as prayed for by the defendants in the State Action (defendants here) ; that said restraining order invades the jurisdiction of the United States District Court in that it seeks to nullify and void the judgments of said District Court previously rendered, and to render said District Court powerless to enforce its decrees in the pending cases above referred to. Irreparable injury is alleged, and the complaint concludes with a prayer for a temporary restraining order, a preliminary injunction, and a permanent injunction, restraining all of the defendants from taking or applying for any further proceedings of any kind or nature whatsoever in said State Court case, and restraining the defendants E. T. Wall, Evans Bros. Packing Co., Shippers Sales Corporation, Amalgamated Citrus Growers Association, and the defendants named as members of the Advisory Committee of the Amalgamated Citrus Growers Association, from violation of the Order. (These defendants are the only defendants against whom injunctions are not already outstanding, according to the allegations of the complaint above recited.)
The District Court issued a temporary restraining order, and order to show cause why a preliminary injunction should not issue as prayed for. The defendants filed a motion to dismiss the complaint and a motion to dissolve the temporary restraining order. These motions were denied, and the District Court made its Decree for Temporary Injunction, and the Writ of Injunction issued.
This appeal is from the order denying the motion to dismiss, and granting an injunction pendente lite, and from the decree for injunction and the writ of injunction.
For convenience we shall refer to the appellants (shippers and growers of oranges) as defendants, and to the appellee United States of America, as the Government, or as plaintiff.
Insofar as the appeal is from the order denying the defendants’ motion to dismiss, the appeal should be dismissed. Such an order is not appealable. Ballard v. Mutual Life Insurance Co. of New York, 5 Cir., 1940, 109 F.2d 388.
As stated, there are here involved two injunctions, decreed against various defendants. One restrains all of the defendants from “taking or applying for any further proceedings of any kind or nature whatsoever” in the State Action above referred to; and the other restrains violation of the Order by the defendants E. T. Wall, Lloyd A. Evans, Ernest M. Evans, and Roy E. Evans, co-partners doing business as Evans Bros. Packing Co., Shippers Sales Corporation, Amalgamated Citrus Growers Association, an unincorporated association, Sydney Yates, R. P. Allen, W. H. Anderson, Dan Henry, Melvin Bordeaux, Oliver Baker, Jerome Wallace, Coalson C. Morris, H. O. Michel, and John B. La Mar, individually and as members of the Advisory Committee of Amalgamated Citrus Growers Association. We shall treat these two injunctions separately.
The Injunction Restraining Violation of the Order
We find in the complaint no allegation whatsoever that the defendants E. T. Wall; Amalgamated Citrus Growers Association; and R. P. Allen, W. H. Anderson, Dan Henry, Melvin Bordeaux, Oliver Baker, Jerome Wallace, Coalson C. Morris, H. O. Michel, and John B. LaMar, the members of the Advisory Committee of the Amalgamated Citrus Growers Association, have violated the Order. As to all of these defendants — -(with the exception of the defendant Wall) it appears affirmatively by the complaint that they are growers of oranges but it does not appear that they are shippers of oranges and it must be kept in mind that the Order relates exclusively to shippers.
In our opinion the allegation that the defendants have “conspired, confederated, and agreed among and with themselves to defeat the said order, and in pursuance of such plan and conspiracy have heretofore, * * * filed a complaint herein in the Superior Court of the State of California, in and for the County of Los Angeles” in which action they sought to have the Order declared to be invalid, cannot be said to be the equivalent of an allegation that these defendants have violated or threatened violation of the Order.
The order itself has in it no prohibition against suits to determine its legality. Here, as we later hold, we find no more than an erroneous choice of a forum. The allegation that these parties seek an adjudication of the legality of the order is inconsistent with an existing intent to violate it. We can see no difference by way of threat between their suit in the state court to establish the invalidity of the Secretary’s order and a defense by them, in a suit brought to procure an injunction against them, that the order was invalid. Certainly such a defense would not be regarded as a threat to disobey the order.
As to the allegation of violation by the remaining defendants enjoined, it should be noted that they are charged with violation “in that they have failed and refused to report the shipments of oranges in interstate commerce made by them” since a specified date. But there is nothing in the Order requiring a report to be made of shipments of oranges in interstate commerce, aside from the following provisions: Sec. 3(6). “Any shipper shipping a quantity of fruit in excess of the allotment fixed for him by the Secretary and the quantity represented by exchanges or transfers of allotments shall report such overshipment to the Growers Advisory Committee within twenty-four (24) hours from the date thereof.”
There is a further provision requiring a report to be made in the event of an exchange of an allotment with another shipper.
Nowhere in the complaint appears any allegation to the effect that these remaining defendants shipped any oranges in interstate commerce at all, nor ’that there had been fixed an allotment for them, nor that they were required to make any reports whatsoever. It seems apparent that the attempting allegation of violation by these parties is insufficient. There is no allegation of a threatened violation, and in the circumstances the injunction against them was improper. It is an abuse of discretion to decree such an injunction without any warrant therefor in the pleadings or proof, Behre v. Anchor Insurance Co., 2 Cir., 1924, 297 F. 986. Such an abuse of discretion is more than harmless error since, if a future claim of violation be made, it subjects the enjoined parties to a contempt charge in this case in which they should not be parties, instead of a proceeding de novo in which they may meet charges properly alleged.
Injunction against Prosecution of State Action
This injunction relates to all of the defendants, who, as we pointed out above, may be divided into four groups. The first of these groups is made up of defendants who had been restrained by the District Court from violation of the Order, prior to the institution of the State Court action. The second group is made up of defendants who, at the time of filing the complaint in the instant action, but subsequent to filing of the State Court action, had been restrained from violating the Order. Th,e third and fourth groups are not alleged to have been restrained by the District Court.
It is urged by the defendants that this injunction is violative of Section 265 of the Judicial Code, 28 U.S.C.A. § 379, which provides: “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.”
But, as stated by the Supreme Court in Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 81, 67 L.Ed. 226, 24 A.L.R. 1077: “But this section [Sec. 265] is to be construed in connection with section 262 [28 U.S.C.A. § 377] * * * which authorizes the United States courts ‘to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law.’ * * * It is settled that where a federal court has first acquired jurisdiction of the' subject-matter of a cause, it may enjoin the parties from proceeding in a state court of concurrent jurisdiction where the effect of the action would be to defeat or impair the jurisdiction of the federal court”.
This is direct authority for holding that so far as the defendants falling within group one (those who had been enjoined from violation prior to the institution of the State Court proceedings) are concerned, there was no error in the District Court issuing its injunction to protect its jurisdiction already acquired.
The defendants urge, however, that it was error for the District Court to enjoin the prosecution of the State Court action by the remaining defendants, those who were not under a Federal Court restraining order at the time of the institution of the State Court proceedings, and particularly those who, so far as the pleadings disclose, have never been restrained by the Federal Court. The argument is that the subject matter is within the concurrent jurisdiction of the State and Federal Courts, and that the court first acquiring jurisdiction may hold it to the exclusion of the other. The premise that the subject matter is within the concurrent jurisdiction of the State and Federal Courts is built upon the principles announced in such cases as Claflin v. Houseman, 93 U.S. 130, 136, 137, 23 L.Ed. 833, to the effect that: “If an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if riot provided otherwise by some act of Congress, by a proper action in a State court”.
It is true that legal or equitable rights acquired under the laws of the United States may be prosecuted in either the United States Courts or the State courts, subject to the qualification that Congress may, if it sees fit, give to the Federal courts exclusive jurisdiction. However on the other hand, we have the principles announced in Galveston, Harrisburg and San Antonio Railway Company v. Wallace, 223 U.S. 481, 490, 32 S.Ct. 205, 206, 56 L.Ed. 516:
“The real question, therefore, presented by this assignment of error, 'is whether a state court may enforce a right of action arising under an act of Congress.
“Statutes have no extraterritorial operation, and the courts of one government cannot enforce the penal laws of another. At one time there was some question both as to the duty and power to try civil cases arising solely under the statutes of another state. But it is now recognized that the jurisdiction of state courts extends to the hearing and determination of any civil and transitory cause of action created by a foreign statute, provided it is not of a character opposed to the public policy of the state in which the suit is brought. Where the statute creating the right provides an exclusive remedy, to be enforced in a particular way, or before a special tribunal, the aggrieved party will be left to the remedy given by the statute which created the right. But jurisdiction is not defeated by implication. And, considering the relation between the Federal and state government, there is no presumption that Congress intended to prevent state courts from exercising the general jurisdiction already possessed by them, and under which they had the power to hear and determine causes of action created by Federal statute. * * *
“On the contrary, the absence of such provision would be construed as recognizing that where the cause of action was not penal, but civil and transitory, it was to be subject to the principles governing that class of cases, and might be asserted in a state court as well as in those of the United States”. (Emphasis supplied.)
The Agricultural Adjustment Act, in our opinion, is penal in nature, and therefore exclusive jurisdiction is in the Federal Courts to enforce it or to prevent its violation.
Since the Federal Courts have this exclusive jurisdiction, there was no error in the District Court enjoining the prosecution of the attempted State action, under the principles announced in Wells Fargo & Co. v. Taylor, 254 U.S. 175, 183, 41 S.Ct. 93, 96, 65 L.Ed. 205: “The provision [Sec. 265 of the Judicial Code] has been in force more than a century and often has been considered by this court. As the decisions show, it is intended to give effect to a familiar rule of comity and like that rule is limited in its field of operation. Within that field it tends to prevent unseemly interference with the orderly disposal of litigation in the state courts and is salutary; but to carry it beyond that field would materially hamper the federal courts in the discharge of duties otherwise plainly cast upon them by the Constitution and the laws of Congress, which of course is not contemplated. As with many other statutory provisions, this one is designed to be in accord with, and not antagonistic to, our dual system of courts. In recognition of this it has come to be settled by repeated decisions and in actual practice that, where the elements of federal and equity jurisdiction are present, the provision does not prevent the federal courts from enjoining the institution in the state courts of proceedings to enforce local statutes which are repugnant to the Constitution of the United States * * * or to prevent them from maintaining and protecting their own jurisdiction, properly acquired and still subsisting, by enjoining attempts to frustrate, defeat or impair it through proceedings in the state courts, * * (Emphasis supplied.)
The portion of the decree of the District Court enjoining the prosecution of the State Court proceedings, is affirmed. The portion of the District Court’s decree enjoining the violation of the Order is reversed,
7 U.S.C.A. Sec. 608a (6) provides:
“The several district courts of the United States are hereby vested with jurisdiction specifically to enforce, and to prevent and restrain any person from violating any order, regulation, or agreement, heretofore or hereafter made or issued pursuant to this title [chapter], in any proceeding now pending or hereafter brought in said courts”.
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_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Anibal SOBERAL-PEREZ, on behalf of himself and all others similarly situated, Plaintiff-Appellant, Benito Cortez, Intervenor-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
No. 1243, Docket 82-6340.
United States Court of Appeals, Second Circuit.
Argued April 27, 1983.
Decided Aug. 30, 1983.
Arthur J. Fried, New York City (Kalman Finkel, Attorney-in-Charge, The Legal Aid Society, Civil Division, New York City, Joan Mangones, Attorney-in-Charge, Staten Island Neighborhood Office, Staten Island, N.Y., Kathleen A. Masters, New York City, of counsel), for plaintiff-appellant and in-tervenor-appellant.
Robert L. Begleiter, New York City, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for defendant-appellee.
Jack John Olivero, New York City (Puer-to Rican Legal Defense & Education Fund, Inc., New York City, Robert L. Becker, New York City, of counsel), for amicus curiae.
Before LUMBARD, NEWMAN and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
We are faced on this appeal with the question of whether the defendant Secretary’s failure to provide written notices and oral instructions, information, and advice in the Spanish language violates the statutory protection against discrimination found in § 601 et seq. of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., or plaintiffs’ constitutional rights to due process and equal protection of the law. Plaintiffs and plaintiff-intervenors, (hereinafter “plaintiffs”) are Hispanics with limited abilities in the English language. Their initial claims for social security and/or supplemental security income (hereinafter “social security”) benefits were denied allegedly because of the Secretary’s failure to provide notices and oral instructions in Spanish. The district court found that plaintiffs had failed to state either a statutory or constitutional claim and granted the Secretary’s motion to dismiss the complaint. Soberal-Perez v. Schweiker, 549 F.Supp. 1164 (E.D.N.Y.1982). We affirm.
Each plaintiff’s dominant language is Spanish, and each has at most a limited ability to speak and understand English. Plaintiffs Soberal-Perez, Cortez, and Car-ballo each applied for disability benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-431 (1976 & Supp. V 1981), or supplemental security income benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c (1976 & Supp. V 1981), or both. All received notices of denial of their claims in English, and, allegedly because of their inability to understand these notices and the oral instructions given at the social security office, all waived a right to a hearing or failed to file timely appeals.
Plaintiff De La Cruz, a recipient of benefits under Title XVI, was advised by social security personnel to return to work for a sufficient number of quarters to qualify for retirement benefits, but after he had done so was informed that his earnings had not been properly included in the computation of his benefits and that the overpayment would be recovered from future checks. He requested a waiver on the ground that he did not understand the reporting requirements but, after a hearing at which plaintiff was represented by counsel and a translator was present, this request was denied.
After commencement of this lawsuit, all claims but that of De La Cruz were remanded to the Secretary for full evidentia-ry hearings. Plaintiffs Cortez and Carballo have been awarded benefits. Soberal-Perez lost on the merits and, when the district court affirmed in a separate decision, he did not appeal.
Plaintiffs allege that the Secretary’s failure to print notices and forms in Spanish and to provide oral instructions in Spanish at the social security office violated their due process and equal protection rights as well as their rights under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. They seek a judgment declaring that the Secretary’s actions violate their constitutional and statutory rights and an injunction requiring the Secretary to provide documents and oral services in the Spanish language to persons in plaintiffs’ position. An examination of plaintiffs’ claims convinces us that the district court was correct in dismissing the complaint.
Title VI Claims.
Section 601 of Title YI of the Civil Rights Act of 1964 provides:
No person in the United States shall, on the ground of race, color, or national origin, be' excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d (1976). Plaintiffs challenge the district court’s conclusion that Title VI does not apply to direct benefit programs such as Titles II and XVI of the Social Security Act. The district court read the language of Title VI, 42 U.S.C. § 2000d-1 (1976), which empowers federal agencies to cut off funds for noncompliance with the statute, as well as the legislative history of the 1964 Civil Rights Act, to support the view that Title VI does not apply to the social security programs at issue here because they are directly administered by the federal government rather than through a state or local intermediary. Plaintiffs argue that the legislative history and the case law recognizing a private right of action under Title VI, see Cannon v. University of Chicago, 441 U.S. 677, 696 and n. 21, 99 S.Ct. 1946, 1957 and n. 21, 60 L.Ed.2d 560 (1980) (citing cases), mandate a contrary result.
As the district court noted, the language of § 601 does not definitively exclude programs receiving direct funding through federal legislation since, strictly speaking, they are “programas] or activities] receiving Federal financial assistance.” However, § 602 of Title VI, 42 U.S.C. § 2000d-1, which was hotly debated prior to its passage, grants a rulemaking power to “[e]ach Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract”. 42 U.S.C. § 2000d-l. Compliance with any requirement issued pursuant to this rulemaking authorization “may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient * * * or (2) by any other means authorized by law”. Id. This compliance mechanism does not reach programs under Titles II and XVI of the Social Security Act because they do not receive financial assistance through “grant, loan, or contract”. As viewed by the district court, if Congress had intended Title VI to apply to direct benefit programs, it would have developed a method to enforce compliance applicable to those programs. Soberal-Perez v. Schweiker, 549 F.Supp. at 1172.
While we agree with the district court that the language of § 602 gives some indication that Congress did not intend direct benefit programs to fall within the ambit of Title VI, we find further support for this conclusion in the regulations promulgated by the Secretary and the legislative history of the statute. In addition, although we have found only one case directly on point, Bob Jones University v. Johnson, 396 F.Supp. 597 (D.S.C.1974) (cash payments made directly by federal government not covered by Title VI), aff’d mem., 529 F.2d 514 (4th Cir.1975), the conclusion we draw from the case law interpreting Title VI is that the statute was meant to cover only those situations where federal funding is given to a non-federal entity which, in turn, provides financial assistance to the ultimate beneficiary.
Section 602 provides that any “recipient” found in noncompliance with Title VI may be subject to a termination of funds to the program or activity receiving federal financial assistance. The regulations promulgated by the Secretary under Title VI define a “recipient” as
any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, for any program, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary under any such program.
45 C.F.R. § 80.13(i) (1982). This definition does not include federal agencies which directly administer programs such as Titles II and XVI of the Social Security Act. Thus, the Secretary’s own interpretation of the statute excludes federal agencies from the scope of her enforcement powers. While we do not consider the Secretary’s interpretation the last word on the subject, the fact that, in promulgating regulations to facilitate compliance with Title VI, the Secretary, as well as the heads of other administrative agencies, see, e.g., 24 C.F.R. § 1.2(f) (1982) (Department of Housing and Urban Development); 28 C.F.R. § 42.102(f) (1982) (Department of Justice), has excluded direct benefit programs from the definition of those whose funds may be cut off for noncompliance with Title VI, is entitled to some consideration. See NLRB v. Bell Aerospace, 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974); Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415 (1972); United States v. Bergh, 352 U.S. 40, 46-47, 77 S.Ct. 106, 109-10, 1 L.Ed.2d 102 (1956).
We need not rest our conclusion that Title VI is not applicable to direct benefit programs on the language of the statute and the Secretary’s interpretation alone. The lengthy congressional debates prior to the passage of the Civil Rights Act of 1964 strongly indicate that, in enacting Title VI, Congress was in part addressing its concern that federal moneys not be used to finance racially segregated state, local, and private programs. See Cannon v. University of Chicago, 441 U.S. at 704, 99 S.Ct. at 1961; Regents of the University of California v. Bakke, 438 U.S. 265, 285 and n. 19, 98 S.Ct. 2733, 2745 and n. 19, 57 L.Ed.2d 750 (1978).
The Congressional Record is replete with statements by representatives and senators indicating that the legislation was intended to cover situations where the federal government extends assistance to a state or local program or activity which in turn distributes it to beneficiaries of the program. For example, Senator Kuchel, speaking in support of Title VI, said, “No recipient is required to accept Federal aid. If a State or municipality or other local government agency does so, it does so voluntarily. It ought not to receive it if it is dedicated to use it in an unconstitutional manner.” 110 Cong.Rec. 6562 (1964). Emphasis in Congress was placed on the fact that the proposed legislation applied to programs involving financial assistance by “grant, loan, or contract.” Kg., id. at 6543 (remarks of Senator Humphrey); id. at 6561 (remarks of Senator Kuchel); id. at 2464 (remarks of Congressman Poff). And Senator Keating, defending the proposed legislation against its very vocal opponents, stated that “[g]en-erally, a recipient will be a State or political subdivision” but that the statute “could [also] involve Federal assistance to private organizations.” Id. at 9111. The overall impression we draw from these statements is that congress intended Title VI to apply to programs or activities involving three parties: a federal agency, a state or local intermediary administering the program, and an ultimate beneficiary.
Furthermore, some statements made during the congressional debates on Title VI appear to exclude expressly direct benefit programs such as Titles II and XVI of the Social Security Act from Title VI coverage. Senator Humphrey’s statement that “title VI will have no practical effect on [social security] programs” in part because the federal government cannot engage in racial discrimination, id. at 6544-45, supports the argument that proponents of the legislation apparently believed that the Constitution and the Social Security Act itself provided sufficient protection against discrimination in direct benefit programs. See Soberal-Perez v. Schweiker, 549 F.Supp. at 1172.
In response to charges that a person’s social security benefits might be terminated if he or she engaged in discrimination, Senator Ribicoff stated:
The bill has to do with Federal assistance. Social security is a direct-payment program. It is a direct payment received by the individual. The individual who receives a direct payment has a right. It has nothing to do with Federal assistance. It is not Federal assistance to an individual, but a direct payment. Direct payments are not covered in any way by Title VI.
110 Cong.Rec. 8424 (1964) (emphasis supplied). Later in the same debate, Senator Ribicoff continued this theme:
[Ejvery proponent of the measure who has stood on the floor of the Senate has time and time again said that social security payments would not be covered by the measure. That is the legislative history which has been made on the bill.
Id. at 8426. And shortly thereafter, he said
Since the social security payment to an individual is not a part of a program or activity covered by title VI in the first place, it need not be specifically exempted. Id.
Senator Keating also indicated that Title VI had no applicability to direct benefit programs: “Only where an intervening State or local governmental agency exists could the misapplication of assistance even potentially occur.” Id. at 9113.
Finally, Deputy Attorney General Kat-zenbach of the Justice Department, in response to a request from Congressman Cel-ler for a list of programs and activities within the scope of Title VI, stated:
[D]isability benefits under title II of the Social Security Act might be considered to involve financial assistance by way of grant. But to the extent that there is financial assistance in either type of program, the assistance is to an individual and not to a “program or activity” as required by title VI. In any event, title VI would not substantially affect such benefits, since these payments are presently made on a nondiscriminatory basis, and since discrimination in connection with them is precluded by the fifth amendment to the Constitution * * *. Accordingly, such programs are omitted from the list [of programs covered by Title VI].
109 Cong.Rec. 13380 (1963).
We are aware that many of these statements were made in response to charges by the bill’s opponents that individual recipients of direct federal benefits might have their payments terminated if they were found to discriminate in some way. Nevertheless, the clear import of the congressional debates is that Congress did not intend the direct benefit programs of social security to be within the scope of Title VI. It was not thought to be necessary because the fifth amendment and the Social Security Act itself prohibited discrimination in the payment of benefits.
Finally, the analysis employed in cases addressing other issues under Title VI also lends support to the conclusion that direct benefit programs are not covered. In Regents of the University of California v. Bakke, supra, Justice Brennan stated that the legislative history of Title VI “reveals one fixed purpose: to give the Executive Branch of Government clear authority to terminate federal funding of private programs that use race as a means of disadvantaging minorities in a manner that would be prohibited by the Constitution if engaged in by government.” 438 U.S. at 329, 98 S.Ct. at 2768. (Brennan, J., concurring in part and dissenting in part). And Justice Marshall’s dissent in Guardians Association v. Civil Service Commission of the City of New York, — U.S. —, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), reinforces the conclusion that Title VI covers programs or activities involving indirect payments to beneficiaries:
In exchange for federal moneys, recipients have promised not to discriminate. Because Title VI is intended to ensure that “no person” is subject to discrimination in federally assisted programs, private parties function as third-party beneficiaries to these contracts.
Id. at —, 103 S.Ct. at 3248. See Lau v. Nichols, 414 U.S. 563, 571 n. 2, 94 S.Ct. 786, 790 n. 2, 39 L.Ed.2d 1 (1974) (Stewart, J., concurring). This emphasis upon the contractual nature of the receipt of federal moneys in exchange for a promise not to discriminate is still another reason to conclude that Title VI does not cover direct benefit programs since these programs do not entail any such contractual relationship.
Our conclusion, based on our examination of the statute itself, its legislative history, and the inferences which can be drawn from the case law, is that Title VI was not intended to apply to Titles II and XVI of the Social Security Act. Accordingly, the district court was correct in dismissing plaintiff’s statutory claims, and we need not reach the apparently still unsettled question of whether Title VI requires a showing of intentional discrimination. Compare Guardians Association v. Civil Service Commission of the City of New York, —U.S. —, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), and Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), with Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Nor need we consider the proposition, supported by at least four members of the Court, that non-discrimination regulations promulgated under Title VI may be found violated upon a showing only of disparate impact, Guardians Association, supra, —U.S. at — n. 2, 103 S.Ct. at 3223 n. 2 (White, J., announcing judgment of the Court); id. at —, 103 S.Ct. at 3249-3251 (Stevens, J. with whom Brennan and Blackmun, JJ., join, dissenting), since the regulations on which plaintiffs rely, 45 C.F.R. Part 80 (1982), like Title VI itself, do not apply to direct benefit programs, id. §§ 80.1, .2, .13(f), (g), and (i).
Equal Protection Claims.
Plaintiffs’ first constitutional claim is that the Secretary’s failure to provide forms and services in Spanish discriminates against Hispanics on the basis of national origin and thus violates their right to equal protection of the law incorporated into the fifth amendment by the due process clause, see Hampton v. Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 1903-04, 48 L.Ed.2d 495 (1976); Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694-95, 98 L.Ed. 884 (1954). The district court dismissed this claim for failure to allege a violation of equal protection principles. We agree.
Where governmental action disadvantages a suspect class or burdens a fundamental right, the conduct must be strictly scrutinized and will be upheld only if the government can establish a compelling justification for the action. See, e.g., Regents of the University of California v. Bakke, 438 U.S. at 299-300, 98 S.Ct. at 2752-2753; San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). Where a suspect class or a fundamental right is not implicated, the challenged action need only be rationally related to a legitimate governmental purpose. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). While entitlement to social security benefits is not a fundamental right, Weinberger v. Salfi, 422 U.S. 749, 771-72, 95 S.Ct. 2457, 2469-70, 45 L.Ed.2d 522 (1975), Hispanics as an ethnic group do constitute a suspect class for the purpose of equal protection analysis, Keyes v. School District No. 1, 413 U.S. 189, 197, 93 S.Ct. 2686, 2691-92, 37 L.Ed.2d 548 (1973); Hernandez v. Texas, 347 U.S. 475, 477-79, 74 S.Ct. 667, 669-71, 98 L.Ed. 866 (1954). Nevertheless, the conduct at issue here, the Secretary’s failure to provide forms and services in the Spanish language, does not on its face make any classification with respect to Hispanics as an ethnic group. A classification is implicitly made, but it is on the basis of language, i.e., English-speaking versus non-English-speaking individuals, and not on the basis of race, religion or national origin. Language, by itself, does not identify members of a suspect class. Frontera v. Sindell, 522 F.2d 1215, 1219-20 (6th Cir.1975); Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir.1973).
Plaintiffs’ claim is that the Secretary’s conduct, although neutral on its face, nevertheless discriminates against Hispanics who are unable to speak or understand English. It is true that facially neutral conduct can constitute discrimination in violation of the Equal Protection Clause; however, such a claim requires that a plaintiff show an intent to discriminate against the suspect class. Arlington Heights v. Metropolitan Homing Corp., 429 U.S. 252, 265-70, 97 S.Ct. 555, 563-66, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 240-42, 96 S.Ct. 2040, 2047-49, 48 L.Ed.2d 597 (1976); see Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Plaintiffs have not alleged the requisite intent. The complaint states that the Secretary’s failure to provide Spanish language services reflects a preference for English-speaking people over Hispanics. However, as we noted above, the Secretary’s action reflects, at most, a preference for English over all other languages.
Plaintiffs argue that intent to discriminate against Hispanics may be inferred because “the natural, probable and foreseeable result” of the Secretary’s action is a disproportionate impact upon . Hispanics. “ ‘Discriminatory purpose’, however, implies more than intent as volition or intent as awareness of consequences.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. at 279, 99 S.Ct. at 2296. To establish intentional discrimination, a plaintiff must show that “the decisionmaker * * * selected or reaffirmed a particular course of action at least in part ‘because of’ not merely ‘in spite of’ its adverse effects upon an identifiable group.” Id. (footnote omitted). While it is true, as plaintiffs argue, that the fact that a particular action has a foreseeable adverse impact may be relevant evidence in proving an equal protection claim, Dayton Board of Education v. Brinkman, 443 U.S. 526, 536 n. 9, 99 S.Ct. 2971, 2978 n. 9, 61 L.Ed.2d 720 (1979); Lora v. Board of Education of the City of New York, 623 F.2d 248, 250 (2d Cir.1980), standing alone that fact is insufficient to establish discriminatory intent, id. And plaintiffs have failed to show either in their complaint or their memorandum or at oral argument that they can allege in good faith, much less prove, any other evidence of discriminatory intent.
This is a case where “the legitimate non-invidious purposes of a law cannot be missed.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. at 275, 99 S.Ct. at 2294. It is not difficult for us to understand why the Secretary decided that forms should be printed and oral instructions given in the English language: English is the national language of the United States.
Ironically, plaintiffs’ argument that the use of Spanish is mandated only because of the size of our nation’s non-English-speaking Hispanic population, in itself suggests a violation of equal protection principles. A suspect class does not merit constitutional protection against discrimination merely because it has reached “major” proportions. A decision to provide Spanish language services as well as English would merely shift the alleged discrimination to all other non-English-speaking groups. See Frontera v. Sindell, 522 F.2d at 1219.
Since we have determined that the Secretary’s action does not discriminate against Hispanics as a group, our inquiry must focus on whether the action bears a rational relationship to a legitimate governmental purpose. See, e.g., Clements v. Fashing, 457 U.S. 957, 968, 102 S.Ct. 2836, 2846, 73 L.Ed.2d 508 (1982); Massachusetts Board of Retirement v. Murgia, 427 U.S. at 314, 96 S.Ct. at 2567. We need only glance at the role of English in our national affairs to conclude that the Secretary’s actions are not irrational. Congress conducts its affairs in English, the executive and judicial branches of government do likewise. In addition, those who wish to become naturalized United States citizens must learn to read English. 8 U.S.C. § 1423 (1976 & Supp. II 1978). (Because they were born in Puerto Rico, plaintiffs Soberal-Perez, Cortez, and Carballo are citizens of the United States, 8 U.S.C. § 1402 (1976), and need not establish any fluency in English, Arroyo v. Tucker, 372 F.Supp. 764, 766 (E.D.Pa.1974)). Given these factors, it is not irrational for the Secretary to choose English as the one language in which to conduct her official affairs. See Frontera v. Sindell, 522 F.2d at 1219; Carmona v. Sheffield, 325 F.Supp. 1341, 1342 (N.D.Cal.1971), aff’d, 475 F.2d 738 (9th Cir.1973).
Due Process Claims.
Plaintiffs’ final claim is that they were denied the adequate notice and meaningful opportunity to be heard guaranteed by the due process clause. Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976); Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 1190-91, 14 L.Ed.2d 62 (1965). Because plaintiffs did not specifically argue this claim before the district court, the district judge concluded that it had been abandoned; nevertheless, he considered the claim on its merits Soberal-Perez v. Schweiker, 549 F.Supp. at 1166 n. 2, and so shall we.
Plaintiffs’ interest in the receipt of social security benefits is protected by the due process clause of the fifth amendment. Mathews v. Eldridge, 424 U.S. at 332, 96 S.Ct. at 901. The question before us is what process is due. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). While the fundamental tenets of due process require adequate notice to ensure that all parties have a meaningful opportunity to be heard, Armstrong v. Manzo, 380 U.S. at 552, 85 S.Ct. at 1191, due process “is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 17, 43, 1748-49, 6 L.Ed.2d 1230 (1961). Rather, it calls for procedures fitted to the circumstances of particular situations. Goss v. Lopez, 419 U.S. 565, 578, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975); Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600. The basic standard to be applied is one of reasonableness. “The notice must be of such nature as reasonably to convey the required information * * * and it must afford a reasonable time for those interested to make their appearance”. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).
Plaintiffs argue that notice in English to those with limited English abilities is a “mere gesture [which] is not due process,” id. at 315, 70 S.Ct. at 657. We do not agree. Notice in the English language to social security claimants residing in the United States is “reasonably calculated” to apprise individuals of the proceedings.
In considering a similar claim, the Supreme Judicial Court of Massachusetts noted that “ ‘[n]otice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop.’” Commonwealth v. Olivo, 369 Mass. 62, 69, 337 N.E.2d 904, 909 (1975) (quoting Essex National Bank v. Hurley, 16 F.2d 427, 428 (1st Cir.1926)). At issue in Olivo were official notices to vacate unsafe housing written in English and personally served on Spanish-speaking individuals who could not understand English. Id. 369 Mass. at 69, 337 N.E.2d at 906. Finding
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
sc_jurisdiction
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
HUNTER et al. v. UNDERWOOD et al.
No. 84-76.
Argued February 26, 1985
Decided April 16, 1985
Rehnquist, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case.
James S. Ward, Special Assistant Attorney of Alabama, argued the cause and filed a brief for appellants.
Edward Still argued the cause for appellees. With him on the brief were Neil Bradley, Laughlin McDonald, and Christopher Coates.
Briefs of amici curiae urging affirmance were filed for the National Association for the Advancement of Colored People et al. by Samuel Rabinove and Richard T. Foltin; and for NAACP Legal Defense and Educational Fund, Inc. by Julius Chambers and Lani Guinier.
Justice Rehnquist
delivered the opinion of the Court.
We are required in this case to decide the constitutionality of Art. VIII, §182, of the Alabama Constitution of 1901, which provides for. the disenfranchisement of persons convicted of, among other offenses, “any crime . . . involving moral turpitude.” Appellees Carmen Edwards, a black, and Victor Underwood, a white, have been blocked from the voter rolls pursuant to § 182 by the Boards of Registrars for Montgomery and Jefferson Counties, respectively, because they each have been convicted of presenting a worthless check. In determining that the misdemeanor of presenting a worthless check is a crime involving moral turpitude, the Registrars relied on opinions of the Alabama Attorney General.
Edwards and Underwood sued the Montgomery and Jefferson Boards of Registrars under 42 U. S. C. §§ 1981 and 1983 for a declaration invalidating § 182 as applied to persons convicted of crimes not punishable by imprisonment in the state penitentiary (misdemeanors) and an injunction against its future application to such persons. After extensive proceedings not relevant here, the District Court certified a plaintiff class of persons who have been purged from the voting rolls or barred from registering to vote in Alabama solely because of a misdemeanor conviction and a defendant class of all members of the 67 Alabama County Boards of Registrars. The case proceeded to trial on two causes of action, including a claim that the misdemeanors encompassed within § 182 were intentionally adopted to disenfranchise blacks on account of their race and that their inclusion in § 182 has had the intended effect. For the purposes of this claim, the District Court treated appellee Edwards as the representative of a subclass of black members of the plaintiff class.
In a memorandum opinion, the District Court found that disenfranchisement of blacks was a major purpose for the convention at which the Alabama Constitution of 1901 was adopted, but that there had not been a showing that “the provisions disenfranchising those convicted of crimes [were] based upon the racism present at the constitutional convention.” The court also reasoned that under this Court’s decision in Palmer v. Thompson, 403 U. S. 217 (1971), proof of an impermissible motive for the provision would not warrant its invalidation in face of the permissible motive of “governing exercise of the franchise by those convicted of crimes,” which the court apparently found evident on the face of § 182. App. E to Juris. Statement E-5 — E-7.
On appeal, the Court of Appeals for the Eleventh Circuit reversed. 730 F. 2d 614 (1984). It held that the proper approach to the Fourteenth Amendment discrimination claim was established in Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 270, and n. 21 (1977), and Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274, 287 (1977):
“To establish a violation of the fourteenth amendment in the face of mixed motives, plaintiffs must prove by a preponderance of the evidence that racial discrimination was a substantial or motivating factor in the adoption of section 182. They shall then prevail unless the registrars prove by a preponderance of the evidence that the same decision would have resulted had the impermissible purpose not been considered.” 730 F. 2d, at 617.
Following this approach, the court first determined that the District Court’s finding of a lack of discriminatory intent in the adoption of §182 was clearly erroneous. After thoroughly reviewing the evidence, the court found that discriminatory intent was a motivating factor. It next determined from the evidence that there could be no finding that there was a competing permissible intent for the enactment of § 182. Accordingly, it concluded that § 182 would not have been enacted in absence of the racially discriminatory motivation, and it held that the section as applied to misdemeanants violated the Fourteenth Amendment, it directed the District Court to issue an injunction ordering appellants to register on the voter rolls members of the plaintiff class who so request and who otherwise qualify. We noted probable jurisdiction, 469 U. S. 878 (1984), and we affirm.
The predecessor to § 182 was Art. VIII, § 3, of the Alabama Constitution of 1875, which denied persons “convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery, or other crime punishable by imprisonment in the penitentiary” the right to register, vote or hold public office. These offenses were largely, if not entirely, felonies. The drafters of § 182, which was adopted by the 1901 convention, expanded the list of enumerated crimes substantially to include the following:
“treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, [and] crime against nature.”
The drafters retained the general felony provision — “any crime punishable by imprisonment in the penitentiary” — but also added a new catchall provision covering “any . . . crime involving moral turpitude.” This latter phrase is not defined, but it was subsequently interpreted by the Alabama Supreme Court to mean an act that is “‘immoral in itself, regardless of the fact whether it is punishable by law. The doing of the act itself, and not its prohibition by statute fixes, the moral turpitude.’” Pippin v. State, 197 Ala. 613, 616, 73 So. 340, 342 (1916) (quoting Fort v. Brinkley, 87 Ark. 400, 112 S. W. 1084 (1908)).
The enumerated crimes contain within them many misdemeanors. If a specific crime does not fall within one of the enumerated offenses, the Alabama Boards of Registrars consult Alabama case law or, in absence of a court precedent, opinions of the Alabama Attorney General to determine whether it is covered by § 182. 730 F. 2d, at 616, n. 2. Various minor nonfelony offenses such as presenting a worthless check and petty larceny fall within the sweep of § 182, while more serious nonfelony offenses such as second-degree manslaughter, assault on a police officer, mailing pornography, and aiding the escape of a misdemeanant do not because they are neither enumerated in § 182 nor considered crimes involving moral turpitude. Id., at 620, n. 13. It is alleged, and the Court of Appeals found, that the crimes selected for inclusion in § 182 were believed by the delegates to be more frequently committed by blacks.
Section 182 on its face is racially neutral, applying equally to anyone convicted of one of the enumerated crimes or a crime falling within one of the catchall provisions. Appellee Edwards nonetheless claims that the provision has had a racially discriminatory impact. The District Court made no finding on this claim, but the Court of Appeals implicitly found the evidence of discriminatory impact indisputable:
“The registrars’ expert estimated that by January 1903 section 182 had disfranchised approximately ten times as many blacks as whites. This disparate effect persists today. In Jefferson and Montgomery Counties blacks are by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under section 182 for the commission of nonprison offenses.” 730 F. 2d, at 620.
So far as we can tell the impact of the provision has not been contested, and we can find no evidence in the record below or in the briefs and oral argument in this Court that would undermine this finding by the Court of Appeals.
Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment:
“[0]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact. . . . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” 429 U. S., at 264-265.
See Washington v. Davis, 426 U. S. 229, 239 (1976). Once racial discrimination is shown to have been a “substantial” or “motivating” factor behind enactment of the law, the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor. See Mt. Healthy, 429 U. S., at 287.
Proving the motivation behind official action is often a problematic undertaking. See Rogers v. Lodge, 458 U. S. 613 (1982). When we move from an examination of a board of county commissioners such as was involved in Rogers to a body the size of the Alabama Constitutional Convention of 1901, the difficulties in determining the actual motivations of the various legislators that produced a given decision increase. With respect to Congress, the Court said in United States v. O’Brien, 391 U. S. 367, 383-384 (1968) (footnote omitted):
“Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.”
But the sort of difficulties of which the Court spoke in O’Brien do not obtain in this case. Although understandably no “eyewitnesses” to the 1901 proceedings testified, testimony and opinions of historians were offered and received without objection. These showed that the Alabama Constitutional Convention of 1901 was part of a movement that swept the post-Reconstruction South to disenfranchise blacks. See S. Hackney, Populism to Progressivism in Alabama 147 (1969); C. Vann Woodward, Origins of the New South, 1877-1913, pp. 321-322 (1971). The delegates to the all-white convention were not secretive about their purpose. John B. Knox, president of the convention, stated in his opening address:
“And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.” 1 Official Proceedings of the Constitutional Convention of the State of Alabama, May 21st, 1901 to September 3rd, 1901, p. 8 (1940).
Indeed, neither the District Court nor appellants seriously dispute the claim that this zeal for white supremacy ran rampant at the convention.
As already noted, the District Court nonetheless found that the crimes provision in §182 was not enacted out of racial animus, only to have the Court of Appeals set aside this finding. In doing so, the Court of Appeals applied the clearly-erroneous standard of review required by Federal Rule of Civil Procedure 52(a), see Pullman-Standard, v. Swint, 456 U. S. 273, 287 (1982), but was “left with a firm and definite impression of error . . . with respect to the issue of intent.” 730 F. 2d, at 620. The evidence of legislative intent available to the courts below consisted of the proceedings of the convention, several historical studies, and the testimony of two expert historians. Having reviewed this evidence, we are persuaded that the Court of Appeals was correct in its assessment. That court’s opinion presents a thorough analysis of the evidence and demonstrates conclusively that § 182 was enacted with the intent of disenfranchising blacks. We see little purpose in repeating that factual analysis here. At oral argument in this Court appellants’ counsel essentially conceded this point, stating: “I would be very blind and naive [to] try to come up and stand before this Court and say that race was not a factor in the enactment of Section 182; that race did not play a part in the decisions of those people who were at the constitutional convention of 1901 and I won’t do that.” Tr. of Oral Arg. 6.
In their brief to this Court, appellants maintain on the basis of their expert’s testimony that the real purpose behind §182 was to disenfranchise poor whites as well as blacks. The Southern Democrats, in their view, sought in this way to stem the resurgence of Populism which threatened their power:
“Q. The aim of the 1901 Constitution Convention was to prevent the resurgence of Populism by disenfranchising practically all of the blacks and a large number of whites; is that not correct?
“A. Yes, sir.
“Q. The idea was to prevent blacks from becoming a swing vote and thereby powerful and useful to some group of whites such as Republicans?
“A. Yes, sir, that’s correct.
“Q. The phrase that is quite often used in the Convention is to, on the one hand limit the franchise to [the] intelligent and virtuous, and on the other hand to disenfranchise those [referred] to as ‘corrupt and ignorant,’ or sometimes referred to as the ignorant and vicious?
“A. That’s right.
“Q. Was that not interpreted by the people at that Constitutional Convention to mean that they wanted to disenfranchise practically all of the blacks and disenfranchise those people who were lower class whites?
“A. That’s correct.”
“Q. Near the end of the Convention, John Knox did make a speech to the Convention in which he summarized the work of the Convention, and in that speech is it not correct that he said that the provisions of the Suffrage Article would have a disproportionate impact on blacks, but he disputed that that would be [a] violation of the Fifteenth Amendment?
“A. Yes, sir, that is true. Repeatedly through the debates, the delegates say that they are interested in disfranchising blacks and not interested in disfranchising whites. And in fact, they go out of their way to make that point. . . . But the point that I am trying to make is that this is really speaking to the galleries, that it is attempting to say to the white electorate that must ratify this constitution what it is necessary for that white electorate to be convinced of in order to get them to vote for it, and not merely echoing what a great many delegates say. . . . [I]n general, the delegates aggressively say that they are not interested in disfranchising any whites. I think falsely, but that’s what they say.
“Q. So they were simply trying to overplay the extent to which they wanted to disenfranchise blacks, but that they did desire to disenfranchise practically all of the blacks?
“A. Oh, absolutely, certainly.” Cross-examination of Dr. J. Mills Thornton, 4 Record 73-74, 80-81.
Even were we to accept this explanation as correct, it hardly saves § 182 from invalidity. The explanation concedes both that discrimination against blacks, as well as against poor whites, was a motivating factor for the provision and that § 182 certainly would not have been adopted by the convention or ratified by the electorate in the absence of the racially discriminatory motivation.
Citing Palmer v. Thompson, 403 U. S., at 224, and Michael M. v. Superior Court of Sonoma County, 450 U. S. 464, 472, n. 7 (1981) (plurality opinion), appellants make the further argument that the existence of a permissible motive for § 182, namely, the .disenfranchisement of poor whites, trumps any proof of a parallel impermissible motive. Whether or not intentional disenfranchisement of poor whites would qualify as a “permissible motive” within the meaning of Palmer and Michael M., it is clear that where both impermissible racial motivation and racially discriminatory impact are demonstrated, Arlington Heights and Mt. Healthy supply the proper analysis. Under the view that the Court of Appeals could properly take of the evidence, an additional purpose to discriminate against poor whites would not render nugatory the purpose to discriminate against all blacks, and it is beyond peradventure that the latter was a “but-for” motivation for the enactment of § 182.
Appellants contend that the State has a legitimate interest in denying the franchise to those convicted of crimes involving moral turpitude, and that § 182 should be sustained on that ground. The Court of Appeals convincingly demonstrated that such a purpose simply was not a motivating factor of the 1901 convention. In addition to the general catchall phrase “crimes involving moral turpitude” the suffrage committee selected such crimes as vagrancy, living in adultery, and wife beating that were thought to be more commonly committed by blacks:
“Most of the proposals disqualified persons committing any one of a long list of petty as well as serious crimes which the Negro, and to a lesser extent the poor whites, most often committed. . . . Most of the crimes contained in the report of the suffrage committee came from an ordinance by John Fielding Burns, a Black Belt planter. The crimes he listed were those he had taken cognizance of for years in his justice of the peace court in the Burns-ville district, where nearly all his cases involved Negroes.” M. McMillan, Constitutional Development in Alabama, 1798-1901, p. 275, and n. 76 (1955) (quoted in testimony by appellees’ expert).
At oral argument in this Court, appellants’ counsel suggested that, regardless of the original purpose of §182, events occurring in the succeeding 80 years had legitimated the provision. Some of the more blatantly discriminatory selections, such as assault and battery on the wife and miscegenation, have been struck down by the courts, and appellants contend that the remaining crimes — felonies and moral turpitude misdemeanors — are acceptable bases for denying the franchise. Without deciding whether §182 would be valid if enacted today without any impermissible motivation, we simply observe that its original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect. As such, it violates equal protection under Arlington Heights.
Finally, appellants contend that the State is authorized by the Tenth Amendment and §2 of the Fourteenth Amendment to deny the franchise to persons who commit misdemeanors involving moral turpitude. For the reasons we have stated, the enactment of § 182 violated the Fourteenth Amendment, and the Tenth Amendment cannot save legislation prohibited by the subsequently enacted Fourteenth Amendment. The single remaining question is whether § 182 is excepted from the operation of the Equal Protection Clause of §1 of the Fourteenth Amendment by the “other crime” provision of § 2 of that Amendment. Without again considering the implicit authorization of §2 to deny the vote to citizens “for participation in rebellion, or other crime,” see Richardson v. Ramirez, 418 U. S. 24 (1974), we are confident that §2 was not designed to permit the purposeful racial discrimination attending the enactment and operation of § 182 which otherwise violates § 1 of the Fourteenth Amendment. Nothing in our opinion in Richardson v. Ramirez, supra, suggests the contrary.
The judgment of the Court of Appeals is
Affirmed.
Justice Powell took no part in the consideration or decision of this case.
Section 182 of the Alabama Constitution of 1901 provides:
“The following persons shall be disqualified both from registering, and from voting, namely:
“All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude; also, any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of buying or offering to buy the vote of another, or of making or offering to make a false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector.”
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
songer_casetyp1_7-2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Theodore V. HOLTUN, Minority and Preferred Stockholder, Claimant, Appellant, v. Henry M. KALSCHEUER, Trustee of The Emporium of St. Paul, Inc., Debtor, et al.
No. 13044.
Circuit Court of Appeals, Eighth Circuit.
March 12, 1945.
Otis H. Godrey, of St. Paul, Minn., for appellant.
Joseph W. Finley and Matthew J. Finley, both of St. Paul, Minn., for appellee The Emporium of St. Paul, Inc., debtor.
C. Paul Smith, of St. Paul, Minn., for appellee United Properties Incorporated.
Lewis L. Anderson, of St. Paul, Minn., for appelleee Henry M. Kalscheuer, Trustee of The Emporium of St. Paul, Inc., debtor.
T. B. Hart and G. G. Roberson, Attys., Securities and Exchange Commission, both of Chicago, 111., for appellee Securities and Exchange Commission.
John A. Burns and.W. T. Goddard, both of St. Paul, Minn., for appellees Fred J. Metzger, Clarence C. Newquist, and James J. Walsh, Stockholders’ Committee.
PER CURIAM.
Petition of appellant for extension of time for preparation of record on appeal and transmission to this Court denied; motions of appellees, The Emporium of St. Paul, Inc., Debtor, United Properties Incorporated, and Henry M. Kalscheuer, Trustee of The Emporium of St. Paul, Inc., debtor, to dismiss appeal granted and appeal from order of District Court entered in the Matter of The Emporium of St. Paul, Inc., Debtor, under date of October 16, 1944, confirming plan of reorganization and directing consummation thereof dismissed at costs of appellant.
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_district
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
John D. MACHIN, Appellant, v. UNITED STATES of America, Appellee.
No. 16705.
United States Court of Appeals Eighth Circuit.
June 1, 1961.
John Machin, pro se.
Osro Cobb, U. S. Atty., Little Rock, Ark., and Milton D. Bowers, Asst. U. S. Atty., Little Rock, Ark., for appellee.
Before SANBORN, VOGEL and VAN OOSTERHOUT, Circuit Judges.
PER CURIAM.
This is an appeal from an order denying a motion of John D. Machin, under 28 U.S.C. § 2255, for the vacation of a three-year sentence of imprisonment imposed on him April 21, 1959. The sentence was based upon his plea of guilty to an Information filed against him in the United States District Court for the Northern District of California on March 17, 1959, after he had filed a waiver of indictment. On April 3, 1959, Machin filed in that court a “Consent to Transfer of Case for Plea and Sentence,” duly signed by him, reading as follows:
“I, John Donovan Machin, defendant, have received and read a copy of the Information pending against me in the above-styled and numbered cause, and understand the charge stated therein, and having been advised of my constitutional rights, including the right to advice of counsel, I wish to plead guilty to the offense charged, to waive trial thereunder in the Northern District of California and to consent to disposition of the case in the Eastern District of Arkansas, Western Division, in which I am under arrest.”
Having procured the transfer of his case, under Rule 20 of the Federal Rules of Criminal Procedure, 18 U.S.C., from the United States District Court for the Northern District of California to the United States District Court for the Eastern District of Arkansas, for the purpose of entering a plea of guilty, Machin came before the latter court for arraignment on April 20, 1959. The court advised him fully of the charge contained in the Information (interstate transportation of a forged Travelers Check, in violation of 18 U.S.C. § 2314), and stated to Machin what the consequences of his conviction of the offense might be. The coui’t asked him if he wanted an attorney. His answer was “No, sir.” Machin then tendered his plea of guilty, which the court, after making certain that it was entirely voluntary, accepted.
In interrogating Machin after he had entered his plea and before he was sentenced, the court was told by him that he had three years of a State court sentence, imposed in 1952, left to serve in the Washington State Penitentiary. The court imposed a sentence of imprisonment for seven years, to run concurrently with Machin’s “present state sentence in the State of Washington.” All this happened on April 20, 1959. The following day, Machin was returned into court for further proceedings, at which the court, after affording him an opportunity to make a further statement, reduced the seven-year sentence of imprisonment to a straight three-year sentence. Apparently the court and Government counsel were uncertain as to what would be the effect of attempting to make the federal seven-year sentence imposed on April 20 concurrent with some un-served portion of a state sentence.
Machin now proclaims that, in violation of his constitutional rights, he has been sentenced twice and put in jeopardy twice for the same offense— which is nonsense. Under Rule 35 of the Federal Rules of Criminal Procedure, the court had the right on April 21 to correct the sentence imposed on April 20 if it was illegal, and to reduce it whether it was illegal or not. A seven-year federal sentence of imprisonment to be served concurrently with a state sentence of uncertain duration and uncertain existence is, unquestionably, still a seven-year sentence. Machin is in no position to complain of its reduction.
There is no basis in the record for Machin’s assertion that his constitutional right to the assistance of counsel was disregarded. The record is directly to the contrary.
In the case of Higgins v. Steele, 8 Cir., 195 F.2d 366, 369, this Court said:
“ * * * While it is important that no prisoner be denied justice because of his poverty, it is also important that the prison authorities, government counsel, and the courts be not harassed by patently repetitious, meritless, frivolous or malicious proceedings.”
We think the District Court might well have denied Machin’s application for leave to appeal in forma pauperis from the denial of his motion to vacate sentence.
The order appealed from is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_habeas
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
PERRY COAL COMPANY and Peabody Coal Company et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. UNITED MINE WORKERS OF AMERICA et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 12889, 12915.
United States Court of Appeals Seventh Circuit.
May 25, 1961.
Howard P. Robinson, Chicago, Ill., William F. Guffey, Paul C. Zempel, St. Louis, Mo., M. E. Boiarsky, Charleston, W. Va., Welly K. Hopkins, Washington, D. C., Edmund Burke, Springfield, Ill., for petitioner.
Thomas J. McDermott, Assoc. Gen. Counsel, Louis Schwartz, Atty., N. L. R. B., Washington, D. C., for respondent.
Before DUFFY and SCHNACKENBERG, Circuit Judges, and MERCER, District Judge.
DUFFY, Circuit Judge.
The National Labor Relations Board has petitioned for a modification of our opinion in Perry Coal Company v. N. L. R. B., 284 F.2d 910, or in the alternative, for a clarification of the ground upon which this Court relied for holding that Peabody need not bargain with any union until after a Board election.
We decline to modify the opinion or the mandate herein. However, we think it proper to state our reasons for not requiring Peabody to bargain with Progressive Mine Workers.
The Board found that the Company violated section 8(a) (5) of the National Labor Relations Act, 29 U.S.C.A. § 158 (a) (5) by refusing to bargain with Progressive. To remedy this unfair labor practice, the Board ordered the Company to resume bargaining with Progressive. The Board argues that the Supreme Court has made it clear that where a bargaining relationship has been unlawfully disrupted or frustrated, the appropriate remedy is to require the employer to bargain, and give the relationship a fair opportunity to become established. In support of their contention, the Board cites N. L. R. B. v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380, and Franks Bros. Co. v. N. L. R. B., 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020.
It is clear from the two cases just cited, the Board may adopt such a remedy in an appropriate case. However, the power of the Board to fashion remedies is not limitless. The Board may not apply “a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act.” N. L. R. B. v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 290, 97 L.Ed. 377.
We examine the Board’s order to resume bargaining with Progressive in the light of the undisputed facts and circumstances of this case. The contract of Progressive terminated by its terms in September, 1957. Progressive has not represented the employees here involved for more than three and a half years. In 1957, the employees at both mines involved in this case clearly indicated their choice of United Mine Workers as their representative. It seems to us to be an entirely futile act to now require Peabody to bargain with a union which has not l-epresented its employees for three and a half years.
We wish to make it clear that we do not hold the United Mine Workers is now the authorized representative of the employees at the two mines. We do hold, however, that under the circumstances of this case, a Board election is the appropriate method to determine the choice of the employees. It seems reasonable that this determination should be made as quickly as possible so that normal labor relations can be restored at the two mines involved. We cannot understand, under the circumstances of this case, why the Board insists on Peabody bargaining with Progressive when there is no evidence in this record to show that organization would be the employees’ choice since the time Peabody assumed control or ownership of the O’Fallon and Millstadt mines.
To insist that Peabody now bargain with Progressive would be like jousting with windmills. Any realistic appraisal of the situation in this case indicates that such a course would be entirely futile, and would, in all likelihood, have no result other than to arouse bitterness and antagonisms.
We think the situation here is similar to that which faced the Court in N. L. R. B. v. Marcus Trucking Co., 2 Cir., 286 F.2d 583. There, the Board found the employer had violated section 8(a) (5) of the Act by recognizing a second union during a period when the employer was bound by the “contract bar” rule from recognizing any other union. The Board ordered the employer to cease from recognizing the second union unless and until it was certified by the Board and to recognize and bargain with the original union in the meanwhile. The Court modified the Board’s order and conditioned enfoixement upon the Board’s holding an election within sixty days after the Court’s order became final. The Court said cases like Franks Bros, do not prescribe an iron-clad rule and held:
“Although we affirm the Board’s holding of an unfair labor practice, this was surely at the periphery and not the center of § 8(a); the interest being vindicated here is not so much the direct interest of the employees in freely choosing their bargaining representatives as the broader interest in industrial peace. We fail to see how that would be promoted by forcing respondent to recognize a union whose claim to contract bar protection expired more than eighteen months ago, which ceased to represent the employees over a year before that, and which may not be their choice today, when an election can so easily tell.” (At page 594)
For these reasons we adhere to our holding that Peabody need not bargain with any union until after a Board-conducted election.
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. James INENDINO, Defendant-Appellant.
No. 80-2519.
United States Court of Appeals, Seventh Circuit.
Argued May 13, 1981.
Decided July 28, 1981.
Rehearing and Rehearing En Banc Denied Nov. 2,1981.
Jeffrey B. Steinback, Chicago, 111., for defendant-appellant.
Jeffrey M. Johnson, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
Before SWYGERT, Senior Circuit Judge, NICHOLS, Judge, and BAUER, Circuit Judge.
. The Honorable Philip Nichols, Jr., Judge, United States Court of Claims, is sitting by designation.
SWYGERT, Senior Circuit Judge.
This appeal presents a question of first impression in this circuit which concerns the extent of a district court’s jurisdiction over a Rule 35 motion for reduction of sentence. We affirm the district court’s holding that it does not have jurisdiction to consider new evidence offered in a motion to reconsider denial of a Rule 35 motion filed beyond the 120-day limit in the rule.
On February 11, 1980, defendant-appellant James Inendino pled guilty to two counts of an indictment that charged a series of loansharking offenses. He was sentenced on March 14, 1980, to five years’ imprisonment on one count and five concurrent years of probation on the other. On June 30, 1980, 108 days after sentence was imposed, the court received a letter from Inendino, in which he requested the court to consider his letter as a motion to reduce sentence under Rule 35. Inendino attached as supporting exhibits several letters from, among others, his wife, his pastor, and his probation officer. After the Government filed its response, the court denied Inendi-no’s motion on July 15,1980, 123 days after sentencing.
On August 26, 1980, 165 days after sentence was imposed, Inendino filed a motion for reconsideration of his earlier motion, to which he attached new evidence relating to his prison behavior and adjustment that had not been included in the original motion. After having heard oral argument on this motion, the court on September 22, 1980, 192 days after sentencing, held that because the motion for reconsideration was filed more than 120 days after sentencing, it could consider only that evidence which had been presented with the original motion. It therefore denied the reconsideration motion for the reasons stated in its order denying the first motion.
Inendino does not appeal the denial of his original Rule 35 motion, which could not be overturned absent a clear abuse of discretion; nor does he argue that the court abused its discretion in denying his motion for reconsideration. He contends here only that the district court erred as a matter of law in holding that it could not consider the new evidence presented with the second motion.
Rule 35 does not refer to any time period during which a defendant must make his motion to reduce sentence. It imposes instead a limit on the time during which the sentencing judge may act to reduce the sentence. This time limit is jurisdictional, United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979) (dictum), and it may not be extended at the discretion of the district court. The purpose of the rule is to protect the district court from recurrent requests from defendants to reconsider their sentence and to prevent the courts from becoming an alternative to the Parole Commission as a means of release from custody. The rule also recognizes the natural tendency of judges to become more lenient as the evidence of wrongdoing presented at trial becomes more remote.
Despite the framing of the time limitation as one on the judge’s ability to act and not on the defendant’s ability to file the motion, courts have inferred an extension of jurisdiction for a reasonable period of time beyond the 120 days in order to consider a motion filed within that time period. The courts have created this exception so that defendants would not be penalized for delays that may result from a judge’s absence, incapacity or preoccupation with, an overcrowded calendar. Inendino argues that because the courts have judicially so altered Rule 35, the 120-day limit is not a strict delineation of jurisdiction. If courts have a reasonable time beyond 120 days to decide a timely-filed motion, he reasons, then they should also be able to consider a motion to reconsider a denial of a timely-filed motion.
The reasoning behind this extension of time does not apply to the situation in this case. While the exception was created to protect defendants from delays beyond their control, the blame for the lapse in time in this case rests squarely on defendant’s shoulders. He did not file his original Rule 35 motion until 108 days after sentencing, which did not leave the district court much time to consider it. The court acted with commendable speed, as it received a Government response and ruled on the motion within fifteen days. Furthermore, three of the four principal pieces of evidence that were presented with the motion to reconsider were available at the time of the original motion and could have been discovered with due diligence by that time.
For the above reasons, and for the salutary effects described above, supra p. 109, of a definite termination of jurisdiction, courts have held that a subsequent motion cannot revitalize a Rule 35 motion that had been filed on time and denied. In United States v. Hetrick, 644 F.2d 752 (9th Cir. 1980), the court held that the district court did not have jurisdiction to consider a motion for reconsideration filed beyond the 120-day limit and therefore reversed an order reducing defendant’s sentence. The court declared, id. at 756, “The timely filing of a Rule 35 motion does not give a district court jurisdiction to entertain subsequent, untimely Rule 35 motions. The second motion will not be deemed to relate back to the first motion.” See United States v. United States District Court, 509 F.2d 1352 (9th Cir.), cert. denied, sub nom. Rosselli v. United States, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975).
One of the purposes of Rule 35 is to permit defendants to present new evidence not available at the time of sentencing, and a defendant may do so in motion to reconsider denial of a Rule 35 motion, but that evidence must be presented within the 120-day limit established in the rule. A defendant can easily avoid a situation such as occurred in this case by filing his Rule 35 motion within the first sixty days after sentencing. The court would then have adequate time to decide the motion before the expiration of its jurisdiction, and the defendant would probably even have time to file a motion for reconsideration within the 120-day time period.
We therefore affirm the district court’s holding that it did not have jurisdiction to consider the new evidence presented in the untimely motion to reconsider its denial of Inendino’s Rule 35 motion.
AFFIRMED.
. Rule 35, Fed.R.Crim.P., reads in relevant part:
The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.
. Specifically, the indictment alleged a conspiracy to conduct the affairs of an enterprise through the collection of unlawful debts, 18 U.S.C. § 1962(c) and (d), the making and collection of extensions of credit by extortionate means, 18 U.S.C. §§ 892 and 894, and obstruction of justice, 18 U.S.C. § 1503.
. These sentences are to run consecutively to other consecutive sentences imposed for two separate convictions in 1978. Inendino must first serve a five-year sentence for his involvement in a scheme to defraud a life insurance company of a half-million dollars. This sentence will be followed by a 20-year term imposed under the Dangerous Special Offender Statute, 18 U.S.C. § 3575 (1976). See United States v. Inendino, 463 F.Supp. 252 (N.D.Ill. 1978), aff'd, 604 F.2d 458 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979).
. These materials included a Bureau of Prisons memorandum from the Bureau’s Springfield Medical Center, dated October 22, 1979; a recommendation for meritorious good time from the Metropolitan Correctional Center, dated September 30, 1978; a United States Government memorandum, dated June 26, 1980; and a Bureau of Prisons extra good time recommendation, dated July 14, 1980. Only the last item was unavailable to Inendino at the time of the original motion.
. The court’s order read in relevant part,
Regarding Defendant Inendino’s motion for reconsideration of the denial of his earlier Rule 35 motion, because this motion was filed more than 120 days after the Defendant’s sentence was imposed, the court has jurisdiction to review only those portions of it which relate to the arguments and evidence presented previously, [citations omitted] That being so, because consideration cannot be given to the new materials he has presented, Defendant Inendino’s motion for reconsideration is denied for the reasons stated in this court’s prior order.
. See, e. g., Government of Virgin Islands v. Gereau, 603 F.2d 438, 443 (3d Cir. 1979).
. See n.2, supra.
. See also United States v. Braasch, 542 F.2d 442 (7th Cir. 1976); United States v. Mariano, 646 F.2d 856 (3d Cir. 1981); United States v. DeLutro, 617 F.2d 316 (2d Cir. 1980); United States v. Isaacs, 392 F.Supp. 597 (N.D.Ill.1975); Quinn v. Hunter, 162 F.2d 644 (7th Cir. 1947).
. Fed.R.App.P. 45(b).
. United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir. 1975); United States v. United States District Court, 509 F.2d 1352, 1356 (9th Cir. 1975). See 8A Moore’s Federal Practice— Criminal Rules j| 35.02[1], n.4 (1980 ed.) (“Some limitation on the court’s power seems to be necessary, for after a lapse of time the peculiar ability of the court to determine sentence gives way to the presumably greater competence, and knowledge, of penal authorities.”).
. See, e. g., United States v. Stollings, supra; United States v. Mendoza, 565 F.2d 1285 (5th Cir.), modified, 581 F.2d 89 (1978); United States v. Williams, 573 F.2d 527 (8th Cir. 1978); United States v. Leyvas, 371 F.2d 714 (9th Cir. 1967).
. See also United States v. Dansker, 581 F.2d 69, 72 (3d Cir. 1978).
. United States v. Ginzburg, 398 F.2d 52 (3d Cir. 1968) (en banc), cert. denied, 403 U.S. 931, 91 S.Ct. 2252, 29 L.Ed.2d 709 (1971).
. Inendino also moved to have his sentence modified to the extent allowable under 18 U.S.C. § 4205(b)(2). Because motions to modify sentences under that statutory section are governed by Rule 35, United States v. Regan, 503 F.2,d 234, 237-38 (8th Cir. 1974), that motion was as untimely as his Rule 35 motion. We therefore affirm its denial as well.
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_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
LANCE J. MARCHIAFAVA, INC., Appellee, v. Herbert H. HAFT; Gloria G. Haft; Robert M. Haft; Ronald S. Haft; Linda Rappaport, Appellants. LANCE J. MARCHIAFAVA, INC., Appellant, v. Herbert H. HAFT; Gloria G. Haft; Robert M. Haft; Ronald S. Haft; Linda Rappaport, Appellees.
Nos. 84-1978, 84-2051.
United States Court of Appeals, Fourth Circuit.
Argued May 9, 1985.
Decided Nov. 27, 1985.
Joseph C. Wyderko (Rodney F. Page, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., on brief), for appellants/erossappellees.
John W. Thyden, Springfield, Va., for appellee/cross-appellant.
Before WIDENER and CHAPMAN, Circuit Judges, and TURK, Chief United States District Judge for the Western District of Virginia, sitting by designation.
WIDENER, Circuit Judge:
Lance J. Marchiafava, Inc. (Marchiafava, Inc.), a Virginia corporation solely owned and controlled by Lance J. Marchiafava, was a tenant operating a hair salon business in the Rolling Valley Shopping Mall in Fairfax, Virginia, under a lease dated August 1, 1980. It brought this diversity action against the five general partners of Combined Properties Limited Partnership (Combined Properties), the owners of the Rolling Valley Mall, seeking damages for breach of contract, and claiming that Combined Properties had breached an oral agreement not to lease space in the shopping mall to competing businesses. A jury awarded Marchiafava, Inc. $6,300 in damages, upon which verdict judgment was entered and from which this appeal is taken. Because we believe that the statute of frauds barred Marchiafava, Inc.’s claim on this oral agreement, we reverse the judgment of the district court.
I
Lance J. Marchiafava was a professional hairdresser. In March 1980, Vincent Gesumaria, a local real estate developer, called Marchiafava about taking over certain rental space in the Rolling Valley Shopping Mall that was at that time occupied by another hair salon, Vincent et Vincent Hair Masters. Marchiafava advised that he was interested in leasing the space but only if he was given a new lease that included the following terms: Marchiafava would only take one of the two store spaces formerly occupied by Vincent et Vincent; the lease would be for a term of ten years or for a combination of term and options adding up to ten years; the lease would not include a Consumer Price Index clause providing for adjustments of the rental payments, or that, if included, the amount of increase would have a maximum limit; Marchiafava would be allowed to enclose the front part of his store to avoid having to contribute to the mall’s general utilities; and the shopping mall would not contain any competing hair salons. An appointment was then arranged for Marchiafava to discuss the lease with Combined Properties.
Marchiafava first discussed the lease with a representative of Combined Properties, Vana Martin, in June 1980. As a result of this meeting, Marchiafava testified that Martin acceded to each of Marchiafava’s five demands in return for Marchiafava’s payment of $5,000 toward the previous tenant’s defaulted rent. In addition, Marchiafava was to receive title to the equipment that the previous tenants had left in the store.
On July 17, 1980, Marchiafava met with Gesumaria and Bernard Fagelson, counsel for Combined Properties and its representative during this meeting. During this meeting, Marchiafava initially refused to sign the proposed lease, which Combined Properties had drafted. Marchiafava based his refusal, in part, on the fact that he had visited the premises involved in the lease and had discovered that the equipment alluded to in his previous discussions with Vana Martin was not on the premises. Marchiafava also based his refusal to sign the lease on the fact that the proposed lease did not contain all the conditions that he had demanded and to which he insisted Martin had previously acceded.
Marchiafava testified that Fagelson discussed the lease terms with Martin by telephone and then told Marchiafava that Combined Properties agreed to all of Marchiafava’s conditions, including the condition that Combined Properties would not lease any space in the Rolling Valley Shopping Mall to competing hair salons. Fagelson does not deny that he discussed the lease conditions with Martin by telephone on July 17, 1980. He does deny, however, that he ever discussed the noncompetition provision with Martin.
Marchiafava signed the lease, which was dated August 1, 1980, at the conclusion of the July 17, 1980 meeting. Martin subsequently signed the lease on behalf of Combined Properties. The lease as signed did not contain any reference to the noncom-petition provision. The lease also did not contain any direct reference to Marchiafava’s request for permission to enclose the front wall of his store. Finally, the lease did not contain the cap on the extent of increase in rent based on the Consumer Price Index that Marchiafava had requested. The lease did contain provisions reflecting Marchiafava’s demand for a combination of term and option provisions for a period of ten years, as well as Marchiafava’s demand that the lease only cover one store instead of two.
On July 23, 1980, Marchiafava delivered his check for $5,000 to Combined Properties. Marchiafava testified that he delivered the check as his consideration for Combined Properties’ accession to his five proposed lease terms and for the equipment in the store. After Combined Properties cashed the check and it was returned to him, Marchiafava made certain notations on it. On the front of the check, he wrote “leasehold improvements.” On the back of the check, he wrote, “Donna, justify this payoff under leasehold im[provements] even tho’ its for the wall & N.C.” Marchiafava testified that the notations on the back of the check were instructions to his bookkeeper. Marchiafava also testified that the “N.C.” in the notation on the back of the check referred to the noncompetition provision in his oral agreement with Combined Properties. Subsequently, Marchiafava enclosed the front of his store at Rolling Valley Shopping Mall. Combined Properties also signed over to him title to the equipment that Vincent et Vincent had left in the store, the precise value of which is not indicated in the record.
In March 1983, a competing hair salon began operating in the Rolling Valley Shopping Mall. In February 1984, Marchiafava, Inc. filed this case against Combined Properties. In its amended complaint, Marchiafava, Inc. sought only damages for the breach of the alleged oral agreement between itself and Combined Properties. Marchiafava, Inc. did not seek specific performance of the agreement or any other form of equitable relief. At both the close of the plaintiff’s case and at the close of all the evidence, Combined Properties moved for a directed verdict on the grounds that the parol evidence rule and the statute of frauds precluded enforcement of the alleged oral agreement. The district court denied the motions to the extent that they were based on the statute of frauds, stating that the doctrine of part performance took the oral agreement out of the statute. The district court took under advisement the question concerning the applicability of the parol evidence rule to the oral agreement in question, and eventually denied Combined Properties’ motions on this ground as well.
On appeal, Combined Properties raises two issues. First, it argues that the district court erred in not holding that the parol evidence rule barred as a matter of law Marchiafava, Inc.’s claim for breach of an oral agreement made prior to the execution of the written lease; and, second, that the district court erroneously applied the doctrine of part performance, ruling that the statute of frauds did not prohibit enforcement of the oral agreement. Since we decide the case on the basis of the statute of frauds, we do not reach the appellants’ contention regarding the applicability of the parol evidence rule.
II
In this diversity case, we apply the substantive law of the forum, Virginia. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Combined Properties has contended throughout that the statute of frauds barred the enforcement of Marchiafava, Inc.’s claim because the claim was predicated on an oral agreement. In the deliberations concerning Combined Properties’ motions for a directed verdict, the district court assumed, and the parties did not contest, that the statute of frauds did apply to the oral agreement in question. On appeal, neither party contends that the statute does not apply to the oral agreement in question. Marchiafava, Inc., however, does and did contend that although the statute of frauds applies to the agreement in question, either the doctrine of part performance took the agreement out of the statute, or Combined Properties was estopped from asserting the statute as a defense. Because the parties are in agreement on this point, we assume, without deciding, that the statute of frauds does, in fact, apply to the oral agreement in question. Consequently, in resolving this appeal, the sole issues that we address are whether the doctrine of equitable estoppel prevents Combined Properties from asserting the statute of frauds as a defense and whether the doctrine of part performance removed the agreement in question from the statute’s protection.
A. Equitable Estoppel as a Bar to Statute of Frauds Defense
Marchiafava, Inc. contends, in part, that Combined Properties’ failure to perform its obligations under the oral agreement in question resulted in substantial detriment to Marchiafava, Inc., including causing it to sign a lease that it would never have otherwise signed, as well as undertaking leasehold improvements on the store property leased. The argument goes that Combined Properties’ actions in negotiating the lease and its subsequent failure to perform on the obligations in its oral agreement estop it from asserting a statute of frauds defense to Marchiafava, Inc.’s claim.
Virginia recognizes the doctrine of equitable estoppel as a bar to the assertion of a statute of frauds defense. See T ... v. T ..., 216 Va. 867, 872-73, 224 S.E.2d 148, 151-52 (1976). It is well established, however, that the doctrine of equitable estoppel does not apply to situations in which the party asserting the estoppel has suffered detriment resulting solely from another party’s failure to perform an obligation under the oral agreement. Cottrell v. Nurnberger, 131 W.Va. 391, 47 S.E.2d 454, 461-62 (1948) (plurality opinion), followed by the court in Bennett v. The Charles Corp., 159 W.Va. 705, 226 S.E.2d 559 (1976); see also WILLISTON ON CONTRACTS § 533A, at 806 (3d ed. 1960) (use of doctrine of equitable estoppel as bar to assertion of statute of frauds defense requires more than one party’s mere refusal to perform his agreement because either party has right to refuse to execute parol contract within statute).
Marchiafava, Inc. attempts to circumvent this well established principle in its argument on appeal by invoking a case in which the Virginia Court estopped the vendor of a parcel of land from asserting a statute of frauds defense to a claim incidental to a sale of land due to certain oral representations that the vendor had made to the vendee concerning the establishment and use of an adjoining alley. See Trueheart v. Price, 16 Va. (2 Munf.) 468 (1811) (upholding injunction against vendor of real property from closing alley that vendor had represented as having been “established, and always to be kept open,” despite assertion of statute of frauds defense). The holding in Trueheart, however, does not control the present case because in that case there was a misrepresentation that the alley had been established, a past as well as an existing fact, not merely the giving of an oral promise that it would be kept open in the future. See Cottrell v. Nurnberger, 131 W.Va. 391, 47 S.E.2d 454, 458-59 (1948). MINOR ON REAL PROPERTY § 105, at 145 (2d ed. 1928) states the accepted rule in cases respecting claimed oral restrictions on land use: “Estoppel, however, is not strictly applicable where the restriction involves a promise for the future rather than a representation of past or existing fact.” In this case, Marchiafava’s testimony at trial clearly indicates that he considered the noncompetition provision in the oral agreement in question to be one of the promises that he obtained from Combined Properties in exchange for his $5,000. Misrepresentations of past or existing facts were neither claimed nor proven. Neither was there any claim that Combined Properties did not intend to carry out the promise when made, sometimes considered a species of fraud. Because the detriment to Marchiafava resulted solely from Combined Properties’ failure to perform on an oral promise, we conclude that this case falls within the rule stated in Minor and that Combined Properties has not done other than exercise its statutory right to refuse to execute a parol contract that falls within the statute of frauds. Consequently, we hold that Combined Properties was not estopped from asserting the statute of frauds as a defense to Marchiafava, Inc.’s claim.
B. Part Performance as Bar to Statute of Frauds Defense
In denying Combined Properties’ motions for directed verdict on the statute of frauds ground, the district court held that although the statute applied to the agreement in question, the doctrine of part performance took the agreement out of the statute. Marchiafava, Inc. brought this action seeking only damages for Combined Properties’ alleged breach of the oral agreement in question. It did not seek specific performance of the alleged oral agreement, nor did it seek any other form of equitable or legal relief. The doctrine of part performance is not available in Virginia in such actions at law for damages for breach of contract to take an oral agreement out of the statute of frauds. See Porter v. Shaffer, 147 Va. 921, 933, 133 S.E. 614 (1926) (part performance by one party to contract within statute of frauds will not, at law, entitle that party to recover upon contract itself); Ricks v. Sumler, 179 Va. 571, 576, 19 S.E.2d 889 (1942) (statute of frauds prohibits action at law for damages for breach of parol agreement); CORBIN ON CONTRACTS § 422 (1952) (part performance doctrine not applicable to take a contract out of the statute of frauds in actions at common law for damages for breach of the contract). Because the doctrine of part performance does not operate in actions at law for damages for breach of an oral contract to take the contract out of the statute of frauds, the district court committed error in ruling that the doctrine took the oral agreement in question out of the statute of frauds.
The judgment of the district court is
REVERSED.
. Gesumaria was a guarantor on the Vincent et Vincent lease. In early 1980, Vincent et Vincent had defaulted on their lease and were in arrears on their rental payments for between $20,000 and $30,000. An arrangement to Combined Properties was proposed under which Combined Properties would excuse Gesumaria on his guarantee if a new tenant could be found. Combined Properties agreed to the proposal, whereupon Gesumaria called Marchiafava in March 1980.
. Marchiafava later admitted, however, that the lease did contain two of his conditions: that Marchiafava would only lease one of the two stores previously occupied by Vincent et Vincent; and that the term of the lease with an option cover a period of ten years.
. Marchiafava, Inc. cross-appeals on the ground that the jury verdict of $6,300 was so clearly inadequate that this court should set it aside. Because we vacate the district court’s judgment on the issue of liability, we do not consider Marchiafava’s contention concerning the adequacy of the jury’s damage verdict.
. In its brief, Marchiafava, Inc. combined two separate arguments concerning the viability of Combined Properties’ statute of frauds defense, contending that the district court properly es-topped Combined Properties from asserting a statute of frauds defense in the face of Marchiafava’s part performance. Under Virginia law, as in most other States, the doctrine of estoppel and the doctrine of part performance constitute two separate, albeit related, bars to the assertion of a statute of frauds defense. See T ... v. T ..., 216 Va. 867, 872, 224 S.E.2d 148 (1976); WILLISTON ON CONTRACTS § 533A, at 791-92 (3d ed. 1960). Although the district court apparently rested its decision concerning the applicability of the statute of frauds defense solely on the doctrine of part performance, because each doctrine can separately constitute a bar to a statute of frauds defense in Virginia, this opinion will discuss the applicability of both doctrines to the agreement in question.
. We caution that our discussion with reference to the application or non-application of the statute of frauds in breach of contract actions, because of part performance or estoppel, should not be read as necessarily applying where a plaintiff proceeds on other theories for relief such as specific performance, unjust enrichment, money had and received, quantum meruit, etc. In many of such cases, different rules apply.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_declarationuncon
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules.
SUPREME COURT OF VIRGINIA et al. v. FRIEDMAN
No. 87-399.
Argued March 21, 1988
Decided June 20, 1988
Kennedy, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 70.
Gregory E. Lucyk, Assistant Attorney General of Virginia, argued the cause for appellants. With him on the briefs were Mary Sue Terry, Attorney General, Gail Starling Marshall, Deputy Attorney General, and William H. Hauser, Senior Assistant Attorney General.
Cornish F. Hitchcock argued the cause for appellee. With him on the brief were Alan B. Morrison' and John J. McLaughlin.
A brief of amici curiae urging reversal was filed for the State of Wyoming et al. by Joseph B. Meyer, Attorney General, and Mary B. Guthrie, Senior Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Neil F. Hartigan of Illinois, Thomas J. Miller of Iowa, and Anthony J. Celebrezze, Jr., of Ohio.
Briefs of amici curiae urging affirmance were filed for the American Corporate Counsel Association by Lawrence A. Salibra II; and for the New York State Bar Association by Maryann Saccomando Freedman, Monroe H. Freedman, and Ronald J. Levine.
Justice Kennedy
delivered the opinion of the Court.
Qualified lawyers admitted to practice in other States may be admitted to the Virginia Bar “on motion,” that is, without taking the bar examination which Virginia otherwise requires. The State conditions such admission on a showing, among other matters, that the applicant is a permanent resident of Virginia. The question for decision is whether this residency requirement violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 2, cl. 1. We hold that it does.
I
Myrna E. Friedman was admitted to the Illinois Bar by examination in 1977 and to the District of Columbia Bar by reciprocity in 1980. From 1977 to 1981, she was employed by the Department of the Navy in Arlington, Virginia, as a civilian attorney, and from 1982 until 1986, she was an attorr ney in private practice in Washington, D. C. In January 1986, she became associate general counsel for ERC International, Inc., a Delaware corporation. Friedman practices and maintains her offices at the company’s principal place of business in Vienna, Virginia. Her duties at ERC International include drafting contracts and advising her employer and its subsidiaries on matters of Virginia law.
From 1977 to early 1986, Friedman lived in Virginia. In February 1986, however, she married and moved to her husband’s home in Cheverly, Maryland. In June 1986, Friedman applied for admission to the Virginia Bar on motion.
The applicable rule, promulgated by the Supreme Court of Virginia pursuant to statute, is Rule 1A:1. The Rule permits admission on motion of attorneys who are licensed to practice in another jurisdiction, provided the other jurisdiction admits Virginia attorneys without examination. The applicant must have been licensed for at least five years and the Virginia Supreme Court must determine that the applicant:
“(a) Is a proper person to practice law.
“(b) Has made such progress in the practice of law that it would be unreasonable to require him to take an examination.
“(c) Has become a permanent resident of the Commonwealth.
“(d) Intends to practice full time as a member of the Virginia bar.”
In a letter accompanying her application, Friedman alerted the Clerk of the Virginia Supreme Court to her change of residence, but argued that her application should nevertheless be granted. Friedman gave assurance that she would be engaged full-time in the practice of law in Virginia, that she would be available for service of process and court appearances, and that she would keep informed of local rules. She also asserted that “there appears to be no reason to discriminate against my petition as a nonresident for admission to the Bar on motion,” that her circumstances fit within the purview of this Court’s decision in Supreme Court of New Hampshire v. Piper, 470 U. S. 274 (1985), and that accordingly she was entitled to admission under the Privileges and Immunities Clause of the Constitution, Art. IV, §2, cl. 1. See App. 34-35.
The Clerk wrote Friedman that her request had been denied. He explained that because Friedman was no longer a permanent resident of the Commonwealth of Virginia, she was not eligible for admission to the Virginia Bar pursuant to Rule 1A:1. He added that the court had concluded that our decision in Piper, which invalidated a residency requirement imposed on lawyers who had passed a State’s bar examination, was “not applicable” to the “discretionary requirement in Rule 1A:1 of residence as a condition of admission by reciprocity.” App. 51-52.
Friedman then commenced this action, against the Supreme Court of Virginia and its Clerk, in the United States District Court for the Eastern District of Virginia. She alleged that the residency requirement of Rule 1A:1 violated the Privileges and Immunities Clause. The District Court entered summary judgment in Friedman’s favor, holding that the requirement of residency for admission without examination violates the Clause.
The Court of Appeals for the Fourth Circuit unanimously affirmed. 822 F. 2d 423 (1987). The court first rejected appellants’ threshold contention that the Privileges and Immunities Clause was not implicated by the residency requirement of Rule 1A:1 because the Rule did not absolutely prohibit the practice of law in Virginia by nonresidents. Id., at 427-428. Turning to the justifications offered for the Rule, the court rejected, as foreclosed by Piper, the theory that the different treatment accorded to nonresidents could be justified by the State’s interest in enhancing the quality of legal practitioners. The court was also unpersuaded by appellant’s contention that the residency requirement promoted compliance with the Rule’s full-time practice requirement, an argument the court characterized as an unsupported assertion that “residents are more likely to honor their commitments to practice full-time in Virginia than are nonresidents.” Id., at 429. Thus, the court concluded that there was no substantial reason for the Rule’s discrimination against nonresidents, and that the discrimination did not bear a substantial relation to the objectives proffered by appellants.
The Supreme Court of Virginia and its Clerk filed a timely notice of appeal. We noted probable jurisdiction, 484 U. S. 923 (1987), and we now affirm.
I — I 1 — 4
Article IV, §2, cl. 1, of the Constitution provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The provision was designed “to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.” Paul v. Virginia, 8 Wall. 168, 180 (1869). See also Toomer v. Witsell, 334 U. S. 385, 395 (1948) (the Privileges and Immunities Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy”). The Clause “thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment.” Austin v. New Hampshire, 420 U. S. 656, 660 (1975).
While the Privileges and Immunities Clause cites the term “Citizens,” for analytic purposes citizenship and residency are essentially interchangeable. See United Building & Construction Trades Council v. Mayor and Council of Camden, 465 U. S. 208, 216 (1984). When examining claims that a citizenship or residency classification offends privileges and immunities protections, we undertake a two-step inquiry. First, the activity in question must be “ ‘sufficiently basic to the livelihood of the Nation’ ... as to fall within the purview of the Privileges and Immunities Clause . . . .” Id., at 221-222, quoting Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 371, 388 (1978). For it is “‘[ojnly with respect to those “privileges” and “immunities” bearing on the vitality of the Nation as a single entity’ that a State must accord residents and nonresidents equal treatment.” Supreme Court of New Hampshire v. Piper, 470 U. S., at 279, quoting Baldwin, supra, at 383. Second, if the challenged restriction deprives nonresidents of a protected privilege, we will invalidate it only if we conclude that the restriction is not closely related to the advancement of a substantial state interest. Piper, supra, at 284. Appellants assert that the residency requirement offends neither part of this test. We disagree.
A
Appellants concede, as they must, that our decision in Piper establishes that a nonresident who takes and passes an examination prescribed by the State, and who otherwise is qualified for the practice of law, has an interest in practicing law that is protected by the Privileges and Immunities Clause. Appellants contend, however, that the discretionary admission provided for by Rule 1A:1 is not a privilege protected by the Clause for two reasons. First, appellants argue that the bar examination “serves as an adequate, alternative means of gaining admission to the bar. ” Brief for Appellants 20. In appellants’ view, “[s]o long as any applicant may gain admission to a State’s bar, without regard to residence, by passing the bar examination,” id., at 21, the State cannot be said to have discriminated against nonresidents “as a matter of fundamental concern.” Id., at 19. Second, appellants argue that the right to admission on motion is not within the purview of the Clause because, without offense to the Constitution, the State could require all bar applicants to pass an examination. Neither argument is persuasive.
We cannot accept appellants’ first theory because it is quite inconsistent with our precedents. We reaffirmed in Piper the well-settled principle that “‘one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.’” Piper, supra, at 280, quoting Toomer v. Witsell, supra, at 396. See also United Building & Construction Trades Council, supra, at 219 (“Certainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause”). After reviewing our precedents, we explicitly held that the practice of law, like other occupations considered in those cases, is sufficiently basic to the national economy to be deemed a privilege protected by the Clause. See Piper, supra, at 280-281. The clear import of Piper is that the Clause is implicated whenever, as is the case here, a State does not permit qualified nonresidents to practice law within its borders on terms of substantial equality with its own residents.
Nothing in our precedents, moreover, supports the contention that the Privileges and Immunities Clause does not reach a State’s discrimination against nonresidents when such discrimination does not result in their total exclusion from the State. In Ward v. Maryland, 12 Wall. 418 (1871), for example, the Court invalidated a statute under which residents paid an annual fee of $12 to $150 for a license to trade foreign goods, while nonresidents were required to pay $300. Similarly, in Toomer, supra, the Court held that nonresident fishermen could not be required to pay a license fee 100 times the fee charged to residents. In Hicklin v. Orbeck, 437 U. S. 518 (1978), the Court invalidated a statute requiring that residents be hired in preference to nonresidents for all positions related to the development of the State’s oil and gas resources. Indeed, as the Court of Appeals correctly noted, the New Hampshire rule struck down in Piper did not result in the total exclusion of nonresidents from the practice of law in that State. 822 F. 2d, at 427 (citing Piper, supra, at 277, n. 2).
Further, we find appellants’ second theory — that Virginia could constitutionally require that all applicants to its bar take and pass an examination — quite irrelevant to the question whether the Clause is applicable in the circumstances of this case. A State’s abstract authority to require from resident and nonresident alike that which it has chosen to demand from the nonresident alone has never been held to shield the discriminatory distinction from the reach of the Privileges and Immunities Clause. Thus, the applicability of the Clause to the present case no more turns on the legality vel non of an examination requirement than it turned on the inherent reasonableness of the fees charged to nonresidents in Toomer and Ward. The issue instead is whether the State has burdened the right to practice law, a privilege protected by the Privileges and Immunities Clause, by discriminating among otherwise equally qualified applicants solely on the basis of citizenship or residency. We conclude it has.
B
Our conclusion that the residence requirement burdens a privilege protected by the Privileges and Immunities Clause does not conclude the matter, of course; for we repeatedly have recognized that the Clause, like other constitutional provisions, is not an absolute. See, e. g., Piper, supra, at 284; United Building & Construction Trades Council, 465 U. S., at 222; Toomer, 334 U. S., at 396. The Clause does not preclude disparity in treatment where substantial reasons exist for the discrimination and the degree of discrimination bears a close relation to such reasons. See United Building & Construction Trades Council, supra, at 222. In deciding whether the degree of discrimination bears a sufficiently close relation to the reasons proffered by the State, the Court has considered whether, within the full panoply of legislative choices otherwise available to the State, there exist alternative means of furthering the State’s purpose without implicating constitutional concerns. See Piper, supra, at 284.
Appellants offer two principal justifications for the Rule’s requirement that applicants seeking admission on motion reside within the Commonwealth of Virginia. First, they contend that the residence requirement assures, in tandem with the full-time practice requirement, that attorneys admitted on motion will have the same commitment to service and familiarity with Virginia law that is possessed by applicants securing admission upon examination. Attorneys admitted on motion, appellants argue, have “no personal investment” in the jurisdiction; consequently, they “are entitled to no presumption that they will willingly and actively participate in bar activities and obligations, or fulfill their public service responsibilities to the State’s client community.” Brief for Appellants 26-27. Second, appellants argue that the residency requirement facilitates enforcement of the full-time practice requirement of Rule 1A:1. We find each of these justifications insufficient to meet the State’s burden of showing that the discrimination is warranted by a substantial state objective and closely drawn to its achievement.
We acknowledge that a bar examination is one method of assuring that the admitted attorney has a stake in his or her professional licensure and a concomitant interest in the integrity and standards of the bar. A bar examination, as we know judicially and from our own experience, is not a casual or lighthearted exercise. The question, however, is whether lawyers who are admitted in other States and seek admission in Virginia are less likely to respect the bar and further its interests solely because they are nonresidents. We cannot say this is the case. While Pvper relied on an examination requirement as an indicium of the nonresident’s commitment to the bar and to the State’s legal profession, see Piper, 470 U. S., at 285, it does not follow that when the State waives the examination it may make a distinction between residents and nonresidents.
Friedman’s case proves the point. She earns her living working as an attorney in Virginia, and it is of scant relevance that her residence is located in the neighboring State of Maryland. It is indisputable that she has a substantial stake in the practice of law in Virginia. Indeed, despite appellants’ suggestion at oral argument that Friedman’s case is “atypical,” Tr. of Oral Arg. 51, the same will likely be true of all nonresident attorneys who are admitted on motion to the Virginia Bar, in light of the State’s requirement that attorneys so admitted show their intention to maintain an office and a regular practice in the State. See Application of Brown, 213 Va. 282, 286, n. 3, 191 S. E. 2d 812, 815, n. 3 (1972) (interpreting full-time practice requirement of Rule 1A:1). This requirement goes a long way toward ensuring that such attorneys will have an interest in the practice of law in Virginia that is at least comparable to the interest we ascribed in Piper to applicants admitted upon examination. Accordingly, we see no reason to assume that nonresident attorneys who, like Friedman, seek admission to the Virginia bar on motion will lack adequate incentives to remain abreast of changes in the law or to fulfill their civic duties.
Further, to the extent that the State is justifiably concerned with ensuring that its attorneys keep abreast of legal developments, it can protect these interests through other equally or more effective means that do not themselves infringe constitutional protections. While this Court is not well positioned to dictate specific legislative choices to the State, it is sufficient to note that such alternatives exist and that the State, in the exercise of its legislative prerogatives, is free to implement them. The Supreme Court of Virginia could, for example, require mandatory attendance at periodic continuing legal education courses. See Piper, supra, at 285, n. 19. The same is true with respect to the State’s interest that the nonresident bar member does his or her share of volunteer and pro bono work. A “nonresident bar member, like the resident member, could be required to represent indigents and perhaps to participate in formal legal-aid work.” Piper, supra, at 287 (footnote omitted).
We also reject appellants’ attempt to justify the residency restriction as a necessary aid to the enforcement of the full-time practice requirement of Rule 1A:1. Virginia already requires, pursuant to the full-time practice restriction of Rule 1A:1, that attorneys admitted on motion maintain an office for the practice of law in Virginia. As the Court of Appeals noted, the requirement that applicants maintain an office in Virginia facilitates compliance with the full-time practice requirement in nearly the identical manner that the residency restriction does, rendering the latter restriction largely redundant. 822 F. 2d, at 429. The office requirement furnishes an alternative to the residency requirement that is not only less restrictive, but also is fully adequate to protect whatever interest the State might have in the full-time practice restriction.
Ill
We hold that Virginia’s residency requirement for admission to the State’s bar without examination violates the Privileges and Immunities Clause. The nonresident’s interest in practicing law on terms of substantial equality with those enjoyed by residents is a privilege protected by the Clause. A State may not discriminate against nonresidents unless it shows that such discrimination bears a close relation to the achievement of substantial state objectives. Virginia has failed to make this showing. Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
The District Court did not address Friedman’s claims that the residency requirement of Rule 1A:1 also violates the Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals did not pass on these contentions either, and our resolution of Friedman’s claim that the residency requirement violates the Privileges and Immunities Clause makes it unnecessary for us to reach them.
Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance?
A. No declaration of unconstitutionality
B. Act of Congress declared unconstitutional
C. State or territorial law, regulation, or constitutional provision unconstitutional
D. Municipal or other local ordinance unconstitutional
Answer:
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songer_circuit
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I
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
In re John HOUTMAN and Gladys Irene Houtman, Bankrupts. John HOUTMAN and Gladys Irene Houtman, Petitioners-Appellants, v. Edgar F. MANN and Edna M. Mann, Creditors-Appellees.
No. 76-3611.
United States Court of Appeals, Ninth Circuit.
Jan. 25, 1978.
Richard K. Park, Sacramento, Cal., for petitioners-appellants.
James A. Thompson, Redwood City, Cal., for creditors-appellees.
Before HUFSTEDLER and SNEED, Circuit Judges, and RENFREW, District Judge.
Hon. Charles B. Renfrew, United States District Court Judge, for the Northern District of California, sitting by designation.
This is an appeal from an order of the district court affirming a decision of the bankruptcy judge that a 1971 state court judgment for $55,000 against the appellants was nondischargeable in bankruptcy. The bankruptcy judge found that the judgment rested on a transaction “so tainted by fraud as to render it [the judgment] a nondischargeable obligation.” Presumably this meant that the judgment represented a “liability for obtaining money or property by false pretenses or false representations” and was therefore nondischargeable under § 17(a)(2) of the Bankruptcy Act. 11 U.S.C. § 35(a)(2). We affirm.
I. Facts.
The Manns, appellees and judgment creditors of the bankrupts, were awarded both compensatory and punitive damages in a suit brought against the Houtmans in the El Dorado County Superior Court in California in November, 1971. This judgment was awarded after a jury trial on a complaint alleging fraud and misrepresentation resulting from a three-party real estate transaction. On June 9, 1972 both Houtmans filed petitions for bankruptcy. Each listed the Manns in the proper schedule as unsecured creditors. On October 4, 1972, the Manns, pursuant to the bankruptcy rules then in effect, filed an application to determine whether their judgment debt was nondischargeable. On January 11, 1973, the bankruptcy judge held a hearing on this application, at which time he examined the complaint, the jury instructions and the judgment contained in the state court record but, although offered by the Manns, refused to consider the pretrial order and trial transcript. He also heard testimony from the appellants in which they denied the underlying transaction involved fraud. Thereafter, he orally announced that the debt was dischargeable. The Manns filed a notice of appeal which, at the suggestion of the bankruptcy judge, was withdrawn to permit him to reconsider the matter. On May 10, 1974, he issued new findings of fact and conclusions of law holding that the debt was nondischargeable because of fraud. It is these findings and conclusions that the district court affirmed.
II. The Proper Role of State Court Proceedings.
We begin by recognizing that we may not set aside the findings of fact of the bankruptcy judge which have been affirmed by the district court unless such findings are clearly erroneous. Coen v. Zick, 458 F.2d 326 (9th Cir. 1972). The appellants do not dispute this rule; their argument is that the bankruptcy judge improperly gave conclusive weight to the documents depicting the state court proceedings and refrained from exercising his exclusive jurisdiction to determine the dischargeability of debt as required by section 17(c)(2) of the Bankruptcy Act as amended in 1970.
To support this contention appellants point to the bankruptcy judge’s oral order holding the debt dischargeable and his recantation, which appellants insist can only be explained by the bankruptcy judge believing that, under the authority of Coen v. Zick, supra, he was bound by the state court proceedings to find the debt not dis-chargeable. Were we to accept the view that the bankruptcy judge considered himself compelled by the state court documents presented to him to find the debt not dis-chargeable we would agree that the district court’s order would have to be reversed. The 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dischargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. This does not mean that the documents which officially enshrine the state court proceedings may not be considered by the bankruptcy judge as establishing the nondischargeability of a debt. What is required is that the bankruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischargeability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8). See In re Mountjoy, 368 F.Supp. 1087, 1096 (W.D.Mo.1973).
Nor do we believe that Coen v. Zick, supra, is inconsistent with our position even though it dealt with a bankruptcy proceeding and a judgment debt originating prior to the 1970 Amendments. In that case both the bankrupt and the judgment creditor chose to rest their case on “the record of the proceedings in the state court, including the complaint, the amended answer, the instructions numbered 6 and 7 with respect to punitive damages and the amended judgment in favor of appellants awarding $5,100 as compensatory damages and the sum of $1,000 as punitive damages.” 458 F.2d at 329. Under these circumstances the court was quite justified in treating the above documents as true and looking only to them to determine whether the findings of the bankruptcy referee, as affirmed by the district court, were clearly erroneous. Should Coen v. Zick be regarded as holding more than this, its more expansive reading must be considered as qualified by the enactment of the 1970 Amendments.
Returning to the facts of the case before us, we are convinced that the bankruptcy judge did not consider himself bound by the state court proceedings to find the Mann judgment debt nondischargeable. Although he should have accepted the offer of the pretrial order and trial transcript and might well have better articulated the basis of his findings, we hold that under the circumstances of this case, one in which oral testimony of bankrupts was heard, the following findings indicate that the bankruptcy judge did not consider himself bound by the state court proceedings;
“4. That the Bankruptcy Court should consider the State Court proceedings resulting in a judgment based upon fraud to determine if the State Court has proceeded in such a manner and has found facts in its determination that would convince the Bankruptcy Court considering these facts from its exclusive view with relation to bankruptcy, that the transaction was so tainted by fraud as to render it a nondischargeable obligation;
5. The Court has reviewed the State Court record and finds that the evidence presented, if heard directly by it, would support the contention that the obligation is nondischargeable because of the findings of fraud.”
These findings indicate that the bankruptcy judge evaluated the facts before him to determine nondischargeability and after such evaluation concluded that the judgment debt of the Mann’s was not discharge-able.
We must determine not only that the bankruptcy judge applied the correct legal standard to the facts before him but also that his application was not clearly erroneous. We hold that his findings of fact were not clearly erroneous. A state court judgment based on fraud is sufficient to establish a prima facie case that it represents a debt nondischargeable under § 17(a)(2). As we have discussed, see pp. 653-654 supra, the bankrupt is entitled to rebut this prima facie case, but the conclusion that the Houtmans failed to do so is not clearly erroneous. In his testimony before the bankruptcy judge, Mr. Houtman admitted that his testimony there duplicated his testimony in state court, which was obviously disbelieved. His testimony that he lost in state court because his lawyer failed to prepare adequately for trial due to the lawyer’s confidence in a statute-of-limitations defense is conclusory, uncorroborated by his attorney, and belied by the bankrupts’ failure to introduce any new evidence before the bankruptcy judge. Under the circumstances, the judge was not required to find that the state court judgment was unreliable, and his finding of fact that the Houtmans’ “obligation is nondischargeable because of the finding of fraud” in state court is supported by the evidence.
III. The Meaning of Scienter Under Section 17(a)(2).
There remains but one possible error of law by the bankruptcy judge which we should consider. That is whether the type of fraud on which the judgment debt rests is that described in section 17(a)(2) of the Bankruptcy Act. We have adopted a five-part test for determining when a debt is nondischargeable under this provision. That test is:
“(1) the debtor made the representations;
(2) That at the time he knew they were false;
(3) That he made them with the intention and purpose of deceiving the creditor;
(4) that the creditor relied on such representations;
(5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.” (Italics supplied).
In re Taylor, 514 F.2d 1370, 1373 (9th Cir. 1975).
The bankruptcy judge looked at the jury instructions given in the state court trial as indicative of the specific facts found by the jury. These instructions put all five issues specified in the Taylor test before the jury. However, the instructions given in the state case allowed the jury to convict if the representation was “known to be false or recklessly made without knowing whether it is true or false.” The bankruptcy judge accepted this as an appropriate formulation of the knowledge element, and, as indicated above, accepted “the contention that the obligation is nondischargeable because of the finding of fraud.” Therefore, we must decide whether the second element of the Taylor test can be satisfied only by actual knowledge or whether reckless disregard for the truth also satisfies this requirement.
We hold that the latter is sufficient. This conclusion is suggested by the very case from which the five-part Taylor test was derived, Sweet v. Ritter Finance Company, 263 F.Supp. 540 (W.D.Va.1967). There the court actually applied a reckless disregard standard. An illiterate bankrupt was accused of making a false representation on the basis of a statement prepared by his wife which he signed. The court found that there was no evidence of recklessness in Sweet’s reliance on his wife. Id. at 544. The clear implication is that a showing of recklessness would have been sufficient to make the debt nondischargeable even if the bankrupt had had no actual knowledge of the falsity.
The Supreme Court decision in Morimura, Arai & Company v. Taback, 279 U.S. 24, 49 S.Ct. 212, 73 L.Ed. 586 (1929) provides further support for our holding. In that case the Court held that “reckless indifference to the actual facts, without examining the available source of knowledge which lay at hand, and with no reasonable ground to believe that it was in fact correct” was sufficient to establish the knowledge element under a provision of the Bankruptcy Act then current which completely barred a discharge of all debts if the bankrupt had made a materially false statement in order to obtain property on credit. Id. at 33, 49 S.Ct. at 215. Since the 1960 amendment to the Bankruptcy Act, use of a materially false statement in order to obtain credit is no longer a complete bar to discharge for individual bankrupts, but is included in § 17(a)(2) along with false representations as one of the grounds which will render an individual debt nondischargeable. The close statutory relationship of these two concepts now suggests that a similar definition of knowledge would be appropriate. Further, a strict reading of the knowledge element of the false representation exception would have the incongruous effect of imposing a stricter standard for exempting a single debt from discharge than formerly was required to completely bar discharge of all debts.
In addition, the scienter requirement in the tort of misrepresentation generally has been interpreted to include recklessness. See W. Prosser, Torts, § 701 (4th Ed. 1971). The reasons for inclusion, viz. the difficulty in distinguishing knowledge from reckless disregard, and to discourage the shunning of truth to preserve the defense of no scienter, are applicable with equal force in the bankruptcy context.
Finally, there are dicta in other decisions of this circuit which suggest that our interpretation is proper. Matter of Nelson, 561 F.2d 1342 (1977) (“knew or should have known”); Wright v. Lubinko, 515 F.2d 260 (9th Cir. 1975) (“fraudulent intent or reckless disregard for the truth tantamount to wilful misrepresentation”).
We recognize that exceptions to dischargeability are to be strictly construed Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915). A canon of interpretation adjuring strictness is not, however, a justification for abandoning good sense. It makes good sense to hold that either actual knowledge of the falsity of a statement, or reckless disregard for its truth, satisfies the scienter requirement for nondischargeability of a debt under § 17(a)(2). We so hold.
AFFIRMED.
. This section now provides that “[a] creditor who contends that his debt is not discharged under clause (2), (4) or (8) of subdivision (a) of this section must file an application for a determination of dischargeability . . and, unless an application is timely filed, the debt shall be discharged.” (Emphasis added). By requiring action in the bankruptcy court to secure a determination of nondischargeability, this section effectively precludes any concurrent action by state courts. See 1A Collier on Bankruptcy fl 17.28A[3] (1976). The legislative history explicitly states that one of the objectives of the amendments was to put “the matter of dischargeability of [this] type of debt within the exclusive jurisdiction of the bankruptcy court.” H.Rep.No.91-1502, 91st Cong., 2d Sess. 2 (1970), U.S.Code Cong. & Admin.News 1970, p. 4156.
. We acknowledge that a grant of exclusive jurisdiction to federal courts does not automatically preclude the application of the doctrine of collateral estoppel. Becher v. Contoure Laboratories, 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752 (1928); cf. Clark v. Watchie, 513 F.2d 994 (9th Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). However, we believe that collateral estoppel is inappropriate when “a new determination is warranted by factors relating to the allocation of jurisdiction between [the two courts]." Restatement 2d of Judgments § 68.1(c) [Tent. Draft No. 4, 1977]; cf. Lyons v. Westinghouse Electric Corp., 222 F.2d 184 (2d Cir.), cert. denied, 350 U.S. 825, 76 S.Ct. 52, 100 L.Ed. 737 (1955) (refusal to give collateral estoppel effect to state court finding of no antitrust violation because of need for “an untrammeled jurisdiction of the federal courts.” Id. at 189).
Congress, in enacting the 1970 Amendments to the Bankruptcy Act, felt that
One of the strongest arguments in support of the bill is that, ... a single court, to wit, the bankruptcy court, will be able to pass upon the question of dischargeability of a particular claim and it will be able to develop an expertise in resolving the problems in particular cases . . . . Since this is a Federal statute, the Federal courts necessarily have the final word as to the meaning of any term contained therein. S.Rep.No.91-1173, 91st Cong., 2d Sess. (1970) at 9.
To give collateral estoppel effect to prior state court factual findings would impair the exercise of the expertise of the bankruptcy court. The determination of nondischargeability should remain an exclusive function of the bankruptcy court unimpeded by the refinements of collateral estoppel by state court judgments.
Our view is supported by action in other circuits. The Third Circuit refused to give collateral estoppel effect to a state court “judgment in fraud” even prior to the 1970 amendments. In re Johnson, 323 F.2d 574 (3rd Cir. 1963). The Fourth Circuit has emphasized that the bankruptcy court can look beyond the prior judgment and even hear new evidence at the hearing on dischargeability. Matter of Pigge, 539 F.2d 369 (4th Cir. 1976).
. The just-quoted fifth finding of fact creates some uncertainty about which facts the bankruptcy judge relied on to support his determination that the Houtmans owed money to the Manns because of Mr. Houtman’s fraud. Since most of the evidence presented in state court was not presented in federal court, even by way of a transcript, it is difficult to understand how the bankruptcy judge could know that this evidence, “if heard directly by [him], would support the contention that the obligation is nondischargeable because of the findings of fraud.” This finding, however, cannot be isolated from its context, and when the whole record before the bankruptcy judge is considered, it becomes reasonably clear what he was talking about.
. “(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as
(2) are liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive, or for willful and malicious conversion of the property of another.”
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_origin
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D
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the 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.
LOWENSTEIN v. SALOP et al.
No. 132.
Circuit Court of Appeals, Second Circuit.
Feb. 1, 1932.
Benjamin Bernstein, of New York City (Benjamin Bernstein and Max J. Wolff, both of New York City, of counsel), for defendant-appellant Alexander A. Salop.
Jacob M. Zinaman, of New York City, for complainant-appellee William Lowenstein as trustee in bankruptcy of Meyer Reikes, Inc.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The defendant Manufacturers’ Trust Company is a mere stakeholder, and has no interest in this appeal. The trustee in bankruptcy of Meyer Reikes, Inc., sues to recover a transfer made by the bankrupt to the defendant Salop within four months of the filing of the petition in bankruptcy on March 29, 1929, and alleged to have been in violation of section 60b of the Bankruptcy Act (11 USCA § 96 (b). The trial court sustained this cause of action and decreed that the transfer was an unlawful preference and should be turned back. The transferee, Salop, contends that there was no proof that (a) the bankrupt was insolvent at the time of the transfer; (b) that Salop had reasonable cause to believe that the transfer would effect a preference; or (c) that a preference was in faet effected.
The bankrupt had been a corporation engaged in the contracting business, fitting up restaurants and altering buildings. AH its stock was owned by Meyer Reikes. It had done business with Salop for some ten years. On February 14, 1929, Salop held its note for $3,000 drawn to his order and indorsed by Reikes individually, which Salop had discounted. This note had become due on January 9, 1929, and remained unpaid. Salop likewise had discounted a promissory note for $3,500, drawn by Papae & Go. to the order of Reikes individually, and indorsed by the latter. This note had become due January 24, 1929, and was held by Salop on February 14, 1929. Salop threatened suit on both notes. In order to avoid suit, Meyer Reikes, Inc., entered into an agreement with Salop under date of February 14,1929, which recited that Salop was the owner of the $3,-000 overdue note of Meyer Reikes, Inc., and also the owner of the $3,500 overdue note of Papae & Co., the proceeds of which, when it was discounted by Salop, were deKvered by Meyer Reikes to Meyer Reikes, Inc. The agreement provided that the above notes should be surrendered, and that in consideration of the surrender Meyer Reikes, Inc., assigned to Salop all its equity in certain promissory notes of the Regal Food Shops belonging to it which were at the time held by the Manufacturers’ Trust Company as security for a loan. This equity was not merely $7,500, as contended by Salop; but aetuaUy $17,000. So Reikes testified (fol. 109), and so the answer of the trust company, which was a mere stakeholder, indicated. The counsel for Salop conceded that the facts in this answer were true.
It appears from the foregoing that Salop acquired equities of the face value of about $17,000 in exchange for the note of Meyer Reikes, Inc., for $3,000, and the note of Papae & Company for $3,500. Bach note had been protested for nonpayment.
The trial judge held that Meyer Reikes, Inc., was insolvent at the time the transfer of the equities was made, that Salop had reasonable cause to beHeve it insolvent and to believe that the enforcement of the transfer would effect a preference. He found that the bankrupt’s equity at the time of the trial was $4,464.10 in cash and $12,770.92 in notes, which he ordered the Manufacturers’ Trust Company to turn over to the complainant.
The proof justified the finding of the trial court that the bankrupt was insolvent at the time the transfer was made. The assets shown by schedule B-3 were valued at $118,574.97. They inelnded a balance of $86,899.10 due from Yeribest Corporation. That corporation owned an improved piece of real estate on which there were three mortgages for $161,700, $80,750, and $20,000, making altogether $262,450. The company had thirteen vacant apartments out of fiftythreo, was opierated at a loss, and evidently was without available assets outside of its practically worthless equity in the apartment house. The mortgagee instituted a foreclosure of the third mortgage in March, 1929, and sold the property under decree of foreclosure. Baehraeh, who owned the third mortgage, had appraised the property at a value of $300,000 when he made the loan. Baehraeh testified at the trial that it was worth $325,000, but the condition of the property would certainly justify a valuation at no more than $300,000 at most. Such a valuation would reduce the worth of the claim against Yeribest Corporation from $86,899.10, at which it was carried in the schedules, to $37,550.
After an analysis of the figures furnished by the accountant Karp, appellant’s counsel has placed the total valuation of the bank-, rupt’s assets at $238,710 (appellant’s brief, at page 32). But this $238,710 included the claim against the Veribest Corporation valued at $86,899.10, whereas the value should not have exceeded $37,550. Thus the value of the assets calculated at $238,710 would be reduced by $49,349.10, and so, would not exceed $189,360.90. According to tbe same analysis the liabilities were $207,237.84, thus leaving Meyer Reikes, Ine., insolvent by $17,876.94. Even this is on tbe assumption that bills and notes aggregating $85,-662.77 on which Meyer Reikes, Inc., was secondarily liable, would all be paid. The unsecured creditors were substantially the same on February 14, 1929’, as at the time of the filing of the petition in bankruptcy, so that we may say that Meyer Reikes, Inc., was insolvent when the transfer was made. At that time Salop knew that one of the notes of Moyer Reikes, Ine., which he held, had been protested for nonpayment, that be was himself threatening the company with suit, and that Meyer Reikes, when Salop insisted that there should be payment or an exchange of other notes, said to him: “The only thing I have is what the hank holds.” Those things must have made it plain to Salop that the corporation was in desperate straits. They put him on inquiry and gave him reasonable cause to believe that Meyer Reikes, Ine., was insolvent. In such circumstances, any transfer in payment of his claim ag’ainst the corporation was recoverable under section 60b of the Bankruptcy Act if it resulted in a preference.
It is clear that the transfer of the equity in payment of the debt of Meyer Reikes, Ine., on its own note for $3,000 payable to Salop was voidable if it effected a preference.
The transfer of the note of Papae & Go. to Meyer Reikes, Ine., stands in a somewhat different category. It is stated in the agreement of February 14, 1929, between Salop and Meyer Reikes, Ine., that the former was the owner and holder of the Papae & Co. note, and that it had been discounted by Reikes, and that the proceeds had been delivered to Meyer Reikes, Inc. This note was drawn by Papae & Co. to the order of Meyer Reikes individually, and indorsed by him in blank. Meyer Reikes, Ine., was not liable upon the note, for it was neither a maker nor an indorser. Even if it were assumed that Reikes originally took it on behalf of his company, of which there is no proof, his indorsement would not bind the latter, for the liability of an undisclosed principal docs not apply to negotiable paper. Only parties whose names appear upon a note can he sued thereon. Metcalf v. Williams, 104 U. S. at page 98, 26 L. Ed. 665; Cragin v. Lovell, 109 U. S. 194, 3 S. Ct. 132, 27 L. Ed. 903; First National Bank v. Wallis, 150 N. Y. 455, 44 N. E. 1038; Ranger v. Thalmann, 84 App. Div. 341, 82 N. Y. S. 846, affirmed 178 N. Y. 574, 70 N. E. 1108; Tucker Manufacturing Co. v. Fairbanks, 98 Mass. 101; 1 Williston on Contracts § 278.
The substance of the transaction here was a transfer to Salop of equities of the par value of $17,000 in payment of the bankrupt’s note for $3,000 and in exchange for the Papae & Co. note for $3,500 which Salop had held as security for his advance to Reikes. The effect of all this was to pay the debt of tbe bankrupt to Salop for $3,000 and interest, and to transfer to the bankrupt the $3,500 note of Papae & Co. in return for the bankrupt’s equity in the notes of the Regal Food Shops.
The note for $3,500 of Papae & Co. had been protested for nonpayment when the exchange was agreed upon on February 14, 1929, and we do not know what it might realize. Nor do we know what the equities of $.17,000 may ultimately yield, though at the date of trial they stood at $4,164.10 in cash and $12,770.92 in uncollected notes at par. It is true that at the time of the trial on March 3,1931, one of these uncollected notes of the Regal Food Shops for $489.58 was a day or two overdue, but there had then been paid on the whole series of Regal notes which aggregated $23,053.10 when the assignment to Salop was made, the sum of' $10,282.18. The $4,164.10 in cash and the remaining Regal notes amounting to $12,770.92 at the time of the trial were held by the stakeholder for the account of the owner of the equities, and were decreed by the District Court to be turned over to the complainant. In view of the continuous payments upon the notes of the Regal Food Shops prior to the date of trial, it may fairly be said that, when the equities in the notes were transferred to Salop on February 14, 1929, they had a greater value than the face of the $3,500 note of Papae & Co., and the $3,000' note of Meyer Reikes, Inc., held by Salop. If this was not so, Salop should have offered proof to the contrary. The assignment, of the equities in the Regal notes to Salop effected an unlawful preference because Meyer Reikes, Inc., was at the time insolvent and the equities were of sufficient value to exceed the face of the note of that company held by Salop and that of the note of Papae & Co. as well.
The transfer of the Papae & Co. note was not in itself a preference, because that note was not an obligation of the bankrupt. The exchange of it for assets of Meyer Reikes, Inc., of much greater value might be a transfer in fraud of the creditors of Meyer Reikes, Inc., but the third count of the bill of complaint, seeking to recover the equities transferred to Salop on the ground that the transfer was to “hinder, delay and defraud” creditors, was dismissed by the trial judge, and the trustee in bankruptcy did not appeal. The recovery sought here is under section 60b of the Bankruptcy Act (11 USCA § 96 (b) to set aside an unlawful preference.
Salop obtained equities from the bankrupt sufficient to pay in full its note for $3,000 and to equal or exceed the face of the note of Papae & Co. as well. Thus he participated in a transaction which involved an illegal preference. In doing this, he made no attempt to apportion between the $3,006 note of Meyer Reikes, Inc., and the $3,500 note of Papae & Co. the equities in the Regal notes. Accordingly, the entire consideration which he received may be regarded as so affeeted with the illegality of the unlawful preference that the transfer of the equities must be set aside.
It is perfectly true that, if Salop had transferred the $3,500 note of Papae & Co. for such a portion of the equities in the Regal notes as did not defraud the creditors of Meyer Reikes, Inc., and had received the remaining portion of the equities in payment of the $3,000 note of the latter, the first transaction would have been unassailable. From this it may be argued that when Salop obtained a transfer of all the equities in exchange for a discharge of his claim of $3,006 against Meyer Reikes^ Inc., and for the $3,-500 Papae & Co. note, the amount realized fiGm the equities ought to be apportioned in the ratio which the $3,000' note bore to the value of the $3,500 note at the time when the assignment of the equities to Salop was made. If the note of Papae & Co. 'had been worth its face value and the equities had realized $13,000, such a method of apportionment would give the bankrupt estate $6,000 and Salop $7,000. In other words, in the assumed case, Salop, by invoking an equitable rule of apportionment, would deplete the estate to the net amount of $3,500, and this while engaged in obtaining an unlawful preference through combining the note of Papae & Co. which he owned with a discharge of his .claim against Meyer Reikes, Ine., in order to furnish the consideration for the transfer of the equities in the Regal notes. We can discover no sound reason for aiding a person engaged in obtaining an unlawful preference to carry out any part of his plan. The preferential payment and the Papae & Co. ' note together furnished, the consideration for the transfer of the equities. Salop did not apportion the equities between the legal and illegal elements of the consideration in return for which the equities were exchanged. We are not disposed to apply the equitable doctrine of apportionment to enable Salop to obtain a profit. A rescission of the entire transaction seems the only proper course.
A decree should pass allowing the trustee in bankruptcy to recover the equities in the notes of the Regal Food Shops and their proceeds, but directing him to credit to Salop the value of the $3,500 note of Papae & Co. on February 14, 1929, and directing Salop to assign to the trustee all his right, title, and interest in the said note and to deliver the same to the trustee if it is in his possession.
The cause is remanded, with directions to modify the decree accordingly.
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:
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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.
HUI et al. v. CASTANEDA, as personal representative of THE ESTATE OF CASTANEDA, et al.
No. 08-1529.
Argued March 2, 2010
Decided May 3, 2010
Sotomayor, J., delivered the opinion for a unanimous Court.
Elaine J. Goldenberg argued the cause for petitioners. With her on the briefs for petitioner Stephen Gonsalves were Paul M. Smith, William M. Hohengarten, Matthew S. Hellman, and David P. Sheldon. Steven J. Renick and Patrick L. Hurley filed briefs for petitioner Esther Hui.
Pratik A. Shah argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Kagan, Assistant Attorney General West, Deputy Solicitor General Kneedler, Barbara L. Herwig, Howard S. Scher, and David S. Cade.
Conal Doyle argued the cause for respondents. With him on the brief were Adele P. Kimmel, Amy Radon, Arthur H. Bryant, Leslie A. Brueckner, and Thomas M. Dempsey.
Timothy B. Hyland filed a brief for the Commissioned Officers Association of the United States Public Health Service, Inc., et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Jeffrey W. Sarles and Steven R. Shapiro; for National Experts on Health Services for Detained Persons by Jonathan S. Franklin and Tillman J. Breckenridge; for the National Immigrant Justice Center by Suzanne Sahakian and Charles Roth; and for Representative John Conyers, Jr., et al. by Jonathan S. Massey.
Justice Sotomayor
delivered the opinion of the Court.
This case presents the question whether 42 U. S. C. § 233(a), as added, 84 Stat. 1870, precludes an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), against U. S. Public Health Service (PHS) personnel for constitutional violations arising out of their official duties. When federal employees are sued for damages for harms caused in the course of their employment, the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346, 2671-2680, generally authorizes substitution of the United States as the defendant. Section 233(a) makes the FTCA remedy against the United States “exclusive of any other civil action or proceeding” for any personal injury caused by a PHS officer or employee performing a medical or related function “while acting within the scope of his office or employment.” Based on the plain language of § 233(a), we conclude that PHS officers and employees are not personally subject to Bivens actions for harms arising out of such conduct.
I
Francisco Castaneda was detained by U. S. Immigration and Customs Enforcement (ICE) at the San Diego Correctional Facility (SDCF) beginning in March 2006. According to the complaint later filed in the District Court, when Castaneda arrived at SDCF he had on his penis an irregular, raised lesion that measured roughly two centimeters square. Castaneda promptly brought his condition to the attention of medical personnel working for the Division of Immigration Health Services, reporting that the lesion was growing in size and becoming more painful and that it frequently bled and emitted a discharge. Petitioner Dr. Esther Hui, a civilian PHS employee, was the physician responsible for Castaneda’s medical care during his detention at SDCF. Petitioner Commander Stephen Gonsalves, a commissioned PHS officer, was a health services administrator at SDCF during the relevant period.
Between March 2006 and January 2007, Castaneda persistently sought treatment for his condition. As his disease progressed, the lesion became increasingly painful and interfered with his urination, defecation, and sleep. In December 2006, Castaneda additionally reported a lump in his groin. A PHS physician’s assistant and three outside specialists repeatedly advised that Castaneda needed a biopsy to ascertain whether he had cancer. Petitioners denied requests for a biopsy and other recommended procedures as “elective.” App. 244, 249-251. Instead, Castaneda was treated with ibuprofen and antibiotics and was given an additional ration of boxer shorts.
After a fourth specialist recommended a biopsy in January 2007, the procedure was finally authorized. Instead of providing treatment, however, ICE released Castaneda from custody on February 5. A week later, biopsy results confirmed that Castaneda was suffering from penile cancer. The next day, Castaneda had his penis amputated, and he began chemotherapy after tests confirmed that the cancer had metastasized to his groin. The treatment was unsuccessful, and Castaneda died in February 2008.
Three months before his death, Castaneda filed suit against petitioners in the United States District Court for the Central District of California. As relevant, Castaneda raised medical negligence claims against the United States under the FTCA and Bivens claims against petitioners for deliberate indifference to his serious medical needs in violation of his Fifth, Eighth, and Fourteenth Amendment rights. After Castaneda’s death, respondents — Castaneda’s sister, Yanira Castaneda, and his daughter, Vanessa Castaneda (by and through her mother, Lucia Pelayo)— amended the complaint to substitute themselves as plaintiffs. Yanira and Vanessa Castaneda are respectively the representative of and heir to Castaneda’s estate.
Petitioners moved to dismiss the claims against them, contending that § 233(a) gives them absolute immunity from Bivens actions by making a suit against the United States under the FTCA the exclusive remedy for harms caused by PHS personnel in the course of their medical or related duties. The District Court denied the motion, concluding that §233(a)’s text and history evidence a congressional intent to preserve Bivens actions. Castaneda v. United States, 538 F. Supp. 2d 1279, 1288-1295 (2008). Petitioners filed an interlocutory appeal.
The Court of Appeals for the Ninth Circuit affirmed the District Court’s judgment that § 233(a) does not preclude respondents’ Bivens claims. Castaneda v. United States, 546 F. 3d 682 (2008). The court cited Carlson v. Green, 446 U. S. 14 (1980), for the proposition that a Bivens remedy is unavailable only when an alternative remedy is both expressly declared to be a substitute and can be viewed as equally effective, or when special factors militate against direct recovery. Looking to the statute’s text and history, the court noted that § 233(a) does not mention the Constitution or recovery thereunder and found it significant that §233 was enacted prior to this Court’s decision in Bivens. Drawing further support for its view from the statute’s legislative history and from subsequent congressional enactments, the Court of Appeals concluded that § 233(a) does not expressly make the remedy under the FTCA a substitute for relief under Bivens.
For essentially the reasons given in Carlson, 446 U. S., at 20-23, the Court of Appeals also determined that the FTCA remedy is not equally effective as a Bivens remedy. Unlike the remedy under the FTCA, the court reasoned, a Bivens remedy is awarded against individual defendants and may include punitive damages. Additionally, Bivens cases may be tried before a jury, and liability is governed by uniform federal rules rather than the law of the State in which the violation occurred. After further concluding that no special factors militate against finding a remedy available in these circumstances, the court held that respondents’ Bivens action could proceed.
As the Ninth Circuit recognized, its holding conflicts with the Second Circuit’s decision in Cuoco v. Moritsugu, 222 F. 3d 99 (2000), which construed § 233(a) to foreclose Bivens actions against PHS personnel. We granted certiorari to resolve this conflict. 557 U. S. 966 (2009).
II
A
Our inquiry in this case begins and ends with the text of § 233(a). See Harris Trust and Sav. Bank v. Salomon Smith Barney Inc., 530 U. S. 238, 254 (2000). The statute provides in pertinent part that
“[t]he remedy against the United States provided by sections 1346(b) and 2672 of title 28 . . . for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.” § 233(a) (emphasis added),
Section 283(a) grants absolute immunity to PHS officers and employees for actions arising out of the performance of medical or related functions within the scope of their employment by barring all actions against them for such conduct. By its terms, § 233(a) limits recovery for such conduct to suits against the United States. The breadth of the words “exclusive” and “any” supports this reading, as does the provision’s inclusive reference to all civil proceedings arising out of “the same subject-matter.” We have previously cited § 233(a) to support the contention that “Congress follows the practice of explicitly stating when it means to make FTCA an exclusive remedy.” Carlson, 446 U. S., at 20. The meaning of § 233(a) has become no less explicit since we last made that observation.
Our reading of § 233(a)’s text is not undermined by the fact that the provision preceded our decision in Bivens. Contrary to the view of the Court of Appeals, that a Bivens remedy had not yet been recognized when § 233(a) was enacted does not support the conclusion that Congress, in making the remedy provided by the FTCA “exclusive of any other civil action,” did not mean what it said. Language that broad easily accommodates both known and unknown causes of action.
The later enacted Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), 102 Stat. 4563, further supports this understanding of § 233(a). The Westfall Act amended the FTCA to make its remedy against the United States the exclusive remedy for most claims against Government employees arising out of their official conduct. In providing this official immunity, Congress used essentially the same language as it did in § 233(a), stating that the remedy against the United States is “exclusive of any other civil action or proceeding,” § 2679(b)(1). Notably, Congress also provided an exception for constitutional violations. Pursuant to § 2679(b)(2), the immunity granted by § 2679(b)(1) “does not extend or apply to a civil action against an employee of the Government . . . brought for a violation of the Constitution of the United States.” § 2679(b)(2)(A). The Westfall Act’s explicit exception for Bivens claims is powerful evidence that Congress did not understand the exclusivity provided by § 2679(b)(1) — or the substantially similar § 233(a) — to imply such an exception. Given Congress’ awareness of pre-existing immunity provisions like §233 when it enacted the Westfall Act, see United States v. Smith, 499 U. S. 160, 173 (1991), it is telling that Congress declined to enact a similar exception to the immunity provided by § 233(a).
B
In advocating a contrary reading of § 233(a), respondents rely heavily on our opinion in Carlson, as did the Court of Appeals. Carlson, however, is inapposite to the issue in this ease. There are two separate inquiries involved in determining whether a Bivens action may proceed against a federal agent: whether the agent is amenable to suit, and whether a damages remedy is available for a particular constitutional violation absent authorization by Congress. See United States v. Stanley, 483 U. S. 669, 684 (1987) (“[T]he availability of a damages action under the Constitution for particular injuries , . . is a question logically distinct from immunity to such an action on the part of particular defendants”). Even in circumstances in which a Bivens remedy is generally available, an action under Bivens will be defeated if the defendant is immune from suit. See, e. g., 403 U. S., at 397-398 (remanding for determination of respondents’ immunity after implying a cause of action under the Fourth Amendment).
Because petitioners in Carlson invoked no official immunity, the Court did not address that question. Instead, it considered whether a remedy was available under the Eighth Amendment for alleged violations of the Cruel and Unusual Punishments Clause notwithstanding that a federal remedy was also available under the FTCA. 446 U. S., at 16-17. Many of our subsequent Bivens decisions likewise addressed only the existence of an implied cause of action for an alleged constitutional violation. See, e. g., Wilkie v. Robbins, 551 U. S. 537, 549 (2007) (declining “to devise a new Bivens damages action for retaliating against the exercise of ownership rights”); Bush v. Lucas, 462 U. S. 367, 368 (1983) (declining to “authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors”).
This case presents the separate question whether petitioners are immune from suit for the alleged violations. To determine a defendant’s amenability to suit, we consider whether he or she may claim the benefits of official immunity for the alleged misconduct. Because petitioners invoke only the immunity provided by § 233(a), the question in this case is answered solely by reference to whether that provision gives petitioners the immunity they claim.
As noted, the text of § 233(a) plainly indicates that it precludes a Bivens action against petitioners for the harm alleged in this case. Respondents offer three arguments in support of their claim that it does not. None persuades us that § 233(a) means something other than what it says.
Respondents first contend that § 233(a) incorporates the entirety of the FTCA, as amended by the Westfall Act, through its reference to § 1346(b). Section 1346(b) in turn refers to “the provisions of chapter 171,” which constitute the FTCA, including the Westfall Act’s exception for claims “brought for a violation of the Constitution of the United States,” § 2679(b)(2)(A). Through this series of cross-references, respondents would read that exception for Bivens actions into § 233(a).
Section 233(a) is not susceptible of this reading. As petitioners observe, that provision refers only to “[t]he remedy against the United States provided by sections 1346(b) and 2672.” § 233(a) (emphasis added). Thus, only those portions of chapter 171 that establish the FTCA remedy are incorporated by §233(a)’s reference to § 1346. Section 2679(b) is not such a provision. Section 233(a)’s reference to §2672 — which is codified in chapter 171 — also belies respondents’ theory. If § 233(a)’s reference to § 1346(b) served to incorporate all the provisions of chapter 171, the separate reference to §2672 would be superfluous.
Respondents next argue that the Westfall Act’s Bivens exception, § 2679(b)(2)(A), directly preserves a Bivens action against PHS officers and employees. That § 2679(b)(2)(A) by its terms applies only to the specific immunity set forth in “[paragraph (1)” belies respondents’ claim. Moreover, if § 233(a) forecloses a Bivens action against PHS personnel, respondents’ reading of § 2679(b)(2)(A) would effect an implied repeal of that more specific provision. Although we noted in Smith that 12679(b) applies to all federal employees, see 499 U. S., at 173, we had no occasion to consider whether the Bivens exception in § 2679(b)(2)(A) impliedly repealed pre-existing immunity provisions to the extent of any inconsistency. “As we have emphasized, repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest.” Hawaii v. Office of Hawaiian Affairs, 556 U. S. 163, 175 (2009) (internal quotation marks and alteration omitted). Respondents have pointed to nothing in § 2679(b)’s text or drafting history that suggests that Congress intended to repeal the more comprehensive immunity provided by § 233(a).
Finally, respondents contend that other features of §233 show that subsection (a) does not make the remedy under the FTCA exclusive of all other actions against PHS personnel. Respondents first note § 233’s lack of a procedure for “scope certification” in federal-court actions. Under the FTCA, “certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose” transforms an action against an individual federal employee into one against the United States. § 2679(d)(1). Because § 233 does not provide a similar mechanism for scope certification in federal-court actions, respondents contend that PHS defendants seeking to invoke the immunity provided by § 233(a) must rely on the FTCA’s scope certification procedure, set forth in § 2679(d). Section 2679(d), respondents note, is in turn subject to the “limitations and exceptions” applicable to actions under the FTCA — including the exception for Bivens actions provided by § 2679(b)(2). See § 2679(d)(4).
We agree with petitioners that there is no reason to think that scope certification by the Attorney General is a prerequisite to immunity under § 233(a). To be sure, that immunity is contingent upon the alleged misconduct having occurred in the course of the PHS defendant’s duties, but a defendant may make that proof pursuant to the ordinary rules of evidence and procedure. As petitioners observe, proof of scope is in most § 233(a) cases established by a declaration affirming that the defendant was a PHS official during the relevant time period. See Reply Brief for Petitioner Hui 6-7, and n. 1. Thus, while scope certification may provide a convenient mechanism for establishing that the alleged misconduct occurred within the scope of the employee’s duties, the procedure authorized by § 2679(d) is not necessary to effect substitution of the United States. Finally, that the FTCA’s scope certification procedure was enacted almost two decades after § 233(a) confirms that Congress did not intend to make that procedure the exclusive means for PHS personnel to invoke the official immunity provided by § 233(a).
Respondents’ argument based on § 233(f) is similarly unavailing. That subsection authorizes the Secretary of Health and Human Services to “hold harmless or provide liability insurance” for a PHS officer or employee for personal injuries caused by conduct occurring “within the scope of his office or employment... if such employee is assigned to a foreign country ... and if the circumstances are such as are likely to preclude the remedies of third persons against the United States described in section 2679(b).” Noting that the FTCA precludes recovery against the United States for “[a]ny claim arising in a foreign country,” §2680(k), respondents urge that §233(f)’s authorization of insurance or indemnification in those circumstances anticipates that an injured party without a remedy under the FTCA may sue a PHS official directly. Accordingly, respondents contend, § 233(a) cannot be read to make the remedy under the FTCA truly exclusive. Even if that reading of § 233(f) were correct, it would not benefit respondents because an FTCA remedy is unquestionably available for the misconduct alleged in this case.
For the foregoing reasons, respondents' arguments do not undermine our conclusion that the immunity provided by § 233(a) precludes Bivens actions against individual PHS officers or employees for harms arising out of conduct described in that section.
* * *
In construing § 233(a) in petitioners’ favor, we are mindful of the confines of our judicial role. Respondents’ amici caution that providing special immunity for PHS personnel is contrary to the public interest. Respondents likewise contend that allowing Bivens claims against PHS personnel is necessary to ensure an adequate standard of care in federal detention facilities, and they further urge that permitting such actions would not endanger PHS’ institutional interests as it would simply place PHS personnel in the same position as other federal employees who perform similar functions. See Brief for Respondents 52-55, 60-61. We are required, however, to read the statute according to its text. Because § 233(a) plainly precludes a Bivens action against petitioners for the harms alleged in this case, we reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Because this case comes to us on petitioners’ motion to dismiss, we assume the truth of respondents’ factual allegations. See Fitzgerald v. Barnstable School Comm., 555 U. S. 246, 249 (2009).
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 397 (1971), this Court recognized an implied cause of action for damages against federal officers alleged to have violated the petitioner’s Fourth Amendment rights. We subsequently found such a remedy available for violations of an individual’s rights under the Cruel and Unusual Punishments Clause of the Eighth Amendment and the Due Process Clause. See Carlson v. Green, 446 U. S. 14, 17-19 (1980); Davis v. Passman, 442 U. S. 228, 230 (1979).
Although it does not bear directly on the question presented in this case, we note that while petitioners’ appeal was pending the Government filed a formal notice admitting liability with respect to respondents’ claims for medical negligence under the FTCA. App. 329.
The court concluded that it had jurisdiction over the interlocutory appeal because district court orders denying absolute immunity constitute “final decisions” for purposes of 28 U. S. C. § 1291. See 546 F. 3d, at 687 (citing Mitchell v. Forsyth, 472 U. S. 511, 524-527 (1985)); see also Osborn v. Haley, 549 U. S. 225, 238-239 (2007).
Prior to the Westfall Act amendments, the FTCA authorized substitution of the United States as a defendant in suits against federal employees for harms arising out of conduct undertaken in the scope of their employment, see 28 U. S. C. § 1346(b) (1982 ed.), but it made that remedy “exclusive” only for harms resulting from a federal employee’s operation of a motor vehicle, § 2679(b).
We express no opinion as to whether a Bivens remedy is otherwise available in these circumstances, as the question is not presented in this case.
Section 1346(b) provides in pertinent part that, “[sjubject to the provisions of chapter 171 of [Title 28], the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”
Section 2672 authorizes agency heads and their designees to “consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
Section 233(c) indudes such a provision for state-court actions, authorizing removal to federal court “[u]pon a certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose,” but unlike § 2679(d) it does not prescribe a particular mechanism for substituting the United States in federal-court actions.
As respondents note, the Westfall Act substantially limited the effect of § 233(f). See Brief for Respondents 32 (citing United States v. Smith, 499 U. S. 160, 166-167 (1991)). But because the Act does not weaken any inference about the meaning of § 233(a) that might be drawn from § 233(f), the changes effected by the Act are not relevant to the instant inquiry.
See Brief for American Civil Liberties Union as Amicus Curiae 25-28; Brief for National Experts on Health Services for Detained Persons as Amici Curiae 17-24; Brief for National Immigrant Justice Center as Amicus Curiae 20-21; Brief for Rep. John Conyers, Jr., et al. as Amici Curiae 25-31.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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sc_issuearea
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the 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.
UNITED STATES v. BASS
No. 01-1471.
Decided June 28, 2002
Per Curiam.
A federal grand jury sitting in the Eastern District of Michigan returned a second superseding indictment charging respondent with, inter alia, the intentional firearm killings of two individuals. The United States filed a notice of intent to seek the death penalty. Respondent, who is black, alleged that the Government had determined to seek the death penalty against him because of his race. He moved to dismiss the death penalty notice and, in the alternative, for discovery of information relating to the Government’s capital charging practices. The District Court granted the motion for discovery, and after the Government informed the court that it would not comply with the discovery order, the court dismissed the death penalty notice. A divided panel of the United States Court of Appeals for the Sixth Circuit affirmed the District Court’s discovery order. 266 F. 3d 532 (2001). We grant the petition for a writ of certiorari and now summarily reverse.
In United States v. Armstrong, 517 U. S. 456, 465 (1996), we held that a defendant who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent. We need go no further in the present case than consideration of the evidence supporting discriminatory effect. As to that, Armstrong says, that the defendant must make a “credible showing” that “similarly situated individuals of a different race were not prosecuted.” Id., at 465, 470. The Sixth Circuit concluded that respondent had made such a showing based on nationwide statistics demonstrating that “[tjhe United States charges blacks with a death-eligible offense more than twice as often as it charges whites” and that the United States enters into plea bargains more frequently with whites than it does with blacks. 266 F. 3d, at 538-539 (citing U. S. Dept. of Justice, The Federal Death Penalty System: A Statistical Survey (1988-2000), p. 2 (Sept. 12,2000)). Even assuming that the Armstrong requirement can be satisfied by a nationwide showing (as opposed to a showing regarding the record of the decisionmakers in respondent’s case), raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants. And the statistics regarding plea bargains are even less relevant, since respondent was offered a plea bargain but declined it. See Pet. for Cert. 16. Under Armstrong, therefore, because respondent failed to submit relevant evidence that similarly situated persons were treated differently, he was not entitled to discovery.
The Sixth Circuit’s decision is contrary to Armstrong and threatens the “performance of a core executive constitutional function.” Armstrong, supra, at 465. For that reason, we reverse.
It is so ordered.
In January 1995, the Department of Justice (DOJ) instituted a policy, known as the death penalty protocol, that required the Attorney General to make the decision whether to seek the death penalty once a defendant had been charged with a capital-eligible offense. See Pet. for Cert. 3 (citing DOJ, United States Attorneys’ Manual § 9-10.010 et seq. (Sept. 1997)). The charging decision continued to be made by one of the 93 United States Attorneys throughout the country, but the protocol required that the United States Attorneys submit for review all cases in which they had charged a defendant with a capital-eligible offense. Ibid.
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_trialpro
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Diana L. MASON, Individually and as Administrator of the Estate of Otis W. Mason, Deceased, Plaintiff-Appellee, v. TEXACO INC., Defendant-Appellant, v. ASHLAND CHEMICAL COMPANY, Defendant-Appellee.
No. 84-2220.
United States Court of Appeals, Tenth Circuit.
Nov. 28, 1988.
Gerald L. Michaud (Richard D. Cordry and Dwight A. Corrin of Corrin & Krysl, with him on the briefs) of Michaud, Cordry, Michaud, Hutton & Hutton, Wichita, Kan., for plaintiff-appellee.
Ken M. Peterson (Robert W. Coykendall, with him on the briefs) of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, Kan., for defendant-appellant.
Wesley A. Weathers of Weathers & Riley, Topeka, Kan., for defendant-appellee.
Before ANDERSON, BALDOCK and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
This products liability case involves claims of personal injury and wrongful death under Kansas law. Jurisdiction was based upon diversity of citizenship. 28 U.S.C. § 1332. Following a fourteen-week trial, the jury returned a verdict against defendant Texaco Inc. (Texaco) and in favor of Diana L. Mason, individually and as administrator of the estate of Otis Mason (Mason), for damages arising from the death of Otis Mason. The jury found that Otis Mason developed leukemia and died after being exposed to benzene produced by Texaco. Texaco moved for a judgment notwithstanding the verdict or for a new trial. Texaco’s motion was denied, and Texaco appeals, asserting numerous errors including: the incorrect application of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. § 525 (1982); failure to submit to the jury the comparative fault of defendant Ashland Chemical Company as a phantom defendant after Ashland Chemical Company was dismissed by directed verdict; and erroneous jury instructions. We agree the district court’s jury instructions were in error. Accordingly, we REVERSE and REMAND for a new trial.
In 1977, Otis Mason was serving in the United States Coast Guard as an instructor át the Coast Guard Engineering School at Yorktown, Virginia, when doctors diagnosed his condition as acute myelocytic leukemia. Otis Mason filed this lawsuit on August 14, 1978, alleging that his leukemia was caused by exposure to benzene, a solvent used in the classroom in a motor oil test kit. He died from leukemia on December 10,1979. Thereafter, his widow, Diana L. Mason, was substituted as plaintiff in the personal-injury action for the pain and suffering, and wrongful death of Otis Mason. Mason alleged that the manufacturers and distributors of the benzene to which Otis Mason was exposed were liable for his injuries and death primarily because of their failure to warn adequately of the hazards of benzene inhalation.
Originally, Mason named as defendant Gerin Corporation (Gerin), the manufacturer of the kit which Otis Mason used to test properties of motor oil. Later, the complaint was amended to state claims against Gerin’s supplier, Dooner & Smith Chemical Company (Dooner & Smith); and Dooner & Smith’s suppliers, Mellen Chemical, Inc. (Mellen), Ashland Chemical Company (Ash-land), and Texaco. By the time of trial, Texaco and Ashland remained as defendants in the lawsuit. At the conclusion of plaintiff’s case, the court granted defendant Ashland’s motion for directed verdict. The case was submitted against Texaco, although other parties, except Ashland, were listed on the verdict form for comparative-fault assessments. The jury found that the total damages were $9 million and that Texaco was 35% at fault. Judgment against Texaco was entered for $3.150 million.
I. SOLDIERS’ AND SAILORS’ CIVIL RELIEF ACT OF 1940
Texaco asserts two reasons the lower court erred in holding that the claims were not time-barred by the Kansas statute of limitations. First, the court misapplied the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. §§ 501-591 (1982), to exclude from the Kansas limitation period the time during which Otis Mason was placed on the “temporary disability retired list.” Second, the court misapplied the Act to Otis Mason, a career military employee without any showing of disability to bring legal suit.
The tolling provision of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. App. § 525, provides in part as follows:
The period of military service shall not be included in computing any period now or hereafter to be limited by any law, ... for the bringing of any action or proceeding in any court, ... by or against any person in military service or by or against his heirs, executors, administrators, or assigns.
The Act bars any period of military service from being included in computing a statute of limitations for or against a person in the military service.
The Act defines “person in the military service” to include those in the Coast Guard. “Military service” means “active duty” under the Act, and “active duty” includes “the period during which a person in military service is absent from duty on account of sickness, wounds, leave or other lawful cause.” 50 U.S.C.App. § 511(1) (1982).
It is undisputed that in September 1977, Otis Mason was diagnosed as having acute myelocytic leukemia. On March 15, 1978, he was placed on the “temporary disability retired list.” On November 5, 1979, Otis Mason was permanently retired, and on December 10, 1979, he died as a result of leukemia. The question presented is whether placement on the “temporary disability retired list” is a “discharge from active service” or merely an “absentee] from duty on account of sickness,” as anticipated by § 511(1). Under the former, a statute of limitations is not tolled; under the latter, the statute of limitations is tolled. We hold that placement on the “temporary disability retired list” constitutes “absen[ce] from duty on account of sickness” under the Act, and therefore the period of limitations provided by the Kansas two-year statute of limitations, Kan. Stat.Ann. § 60-513(a) (1983), was tolled from March 15, 1978, until November 5, 1979. See Cruz v. General Motors Corp., 308 F.Supp. 1052 (S.D.N.Y.1970).
Texaco further argues that the lower court erred in applying the Soldiers’ and Sailors’ Civil Relief Act of 1940 to Otis Mason, a career military employee. Citing Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir.1977), Texaco urges this court to adopt a broad rule that the tolling provision of 50 U.S.C.App. § 525 of the Soldiers’ and Sailors’ Civil Relief Act of 1940 does not apply to a career serviceman who has not shown that military service handicapped him from asserting a claim. Although the court in Pannell sought to interpret § 525, the court’s conclusion is predicated upon a combined reading of §§ 521 and 525. Section 521 provides for stay of proceedings and requires the serviceman to demonstrate that his status creates an inability to fully assert or defend a claim. Section 525 contains no such condition precedent. Even so, the court in Pan-nell imposed upon § 525 the requirement of § 521 and concluded that the tolling provision of the Soldiers’ and Sailors’ Civil Relief Act of 1940 was inapplicable to a career serviceman who has not shown that he was handicapped by his military service from asserting any claim he had prior to the expiration of the prescribed period. Pannell, 554 F.2d at 225. We cannot accept this interpretation of 50 U.S.C.App. § 525 of the Soldiers’ and Sailors’ Civil Relief Act of 1940.
In our view, the language of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. § 525, is clear and unambiguous. We find no reason to ignore the plain meaning of the statute, and we are persuaded that the correct course to follow is set forth in Ricard v. Birch, 529 F.2d 214 (4th Cir.1975); and Bickford v. United States, 228 Ct.Cl. 321, 656 F.2d 636 (1981). The career status of Otis Mason does not negate the application of § 525. The only condition to § 525 is military service. That condition was met during Mason’s placement on the “temporary disability retired list,” and therefore the period of limitations was tolled from March 15, 1978, until November 5, 1979. Mason’s naming of Texaco as a party on July 14, 1980, was within the period of limitations.
II. COMPARATIVE FAULT
Texaco next contends that the court erred in not submitting to the jury Ash-land’s possible comparative fault. The court refused to include Ashland as a phantom defendant on the verdict form for determination of comparative fault because Ashland had been granted a directed verdict at the close of the plaintiff’s case. Under Kansas law, all types of fault, regardless of degree, are to be compared in order to apportion the causal responsibility for the damages. Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 454 (10th Cir.1982).
We have stated previously in Hardin that a scintilla of evidence is not sufficient to justify submitting a nonparty to the jury as a phantom defendant, and that the judge should apply the directed verdict standard when deciding which nonparties to submit as phantoms on the verdict form. Id. at 459 n. 7. Although the standard for granting a directed verdict has varied somewhat over time, compare Cockrell v. Boise Cascade Corp., 781 F.2d 173, 177 (10th Cir.1986), with Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380, 1389 (10th Cir.1981), cert. denied 455 U.S. 1019, 102 S.Ct. 1716, 72 L.Ed.2d 137 (1982), we find no error, in the legal standard applied by the trial judge. We do not review the correctness of the judge’s factual findings as they apply to the issue of naming phantom parties on the verdict form because retrial of this case may present new factual issues on the propriety of including the phantom parties.
We do note, however, that the propriety of the directed verdict granted to Ashland at the close of the plaintiffs case is not before this court. Mason has not raised that issue on appeal. Texaco had no standing to challenge the ruling below, see e.g., Price v. Greenway, 167 F.2d 196, 200 (3d Cir.1948); Hayes v. Tootle-Lacy Nat’l Bank, 72 F.2d 429, 431-32 (10th Cir.1934), and now cannot resurrect the issue in this court.
III. JURY INSTRUCTIONS
Texaco asserts that in instructing the jury the trial court deviated from Kansas law on several issues relating to Texaco’s duty to warn of product hazards. Specifically, Texaco argues the court erred in instructing the jury contrary to law on the bulk seller’s duty to warn (No. 6), the duty to train salesmen (No. 13), and also by invading the province of the jury to determine the content and form of the warning required in this case (Nos. 16, 6, and 23).
In reviewing Texaco’s challenge to the jury instructions, we consider the instructions as a whole to determine whether they “state the law which governs and provided the jury with an ample understanding of the issues and the standards applicable.” Ramsey v. Culpepper, 738 F.2d 1092, 1098 (10th Cir.1984). In a diversity case, we apply the substantive law of the forum. Brownlow v. Aman, 740 F.2d 1476, 1490 (10th Cir.1984). “ ‘The appellate standard of review to be applied by the court is clear: an error in jury instructions will mandate reversal of a judgment only if the error is determined to have been prejudicial, based on a review of the record as a whole.’ ” Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 n. 19 (10th Cir.1988), citing Durflinger v. Artiles, 727 F.2d 888, 895 (10th Cir.1984).
A. Duties Owed by a Bulk Supplier
The leading case in Kansas on the liability of a bulk supplier is Jones v. Hittle Service Inc., 219 Kan. 627, 549 P.2d 1383 (1976). In Jones, the Kansas Supreme Court held that the manufacturer and bulk seller of liquefied petroleum gas “fulfills his duty to the ultimate consumer when he ascertains that the distributor to whom he sells is adequately trained, is familiar with the properties of the gas and safe methods of handling it, and is capable of passing on his knowledge to his customers.” Id. 549 P.2d at 1394.
Essentially, the holding imposes upon the bulk seller the obligation to sell only to knowledgeable and responsible distributors. Jones does not impose a duty on the bulk seller to warn the ultimate consumer, and specifically does not impose a duty on the bulk seller to police the adequacy of warnings given by the distributor. “If the product is sold in bulk, adequate warning to the vendee is all that can reasonably be required.” Id. at 1393.
Texaco asserts that Jury Instruction No. 6, the court’s “stairstep guide,” imposes a duty upon Texaco which exceeds the obligations settled under Kansas law. The third step in the instruction in part advises the jury as follows:
Such third issue would cause you to decide whether any or all actions taken by Texaco were sufficient and adequate to reasonably inform and warn its immediate purchaser of such dangerous carcinogenic propensity of benzene, and safety precautions to avoid exposure, and to take reasonable measures to determine that such purchaser was capable of warning others in the chain of distribution to ultimate consumers. Should you find that Texaco fulfilled and discharged its legal duty to warn and take reasonable steps to see that its distributor knew and complied with its duty to inform, then you would return a verdict for defendant Texaco.
(Emphasis added.) Instruction No. 6 advises the jury that Texaco had a legal duty to police the actions of the distributor. The language “knew and complied with” exceeds the obligation to sell to a knowledgeable vendee who was capable of passing on the warnings.
Although Mason argues that at trial Texaco failed to object to the language “knew and complied with,” the record demonstrates that counsel for Texaco objected to Instruction No. 6, that he detailed his objections paragraph by paragraph, and that he specifically objected to the clause “and take reasonable steps to see that its distributor knew and complied with its duty to inform.” Texaco more than adequately preserved its objection to Instruction No. 6.
The trial court’s Instruction No. 6 pertaining to the bulk seller’s duty to warn was contrary to Kansas law as set forth not only in Jones, but also in Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 453 P.2d 486, 496 (1969). See generally, Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983); Younger v. Dow Coming Corp., 202 Kan. 674, 451 P.2d 177 (1969). In our view the trial court erroneously instructed the jury as to the applicable law.
B. Duty to Train Salesmen
Texaco next argues the trial judge erroneously instructed the jury that as part of the duty to warn, Texaco had a duty to train its salesmen. Instruction No. 13 provides:
The defendant Texaco had a duty to adequately instruct and train their salesmen as to their product, benzene, in order that their salesmen take appropriate action and give appropriate advice to the purchasers and users of benzene. The violation of such a duty is negligence.
The defendant had a duty to exercise a high degree of care in selecting, training and advising its salesmen.
We agree with Texaco that in so instructing the jury, the trial court erred. The instruction does not state Kansas law properly, and it dictates the method of conveying a warning in order for it to be found adequate by the jury.
Under Kansas law, a manufacturer has a duty to instruct a distributor or ascertain that he has been instructed in the use and handling of its commodities. Hendrix, 453 P.2d 486. While the central issue before the Kansas Supreme Court in Hendrix was the relationship of parties and the respective liabilities, the court also addressed the duty of the bulk seller to warn the distributor of the hazards of using its product. Plaintiffs brought suit against a distributor of liquefied petroleum gas as a result of an explosion in a private residence. The trial court entered judgment in favor of plaintiffs as against the distributor (Fortner), and in favor of the seller (Phillips) as against plaintiffs.
In Hendrix, plaintiffs claimed the trial court erred in failing to rule as a matter of law under the evidence that the manufacturer, Phillips, was negligent in its failure to adequately train the distributor, Fortner. The Kansas Supreme Court characterized the question as one of fact to be determined by the jury under proper instructions, and upheld the following instruction:
You are instructed that defendant Phillips had a duty to instruct Fortner [distributor] or ascertain that he had been instructed as to the proceedings to be followed in the event of a leak in an L.P. gas system or explosion.
In this connection it is not required that Fortner be educated or instructed as an expert in the field. Phillips has the duty to instruct or ascertain that Fortner has been instructed to the extent that he have such knowledge as is reasonable under the circumstances to give him information sufficient to take appropriate action and give appropriate advice to his customer. The violation of such duty is negligence.
Phillips, once having fulfilled the above duty, cannot be held liable for Fortner’s failure to take advantage of, use or impart to others such instruction.
Id. 453 P.2d at 496. In approving the instruction, the Kansas Supreme Court stated: “A manufacturer of L.P. gas is under a duty to instruct a distributor or to ascertain that he has been instructed in the use and handling of its commodities.” Id. 453 P.2d at 496. Counsel for Mason proposed Instruction No. 13 in the instant case, and argued that it was based upon Hendrix. Texaco argued vociferously against giving Instruction No. 13 for the reason that it mandated a particular mode of communication (i.e., instructing and training its salesmen) rather than advising the jury on the Hendrix standard and seeking their determination on the issue of adequacy of warning. Texaco argues that this confusion of method with content of warning grossly misled the jury. We agree. In our view, Instruction No. 13 misinterpreted and improperly expanded the duty imposed upon Texaco under Hendrix.
In the trial judge’s Opinion and Order denying post-trial motions, he justified the giving of Instruction No. 13 under the Hendrix case and also the case of Sterling Drug, Inc. v. Yarrow, 408 F.2d 978 (8th Cir.1969). In our view, reliance upon Sterling was misplaced as well. In Sterling, plaintiff sought damages from a drug manufacturer as a result of the manufacturer’s alleged failure to warn plaintiff’s doctor of the side effects of the drug prescribed. The case was tried to the court, and judgment was entered for the plaintiff. The manufacturer appealed. The Court of Appeals for the Eighth Circuit held that the trial judge’s finding that the manufacturer’s detail men presented the most effective method of warning plaintiff’s doctor was not clearly erroneous.
The Sterling holding arises from a trial to the bench where the judge functioned as the fact-finder. The duty which the Sterling trial court imposed in finding the facts was a “duty to make reasonable efforts to warn the medical profession of the side effects of the drug.” Id. at 991. The Sterling trial court found as fact that failure of the manufacturer to instruct its detail force to warn the physicians constituted failure to make reasonable efforts to warn the prescribing physicians. The circuit court upheld the law applied by the trial court and declined to declare the findings thereunder to be clearly erroneous.
The findings of fact in Sterling, however, do not justify the instruction by the court below that Texaco had a legal duty to train salesmen. By so instructing the jury, the trial judge found facts, rather than instructing the jury on the legal duty and asking them to answer the question of adequacy of warnings given, if any. This confusion of function and misstatement of law constituted prejudicial error.
C. Invading the Province of the Jury
Texaco next argues that the trial court’s references to benzene as carcinogenic throughout the instructions “amounted to a virtual instruction that Texaco’s warning of injury to blood-forming organs was inadequate.” On this issue, Texaco submits three sources of error: Instructions Nos. 6 and 23, and the verdict form. Instruction No. 6, the “stairstep guide,” reads in part as follows:
On the other hand, in the first step, if you find both that benzene was the cause of Mason’s leukemia, and that it was Texaco’s benzene, you would proceed to answer the next issue, which is the state of the scientific knowledge to a reasonable degree of probable certainty in the time period of Mason’s exposure to benzene. If you cannot find by a preponderance of the evidence that such scientific knowledge existed concerning a dangerous propensity of benzene to cause carcinogenic (cancerous) blood disease at the time of Mason’s exposure, then your deliberations would cease and your verdict should be for the defendant. If you find that such scientific knowledge did exist to the extent that Texaco either knew it, or should reasonably have known about it, prior to and during Mason’s exposure, then you would proceed to decide the next or third issue.
Such third issue would cause you to decide whether any or all actions taken by Texaco were sufficient and adequate to reasonably inform and warn its immediate purchaser of such dangerous carcinogenic propensity of benzene, and safety precautions to avoid exposure, and to take reasonable measures to determine that such purchaser was capable of warning others in the chain of distribution to ultimate consumers. Should you find that Texaco fulfilled and discharged its legal duty to warn and take reasonable steps to see that its distributor knew and complied with its duty to inform, then you would return a verdict for defendant Texaco. On the other hand, should you find by a preponderance of the evidence that the warnings were inadequate, defendant Texaco would be negligent, and you would then consider whether such negligence directly caused, wholly or in part, Mason’s leukemia.
(Emphasis added.)
Instruction No. 23, the trial court’s comment on the evidence, structured the dispute as to when benzene became recognized as a cause of cancerous blood diseases. The instruction reads in part:
A further comment of the Court may be helpful in your decision on the existence of the state of scientific knowledge and defendant Texaco’s duty to warn. Actually, on the basis of the evidence of scientific knowledge, two factors or elements of knowledge have been shown to exist. First, there is the dispute over whether and when benzene became recognized as a leukemia source, i.e., a cause of cancerous blood diseases; and secondly, at what level of exposure does the danger exist.
(Emphasis added.)
The verdict form reads in part as follows:
4. Do you find by a preponderance of the evidence that the actions taken by Texaco were insufficient and inadequate to warn Texaco’s immediate purchaser of the dangerous carcinogenic propensity of benzene?
Yes X No
‡ sfc sfc 4: * sfc
5. Do you find by a preponderance of the evidence that Texaco did not take reasonable measures to determine that its immediate purchaser, Mellen, was capable of conveying adequate warning to others in the chain of distribution of benzene?
Yes X No
(Emphasis added.)
Texaco argues that these instructions and the verdict form shifted the focus away from the true liability question of whether Texaco adequately warned of the dangerous, propensities of benzene. According to Texaco, the trial judge instructed the jury to consider whether Texaco had issued a warning of the possible cancerous nature of benzene. Texaco argues this instruction directed the jury to conclude, contrary to evidence, that Texaco’s warning of injury to blood-forming organs was inadequate. Stated differently, Texaco argues that the trial court instructed the jury that any warning not containing the word “cancer” was inadequate as a matter of law.
Although Texaco’s argument is alluring academically, a common-sense approach to the record reveals no error. The trial court’s structure of the case in Instruction No. 6, the “stairstep guide,” set out as a threshold issue the question of whether the stated level of scientific knowledge existed concerning a dangerous propensity of benzene to cause cancerous blood disease at the time of Otis Mason’s exposure. If the jury believed that plaintiff’s evidence failed on that issue, they were instructed to cease deliberation and render a verdict for the defendant Texaco. Consequently, in any deliberation on issues past the threshold issue, the jury could rely on its finding that the stated level of scientific knowledge existed regarding the carcinogenic properties of benzene at the time. of Otis Mason s exposure. On this issue we perceive no error.
IV. OTHER ISSUES
Texaco raised additional issues which this court does not address in detail due to the necessity of a new trial. Three issues pertain to the applicability rather than content of jury instructions: No. 19, governmental standards; No. 32 “love of live” presumption; and No. 14, duty to test. Texaco also raised the scope of permitted expert testimony; the duty to warn of hazards already known to the employer; nondisclosure of the fact that Gerin was a named defendant; and excessive damages. In our view, each of these issues is fact-bound, and extensive discussion of these issues by us would be unproductive. As to the final issue, Instruction No. 23, the trial judge’s comments on the evidence, the law is well settled. In light of the unfortunate necessity of a new trial, we do not decide these additional issues.
V. CONCLUSION
We conclude the jury was misled as to a bulk seller’s duty to warn and duty to train salesmen. The jury could not have had a clear understanding that Texaco was only required to warn the purchaser Mellen of benzene’s dangerous characteristics and ascertain that Mellen was informed and capable of passing on the warning. The instruction requiring Texaco to train salesmen has no basis in Kansas law. We conclude, therefore, that the jury instructions constituted reversible error.
The judgment against Texaco is REVERSED, and the case is REMANDED for a new trial.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Peter THOMAS, Plaintiff, Appellant, v. MORTON INTERNATIONAL, INC., Defendant, Appellee.
No. 90-1490.
United States Court of Appeals, First Circuit.
Heard Oct. 3, 1990.
Decided Oct. 19, 1990.
Anthony M. Fredella with whom Fredella & Wheeler was on brief for plaintiff, appellant.
Bruce S. Harrison with whom Mark J. Swerdlin, Shawe & Rosenthal, Leonard M. Singer and Csaplar & Bok were on brief for defendant, appellee.
Before CAMPBELL, Circuit Judge, TIMBERS, Senior Circuit Judge, and CYR, Circuit Judge.
Of the Second Circuit, sitting by designation.
PER CURIAM.
Plaintiff-appellant Peter Thomas attempts to appeal from an order of the United States District Court for the District of Massachusetts, granting defendant-appellee Morton International, Inc.’s motion to dismiss. Not having timely filed a notice of appeal in compliance with the requirements of Fed.R.App.P. 4(a), Thomas now argues that his timely motion for extension of time to file a notice of appeal, which he filed in the district court, should be regarded by us as the informal and functional equivalent of a notice of appeal.
We are unable to accept appellant’s contention. We start with the premise — not seriously contested by appellant — that the filing of a timely notice of appeal is an essential prerequisite to our appellate jurisdiction. E.g., United States v. Gibson, 568 F.2d 111 (8th Cir.1978). We recognize, as Fed.R.App.P. 3(c) provides, that an appeal “shall not be dismissed for informality of form or title of the notice of appeal.” The history behind this proviso indicates that courts have, at times, interpreted the formal requirements of a notice to appeal liberally, especially in cases of uncounseled persons like pro se prisoners, where letters evidencing a desire to appeal have been accepted as timely, informal notices of appeal. See, e.g., Bach v. Coughlin, 508 F.2d 303 (7th Cir.1974). Appellant here, however, was and is represented by counsel, and his motion for extension of time in no way purported to place the court and opposing party on notice that he was at that time appealing, and that the motion was meant functionally to be the requisite notice of appeal. Rather the motion was a request to the court for additional time within which to file the required notice. To treat such a request for extra time as the notice itself would be to render the notice requirement meaningless. Thomas’ attorney clearly recognized the difference between the two documents when, out of time, he later filed a notice of appeal. His earlier motion to extend time was something altogether different. As no timely notice was filed, we lack jurisdiction and must dismiss the appeal.
We direct the Clerk to send a copy of this opinion to appellant personally as well as to his counsel.
Appeal dismissed. Costs to appellee.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
The KANSAS POWER & LIGHT COMPANY, Appellant, v. HUGOTON PRODUCTION COMPANY, Appellee.
No. 5713.
United States Court of Appeals Tenth Circuit.
Jan. 28, 1958.
Willard N. Van Slyck, Jr., Topeka, Kan. (Clayton E. Kline, James L. Grimes, Jr., of Doran, Kline, Cosgrove & Russell, Topeka, Kan., with him on the brief), for appellant.
Douglas Gleason, Ottawa, Kan., and G. R. Redding, Indianapolis, Ind. (A. M. Gavit, Indianapolis, Ind., Gleason & Gleason, Ottawa, Kan., and Baker & Daniels, Indianapolis, Ind., with them on the brief), for appellee.
Before BRATTON, Chief Judge, PICKETT, Circuit Judge, and RICE, District Judge.
PICKETT, Circuit Judge.
Hugoton Production Company brought this action to recover alleged underpayments for natural gas delivered to The Kansas Power and Light Company under the terms of an existing contract. The dispute arose over the method of computing the number of British Thermal Units contained in the gas delivered. A British Thermal Unit, generally known as a “BTU”, is defined as the amount of heat required to raise the temperature of one pound of water one degree Fahrenheit. In a trial to the court without a jury, judgment was entered for the amount claimed, with interest.
Although there was some additional evidence offered at the trial, the essential facts were stipulated. On October 18, 1948, the parties hereto entered into a contract wherein the Kansas Company agreed to purchase natural gas from Hugoton for resale and for use in its electric power plants. Deliveries under the contract were to begin November 1, 1949 and extend through November 1, 1964. The contract price for the resale gas was 12<¡¡ per thousand cubic feet (MCF), while the price of the gas used for power purposes was fixed at 15^5 per million BTUs, which price was to be adjusted as the price of coal changed. It was agreed that 25% of all gas delivered was to be considered as having been used for power purposes. The unit measurement for all gas was one cubic foot saturated with water vapor at a temperature of 60 degrees Fahrenheit, at an absolute pressure of 14.9 pounds per square inch. This action involves only the payment for the gas used for power purposes.
Pursuant to the provisions of the contract, the Kansas Company installed and maintained meters to measure the volume of gas delivered, and also equipment to compute the number of BTUs in the gas. The Kansas Company prepared and furnished to Hugoton monthly statements showing the volume of gas delivered at a temperature of 60 degrees Fahrenheit at 14.9 pounds of pressure per square inch, and also the information from which the number of BTUs in a cubic foot of gas could be computed. Hugoton, relying upon this information, computed monthly the bills for the gas which were sent to the Kansas Company. In determining the BTU content, the Kansas Company used an adjustable measuring device which was fixed to make a determination upon the basis of an absolute pressure equivalent to that of 30 inches of mercury at 32 degrees Fahrenheit. On each statement the Kansas Company reported that the cubic foot measurement was at an absolute pressure of 14.9 pounds per square inch. It is agreed that a cubic foot of gas, at 60 degrees Fahrenheit, under 14.9 pounds of pressure per square inch, contains 1.0114 times as many BTUs as a like cubic foot under pressure of 30 inches of mercury at 32 degrees Fahrenheit. Hugoton did not learn until November of 1951 that the information statements furnished to it by the Kansas Company used a pressure base for computing the number of BTUs in power gas other than 14.9 pounds .per square inch. Demand for payment was then made for the additional amount of BTUs which had been furnished. The Kansas Company does not deny that it received more BTUs than it paid for, but insists that the computations were made as provided for by the terms of the contract. It relies upon the contractual provision relating to the heating value, which reads:
“The heating value of all gas delivered hereunder shall in no event, at the time and place of delivery, be less than 950 British Thermal Units per cubic foot of gas saturated with water at a temperature of 60° Fahrenheit and an absolute pressure equivalent to that of 30" of mercury at 32° Fahrenheit.”
That the contract required payment by the Kansas Company for all gas consumed in its power plants according to the number of BTUs, appears to us to be too clear for misunderstanding. The provision relating to the heating value has no relation to the price provisions, but merely fixes a minimum of heat in a cubic foot of all delivered gas, whether for resale or that consumed for power. There is no ambiguity in the contract as to the liability of the Kansas Company for the gas consumed in its power plants. It required that company to pay for all gas so consumed according to the BTU content. Clearly the company did not do so.
It is urged that prior to November of 1951 Hugoton accepted the statements as correct and received the payments without protest, therefore they became final and conclusive as an account stated. The trial court found that Hugoton did not know that the information furnished by the Kansas Company was incorrect and that all of the BTUs supplied were - not reflected in the reports. The Kansas Courts have held that under such circumstances the account stated is not conclusive. An account stated is only prima facie evidence of its correctness. Potts v. Lux, 168 Kan. 387, 214 P.2d 277. In Swaller v. Williamson Milling Co., 116 Kan. 329, 226 P. 1001, 1008, the Kansas Supreme Court stated the controlling principles as follows:
“What are legally sufficient reasons for not permitting an account stated to be final and conclusive? Fraud, of course; but there are other reasons. Error, omission, and mistakes are also sufficient. * * *
“Since a creditor who sent to a debtor who did not respond a footed but incorrect account, meaning no more than T have you charged with these items totaling so much,’ ran great risk of having a jury find an account stated ‘from the circumstances,’ the practice arose of adding to accounts rendered the words ‘errors and omissions excepted.’ In this state the law writes those words into an account rendered, together with an exception of mistake, which may be of law or of fact, and on one side only. The result is, so far as correctness is concerned, an account stated is prima facie evidence only. McCue v. Hope, 97 Kan. 85, 154 P. 216, 11 A.L.R. 581. While the agreement implicit in account stated stands, and the account may not be opened except for some cause impeaching it as an entirety, the correctness of error, omission, or mistake merely effectuates the intention of the parties to balance their accounts.”
Shortly after Hugoton learned of the error in the method used in determining the BTUs, it notified the Kansas Company of the same and requested a change in the method of ascertaining the BTU content. At the same time a demand was made for the deficiency existing. There were discussions concerning the matter, and some correspondence. The Kansas Company, however, refused to change its method of computation. In preparing the monthly statements for the amount due, Hugoton computed the actual number of BTUs in the gas, but payment was made by the Kansas Company according to its own computations. The checks and vouchers sent to Hugoton were the same as those which had been regularly used for all prior payments. The remittances were made in exactly the same manner as they had been made prior to the discovery of the error in the computations. In refusing to make the additional payments, the Kansas Company wrote Hugoton explaining their position and stating that “the only manner of measuring these differences in interpretation in our judgment, is through judicial determination. This is not a subject for determination by testing or research laboratories.” Each monthly check had printed thereon the following: “By endorsement of this check payee acknowledges payment in full for all items listed on the attached memo.” Hugoton cashed these checks and notified the Kansas Company that they were crediting its account with the amount of the check. It is contended that the acceptance of these payments amounted to an accord and satisfaction, which prevents recovery. The trial court found that: “At all times after the plaintiff’s discovery, in November, 1951, of the method of computation used by the defendant, until the filing of the complaint in this action, both the plaintiff and the defendant understood that the difference in their methods of computing the amounts payable by the defendant to the plaintiff was being held for future determination.” The evidence sustains this finding.
The Kansas rule is that to constitute an accord and satisfaction, the agreement that a smaller sum shall be accepted in discharge of a larger one originally claimed, must have been entered into by the parties understandingly and with unity of purpose. Lighthouse for the Blind v. Miller, 149 Kan. 165, 86 P.2d 508; Vigneron v. List & Hallett Const. Co., 130 Kan. 676, 288 P. 570; Minor v. First National Bank of Herington, 112 Kan. 666, 212 P. 672, and the cases there cited. There is substantial evidence to support the trial court’s finding that neither party understood that the acceptance of the payments was to be an accord and satisfaction. See Nevada Half Moon Mining Co. v. Combined Metals Reduction Co., 10 Cir., 176 F.2d 73, certiorari denied 338 U.S. 943, 70 S.Ct. 429, 94 L.Ed. 581; United States v. General Petroleum Corp. of Calif., D.C.S.D.Cal.1947, 73 F.Supp. 225, affirmed, Continental Oil Co. v. U. S., 9 Cir., 184 F.2d 802.
Finally, it is contended that the court erred in allowing interest upon the sums found to be due. These obligations were created by definite contract provisions, and became due on specified dates. The liability of the Kansas Company was absolute, and it had the use of a liquidated amount of money which should have been in the hands of Hugoton after the payment dates. Under such conditions, the Kansas Courts have held that interest is recoverable from the date on which payment was due. Potts v. Lux, supra; Thompson v. W. C. Howard Motors Co., 122 Kan. 339, 252 P. 468; Young v. Newbold, 119 Kan. 394, 239 P. 1106; Smith Bros. & Cooper v. Hanson, 106 Kan. 32, 187 P. 262; G.S.Kan.1949, 16-201. See also Southern Painting Co. of Tenn. v. United States, 10 Cir., 222 F.2d 431.
Affirmed.
. The parties will be referred to herein as "Hugoton” and “Kansas Company”.
. The contract provision relating to the price to be paid for gas recites:
“The price to be paid by Kansas Company to Hugoton for all the gas to he delivered hereunder shall be as follows: * * *
“(b) For volumes of gas sold to Kansas Company for consumption in its power plants connected to its gas transmission system and located wholly within the State of Kansas, the price of Fifteen (150) Cents per Million British Thermal Units, when the price of coal is Five Dollars and Fifty Cents ($5.50) per ton delivered at Kansas Company’s Tecumseh Power Plant. It is agreed that the price per million British Thermal Units of the gas utilized in said power plant shall be increased or decreased in the amount of $.0015 per million British Thermal Units for each variation of Five (5(i) Cents per ton increase or decrease in said coal price.”
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_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, Plaintiff-Appellee, v. Robert Darnell HENDERSON, Defendant-Appellant.
No. 81-1446.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 5, 1982.
Decided July 1, 1982.
Rehearing Denied Oct. 6,1982.
William B. Terry, Las Vegas, Nev., for defendant-appellant.
Edward R. J. Kane, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.
Before FLETCHER, FERGUSON and REINHARDT, Circuit Judges.
Appellant waived oral argument and the panel unanimously agrees that submission without oral argument is appropriate in this case. Fed. R.App.P. 34(a).
FLETCHER, Circuit Judge:
Henderson appeals from his convictions for interference with a flight crew, a violation of 49 U.S.C. § 1472(j), and assault aboard an aircraft, a violation of 18 U.S.C. § 113. We note jurisdiction under 28 U.S.C. § 1291. Henderson contends that there was insufficient evidence to support the district court’s finding that his conduct aboard the airplane was caused by his voluntary consumption of alcohol. We agree, and reverse the conviction.
Factual Background
On April 8, 1980, Henderson left Charleston, West Virginia en route for Los Ange-les, California. He was driven to the Charleston airport by his mother at whose house he had been staying. Henderson’s mother testified that her son seemed tense, nervous, and highly upset before he left Charleston.
While in the Charleston airport, Henderson had two or three beers. Henderson’s flight from Charleston terminated in Pittsburgh, Pennsylvania. He then boarded a Trans World Airline non-stop flight to Los Angeles.
Henderson was seated in the coach section of the plane. The stewardess who observed Henderson when he boarded testified that he did not appear intoxicated. Nevertheless, she testified that he was acting strangely, talking to no one and speaking “gibberish.”
Henderson was served an alcoholic beverage with dinner. He subsequently became loud and abusive. When he ordered an additional drink, the stewardess refused to serve him. The captain of the plane was summoned and Henderson agreed to quiet down in exchange for a promised drink.
Approximately twenty minutes later Henderson again requested a drink in a loud and abusive manner. The captain again was summoned. While Henderson and the captain were talking, a passenger, who was walking toward the rear of the plane, was knocked to the floor and repeatedly struck by Henderson. The plane was detoured to Las Vegas where Henderson was removed by local police. Henderson was charged with violating 49 U.S.C. § 1472(j) (interference with a flight crew) and 18 U.S.C. § 113 (assault aboard an aircraft). After being found competent to stand trial, Henderson waived his right to a jury trial.
The Government rested its case after presenting the testimony of witnesses who were aboard the flight. These witnesses testified as to the essential elements of the offenses charged and that Henderson had been drinking alcoholic beverages aboard the plane.
Henderson, who has a history of mental problems including many hospitalizations for treatment, predicated his defense on the fact that he was legally insane during the period he was aboard the plane. Henderson had been institutionalized at the Long Beach Veterans Administration Hospital on and off over a seven year period. His admissions to the hospital were on some occasions voluntary and on others involuntary. For the six years preceding the incident aboard the aircraft, he had been continuously diagnosed as a paranoid-schizophrenic. Two psychiatrists testified on Henderson’s behalf. The Government presented a third psychiatrist as a rebuttal witness. The testimony of the psychiatrists is discussed infra.
The district court found that, although Henderson was a paranoid schizophrenic, his mental condition prior to the incident was in a state of remission. It further found that Henderson’s inability to appreciate the wrongfulness of his conduct was the result of an exacerbation of his mental state due to his consumption of alcoholic beverages in the Charleston airport and aboard the plane, and that absent consumption of the alcoholic beverages Henderson’s mental condition would not have deprived him of the ability to appreciate the wrongfulness of his conduct. Relying on United States v. Burnim, 576 F.2d 236 (9th Cir. 1978), and Kane v. United States, 399 F.2d 730 (9th Cir. 1968), cert, denied, 393 U.S. 1057, 89 S.Ct. 698,21 L.Ed.2d 699 (1969), the district court concluded that the insanity defense was unavailable to Henderson, and found him guilty on both charges.
ANALYSIS
Henderson argues that there was insufficient evidence to support the district court’s finding that absent Henderson’s voluntary consumption of alcohol he would have made the trip without incident. In reviewing the district court’s finding, we view the evidence in the light most favorable to the Government. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Spears, 631 F.2d 114, 117 (9th Cir. 1980) (sufficiency test same for jury and bench trials). However, if the evidence was insufficient to prove beyond a reasonable doubt that Henderson was legally sane Henderson’s conviction must be reversed. United States v. Cooper, 465 F.2d 451, 453 (9th Cir. 1972).
The test for insanity in this circuit is whether a person, as a result of a mental disease or defect lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. See Wade v. United States, 426 F.2d 64, 70-72 (9th Cir. 1970) (en banc). Once a defendant introduces evidence that he was not legally responsible for his conduct, the burden is on the Government to prove beyond a reasonable doubt that the defendant was not insane. See United States v. Segna, 555 F.2d 226, 229 (9th Cir. 1977); Cooper, 465 F.2d at 453. The Government can sustain its burden either 1) by proving that the defendant could appreciate the wrongfulness of his conduct and conform his conduct to the requirements of the law or 2) by proving that the defendant voluntarily induced his own incapacity.
In the instant case, the district court found that Henderson had a history of mental disease and that he was unable to appreciate the wrongfulness of his conduct aboard the plane. Henderson was nevertheless found guilty because the district court concluded that -Henderson’s conduct was the result of his voluntary ingestion of alcohol, and not his mental disease. After carefully reviewing the record, we conclude that the Government failed to introduce sufficient evidence to meet its burden of proving that Henderson’s voluntary ingestion of alcohol caused his lack of capacity aboard the plane.
The leading case in this circuit discussing the availability of the insanity defense to a defendant who has ingested alcohol prior to the commission of the offense is United States v. Burnim, 576 F.2d 236 (9th Cir. 1978). In Burnim, the defendant was charged with armed robbery. Burnim testified that he needed the money to get married and that he drank a good deal of liquor in order to screw up his courage. Burnim, 576 F.2d at 237. His sole defense was insanity.
The district court found that at the time of the offense Burnim suffered from an organic brain defect. Burnim was nevertheless convicted because the district court concluded that Burnim’s inability to appreciate the wrongfulness of his conduct stemmed from a combination of the brain defect and alcohol voluntarily ingested, and that absent the alcohol Burnim’s mental defect would not have rendered him insane. Id. This court affirmed Burnim’s conviction because the evidence supported the district court’s finding that “Burnim’s ‘insanity’ was the product of his voluntary intoxication, in the absence of which he would not have been insane.” Id. at 238. Burnim does not hold, however, that whenever the Government introduces evidence that the defendant drank alcohol prior to the commission of a crime the insanity defense is unavailable. In order to rely on Burnim, the Government must prove that the alcohol, and not the mental disease, actually caused the defendant’s mental incapacity when the crime was committed, and that the alcohol was voluntarily ingested.
In the instant case the district court applied the Burnim test. It disregarded the incapacitating effects of the alcohol Henderson drank prior to boarding and while on board the plane and concluded that Henderson’s mental disease, absent the ingestion of alcohol, would not have caused him to commit the crimes charged. Although the testimony of the experts on this point conflicts, there is sufficient evidence to support this finding. However, under Burnim, before the incapacitating effects of the alcohol can be disregarded, the Government must also prove that the ingestion of alcohol was voluntary.
The only testimony regarding the voluntariness of Henderson’s ingestion of alcohol aboard the plane came from Doctor Bergner. He concluded that once aboard the plane Henderson’s mental disease was not in a state of remission, and that given Henderson’s mental disease at the time he could not control his desire to drink. His conclusion was based on Henderson’s medical history, the testimony of the defendant himself, and the testimony of the passengers aboard the plane who observed Henderson prior to the time he began drinking on board. Because the Government introduced no contrary evidence to show that Henderson’s drinking aboard the plane was voluntary, the district court’s finding of voluntariness was not supported by the evidence.
The district court also relied in part on Henderson’s testimony that he drank two or three beers in the West Virginia airport prior to boarding. Under Burnim, if this drinking was voluntary and also contributed to the exacerbation of Henderson’s mental state to the extent that he could not control his ability to act, Henderson’s conviction must be affirmed. However, the Government has the burden of proving both voluntariness and causation. See Burnim, 576 F.2d at 238. See generally Cooper, 465 F.2d at 455.
On the issue of causation there was testimony that Henderson did not appear intoxicated when he first boarded the plane. This evidence suggests that the beers that Henderson drank in the airport may not have affected him to any significant degree. However, Doctor O’Gorman testified that Henderson’s drinking in the airport could have placed him in a state where he could conduct himself reasonably well, but beyond a certain point would lose control. Thus, Henderson’s condition when he first boarded the plane is not inconsistent with the district court’s finding that Henderson’s ingestion of alcohol in the airport was the cause of his exacerbated mental state. We conclude there is evidence to support the district court’s finding in this regard.
Where the Government’s case fails, however, is on the proof of the voluntariness of Henderson’s ingestion of alcohol in the airport. The only evidence adduced raised some doubt as to . whether Henderson could control his desire to drink even in the airport. Henderson’s mother testified that her son seemed tense, agitated, and highly upset when he left for Los Angeles. She also testified that he had not been drinking pri- or to his arrival at the airport. Doctor Bergner testified generally regarding the inability of a paranoid schizophrenic, who is not in a state of remission, to control his need for alcohol and he testified, specifically, that he did not think Henderson could control it.
Given the above evidence the Government was required to present some evidence to rebut the inference that Henderson’s airport drinking was in fact involuntary. Instead it introduced no evidence whatsoever on the issue. Under these circumstances, we have no choice but to conclude that the government failed to sustain its burden to prove that the ingestion of alcohol was voluntary.
CONCLUSION
The district court’s finding that Henderson could not conform his conduct to law is supported by the evidence. The Burnim exception to the insanity defense is a narrow one. Burnim did no more than to recognize that in order to constitute a defense, insanity must be the result of circumstances beyond the control of the actor. 576 F.2d at 238. Here, the defense adduced evidence that could support a finding that Henderson’s first drink in the airport, and hence the entire ensuing series of events, came about because of circumstances beyond his control. Because the Government failed to introduce any evidence to rebut the evidence that Henderson’s drinking was involuntary, the Burnim exception to the insanity defense is inapplicable.
Accordingly, Henderson’s conviction is REVERSED.
. The district court found that the defendant had consumed alcoholic beverages in the Pittsburgh Airport. However, the only evidence was the defendant’s testimony that he had three beers in the airport in West Virginia.
. Burnim relied heavily on our prior decision in Kane. In Kane the defendant suffered from a mental condition which when coupled with even a small consumption of alcohol could result in violent conduct. Because Kane knew about his reaction to alcohol and was able to control his initial consumption of alcohol, we held that the insanity defense was unavailable to Kane. 399 F.2d at 735-36. See also United States v. Shuckahosee, 609 F.2d 1351, 1355 (10th Cir. 1979).
. Doctor Bergner testified that Henderson’s mental disease and his intake of alcohol could not be separated. If his testimony stood alone, it would be insufficient to sustain Henderson’s conviction under Burnim because we could not know whether Henderson could have conformed his conduct to the requirements of the law absent the alcohol. However, Doctor Pike testified that without alcohol Henderson could have conformed his conduct to that required by law. Doctor O’Gorman also was of the opinion that it was Henderson’s intake of alcohol that caused Henderson to be unable to appreciate the wrongfulness of his conduct.
. Dictum in Kane is not to the contrary. There we noted that even if the defendant had introduced evidence of chronic alcoholism “it is problematical that it would excuse him from criminal responsibility under the present state of the law.” 399 F.2d at 736 n.9, citing Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968). In Powell the Court held that it was not a violation of due' process to punish the defendant for being drunk in public where the defendant was a chronic alcoholic. There is no indication, however, that the Powell court intended to make the insanity defense unavailable to those who involuntarily consume alcohol because of a mental disease. Justice Marshall, writing for the plurality, emphasized at a number of points in his opinion that the defendant’s first drink was a voluntary exercise of his will. Powell, 392 U.S. at 518, 525, 526, 88 S.Ct. at 2147, 2150, 2151. In Kane, too, the defendant’s disability occurred only after he voluntarily began to drink. 399 F.2d at 736. See also Shuckahosee, 609 F.2d at 1355-56. If the initial drinking is involuntary, then the resulting mental disability was not brought about by circumstances within the control of the defendant. Conduct which is not subject to the control of the defendant cannot be the basis for criminal liability. Burnim, 576 F.2d at 237.
. Doctor Bergner was a staff psychiatrist at the Long Beach Veteran’s Administration Hospital where Henderson had been admitted as a patient twelve times since 1973. Doctor Bergner had treated Henderson personally from July 24, 1980 to August 1, 1980. Doctor Bergner testified that since Henderson had been admitted to the VA hospital he had been diagnosed as a chronic or paranoid schizophrenic. He further testified that a schizophrenic whose ego boundary is slipping responds by either using drugs or alcohol.
. In addition to the testimony of the stewardess, see page 660, supra, a passenger seated next to Henderson testified that when she first boarded Henderson was pleasant and cordial. However, during their conversation, and prior to the time he started drinking, Henderson began threatening to harm and kill his mother and sister.
Henderson’s testimony also supports the conclusion that Henderson’s mental condition began deteriorating prior to the time he was served drinks aboard the airplane. According to Henderson, he had been told by his sister that he would be seated in the first class section of the plane and that he would be entitled to free drinks. Henderson later accused someone on the plane of threatening to kill him.
. The district court found that Henderson’s mental disease was in a state of remission prior to the incident. This implies that Henderson’s actions, including his drinking of alcohol, were not caused by his mental disease. However, after reviewing the district court’s findings of fact we are uncertain whether the district court related the fact that Henderson’s mental disease was in a state of remission to its finding that Henderson’s ingestion of alcohol was voluntary. It appears that the former finding was a corollary to the finding that the drinking of alcohol, and not Henderson’s pre-existing mental disease, caused Henderson’s mental incapacity. To the extent that the district court actually found that Henderson’s drinking aboard the plane was not caused by his mental disease, we conclude that the finding was not supported by substantial evidence.
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_usc1sect
|
2421
|
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 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellee, v. James HARRIS, Defendant-Appellant.
No. 73-1179.
United States Court of Appeals, Sixth Circuit.
Argued June 11, 1973.
Decided June 28, 1973.
J. Kimbrough Johnson, Jr. (Court Appointed) Memphis, Tenn., for defendant-appellant.
Robert F. Colvin, Memphis, Tenn., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Johnnie L. Johnson, Jr., Asst. U. S. Atty., W. D. Tenn., Memphis, Tenn., on brief.
Before McCREE and MILLER, Circuit Judges and NEESE, District Judge.
The Honorable C. G. Neese, United States District Judge for the Eastern District of Tennessee, sitting by designation.
PER CURIAM.
We consider an appeal from a judgment entered January 5, 1973 on a jury verdict convicting defendant on the second of two counts of an indictment charging a violation of the Mann Act, 18 U.S.C. § 2421. The indictment charged defendant with knowingly transporting in interstate commerce from Memphis, Tennessee to Detroit, Michigan two females, Edith Davis and a girl, Myra White, who was not 18 years old, for the purpose of prostitution, debauchery and other immoral purposes.
The issues raised on appeal are:
1) Was there substantial evidence to support a jury verdict that defendant’s dominant purpose for the trip was for prostitution and debauchery?
2) Did the U. S. District Court err by instructing the jury that the dominant motive for transporting the females, as distinguished from the dominant motive of the trip, is the essential element of the offense?
The evidence showed that appellant, a Memphis resident, owns several parcels of rental property in Detroit. On January 21, 1972, he traveled to Detroit for the purpose of making repairs on some of his properties and took with him Myra White and Edith Davis, whom he picked up at a bus stop. Defendant was also accompanied by George Anthony, who agreed to assist appellant in making the repairs. Anthony was a co-defendant in the trial below and was acquitted.
The women testified that appellant forced them to attempt to solicit men at a truck stop in Ohio and later at cafes in Detroit. Defendant testified that the women accompanied him solely for the pleasure of his company and denied forcing them to perform acts of prostitution at any time during the trip from Memphis to Detroit.
Appellant contends that the Supreme Court has interpreted the Mann Act to proscribe the interstate transporting of women for the purpose of prostitution only if the dominant purpose of the escorting defendant in making the trip is the commission of immoral acts. He relies on the following language from Mortensen v. United States, 322 U.S. 369, 374, 64 S.Ct. 1037, 1040, 88 L.Ed. 1331 (1944): “An intention that the women or girls shall engage in the conduct outlawed by Section 2 must be found to exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement. And the transportation must be designed to bring about such result.”
The trial judge disagreed with appellant’s interpretation of Mortensen and focused not on the purpose of the trip but instead upon the purpose of defendant in transporting the females. In his charge he instructed the jury as follows:
“. . . I charge you that it is necessary that it be shown that in transporting or causing to be transported one or both of these females, the defendants’ dominant motive in transporting or causing to be transported was prostitution, debauchery or other immoral purpose or practice. It is not necessary that it be shown that the dominant motive in making the trip so far as a defendant is concerned is for that purpose, but it is necessary to show, as I say, that the dominant motive of the defendant in transporting the female was for that purpose.”
We agree with the district court, and determine that the charge is free from error. The quotation from Mortensen must be read in context, and it is clear from such reading that the Supreme Court was not concerned with the purpose of the escorting defendants in making the interstate trip, but instead with their purpose in transporting the women who were concededly prostitutes. This interpretation is clear from the Supreme Court’s statement of the issue in Mortensen — “The primary issue before us is whether there was any evidence from which the jury could rightly find that petitioners transported the girls from Salt Lake City to Grand Island for an immoral purpose in violation of the Mann Act.” 322 U.S. at 373, 64 S.Ct. at 1040.
The Supreme Court expressed no concern about any other purpose the defendants might have had for making the trip. In fact, it was conceded that their purpose was an innocent one, and if appellant here is correct, that concession would have made unnecessary the determination of the issue quoted above.
This construction of the Mann Act is consistent with the rationale of United States v. Hon, 306 F.2d 52 (7th Cir. 1962), relied on by appellant. There, the court in reversing a conviction, said: “. . . The dominant motive of their interstate movement was not an intention that the woman should be transported in interstate commerce for the purpose of prostitution.” 306 F.2d at 55. (Emphasis supplied.)
It is clear in Hon that the focus of the statute is on the purpose for the transporting of the woman. • This is the rule of our circuit and we reaffirm it here. See United States v. Salter, 346 F.2d 509 (6th Cir. 1965).
We determine from an examination of the record that there was ample evidence to support the jury’s verdict.
Affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_appstate
|
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 "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.
Arnold R. VASBINDER, Plaintiff-Appellee, v. Basil Y. SCOTT and Richard M. Switzer, Defendants-Appellants.
No. 830, Docket 91-7884.
United States Court of Appeals, Second Circuit.
Argued Jan. 30, 1992.
Decided Sept. 30, 1992.
Daniel Smirloek, Asst. Atty. Gen. of the State of N.Y., Albany, N.Y. (Robert Abrams, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., and Peter G. Crary, Asst. Atty. Gen. of the State of New York, of counsel), for defendants-appellants.
John Alden Stevens, Ithaca, N.Y. (Williamson, Clune & Stevens, of counsel), for plaintiff-appellee.
Before: WINTER, PRATT, and MAHONEY, Circuit Judges.
MAHONEY, Circuit Judge:
This appeal follows a jury trial solely on the issue of punitive damages. Defendants-appellants Basil Y. Scott and Richard M. Switzer appeal from a judgment of the United States District Court for the Northern District of New York, Thomas J. McA-voy, Judge, entered June 3, 1991 after a jury trial, that awarded plaintiff-appellee Arnold R. Vasbinder $150,000 in punitive damages against each defendant-appellant, and from a subsequent order of the district court entered August 27, 1991 that denied defendants-appellants’ motion to reduce the awards of punitive damages. For the reasons that follow, we vacate the judgment and remand to the district court with the instruction to enter judgment in favor of Vasbinder in the amounts of $30,000 and $20,000 against Scott and Switzer, respectively, or at Vasbinder’s option to conduct a new trial on the issue of punitive damages.
Background
The underlying facts of this litigation are set forth in our opinion deciding the initial appeal in this case, Vasbinder v. Ambach, 926 F.2d 1333, 1335-37 (2d Cir.1991). We summarize here only those facts necessary for resolution of the issue of punitive damages presented on this appeal.
At the outset of 1982, Vasbinder was a statewide coordinator of placement services for handicapped persons for the Office of Vocational Rehabilitation of the New York State Department of Education (the “OVR”). Id. at 1335. Switzer was Vasbin-der’s immediate supervisor; Switzer reported to Scott, the overall head of the OVR. Id. Up until that time, Vasbinder had always received excellent employment evaluations. Id.
In May 1982, while participating in an audit, Vasbinder discovered what he deemed to be improper duplicate billing and overcharging in the administration of a federally funded program. Id. at 1335-36. These apparent improprieties were thought by Vasbinder to involve individuals with close personal relationships to Switzer. Id. at 1336. In August 1982, Vasbinder reported his concerns to the Federal Bureau of Investigation (“FBI”), which opened an investigation into the matter. Id.
In October 1982, Vasbinder revealed his involvement with the FBI to Scott, and his relationship with Scott and Switzer became troubled. Id. at 1336-37. Vasbinder’s performance evaluations by Scott and Switzer declined dramatically. Id. In December 1982, Vasbinder was stripped of some of his duties as statewide coordinator. Id. at 1337. On June 1, 1983, Vasbinder received a letter from the FBI reporting that “there is no indication of a violation of law which would merit federal prosecution.” Id. Nine days later, Vasbinder was terminated as statewide coordinator and reassigned to a diminished position with a corresponding reduction in salary. Id.
Vasbinder then brought an action pursuant to 42 U.S.C. § 1983 (1988) against Scott and Switzer in the Northern District of New York, alleging that he had been discharged in violation of his First Amendment rights. Id. The matter was tried before a jury, which rendered a verdict in Vasbinder’s favor for backpay (later determined by the court to amount to $32,-529.49), $50,000 for emotional distress, and punitive damages in an undetermined amount. Id. at 1338-39. On defendants’ motion, the trial court vacated the award of punitive damages, holding that defendants’ conduct was not outrageous and thus did not warrant the imposition of such damages. Id. Vasbinder appealed the district court’s decision regarding punitive damages, and Scott and Switzer cross-appealed the award of compensatory damages. Id. at 1339.
This court reversed the judgment of the district court only insofar as it had set aside the jury's award of punitive damages. Id. at 1344. With respect to that issue, we held that:
[I]t was not irrational or impermissible for the jury to infer that defendants’ personnel actions toward Vasbinder were in callous disregard of his rights, and were intended both to deter other potential whistle-blowers and to disguise the retaliatory nature of their action from outsiders. It was surely within the jury’s discretion to send a message, to Scott and Switzer and to others, that such retaliation is intolerable.
Id. at 1343. Because the district court had dismissed the punitive damages award without first having the jury make a finding as to the amount of punitive damages it would have awarded, the case was remanded for trial solely on the issue of punitive damages. Id. at 1344. The trial on remand consisted of a reading of the transcript of the prior trial and the introduction of additional evidence by the defendants concerning their personal wealth.
It was established at trial that Switzer was fifty-seven years old and employed as the executive director of the Bulova School in Queens, New York, an institution which offers vocational training to disabled adults. He receives a salary of $75,000 a year. Switzer also receives approximately $29,000 per year in retirement income from a state pension, which will be reduced to $27,000 at age sixty-two. At approximately that time, he will be eligible for an additional $30,000 per year from another pension source. Switzer’s wife had recently been employed as a sales clerk at a department store, and her projected annual earnings were $7,500.
The Switzers’ family assets include a $130,000 equity in their jointly owned family home and approximately $90,000 in savings. Mrs. Switzer also controls a bank account containing approximately $50,000. This money represents an inheritance received by Mr. Switzer that was transferred to his wife and is to be used to purchase property for the Switzers’ children. The Switzers’ liabilities include, the mortgage on their home, $15,000 owed on an automobile, and an estimated $4,000 in annual real estate taxes. The Switzers anticipate the need to finance the remaining three years of their youngest child’s college education.
The evidence as to Scott showed that he is sixty-six years old and hopes to retire in a year or two. He is currently employed as vice president for administration and finance at Kutztown University in Pennsylvania, where he earns approximately $77,-000 a year. Scott also receives a New York State pension of approximately $44,-000 a year, and has investments totalling approximately $360,000. Scott’s wife has no retirement benefits. The Scotts jointly own, free from encumbrances, a condominium valued at $150,000 that is used as the family home.
After all the evidence was presented, the jury returned separate verdicts in the amount of $150,000 against both Scott and Switzer. Scott and Switzer then moved for judgment notwithstanding the verdict pursuant to Fed.R.Civ.P. 50(b) and 59 on the ground that the punitive damage awards were excessive and should be reduced. The trial court, while expressing sympathy for their position, denied the motion, deeming our opinions in Hughes v. Patrolmen’s Benevolent Ass’n, 850 F.2d 876 (2d Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988), and O’Neill v. Krzeminski, 839 F.2d 9 (2d Cir.1988), to require that ruling.
This appeal followed.
Discussion
The defendants-appellants’ liability for punitive damages having been decided by this court, Vasbinder, 926 F.2d at 1343-44, the only question on appeal is whether the amount of punitive damages awarded by the jury is excessive.
A. Punitive Damages.
An award of punitive damages should be reversed only if it is “ ‘so high as to shock the judicial conscience and constitute a denial of justice.’ ” Hughes, 850 F.2d at 883 (quoting Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir.1978)). Although this is a stringent standard of review, we must remain cognizant that the purpose of punitive damage awards, is to punish the defendant and to deter him and others from similar conduct in the future. Smith v. Wade, 461 U.S. 30, 54, 103 S.Ct. 1625, 1639, 75 L.Ed.2d 632 (1983). Thus, the function of appellate review of punitive damages is to make “certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Pacific Mut. Life Ins. Co. v. Haslip, — U.S. -, -, 111 S.Ct. 1032, 1045, 113 L.Ed.2d 1 (1991); see also Aldrich v. Thomson McKinnon Sec., Inc., 756 F.2d 243, 249 (2d Cir.1985) (punitive damages should not be awarded beyond amount reasonably necessary to secure purposes of such awards).
Accordingly, an award should not be so high as to result in the financial ruin of the defendant. Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 373 (2d Cir.1988). Nor should it constitute a disproportionately large percentage of a defendant’s net worth. Id. Thus, while a defendant’s conduct is obviously germane to the damages issue, “ ‘even outrageous conduct will not support an oppressive or patently excessive award of damages.’ ” Brink’s Inc. v. City of New York, 546 F.Supp. 403, 413-14 (S.D.N.Y.1982) (quoting Herman v. Hess Oil V.I. Corp., 379 F.Supp. 1268, 1276 (D.V.I.1974), aff'd, 524 F.2d 767 (3d Cir.1975)), aff'd, 717 F.2d 700 (2d Cir.1983). Further, because neither compensation nor enrichment is a valid purpose of punitive damages, an award should not be so large as to constitute “a windfall to the individual litigant.” Aldrich, 756 F.2d at 249; see also Ramsey v. American Air Filter Co., 772 F.2d 1303, 1314 (7th Cir.1985) (collecting cases). Finally, in applying these principles, we must engage in an independent and “ ‘detailed appraisal of the evidence bearing on damages.’ ” Hughes, 850 F.2d at 883 (quoting Grunenthal v. Long Island R.R., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed.2d 309 (1968)).
Reviewing the record in this case, we find the amount of punitive damages awarded by the jury, $150,000 against each defendant, to be excessive as a matter of law. The evidence presented at the second trial established that Switzer’s net worth is in the neighborhood of $270,000, including his equity in his home. He earns an annual income of $75,000 and receives an annual pension of $29,000; after retirement, he will receive an annual pension of $57,000. The award of $150,000 in punitive damages exceeds fifty percent of the Switzers’ total net worth. The dramatic reduction in the Switzers’ wealth and retirement expectations “shocks the judicial conscience” because it far exceeds what is needed to deter the defendants or similarly situated individuals from engaging in the wrongful conduct addressed in this action.
The award of $150,000 against Scott is similarly excessive. Although Scott’s financial resources are somewhat more extensive than Switzer’s, the punitive damages award by the jury would consume approximately thirty percent of Scott’s net worth, and over forty percent of his liquid assets. Scott testified that he was contemplating retirement. If the jury’s award were upheld, he would suffer a massive loss of retirement income.
This is not to say that we condone the defendants’ conduct or trivialize the harm that they caused Vasbinder. A jury found the defendants’ actions in demoting Vasbin-der for exercising his First Amendment rights to be so extreme and outrageous that compensatory damages were inadequate to punish the wrongful conduct. Vasbinder, 926 F.2d at 1343. That finding was upheld by a panel of this court and cannot be challenged on this appeal. Nor do we slight the need to protect the free speech rights of government “whistle-blowers” or the importance of real deterrence to ensure that such employees continue to speak out on matters of public concern. We conclude, however, that the jury’s award of punitive damages substantially exceeds that necessary to punish the defendants and deter similar conduct in the future, and therefore represents an unjustifiable windfall to Vasbinder.
In light of the evidence of the defendants' personal worth, and in view of their wrongful conduct, we believe that awards of no more than $20,000 as to Switzer and $30,000 as to Scott will satisfy the proper purposes of punitive damages. While significantly less than the jury’s award, these amounts are still a substantial share of the defendants’ assets, and will provide an ample deterrent against similar conduct in the future by the defendants or others.
Before leaving this issue, we briefly address the district court’s conclusion that it was constrained by the law of this circuit to confirm the amount of punitive damages awarded by the jury. The district court was clearly disturbed by the size of the award, but stated that relief could not be granted because of this court’s holdings in Hughes and O’Neill. We do not believe that these cases foreclose a determination that the punitive damages in this case were excessive.
In Hughes, the court upheld punitive damages awards of $175,00 against both the Patrolmen’s Benevolent Association and an individual defendant. 850 F.2d at 879, 883. The defendants were found responsible for intentional infliction of emotional distress arising from a scheme to blame the plaintiff for a fellow officer’s suicide. Id. at 878-79. After the court conducted a review of the evidence bearing on damages, it held that the jury’s finding of malicious and offensive conduct should not be disturbed. Id. at 883. The court’s brief discussion focused on the question whether the defendants’ conduct was sufficiently blameworthy to justify punitive damages. No consideration of the defendants’ net worth or ability to pay was undertaken in Hughes.
The personal wealth of the defendants was similarly not at issue in O’Neill. Although this court upheld jury verdicts for punitive damages of $125,000 and $60,000 against two individual defendants for the severe beating of the plaintiff by a police officer, 839 F.2d at 10, the court did not consider whether the amount of damages constituted a disproportionately large percentage of the defendants’ net worth. Id. at 13-14. Indeed, the defendants’ personal wealth was not put before the jury precisely because the City of New Haven accepted contractual responsibility to indemnify the defendants as to both compensatory and punitive damages. Id. at 13.
In sum, Hughes and O’Neill did not address the issue which forms the basis of our decision, and accordingly are not controlling in this case.
B. Remittitur Procedure.
As we have recently ruled, a court may not simply reduce an award of punitive damages, but must offer the plaintiff the option of a new trial on that issue. Phelan v. Local 305 of the United Ass’n of Journeymen and Apprentices of the Plumbing & Pipefitting Indus., 973 F.2d 1050, 1064 (2d Cir.1992) (collecting cases); see also Smith, 861 F.2d at 375 (requiring district court to order new trial unless plaintiff agrees to reduced award of punitive damages); Aldrich, 756 F.2d at 249 (same).
In Phelan, we cited Kennon v. Gilmer, 131 U.S. 22, 29, 9 S.Ct. 696, 698, 33 L.Ed. 110 (1889), as the leading authority in support of our ruling on this issue. Phelan, 973 F.2d at 1064. Kennon v. Gilmer makes clear that the option of a new trial when a jury determination is set aside as excessive derives from the protection accorded jury trials and factual determinations by the Seventh Amendment. See 131 U.S. at 28-30, 9 S.Ct. at 698-99. This rule has not been uniformly followed in the circuit courts, nor has the impact of the Seventh Amendment on the question been uniformly recognized. See Defender Indus., Inc. v. Northwestern Mut. Life Ins. Co., 938 F.2d 502, 507 (4th Cir.1991) (in banc) (collecting cases). In any event, the question is settled in this circuit.
Conclusion
The judgment of the district court is vacated and the case is remanded with the instruction that the district court enter judgment against Scott and Switzer for punitive damages in the amounts of $30,-000 and $20,000, respectively, or at Vasbin-der’s option conduct a new trial on the issue of punitive damages.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
. We do not consider the extent to which an indemnification agreement is relevant to the amount of punitive damages that may properly be awarded. We note the indemnification agreement in O’Neill only to buttress our conclusion that the O'Neill court did not address the issue whether the award was excessive in light of the defendants’ net worth. In this case, by contrast, the State of New York has taken the position in its brief and oral argument on appeal that it may indemnify the defendants but is not required to do so, and has not made a commitment to provide indemnification.
. The Seventh Amendment provides:
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_casetyp1_6-3
|
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 "labor relations".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RICH’S OF PLYMOUTH, INC., Respondent.
No. 77-1497.
United States Court of Appeals, First Circuit.
Argued April 4, 1978.
Decided June 6, 1978.
Lee Ann Huntington, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Elliott Moore, Deputy Associate General Counsel, and William R. Stewart, Atty., Washington, D. C., were on brief, for petitioner.
Duane R. Batista, Boston, Mass., with whom David E. Watson and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
The National Labor Relations Board (the Board) seeks enforcement of a cease and desist order issued after its finding that respondent violated section 8(a)(1) of the National Labor Relations Act (the Act) (1) by soliciting employee grievances and promising and granting benefits with intent to discourage support for a union campaign and (2) by creating an impression of surveillance among the employees. Also at issue is whether respondent shall be required to reinstate with back pay a union supporter who walked off her job in a fit of pique on a busy night. We first address those portions of the Board’s order which we enforce.
Promise and Grant of Benefits
Respondent is a chain of nine retail stores. In April, 1976, Local 222 of the Retail Clerks International Association, AFL-CIO embarked on a campaign to organize the employees of respondent’s Plymouth, Massachusetts store. A flyer distributed among the employees announced that an initial organizational meeting would be held on April 26.
The same day of the union’s first meeting, Gerald Costello, personnel and operations manager for the chain, convened the entire workforce, scheduling separate meetings for the day and night shift employees. Addressing the day employees first, Costel- ■ lo discussed the union campaign and the effect of signing authorization cards. He then asked if the employees had any problems. Two subjects were raised: health insurance and the establishment of a grievance committee. Costello agreed to investigate both proposals. He explained that if implemented, a health insurance plan would cover all stores in the Rich’s chain, not just the Plymouth branch, and would be jointly financed by management and the employees.
On May 10 Costello met with a group of 15 or 20 night shift employees. This group’s reaction to the two suggestions made by the day personnel was favorable. Costello told them that a grievance committee procedure would be established and that management would pursue the proposal for health insurance.
A short time later a grievance committee ballot box was installed in the Plymouth store. Two days later it was removed. After the May 10 meeting, no further mention was made of the health insurance proposal. Store supervisors were directed to answer any inquiries about the progress of the employees’ suggestions by stating that the company “had been advised not to go into this at this point.”
Early in May respondent instituted a pay increase of 5 cents per hour for all employees in the chain. On May 14, the union filed a petition with the Board to represent the Plymouth store workforce. An election was conducted on July 22 in which the union lost by a margin of 41 votes to 22, with 7 ballots challenged. Subsequently the union filed unfair labor practice charges and sought to have the election overturned.
We sustain the Board’s conclusion that respondent violated section 8(a)(1) of the Act by soliciting employee grievances and promising benefits during the pendency of this union campaign. One indication that the grievance sessions conducted in this case could be found to have been calculated to infringe upon the employee freedom of choice with respect to unionization, NLRB v. Exchange Parts, 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), is their timing. Ordinarily, the more imminent a representational election, the greater the presumption that management’s expression of concern for employee welfare has an impermissible motive, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 277 (1st Cir. 1975). Here an election had not yet been requested at the time the employees were convened and additional benefits were discussed, a fact seemingly in respondent’s favor, see id. However, it appears to be no mere coincidence that Costello called for the meetings, inquired of the day employees’ grievances, and promptly responded to their suggestions the very day the union had chosen for its first organizational meeting. We think it reasonable to conclude that the grievance sessions were timed to nip the union effort in the bud.
The manner of convening the workforce adds support to the Board’s finding. Neither grievance session was a regularly scheduled event, see NLRB v. South Shore Hospital, 571 F.2d 677, 681 (1st Cir. 1978). The meetings were not called by the employees, but were initiated by management, and concededly in response to the union presence at the store, see NLRB v. Gotham Industries, 406 F.2d 1306, 1311 (1st Cir. 1969). Costello asked for the employees’ proposed improvements promptly after having acknowledged that the union was attempting to organize. When contrasted to respondent’s characteristic method of dealing with employee complaints on an individual, informal basis, convocation of the entire workforce conveyed the impression that with a union campaign in progress, employee suggestions would be taken more seriously.
Some evidence, although it was specifically discredited by the administrative law judge, indicates that the proposal for a health insurance plan may at least have been considered by management prior to the union’s appearance at the Plymouth store, see NLRB v. Arrow Elastic Corp., 573 F.2d 702, 706 (1st Cir. 1978). Even if that were the case, it would not mitigate the effects of respondent’s conduct. No specific details of such a plan were communicated to the employees prior to April 26, nor did management ever unconditionally commit itself to providing health insurance, id.; NLRB v. Exchange Parts, supra, 375 U.S. at 409, 84 S.Ct. 457. In any event, there is no basis for believing that the second improvement discussed with the employees at the same time, establishment of a grievance committee, had been predetermined, see NLRB v. Arrow Elastic Corp., supra. That idea originated with the day employees at the April 26 meeting. No business justification was even offered for management’s sudden interest in it, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976).
Respondent seeks support in the fact that whatever promises may have been made at the meetings were never put into effect. In what appears to have been a belated effort to avoid a probable unfair labor practice charge, respondent removed the grievance committee ballot box before an election could be held, made no further mention of the proposal for health insurance, and gave an explanation for its action which was carefully phrased to avoid reference to the union. As we have noted in previous decisions, we are not insensitive to attempts by an employer to mitigate impermissible conduct, see Sta-Hi Division, Sun Chemical Corp. v. NLRB, 560 F.2d 470, 474 (1st Cir. 1977). Once the promises had been made, however, the requisite laboratory conditions for a representational election had been destroyed, and even good faith efforts to blunt their impact could not make it otherwise, id.
Similarly, we agree with the Board that the implementation of a 5 cent per hour pay increase violated section 8(a)(1). Although it is not invariably an unfair labor practice to increase compensation while a union campaign is underway, such conduct makes out a prima facie case of intentional interference with employee organizational rights, see NLRB v. Styletek, supra, 520 F.2d at 280. The burden then shifts to the employer to justify both the fact and the timing of the increase, id.
Respondent argues that it carried that burden by introducing evidence that the decision to increase wages was made in January, 1976, before the union made its presence known, and was implemented pursuant to a consistently applied policy of granting raises in the spring and fall of each year, see D’Youville Manor v. NLRB, 526 F.2d 3, 5 (1st Cir. 1975). However, the administrative law judge and the Board discredited testimony by respondent’s president that by January, 1976, management had resolved to increase wages. We have no basis for disturbing that finding, based as it was on an assessment of credibility, see NLRB v. Garland Corp., 396 F.2d 707, 709 (1st Cir. 1968).
Similarly, the Board was unpersuaded, and we think with good reason, by the argument that the timing of the raise was in line with pre-existing company policy. Between 1972 and 1974 wages were in-creased every six months, in April and October. That pattern was interrupted in 1974 and subsequent increases, mandated by changes in federal minimum wage requirements, were instituted in May, 1974, January, 1975, and January, 1976. The next voluntary pay increase was not until May, 1976. No evidence indicates that the employees had any expectation that they would receive the 5 cent raise, much less that it would be in that month. Since respondent had only once given a raise in May, and that had been two years prior to the period in question, we, like the Board, are unconvinced that respondent had a history of showing its munificence in May. Respondent’s conceded awareness of the union presence at the time it put the increase into effect undermines its argument all the more, see NLRB v. Arrow Elastic Corp., supra, at 704; NLRB v. Gotham Industries, supra, 406 F.2d at 1310. On these facts it appears that even if it might have been decided in advance, the wage increase was “sprung on the employees in a manner calculated to influence the employees’ choice”, NLRB v. Styletek, supra, 520 F.2d at 280.
Impression of Surveillance
We are somewhat more troubled by the Board’s finding that respondent violated section 8(a)(1) by creating an impression of surveillance among its employees. Late in a working day toward the end of April, 1976, a store employee approached Aida Pereira, a union supporter, to ask for her telephone number. According to Pereira, she did not have any paper, and so wrote the number on the back of a blank union authorization card. Steven Rice, then the store manager, called Pereira aside and said, “Aida I know that you are responsible for this.” The administrative law judge concluded that although Rice’s statement was “less than explicit”, in view of the other unfair labor practices respondent had committed and the fact that a union authorization card was involved in the incident, an impression of surveillance had been created.
Part of our difficulty with this conclusion stems from the fact that this episode was short-lived and appeared to be the only one that occurred during the entire union campaign, see Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 468 (1st Cir. 1976); NLRB v. Garland Corp., supra, 396 F.2d at 709. Rice’s comment was at best vague, and contained no reference to the union, or threat of reprisals, see NLRB v. Sandy’s Stores, 398 F.2d 268 (1st Cir. 1968); NLRB v. Prince Macaroni Mfg. Co., 329 F.2d 803 (1st Cir. 1964). Even if Rice had mentioned the union, Pereira was known to management as a union supporter, see Hedstrom Co. v. NLRB, 558 F.2d 1137, 1144 (3d Cir. 1977). The Act does not prevent an employer from acknowledging an employee’s union activity, without more, see NLRB v. Mueller Brass Co., 509 F.2d 704, 709 (5th Cir. 1975). Nevertheless, “[bjecause this finding is largely grounded on the fact finder’s judgment concerning the credibility of the witness and on unrefuted testimony, we conclude that it was supported by substantial evidence and should not be disturbed”, see Stone & Webster v. NLRB, supra, 536 F.2d at 468.
Refusal to Rehire
It is at the point of reviewing the finding that a section 8(a)(3) violation occurred that we part company with the Board. Jean Schembri, the employee in question, was one of two employees who worked at a jewelry concession in the Plymouth store. Evidence indicated that on several occasions she had expressed interest in the union to respondent’s supervisory personnel.
On July 9,1976 Schembri reported for her evening shift. Customarily a busy night, that Friday promised to be especially so, since an ear piercing clinic was to take place. Schembri approached the concession manager Mary Fontaine and the supervisor Dottie McDonald to inquire about holiday pay she had claimed, after advice from the union, but not received and to renew a complaint about a reduction in the number of hours she had been scheduled to work. When Fontaine informed her she was expected to work at an ear piercing clinic to be held the following day, Schembri protested that she had not been notified of this. Fontaine pointed out that the schedule had been posted two days earlier. Displaying some anger, McDonald suggested that she and Fontaine leave. Schembri asked to speak to McDonald and returned to her station, apparently expecting McDonald to follow. When she discovered that McDonald had left the concession without talking to her, Schembri stormed over to the service desk, announced to assistant store manager Croteau that she was quitting, and told him to find a replacement for her. After giving a substitute employee brought over from the service desk some instruction on preparation for the ear piercing clinic, Schembri left.
Soon after she returned home, Schembri informed Fontaine by telephone that she had quit. Several hours later she again called Fontaine, apologized, and asked for her job back. Fontaine responded that although Schembri had been a good employee, the matter was up to management. She agreed to relay Schembri’s desire to be rehired to McDonald, but noted that the latter was upset with Schembri because of her comments about the union. Several telephone calls with various supervisory personnel and the concession owner followed, but Schembri was not reinstated. Two days later a replacement was hired.
Both parties treat this case precisely the same as one in which there has been an allegation of an unlawful discharge and seem to have assumed that the employer had an obligation to come forward with an explanation for its failure to reinstate Schembri. That premise does not strike us as so obvious. Schembri was not discharged, impermissibly or otherwise, see, e. g. Stone & Webster v. NLRB, supra, 536 F.2d 461. Nor was it ever argued that, by walking off her job, she joined in concerted activity protected by the Act, see NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); Bob’s Casing Crews, Inc. v. NLRB, 429 F.2d 261, after remand, 458 F.2d 1301 (5th Cir. 1972); Colson Corp. v. NLRB, 347 F.2d 128 (8th Cir. 1965). Rather, she unilaterally and precipitously quit her job for a reason unconnected to her union sympathies, see LTV Electrosystems, Inc. v. NLRB, 408 F.2d 1122, 1127 (4th Cir. 1969); NLRB v. J. W. Mays, Inc., 356 F.2d 693, 695 (2d Cir. 1966).
Under such circumstances Schembri’s rights seem to us to approximate more closely those of a job applicant than those of a discharged employee. Just as union membership or sympathy has not been regarded as an insurance policy for job placement, it cannot assure that an employee who quits and then changes her mind will be reinstated, see NLRB v. Plymouth Cordage Co., 381 F.2d 710, 711 n. 2 (5th Cir. 1967). An employer who refuses to reinstate an employee who voluntarily terminated is arguably in a stronger position to defend its action than one who has discharged the employee. By the same token a correspondingly heavier burden might rest on the Board to prove a section 8(a)(3) violation, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394-95 (6th Cir. 1967).
Nevertheless, we do not rest our decision on any such difference in defenses and burdens. Even assuming that in both circumstances the employee has the same right to reinstatement judged against the same standard, we conclude that the Board erred in finding that respondent’s refusal to rehire Schembri violated section 8(a)(3).
It was conceded here that management was aware of Schembri’s interest in the union movement at the time it was confronted with her request for reinstatement, compare Stone & Webster v. NLRB, supra, 536 F.2d at 464, with NLRB v. Joseph Antell, Inc., 358 F.2d 880, 882 (1st Cir. 1966). There is also evidence that management demonstrated some hostility toward the union effort. However, management alleged, and offered supporting evidence, that it had refused to rehire Schembri not on that basis, but because she had left them in the lurch at an especially bad time. Respondent having offered a legitimate business justification for its conduct, the burden shifted to the Board to establish by substantial evidence “an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one”, NLRB v. Billen Shoe Co., 397 F.2d 801, 803 (1st Cir. 1968). In our repeated efforts to impress this standard upon the Board we have variously redefined it to mean that the decision would not have been made “but for” the employee’s union activity, Coletti’s Furniture, Inc. v. NLRB, 550 F.2d 1292, 1293 (1st Cir. 1977), that union animus was the “dominant” reason, NLRB v. Lowell Sun Publishing Co., 320 F.2d 835, 842 (1st Cir. 1963), or the “controlling” motive, NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1315 (1st Cir. 1971). By whatever phraseology, we have attempted to make it clear that “the mere existence of anti-union animus is not enough” to make out a section 8(a)(3) violation, NLRB v. Billen Shoe, supra, 397 F.2d at 803.
Here the administrative law judge, upheld by the Board, acknowledged that respondent had asserted a business reason for its conduct, but dismissed it as “improbable” and concluded that “but for” the union activity, Schembri would have been rehired. While the magic words may have been invoked, that is not enough, see Coletti’s Furniture, supra, 550 F.2d at 1293. Our standard must also be reasonably applied to the facts at issue, id. We are unable to convince ourselves that this was done.
This case is unlike Champion Papers Inc. v. NLRB, supra, 393 F.2d at 394, for example, where the asserted reason for the employer’s action, “dissatisfaction” and “attitude”, appeared unsubstantiated or inconsequential. Here respondent’s refusal to rehire Schembri had a sound basis in business judgment. The only employee at the jewelry counter, Schembri had walked out in a fit of temper at the outset of one of respondent’s busiest retail nights, requiring the supervisors to draft an untrained last minute substitute from one of the other departments. An employer’s unwillingness to rehire an employee who demonstrated such irresponsibility and lack of consideration is quite understandable. Moreover, respondent presented evidence to the administrative law judge that it had acted in accordance with a pre-existing policy of refusing to reinstate employees who quit without notice or a valid excuse.
The Board summarily dismissed the proffered reason as “improbable”, see NLRB v. Fibers Int'l Corp., supra, 439 F.2d at 1315, and assorted that respondent’s rein-
statement policy was the exact opposite of what respondent asserted it to be, i. e., that in the past respondent had always rehired employees who terminated voluntarily, and had failed to do so only in this case. The Board’s assertion is belied by the record. Of the two examples the Board relied upon to reach its conclusion, one concerns a rehired employee who had given notice prior to resigning. The other relates to a young boy who was discharged for stealing. He was indeed rehired, but only after his parents managed to persuade respondent that the boy had learned his lesson. In all instances of voluntary termination without notice or explanation cited in the record, the employees in question were not reinstated and it was noted in their personnel files that they were ineligible for rehire. See NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509, 514 (6th Cir. 1963).
In sum, Schembri genuinely quit without notice on her own volition at a pressing time over a matter wholly unrelated to any concerted activity or bargaining. The employer’s professed reason for refusing to rehire her not only is readily understandable as a matter of common sense but was in conformity with a written policy which was, contrary to the Board’s analysis, faithfully followed. While the employer knew that Schembri was a union supporter, there is nothing to indicate that she was other than rank-and-file. All that is left is that management representatives had demonstrated some hostility toward union efforts in conversations with Schembri and had committed some illegal actions in other contexts. On this record we find this to be insufficient evidence of dominant antiunion motive to overcome the legitimate business justification for respondent’s conduct, see Stone & Webster v. NLRB, supra, 526 F.2d at 465; NLRB v. Puerto Rico Telephone Co., 357 F.2d 919, 920 (1st Cir. 1966); NLRB v. Bird Machine Co., 161 F.2d 589, 591 (1st Cir. 1947).
In Coletti’s Furniture, Inc. v. NLRB, supra, 550 F.2d at 1293, we noted that after such repeated and unambiguous interpretation “there can be little reason for us to rescue the Board hereafter if it does not both articulate and apply our rule”. Our rescue mission stops here. So much of the Board’s order as directs that Schembri be reinstated with back pay is set aside. That portion of the order as concerns the violation of section 8(a)(1) is enforced.
So ordered.
. It is unclear from the administrative law judge’s report whether the wage increase was implemented before or after the union filed its petition with the Board. The precise date is unimportant, for it is conceded that at the time the increase went into effect respondent was aware of the union activity in its Plymouth store, see NLRB v. Gotham Industries, Inc., 406 F.2d 1306, 1310 (1st Cir. 1969).
. The administrative law judge found that the benefits discussed at the meetings were never actually conferred, There is no claim on appeal that respondent committed a separate unfair labor practice by withholding promised benefits, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976).
. Whether well timed raises create a rebuttable presumption of a violation, as the Board found, or a prima facie case of misconduct, is immaterial to the disposition of this case. In either event the company was called upon to present substantial evidence in opposition to the charge, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 280 (1st Cir. 1975). It failed to do so.
. This can be inferred from the fact that by Pereira’s own testimony, at some point after management’s meetings with the day and night shift employees, but before this incident, personnel manager Costello asked for her reaction to the proposal for implementing health insurance. Pereira responded that she “wanted union representation”.
. Although independently owned, the concession was operated under the supervision of Rich’s employees.
. Schembri recounted to the administrative law judge a series of conversations with the concession manager which, if believed, would have indicated some anti-union animus on the part of the supervisory personnel. Favorably im- , pressed by the manager’s demeanor, and unconvinced by Schembri’s testimony, which he termed “hostile and robot-like”, the administrative law judge disbelieved Schembri’s version of these discussions, except where corroborated by the manager.
. The briefs cite pretext dismissal cases.
. Inclusion of the phrase “but for” constitutes . the only reference in the administrative law judge’s memorandum to any standard. No decision of this court was cited, see NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1312 (1st Cir. 1971), and there was no elaboration on the “but for” language.
. That Schembri had been considered a competent employee and it may arguably have been in respondent’s interest to bend policy in order to rehire her does not refute the legitimacy of respondent’s refusal to do so. The business justification was within respondent’s realm to make, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394 (6th Cir. 1967). It is neither the Board’s function, nor indeed ours, to second-guess business decisions. "The Act was not intended to guarantee that business decisions be sound, only that they not be the product of antiunion motivation”, Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 467 (1st Cir. 1976) (emphasis in original).
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
songer_sentence
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Sylvester GAVIN, Petitioner-Appellant, v. H. Gary WELLS, Respondent-Appellee.
No. 87-1864.
United States Court of Appeals, Sixth Circuit.
Sept. 19, 1990.
Sylvester Gavin, Muskegon, Mich., pro se.
Edgar L. Church, Jr., Asst. Atty. Gen., Corrections Div., Lansing, Mich., for respondent-appellee.
Before MILBURN and BOGGS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
BOGGS, Circuit Judge.
This case is before the court on remand from the Supreme Court of the United States. — U.S. -, 109 S.Ct. 2425, 104 L.Ed.2d 983. This court originally affirmed the district court’s denial of Gavin’s habeas corpus petition, which attacked judgments of conviction in 1955 for breaking and entering and in 1970 for first degree murder. He is presently incarcerated for the 1970 conviction. The Supreme Court remanded for us to consider the case in light of its opinion in Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). We have reviewed that decision and received supplemental briefs of the parties.
Gavin raises three primary contentions on appeal, none of which has merit in light of Maleng. First, he asserts that his 1955 conviction violated the United States Constitution. This conviction, however, was fully served prior to Gavin’s filing of this habeas corpus petition. We therefore have no jurisdiction to consider this argument. Maleng, 109 S.Ct. at 1926.
Second, Gavin suggests that his 1955 conviction enhanced the sentence imposed for his 1970 first degree murder conviction. We disagree. Michigan law applicable to Gavin’s first degree murder conviction provided for a mandatory sentence of life imprisonment. MCL 750.316. Given the mandatory nature of the 1970 sentence, his 1955 conviction cannot in any sense have “enhanced” this sentence.
Only an actual enhancement of the 1970 sentence based on the 1955 conviction would implicate the question left unanswered in Maleng: “the extent to which [an earlier] conviction ... may be subject to challenge in the attack upon [later] sentences which it was used to enhance.” 109 S.Ct. at 1927. Accordingly, Gavin may not attack the 1970 conviction for which he is presently incarcerated by means of a challenge to the 1955 conviction. See Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990).
Third, Gavin asserts that the parole board’s consideration of his allegedly invalid 1955 conviction resulted in the assignment of a discretionary parole review date five years later than would have been assigned without consideration of his conviction. It is clear that state prisoners have no federal constitutional right to parole. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979). At most, Gavin asserts that the state parole board violated a state procedural rule in considering his allegedly invalid 1955 conviction, a claim that does not rise to federal constitutional proportions. See Wallace v. Turner, 695 F.2d 545, 549 (11th Cir.1983). Thus, we AFFIRM the decision of the district court dismissing Gavin’s petition for a writ of habeas corpus.
. Technically, this review is not for the purpose of granting parole, but rather is a review for the purpose of deciding whether to recommend to the Governor that he commute the sentence.
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_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.
BURLINGTON TRANSP. CO. v. STOLTZ.
No. 4273.
United States Court of Appeals Tenth Circuit.
Oct. 11, 1951.
H. Berman, Denver, Colo. (Joseph N. Lilly, Denver, Colo., was with him on the brief), for appellant.
Clay R. Apple and L. J. West, Greeley, Colo., for appellee.
Before ' HUXMAN, MURRAH and PICKETT, Circuit Judges.
HUXMAN, Circuit Judge.
Earl C. Stoltz instituted this action against appellant, Burlington Transportation Company, to recover damages for the wrongful death of his minor son, while a passenger on appellant’s bus. There is no conflict in the evidence. In fact, appellant defendant below introduced no evidence relating to the occurrence of the accident resulting in the death of appellee’s minor son. The jury returned a verdict for plaintiff on which judgment was entered. Eight assignments of error are urged for reversal. All but one relate to alleged errors in the trial court’s instructions. The last assignment relates to the exclusion of certain Colorado Statutes offered in evidence by appellant.
Only a brief statement of facts is essential to the questions presented. On the day in question appellee’s son was a passenger on one of appellant’s East bound busses, coming from California to his home in Greeley, Colorado. The accident occurred a short distance from Salt Lake City, Utah, about six miles West of Delle, Utah. The bus on which appellee’s son was riding was travelling East on the South side of a two-lane main highway. There was some ice and fog at the time, partially obscuring visibility, so that the bus was travelling with lights on. At the same time, one of appellant’s busses was coming West on the same highway and travelling on the North side of the highway. Just before the accident, the West hound bus started to pass an automobile in its lane of traffic, going in a Westerly direction. In passing, it pulled into the South lane of traffic and met the East bound bus in a collision, nearly opposite the car it was attempting to pass. The collision caused the death of appellee’s son.
It is contended that the court erred in its Instruction No. 1 and in refusing to give appellant’s tendered Instruction No. 1. The court rejected appellant’s Instruction No. 1 on the ground that its substance was included in the court’s Instruction No. 9. In Instruction No. 1 the court, in addition to other matters, instructed the jury with respect to the defense of unavoidable accident, which was a defense tendered in appellant’s answer. It instructed the jury that “The burden of proof is upon the defendant to prove, by a preponderance of the evidence, that the collision was due to .an unavoidable accident.” Appellant contends that the court should have added thereto “unless such evidence has been adduced on the plaintiff’s case.” In addition to Instruction No. 1, the trial court gave a separate instruction on unavoidable accident, in which after correctly defining unavoidable accident, it told the jury that “If you find from a preponderance of the evidence that the death of the plaintiff’s son was due to an unavoidable accident, then your verdict should be in favor of the defendant.” Since the only evidence adduced was by plaintiff, the jury would, of necessity, be required to resolve this issue under the instruction of the court from a ■consideration of that evidence. We think the two instructions considered together ■adequately guided the jury in its deliberations with respect to this defense. It is not necessary to consider a somewhat similar instruction which was before the Supreme Court in the case of Denham Theatre v. Beeler, 107 Colo. 116, 109 P.2d 643 upon which appellant relies, because the instructions there were entirely different from the instructions in this case.
Appellant complains of the court’s refusal to give its tendered Instructions No. 2 and 3. Instruction No. 2 recited the Colorado Statute, 35 C.S.A. c. 50, § 3, limiting recovery for death to $5,000, and Instruction No. 3 instructed the jury that in no event could its verdict exceed the maximum amount of $5,000 fixed by the Statute. In a former appeal in this case, 178 F.2d 514, 15 A.L.R.2d 759, we held that the measure of damages was controlled by the law of Utah where the cause of action arose and not by the law of Colorado where it was tried. That decision became and, is the law of the case. We are satisfied with that decision and are not inclined to accept appellant’s invitation to reconsider the matter.
It is also urged that the court erred in refusing to give appellant’s requested Instruction No. 4, in which it requested the court to instruct the jury “That many states have different laws regarding the amount of damages in a death case. The law of Colorado is that no more than $5,000 can be awarded. The law of Utah has no limit.” Since the jury was bound by the law of Utah in the consideration of t'he amount of damages, the law of Colorado became wholly immaterial. Appellant cites Northern Pacific Railroad Company v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 980, 38 L.Ed. 958, in support of such an instruction. But that case does not sustain its position. While in that case the trial court did give an instruction stating that “Many states have different laws. The law in this state until recently was that only $5,000 could be given in a case of death. It has lately been increased to $10,000,” the court, ■however, further instructed the jury that “The law of Montana limits it to such an amount as you think would be proper under all circumstances of the case, and that is the law which will govern in this case.” Appellant did not tender this instruction as a part of its requested Instruction No. 4. The appropriateness o-f the reference to the law of Minnesota (the lex fori) was not discussed or considered by the Supreme Court in the decision of that case. Since the law of Colorado with regard to the amount of allowable recovery was immaterial to a consideration of the question before the jury, reference thereto was properly eliminated from the case.
Neither did the court err in refusing appellant’s requested Instruction No. 5, instructing the jury “That a driver suddenly realizing that he is confronted by an emergency, not created by his own negligence, is not to be charged with negligence for an error of judgment, if any, when practically instantaneous action is required.” We agree with the trial court that there was no evidence in the case warranting the giving of this instruction. •
Appellant argues that the court erred in that part of its Instruction No. 9, in which it told the jury that it “may consider the loss, if any, of comfort, -society and companionship occasioned by the death of his son as elements of pecuniary loss.” In Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244, 249, the -Utah Supreme Court approved an instruction' in the following words: “You should also, take into consideration the financial loss to the plaintiff of the boy’s comfort, society and -companionship.” The trial court used the words “pecuniary loss.” The instructions in the Van Cleave case used the phrase “financial loss.” The distinction w-hidi appellant seeks to draw between the two instructions is without merit. The loss of the comfort, society and -companionship was an element of damages to be considered, together with any other elements of damages established in the trial. While the portion of the quoted instruction in the Van Cleave case does not -contain the word “element,” a reading of the entire instruction makes it clear that the jury was instructed that such loss was but one o-f the elements or items of loss for which,- if established, recovery might be had.
Objection is also made to that part of Instruction No. 9 in which the court instructed the jury, that it might also “consider the present purchasing power of the dollar and award such damages, if any, as under all of the circumstances of the case may be just. * * * ” There are numerous decisions, including decisions from Utah, holding that the change in the purchasing power of the dollar is proper to consider in arriving at a just award. The Utah Supreme -Court in a number of cases has considered the present purchasing power o-f the dollar in passing upon the amount of damages awarded. In McAfee v. Ogden Union Ry. & Depot Co., 62 Utah 115, 218 P. 98, 104, the Supreme Court in passing upon the adequacy of a verdict said: “The present cost of living must be considered, and the diminished purchasing power of the dollar must be taken into consideration when estimating damages.” And in Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244, 250, the court again said: “The argument of counsel loses its apparent potency when reference is made to the dates of the cited decisions, 1901, 1903, and 1914. The purchasing power of the dollar has greatly decreased since the dates o-f those decisions. This fact is so well known that we can take judicial notice of it.” If the present value of the dollar is an element to -consider in determining whether a verdict is adequate or excessive, it is proper in order to guide the jury in its deliberations that a proper instruction relating thereto be given.
Appellant offered in evidence the Colorado Statute relating to the maximum amount of recovery in death cases. The trial court excluded this evidence. The offer was -made, as stated, by appellant in support of its continued contention that the Colorado Statute controlled the maximum amount of recovery notwithstanding that the cause of action arose in Utah. What has been said heretofore with regard to this question disposes of this contention.
We find no reversible error in the record and the judgment is accordingly Affirmed.
. The cause of action there arose in Montana and was tried in Minnesota.
. 12 A.L.R.2d, beginning on page 611; Dabareiner v. Weisflog, 253 Wis. 23, 33 N.W.2d 220, 12 A.L.R.2d 605; New Amsterdam Casualty Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R.2d 128.
. See also Coke v. Timby, 57 Utah 53, 192 P. 624, 625.
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_appel2_7_5
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Samuel KATKIN and Doris Katkin, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 77-1483.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 2, 1977.
Decided Jan. 26, 1978.
John S. Nolan, Miller & Chevalier, Washington, D. C., for appellants.
M. Carr Ferguson, Asst. Atty. Gen., Tax Div., U. S. Dept, of Justice, Washington, D. C., Gilbert E. Andrews, Grant W. Wiprud, F. Arnold Heller, Stuart E. Seigel, Chief Counsel, Internal Revenue Service, Washington, D. C., for appellee.
Before CELEBREZZE, LIVELY and MERRITT, Circuit Judges.
LIVELY, Circuit Judge.
The question in this case is whether the receipt of stock in 1971 by shareholders of a corporation which was a party to a 1968 merger that qualified as a tax-free reorganization constituted a “deferred payment” within the meaning of section 483 of the Internal Revenue Code, 26 U.S.C. § 483. Section 483 provides in general for imputation of interest according to a statutory formula to any payment under a contract for the sale or exchange of property which constitutes part or all of the sales price and which is deferred for more than one year after the sale or exchange, where no interest or inadequate interest is provided for.
The taxpayers exchanged their stock in two corporations, Detroit Bolt and Nut Co. (Detroit) and Quinn Manufacturing Co. (Quinn), for the stock of Whittaker Corporation (Whittaker) pursuant to an acquisition agreement and plan of reorganization dated August 19,1968. Because the parties were unable to agree on the exact value of the Detroit and Whittaker stock, the taxpayers also received, as part of the exchange, a nonassignable right to receive additional shares of Whittaker stock. The agreement provided that additional Whit-taker stock (up to a certain maximum) would be issued if the value of the Whittaker shares received at closing had not increased at least 20 percent by the third anniversary of the closing date. It was possible that no additional stock would be issued, since entitlement to it was contingent on the market performance of Whit-taker stock. Whittaker set up a reserved stock account, and the maximum number of shares that could be issued was set aside for possible future delivery. By the third anniversary of the closing date, the value of the Whittaker stock had decreased substantially. Accordingly, in 1971, all of the Whit-taker stock in the reserved stock account was issued to the taxpayers. The agreement did not provide for the payment of interest by Whittaker on that portion of the agreed exchange value which was represented by the shares of stock issued in 1971.
The Commissioner assessed an income tax deficiency for 1971 on the theory that the issuance of shares of Whittaker stock to the taxpayers in 1971 constituted a deferred payment in connection with the 1968 exchange of stock, applying Example (7), Treas. Reg. § 1.483-1(b)(6). Upon petition by the taxpayers for a determination of no deficiency the Tax Court held “that the contingent payments of Whittaker stock received by petitioners in 1971 are subject to the imputed interest provision of section 483.”
On appeal the taxpayers contend that the Tax Court did not seriously consider their argument that the transaction with Whit-taker did not involve a deferred payment. They argue that they received a definite equitable interest in Whittaker in 1968 in exchange for their Detroit and Quinn stock and that the issuance of Whittaker stock to them in 1971 was merely a paper transaction which translated the previously unknown value into a certain number of shares. Hence, they claim, there was no payment in 1971. The government, on the other hand, maintains that the right to receive additional shares was in fact an evidence of indebtedness payable in stock three years after the merger was consummated, and that the issuance of Whittaker stock at that time was a payment.
The taxpayers have presented three closely related arguments which are based on the assumption that Congress has exempted the participants in corporate reorganizations from any and all tax consequences if the requirements for non-recognition of gain and loss are met. The government responds that the sweeping language of section 483 indicates that it applies to tax-free reorganizations as well as to other transactions where there is a deferred payment. It refers to the opening language of section 483, “For purposes of this title, in the case of any contract for the sale or exchange of property there shall be treated as interest . . . ” and the provision in subsection (c)(1), “Except as provided in Subsection (f), this section shall apply to any payment on account of the sale or exchange of property which constitutes part or all of the sales price . . . .” Subsection (f) contains five exceptions to the application of section 483 and none of these exceptions relates to tax-free reorganizations. The government points out that the Eighth Circuit found the language of section 483 to be “comprehensive and unambiguous” in applying it to installment sales in Robinson v. Commissioner of Internal Revenue, 439 F.2d 767, 768 (1971).
The basic contention of the taxpayers is that the tax treatment of qualified reorganizations should not be affected by the fact that part of the equity interest received by shareholders of an acquired corporation is represented for a period of time by something other than certificates for a definite amount of stock. They point to the “continuing interest” theory which is often cited as justification for the special tax treatment accorded corporate reorganizations. See, e. g., Mertens, Law of Federal Income Taxation, Vol. 3, § 20.55, where the author states:
The justification for the exemption from taxation of gains realized in corporate reorganizations is that the parties making the exchanges have simply changed the form of their corporate holdings and that what was formerly a corporate business carried on by a particular corporation, or corporations, in a particular corporate form, or forms, is to be now carried on and continued by other and perhaps new corporations having new corporate form.
Since in law their interest in Whittaker is a continuation of their interests in Detroit and Quinn, it is inconsistent with the overall tax treatment of qualified reorganizations to base tax consequences on the time at which indicia of ownership are delivered, they contend. In support of this argument the taxpayers point out that the holding period of stock received in exchange dates from the acquisition of the stock given in exchange rather than from the date of the exchange. 26 U.S.C. § 1223.
The fact that a shareholder who receives stock in an acquiring corporation is considered to have a “continuing interest” does not preclude the treatment of any issuance of stock to him subsequent to the initial exchange as a deferred payment. The continuing interest theory is irrelevant to the problem of unstated interest dealt with in section 483. Though the value which the taxpayers were entitled to receive under the acquisition agreement and plan of reorganization was fixed at the time of the initial transfer, the stock which was actually transferred at that time represented only a portion of that value. The taxpayers had the immediate right to vote the stock which was transferred to them at the time of the consummation of the merger and to receive dividends thereon. No such rights attached to the right to receive additional shares. The stock which was set aside in reserve by the acquiring corporation for three years was not property of the taxpayers and would not become their property unless the conditions of the agreement were met. Until it was determined that these conditions had been met and the stock was issued to the taxpayers they had not received the full value for which they bargained in the acquisition agreement. Thus we conclude that the final payment in the agreement for exchange of stock was not made until the stock was issued to the taxpayers in 1971. Webster’s Third New International Dictionary, Unabridged (1971 edition), defines “payment” as the discharge of a debt or an obligation. Black’s Law Dictionary (Rev.Fourth Ed. 1968), defines it as the fulfillment of a promise or the performance of an agreement. The issuance and delivery of the stock to the taxpayers in 1971 was an occurrence within the plain meaning of the word “payment” as used in section 483.
The taxpayers also contend that their right to receive additional shares must be treated as stock in Whittaker, since nonrecognition of gain or loss would have been forfeited if they had received “boot” or other property. 26 U.S.C. § 356. From this position they argue that since they received nothing but stock, the scheme of non-recognition is somehow violated by treating part of the value of the 1971 shares as unstated interest. This argument is based primarily upon the decision in Carlberg v. United States, 281 F.2d 507 (8th Cir. 1960). The only question in Carlberg, which was decided before the enactment of section 483, was whether certificates of contingent interest are “stock” within the reorganization provisions of the Internal Revenue Code. The court held that such certificates are stock and that the lapse of time between the initial transfer and ultimate distribution of reserve shares does not of itself affect the qualification of the certificates as stock under the reorganization provisions.
The determination that certificates of contingent interest which are issued in connection with a corporate reorganization are “stock” and that delay in issuing stock certificates is not fatal to non-recognition of gain does not dispose of the question of whether such delay may properly be the basis for application of the imputed interest requirement of section 483. Carlberg did not address this question and does not provide an answer. The fact that certificates of contingent interest have been held to be stock of the acquiring corporation rather than “other property,” 26 U.S.C. § 356(b)(2), does not require a holding that the value of the shares eventually to be exchanged for such certificates includes no unstated interest. Section 356 is concerned with the requirements for non-recognition of gain or loss and does not deal with interest, the subject matter of section 483.
The taxpayers next argue that even if the transfer of stock in 1971 did constitute a deferred payment within section 483 Congress did not intend for that section to apply to corporate reorganizations which qualify for non-recognition of gain or loss. They rely on the familiar maxim of statutory construction that where there is an apparent conflict between statutes, the specific will prevail over the general, regardless of which is first enacted. Bulova Watch Co. v. United States, 365 U.S. 753, 81 S.Ct. 864, 6 L.Ed.2d 72 (1961). They maintain that the application of section 483 to that portion of the stock received in 1971 directly conflicts with the provisions of the Internal Revenue Code which recognize their transaction as a tax-free reorganization.
The taxpayers cite Fox v. United States, 510 F.2d 1330 (3d Cir. 1975), for the proposition that the general provisions of section 483 should not “override” other specific provisions of the Code which apply to established concepts of taxation law. Fox is an unusual case in which a divorced husband sought to obtain deductions for unstated interest which he contended was included in periodic alimony payments to his former wife. The court pointed out that the property settlement between the taxpayer and his divorced wife had been carefully drawn with attention to the tax consequences. The alimony was payable in 9V2 years, thus falling within a provision which made the payments nontaxable to the divorced wife. Alimony payments are deductible by the husband only if they are taxable to the wife by virtue of section 215 of the Internal Revenue Code. Since the payments were not taxable to the wife, under section 215 there could be no deduction by the husband, and a deduction could not be contrived by imputing interest. Of course, this case may be distinguished on the ground that the settlement between the husband and wife was not a contract for the sale or exchange of property — the first requirement for application of section 483. Even if the settlement between husband and wife were considered a contract for the sale or exchange of property, however, we do not believe that the rationale of Fox v. United States, is controlling in the present case. In Fox there was a direct and inherent conflict between section 215, which dealt specifically with the deductibility of alimony payments, and any other provision of the Internal Revenue Code which might be construed to permit a deduction for payments by a husband to his divorced wife of amounts which were not taxable to her. No such direct conflict exists between the reorganization provisions and section 483.
The reorganization provisions permit non-recognition of gain from the exchange transaction itself. Imputed interest is ordinary income, not gain from the sale or exchange of property. When Congress provided for non-recognition of gain or loss from the sale or exchange of stock or other securities in certain corporate reorganizations it did not encase such transactions in a cocoon of non-taxability which shields them from every tax consequence to which they would otherwise be subject. Though the primary concern of Congress in enacting section 483 was to prevent the treatment of interest income as capital gain, the operative language of the statute is so all-inclusive, and its exceptions so clearly stated, that we can perceive no basis for holding that it does not apply to a qualified reorganization where part of the stock representing the sales price is transferred more than one year after the initial exchange.
We conclude that the majority of the Court of Claims reached the correct result in Jeffers v. United States, 556 F.2d 986 (1977), a case which is essentially indistinguishable from the present one. After preparation of this opinion began the Second Circuit released its opinion in a companion case, Solomon v. Commissioner of Internal Revenue, 570 F.2d 28 (No. 77-4120, December 14, 1977), in which it affirmed the Tax Court’s deficiency findings. The taxpayers in Solomon owned all of the stock of Detroit and Quinn not owned by the Katkins. Thus, the facts (except for the numbers of shares involved) and the legal issues are identical in the two cases. Noting Judge Mansfield’s comprehensive treatment of the pertinent legislative history in Solomon, with which we agree, we have omitted discussion of that history from this opinion.
The judgment of the Tax Court is affirmed.
APPENDIX
§ 483. Interest on certain deferred payments
(a) Amount constituting interest. — For purposes of this title, in the case of any contract for the sale or exchange of property there shall be treated as interest that part of a payment to which this section applies which bears the same ratio to the amount of such payment as the total unstated interest under such contract bears to the total of the payments to which this section applies which are due under such contract.
(b) Total unstated interest. — For purposes of this section, the term “total unstated interest” means, with respect to a contract for the sale or exchange of property, an amount equal to the excess of—
(1) the sum of the payments to which this section applies which are due under the contract, over
(2) the sum of the present values of such payments and the present values of any interest payments due under the contract.
For purposes of paragraph (2), the present value of a payment shall be determined, as of the date of the sale or exchange, by discounting such payment at the rate, and in the manner, provided in regulations prescribed by the Secretary or his delegate. Such regulations shall provide for discounting on the basis of 6-month brackets and shall provide that the present value of any interest payment due not more than 6 months after the date of the sale or exchange is an amount equal to 100 percent of such payment.
(c) Payments to which section applies.—
(1) In general. — Except as provided in subsection (f), this section shall apply to any payment on account of the sale or exchange of property which constitutes part or all of the sales price and which is due more than 6 months after the date of such sale or exchange under a contract—
(A) under which some or all of the payments are due more than one year after the date of such sale or exchange, and
(B) under which, using a rate provided by regulations prescribed by the Secretary or his delegate for purposes of this subparagraph, there is total unstated interest.
Any rate prescribed for determining whether there is total unstated interest for purposes of subparagraph (B) shall be at least one percentage point lower than the rate prescribed for purposes of subsection (b)(2).
(2) Treatment of evidence of indebtedness. — For purposes of this section, an evidence of indebtedness of the purchaser given in consideration for the sale or exchange of property shall not be considered a payment, and any payment due under such evidence of indebtedness shall be treated as due under the contract for the sale or exchange.
(d) Payments that are indefinite as to time, liability, or amount. — In the case of a contract for the sale or exchange of property under which the liability for, or the amount or due date of, any portion of a payment cannot be determined at the time of the sale or exchange, this section shall be separately applied to such portion as if it (and any amount of interest attributable to such portion) were the only payments due under the contract; and such determinations of liability, amount, and due date shall be made at the time payment of such portion is made.
(e) Change in terms of contract. — If the liability for, or the amount or due date of, any payment (including interest) under a contract for the sale or exchange of property is changed, the “total unstated interest” under the contract shall be recomputed and allocated (with adjustment for prior interest (including unstated interest) payments) under regulations prescribed by the Secretary or his delegate.
(f) Exceptions and limitations.—
(1) Sales price of $3,000 or less. — This section shall not apply to any payment on account of the sale or exchange of property if it can be determined at the time of such sale or exchange that the sales price cannot exceed $3,000.
(2) Carrying charges. — In the case of the purchaser, the tax treatment of amounts paid on account of the sale or exchange of property shall be made without regard to this section if any such amounts are treated under section 163(b) as if they included interest.
(3) Treatment of seller. — In the case of the seller, the tax treatment of any amounts received on account of the sale or exchange of property shall be made without regard to this section if no part of any gain on such sale or exchange would be considered as gain from the sale or exchange of a capital asset or property described in section 1231.
(4) Sales or exchanges of patents. —This section shall not apply to any payments made pursuant to a transfer described in section 1235(a) (relating to sale or exchange of patents).
(5) Annuities. — This section shall not apply to any amount the liability for which depends in whole or in part on the life expectancy of one or more individuals and which constitutes an amount received as an annuity to which section 72 applies.
. Section 483 in its entirety is printed as an appendix to this opinion.
. * * * * * *
Treasury Regulations (1954 Code):
Treas. Reg. § 1.483-1. Computation of interest on certain deferred payments.
* * * * * *
(b) Payments to which section 483 applies -* * *
(6) Examples. The provisions of this paragraph may be illustrated by the following examples:
* * * * * *
Example (7). M Corporation and N Corporation each owns one-half of the stock of O Corporation. On December 31, 1963, pursuant to a reorganization qualifying under section 368(a)(1)(B), M contracts to acquire the one-half interest held by N for an initial distribution on such date of 30,000 shares of M voting stock, and a nonassignable right to receive up to 10,000 additional shares of M’s voting stock during the next 3 years, provided the net profits of O Corporation exceed certain amounts specified in the contract. No interest is provided for in the contract. No additional shares are received in 1964 or in 1965, but in 1966 the annual earnings of O Corporation exceed the specified amount and on December 31, 1966, an additional 3,000 M voting shares are transferred to N. Section 483 applies to the transfer of the 3,000 M voting shares to N on December 31, 1966. See example (2) of paragraph (e)(3) of this section for an illustration of the computation of total unstated interest in this case.
* * * * * *
. This factor distinguishes the present case from one described in Rev.Rule 70-120 where a part of the stock of the acquiring corporation was held in escrow pending determination of the earnings of an acquired corporation. Though held in escrow for more than one year, the shares were registered in the names of the acquiring shareholders who were entitled to vote and receive all dividends paid on the es-crowed stock. They received an immediate economic benefit from the escrowed stock at the time of the initial transfer.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_circuit
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
James M. MARX, Plaintiff, Appellant, v. KELLY, HART & HALLMAN, P.C., d/b/a Kelly, Appleman, Hart and Hallman, et al., Defendants, Appellees.
No. 90-1733.
United States Court of Appeals, First Circuit.
Heard Dec. 4, 1990.
Decided March 26, 1991.
Bernard Bressler with whom Robert Brantl and Bressler, Amery & Rothenberg, New York City, were on brief, for plaintiff, appellant.
Jeffrey B. Rudman with whom Peter J. Macdonald, Heidi E. Brieger and Hale and Dorr, Boston, Mass., were on brief, for defendants, appellees Hale and Dorr.
Before BREYER, Chief Judge, CAMPBELL and CYR, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
The only issue presented in this appeal is whether the district court abused its discretion in dismissing appellant’s complaint for failure to comply with discovery orders pursuant to Fed.R.Civ.P. 37(b)(2)(C). Having reviewed the record in this case, we conclude that the judgment of the district court did not constitute an abuse of discretion. We therefore affirm.
I.
In December, 1988, James M. Marx filed a lawsuit in the Superior Court of New Jersey, naming as defendants two law firms, Kelly, Appleman, Hart and Hallman (located in Texas), and Hale and Dorr, a Boston, Massachusetts, firm. Marx alleged that the law firms had incorrectly advised him regarding a stock acquisition, thereby causing him substantial financial losses. The defendants removed the case to the United States District Court for the District of New Jersey, where they then moved to dismiss it pursuant to Fed.R. Civ.P. 12(b)(2) for lack of in personam jurisdiction. On January 22, 1990, the district court allowed the motion. Marx’s appeal from that dismissal is currently pending before the Third Circuit.
On December 29, 1989, while defendants’ motion to dismiss was still pending in the New Jersey district court, Marx filed the present action against the same two defendants in the United States District Court for the District of Massachusetts. Marx says that his purpose in bringing the present action was to toll the statute of limitations in Massachusetts, thus protecting against the possibility that his action in the District of New Jersey would ultimately be dismissed. Marx’s complaint in the proceeding below stated, therefore, that,
[tjhis same action is pending in the U.S. District Court of New Jersey and this Complaint is a protective filing as as [sic] a result of a pending Motion to Dismiss by the defendants for lack of personal jurisdiction.
Marx states in his brief on appeal that he “intended to litigate this matter exclusively in New Jersey.”
Hale and Dorr filed an answer to the complaint in the District of Massachusetts case on January 16, 1990, and, three weeks later, served its first request for production of documents. In response, Marx did nothing. He neither produced the requested documents, objected to the request, nor sought an extension of time from the district court within which to act. Nor did Marx move, at that time, to stay the case. On March 15th, after Marx had failed to respond in any way to the request within the thirty day period prescribed by Fed.R. Civ.P. 34(b), Hale and Dorr moved to compel production of the documents, pursuant to Fed.R.Civ.P. 37(a)(2). The following day, Marx dismissed his attorney, retained new counsel and notified the district court of the change. At that time, Marx filed a cross-motion to stay the proceedings in the District of Massachusetts, pending resolution of his appeal in the Third Circuit.
On April 30, 1990, the district court denied Marx’s motion for a stay and granted Hale and Dorr’s motion to compel. The district court's order required Marx
to serve a response to defendant Hale and Dorr's document request and to produce all requested documents on or before the close of business on Friday, 5/18/90.
(emphasis in original). The district court also stated as part of this order,
Any objections have been waived by failure to serve objections within the time provided by Rule 34(b), Fed.R.Civ.P.
Two days before May 18, 1990 — the production deadline established by the court— Marx’s lawyer notified Hale and Dorr by letter that the documents would be produced in New York City “on and after May 18, 1990” (emphasis supplied). The next day, one day before the deadline established by the court’s order to produce, appellant filed another motion, seeking clarification of the court’s order and requesting the court to shift the location of production from Boston to New York City.
On May 18, 1990, the final day for production under the court’s order, Marx served on Hale and Dorr a document entitled “Response to Hale and Dorr’s First Request for Production of Documents,” stating that “[t]he documents called for in the Request are available for inspection and copying [in New York City].” However, attached to the response was an appendix identifying over five hundred documents that were being withheld on the grounds of attorney-client privilege. No elaboration or explanation of the privilege claim was provided. On June 8th, Hale and Dorr moved to dismiss the action pursuant to Fed.R.Civ.P. 37(b)(2)(C) for failure to comply with discovery requests. Marx filed an opposition to the motion to dismiss. On June 26th, the district court allowed the motion and dismissed the complaint “by reason of deliberate failure to obey the Order of the Court.”
II.
The choice of sanctions for failing to comply with an order of the district court lies within the sound discretion of the court. Spiller v. U.S.V. Laboratories, Inc., 842 F.2d 535, 537 (1st Cir.1988). Absent an abuse of discretion, this court will not disturb a district court’s dismissal of an action for failure of the plaintiff to comply with court orders. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976). The question on appeal is not whether the appellate court would, under the same circumstances, have imposed a more lenient penalty, but whether the district court abused its discretion in imposing the sanction it did. Velazquez-Rivera v. Sea-Land Service, Inc., 920 F.2d 1072, 1075 (1st Cir.1990). A plaintiff who appeals from a Rule 37 dismissal bears a heavy burden of demonstrating that the district judge was clearly not justified. Damiani v. Rhode Island Hospital, 704 F.2d 12, 17 (1st Cir.1983).
To be sure, the district court’s sanction must be "just.” See Fed.R.Civ.P. 37(b); Velazquez-Rivera, 920 F.2d at 1075. This circuit has stated that “[dismissal with prejudice ‘is a harsh sanction’ which runs counter to our ‘strong policy favoring the disposition of cases on the merits.’ ” Figueroa Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir.1990) (citation omitted). Nonetheless, the Supreme Court has made it plain that the availability of dismissal as a sanction is essential to deter and penalize egregious conduct. National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781. We believe that the plaintiff’s conduct evidenced a deliberate pattern of delay and disregard for court procedures that was sufficiently egregious to incur the sanction of dismissal.
It is evident, and Marx concedes, that he did not wish to proceed in the District of Massachusetts while his New Jersey case was alive. Marx apparently held the mistaken belief that he could simply ignore the former case while he pursued the more conveniently located one in New Jersey. It is true that Marx’s Massachusetts complaint styled that action “a protective filing,” but simply by affixing that label Marx could not exempt himself from duties prescribed in the Federal Rules.
Marx’s first dereliction was to ignore defendant’s production request. Under Rule 34(b), he was required to comply with the request or file appropriate objections within 30 days. By doing nothing, Marx engaged in conduct that, without more, was sanctionable. See Fed.R.Civ.P. 37(d). After Hale and Dorr moved to compel production, Marx did retain new counsel and move for a stay. On April 30, however, the district court denied the motion for stay, and granted Hale and Dorr’s motion to compel. The court also ruled on April 30th that, “Any objections have been waived by failure to serve objections within the time provided by Rule 34(b).” By indicating that “any objections” were waived, this ruling raised an obvious red flag to Marx and his counsel relative to Marx’s future right to withhold documents on grounds of privilege.
Nonetheless, Marx persisted in foot-dragging. Although the district court’s order gave him three weeks to comply with Hale and Dorr’s production request. Marx waited until two days before the final deadline to notify Hale and Dorr that the documents would be made available in New York “on and after May 18, 1990.” When Hale and Dorr objected to this arrangement, Marx sought “clarification” from the court with respect to the location for the production of documents by filing a “Motion for Clarification” on May 17,1990, the day before the deadline established by the court’s order. Neither the May 16th letter to Hale and Dorr, nor the May 17th motion filed with the court, sought clarification with respect to whether — in light of the April 30th order — Marx would be allowed to withhold privileged documents. Nor did they assert an objection to producing privileged documents, or give any indication that it was Marx’s intention to withhold documents based on an assertion of privilege.
On May 18, 1990, the final day for the production of the documents, at 5:25 p.m., Marx served via fax a “Response” to Hale and Dorr’s document request. Marx’s response advised Hale and Dorr that the requested documents would be available for inspection and copying at the offices of Marx’s counsel in New York City and listed, for the first time, over five hundred documents that Marx was withholding on grounds of privilege. Obviously regarding this move as the final straw in what had become a series of delaying tactics, the district court granted Hale and Dorr’s motion to dismiss Marx’s lawsuit under Rule 37(b), citing Marx’s “deliberate failure to obey the Order of the Court.”
Marx argues that, by making some documents available to Hale and Dorr and by listing the documents withheld on the basis of privilege, he fully complied with Hale and Dorr’s request and the district court’s production order. In making this argument, Marx relies on Hale and Dorr’s explicit exclusion of privileged material from three out of the firm’s thirty-seven requests for specific documents. This explicit exclusion in these three requests should, he argues, be interpreted as limiting to nonprivileged materials the scope of all documentary discovery requests. In support of this theory, Marx also points to Hale and Dorr’s general instruction requesting that he list all documents withheld on the basis of privilege. He contends that, properly construed, Hale and Dorr’s discovery request provided expressly for the holding back of privileged materials; therefore, he had no obligation either to produce the privileged documents or even to explain or justify his assertion of privilege. Privileged documents were, he contends, simply outside the scope of the request.
Marx’s above argument fails to recognize, however, that the documentary requests and instructions were all drafted at the beginning of the discovery process, before Hale and Dorr could know that Marx was not going to respond to its request in a timely and proper way. The fact that, pri- or to plaintiff’s derelictions, defendant might have anticipated the withholding of documents pursuant to a proper claim of privilege, did not allow Marx to short-circuit Rule 34(b) procedures for the raising of objections. Nor can Hale and Dorr be deemed to have surrendered in advance the benefit of the district court’s subsequent order of April 30th, ruling that all objections had been waived. Fed.R.Civ.P. 26(b) itself limits the scope of discovery to “any matter, not privileged, involved in the pending action ...” (emphasis supplied), but this limit is not self-executing. The burden is on the party asserting a privilege to do so in a timely and proper manner and to establish the existence and applicability of the privilege. Privilege claims may be raised as an objection to a specific documentary production request. See Fed.R. Civ.P. 34(b). But the assertion of privilege must be timely and must also be accompanied by sufficient information to allow the court to rule intelligently on the privilege claim. See id.; Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 541 (10th Cir.1984), cert. dismissed, 469 U.S. 1199, 105 S.Ct. 983, 83 L.Ed.2d 984 (1985). Here, plaintiff’s assertion of privilege was untimely; ran counter to the court’s April 30 waiver order; and was totally uninformative. In context, it gave the appearance of a further stalling tactic rather than a good faith effort to comply with the Rules and the court’s April 30 order.
Marx argues that the district court’s order of April 30th exceeded the court’s authority insofar as it determined that all objections had been waived on account of Marx’s failure to serve objections within the 30-day period. In particular, Marx says that such an order is invalid if deemed to foreclose later objections on grounds of the attorney-client privilege. We disagree. Fed.R.Civ.P. 34(b) requires that a party upon whom a request for discovery is served respond within thirty days, either stating its willingness to comply or registering its objections. If the responding party fails to make a timely objection, or fails to state the reason for an objection, he may be held to have waived any or all of his objections. See 4A Moore’s Federal Practice 1134.05[2] (citing Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, and Krewson v. City of Quincy, 120 F.R.D. 6 (D.Mass.1988)). Marx not only failed to register any objection to the discovery request within the appropriate period following Hale and Dorr’s initial request, he subsequently failed to object within the time period defined by the court’s order compelling discovery, nor, within that period, did he seek relief from the court’s waiver order.
III.
In light of his original failure to respond to the production request and the court’s subsequent statement that any objections had been waived, we hold that Marx withheld the privileged documents at his own peril. The district court’s conclusion that Marx’s tardy assertion of privilege was but one more stalling tactic, taken in bad faith and without intention of compliance, was not unreasonable. We hold that the district court acted within its discretion in imposing dismissal as the sanction.
Affirmed. Costs to appellees.
. In an order dated June 11, 1990, the district court allowed in part the plaintiffs motion for clarification, outlining three possible locations for production, the offices of Hale and Dorr in Boston, the offices of Marx’s local counsel in Boston, or the offices of Marx's counsel in New York City. If the documents were to be produced in New York City, Marx would be required to reimburse the travel expenses of Hale and Dorr attorneys. By the time this order was issued, however, the focus of the dispute had shifted from the place of production to the issue of privilege. Objecting to the withholding of the allegedly privileged documents, Hale & Dorr apparently did not travel to New York to inspect the documents produced.
. Rule 34(b) provides that, following a production request, the party served must, within 30 days, state "that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated.” By not so objecting on privilege grounds to requests deemed objectionable, Marx failed to follow the normal avenue the Federal Rules provide for raising the issue of privilege.
. Three of Hale and Dorr’s specific requests for documents pertained to meetings and conversations between Marx and his lawyers concerning the Net Operating Losses of Ztel. These included the phrase “to the extent not privileged” or referred to “nonprivileged documents.”
. We add that Hale and Dorr’s mention in three of the thirty-seven document requests of the possible exclusion of privileged materials could hardly relieve Marx of the burden of asserting the privilege properly with respect to the other thirty-four requests that did not mention any such possible exclusion. Indeed, that Hale and Dorr explicitly excluded privileged material from only three of its specific requests suggests that it sought, unless otherwise indicated, all other responsive documents.
. If the forced waiver order were deemed excessive, Marx was under a duty to challenge the order directly, by moving to have it modified, rather than by simply ignoring and violating it as he did. See, e.g., Vakalis v. Shawmut Corp., 925 F.2d 34 (1st Cir.1991) (upholding the district court’s sanction of dismissal when party chose to ignore rather than challenge directly the court's order).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. FURLONG.
No. 10429.
United States Court of Appeals Seventh Circuit.
Jan. 15, 1952.
Rehearing Denied March 4, 1952.
Frank J. McAdams, Jr., Gerald M. Chapman, Chicago, Ill., for appellant.
Otto Kerner, Jr., U. S. Atty., Lawrence J. Miller and Joseph E. Tobin, Asst. U. S. Atty., Chicago, Ill., for appellee.
Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
LINDLEY, Circuit Judge.
Defendants appeal from judgments entered upon a jury’s verdicts of guilty upon Counts 1, 2 and 6 of an indictment charging them with impersonation of federal officers in violation of Section 912, Title 18 U.S.C. The issue presented to us is whether the trial judge erred in giving a supplemental instruction to the jury and in refusing to consider the affidavit of a juror in support of defendants’ amended motion for a new trial.
The case went to the jury at 11:30 a. m. At 2:30 p. m. the foreman advised the court that a hopeless deadlock existed. The court, after advising counsel of the difficulty, shortly after 3 o’clock, had the jury brought into the courtroom and submitted to it the following supplemental charge: “Although the verdict to which a juror agrees must, of course, be his own verdict — the result of his own convictions and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the - same source, from which any future jury must come; and there is no reason to suppose that the case will ever be submitted to twelve persons, twelve men and women more intelligent, more impartial, or more competent to decide it, nor that more or clearer evidence will be produced on one side or the other. With this in view, it is your duty to decide the case if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one part or the other, in all cases. In the present case, the burden of proof — the burden is upon the Government to establish the guilt of the defendants beyond a reasonable doubt, and if you are left in doubt as to the guilt of the defendants, or any one of them, such defendant or defendants is entitled to the benefit of that doubt and must be acquitted. But, in conferring together you ought to pay proper respect to each other’s opinions and reasons, with the disposition to be convinced with each other’s arguments. And, on the one hand, if much the larger number of you are for a conviction the dissenting jurors should consider whether the doubt in their own minds is a reasonable one which makes no impression upon the minds of so many men and women equally honest, and equally intelligent, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if the majority of you are for acquittal, the minority should equally ask themselves whether they may not reasonably and ought to doubt the correctness of the judgment which is not concurred in by a number of those with whom they are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction in the minds of their fellows. With that admonition you are directed to continue your deliberations until you arrive at a unanimous verdict. You will again retire to your jury room and continue your deliberations.”
Defendants’ principal assault is upon the last sentence of the charge. That all other parts were proper is apparent from Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528; indeed, they were in the language approved by the court in that case. However, the concluding sentence, that the jury should continue to deliberate until it arrived at a unanimous verdict, is not within the Allen case and defendants urge that it is of such character that it must necessarily have coerced or influenced the jury.
Criminal Procedure Rule 30, 18 U.S.C. providing that no party may assign as error giving or failure to give an instruction, unless he objects thereto, stating distinctly the matter to which he objects and the grounds of his objection, has the force of law. Under it the objecting party must state specifically to what he objects and the grounds for his objection. It is a salutary rule, for its purpose is to give the judge an opportunity to make any correction which he thinks is proper and, thus, to minimize the possibility of error. Hower v. Roberts, 8 Cir., 153 F.2d 726. It is intended to prevent a litigant from taking advantage, after verdict, of the giving of an erroneous instruction to which he failed to call attention in time to afford the court an opportunity to correct it. Palmer v. Miller, 8 Cir., 145 F.2d 926. Unless the objection is made before verdict, a reviewing court is powerless to consider it; it can not be raised for the first time on motion for new trial or on appeal. Christensen v. Trotter, 9 Cir., 171 F.2d 66; Meadows v. U. S., 4 Cir., 144 F.2d 751; Atwater Kent Mfg. Co. v. U. S., D.C., 53 F.Supp. 472, affirmed, 3 Cir., 145 F.2d 374, 159 A.L.R. 1; and it must be specific; otherwise, it is not sufficient, Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645. If the objecting party does not state in the trial court before verdict, the grounds of his objections and call the attention of the trial court to the claimed error, he is deemed to have waived the right to object. Thiel v. Southern Pac. Co., 9 Cir., 149 F.2d 783, reversed on other grounds 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181.
The record in this cause discloses that when the court advised counsel that it intended to give the charge approved in the Allen case, it inquired whether either of them had any objection. Counsel for defendants said merely that he “objected.” His reasons were not stated. After the court had completed the supplemental charge, counsel for defendants made no motion, either before or after the jury retired, for opportunity to state any objection to the instruction, although the record shows that he was present and inquired as to who the foreman was. Obviously, if defendants thought that the final sentence was erroneous in that it tended to coerce the jury, they should have asked leave to object and called the court’s attention to that specific objection. Had they done so, the court could have made any correction deemed proper and avoided any possible error. By their failure to object or to ask leave to do so, defendants waived any right in this respect. The earlier general objection was not sufficient to preserve the point, as it did. not advise the court of any specific ground relied upon. Under the authorities cited, it was too late to set up a valid objection after verdict and to assign error upon it in this court.
We might observe that the record is persuasive that the jury was in no wise coerced, influenced or biased, for it reflected by its verdict careful consideration of the issues as to each defendant. Thus, one defendant was found not guilty, and, as to each of the three now appealing, the jury found them not guilty on Counts 3, 4 and 5 but guilty on Counts 1, 2 and 6. Prima facie such verdicts reflect careful consideration and a sense of discrimination by the jury and negate coercion.
Defendants take the position that the court did not require the jury to deliberate sufficiently long before giving the additional instruction. We think it is well settled that the time within which such a charge should be given is within the sound discretion of the trial- -court and that the only question here is whether that-discretion was abused. It is undisputed that the jury deliberated more than three hours before the court was advised that a hopeless deadlock existed and recalled it for a further charge; we think the record discloses no aibuse of discretion. Allis v. United States, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91; United States v. Samuel Dunkel & Co., 2 Cir., 173 F.2d 506; Culp v. United States, 8 Cir., 131 F.2d 93.
After defendants had filed their motion for new trial, they asked leave to amend it by filing an affidavit of one juror, who deposed that, after the jury had been empaneled, another juror said to the others that “we just as well might vote now as later, those fellows are guilty.” The affiant replied that she thought they “were supposed to hear some evidence.” She swore further that one of the jurors remarked that she had read in a newspaper that one of the defendants had been in trouble several times. Another juror, in the course of the proceedings, before any evidence had been submitted by defendants, said that she had made up her mind. One of the others protested that this was unusual. It will be observed that these were conversations in the jury room among the jurors during the progress of the trial. There is nothing to show that they in anywise affiected the final verdict, to which we have adverted and which, as we have said, reflects careful consideration and a sense of discretion in determining the issue as to each defendant, acquitting one entirely and finding others guilty on part of the counts and not guilty on others.
It is axiomatic that an affidavit of a juror as to what occurred in the jury room during deliberation of the jury, will not be considered, for sound public policy prohibits impeachment of a verdict by a member of the jury who participates in it. The return to the court is in fact the verdict of twelve; and an attempt by one, afterwards, to impeach it can receive no consideration. This well established doctrine is based upon sound reasoning. See Black v. United States, 5 Cir., 294 F. 828, certiorari denied 264 U.S. 580, 44 S.Ct. 330, 68 L.Ed. 859; Walsh v. United States, 7 Cir., 174 F. 615, certiorari denied 215 U.S. 609, 30 S.Ct. 409, 54 L.Ed. 347; Johnson v. Hunter, 10 Cir., 144 F.2d 565, 567. In the latter case, it was sought to show that a colored juror was intimidated by eleven white jurors. The court said: “It is evident that proof of the fact, if true, would be impossible by anyone other than the negro juror whom the petitioner seeks to have called as a witness in his behalf, and unless this negro juror is a competent witness to testify in support of the allegations contained in the sixth paragraph of the petition for the writ, no hearing was required. The general rule is that evidence of jurors is not admissible to impeach their verdict.”
In Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 53, 36 L.Ed. 917, the court cited with approval the language of Justice Gray while a member of the Supreme Judicial Court of Massachusetts in Woodward v. Leavitt, 107 Mass. 453 as follows: “ ‘on a motion for a new trial on the ground of bias on the part of one of the jurors, the evidence of jurors, as to the motives and influences which affected their deliberations, is inadmissible either to impeach or to support the verdict. But a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind. So a juryman may testify in denial or explanation of acts or declarations outside of the jury room, where evidence of such acts has been given as ground for a new trial.’ ” And in Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 808, 56 L.Ed. 1114, the court concluded: “We think the rule expressed in Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, and Gottleib Bros. v. Jasper & Co., 27 Kan. 770, should apply, that the testimony of jurors should not be received to show matters which essentially inhere in the verdict itself and necessarily depend upon the testimony of the jurors, and can receive no corroboration.” In Young v. United States, 10 Cir., 163 F.2d 187, 188, the court said: “It is stated in one of the affidavits that while the jury were deliberating upon their verdict, one member stated to another member that the defendants Deer and Polk were closely associated; that the defendant Polk was a bad man; that he .had shot a man and thrown his body in a river; and that for these reasons the two defendants should be convicted and imprisoned. It is stated in the other affidavit that the same member of the jury seemed to be prejudiced against the defendant Polk and said among other things that all of the defendants were in a syndicate and were guilty. * * * While recognizing that the rule may not be without exceptions, and though an exception was recognized in Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917, based upon considerations of sound public policy, it has been held over a long period of time that ordinarily jurors in the United States Courts will not be heard to give testimony, either oral or by affidavit, for the purpose of impeaching the verdict returned where the facts sought to be shown are such that they essentially inhere in the verdict.”
It is apparent from these authorities that where it is sought to impeach because of matters occurring within the jury room and not because of extraneous communications with the jury, affidavits of the jurors are incompetent to impeach the verdict. Thus in Wheaton v. United States, 8 Cir., 133 F.2d 522, 526, the court said: “In so far as the affidavit of any juror attempted to impeach the verdict of the jury, or related to a matter resting in his personal consciousness or to the motives or influences which affected the jury’s deliberations, the affidavit was incompetent, and it was only competent to indicate the existence of extraneous interference with the jury’s deliberations. * * * The affidavits of the jurors, submitted by the appellant, were not proof of the facts recited by the affiants. Glasser v. United States, 315 U.S. 60, 87, 62 S.Ct. 457, 86 L.Ed. 6S9.”
Here the court announced that, after the affidavit had found its way into the newspapers, other jurors voluntarily expressed a desire to see the judge and to deny its averments. This, too, was immaterial, of course, but it illustrates the danger of permitting a juror to impeach the verdict because of anything inherent in it. It is not claimed in the present case that any third party attempted to interfere with the jury, or that any extraneous matter entered into its deliberation, but merely that, in the course of the conversations in the jury room, one juror said that she had heard or read about one of the defendants. Obviously that should have been disclosed by her on her voir dire when she was examined as to her qualifications as a juror and, just as obviously, if she had forgotten the incident until after she became a juror and she then recalled it, it was her duty to inform the court of her remembrance. Perhaps it is too much to expect a layman to realize his duty in this respect even though thoroughly advised by the court. Under the authorities cited, we conclude that the affidavit was incompetent and was rightfully excluded.
The judgments are affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
UNITED STATES v. BESS.
No. 395.
Argued April 7, 1958.
Decided June 9, 1958.
John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice and A. F. Prescott.
Morris J. Oppenheim argued the cause and filed a brief for respondent.
Together with No. 410, Bess v. United States, also on certiorari to the same Court.
Mr. Justice Brennan
delivered the opinion of the Court.
The United States filed this civil action in the District Court for the District of New Jersey to recover, in equity, from the beneficiary of life insurance policies the amount of federal income taxes owed by the insured at the time of his death.
Herman Bess died a resident of Monmouth County, New Jersey, on June 29, 1950. His wife, Molly G. Bess, was the beneficiary of eight insurance policies on his life from which she received $63,576.95 in proceeds. The cash surrender value of these policies at his death was $3,362.53. Seven of the policies were issued to Mr. Bess from 1934 to 1937 and the eighth, a group policy, in 1950. He retained the right until death to change the beneficiary, to draw down or borrow against the cash surrender value and to assign the policies, except that under the group insurance policy he retained only the right to change the beneficiary. Mr. Bess paid all premiums and it is conceded that none was paid in fraud of his creditors.
The federal income taxes were owing for the several years from 1945 to 1949. The assets of Mr. Bess’ estate were applied to payment of the amounts owing for 1948 and 1949, but a total of $8,874.57 remained owing for 1945, 1946 and 1947 when the estate was adjudged insolvent by the Monmouth County Court in 1952. The amounts owing were $4,159.31 for 1945, $3,789.32 for 1946, and $925.94 for 1947.
The District Court held Mrs. Bess liable for the total taxes owing of $8,874.57. 134 F. Supp. 467. The Court of Appeals for the Third Circuit reduced the judgment to the amount of the total cash surrender value of the policies of $3,362.53. 243 F. 2d 675. We granted cer-tiorari on the Government’s petition and Mrs. Bess’ cross-petition, 355 U. S. 861, and set the case for argument with Commissioner v. Stern, ante, p. 39. The Government seeks in No. 395 the reinstatement of the District Court’s judgment in the full amount of the taxes owing. Mrs. Bess seeks in No. 410 the reversal of the Court of Appeals judgment in the amount of the cash surrender value.
I.
As in Commissioner v. Stern, the Government argues that Mrs. Bess, as beneficiary of her husband’s life-insurance policies, is liable for his unpaid federal income taxes. We held today in the Stern case that recovery of unpaid federal income taxes from a beneficiary of insurance, in the absence of a lien, can be sustained only to the extent that state law imposes such liability in favor of other creditors of the insured. Under New Jersey law the beneficiary of a policy of life insurance is entitled to its proceeds against all creditors except to the extent of the amount of any premiums for the insurance paid in fraud of creditors. N. J. Stat. Ann., 1939, § 17:34-29; Slurszberg v. Prudential Ins. Co., 15 N. J. Misc. 423, 192 A. 451; Middlesex County Welfare Board v. Motolinsky, 134 N. J. Eq. 323, 35 A. 2d 463. If in the instant case no lien were involved, our holding in Commissioner v. Stern would require an affirmance in No. 395 and a reversal in No. 410, since it is conceded that Mr. Bess did not pay any premiums in fraud of his creditors.
II.
However, the Government contends that it is also seeking in this action to enforce, as to the 1945 and 1946 deficiencies, liens perfected under § 3670 of the Internal Revenue Code of 1939 against the property of Mr. Bess in his lifetime. Section 3670 provides that “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount . . . shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” 53 Stat. 448. On July 30, 1948, and again on August 9, 1948, before Mr. Bess died, notice and demand were made upon him for payment of the deficiencies formally consented to by him as owing for 1945 and 1946. He made periodic payments on the amount owing for 1945, reducing that amount from $11,514 to $4,713.59 before his death. This balance was further reduced to $4,159.31 by a payment of $554.28 from his estate pursuant to an order of the Monmouth County Court. However, no payment on account of the $3,789.32 owing for 1946 was made either in his lifetime or after his death.
First. As to the tax lien theory, Mrs. Bess contends that the Government did not assert this basis for recovery before the District Court and therefore should not be heard to assert that theory in this Court. But the essential facts pertinent to a decision on the merits of the tax lien theory were stipulated in the District Court. Moreover, the issue was fully briefed and argued both in the Court of Appeals and in this Court. We therefore see no basis for any inference of prejudice in the circumstances, and accordingly proceed to a determination of the question.
Second. Mrs. Bess argues that in any event no lien attached to any property of Mr. Bess since a lien does not attach under § 3670 unless and until the delinquent taxpayer “neglects or refuses to .pay the same after demand.” She urges that the facts stipulated as to the payments on account of 1945 taxes made by Mr. Bess in his lifetime prove that he did not neglect or refuse to pay taxes after demand. Since, in the view we take of this case, the liability of Mrs. Bess is limited to the cash surrender value of $3,362.53, it suffices that whatever may be the case as to the 1945 taxes the requisite neglect or refusal was plainly established as to the 1946 delinquency of $3,789.32, for it is admitted that Mr. Bess neither paid nor attempted to pay anything on account of those taxes.
Third. We must now decide whether Mr. Bess possessed in his lifetime, within the meaning of § 3670, any “property” or “rights to property” in the insurance policies to which the perfected lien for the 1946 taxes might attach. Since § 3670 creates no property rights but merely attaches consequences, federally defined, to rights created under state law, Fidelity & Deposit Co. v. New York City Housing Authority, 241 F. 2d 142, 144, we must look first to Mr. Bess’ right in the policies as defined by state law.
(a) It is not questioned that the rights of the insured are measured by the policy contract as enforced by New Jersey law. Manifestly the insured could not enjoy the possession of the proceeds in his lifetime. His right to change the beneficiary, even to designate his estate to receive the proceeds, gives him no right to receive the proceeds while he lives. Cf. Rowen v. Commissioner, 215 F. 2d 641, 644. It would be anomalous to view as “property” subject to lien proceeds never within the insured’s reach to enjoy, and which are reducible to possession by another only upon the insured’s death when his right to change the beneficiary comes to an end. We therefore do not believe that Mr. Bess had “property” or “rights to property” in the proceeds, within the meaning of § 3670, to which the federal tax lien might attach. Cannon v. Nicholas, 80 F. 2d 934; see United States v. Burgo, 175 F. 2d 196. This conclusion is in harmony with the decision in Everett v. Judson, 228 U. S. 474, that the cash surrender value of a policy on the life of a bankrupt is the extent of the property which is vested in the trustee under § 70 a of the Bankruptcy Act.
(b) The cash surrender value of the policy, however, stands on a different footing. The insured has the right under the policy contract to compel the insurer to pay him this sum upon surrender of the policy. This right may be borrowed against, assigned or pledged. Slurszberg v. Prudential Ins. Co., supra. Thus Mr. Bess “possessed just prior to his death, a chose in action in the amount stated [i. e., the cash surrender value] which he could have collected from the insurance companies in accordance with the terms of the policies.” 243 F. 2d 675, 678. It is therefore clear that Mr. Bess had “property” or “rights to property,” within the meaning of § 3670, in the cash surrender value. United States v. Hoper, 242 F. 2d 468; Knox v. Great West Life Assurance Co., 212 F. 2d 784; United States v. Royce Shoe Co., 137 F. Supp. 786; Smith v. Donnelly, 65 F. Supp. 415; United States v. Aetna Life Ins. Co., 46 F. Supp. 30.
But it is contended that under state law the insured’s property right represented by the cash surrender value is not subject to creditors’ liens, whether asserted by a private creditor, Slurszberg v. Prudential Ins. Co., supra, or by a state agency, Middlesex County Welfare Board v. Motolinsky, supra. However, once it has been determined that state law creates sufficient interests in the insured to satisfy the requirements of § 3670, state law is inoperative to prevent the attachment of liens created by federal statutes in favor of the United States. Such state laws “are not laws for the United States . . . unless they have been made such by Congress itself.” Fink v. O’Neil, 106 U. S. 272, 276; cf. Commissioner v. Tower, 327 U. S. 280. The provisions of the Internal Revenue Act creating liens upon taxpayer’s property for unpaid income taxes, unlike § 6 of the Bankruptcy Act, 30 Stat. 548, as amended, 11 U. S. C. § 24, do not specifically provide for recognition of such state laws. The fact that in § 3691 Congress provided specific exemptions from distraint is evidence that Congress did not intend to recognize further exemptions which would prevent attachment of liens under § 3670. Knox v. Great West Life Assurance Co., supra; United States v. Heffron, 158 F. 2d 657; Shambaugh v. Scofield, 132 F. 2d 345; Smith v. Donnelly, supra.
Fourth. The transfer of property subsequent to the attachment of the lien does not affect the lien, for “it is of the very nature and essence of a lien, that no matter into whose hands the property goes, it passes cum onere ....’’ Burton v. Smith, 13 Pet. 464, 483; see Michigan v. United States, 317 U. S. 338, 340. The question therefore is whether the cash surrender values with the lien attached were transferred to Mrs. Bess as beneficiary when Mr. Bess died.
It is argued that the right to receive the cash surrender value expires with the death of the insured and that thus no property of his passes to the beneficiary. The contention is that the beneficiary receives the proceeds of the policies as performance by the insurance company of a separate promise to pay upon the death of the insured. It is said to follow that “there is no logical escape from holding that the ‘surrender value’ comes to an end on the insured’s death, if we dispose of the controversy in accordance with the ordinary rules governing contracts.” United States v. Behrens, 280 F. 2d 504, 506-507. This is to say that the cash surrender value is no part of the proceeds, but represents merely the right of the insured to cancel the policy and thereupon receive back from the insurer the amount accumulated from premiums paid in the past and held to cover the risk to be incurred in the future. Therefore it is said that the property represented by the cash surrender value disappears on the insured’s death and no lien can survive in any part of the proceeds.
But the courts have long recognized that the surplus of the paid premiums accumulated to make up the cash surrender value should be treated for some purposes as though in fact a “fund” held by the insurer for the benefit of the insured. Judge Addison Brown stated in In re McKinney, 15 F. 535, 537:
“Though this excess of premiums paid is legally the sole property of the company, still in practical effect, though not in law, it is moneys of the assured deposited with the company in advance to make up the deficiency in later premiums .... So long as the policy remains in force the company has not practically any beneficial interest in it, except as its custodian, with the obligation to maintain it unimpaired and suitably invested for the benefit of the insured. This is the practical, though not the legal, relation of the company to this fund.”
This view was approved in Hiscock v. Mertens, 205 U. S. 202, 211, and Burlingham v. Crouse, 228 U. S. 459, 469. See also United States v. Behrens, supra, at 507. Thus in economic reality the insurer pays the beneficiary the insured’s “fund,” plus another amount sufficient to perform the insurer’s promise to pay the proceeds on the insured’s death. Rowen v. Commissioner, supra, at 647. Therefore we hold that, for purposes of § 3670, there was a transfer of property from the insured to Mrs. Bess, and that the lien attached to the property before his death followed the property into her hands.
Affirmed.
The Chief Justice, Mr. Justice Black and Mr. Justice Whittaker concur in the opinion of the Court insofar as it holds that the United States had a valid lien against the cash surrender value of the insurance policies involved here which was enforceable against the beneficiary, Mrs. Bess. They would also affirm the judgment of the Court of Appeals on the basis of the dissenting opinion of Mr. Justice Black in Commissioner v. Stern, ante, p. 47.
The proceeding against Mrs. Bess was not by the summary method authorized by § 311 of the Internal Revenue Code of 1939 but by the alternative method of a proceeding in equity in the District Court, Leighton v. United States, 289 U. S. 506. The courts below erred in applying § 311 in this case. As we held in Commissioner v. Stern, ante, § 311 is a purely procedural statute and has no bearing upon the liability of Mrs. Bess.
Once a federal tax lien attaches to the insured’s interest, of course, the Government, in a proper action joining the appropriate parties, can enforce the lien in the insured’s lifetime and thereby recover the cash surrender value. Knox v. Great West Life Assurance. Co., 212 F. 2d 784; Kyle v. McGuirk, 82 F. 2d 212; Smith v. Donnelly, 65 F. Supp. 415. See also Cannon v. Nicholas, 80 F. 2d 934; United States v. Royce Shoe Co., 137 F. Supp. 786. Compare United States v. Metropolitan Life Ins. Co., 130 F. 2d 149; United States v. Gilmore, 147 F. Supp. 902.
“In the level premium system of life insurance the net level premium must be higher than the monetary value of the annual risk during the early policy years, and the excess must be accumulated with interest to provide funds for payment of claims after the age is reached where the value of the annual risk exceeds the net level premium in the annual premium being paid. It is the necessary accumulation of these funds that makes possible nonforfeiture benefits. On surrender of a policy the insurer, being relieved of the obligation to provide death benefits during future years where the annual value of the risk exceeds the annual net level premium, no longer needs to retain the surrendering policyholder’s contributions to the funds previously accumulated for such purpose. Since the surrendering policyholder made a contribution to these funds during the period from date of issue to date of surrender, he is equitably entitled to a return equal to the prorata share of the funds actually accumulated from premiums paid by his group of policyholders and no longer needed to assure solvency of the company for the protection of continuing policyholders.” Krueger and Waggoner, The Life Insurance Policy Contract (1953 ed.), 194. (Footnote omitted; emphasis added.)
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_const1
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1
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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 provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Plaintiff-Appellee, v. Sterling Leroy HAINES, Defendant-Appellant.
Nos. 88-5529, 88-5530
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 2, 1988.
Lucien B. Campbell, Federal Public Defender, P. Joseph Brake, Asst. Federal Public Defender, San Antonio, Tex., for defendant-appellant.
Helen M. Eversberg, U.S. Atty., Le Roy Morgan Jahn, Michael R. Hardy, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-ap-pellee.
Before GEE, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
In this case we are faced with the claim that the statute making the sentencing guidelines applicable only to crimes committed after they went into effect is an unconstitutional ex post facto law as it applies to crimes committed before the guidelines were promulgated. This unique contention constitutes a complete miscom-prehension of the prohibition against ex post facto laws contained in Art. I § 9 of the United States Constitution. We affirm the refusal of the district court to use the sentencing guidelines in the case of this appellant whose criminal offenses were committed before the guidelines went into effect.
On January 4, 1988, appellant Sterling Haines pleaded guilty in one case to one count of mail fraud, 18 U.S.C. § 1341, and one count of equity skimming, 12 U.S.C. § 1709-2. At the same time he also pleaded guilty in another case to one count of escaping from custody, 18 U.S.C. § 751(a). All of these offenses were committed before November 1, 1987, the date upon which the United States Sentencing Guidelines became effective. United States v. Hurtado, 846 F.2d 995, 996 (5th Cir.1988).
Before sentencing, Haines moved the court to impose sentence in accordance with the sentencing guidelines. He argued that the guidelines should apply to convictions which take place after the November 1, 1987 date, although the crimes took place before that date. The district court denied the motion, and Haines was sentenced to a five-year term and two three-year terms, all consecutive. His appeal is timely.
The sentencing guidelines which went into effect on November 1, 1987, were developed by the United States Sentencing Commission under the Sentencing Reform Act of 1984, 28 U.S.C. §§ 991, 994(a). On December 7, 1987, Congress amended the 1984 enabling statute by expressly limiting the applicability of the new guidelines to criminal offenses committed after the November 1, 1987, effective date. Sentencing Act of 1987, Pub.L. No. 100-182, sec. 2(a), 101 Stat. 1266. The contention by Haines is that since he was sentenced after November 1, 1987, the guidelines should have been applied and would have governed his punishment, with the result of more lenient sentences. Since the 1987 amendment prevented the guidelines from being applicable to his cases, the amendment is an unconstitutional ex post facto law because it foreclosed more favorable guideline sentences.
A retrospective amendment of sentencing guidelines would violate the ex post facto law if the amendment “makes more onerous the punishment for crimes committed before its enactment.” Miller v. Florida, - U.S. -, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). Obviously the 1987 statute and the guidelines did not and could not have made more onerous the punishment for crimes committed before its enactment. It was the very purpose of the amending statute to confirm that there could be no ex post facto claim that the sentencing guidelines had increased the punishment for offenses committed before they went into effect. Making them totally inapplicable to any criminal offense committed before they went into effect completely obviated that ex post facto possibility.
On the other side of the coin, there is absolutely no constitutional authority for the proposition that the perpetrator of a crime can claim the benefit of a later enacted statute which lessens the culpability level of that crime after it was committed. His culpability is adjudged on the basis of the laws that existed when he committed the crime.
The tenuous line of reasoning relied upon by Haines is that the Sentencing Reform Act of 1984, under which the guidelines were to be developed, was in effect at the time he committed the crimes. Thus, he would have been entitled to be sentenced under the guidelines if it had not been for the amendment in 1987 that made the guidelines applicable only to crimes committed after they went into effect. There are two answers to this line of reasoning. The first is that while the 1984 statute set up the commission which created the guidelines, the guidelines did not exist until after Haines committed the crimes for which he was sentenced. It is fanciful indeed to claim that he was entitled to the application of guidelines which did not exist.
But even beyond that, it is clear that when Congress enacted the Sentencing Reform Act of 1984 it intended the new guidelines, when they were developed, to apply only to offenses committed on or after their effective date. See the thorough presentation in United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988). Accord, United States v. Rewald, 835 F.2d 215, 216 (9th Cir.1987). A congressional intention to make the guidelines applicable to crimes committed before they went into effect would result in ex post facto constitutional violations. Any ambiguity on this issue in the 1984 statute must be resolved by interpretation. Statutes are to be interpreted to avoid constitutional violation. “It is a cardinal principle that this Court will first ascertain whether construction of the statute is fairly possible by which the [constitutional] question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). This quotation is frequently cited in more recent cases, e.g., United States v. Security Industrial Bank, 459 U.S. 70, 78, 103 S.Ct. 407, 412, 74 L.Ed.2d 235 (1982); Califano v. Yamasaki, 442 U.S. 682, 693, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979).
This general rule of interpretation must be applied here. Thus, the later 1987 amendment made no change in the law. It merely confirmed the intent of the 1984 statute as Congress had enacted it. A contrary interpretation would lead to open and obvious violations of the ex post facto prohibition in the Constitution. Such clearly was not the intent of Congress. See generally United States v. Cooper, 685 F.Supp. 179, 180 (N.D.Ill.1988); 133 Cong. Rec. H10021 (Daily ed. Nov. 16, 1987) (statement by Representative Fish that the amendment was offered “to make it clear” that the new guidelines apply only to criminal conduct occurring after the guidelines went into effect).
We conclude that Haines was never entitled to be sentenced under the new guidelines because they were never applicable to his criminal offenses and the sentences flowing from them. His ex post facto claim is meritless.
AFFIRMED.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_counsel2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Joseph Mary EBELING and Charles G. Emerling, Appellants, v. UNITED STATES of America, Appellee.
No. 15582.
United States Court of Appeals Eighth Circuit.
Aug. 28, 1957.
Rehearing Denied Oct. 3, 1957.
Writ of Certiorari Denied Dec. 16, 1957.
See 78 S.Ct. 334.
Michael J. Ebeling, St. Louis, Mo., for appellant Joseph Mary Ebeling.
Ted A. Bollinger, Jr., St. Louis, Mo., for appellant Charles G. Emerling.
Forrest Boecker, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., on the brief), for appellee.
Before JOHNSEN, VOGEL and VAN OOSTERHOUT, Circuit Judges.
JOHNSEN, Circuit Judge.
Ebeling and Emerling, the appellants here, were jointly charged, in an indictment of 9 counts, with 8 violations of 18 U.S.C.A. § 1001 and a violation of the conspiracy statute, 18 U.S.C.A. § 371. The indictment ran against them alone. On a trial to a jury, each was convicted on all 9 counts.
Section 1001, in its here material portion, makes guilty of a criminal offense anyone who, “in any matter within the jurisdiction of any department or agency of the United States, knowingly and willfully * * * makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry * * *”.
Ebeling was manager of a business, operated under the trade name of Manchester Machine Co. Emerling was president of Production Engineering & Manufacturing Co., a manufacturing corporation. Both enterprises had their location in or near the city of St. Louis, Missouri.
Production Engineering obtained a government contract in 1951, to produce mortar conversion kits for the Department of the Army. The contract contained a price redetermination clause, which required the filing of a statement of the costs involved in kits produced. And, under 50 U.S.C.A.Appendix, § 1214, such a defense contract and any subcontract related thereto were automatically subject to a right of renegotiation on the part of the government, both against the prime contractor and against a subcontractor, for “the elimination of excessive profits”.
The exact amount of production which had occurred under the contract is not shown by the printed record, except that the bill of particulars filed by the government states that there had been paid to Production Engineering, on billings by it for kits produced, the sum of $602,-608.56 and that the Army was claiming the right to have further credited on such billings the sum of $289,979.09, from overpayments made to Production Engineering on some other contracts. What production and billing there may have been beyond this does not appear, nor is the matter, or any of the other facts referred to in this paragraph, of moment here.
In 1952, while the contract was in . force, Production Engineering purported to subcontract to Manchester Machine the doing of some machine work on a number of parts for the kit assemblies. It executed three purchase order forms in favor of Manchester Machine, ostensibly requesting performance by the latter of some code-numbered operations, on 1200 “adapters” at a price of $7776, on 1200 “housings" at a price of $9888, and on 2500 “strikers” at a price of $8050, respectively.
There is nothing to suggest that Manchester Machine ever had submitted any bid for the doing of this work or at the price set out in the purchase orders. The government’s evidence showed, and entitled the jury to find, that the whole thing constituted a spurious affair, done for the purpose of defrauding the government; that the assembly-kit parts covered by the purchase orders were never sent out by Production Engineering to Manchester Machine for the doing of such machine work; that Manchester Machine never engaged in doing the work; that Manchester Machine, however, sent invoices to Production Engineering indicating that the work had been done and making charges therefor, in the amount of $20,298.24; and that Production Engineering made payment of these invoices and incorporated the fictitious charges contained therein in the statement of costs which it submitted to the Department of the Army.
Various incidental cover-up activities were also shown to have been engaged in, at the plants of both Production Engineering and Manchester Machine. Thus, the evidence entitled the jury to find that requisitions of material, together with shipping tickets were falsely executed at the Production Engineering plant, in order to make it appear that adapters, housings and strikers had been duly sent out to Manchester Machine; that similarly shipping tickets were falsely executed at the Manchester Machine plant, to make it appear that the finished parts had been sent back to Production Engineering; and, further, that inspection tickets were falsely executed at Production Engineering, to evidence receipt and inspection of the returned finished parts.
The conspiracy count set out the names of a number of employees at Production Engineering, as having joined in the conspiracy, in that they knowingly had helped to carry on some of the cover-up activities, but they were not indicated, since they apparently had only done what they as employees had been directed to do. Ebeling had not been quite so successful in getting cooperation from the employees of Manchester Machine, in the carrying out of his end of the fraudulent scheme. There was testimony showing that he had turned the three false purchase orders issued by Production Engineering over to one of his employees and directed that bills or invoices for charges be issued against the orders, but that the employee had refused to do so, stating that he knew that no such work had been done in the plant and that he did not want to have anything to do with the matter. The employee testified that Ebeling then tried to assure him that it was all right to make out the invoices against Production Engineering; that he had a “deal” with appellant Emerling; and that the employee did not need to be afraid of anything. When the employee still refused, Ebeling went into his private office and engaged in typing out the invoices himself. He also filled out some false shipping tickets, to indicate the return to Production Engineering of the fictitious finished parts.
As to tangible acts on the part of appellant Emerling, there was evidence from which the jury could properly find that it was he who had given the instructions at Production Engineering for the issuance of the specious purchase orders in favor of Manchester Machine and he who had signed the checks for the payment of the specious invoices sent in by appellant Ebeling — with the papers being sent through the routine of the business for inclusion in Production Engineering’s statement of costs to the government. Ebeling had admitted to one of the government’s investigators that he and Emerling were personal friends of several years standing, having visited in each other’s home and having taken a number of vacation trips together. There was testimony showing that during the period involved Ebeling came to the Production Engineering plant a number of times and always met with Emerling or Emerling’s son — the latter being named, but not indicted, as a conspirator, and being used on the trial as a government witness. Such dealings and relations as necessarily underlay the situation were entitled to be found, on the circumstances shown, to have occurred entirely between appellant Ebeling and appellant Emerling directly, or with Emerling’s son, when on occasion the father happened not to be present at the plant.
Each of the 8 substantive counts under 18 U.S.C.A. § 1001 related to the making and using of one of the 8 false invoices, by which Production Engineering was billed; on the basis of which Production Engineering issued its checks to Manchester Machine; and for whose amounts a charge was included in the statement of costs filed with the Department of the Army under the requirement of the contract.
As to each invoice, the applicable indictment count in substance alleged that it constituted a false writing within the purview of 18 U.S.C.A. § 1001; that all of its statements were false, fictitious and fraudulent; that both Ebeling and Emerling so knew; that Ebeling had furnished the invoice to Emerling as a charge for purported work done under Production Engineering’s government contract; that it was intended by Ebeling and Emerling that the charge therein should be, and it was, included from the invoice as a part of the costs listed in the statement presented by Production Engineering to the Department of the Army under the price redetermination clause of the contract and the government’s renegotiation right; and that Ebeling and Emerling thus had made and used a false writing, knowing it to contain false, fictitious and fraudulent statements and entries, “in a matter within the jurisdiction of the Department of the Army, Ordnance, a Department and Agency of the United States”, and so had violated 18 U.S.C.A. § 1001.
The conspiracy count alleged in substance that Ebeling and Emerling had conspired together (in which conspiracy certain named, but unindicted, employees of Production Engineering, and other persons whose names were declared to be to the grand jury unknown, had joined) to defraud the United States, by preparing, keeping and presenting false records and accounts of the costs of Production Engineering in performing its government contract, and particularly the costs of purported subcontracts on the part of Manchester Machine, to the end that Production Engineering’s costs under the contract would be wrongfully increased.
In greater fullness, count 9 charged that Ebeling and Emerling, in conspiracy and confederation, had entered into an agreement or understanding, to cause purchase orders to be executed on Production Engineering’s forms, to falsely indicate allotments of subcontract work by Production Engineering to Manchester Machine; to cause material requisitions to be executed, to falsely indicate the furnishing of mortar-kit parts to Manchester Machine for the performing of such work; to cause shipping tickets to be executed, to falsely indicate that mortar-kit parts had been sent to Manchester Machine for purposes of such subcontract work; to cause inspection tickets to be prepared, to falsely indicate that finished parts from Manchester Machine had been returned to and checked by Production Engineering; and to cause false invoices to be prepared, making wrongful charges against Production Engineering for such purported subcontract work — which invoice charges Production Engineering was to include in its contract costs. Nineteen specific overt acts, in furtherance or accomplishment of the object of the conspiracy generally were set out, but it is not necessary to detail or discuss these here.
The principal contention urged for reversal is that, neither on the charges made nor on the facts proved as to counts 1 to 8, was it possible for appellants to be guilty of a violation of 18 U.S.C.A. § 1001, because it was not claimed or shown that the invoices themselves were presented to the Department of the Army. It is argued that a writing or document cannot be regarded as being within the jurisdiction of a department or agency of the United States, unless it has been physically presented to such department or agency for consideration, action or reliance, and that only on this basis can a crime exist under § 1001.
We do not believe that the term “jurisdiction”, as related to the making or using of a false writing or document, is employed in this technical or limitative sense in the statute involved. Other courts have had occasion to consider the question and have held that § 1001 does not require that a false statement or document must itself have been presented to a department or agency of the United States but that it contemplates as well any knowing making or using of such a statement or document in intended relationship to a matter that is within the jurisdiction of the department or agency. See e. g. United States v. Myers, D.C.Cal., 131 F.Supp. 525, 530; United States v. Giarraputo, D.C.N.Y., 140 F.Supp. 831, 834.
We agree. In more explicit terms, we are of the opinion that it constitutes a violation of § 1001, for anyone willfully to make or use a false writing or document, knowing that it contains a false, fictitious or fraudulent statement or entry, and intending that it shall bear a relation or purpose as to some matter which is within the jurisdiction of a department or agency of the United States, and with the false, fictitious or fraudulent statement or entry which it contains having a materiality on the department or agency matter. If the false writing or document constitutes a legally required record under a statute in some regulatory field, there may perhaps be an even broader liability under the section, but that aspect is not Here involved and calls for no consideration.
United States v. Mellon, 2 Cir., 96 F.2d 462, Terry v. United States, 8 Cir., 131 F.2d 40, and Lowe v. United States, 5 Cir., 141 F.2d 1005, illustrate the application of the condition of intended relationship.
In the Mellon case, the defendant had applied to a local bank for a loan insured under the provisions of the National Housing Act, 12 U.S.C.A. § 1701 et seq., and had made some willfully false and material statements in the application executed by him. He was indicted and convicted under 18 U.S.C.A. § 80, of which § 1001 is the counterpart in the 1948 code revision. He contended, among other things, that no violation of the statute could exist, because the false statements had been made only to the bank and not to a government department or agency. The court, in affirming the conviction, said that “The statements were in fact made to obtain a loan insured under the National Housing Act”, and that “The application for such a loan was itself a matter within the jurisdiction of an agency of the United States”. 96 F.2d at page 463.
In the Terry case, the court regarded the evidence in the particular situation presented as not sufficiently showing that the defendant, in making application to a local bank for a loan, was seeking to obtain one under the National Housing Act, or that the bank at the time could be said to have intended the loan to be of that nature, or that, if it did, it made known to the defendant that the dealings between them were upon that basis. Thus, the effect of the decision was that the evidence as appearing in the record . did not establish a situation of intention that the false application should have relation to a matter within the jurisdiction of a department or agency of the United States. The opinion, however, must be read, we think, as implying that, if the evidence had been sufficient to show that “the statements were in fact made to obtain a loan insured under the National Housing Act”, as in the Mellon case, supra, that conviction would not have been reversed.
In the Lowe case, the conviction of an employee was reversed, under a charge that he had violated 18 U.S.C.A. § 80 by making a false statement to his employer, a private corporation, as to the number of hours that he had worked on a particular day — the corporation being at the time engaged in building ships for the United States Maritime Commission, an agency of the United States, under a contract calling for the employer to make payment to his employees of their wages but to have reimbursement made to it therefor by the Treasury of the United States.
The court regarded the mere circumstance that the employer was entitled to reimbursement from the United States as not of itself being sufficient to require that the employee’s receipt of his wages and his statements in relation thereto be regarded as a matter that was within the jurisdiction of a department or agency of the United States. It said that the obligation for reimbursement “did not effect any change in the relationship existing between the company and * * * private employee”, and that, “Insofar as the employee was concerned, every aspect of his employment was exactly the same as it would have been had there been no contract with any government agency of any kind”. 141 F.2d at page 1006.
We read the opinion as implying that there was in that case no charge, or anything to show, that the employee knew that the work which he was doing, and the wages which he claimed, had been made the subject of an express contract provision between his employer and the government, constituting them a matter of direct charge and reimbursing obligation on the part of the United States; that the working time which he turned in thus necessarily would be a matter which was to be used against the government and as to which it accordingly had a right of audit and adjustment; and that in making the false statement with which he was charged, he had turned it in on this basis and with the intent that it was to be accepted and used in that relationship.
On the language and purpose of § 1001, we are unable to see any legal reason why an employee would not be guilty of an offense under the statute, if his work consisted in performing tasks under a defense, cost-plus contract between his employer and the government; if he had knowledge of the existence of the contract and of the fact that the work which he was doing was in performance of it; if he knew that the wages paid him were to be reimbursed as such to his employer by the government; and if he willfully engaged in turning in a false, written statement of the hours worked by him, for the purpose of receiving wages not due him, and with the accompanying intent in these circumstances that the statement was to be accepted and used as a basis for the obtaining of reimbursement by his employer from the government, under the statutory power in a department or agency thereof to examine the legitimacy and correctness of the charges involved and with the right to rely upon the employee’s statement as a component in the matter.
We can accordingly see nothing legally in the Terry and Lowe cases that helps appellants here, as they seem to believe. But beyond this, the factual situation in the present case is in any event not akin to those in the Terry and Lowe cases. Here, the matter of personal intent on the part of both Ebeling and Emerling to have the statements in the false invoices, which they had designed to have prepared, bear a relation to, by becoming a part of, the fraudulent cost statement which Emerling was to submit to the government, under the price redetermination clause of the contract and under the government’s statutory renegotiation right, is not one of probative weakness, such as in the Terry and Lowe cases.
Further, the charges made under the purported subcontracts in favor of Manchester Machine were here directly linked to the statement of costs filed on behalf of Production Engineering, by 50 U.S.C.A.Appendix, § 1214, in that under the statute the prices paid to a subcontractor were themselves made subject to examination and renegotiation as against the subcontractor himself. As matter of fact, the purchase orders which appellants engaged in using had stamped on their face, “This contract is subject to the Renegotiation Act of 1951 [50 U.S.C.A.Appendix, § 1211 et seq.] and is deemed to contain all provisions of Section 104 of that Act”. Plence, the invoices which appellants caused to be prepared, as representing charges made for subcontract work, would of themselves be, on the language of 18 U.S.C.A. § 1001, “in any matter within the jurisdiction of any department or agency of the United States”.
Each appellant has made some separate, technical arguments as to the insufficiency of the indictment and the evidence to sustain a conviction against him, both on the substantive counts and on the conspiracy count. Our reading of the record shows no merit in any of these contentions. They are of scattered-shot calibre and import only and call for no formal discussion.
The facts and circumstances shown by the record, and the inferences which reasonably could be drawn therefrom, amply entitled the jury to find that Ebeling and Emerling, in their personal friendship, had seized the opportunity, and come to an agreement or understanding, to use Production Engineering’s mortar-kit contract to allow Manchester Machine to make charges and receive payments for fictitious subcontract work, and to cast the burden of these fraudulent charges and payments upon the government; that they were to, and did, carry out their fraudulent scheme by causing Production Engineering to issue spurious purchase orders to Manchester Machine and having various cover-up incidents, such as the issuing of false shipping tickets, etc., done at the two plants; that one of the things which they intended, and which Ebeling did on behalf of both of them, was the drawing up and submitting to Production Engineering of fictitious invoices or bills from Manchester Machine, for inclusion in the statement of production costs transmitted to the Department of the Army for pricing and payment purposes; that they thus both had engaged in a conspiracy to defraud the United States; and that, in having together knowingly caused the several false invoices to be made and used, with the object of having the fictitious invoice work-charges carried into and made a part of the statement of production costs to be submitted for the government’s consideration, they both also had been guilty of the several substantive offenses charged against them, of knowingly and willfully making and using a false writing or document, knowing it to contain a false, fictitious or fraudulent statement, and intending it to have a relationship or purpose in a matter within the jurisdiction of a department or agency of the United States.
In their joint scheme and intent to have the invoices made, they both were in law chargeable with a making of the writings, which they had so caused to be drawn up. And they both also had engaged in the alternate element of offense under the statute, of using the writings. The indictment charged them with a single offense, in having both made and used the writings. The evidence entitled the jury to find them guilty of having done both of these acts. The sufficiency of the evidence to sustain either of these elements or aspects of offense under § 1001 would, however, legally leave their conviction subject to affirmance.
The contention is made that the court erred in receiving in evidence a sample of an adapter, a striker, a housing and an assembled kit, because the exhibits were not in the same condition as they would have been as raw parts, in relation to the time when the crime was alleged to have been committed. The physical objects, however, were not offered as having constituted instrumentalities in the commission of the crime, and the proof-of-same-condition rule upon which appellants rely, 2 Wharton Criminal Evidence, 11th ed., § 757, therefore has no application.
The trial court could properly receive the exhibits, to enable the jury to understand what the terms “adapter”, “striker”, “housing” and “motar conversón kit”, as used in some of the documents and testimony before it, had reference to, 3 Wigmore on Evidence, 3rd ed., § 790. And the court had the discretion further to allow the objects to be used demonstratively, by an exhibiting of them to the employees of Manchester Machine and Production Engineering, whom the government called as witnesses, in connection with their testimony that no such machining of parts, as had been charged for in the invoices, had ever been done at the Manchester Machine plant. This demonstrative use could, of course, beyond the matter of their negative identification by the witnesses, also cause the objects themselves to serve as circumstantial, corroborative evidence of the fact that the invoices constituted false writings.
We can see no force, on the record before us, in appellants’ argument that, because the exhibits consisted of finished parts, upon which all the machining work had been done, they were not competent as a basis for the witnesses to make a negative identification, or for use otherwise as circumstantial evidence, in relation to whether Manchester Machine had done some intermediate work, in that it might have been possible that the witnesses could not identify the unfinished parts in their finally completed state. But, in any event, that question was controllingly one for the discretion of the trial court, since the evidence was not within any legal rule of absolute exclusion. Much discretion as to the admitting of circumstantial evidence, especially where fraud is involved, must be allowed the trial court, “and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact”. Clune v. United States, 159 U.S. 590, 592, 593, 16 S.Ct. 125, 126, 40 L.Ed. 269; Harper v. United States, 8 Cir, 143 F.2d 795, 803.
Appellants’ contention that the government was improperly allowed to impeach the testimony of one of its own witnesses is without any merit. The same is true of the contention of appellant Emerling that it was error to allow the use against him of the testimony of the employee of Manchester Machine, who had refused to prepare the false invoices for Ebeling, that Ebeling had stated that he and Emerling had a “deal” as to the making of the invoices. Establishedly, declarations of one member of a conspiracy, or of one of the joint members of some other unlawful undertaking, are admissible against members not present, where the declarations have been made for the purpose of furthering in any way the conspiracy or undertaking. 4 Wigmore on Evidence, 3rd ed., §§ 1079 and 1077; Lutwak v. United States, 344 U.S. 604, 617-618, 73 S.Ct. 481, 489, 97 L.Ed. 593; Cwach v. United States, 8 Cir., 212 F.2d 520, 525; Lennon v. United States, 8 Cir., 20 F.2d 490, 494. Here, appellant Ebeling made the declaration in question for the purpose of inducing the Manchester Machine employee to go ahead and prepare the fraudulent invoices, as something that both he and Emerling desired to have done and that represented one of the steps to be taken in the fraudulent scheme. This was, of course, only an added element in the government’s substantial proof of Emerling’s participation, which has been set out above.
Appellants’ final contention is that the court’s instructions were erroneous, because they required the jury to return a joint verdict only, of guilt or innocence, on each of the 8 substantive counts, and thus deprived them of the benefit of the provision of Rule 31(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., that “If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed * *
The court’s charge called the jury’s attention to the fact that the substantive counts had charged that appellants jointly had done the acts involved and stated that it therefore was not sufficient as a basis for a conviction against them that one of them may have known that the invoice involved was a false writing, but that the jury had to find, before it could convict, that “the knowledge of falsity and intent as to use in a matter within the jurisdiction of the Department of the Army, Ordnance, be known and intended by both defendants”.
The court went on to emphasize, however, that there could be no conviction of both of them on the knowledge or intent simply of one of them alone, but that “you must find the defendants each knowingly and intentionally caused the invoices referred to * * * to be made, and thereafter * * * knowingly and intentionally caused the invoice to be used as an item of cost in executing the prime contract * * * with knowledge of its falsity, and knowingly and intentionally caused the invoice to be used as a sum going to make up the total sum presented to the Army * * * and that they intended and knew -it was included in the figures presented to the government’s agent * * *
This, in its effect, required the jury to find that each one of them individually was guilty of all the elements of the crime, before there was a right to convict, but on the basis of the other instruction prohibited the returning of any verdict whatever of conviction, even though one of them might have been proved to be so guilty, unless the jury found that the other also had been proved to be so guilty. In other words, while neither defendant, of course, could be convicted on the other’s guilt, each was given the advantage by the instructions of being made subject to acquittal on the other’s innocence.
The according of this improper benefit, in opportunity for acquittal, could hardly be claimed by either appellant to be a prejudicial error against him. Error favorable to an appellant does not constitute a basis for reversal in a criminal case. Stevens v. United States, 6 Cir., 206 F.2d 64, 66; Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A.
Appellants have been convicted of proper indictment charges, on a fair trial, under process which is free from prejudicial error, and with a result that the record persuades is just. There is no basis for either of them to ask for reversal.
Affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_adminrev
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
TED HICKS AND ASSOCIATES, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
No. 77-3084
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 8, 1978.
G. Michael Pharis, Baton Rouge, La., for petitioner.
Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Peter M. Bernstein, Ruah D. Lahey, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, N.L. R.B., Washington, D. C., for respondent.
Before BROWN, Chief Judge, and COLEMAN and VANCE, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
Ted Hicks & Associates, Inc. (Hicks), a building contractor, petitions to set aside an order of the National Labor Relations Board (NLRB). The crux of the controversy concerns the interpretation of a prehire memorandum agreement between Hicks and Carpenters Local 1098 (Union). We agree with the NLRB’s interpretation and enforce its order.
In 1969, the Union executed an areawide collective bargaining contract with the Baton Rouge Chapter of the Associated General Contractors of America, Inc. (AGC), a multiemployer bargaining group. In May 1974, a new two-year contract went into effect between the Union and the AGC. It was negotiated pursuant to a provision in the 1969 contract that provided:
This agreement . . . shall remain in full force and effect through March 31, 1972, the anniversary date hereof and from year to year thereafter unless either party, at least ninety (90) days prior to any anniversary date, notify the other party of its desire to modify or terminate same.
Hicks, which was not a member of the AGC, signed a memorandum agreement with the Union on October 11, 1974, stating that both parties would be bound by all provisions of the 1969 collective bargaining contract between the Union and the AGC. The memorandum, moreover, explained that Hicks would abide by “any modifications, extensions, or renewals” of that contract. From October 11, 1974 to May 21, 1976, Hicks adhered to the terms of the 1974 agreement, which was then in effect, and contributed to the Union’s welfare, education, and pension funds.
In 1976, the Union notified the AGC that it wanted to terminate the expiring 1974 contract and negotiate a new agreement. In May 1976, the Union and AGC executed another collective bargaining contract covering a subsequent two-year period. Hicks refused to comply with this agreement, and as a result, the NLRB held the company in violation of the National Labor Relations Act, § 8(a)(1), (a)(5), 29 U.S.C.A. § 158(a)(1), (a)(5).
Hicks argues that the memorandum agreement does not bind the company to all future agreements between the Union and the AGC. It contends, moreover, that the 1969 contract is irrelevant, and it is bound only by the 1974 agreement in effect at the time the memorandum was signed. The NLRB argues that the 1969 contract, which Hicks specifically agreed to follow, was the base contract, and the 1974 and 1976 agreements were only modifications. See NLRB v. R. J. Smith Construction Co., Inc., 1976, 178 U.S.App.D.C. 109, 545 F.2d 187.
The Board’s interpretation of a collective bargaining agreement will stand if it is supported by the record and has a reasonable basis in law. Newspaper Production Co. v. NLRB, 5 Cir., 1974, 503 F.2d 821, 830. We believe that the NLRB’s interpretation in this case meets this standard. Cf. NLRB v. Beckham, Inc., 5 Cir., 1977, 564 F.2d 190 (substantial evidence supported NLRB’s finding that employer was bound by multiemployer bargaining agreement). Hicks offers no explanation, indeed it never attempts an explanation, why it would sign a memorandum agreement in October 1974, stating that it adhered to a 1969 contract, if the 1969 contract had no bearing on the 1974 agreement. Examination, furthermore, of the three Union-AGC contracts — 1969, 1974, and 1976 — reveals that they are nearly identical, except for changes in certain economic terms. It was reasonable, therefore, for the NLRB to conclude that the 1969 agreement was the base contract, and the 1974 and the 1976 agreements were modifications of that base. Thus, the Union’s notice to the AGC in 1974 merely signaled an end to the terms in the 1974 contract and not an end to the Union’s relation with Hicks.
In the alternative, Hicks contends that the 1974 contract is still in effect because it received no notice that the Union wanted to renegotiate this contract. Although Hicks did not receive notice, the Union complied with the requirements of the 1974 contract in notifying the AGC. More importantly, the memorandum agreement does not stipulate that the Union must notify Hicks if it seeks to alter the 1969 contract. Cf. NLRB v. R. J. Smith Construction Co., supra, 545 F.2d at 192 (employer did not comply with termination provisions of prehire memorandum agreements). The memorandum in this case requires only that the Union and Hicks adhere to modifications of the 1969 agreement, which is what the Union did in notifying the AGC.
ENFORCED.
. The full text of the October 11, 1974 memorandum agreement is as follows:
This Agreement is made by and among the undersigned, hereinafter called “EMPLOYER”, “UNION”, or “TRUST(S)”, as the case may be
1. EMPLOYER and UNION agree to comply with, abide by, and be bound by all of the provisions of the collective-bargaining agreement heretofore entered into between the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION 1098 and the BATON ROUGE CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., dated March 28, 1969, and any modifications, extensions, or renewals thereof with the same force and effect as though the said collective bargaining agreement was set forth here in full.
2. EMPLOYER agrees to become a party to and be bound by all the terms and provisions of the agreements establishing:
a. CARPENTERS LOCAL NO. 1098 WELFARE FUND, being that Agreement and Declaration of Trust dated August 1, 1969,
b. CARPENTERS LOCAL 1098 PENSION TRUST, being that Agreement and Declaration of Trust dated March 31, 1970,
c. LOCAL 1098 EDUCATIONAL AND TRAINING PROGRAM TRUST, being that Agreement and Declaration of Trust dated April 30, 1970, with the same force and effect as though the agreements were set forth here in full. Without in anywise limiting the generality of the foregoing, EMPLOYER does irrevocably designate and appoint the employers mentioned in the various Trust Agreements as its attorneys in fact for the selection, removal, and substitution of Trustees as provided in said agreement(s) and does hereby agree to make payments covering all of his employees as required by the collective bargaining agreement and the agreements establishing said trusts and does hereby ratify, approve and consent to all matters heretofore done in connection with the creation and administration of such trusts.
3. TRUST(S) agree(s) that EMPLOYER is granted the right to participate in said agreement(s), subject to all the terms and conditions thereof, with the same effect as though he were originally a party thereto.
. Although the memorandum agreement contains no expiration date, the Board’s decision explains how Hicks or the Union could end the agreement:
Inasmuch as the memorandum agreement did not contain an expiration date or express provisions regarding its termination, it is necessary to determine how an end to that agreement could be achieved by the parties. We find that the memorandum agreement by its terms incorporates the provisions of the 1969 agreement, and successor agreements modifying it, including the 1974 agreement which then was effective. Hence, we further find that Respondent was obligated to give notice to the Union at least 90 days prior to the desired date for termination of the memorandum agreement, in accordance with the provisions of the incorporated 1974 contract. By the same token, had the Union desired to terminate the memorandum agreement with Respondent and negotiate a separate 1976 contract, it would have been obligated to give at least 90 days’ notice to Respondent of the proposed termination date. Note that in so finding we reject any construction of our holding that such notice of termination could be by termination of the AGC-Union bargaining agreements. 232 NLRB No. 113 at 7 n.5 (Sept. 30, 1977), R. at 83.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_appel2_2_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
HOWARD et al. v. WEISSMANN et al.
Circuit Court of Appeals, Seventh Circuit.
January 26, 1929.
Rehearing Denied April 18, 1929.
No. 4019.
Robt. N. Golding, of Chicago, Ill., for appellants.
Wm. H. Thompson, of Indianapolis, Ind., for appellees. >
Before ALSCHULER and ANDERSON, Circuit Judges, and GEIGER, District Judge.
GEIGER, District Judge.
This is an appeal from a decree awarding an injunction against1 the appellant typographical union and its officers restraining them from (1) enforcing certain amendments to the constitution which, if effective at all, abolish “Trade District Unions” (to be later described); (2) enforcing demands made upon a “Trade District Union” for the payment of fees and expenses incurred by the appellant typographical union in this lawsuit; (3) proceeding with attempts to further amend the constitution of the appellant union in particulars to be noted.
It may be said, preliminarily, that the first of the foregoing is of dominant importance in the suit; that its consideration necessitates some extended reference to the facts appearing in the record, to ascertain whether the decree has a basis — in point of fact — requisite to enable the trial court to apply, favorably to plaintiffs’ claim, principles which deal with rights asserted to arise out of membership in voluntary organizations such as are before the court. Eurther, that, broadly spealdng — the applicable principles are really not seriously controverted by the parties-—the question is: Do the facts disclose a case for equitable intervention?
The bill was originally filed by MeNichols, Weissmann, Carr, and others against the present appellants, the International Typographical Union and Charles P. Howard individually, and as president of said union, with whom were joined defendants Brown, Hew-son, Smith, and Hays, each in his individual capacity and, representatively, as an official of said union. The bill, alleging jurisdictional and also “class suit” facts, the official and membership relationship of the individual parties respectively to the defendant typographical union, characterized the latter as “an international organization of men and ■women engaged in the business of printing, and is composed of men and women who are engaged in two branches of the printing industry, to wit, printers and mailers”; and further, in substance, that it was organized more than 30 years ago, its membership being composed of printers and workers in “allied trades”; that all “allied” craftsmen have been eliminated from the union, except “mailers,” the membership now consisting of approximately 70,000 “printers,” and 3,000 “mailers.”
The bill averred the good standing of plaintiffs as “mailer” members of the union, their long-continued contribution of dues, assessments, and the like, the union’s accumulation of a large fund and property, the interest therein of plaintiffs and other members similarly situated; the defendant Howard and printer members had determined to “eliminate” the mailer members from the union and to deprive them of their beneficial interest in the funds thus accumulated and from the enjoyment of other benefits incident to memb ership. This ob j eet or determination, so it was in substance averred, was to be accomplished through proposed amendments to the constitution of the union about to be submitted to a referendum vote of the membership. Such proposed amendments were set forth; and their validity was challenged because discriminatory, and their effectiveness to impair rights in accumulated property. In addition thereto, the bill specifically challenged the procedure adopted by the union officials, in that there was a failure and refusal to permit an “Executive Council” to act upon the proposition of submission of said amendments to a referendum vote — contrary to the fundamental law of the union.
Upon a hearing before the District Court, this last-noted challenge was upheld'and a restraining decree then entered was reviewed and upheld by this court on September 24, 1927. McNichols et al. v. International Typographical Union, 21 F.(2d) 497. The reported decision suffices to show the narrow issue determined. The remission of the cause upon the affirmed decree obviously left questions respecting the effectiveness of proposed amendments, if and when adopted, undetermined either in trial or appellate court. On October 22, 1927, plaintiffs filed in the District Court a supplemental bill, which, reiterating the purpose and determination of the then defendants to eliminate complainants from the union and to deprive them of benefits in said organization, averred the taking of further steps toward its accomplishment since the original hearing in the District Court and during the pendency of the cause on appeal. Such steps are recited at length in the supplemental bill. Upon joinder of issue the case was tried, and the court awarded to complainants the decree now here for review. While, as has been observed, the dominant phase of the present decree deals with the restraint of enforcement of amendments to the constitution of the union, there is now no question respecting the regularity of procedure.
It is believed that the case may be developed upon its facts by reference to the constitution of the appellant typographical union, in its particular provisions respecting the formation, and the powers of the other organizations now in existence and in relationship to each other and to the appellant typographical union; and in which, as well as in appellant union, the plaintiffs in this suit — appellees here — have membership; and out of which have arisen and now exist the rights which they assert cannot be withdrawn, destroyed, or substantially disparaged or impaired by “dissolution” or “abolition” of the organizations which have a relationship; also, so it is claimed, in which membership is thus conditioned.
Assuming, as we may, that in the “printing” business employés may broadly be regarded as a craft, yet for many years here, as in most industries, classification of “allied” crafts within the industry has been recognized and acted upon; and while the appellant typographical union has asserted its jurisdiction to “include all branches of the printing and kindred trades other than those over which jurisdiction has been conceded by agreement,” its own present membership comprises “printers” and “mailers” as two of a considerable number of “allied crafts” of the industry. For present purposes, it suffices to note that the proofs deal with three organizations: (1) The appellant, International Typographical Union of America; (2) Mailers’ Trade District Union; and (3) local unions consisting of printers, or mailers, or, in some instances, both.
Since January 1,1902, the constitution of the appellant typographical union has contained this article:
“XIII.
“Section 1. Any of the allied trades under the jurisdiction of this organization may form a Trade District Union.
“Section 2. Such .Trade District Union shall have the following powers, privileges and rights, and as may be more specifically set forth in the By-Laws;
“(a) To charter, establish and form unions of its craft. Charters to be procured from the International Typographical Union.
“(b) To issue and control traveling cards to members working at its craft.
“(c) To make all laws for the sole government of its craft.
“(d) To decide all matters in dispute solely affecting members of its union.
“(e) To elect officers of the Trade District Union, the President of which shall be a Vice-President of the International Typographical Union.
“(£) To collect and forward to the Secretary-Treasurer of the International Typographical Union all per capita tax due from subordinate unions of its craft.
“Section 3. Such powers, privileges and rights shall not work to repeal or affect the laws of the International Typographical Union regarding revenue, per capita tax, benefits, strikes and lockouts, the six-day law, and allied trades council laws.”
What the precise situation was prior to the adoption of this article, i. e., with reference to “district” unions analogous to trade district unions, their powers, conditions of membership, or relationship to the appellant union, is not disclosed in the record. The “Trade District Union” whose dissolution is now sought by appellant, as will be noted, came into existence after the adoption of the foregoing article. But, a conception of the status of these different organizations, of membership therein respectively, of their spheres of activity in the “craft,” of the dignity of their relationship to each other, regardless of origin (whether by delegation or grant or by reservation), is disclosed by the witnesses at the trial; and it pertinently bears upon the fundamental question.
The witness John W. White testified:
“I live in Indianapolis, and am forty-two years old. I am now, and have been for the last twenty-eight years, which includes the apprenticeship period, a newspaper mailer. I am now, and have been for the last twenty years, continuously employed in the mailing department of the Indianapolis Star. I am now and for twenty-four years have been a member of the Mailers’ Trade District Union, and am now its Vice-President. I am also and have been for twenty-four years a member of the International Typographical Union. The Mailers’ Trade District Union has been organized twenty-five years, and when I came into membership I came into both of them at the samé time. My membership in the Mailers’ Trade District Union automatically made me a member of the International Typographical Union. I carry two membership cards, one in the International Typographical Union and one in the Mailers’ Trade District Union. I have a membership in the International Typographical Union and a distinct membership in the Mailers’ Trade District Union. The number of my local Mailers’ Union is No. 10, which was formed in August, 1902. I became a member in 1903. Article XIII of the constitution of the International Typographical Union has been the same from 1902 to 1926, inclusive.
“The Mailers’ Trade District Union is an organization of, for and by mailers. They have no connection, nothing to do with anything, but the mailing business. We have an organization perfect within itself of an executive council, composed of the president, vice-president, secretary-treasurer, and we hold our conventions and adopt our laws. The Mailers’ Trade District Union at the present time is composed of approximately fifty-four Mailers’ Unions. Each local union has its officers, but there is only one Trade District Union. They hold their conventions and make their laws, which apply only to mailers and only govern the mailing trade, and they are the only provisions now in force or in view, and there is nothing else that covers the mailing business. The definition of the preamble of the Mailers’ Trade District Union constitution is accepted by both employers and mailers as the work defined in the mailing trade. There is absolutely no other-law or book of the Mailers’ Trade District Union that covers that.
“The Mailers’ Trade District Union has an income of $3,750 every month, or $45,000 every year. This is collected by the mailers, spent by the mailers and for the mailers only. It does not go into the Typographical Union treasury. This money is spent for mailers alone in helping to organize unions, in helping them with scales, in helping them in any-kind of trouble they may be in. Each individual mailer pays into the Mailers’ Trade District Union $1.25 per month. Each individual also pays into the Typographical Union a capita tax of 70 cents a month, and the old age and mortuary funds of one per cent, of their total earnings. These amounts are paid into the International Typographical Union, and are separate and distinct from what is paid into the Mailers’ Trade District Union treasury. We pay that to our local union, which pays it in. It is essential that we pay that in order to belong to the Mailers’ Union. During the time the Mailers’ Trade District Union has been in existence about $300,000 has been raised from mailers alone to spend for the betterment of the mailers’ working-conditions, and that was used, among other things, for the organization of local unions. The International Typographical Union provides a strike benefit but it is not enough for men to live on, and we, in matters when it is necessary, supplement those strike benefits with money out of the treasury of the Mailers’ Trade District Union.
“Mailers pay to the International Typographical Union the same percentage of dues as is paid by the printer members of the In-ternational Typographical Union. Printers pay no dues into the Mailers’ Union. This has been true from 1902 until the present time. The mailers have a fund of their own, which at this time is approximately $12,000. We have a national convention each year which has been held about three days before the International Typographical Union convention. The International Typographical Union divide their assets into the Home, and other assets, and I believe they have approximately five million dollars in the general treasury and the several benefit features, and three million dollars in the Home corporation at Colorado Springs, making total assets of around eight million dollars. The Home is a home for members of the International Typographical Union after they are disabled because of age or sickness. There are mortuary and pension fluids. During all the years of membership of the mailers in the International Typographical Union they have paid into each of the funds as long as they have been created. They have paid the same amount that the printers pay. I, personally, have paid per capita tax into the International Typographical Union for twenty-four years, and have paid into the other funds every year since they have been established. There have twice been extra ten per cent, assessments on mailer and printer members of the International Union, that is, ten per cent, of the wages. One occasion was the eight hour strike in 1906. The assessment was gradually reduced and finally eut off. I remember that the mailers paid in over $75,000 and didn’t draw out a cent. About 1921, during the forty-four hour strike, there was a ten per cent, assessment which was carried on for a year or two and gradually diminished until it was finally wiped out. Into that fund the mailers left a balance over what they drew out of something around $400,000. We have had actuaries work on the amount the mailers have paid into the International Typographical Union, and to the best of our knowledge the amount we paid in, over what we have drawn out in benefits and everything, approximates one million dollars.”
The record contains the constitutions, the by-laws, or general laws both of the appellant typographical union and the Mailers’ Trade District Union; and discloses the latter’s relationship to local unions of mailer craftsmen. It shows the inter-relationship of these three, respectively, the degree to which any one may be subordinate, independent, or autonomous. The importance of these laws and regulations is conceived to reside in their effect to give to the several organizations and to concurrent membership therein, by persons circumstanced as are the appellees, a status or condition. And, as will be noted, if such status is intended and has been recognized as such, then none of the parties to this action should be heard to assert that attendant rights in no event may be found within the realm of judicial protection. Now a careful reading of these organic laws lends strong support to the claims made by the witness White in his efforts to picture the status and the relationship of these unions and their concurring membership to each other; and appellant Howard, the president of appellant union, in .the convention which was considering amendments to the constitution, addressed himself pertinently to the particular matter of the status or relationship of the appellant typographical union and the Mailers’ Trade District Union and their respective members. He said:
“The only affiliation the mailers have is on the basis of the Trade District Union. No individual member of the Mailers’ Union other than as they apply to voting and beneficiary features is affiliated with the International Typographical Union. They collect dues from our members not as subordinate unions, but as Trade District Unions. They have their own president, their own Executive Council, and appeals go to the Executive Council of the Mailers’ Trade District Union and do not come to the Executive Council of the International Typographical Union.”
•Again:
“The constitutional provision is plain that neither local mailers’ unions nor individual members of mailers’ unions have the right of appeal to the Executive Council upon any question. For this reason it must be assumed they were representatives of the Mailers’ Trade District Union. Subordinate unions of mailers have no standing except as a part of the Mailers’ Trade District Union. Outside of their right to' vote for our officers and send delegates to our conventions, they have no connection with the International Union as local unions. Disputes are decided by their own Executive Council or by conventions of the Mailers’ Trade District Union and are not appealable to this convention because of the operation of the section of the constitution I have quoted to you. I say again if there were any doubt about a controversy of this kind being appealable, certainly under that provision of the constitution, nobody can hold that controversies involving members of a mailers’ union are appealable to the Executive Council of the International Typographical Union.”
The complaint is directed specifically to the action of the appellant union in amending its constitution by striking out all of article XIII heretofore quoted, and portions of other articles, to effectuate the purpose — expressly declared in a resolution of submission to a vote — viz., “to dissolve (such) Trade District Unions and to prevent future organization or functioning of Trade District Unions by striking ont such provisions of the Constitution as authorize the organization of .Trade District Unions.” Respecting the effectiveness of the amendments to accomplish the result there can be no doubt. True, as suggested by appellants, a mailers’ trade district union might be organized and exist, but not within the contemplation of the hitherto relationship to the appellant union, nor, as it seems to us, in any sense which involves exercise of powers heretofore possessed by “mailers” who are identical members of the appellant union. It is hardly conceivable that “mailer” members of the appellant union, subject to its future absolute jurisdiction (if ■ it should assume to exercise it), e. g., to form unions of the “mailer” craft, “to make all laws for the sole government” of such “craft,” to decide all matters in dispute solely affecting members of the union — these are the powers which under Section 13 are possessed by the Mailers’ Trade District Union — could at the same time be subject to the exercise of these same powers by another union in no relationship to the appellant union. And the circumstance, if it is to be noted, that the power of the Mailers’ Trade District Union to “charter, establish and form unions of its craft” is coupled with the issuance or procurement of “charters” by or from the appellant typographical union, is of no relevancy in determining the quality or substantive character of powers which trade district unions thus possess under the article in question; nor does it support the right of the appellant union to destroy or disparage the status of the mailer members who accept the grant — really, a grant of substantial autonomy.
The amendments now under consideration were inaugurated before a convention of the appellant union by resolutions which are referred to in this case as “proposition 120”; and appellees — so appellants quote from a brief filed — have stated the issue thus:
“We make no claim that proposition 120 was not adopted in accordance with the prescribed form contained in the Constitution. What we do say is that the amendment is illegal and void and that inasmuch as it affects property rights, a Court of Equity may enjoin its enforcement. We concede that Courts are without authority to interfere with the purely internal affairs of voluntary unincorporated associations not affecting property, constitutional or other vested rights.”
And appellants, apparently in acquiescence, comment:
“Thus the question is one of fact — Does proposition 120 adversely affect any vested right?”
Manifestly, it might prove fruitless or futile, in discussing this case, to take up seriatim so-called “rights” of members of any or all of these organizations with a view of determining whether singly or in the aggregate they are comprehended within the term “vested.” Probably all will agree that the right of participation or interest in a benefit or gratuity fund- — no matter how characterized — is susceptible of enforcement and protection. If the case disclosed merely an effort at regulation or legislation over such a subject-matter, which affected equally all membership and without attempting to withdraw, “dissolve,” or interdict other “rights” for a long time possessed and exercised under constitutional recognition, and having a clear relationship to such “property” benefits, it might readily he concluded that the attempted act withstood the test of reasonableness in that no substantial impairment resulted. But when, as here, it clearly appears that from earliest times what may be called a “craft autonomy” not only attended, but in a true sense conditioned membership in the trade district union, in local mailers’ unions and in the appellant union, the court, in answering the question of fact, need not ascribe to that phase of the matter less importance or less dignity than the parties ascribe to it. Plainly, the broad “jurisdiction” asserted by appellant is futile against a “craft” (such as mailers) except as assent is obtained. And when, as here shown, power characterized in some instances as “sole” by the membership of a craft is possessed (either by grant, cession, or reservation), it qualifies the asserted broad “jurisdiction.” It becomes a condition or a consideration of the relationship whether the organization be viewed as affiliated, federated, or otherwise. The recognition of long-continued independence of right to act with reference to matters which otherwise might have been vested and exercised within the power of another body is persuasive in establishing the value and importance of the right. Therefore, as has been observed, the court need not determine the value of this right and decree it to be “vested” in the sense of money or tangible property. It suffices that the parties, the appellant union on the one hand and its mailer craft members on the other, have deemed it advisable to comprehend it in a constitutional stipulation unquestionably designed to assure its possession, and exercise in and by the latter through the medium of a trade district union. The latter, in its relationship to “mailers” who may be members both of local and appellant unions, has been and is the means and condition of effectuating a substantial autonomy, which again is the basis upon which mailers have discharged obligations of membership in each of the unions. And we conceive it to he no answer to appellees’ contentions respecting the character and value of this autonomy to suggest that appellant may accord an unquestionable equivalent. As we interpret the appellant’s constitution, the declaration that its “jurisdiction shall include all branches of the printing and kindred trades,” in the very nature of things, cannot establish jurisdiction, cannot bring recognition of power by the members of the trade or any craft therein, without assent or some act of membership. Rather is this a mere statement of field of operations; and this is emphasized by the express limitation of description, viz., “other than those over which jurisdiction has been canceled (conceded) by agreement.” Plainly, the constitution of appellant union is aimed to provide not only means for acquisition of jurisdiction over “allied” crafts within the industry,-' but limitations on power if and when any jurisdiction (through assent of members) is obtained. We believe that to be the intendment and effect of article XIII, that is, it establishes a well-defined autonomy of craftsmen. When, therefore, the autonomous powers are so possessed and enjoyed, it makes little difference whether they came by grant or by reservation, because — as against appellant — they constitute the basis of assent to what in effect is a limited jurisdiction. It should not be said that there was also an assent to a larger jurisdiction or that the 25 years’ recognition of substantial autonomy on the faith of which most of the present mailers’ unions came into being was permissive only; that it was at the peril of having the limited assent to appellant union’s “jurisdiction” compulsorily enlarged.
The establishment of the Mailers’ Trade District Union under article XIII, and the possession of the powers comprehended within said article, and the formation of unions on the faith thereof, seem never to have been regarded as merely provisional, so that continued existence of the organizations formed and the enjoyment of the rights possessed thereunder might depend wholly upon majorities of another‘craft, in this ease “printers”; or that assent or nonassent of the particular craft, “mailers,” was of no moment. The appellees are in good position to claim rightfully that the conditions were in truth appurtenant to membership and not subject to be withdrawn at the will of those who did not and do not, as an allied craft, possess, or at least independently exercise, the rights and powers comprehended within that article. In other words, the autonomous possession and exercise of rights and powers during a period of 25 years, supposedly, at least, under constitutional security, by a particular class of' the membership, can hardly be characterized as a purely internal affair of a voluntary association. And when, as it appears, the enjoyment of the rights has been attended by financial contributions in each of the two organizations which have resulted in an accumulation required to be held for present and-future benefit of the contributors, the-“rights” may, without difficulty, respond to-the definitions, “vested” or “property.”
We are satisfied that the District Court was justified in giving an affirmative answer-to the question of fact which the ease presents, and thereby furnishing a basis for restraining enforcement of the amendments.
The other aspects of the decree need-brief consideration only. Upon affirmanceof the interlocutory decree, the appellant union, feeling aggrieved at appellees’ resort to-judicial process, and avowing that the controversy was within its own power of determination, formally resolved:
“That the Mailers’ Trade District Union, be and is hereby ordered to pay to the secretary-treasurer of the International Typographical Union such sum of money as is necessary to reimburse the International Typographical Union for all attorneys’ fees and: costs for which the International Typographical Union is now or may hereafter become-liable in connection with this action;” and
“That upon failure to reimburse the International Typographical Union the Mailers’ Trade District Union shall be declared delinquent as provided in section 1, article X, constitution;” and
“That the actions of the representatives-of the Mailers’ Trade District Union in appealing to the courts were unjustified and unnecessary, and the actions of Vice-Presidents-Brown, Hewson, Smith and Secretary-Treasurer Hays are hereby declared to have been, illegal, indefensible and in violation of the. constitution in attempting to interfere with, the right of subordinate unions to initiate amendments to the constitution.”
The constitutional provision (seetion 1, article X) prescribes suspension of charter for failure or refusal of a subordinate union to pay a per capita tax and “other moneys.”
Whether the appellant union has any power to suspend the Mailers’ Trade District Union for delinquency, or whether delinquency could arise out of failure to meet the particular demand here made, need not be considered in the light of pure questions of power. It suffices to deal with the demand and the express or implied threat of consequences respecting merit as judged by standards of ordinary fairness. If we assume, as the trial court was doubtless obliged to assume — because the appellant in substance so asserted —that the demand was made and the threatened consequences were to be visited upon the Mailers’ Trade District Union, as an adversary party in pending litigation, it was, relevant not only to the subject-matter of the litigation, but more particularly to conduct by one party toward another. Upon entirely elementary principles, the appellees, being the representatives of the Mailers’ Trade District Union, had the right to appeal to the court for protection against an attempt well calculated to embarrass them as a party in pending litigation. At the time of the demand the result of the suit had vindicated its commencement by the appellees, and such result serves as a legal response to the attitude of appellant and its officers respecting resort to judicial power; and it serves not only as an adequate basis for declining to meet the demand, but for the additional restraint provided in the decree.
The third aspect of the decree deals with the so-called “Detroit” proposed amendments to the appellant union’s organic law. They are drawn upon the hypothesis of the possible failure of the amendments which aim to abolish the Mailers’ Trade District Union. Counsel for the appellants assert that the question becomes moot if the decree which deals with proposition 120 is reversed, but that it “will become important if, and only if, this court should affirm that part of the final decree which enjoined the enforcement of proposition 120. In that event the appellants will desire to reinitiate the Detroit amendment and the final decree should be modified to permit their so doing.”
Under the 1926 laws of the appellant union, three, of four, executive officers were elected by votes of both printers and mailers, and the fourth by votes of the mailers only. Local mailers’ unions were entitled to delegates to the convention of the appellant union, their number varying from one to four, according to the size of the union.
The proposed amendments limited the right to vote for the three of the executive officers above noted, to printers only, the mailers retaining their exclusive right to vote for the fourth. The local mailers unions are deprived of the right to delegates to the convention of the appellant union, but instead, the Mailers’ Trade District Union was given the right to send four delegates. This gave the latter organization a status as a subordinate local union.
We assume that by comprehending these proposed amendments within the scope of the decree, the trial court considered them in the light of the evidence as it might bear upon their validity, regardless of the conclusion which the court might reach upon the other aspeet of the ease. That involved a consideration of entirely analogous matters to determine an analogous question or issue. On each aspect the relationship and the status of the different organizations bore pertinently upon the nature of the amendments in their effect upon rights “vested” or “property.” We feel that the evidence amply sustains the contention that in view of the relationship of these different organizations and their members, the right to vote should in no event be held to be unsubstantial and not appertaining to individual membership in local unions; and upon this view the proposed amendments are plainly unreasonable and discriminatory.
The decree of the District Court is affirmed.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
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sc_lcdisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
HENSLEY et al. v. ECKERHART et al.
No. 81-1244.
Argued November 3, 1982
Decided May 16, 1983
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Rehnquist, and O’Connor, JJ., joined. Burger, C. J., filed a concurring opinion, 'post, p. 440. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, Black-mun, and Stevens, JJ., joined, post, p. 441.
Michael L. Boicourt, Assistant Attorney General of Missouri, argued the cause for petitioners. With him on the brief was John Ashcroft, Attorney General.
Stanley J. Eichner argued the cause and filed a brief for respondents.
Robert E. Williams, Douglas S. McDowell, and Lorence L. Kessler filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Steven L. Winter, Norman J. Chachkin, and E. Richard Larson filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae urging affirmance.
Briefs of amici curiae were filed for the State of Pennsylvania et al. by LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Andrew S. Gordon and Allen C. Warshaw, Deputy Attorneys General, Charles A. Graddick, Attorney General of Alabama, Wilson L. Condon, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Solicitor General, John Steven Clark, Attorney General of Arkansas, George Deukmejian, Attorney General of California, J.D. MacFarlane, Attorney General of Colorado, Richard S. Gebelein, Attorney General of Delaware, Jim Smith, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Tany S. Hong, Attorney General of Hawaii, David H. Leroy, Attorney General of Idaho, Tyrone C. Fahner, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Steven L. Beshear, Attorney General of Kentucky, James E. Tierney, Attorney General of Maine, Stephen H. Sachs, Attorney General of Maryland, Francis X. Bellotti, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Warren R. Spannaus, Attorney General of Minnesota, William A. Attain, Attorney General of Mississippi, Paul L. Douglas, Attorney General of Nebraska, Richard H. Bryan, Attorney General of Nevada, Gregory H. Smith, Attorney General of New Hampshire, Irwin I. Kim-melman, Attorney General of New Jersey, JeffBingaman, Attorney General of New Mexico, Rufus L. Edmisten, Attorney General of North Carolina, Robert 0. Wefald, Attorney General of North Dakota, William J. Brown, Attorney General of Ohio, Jan Eric Cartwright, Attorney General of Oklahoma, Hector Reichard, Attorney General of Puerto Rico, Daniel R. McLeod, Attorney General of South Carolina, Mark D. Meierhenry, Attorney General of South Dakota, William M. Leech, Jr., Attorney General of Tennessee, Mark White, Attorney General of Texas, David L. Wil kinson, Attorney General of Utah, John J. Easton, Attorney General of Vermont, Gerald L. Baliles, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, Chauncey H. Browning, Attorney General of West Virginia, Bronson C. LaFollette, Attorney General of Wisconsin, and Steven F. Freudenthal, Attorney General of Wyoming; and for the American Bar Association by David R. Brink and M. D. Taracido.
Justice Powell
delivered the opinion of the Court.
Title 42 U. S. C. § 1988 provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The issue in this case is whether a partially prevailing plaintiff may recover an attorney’s fee for legal services on unsuccessful claims.
I — I
A
Respondents brought this lawsuit on behalf of all persons involuntarily confined at the Forensic Unit of the Fulton State Hospital in Fulton, Mo. The Forensic Unit consists of two residential buildings for housing patients who are dangerous to themselves or others. Maximum-security patients are housed in the Marion 0. Biggs Building for the Criminally Insane. The rest of the patients reside in the less restrictive Rehabilitation Unit.
In 1972 respondents filed a three-count complaint in the District Court for the Western District of Missouri against petitioners, who are officials at the Forensic Unit and members of the Missouri Mental Health Commission. Count I challenged the constitutionality of treatment and conditions at the Forensic Unit. Count II challenged the placement of patients in the Biggs Building without procedural due process. Count III sought compensation for patients who performed institution-maintaining labor.
Count II was resolved by a consent decree in December 1973. Count III largely was mooted in August 1974 when petitioners began compensating patients for labor pursuant to the Fair Labor Standards Act, 29 U. S. C. §201 et seq. In April 1975 respondents voluntarily dismissed the lawsuit and filed a new two-count complaint. Count I again related to the constitutionality of treatment and conditions at the Forensic Unit. Count II sought damages, based on the Thirteenth Amendment, for the value of past patient labor. In July 1976 respondents voluntarily dismissed this back-pay count. Finally, in August 1977 respondents filed an amended one-count complaint specifying the conditions that allegedly violated their constitutional right to treatment.
In August 1979, following a three-week trial, the District Court held that an involuntarily committed patient has a constitutional right to minimally adequate treatment. 475 F. Supp. 908, 915 (1979). The court then found constitutional violations in five of six general areas: physical environment; individual treatment plans; least restrictive environment; visitation, telephone, and mail privileges; and seclusion and restraint. With respect to staffing, the sixth general area, the District Court found that the Forensic Unit’s staffing levels, which had increased during the litigation, were minimally adequate. Id., at 919-920. Petitioners did not appeal the District Court’s decision on the merits.
B
In February 1980 respondents filed a request for attorney’s fees for the period from January 1975 through the end of the litigation. Their four attorneys claimed 2,985 hours worked and sought payment at rates varying from $40 to $65 per hour. This amounted to approximately $150,000. Respondents also requested that the fee be enhanced by 30 to 50 percent, for a total award of somewhere between $195,000 and $225,000. Petitioners opposed the request on numerous grounds, including inclusion of hours spent in pursuit of unsuccessful claims.
The District Court first determined that respondents were prevailing parties under 42 U. S. C. § 1988 even though they had not succeeded on every claim. It then refused to eliminate from the award hours spent on unsuccessful claims:
“[Petitioners’] suggested method of calculating fees is based strictly on a mathematical approach comparing the total number of issues in the case with those actually prevailed upon. Under this method no consideration is given for the relative importance of various issues, the interrelation of the issues, the difficulty in identifying issues, or the extent to which a party may prevail on various issues.” No. 75-CV-87-C, p. 7 (WD Mo., Jan. 23, 1981), Record 220.
Finding that respondents “have obtained relief of significant import,” id., at 231, the District Court awarded a fee of $133,332.25. This award differed from the fee request in two respects. First, the court reduced the number of hours claimed by one attorney by 30 percent to account for his inexperience and failure to keep contemporaneous records. Second, the court declined to adopt an enhancement factor to increase the award.
The Court of Appeals for the Eighth Circuit affirmed on the basis of the District Court’s memorandum opinion and order. 664 F. 2d 294 (1981). We granted certiorari, 455 U. S. 988 (1982), and now vacate and remand for further proceedings.
II
In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975), this Court reaffirmed the “American Rule” that each party in a lawsuit ordinarily shall bear its own attorney’s fees unless there is express statutory authorization to the contrary. In response Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988, authorizing the district courts to award a reasonable attorney’s fee to prevailing parties in civil rights litigation. The purpose of § 1988 is to ensure “effective access to the judicial process” for persons with civil rights grievances. H. R. Rep. No. 94-1558, p. 1 (1976). Accordingly, a prevailing plaintiff “ ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’” S. Rep. No. 94-1011, p. 4 (1976) (quoting Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (1968)).
The amount of the fee, of course, must be determined on the facts of each case. On this issue the House Report simply refers to 12 factors set forth in Johnson v. Georgia High way Express, Inc., 488 F. 2d 714 (CA5 1974). The Senate Report cites to Johnson as well and also refers to three District Court decisions that “correctly applied” the 12 factors. One of the factors in Johnson, “the amount involved and the results obtained,” indicates that the level of a plaintiff’s success is relevant to the amount of fees to be awarded. The importance of this relationship is confirmed in varying degrees by the other cases cited approvingly in the Senate Report.
In Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), aff’d, 550 F. 2d 464 (CA9 1977), rev’d on other grounds, 436 U. S. 547 (1978), the plaintiffs obtained a declaratory judgment, then moved for a preliminary injunction. After the defendants promised not to violate the judgment, the motion was denied. The District Court awarded attorney’s fees for time spent pursuing this motion because the plaintiffs “substantially advanced their clients’ interests” by obtaining “a significant concession from defendants as a result of their motion.” 64 F. R. D., at 684.
In Davis v. County of Los Angeles, 8 E. P. D. ¶ 9444 (CD Cal. 1974), the plaintiffs won an important judgment requiring the Los Angeles County Fire Department to undertake an affirmative-action program for hiring minorities. In awarding attorney’s fees the District Court stated:
“It also is not legally relevant that plaintiffs’ counsel expended a certain limited amount of time pursuing certain issues of fact and law that ultimately did not become litigated issues in the case or upon which plaintiffs ultimately did not prevail. Since plaintiffs prevailed on the merits and achieved excellent results for the represented class, plaintiffs’ counsel are entitled to an award of fees for all time reasonably expended in pursuit of the ultimate result achieved in the same manner that an attorney traditionally is compensated by a fee-paying client for all time reasonably expended on a matter.” Id., at 5049.
Similarly, the District Court in Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483, 484 (WDNC 1975), based its fee award in part on a finding that “[t]he results obtained were excellent and constituted the total accomplishment of the aims of the suit,” despite the plaintiffs’ losses on “certain minor contentions.”
In each of these three cases the plaintiffs obtained essentially complete relief. The legislative history, therefore, does not provide a definitive answer as to the proper standard for setting a fee award where the plaintiff has achieved only limited success. Consistent with the legislative history, Courts of Appeals generally have recognized the relevance of the results obtained to the amount of a fee award. They have adopted varying standards, however, for applying this principle in cases where the plaintiff did not succeed on all claims asserted.
In this case petitioners contend that “an award of attorney’s fees must be proportioned to be consistent with the extent to which a plaintiff has prevailed, and only time reasonably expended in support of successful claims should be compensated.” Brief for Petitioners 24. Respondents agree that a plaintiff’s success is relevant, but propose a less stringent standard focusing on “whether the time spent prosecuting [an unsuccessful] claim in any way contributed to the ultimate results achieved.” Brief for Respondents 46. Both parties acknowledge the discretion of the district court in this area. We take this opportunity to clarify the proper relationship of the results obtained to an award of attorney’s fees.
III
A
A plaintiff must be a “prevailing party” to recover an attorney’s fee under § 1988. The standard for making this threshold determination has been framed in various ways. A typical formulation is that “plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Nadeau v. Helgemoe, 581 F. 2d 275, 278-279 (CA1 1978). This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is “reasonable.”
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.
The district court also should exclude from this initial fee calculation hours that were not “reasonably expended.” S. Rep. No. 94-1011, p. 6 (1976). Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. “In the private sector, 'billing judgment’ is an important component in fee setting. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Copeland v. Marshall, 205 U. S. App. D. C. 390, 401, 641 F. 2d 880, 891 (1980) (en banc) (emphasis in original).
B
The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the “results obtained.” This factor is particularly crucial where a plaintiff is deemed “prevailing” even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?
In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants — often an institution and its officers, as in this case — counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been “expended in pursuit of the ultimate result achieved.” Davis v. County of Los Angeles, 8 E. P. D., at 5049. The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.
It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiff’s claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. See Davis v. County of Los Angeles, supra, at 5049. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.
If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.
Application of this principle is particularly important in complex civil rights litigation involving numerous challenges to institutional practices or conditions. This type of litigation is lengthy and demands many hours of lawyers’ services. Although the plaintiff often may succeed in identifying some unlawful practices or conditions, the range of possible success is vast. That the plaintiff is a “prevailing party” therefore may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved. In this case, for example, the District Court’s award of fees based on 2,557 hours worked may have been reasonable in light of the substantial relief obtained. But had respondents prevailed on only one of their six general claims, for example the claim that petitioners’ visitation, mail, and telephone policies were overly restrictive, see n. 1, supra, a fee award based on the claimed hours clearly would have been excessive.
There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified.
C
A request for attorney’s fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of a fee. Where settlement is not possible, the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise “billing judgment” with respect to hours worked, see supra, at 434, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.
We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters. It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award. "When an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained.
>
In this case the District Court began by finding that [t]he relief [respondents] obtained at trial was substantial and certainly entitles them to be considered prevailing . . . , without the need of examining those issues disposed of prior to trial in order to determine which went in [respondents’] favor.” Record 219. It then declined to divide the hours worked between winning and losing claims, stating that this fails to consider “the relative importance of various issues, the interrelation of the issues, the difficulty in identifying issues, or the extent to which a party may prevail on various issues.” Id., at 220. Finally, the court assessed the “amount involved/ results obtained” and declared: “Not only should [respondents] be considered prevailing parties, they are parties who have obtained relief of significant import. [Respondents’] relief affects not only them, but also numerous other institutionalized patients similarly situated. The extent of this relief clearly justifies the award of a reasonable attorney’s fee.” Id., at 231.
These findings represent a commendable effort to explain the fee award. Given the interrelated nature of the facts and legal theories in this case, the District Court did not err in refusing to apportion the fee award mechanically on the basis of respondents’ success or failure on particular issues. And given the findings with respect to the level of respondents’ success, the District Court’s award may be consistent with our holding today.
We are unable to affirm the decisions below, however, because the District Court’s opinion did not properly consider the relationship between the extent of success and the amount of the fee award. The court’s finding that “the [significant] extent of the relief clearly justifies the award of a reasonable attorney’s fee” does not answer the question of what is “reasonable” in light of that level of success. We emphasize that the inquiry does not end with a finding that the plaintiff obtained significant relief. A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.
V
We hold that the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees under 42 U. S. C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained. On remand the District Court should determine the proper amount of the attorney’s fee award in light of these standards.
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.
Under “physical environment” the court found that certain physical aspects of the Biggs Building were not minimally adequate. 475 F. Supp., at 916-919.
Under “individual treatment plans” the court found that the existing plans were adequate, but that the long delay in preparation of initial plans after patients were admitted and the lack of regular review of the plans operated to deny patients minimally adequate plans. Id,., at 921-922.
Under “least restrictive environment” the court found unconstitutional the delay in transfer of patients from the Biggs Building to the Rehabilitation Unit following a determination that they no longer needed maximum-security confinement. Id., at 922-923.
Under “visitation, telephone and mail” the court found that the visitation and telephone policies at the Biggs Building were so restrictive that they constituted punishment and therefore violated patients’ due process rights. Id., at 923-925.
Under “seclusion and restraint” the court rejected respondents’ claim that patients were given excessive medication as a form of behavior control. The court then found that petitioners’ practices regarding seclusion and physical restraint were not minimally adequate. Id., at 925-928.
A prevailing defendant may recover an attorney’s fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant. See H. R. Rep. No. 94-1558, p. 7 (1976); Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978) (“[A] district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith”).
The 12 factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F. 2d, at 717-719. These factors derive directly from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106 (1980).
“It is intended that the amount of fees awarded ... be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir.1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. ¶ 9444 (CD Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys. In computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, ‘for all time reasonably expended on a matter.’ Davis, supra; Stanford Daily, supra at 684.” S. Rep. No. 94-1011, p. 6 (1976).
Some Courts of Appeals have stated flatly that plaintiffs should not recover fees for any work on unsuccessful claims. See, e. g., Bartholomew v. Watson, 665 F. 2d 910, 914 (CA9 1982); Muscare v. Quinn, 614 F. 2d 577, 579-581 (CA7 1980); Hughes v. Repko, 578 F. 2d 483, 486-487 (CA3 1978). Others have suggested that prevailing plaintiffs generally should receive a fee based on hours spent on all nonfrivolous claims. See, e. g., Sherkow v. Wisconsin, 630 F. 2d 498, 504-505 (CA7 1980); Northcross v. Board of Educ. of Memphis City Schools, 611 F. 2d 624, 636 (CA6 1979), cert. denied, 447 U. S. 911 (1980); Brown v. Bathke, 588 F. 2d 634, 636-637 (CA8 1978). Still other Courts of Appeals have held that recovery of a fee for hours spent on unsuccessful claims depends upon the relationship of those hours expended to the success achieved. See, e. g., Copeland v. Marshall, 205 U. S. App. D. C. 390, 401-402, n. 18, 641 F. 2d 880, 891-892, n. 18 (1980) (en banc); Jones v. Diamond, 636 F. 2d 1364, 1382 (CA5) (en banc), cert. dism’d, 453 U. S. 950 (1981); Gurule v. Wilson, 635 F. 2d 782, 794 (CA10 1980) (opinion on rehearing); Lamphere v. Brown Univ., 610 F. 2d 46, 47 (CA1 1979).
The parties disagree as to the results obtained in this ease. Petitioners believe that respondents “prevailed only to an extremely limited degree.” Brief for Petitioners 22. Respondents contend that they “prevailed on practically every claim advanced.” Brief for Respondents 23. As discussed in Part IV, infra, we leave this dispute for the District Court on remand.
As we noted in Hanrahan v. Hampton, 446 U. S. 754, 758, n. 4 (1980) (per curiam), “[t]he provision for counsel fees in § 1988 was patterned upon the attorney’s fees provisions contained in Titles II and VII of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000a-3(b) and 2000e-5(k), and § 402 of the Voting Rights Act Amendments of 1975, 42 U. S. C. § 1973i(e).” The legislative history of §1988 indicates that Congress intended that “the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act.” S. Rep. No. 94-1011, p. 4 (1976). The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a “prevailing party.” 8
See also Busche v. Burkee, 649 F. 2d 509, 521 (CA7 1981), cert. denied, 454 U. S. 897 (1981); Sethy v. Alameda County Water Dist., 602 F. 2d 894, 897-898 (CA9 1979) (per curiam). Cf. Taylor v. Sterrett, 640 F. 2d 663, 669 (CA5 1981) (“[T]he proper focus is whether the plaintiff has been successful on the central issue as exhibited by the fact that he has acquired the primary relief sought”).
The district court also may consider other factors identified in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 717-719 (CA5 1974), though it should note that many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate. See Copeland v. Marshall, 205 U. S. App. D. C. 390, 400, 641 F. 2d 880, 890 (1980) (en banc).
If the unsuccessful claim is frivolous, the defendant may recover attorney’s fees incurred in responding to it. See n. 2, supra.
We agree with the District Court’s rejection of “a mathematical approach comparing the total number of issues in the case with those actually prevailed upon.” Record 220. Such a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors. Nor is it necessarily significant that a prevailing plaintiff did not receive all the relief requested. For example, a plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time.
We recognize that there is no certain method of determining when claims are “related” or “unrelated.” Plaintiff’s counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures. See Nadeau v. Helgemoe, 581 F. 2d 275, 279 (CA1 1978) (“As for the future, we would not view with sympathy any claim that a district court abused its discretion in awarding unreasonably low attorney’s fees in a suit in which plaintiffs were only partially successful if counsel’s records do not provide a proper basis for determining how much time was spent on particular claims”).
In addition, the District Court properly considered the reasonableness of the hours expended, and reduced the hours of one attorney by 30 percent to account for his inexperience and failure to keep contemporaneous time records.
The District Court expressly relied on Brown v. Bathke, 588 F. 2d 634 (CA8 1978), a ease we believe understates the significance of the results obtained. In that case a fired schoolteacher had sought reinstatement, lost wages, $25,000 in damages, and expungement of derogatory material from her employment record. She obtained lost wages and the requested expungement, but not reinstatement or damages. The District Court awarded attorney’s fees for the hours that it estimated the plaintiff’s attorney had spent on the particular legal issue on which relief had been granted. The Eighth Circuit reversed. It stated that the results obtained may be considered, but that this factor should not “be given such weight that it reduces the fee awarded to a prevailing party below the ‘reasonable attorney’
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_casetyp1_7-2
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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".
VAPOR BLAST MFG. CO. et al. v. PANGBORN CORPORATION.
No. 6175.
United States Court of Appeals Fourth Circuit.
Argued Nov. 10, 1950.
Decided Dec. 30, 1950.
J. Kemp Bartlett, Jr., Baltimore, Md., and Howard A. Hartman, Chicago, 111. (S. L. Wheeler and H. William Ihrig, Milwaukee, Wis., on brief), for appellants.
Arthur G. Connolly, Wilmington, Del. (Venable, Baetjer & Howard, . Joseph France and Stuart S. Janney, Jr., all of Baltimore, Md., on brief), for appellee.
Before PARKER, SOPER and DOBIE,, Circuit Judges.
DOBIE, Circuit Judge.
Plaintiffs, Vapor Blast Manufacturing Company (hereinafter called Vapor) and A. H. Eppler, instituted a civil action in the United States District Court of the District of Maryland, against the Pang-born Corporation (hereinafter called Pang-born), alleging infringement by Pangbom o'f the Eppler patent, No. 2,462,480. Only claims 15 and 21 of the patent are here in suit. The District Judge concluded:
“Summarizing our conclusions they are: (1) Defendant’s device infringes both of the claims of the Eppler patent in suit, numbers 15 and 21; (2) these claims are sufficiently specific in the light of the specifications ; but (3) they are invalid because anticipated by the prior British patent to Mathewson.” [93 F.Supp. 792, 798.] The complaint was, accordingly, dismissed and plaintiffs have duly appealed to us.
The two claims in suit read as follows:
“No. 15 (the method claim). A method of cleaning and polishing which comprises the suspension of a predetermined amount of abrasive particles in a predetermined amount of carrier liquid, circulating the liquid suspension of abrasive particles upon a predetermined path while maintaining the portions of liquid and abrasive approximately constant and maintaining the distribution of the abrasive approximately constant throughout the carrier liquid, and jetting portions of the circulating carrier liquid and abrasive against the -surface to be -cleaned or polished.”
“No. 21 (the apparatus claim) : Polishing apparatus comprising a charge of liquid carrier and abrasive particles in suspension therein in approximately fixed portions, a collecting sump, a work support above the sump from which portions of the treating charge will drain into the sump, a nozzle, an air supply connection to the nozzle, an emulsion supply for said nozzle including a circulatory system leading from- and returning to said sump and intermediate in communication with the nozzle and means for pumping the said charge through the system to supply the nozzle with portions of the charge under pressure.”
The details of the Eppler patent are made clearer by the rather elaborate specifications of the patent, from which we quote:
“A primary object of the invention i-s to use fluid-borne abrasives to finish or polish surfaces and to be able to control the finishing and polishing operation with such accuracy as to be able to produce a highly finished surface on parts having the most minute tolerances.
“Another object of the invention is to provide a new type of satin' finish on metals, which has important advantages for -bearings and other purposes. In bearings the improved finish produced according to the method hereinafter to be disclosed holds an oil film in the bearing more satisfactorily than any other type finish. Moreover, the finish has advantages quite apart from bearings in that it is very attractive and is rust resistant, and shows an increase amounting to as much as five to ten percent in tensile strength as compared with the same parts finished by other methods.
“An important object of the invention lies in the fact that the wide control possible in it-s use permits of every type of operation from the coarsest rough or de-burring cut to the finest honing or polishing. As will hereinafter be more fully explained, the results achieved result from a novel method and apparatus using the abrasive in suspension in a liquid. I am able to deliver up to four to six times as much weight of abrasive material per minute as in any previous fluid-borne abrasive apparatus, at the same time controlling results so effectively as to be able to finish the most delicate parts. % He jf; $
“The abrasive comprises a liquid carrier having the abrasive material in suspension. In the past, liquids have been used as carriers for abrasive material, but in general the abrasives have -been introduced into the carrier at the nozzle, and in no instance has the abrasive been in suspension in the carrier.
“In the sand blasting art the finest abrasive -capable of effective use in an air blast has been of the order of 80 mesh, and all attempts to use a liquid vehicle or carrier for abrasives have involved the use of the same sorts of abrasives generally used in pneumatic sand blasting apparatus. I have discovered that by using -finer abrasives or by using emulsifying agents, or by both of these procedures, I am able to maintain the abrasive in suspension so that with the entire mass of emulsion in constant circulation I am able to assure a substantially uniform distribution of the abrasive throughout the liquid vehicle.
“For the high degree of polishing, which is one of the outstanding achievements of the invention, the fineness of the abrasive exceeds anything previously though usable in this art. As above pointed out, 80 mesh abrasive is the finest ordinarily used in sand bla-sting. The finest abrasives available on the market for use in lapping compounds and such other fine polishing work are about 650 to 700 mesh. This is the approximate fineness of talcum powder. The abrasives which I use in the practice of the present invention range all the way from 100 to 2500 mesh, the latter comprising an impalpable powder. The preferred range of sizes is from approximately 200 mesh to approximately 1300 mesh.
“The liquid vehicle is preferably water with chemicals added. In the apparatus di-sclosed I may, for ordinary work, use 50 pounds of abrasive in a dry state to 50 pounds of the aqueous vehicle. To the water I preferably add a rust inhibiting chemical, such as the product commercially known as Metrolux, which contains trisodium phosphate, sodium chromate, and a form of lime which contains boron. * * * * * *
“It is very desirable to use air rather than water as a means of imparting energy to the jet delivered from the nozzle. If water were added the character of the emulsion would constantly he changing. It is important to the control of the character of the finish and the amount of metal to be removed that the proportion of water to abrasive in the emulsion be kept relatively constant. Moreover, the fact that I employ chemicals in the emulsion makes it desirable to avoid undue dilution. Since the only water added to the emulsion is that which flushes the packing of the pump, I am able to operate over long periods with a -single charge of emulsion without materially changing the specified proportions of the ingredients. However, air would not be as satisfactory to impel the abrasive jet if the air had to do work in delivering the emulsion to the nozzle, as much of the force of the jet would then be lost. It will be noted that the circulation maintained by the pump is such that at all times a supply of emulsion is maintained in the overhead tank 37 at a constant pressure to flow by gravity to and from the nozzle whether or not the air valve is open. Thu-s, the only function of the air is to give force to the jet issuing from the nozzle.”
We first discuss the validity of the claims in suit. Claim 15, the process claim, and Claim 21, the apparatus claim, as the District Judge observed, “are obviously so interwoven that while the language of the two claims differs, it is appropriate to consider them together.” This becomes even more obvious upon a reading of the specifications.
The essential elements of the Eppler patent may be rather simply stated. These seem to be: (1) a metal sump tank in which a predetermined amount of abrasive particles is placed in liquid suspension; (2) a circulatory system by means of which the emulsion is pumped through a pipe from the bottom of the sump tank to a supply tank positioned above the top of the sump tank: one leading from the lower- inside part of the supply tank, which acts as a supply line and is described as the secondary circulation line or path, with a nozzle at its lower end; a second outlet, extending from the supply tank to the sump tank, described as the primary path or circulation line, through which the emulsion, by gravity, flows from the supply tank to the sump tank: (4) a nozzle, at the lower end of the first outlet (the secondary path or circulation line) furnished with a compressed air line which ejects, at the desired pressure, the emulsion against the article to be abraded or polished.
The primary object of this circulatory system is to insure constancy in the constitution, agitation and distribution of the emulsion. There is, also, as the emulsion is pumped from the sump tank into the supply tank, a constant renewal of the supply of emulsion, while the emulsion is expended through the nozzle against the object to be abraded or polished.
For centuries, sand and similar gritty substances have been used to clean, scour and polish, and, during the nineteenth century, varying types of pumps were employed as a mechanical means of projecting the sand against the article to be abraded or polished. Since fine sand does not flow easily, due to frictional resistance of its particles, it was not unusual to suspend the sand in water to secure a ready flow. Even in wet sand machines, the sand tends to settle out of liquid suspension if nothing is done to keep the sand stirred. Among the agitating devices commonly employed have been jets of air or steam and mechanically operated paddles. The demand for these wet blast machines appears to have been comparatively small until World War II, when, particularly as to the parts of airplane engines, the demand took a spirited upward jump. It could hardly be said, then, that the Eppler patent was in any sense revolutionary.
Application for the Eppler patent was filed January 8, 1944. After a lengthly prosecution during which many of its claims were finally rejected as unpatenta-ble over the prior art, by both the Examiner and the Board of Appeals, the patent issued February 22, 1949. Its file wrapper is of interest for at least two reasons— first, much of the most pertinent prior art was overlooked by the Patent Office, and —second, such art as was cited necessitated substantial amendments to the claims before they were allowed. The purported invention described and claimed in the original application was in many respects quite different from that which the patent claims and specifications were ultimately directed.
Pangborn’s first attack on the validity of the claims in suit is that these claims are too indefinite. On this point, the District Judge stated:
“As respects the remaining ground of defense to the charge of infringement, namely, that the two claims in suit are not sufficiently definite, we are satisfied that the contrary is true. But, in any event, in view of our finding that Eppler is anticipated by Mathewson, this point becomes immaterial.”
And, in the concluding paragraph of the opinion below, we find (as has been already quoted): “these claims are sufficiently specific in the light of .the specifications”. We think this ruling of the District Court must be upheld.
Under the applicable patent statute, 35 U.S.C.A. § 33, the inventor must “particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” And, see, Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 277, 69 S.Ct. 535, 93 L.Ed. 672; United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 236, 63 S.Ct. 165, 87 L.Ed. 232; General Electric Co. v. Wabash Appliance Corporation, 304 U.S. 364, 368, 58 S.Ct. 899, 82 L.Ed. 1402.
True it is that the claims in suit are couched in general terms, with rather broad functional words. Particularly is this true of Claim 15, the process claim. But when, as they must be, these claims are construed in the light of (and narrowed by) the elaborate specifications, the claims live up to the statutory test.. We think one skilled in the art would have little difficulty, upon a reading of the patent, in determining “the part, improvement or combination” which Eppler “claims as his invention or discovery.”
The heart of this case is the correctness of the District Court’s determination that the claims in suit of the Eppler patent are invalid for lack of invention under the prior art. We think this determination is clearly correct. In reaching this conclusion, we are not unmindful of two points stressed by Vapor’s counsel: the presumptions in favor of validity arising from the issuance of the Eppler patent by the Patent Office and the favorable evidentiary value of commercial success of the Eppler machines. In Jungersen v. Ostby & Barton Co., 335 U.S. 560, 567, 69 S.Ct. 269, 272, 93 L.Ed. 235, Mr. Justice Reed said: “The fact that this process has enjoyed considerable commercial success, however, does not render the patent valid. It is true that in cases where the question of patentable invention is a close one, such success has weight in tipping the scales of judgment toward patentability. * * * Where, as here, however, invention is plainly lacking, commercial success cannot fill the void.” See, also, Toledo Pressed Steel Co. v. Standard Parts, Inc., 307 U.S. 350, 356, 59 S.Ct. 897, 83 L.Ed. 1334; Sylvania Industrial Corporation v. Visking Corporation, 4 Cir., 132 F.2d 947, 951.
We think it unnecessary to add much to what was said on this question in the opinion below. The District Judge relied heavily in the prior art, on the English patent to Mathewson, No. 6446, granted in 1889. Mention was also made by the District Judge of the United States patents to Tilghman, No. 415, 239, granted in 1889, and to Schellenger, No. 2,022,481, granted in 1935. And years before Eppler, the Macleod Company of Cincinnati made and sold machines embodying many of the elements used by Eppler. In Mathewson, Tilghman, Schellenger and Macleod are disclosed a sump for the aqueous suspension of the abrasive material; a pump of some nature to force the suspension from the sump into the nozzle; a drain to effect the return of used suspension to the sump; some conventional agitating means to prevent the abrasive material in the suspension from settling. Other patents in this field are Darling, No. 1,746,228, Fitch, No. 2,277,341, and Doane, No. 2,301,203. It follows that Eppler made little advance over the prior art.
In the Mathewson patent, we find: “The object of this invention is to increase the rapidity of the operation, to secure a finer kind of frosting than heretofore, and to provide apparatus for effecting the same. To this end, I use sand in the form of very fine powder (preferably as fine as flour), mixed with water or other liquid to form a fluid abrasive mud, which can be fed evenly and regularly. This mud is propelled or projected against the glass by -a jet of steam, air, or gas, at considerable pressure, or the desired velocity may be given in any other known way.”
The Tilghman patent states:
“The receptacle or reservoir for containing the powdered sand and water may be either above or below the level of the gun, and it is not of course essential that it should be the same receptacle as that into which the mixture falls after striking the glass being operated upon.
“The supply for the jet may be drawn in by the ejector-like action of the steam-jet, or it may flow in by gravity or be forced in by a pump.
“In order to maintain this mixture in a homogeneous state and prevent the powdered sand from settling, an agitator should be used * * *.”
In the light of all these disclosures, there is manifest error in the basic statement in Eppler’s patent: “In the past, liquids have been used as carriers for abrasive materials, but in general the abrasives have been introduced in the carrier at the nozzle, and in no instance has the abrasive been, in suspension in the carrier.” (Italics ours.) And, particularly apposite, in this connection, are the words of 'Circuit Judge Soper, speaking for our Court, in Remington Rand Business Service, Inc. v. Acme Card System Co., 4 Cir., 71 F.2d 628, 635: “It is not necessary, however, for the purpose in view, that the Anchell patent be considered a complete anticipation to the patent in suit. It is sufficient that it suggests to one interested in the problem the means of solving it. When we consider the result which Soans was striving to achieve, and note the comparative simplicity of the problem, it is clear that it did not require invention to solve it in view of the suggestions in the kindred art contained in the Rudolph and Anchell patents.” See, also, New Process Fermentation Co. v. Maus, 122 U.S. 413, 418, 7 S.Ct. 1304, 30 L.Ed. 1193; Gulf Smokeless Coal Co. v. Sutton, Steele & Steele, 4 Cir., 35 F.2d 433.
Great stress is laid by Vapor’s counsel upon Eppler’s overflow pipe and the unique part it plays in Eppler’s double-ring primary and secondary circulatory system. And, we are told, Mathewson’s overflow pipe was purely accidental and without any anticipatory effect. With this we cannot agree. Normally and naturally, the very idea of a gravity feed tank would suggest an overflow pipe to maintain a constant discharge level. It is not without significance that neither of the Eppler claims in suit, 15 and 21, in terms mentions an overflow pipe. And, as the District Judge aptly observed: “Even though Mathewson may not have contemplated the same value to be attached to such a pipe as did Eppler, he did disclose it in form and in operation as Eppler has done and therefore, it is not to be ignored in determining the similarity of the two devices.”
We agree with the District Judge’s summary: “The demonstrations given to the Court of plaintiffs’ cabinet in actual, normal operation, clearly indicate that it and Mathewson’s device are (1) substantially the same in construction, that is to say that any one of the several alternate constructions permissible under both Eppler and Mathewson mount up to the same thing; (2) they operate in substantially the same manner, and (3) they produce the same result in the same branch or field of the same art. In short, here we have a case where it is true, apparently, that Mathewson did not contemplate the intensive, varied uses to which the abrasive art has in more recent years become commercially and very profitably applicable; but he did disclose to the world a machine which will perform these very same modern operations in the same manner as does the Eppler device.”
In a very recent case in this field, the Supreme Court has set forth its ideas as to the high standard which must be used in judging what constitutes patentable invention. In Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corporation, 71 S.Ct. 127, 130 Mr. Justice Jackson said: “The function of a patent is to add to the sum of useful knowledge. Patents cannot be sustained, when, on the contrary, their effect is to subtract from former resources freely available to skilled artisans.”
And even stronger are the words of Mr. Justice Douglas in the same case: “Every patent is the grant of a privilege of exacting tolls from the public. The framers plainly did not want those monopolies freely granted. The invention to justify a patent had to serve the ends of science — to push back the frontiers of chemistry, -physics, and the like; to make a distinctive contribution to scientific knowledge. ' That is why through the years the- opinions of the Court commonly have taken ‘inventive genius’ as the test. It is not enough that -an article is new and useful. The Constitution never sanctioned the patenting - 'of gadgets. Patents serve a higher end — the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance.” 71 S.Ct. page 131.
The judgment of the District Court is affirmed.
Affirmed.
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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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.
DAVIS v. FEDERAL ELECTION COMMISSION
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
No. 07-320.
Argued April 22, 2008
Decided June 26, 2008
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined, and in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined as to Part II. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Part II, post, p. 749. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined, post, p. 758.
Andrew D. Herman argued the cause for appellant. With him on the briefs was Stanley M. Brand.
Former Solicitor General Clement argued the cause for appellee. With him on the brief were Acting Solicitor General Garre, Malcolm L. Stewart, Thomasenia P. Duncan, David Kolker, Kevin Deeley, and Holly J. Baker.
Briefs of amici curiae urging reversal were filed for the Center for Competitive Politics by Erik S. Jaffe; and for Gene DeRossett et al. by Kathleen M. Sullivan.
Briefs of amici curiae urging affirmance were filed for Common Cause by Bradley S. Phillips; and for Democracy 21 et al. by Seth P. Waxman, Randolph D. Moss, Roger M. Witten, Donald J. Simon, J. Gerald Hebert, Paul S. Ryan, Tara Malloy, Scott L. Nelson, Fred Wertheimer, and Deborah Goldberg.
Briefs of amici curiae were filed for the Cato Institute by Benjamin D. Wood, William J. McGinley, Glenn M. Willard, and Ilya Shapiro; and for the James Madison Center for Free Speech et al. by James Bopp, Jr., and Richard E. Coleson.
Justice Alito
delivered the opinion of the Court.
In this appeal, we consider the constitutionality of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat.
I
A
Federal law limits the amount of money that a candidate for the House of Representatives and the candidate’s authorized committee may receive from an individual, as well as the amount that the candidate’s party may devote to coordinated campaign expenditures. 2 U. S. C. § 441a (2006 ed.). Under the usual circumstances, the same restrictions apply to all the competitors for a seat and their authorized committees. Contributions from individual donors during a 2-year election cycle are subject to a cap, which is currently set at $2,300. See §§ 441a(a)(1)(A), (c); 72 Fed. Reg. 5295 (2007). In addition, no funds may be accepted from an individual whose aggregate contributions to candidates and their committees during the election cycle have reached the legal limit, currently $42,700. See 2 U. S. C. §§ 441a(a)(3)(A), (c); 72 Fed. Reg. 5295. A candidate also may not accept general election coordinated expenditures by national or state political party committees that exceed an imposed limit. See 2 U. S. C. §§ 441a(c), (d). Currently, the limit for candidates in States with more than one House seat is $40,900. 72 Fed. Reg. 5294.
Section 319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 109, 2 U. S. C. § 441a-1(a), part of the so-called “Millionaire’s Amendment,” fundamentally alters this scheme when, as a result of a candidate’s expenditure of personal funds, the “opposition personal funds amount” (OPFA) exceeds $350,000. The OPFA, in simple terms, is a statistic that compares the expenditure of personal funds by competing candidates and also takes into account to some degree certain other fundraising. See § 441a-1(a). When a candidate’s expenditure of personal funds causes the OPFA to pass the $350,000 mark (for convenience, such candidates will be referred to as “self-financing”), a new, asymmetrical regulatory scheme comes into play. The self-financing candidate remains subject to the limitations noted above, but the candidate’s opponent (the “non-self-financing” candidate) may receive individual contributions at treble the normal limit (e.g., $6,900 rather than the current $2,300), even from individuals who have reached the normal aggregate contributions cap, and may accept coordinated party expenditures without limit. See §§ 441a-1(a)(1)(AMC). Once the non-self-financing candidate’s receipts exceed the OPFA, the prior limits are revived. § 441a-1(a)(3). A candidate who does not spend the contributions received under the asymmetrical limits must return them. § 441a-1(a)(4).
In order to calculate the OPFA, certain information is needed about the self-financing candidate’s campaign assets and personal expenditures. Section 319(b) thus requires self-financing candidates to make three types of disclosures. First, within 15 days after entering a race, a candidate must file a “[declaration of intent” revealing the amount of personal funds the candidate intends to spend in excess of $350,000. 2 U. S. C. §441a-1(b)(1)(B). A candidate who does not intend to cross this threshold may simply declare an intent to spend no personal funds. 11 CFR § 400.20(a)(2) (2008). Second, within 24 hours of crossing or becoming obligated to cross the $350,000 mark, the candidate must file an “[i]nitial notification.” 2 U. S. C. § 441a-1(b)(1)(C). Third, the candidate must file an “[additional notification” within 24 hours of making or becoming obligated to make each additional expenditure of $10,000 or more using personal funds. § 441a-1(b)(1)(D). The initial and additional notifications must provide the date and amount of each expenditure from personal funds, and all notifications must be filed with the Federal Election Commission (FEC), all other candidates for the seat, and the national parties of all those candidates. § 441a-1(b)(1)(E). Failure to comply with the reporting requirements may result in civil and criminal penalties. §§ 437g(a)(5)-(6), (d)(1).
A non-self-financing candidate and the candidate’s committee face less extensive disclosure requirements. Within 24 hours after receiving an “initial” or “additional” notification filed by a self-financing opponent, a non-self-financing candidate must provide notice to the FEC and the national and state committees of the candidate’s party if the non-self-financing candidate concludes based on the newly acquired information that the OPFA has passed the $350,000 mark. 11 CFR § 400.30(b)(2). In addition, when the additional contributions that a non-self-financing candidate is authorized to receive pursuant to the asymmetrical limitations scheme equals the OPFA, the non-self-financing candidate must notify the FEC and the appropriate national and state committees within 24 hours. § 400.31(e)(1)(ii). The non-self-financing candidate must also provide notice regarding any refunds of “excess funds” (funds received under the increased limits but not used in the campaign). §§ 400.50, 400.54. For their part, political parties must notify the FEC and the candidate they support within 24 hours of making any expenditures that exceed the normal limit for coordinated party expenditures. § 400.30(c)(2).
B
Appellant Jack Davis was the Democratic candidate for the House of Representatives from New York’s 26th Congressional District in 2004 and 2006. In both elections, he lost to the incumbent. In his brief, Davis discloses having spent $1.2 million, principally his own funds, on his 2004 campaign. Brief for Appellant 4. He reports spending $2.3 million in 2006, all but $126,000 of which came from personal funds. Id., at 13. His opponent in 2006 spent no personal funds. Indeed, although the OPFA calculation provided the opportunity for Davis’ opponent to raise nearly $1.5 million under § 319(a)’s asymmetrical limits, Davis’ opponent adhered to the normal contribution limits.
Davis’ 2006 candidacy began in March 2006, when he filed with the FEC a “Statement of Candidacy” and, in compliance with § 319(b), declared that he intended to spend $1 million in personal funds during the general election. Two months later, in anticipation of this expenditure and its § 319 consequences, Davis filed suit against the FEC, requesting that § 319 be declared unconstitutional and that the FEC be enjoined from enforcing it during the 2006 election.
After Davis declared his candidacy but before he filed suit, the FEC’s general counsel notified him that it had reason to believe that he had violated §319 by failing to report personal expenditures during the 2004 campaign. The FEC proposed a conciliation agreement under which Davis would pay a substantial civil penalty. Davis responded by agreeing to toll the limitations period for an FEC enforcement action until resolution of this suit.
Davis filed this action in the United States District Court for the District of Columbia, and a three-judge panel was convened. BCRA § 403, 116 Stat. 113, note following 2 U. S. C. § 437h. While Davis requested that the case be decided before the general election campaign began on September 12, 2006, the FEC opposed the request, asserting the need for extensive discovery, and the request was denied. Ultimately, the parties filed cross-motions for summary judgment.
Ruling on those motions, the District Court began by addressing Davis’ standing sua sponte. The court concluded that Davis had standing, but rejected his claims on the merits and granted summary judgment for the FEC. 501 F. Supp. 2d 22 (2007). Davis then invoked BCRA’s exclusive avenue for appellate review—direct appeal to this Court. Note following § 437h. We deferred full consideration of our jurisdiction, 552 U. S. 1135 (2008), and we now reverse.
II
Like the District Court, we must first ensure that we have jurisdiction to hear Davis’ appeal. Article III restricts federal courts to the resolution of cases and controversies. Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997). That restriction requires that the party invoking federal jurisdiction have standing — the “personal interest that must exist at the commencement of the litigation.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks omitted). But it is not enough that the requisite interest exist at the outset. “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ” Arizonans for Official English, supra, at 67. The FEC argues that Davis’ appeal fails to present a constitutional case or controversy because Davis lacks standing and because his claims are moot. We address each of these issues in turn.
A
As noted, the requirement that a claimant have “standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992); see also Arizonans for Official English, supra, at 64. To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling. Lujan, supra, at 560-561.
The District Court held, and the parties do not dispute, that Davis possesses standing to challenge the disclosure requirements of § 319(b). When Davis filed suit, he had already declared his 2006 candidacy and had been forced by § 319(b) to disclose to his opponent that he intended to spend more than $350,000 in personal funds. At that time, Davis faced the imminent threat that he would have to follow up on that disclosure with further notifications after he in fact passed the $350,000 mark. Securing a declaration that § 319(b)’s requirements are unconstitutional and an injunction against their enforcement would have spared him from making those disclosures. That relief also would have removed the real threat that the FEC would pursue an enforcement action based on alleged violations of § 319(b) during his 2004 campaign. As a result, Davis possesses standing to challenge § 319(b)’s disclosure requirement.
The fact that Davis has standing to challenge § 319(b) does not necessarily mean that he also has standing to challenge the scheme of contribution limitations that applies when § 319(a) comes into play. “[Standing is not dispensed in gross.” Lewis v. Casey, 518 U. S. 343, 358, n. 6 (1996). Rather, “a plaintiff must demonstrate standing for each claim he seeks to press” and “'for each form of relief’” that is sought. Daimler Chrysler Corp. v. Cuno, 547 U. S. 332, 352 (2006) (quoting Friends of Earth, supra, at 185).
In light of these principles, the FEC argues that Davis lacks standing to attack § 319(a)’s asymmetrical limits. When Davis commenced this action, his opponent had not yet qualified for the asymmetrical limits, and later, when his opponent did qualify to take advantage of those limits, he chose not to do so. Accordingly, the FEC argues that § 319(a) did not cause Davis any injury.
While the proof required to establish standing increases as the suit proceeds, see Lujan, supra, at 561, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed. Friends of Earth, supra, at 180; Arizonans for Official English, supra, at 68, n. 22. As noted above, the injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct. Los Angeles v. Lyons, 461 U. S. 95, 102 (1983); see also Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) (A plaintiff may challenge the prospective operation of a statute that presents a realistic and impending threat of direct injury). Davis faced such an injury from the operation of § 319(a) when he filed suit. Davis had declared his candidacy and his intent to spend more than $350,000 of personal funds in the general election campaign whose onset was rapidly approaching. Section 319(a) would shortly burden his expenditure of personal funds by allowing his opponent to receive contributions on more favorable terms, and there was no indication that his opponent would forgo that opportunity. Indeed, the record at summary judgment indicated that most candidates who had the opportunity to receive expanded contributions had done so. App. 89. In these circumstances, we conclude that Davis faced the requisite injury from § 319(a) when he filed suit and has standing to challenge that provision’s asymmetrical contribution scheme.
B
The FEC’s mootness argument also fails. This case closely resembles Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007). There, Wisconsin Right to Life (WRTL), a nonprofit, ideological advocacy corporation, wished to run radio and TV ads within 30 days of the 2004 Wisconsin primary, contrary to a restriction imposed by BCRA. WRTL sued the FEC, seeking declaratory and injunctive relief. Although the suit was not resolved before the 2004 election, we rejected the FEC’s claim of mootness, finding that the case “fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review.” Id., at 462. That “exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Ibid, (quoting Spencer v. Kemna, 523 U. S. 1, 17 (1998)).
In WRTL, “despite BCRA’s command that the cas[e] be expedited ‘to the greatest possible extent,’ ” WRTL’s claims could not reasonably be resolved before the election concluded. 551 U. S., at 462 (quoting § 403(a)(4), 116 Stat. 114, note following 2 U. S. C. § 437h). Similarly, in this case despite BCRA’s mandate to expedite and Davis’ request that his case be resolved before the 2004 general election season commenced, Davis’ case could not be resolved before the 2006 election concluded, demonstrating that his claims are capable of evading review.
As to the second prong of the exception, even though WRTL raised an as-applied challenge, we found its suit capable of repetition where “WRTL credibly claimed that it planned on running ‘materially similar’ future” ads subject to BCRA’s prohibition and had, in fact, sought an injunction that would permit such an ad during the 2006 election. 551 U. S., at 463 (some internal quotation marks omitted). Here, the FEC conceded in its brief that Davis’ § 319(a) claim would be capable of repetition if Davis planned to self-finance another bid for a House seat. Brief for Appellee 14, 20-21, and n. 5. Davis subsequently made a public statement expressing his intent to do so. See Reply Brief 16 (citing Terreri, Democrat Davis Confirms He’ll Run Again for Congress, Rochester Democrat and Chronicle, Mar. 27, 2008, p. 5B). As a result, we are satisfied that Davis’ facial challenge is not moot.
Ill
We turn to the merits of Davis’ claim that the First Amendment is violated by the contribution limits that apply when § 319(a) comes into play. Under this scheme, as previously noted, when a candidate spends more than $350,000 in personal funds and creates what the statute apparently regards as a financial imbalance, that candidate’s opponent may qualify to receive both larger individual contributions than would otherwise be allowed and unlimited coordinated party expenditures. Davis contends that § 319(a) unconstitutionally burdens his exercise of his First Amendment right to make unlimited expenditures of his personal funds because making expenditures that create the imbalance has the effect of enabling his opponent to raise more money and to use that money to finance speech that counteracts and thus diminishes the effectiveness of Davis’ own speech.
A
If § 319(a) simply raised the contribution limits for all candidates, Davis’ argument would plainly fail. This Court has previously sustained the facial constitutionality of limits on discrete and aggregate individual contributions and on coordinated party expenditures. Buckley v. Valeo, 424 U. S. 1, 23-35, 38, 46-47, and n. 53 (1976) (per curiam); Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 437, 465 (2001) (Colorado II). At the same time, the Court has recognized that such limits implicate First Amendment interests and that they cannot stand unless they are “closely drawn” to serve a “sufficiently important interest,” such as preventing corruption and the appearance of corruption. See, e. g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 136, 138, n. 40 (2003); Colorado II, supra, at 456; Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387-388 (2000); Buckley, supra, at 25-30, 38. When contribution limits are challenged as too restrictive, we have extended
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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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songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES v. McNUTT.
No. 10938.
United States Court of Appeals Seventh Circuit.
Jan. 6, 1954.
Alvin A. Turner, Chicago, 111, for appellant.
Otto Kerner, Jr., U. S. Atty., John D. Schwartz, Asst. U. S. Atty., Chicago, 111., for appellee.
Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.
MAJOR, Chief Judge.
Appellant and Randal Carter were charged in a four-count indictment with the purchase, sale and concealment after importation of heroin, Secs. 2553(a) and 2554(a), Title 26 U.S.C.A., and Sec. 174, Title 21 U.S.C.A., and with conspiracy to-violate the sections thus designated. Sec. 371, Title 18 U.S.C.A., Carter entered a plea of guilty. Appellant, after trial without a jury, was found guilty. From a judgment predicated upon such-finding, appellant appeals.
The only contested issue of consequence is whether the evidence was sufficient to justify a finding of guilt.
The testimony offered by the government was brief. Appellant did not testify and no evidence was offered on-his behalf. We have read the testimony and conclude that it was sufficient, if believed by the trial court as it evidently was, to justify the finding of guilt. At any rate, we cannot say that the evidence-when viewed in the light most favorable to the government, as it must be on review, does not support the finding.
There is proof that on May 2, 1953, Clerk Turnbull, an employee of the Narcotics Bureau, met appellant and Carter in a tavern located in Waukegan, Illinois, from which all three emerged at about the same time. Appellant and Carter left Turnbull and the former proceeded a short distance to a poolroom, which he entered. Later, McNutt left the poolroom, joined Carter on the street and placed something in the hand of Carter. The latter, without placing his hands in his pocket, returned to Turnbull and handed him a package. Admittedly, this package contained heroin.
The occurrence in controversy took place at night and appellant argues, with some plausibility, that the witnesses relied upon to establish the chain of circumstances could have been mistaken. It was for the district court, however, to evaluate the credibility of the witnesses and the weight to be attached to their testimony. It can hardly be denied that the evidence was sufficient, if believed, to trace the heroin directly from the hand of appellant to that of Carter and to the narcotic agent.
Appellant makes a minor point, that the court erred in permitting to stand, over objection, the answer to a question propounded to a witness by counsel for the government. The question, referring to appellant and Carter, “Did they have a conversation ?” was answered, “They appeared to say a few words.” It is argued that “appeared” was merely a conclusion of the witness. We think appellant’s contention on this point is without merit. Moreover, there is no showing as to what the conversation was about and it is not discernible how or in what manner the answer could have been prejudicial, particularly in view of the fact that the trial was before the court.
The judgment appealed from is
Affirmed.
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_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
HUTTO v. ATLANTIC LIFE INS. CO.
No. 3238.
Circuit Court of Appeals, Fourth Circuit.
April 13, 1932.
HAYES, District Judge, dissenting.
M. E. Zeigler and A. J. Hydriek, both of Orangeburg, S. C., for appellant.
Alexander W. Parker, of Richmond, Va., and Alva M. Lumpkin, of Columbia, S. C. (Thomas & Lumpkin, of Columbia, S. C., on the brief), for appellee.
Before PARKER and SOPER, Circuit Judges, and HAYES, District Judge.
PARKER, Circuit Judge.
This is an appeal from a judgment in an action on two life insurance policies. The company paid the face of the policies, but contested liability on the double indemnity provisions contained therein. The judge below directed a verdict for the insurance company on the ground that the evidence showed that at the time of his death insured was engaged in the commission of a crime involving moral turpitude, and that, because of this fact, there was no liability under the double indemnity provisions.
Each policy sued on contained a provision to the effect that the company would pay double the face of the policy if the death of the insured should result directly, exclusively, and independently of all other causes from bodily injury effected solely through external, violent, and accidental means. A condition of the provision was that the injury should not be intentionally inflicted by another person or by the insured himself, and should not occur while the insured was “engaged in any violation of law involving moral turpitude.”
Insured, a young white man, was shot on a Sunday morning at a house where lived a colored woman and her seventeen year old daughter and some younger children. The house did not bear a good reputation. Insured had gone there with another white man who, for some reason, was not called as a witness. - The only testimony as to the manner in which he was shot was given by the seventeen year old colored girl. She testified that the insured came into the back room of the house where she was and assaulted her in an indecent manner; that she picked up a pistol which was lying near by and pointed it at the insured; that in the scuffle which ensued the pistol was discharged, the bullet striking the insured and causing his death. While there were some minor contradictions in the testimony of this witness, there was no evidence that the shooting occurred other than as she testified, and any hypothesis to the contrary is based upon pure speculation and not supported by any proof.
We agree that this evidence does not show conclusively that insured was engaged in an assault with intent to commit rape. To constitute such crime there must be intent to have camal knowledge of a female forcibly and against her will and notwithstanding any resistance on her part; and, in view of the surrounding circumstances here, the jury might have inferred that, while insured intended to have sexual intercourse with the witness, he did not intend to ravish her if she continued to resist. But upon the evidence there is no escaping the conclusion that the insured was engaged in an indecent assault upon the witness. The least touching of the person of another in rudeness or in violence constitutes an assault and battery. And there can be no question but that an assault upon a female with the object of having sexual intercourse with her, even if the intent to ravish be not present, is an “assault and battery of a high and aggravated nature” under the law of South Carolina. State v. Jones, 133 S. C. 167, 130 S: E. 747; State v. Dalby, 86 S. C. 367, 68 S. E. 633.
And we think it equally clear that such an assault is a crime involving moral turpitude within the meaning of the provision of the policies sued on. A crime involves moral turpitude if it involves an act of baseness, vileness, or depravity when judged in the light of the social duties which a man owes to his fellow man or to society in general. 25Cyc 272; 36 C. J. 1194; Sipp v. Coleman (C. C.) 179 P. 997; In re Bartos (D. C.) 13 F.(2d) 138; Skrmetta v. Coykendall (D. C.) 16 F.(2d) 783. Standards of morals change with the changing conditions of civilization; but it is beyond question that, when judged by the moral standard of this age and country, an indecent assault upon a female is a crime involving moral turpitude.
It was while engaged in the commission of such a crime that the insured received the injury that caused his death; and we think it clear that the injury was caused by the unlawful conduct in which he was engaged. Whether insured was shot by the accidental discharge of the pistol while he and witness were scuffling, or whether the pistol was dropped in the scuffle and fired as it struck the floor, the shooting was the result of the insured’s engaging in the assault upon the witness. See Travelers’ Insurance Co. v. Seaver, 19 Wall. 531, 22 L. Ed. 155; Bloom v. Franklin Life Ins. Co., 97 Ind. 478, 49 Am. Rep. 469.
An interesting question, which we need not decide, is whether under the terms of this policy it was necessary for any causative connection to be shown between the unla.wful act and the injury. It is said that the contract embodied in clear and unambiguous language that the double indemnity provision should not cover death resulting from an injury which should occur while the insured was engaged in any violation of law involving moral turpitude. And it is argued that the purpose of this provision is to guard against the increase of hazard which would result from the insured’s being so engaged, and that its result is to make the double indemnity provision inapplicable in the ease of an injury occurring during the period that he is so engaged, irrespective of the cause of the injury. There is much to be said for this contention. Certain it is that it is not the function of the courts to make contracts, but to construe them; and if the parties to a contract of insurance provide that same shall not cover a given risk while insured is engaged in certain conduct, or occupying a certain status thought to involve an increase of hazard, there would seem to be nothing for the courts to do but to enforce their contract as they have made it. Flannagan v. Provident Life & Accident Ins. Co. (C. C. A. 4th) 22 F.(2d) 136; Order of United Com. Travelers v. Greer (C. C. A. 10th) 43 F.(2d) 499. We need not decide this question, however, as we are satisfied that the causal connection in this ease was clearly established by evidence which was not controverted.
It is true that, when it was established that the death of the insured was caused by a pistol shot, the burden rested upon the company to bring the ease within the terms of the condition upon which it relied; but, as stated above, we think that the evidence clearly did this. In the federal courts it is the duty of the judge to direct a verdict where the evidence is all one way, or where it so clearly supports a conclusion that a verdict to the contrary would not be allowed to stand. The evidence here was of that sort. It clearly shows that the death of insured resulted from an injury which occurred while he was engaged in a violation of law involving moral turpitude, and which resulted from such violation. There is no evidence, in our opinion, to the contrary; and verdicts must rest upon evidence and not upon supposition.
There was no error, and the judgment below will be affirmed.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
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
BLYSTONE v. PENNSYLVANIA
No. 88-6222.
Argued October 10, 1989
Decided February 28, 1990
Rehnquist, C. J., delivered the opinion of the Court, in which White, O’Connor, Scalia, and Kennedy, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, and in all but Part IV of which Blackmun and Stevens, JJ., joined, post, p. 309.
Paul R. Gettleman argued the cause for petitioner. With him on the briefs was Stefan Presser.
Ernest D. Preate, Jr., Attorney General of Pennsylvania, argued the cause for respondent. With him on the brief were Ronald Eisenberg, Hugh J. Burns, Jr., Ewing D. Newcomer, and Gaele McLaughlin Barthold, Special Deputy Attorneys General, and Robert A. Grad, Chief Deputy Attorney General.
A brief of amici curiae urging affirmance was filed for the State of California et al. by John K. Van de Karnp, Attorney General of California, Richard B. IglehaH, Chief Assistant Attorney General, Arnold O. Overoye, Senior Assistant Attorney General, and Edmund D. McMurray, Dane R. Gillette, and Ward A. Campbell, Deputy Attorneys General, RobeH K. Corbin, Attorney General of Arizona, John J. Kelly, Chief State’s Attorney of Connecticut, James T. Jones, Attorney General of Idaho, Neil F. HaHigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Marc Racicot, Attorney General of Montana, Brian McKay, Attorney General of Nevada, John P. Arnold, Attorney General of New Hampshire, Lacy H. Thornburg, Attorney General of North Carolina, T. Travis Medlock, Attorney General of South Carolina, Michael Burson, Attorney General of Tennessee, R. Paul Van Dam, Attorney General of Utah, and Joseph P. Meyer, Attorney General of Wyoming.
Chief Justice Rehnquist
delivered the opinion of the Court.
A Pennsylvania jury sentenced petitioner Scott Wayne Blystone to death after finding him guilty of robbing and murdering a hitchhiker who was unlucky enough to have accepted a ride in his car. Petitioner challenges his sentence on the ground that the State’s death penalty statute is unconstitutional because it requires the jury to impose a sentence of death if, as in this case, it finds at least one aggravating circumstance and no mitigating circumstances. We hold that the Pennsylvania death penalty statute, and petitioner’s sentence under it, comport with our decisions interpreting the Eighth Amendment to the United States Constitution.
On a September night in 1983, Dalton Charles Smith-burger, Jr., an individual characterized at trial as possessing a learning disability, was attempting to hitch a ride along a Pennsylvania road. Petitioner, who was driving an auto carrying his girlfriend and another couple, observed Smith-burger and announced: “I am going to pick this guy up and rob him, okay . . . ?” His friends acquiesced in the idea. Once petitioner had Smithburger in the car, he asked him if he had any money for gas. Smithburger responded that he only had a few dollars and began searching a pocket for money. Dissatisfied, petitioner pulled out a revolver, held it to Smithburger’s head, and demanded that Smithburger close his eyes and put his hands on the dash. Petitioner then pulled off the road and ordered Smithburger out of the car and into a nearby field. After searching his victim at gunpoint and recovering $13, petitioner told Smithburger to lie face down in the field. He later said to a friend: “‘He [Smithburger] was so scared. When I was searching him, his body was shaking.’” 519 Pa. 450, 490, 549 A. 2d 81, 100 (1988).
Petitioner then ordered his victim not to move, and crept back to the car to tell his companions he was going to kill Smithburger. Petitioner returned to the field where, paralyzed by fright, Smithburger remained with his face to the ground. Petitioner asked his victim what kind of car he had been in. Smithburger responded with the wrong answer— he accurately described the car as green with a wrecked back end. Petitioner then said “‘goodbye’” and discharged six bullets into the back of Smithburger’s head. During a subsequent conversation with a friend, petitioner was recorded on a concealed device “bragging in vivid and grisly detail of the killing of that unlucky lad.” Id., at 457, 549 A. 2d, at 84. In response to a query during the conversation as to whether petitioner dreamed about, or felt anything from, the murder, petitioner stated: “‘We laugh about it. . . . [I]t gives you a realization that you can do it. ... You can walk and blow somebody’s brains out and you know that you can get away with it. It gives you a feeling of power, self-confidence....’” Id., at 489-490, 549 A. 2d, at 100.
Petitioner was charged with and convicted of first-degree murder, robbery, criminal conspiracy to commit homicide, and criminal conspiracy to commit robbery. The same jury that convicted petitioner found as an aggravating circumstance that petitioner “committed a killing while in the perpetration of a felony.” 42 Pa. Cons. Stat. § 9711(d)(6) (1988). The jury found that no mitigating circumstances existed, and accordingly sentenced petitioner to death pursuant to the Pennsylvania death penalty statute which provides that “[t]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance . . . and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” § 9711(c)(l)(iv). On direct appeal to the Supreme Court of Pennsylvania, petitioner argued that the death penalty statute was unconstitutional because it mandated a sentence of death based on the outcome of the weighing process. The court summarily rejected this argument, see 519 Pa., at 473, 549 A. 2d, at 92, noting that it had been expressly refuted in its decision in Commonwealth v. Peterkin, 511 Pa. 299, 326-328, 513 A. 2d 373, 387-388 (1986), cert. denied, 479 U. S. 1070 (1987). In Peterkin, the court reasoned that the statute properly accommodated the concerns of Furman v. Georgia, 408 U. S. 238 (1972), that jury discretion be channeled to avoid arbitrary and capricious capital sentencing, and Lockett v. Ohio, 438 U. S. 586 (1978), that a capital jury be allowed to consider all relevant mitigating evidence. 511 Pa., at 326-328, 513 A. 2d, at 387-388. We granted certiorari, 489 U. S. 1096 (1989), to decide whether the mandatory aspect of the Pennsylvania death penalty statute renders the penalty imposed upon petitioner unconstitutional, because it improperly limited the discretion of the jury in deciding the appropriate penalty for his crime. We now affirm.
The constitutionality of a death penalty statute having some “mandatory” aspects is not a novel issue for this Court. In Jurek v. Texas, 428 U. S. 262 (1976), we upheld a statute requiring the imposition of a death sentence if the jury made certain findings against the defendant beyond the initial conviction for murder. See id., at 278 (White, J., concurring in judgment). A majority of the Court believed that the Texas sentencing scheme at issue in Jurek cured the constitutional defect identified in Furman — namely, that unguided juries were imposing the death penalty in an inconsistent and random manner on defendants. See Furman, supra, at 309-310 (Stewart, J., concurring). Thus, by suitably directing and limiting a sentencing jury’s discretion “so as to minimize the risk of wholly arbitrary and capricious action,” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), the Texas death penalty scheme was found to pass constitutional muster. See Jurek, 428 U. S., at 276.
It was also thought significant that the Texas sentencing scheme allowed the jury to consider relevant mitigating evidence. “A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Id., at 271 (opinion of Stewart, Powell, and Stevens, JJ.). On the same day that Jurek was decided, the Court struck down two capital sentencing schemes largely because they automatically imposed a sentence of death upon an individual convicted of certain murders, without allowing “particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon hjm of a sentence of death.” Woodson v. North Carolina, 428 U. S. 280, 303 (1976) (plurality opinion); Roberts v. Louisiana, 428 U. S. 325, 333-334 (1976) (plurality opinion); see also Lockett v. Ohio, 438 U. S., at 604 (plurality opinion) (“The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of relevant facets of the character and record of the individual offender or the circumstances of the particular offense”) (emphasis in original; quotation omitted).
In Lockett, the Court provided further guidance on the nature of “relevant” mitigating circumstances, concluding that a sentence!" must be allowed to consider, “as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Ibid, (emphasis in original; footnote omitted). Last Term, we elaborated on this principle, holding that “the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” Penry v. Lynaugh, 492 U. S. 302, 328 (1989).
We think that the Pennsylvania death penalty statute satisfies the requirement that a capital sentencing jury be allowed to consider and give effect to all relevant mitigating evidence. Section 9711 does not limit the types of mitigating evidence which may be considered, and subsection (e) provides a jury with a nonexclusive list of mitigating factors which may be taken into account — including a “catchall” category providing for the consideration of “[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” See 42 Pa. Cons. Stat. § 9711(e)(8) (1988). Nor is the statute impermissibly “mandatory” as that term was understood in Wood-son or Roberts. Death is not automatically imposed upon conviction for certain types of murder. It is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances. This is sufficient under Lockett and Penry.
Petitioner challenges the statute as it was applied in his particular case. This challenge essentially consists of a claim that his sentencing proceeding was rendered “unreliable” by the mandatory aspect of § 9711 for two reasons. See Wood-son, supra, at 305 (there is a “need for reliability in the determination that death is the appropriate punishment in a specific case”) (plurality opinion). First, petitioner asserts that the mandatory feature of his jury instructions — derived, of course, from the statute — precluded the jury from evaluating the weight of the particular aggravating circumstance found in his case. Second, petitioner contends that the mandatory feature of the sentencing'instructions unconstitutionally limited the jury’s consideration of unenumerated mitigating circumstances. We address these arguments in turn.
At sentencing, petitioner’s jury found one aggravating circumstance present in this case — that petitioner committed a killing while in the perpetration of a robbery. No mitigating circumstances were found. Petitioner contends that the mandatory imposition of death in this situation violates the Eighth Amendment requirement of individualized sentencing since the jury was precluded from considering whether the severity of his aggravating circumstance warranted the death sentence. We reject this argument. The presence of aggravating circumstances serves the purpose of limiting the class of death-eligible defendants, and the Eighth Amendment does not require that these aggravating circumstances be further refined or weighed by a jury. See Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (“The use of ‘aggravating circumstances’ is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion”). The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence. In petitioner’s case the jury was specifically instructed to consider, as mitigating evidence, any “matter concerning the character or record of the defendant, or the circumstances of his offense.” App. 12-13. This was sufficient to satisfy the dictates of the Eighth Amendment.
Next, petitioner maintains that the mandatory aspect of his sentencing instructions foreclosed the jury’s consideration of certain mitigating circumstances. The trial judge gave the jury examples of mitigating circumstances that it was entitled to consider, essentially the list of factors contained in § 9711(e). Among these, the judge stated that the jury was allowed to consider whether petitioner was affected by an “extreme” mental or emotional disturbance, whether petitioner was “substantially” impaired from appreciating his conduct, or whether petitioner acted under “extreme” duress. Petitioner argues that these instructions impermissibly precluded the jury’s consideration of lesser degrees of disturbance, impairment, or duress. This claim bears scant relation to the mandatory aspect of Pennsylvania’s statute, but in any event we reject it. The judge at petitioner’s trial made clear to the jury that these were merely items it could consider, and that it was also entitled to consider “any other mitigating matter concerning the character or record of the defendant, or the circumstances of his offense.” App. 12-13. This instruction fully complied with the requirements of Lockett and Penry.
Three Terms ago, in McCleskey v. Kemp, 481 U. S. 279 (1987), we summarized the teachings of the Court’s death penalty jurisprudence:
“In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.” Id., at 305-306.
We think petitioner’s sentence under the Pennsylvania statute satisfied these requirements. The fact that other States have enacted different forms of death penalty statutes which also satisfy constitutional requirements casts no doubt on Pennsylvania’s choice. Within the constitutional limits defined by our cases, the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.
Affirmed.
Only three Members of the Court expressly relied on the mandatory nature of the Texas sentencing scheme as one reason why it passed muster under Furman. See Jurek, 428 U. S., at 278 (White, J., joined by Burger, C. J. and Rehnquist, J., concurring in judgment). While Justices Stewart, Powell, and Stevens did not explicitly rely on the mandatory character of that scheme in upholding it, those Justices certainly did not believe the mandatory language posed any constitutional difficulties. See generally id., at 268-277.
The Pennsylvania Supreme Court has construed § 9711(e) to allow consideration of any relevant mitigating evidence, even that falling outside the catchall provision of subsection (e)(8). Commonwealth v. Holcomb, 508 Pa. 425, 470, n. 26, 498 A. 2d 833, 856, n. 26 (1985) (plurality opinion), cert. denied, 475 U. S. 1150 (1986); see also Commonwealth v. Fahy, 512 Pa. 298, 315-316, 516 A. 2d 689, 698 (1986).
The dissent states that our discussion of the facial validity of the Pennsylvania statute under Penry and Lockett is irrelevant because “[w]e did not grant certiorari to determine if the statute allows sufficient consideration of mitigating circumstances as required by Lockett. We granted certiorari to consider whether a State may mandate the death penalty when the jury finds no mitigating circumstances.” Post, at 316, n. 5. This statement is in error. The question presented reads as follows: “Whether the mandatory nature of the Pennsylvania death penalty statute renders said statute facially unconstitutional or renders the death penalty imposed upon petitioner unconstitutional because it improperly limits the full discretion the sentencer must have in deciding the appropriate penalty for a particular defendant.” Pet. for Cert. 2. The jury’s ability to consider mitigating evidence is indeed germane to this question.
After receiving repeated warnings from the trial judge, and contrary advice from his counsel, petitioner decided not to present any proof of mitigating evidence during his sentencing proceedings. Asked to explain this decision by the trial judge, petitioner responded: “I don’t want anybody else brought into it.” App. 8. Nonetheless, the jury was specifically instructed that it should consider any mitigating circumstances which petitioner had proved by a preponderance of the evidence, and in making this determination the jury should consider any mitigating evidence presented at trial, including that presented by either side during the guilt phase of the proceedings. Id., at 13.
Petitioner’s reliance on Sumner v. Shuman, 483 U. S. 66 (1987), is misplaced. There we held that a statute mandating the death penalty for a prison inmate convicted of murder while serving a life sentence without possibility of parole violated the Eighth and Fourteenth Amendments. Although noting that “[p]ast convictions of other criminal offenses can be considered as a valid aggravating factor in determining whether a defendant deserves to be sentenced to death for a later murder,” id,., at 81, we recognized that “the inferences to be drawn concerning an inmate’s character and moral culpability may vary depending on the nature of the past offense.” The sentencing scheme involved in that case, however, did not provide for the consideration of any mitigating circumstances. Id., at 67-68, n. 1.
The dissent attempts to undermine our reliance on Jurek v. Texas, 428 U. S. 262 (1976), by arguing that the requirement of individualized sentencing was fulfilled under the Texas death penalty statute in a way not allowed by the Pennsylvania scheme through the jury’s consideration of special findings required to be made before death could be imposed. Post, at 320-323. The dissent ignores the fact that the three-justice opinion in Jurek concluded that the Texas statute fulfilled the requirement of individualized sentencing precisely because one of the special findings had been construed by Texas courts to permit the consideration of mitigating evidence. Jurek, supra, at 272 (opinion of Stewart, Powell and Stevens, JJ.) (“Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors”). Nowhere in that opinion was it implied that the mandatory feature of the Texas statute was constitutional only because a jury could still weigh other factors under a particular construction of the special findings when it found no mitigating circumstances.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_respond1_5_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant.
Ruben BENN, Plaintiff-Appellant, v. Frank A. EYMAN, Warden, Defendant-Appellee.
No. 25546.
United States Court of Appeals, Ninth Circuit.
Jan. 19, 1971.
McCafferty & Loftus, Phoenix, Ariz., for plaintiff-appellant.
Gary K. Nelson, Ariz. Atty. Gen., Carl Wagg, Asst. Atty. Gen., Phoenix, Ariz., for defendant-appellee.
Before CHAMBERS, BARNES and TRASK, Circuit Judges.
PER CURIAM:
Petitioner, a state prisoner, appeals from the order of the district court denying his petition for writ of habeas corpus. We affirm the order of the district court.
Petitioner was charged with three felonies, one count of attempted rape and two counts of burglary. On the scheduled day of trial on the attempted rape charge, which was to be tried first, the attorney prosecuting that charge was ill. The trial was continued, and one of the burglary counts was set to be tried the next day.
The next day, petitioner’s appointed counsel moved for a continuance because he did not have a copy of the transcript of the preliminary hearing for the burglary count to be tried that day. The state trial court denied the motion because defense counsel had, on the previous day, stated that he had the transcript for the burglary charge.
Petitioner then withdrew his plea of not guilty to the burglary count on trial and entered a plea of guilty. The charge of attempted rape and the other burglary count were dismissed.
Petitioner’s principal contention on appeal is that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) requires that his writ be granted. Boykin, where there was no allegation that the guilty plea was involuntary, held that it was constitutional error for a state trial judge to accept the guilty plea “without an affirmative showing that it was intelligent and voluntary.” 395 U.S. at 242, 89 S.Ct. at 1711. Petitioner argues that his conviction must be reversed because the state trial judge made no interrogation to determine whether his guilty plea was voluntary and intelligent before accepting the plea; and also because there was no showing that he changed his plea knowingly, voluntarily and intelligently.
Boykin was decided in 1969. Petitioner’s guilty plea was entered in 1964. This court has held that Boykin is not retroactive. Moss v. Craven, 427 F.2d 139 (9th Cir. 1970). Other circuits are in accord. Meller v. Missouri, 431 F.2d 120 (8th Cir., 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3d Cir. 1969). Therefore, the absence of interrogation of petitioner at the time his plea was entered does not alone require reversal.
The district court at the conclusion of the evidentiary hearing held that petitioner’s plea was voluntary. The district court found that the guilty plea was the result of plea bargaining. This court has held that a guilty plea is not involuntary merely because it results' from plea bargaining. Jones v. United States, 423 F.2d 252 (9th Cir. 1970); United States v. Thomas, 415 F.2d 1216 (9th Cir. 1969); Gilmore v. California, 364 F.2d 916 (9th Cir. 1966); Cortez v. United States, 337 F.2d 699 (9th Cir. 1964).
Petitioner contends that his guilty plea was not the result of plea bargaining. He argues that there was nothing in the record to indicate that a deal was entered into or, if there was a deal, that petitioner was aware of it and agreed to it.
The finding of the district court is supported by the record. Defense counsel testified that there was a deal to drop the other two charges if petitioner would plead guilty to burglary. He also testified that he informed petitioner of the deal and suggested, with full knowledge of the facts, that petitioner accept it. Petitioner testified that defense counsel informed him of the deal and advised him to take it. Petitioner knew that if he pleaded not guilty he would have a trial. The lawyer who represented petitioner at the time of the plea bargaining and the guilty plea was also the lawyer who represented petitioner at the preliminary hearing on that same charge and was personally present at the preliminary hearing so that petitioner and his lawyer were both aware of what took place, even in the absence of a reporter’s transcript.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant?
A. Judge (non-local judge; appellate judge)
B. Prosecutor/district attorney (non-local, e.g., special prosecutor)
C. Jail/Prison/Probation Official (includes juvenile officials)
D. Other judicial official
E. not ascertained
Answer:
|
songer_jurisdiction
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court 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".
Ralph Gordon BISHOP, Petitioner-Appellant, v. The MEDICAL SUPERINTENDENT OF the IONIA STATE HOSPITAL, OF the STATE OF MICHIGAN, Respondent-Appellee.
No. 17306.
United States Court of Appeals Sixth Circuit.
May 23, 1967.
Ronald VanBuren, Portland, Mich., for appellant.
Curtis G. Beck, Asst. Atty. Gen., Lansing, Mich., for appellee.
Before WEICK, Chief Judge, and MILLER and CECIL, Senior Circuit Judges.
Wilbur K. Miller, Senior Circuit Judge for the District of Columbia, sitting by designation.
PER CURIAM.
This is an appeal from an order of the United States District Court for the Western District of Michigan, dismissing the petition of Ralph Gordon Bishop, plaintiff-appellant, for a writ of habeas corpus. The district judge dismissed the petition upon two grounds: one, the appellant had not exhausted his state remedies and, two, he was not then confined within the limits of the Western District of Michigan. Since the district judge dismissed the petition1 without an evidentiary hearing, the question before us is whether the petition states a cause of action.
A brief statement of facts as alleged in the petition will serve to bring the issues into focus. On or about October 8, 1953, the appellant was arrested and a complaint and warrant were issued in the United States District Court for the Eastern District of Michigan charging him with uttering threats against the President of the United States. On December 9, 1953, the Court ordered the appellant to be committed to the Federal Medical Center at Springfield, Missouri, for observation. On or about June 9, 1954, the District Court for the Western District of Missouri released the appellant on a writ of habeas corpus and ordered him returned to the District Court at Detroit, Michigan. On October 18, 1954, a judge of that Court entered an order conditionally releasing jurisdiction, of the appellant to the Probate Court of Wayne County, Michigan. The Probate Court was to determine the sanity or insanity of the appellant. If found insane the District Court released jurisdiction provided appellant was committed as an insane person in accordance with the statutes (presumably of Michigan). If found to be sane he was to be returned to the District Court for further proceedings.
As a result of proceedings in the Probate Court in January 1955, the appellant was found to be mentally ill and was committed to the Ypsilanti State Hospital as a state charge. About two years later the Department of Mental Health of the State of Michigan transferred the appellant to the Ionia State Hospital for the ■Criminal Insane. This hospital, where the appellant was confined at the time he filed his petition in this case, is within the territorial limits of the Western District of Michigan.
On September 22, 1965, the district judge dismissed the appellant’s petition on the ground that he had not exhausted his state remedies as required by Section .'2254, Title 28, U.S.C. Under date of April 22, 1966, in a supplemental opinion, the district judge recited that the appellant had been transferred on April 1, 1966, to the Ypsilanti State Hospital, at Ypsilanti, Michigan, which was in the Eastern District of Michigan. He thereupon ruled that the petition for writ of ■habeas corpus should be filed in the East■ern District of Michigan.
We conclude that this latter ruling of the court is in error. The District Court for the Western District of Michigan, having jurisdiction of the action at the time the petition was filed, did not lose jurisdiction when the appellant was subsequently transferred to the Ypsilanti State Hospital in the Eastern District of Michigan. Ex Parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243; United States ex rel. Circella v. Sahli, 216 F.2d 33 (C.A. 7), cert. den. 348 U.S. 964, 75 S.Ct. 525, 99 L.Ed. 752. The motion of the appellee to dismiss is denied.
It is claimed on behalf of the appellant that the district judge for the Eastern District of Michigan was without authority to relinquish jurisdiction of him and ■order him transferred to the Probate Court of Wayne County, Michigan, and "that all of said proceedings are of no legal force or effect. It is further claimed that the appellant is entitled to a hearing under Section 4244, Title 18, U.S.C. to determine his competency for trial.
Section 4244, Title 18, U.S.C., provides that when a district judge has reasonable cause to believe that a person charged with an offense is presently insane or so mentally incompetent that he is unable to understand the proceedings against him or to properly assist in his defense, he may on his own motion cause the accused to be examined as to his mental condition by at least one psychiatrist. For this purpose the judge may order the accused committed to a suitable hospital. This statute further provides that if the report of the psychiatrist indicates a present state of insanity or mental incompetency of the accused the court shall hold a hearing and make a finding with respect to the mental condition of the accused. Under Section 4246, Title 18, U.S.C., if the court finds that the accused is mentally incompetent it may commit the accused to the custody of the Attorney General or his authorized representative.
None of the provisions of these statutes were followed in the release of the appellant to the Probate Court of Wayne County. He was not committed to a hospital, no report was returned, no hearing had, and no commitment to the custody of the Attorney General on a basis of mental incompetency.
It is alleged in the petition that the court released jurisdiction of the appellant on condition that if he be found insane the Probate Court would commit him as an insane person in accordance with the statutes. This condition was met and the appellant was found to be mentally ill and committed to the State Hospital at Ypsilanti, Michigan. We conclude from these facts that the district judge, in reality, released the jurisdiction of the court over the appellant and turned him over to state authorities. We know of nothing that would prevent the District Court from so releasing its jurisdiction over the appellant. It is not unusual for state authorities to turn arrested persons over to federal authorities for prosecution or for federal authorities to turn arrested persons over to state authorities. The appellant has now been in state custody as a state charge for more than twelve years and his remedy is to exhaust the procedures provided by the state of Michigan. Sections 27A.4307, C. L.1948, § 600.4307 [P.A.1961, No. 236] and 14.829, M.S.A., C.L.1948, § 330.39 [P.A.1949, No. 313].
The petition does not state a cause of action and the judgment of the District Court is affirmed.
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:
|
songer_typeiss
|
D
|
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.
CONSUMERS PETROLEUM CO., Plaintiff-Appellant, v. TEXACO, INC., a Delaware Corporation, Defendant-Appellee.
No. 84-1657.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 14, 1985.
Decided Oct. 28, 1986.
Robert B. Weiss, Norman C. Ankers (argued), Brian C. Figot, Honigman, Miller, Schwartz & Cohn, Detroit, Mich., for plaintiff-appellant.
J. Walker Henry (lead counsel), Clark, Klein & Beaumont, Detroit, Mich., Randall B. Robinson (lead counsel, argued), Robert E. Fuller, Texaco Inc-Legal Dept., White Plains, N.Y., for defendant-appellee.
Before JONES, Circuit Judge, and PECK and CONTIE, Senior Circuit Judges.
The Honorable Leroy J. Contie became Senior Circuit Judge July 1, 1986.
NATHANIEL R. JONES, Circuit Judge.
Plaintiff Consumers Petroleum Company appeals from a summary judgment dismissing this action alleging a violation of the Petroleum Marketing Practices Act (PMPA), 15 U.S.C. § 2801 et seq. (1982), and pendent state law claims. The district court held that the PMPA claim was barred by the Act’s one-year statute of limitations and that the pendent state law claims were pre-empted by the Act. It also denied Consumers’ motion for leave to amend its complaint. We affirm the judgment as to the first two holdings and reverse and remand as to the latter.
Consumers is a commerical Michigan-based corporation which markets and distributes petroleum products in the greater Detroit, Michigan metropolitan area. The first contractual agreement between Consumers and defendant Texaco, Inc., dated back to 1954, when Consumers became a franchised distributor of Texaco branded petroleum products. The parties entered into a number of separate distributorship contracts over the course of twenty-eight years. They entered into one such contract that became effective May 1, 1976 and expired by its expressed terms on April 30, 1981.
The facts in the following paragraph are as alleged by Consumers. Sometime in early 1977, and during the course of the five-year agreement, which became effective May 1, 1976, a rumor was circulating that Texaco planned to withdraw from marketing its petroleum products in Michigan. In July 1977, Consumers was contacted by another supplier of petroleum products interested in entering into a distributorship agreement with Consumers. Later that month, Consumers’ President, William Feldman, met with W.M. Fisher, Vice-President of Marketing for Texaco, in New York, to inquire about Texaco’s plans to withdraw from marketing its gasoline in the Michigan region. Feldman advised Fisher of Consumers’ opportunity to obtain a distributorship contract with a competing supplier. Fisher responded that “Michigan was an integral part of Texaco’s marketing area and that Texaco would never withdraw from the Michigan market.” As a result of that representation, Consumers refrained from accepting the other offer, or from pursuing other distributorship opportunities. Consumers learned later that Fisher had instructed his staff some months prior to the meeting in New York to undertake an extensive analysis of the Detroit market. Fisher was presented with the finding of the report, entitled “Detroit Resale Market Analysis,” in January 1977. The report concluded that withdrawal from the Detroit marketing area was a “viable option.”
Texaco announced publicly in March 1979 its plan to withdraw from marketing its petroleum products in Michigan. A few days prior to the public announcement, Texaco advised Consumers of the impending withdrawal. On October 14,1980, Texaco informed Consumers by written notice that it would not renew the five-year distributorship contract scheduled to expire on April 30, 1981. Prior to the expiration of the five-year agreement, the parties entered into a one-year “interim franchise” agreement effective on May 1, 1981, the day following expiration of the prior agreement, and expiring on April 30, 1982. On July 17, 1981, Texaco notified Consumers by written notice that the interim franchise would not be renewed on its expiration date.
Consumers filed its complaint in this case on April 20, 1983. In its complaint, Consumers alleged that Texaco knew at the time the two parties’ principals met in New York that Texaco had intentions to withdraw from marketing Texaco’s gasoline in Michigan. It further alleged that it relied on the misrepresentations and as a result lost the opportunity to enter alternative distributorship agreements with other suppliers. The claims were based on violations of the PMPA and Michigan state law. Texaco moved for summary judgment on the basis that the PMPA claim was barred by the Act’s one-year statute of limitations in 15 U.S.C. § 2805(a) (1982), and that the pendent state law claims were pre-empted. The district court held that the five-year agreement and the interim franchise were separate franchise relationships under the Act, which provides that the action accrues on the date of “nonrenewal or termination of the franchise or the franchise relationship.” Since Consumers’ complaint was not filed until almost two years after the nonrenewal of the five-year agreement, the district court concluded that the PMPA claim was time barred. The district court also held that the state law claims were preempted.
The district court’s order granting Texaco’s summary judgment motion was entered on June 29, 1984. On July 9, 1984, Consumers filed a motion for reconsideration or in the alternative for leave to amend. Consumers sought leave to amend the complaint to raise a claim that the one-year interim franchise was nonrenewed in violation of the PMPA. After an oral argument on August 29, 1984, the district court denied the motion.
I.
The provision of the PMPA embodying the statute of limitations applicable to an action brought under the Act provides in relevant part:
If a franchisor fails to comply with the requirements of section 2802 or 2803 of this title, the franchisee may maintain a civil action against such franchisor. Such action may be brought, without regard to the amount in controversy, in the district court of the United States in any judicial district in which the principal place of business of such franchisor is located or in which such franchisee is doing business, except that no such action may be maintained unless commenced within 1 year after the later of—
(1) the date of termination of the franchise or non-renewal of the franchise relationship____
15 U.S.C. § 2805(a) (emphasis added).
Whether the statute of limitations began to run on the expiration date of the five-year agreement turns on the meaning of the terms “franchise” and “franchise relationship.” Consumers contends that the five-year franchise contract and the one-year “interim franchise” form one ongoing relationship thus constituting a franchise relationship within the meaning of the PMPA. Under this theory, the limitation period would not commence until April 30, 1982, when the “interim franchise” expired. If this theory were adopted, Consumers’ PMPA claim would not be time barred.
We have found no cases directly deciding this issue, nor have the parties cited to any. Consumers rests its argument primarily on the legislative history and the remedial purposes underlying the PMPA to support its interpretation. The legislative history recited by Consumers does indicate that a franchise relationship as utilized in the PMPA is broadly defined and that the renewal provisions of the PMPA address the renewal of the relationship. See S.Rep. No. 731, 95th Cong., 2d Sess. 15, reprinted in 1978 U.S. Code Cong. & Ad. News 873, 888. Consumers also posits that the remedial purposes underlying the PMPA to protect franchisees from the abuses perpetrated by franchisors in the area of terminations and nonrenewals would be thwarted if Texaco were permitted to escape liability by separating the agreements so as not to form one relationship. We need not, however, resort to the legislative history or consider the remedial purposes of the Act, for the Act itself dictates that an interim franchise has a wholly separate franchise relationship from the prior franchise.
The term “franchise” is defined in 15 U.S.C. § 2801 as “any contract ... between a distributor and a retailer.” Interim franchise is defined as “any franchise ... the term of which, when combined with the terms of all prior interim franchises ... does not exceed 3 years; ... the effective date of which occurs immediately after the expiration date of the prior franchise ... which is in writing and states clearly and conspicuously — that the franchise is an interim franchise ...” 15 U.S.C. § 2803(b)(3). An interim franchise is, therefore, a franchise entered under a separate contract and independent of the prior franchise.
Franchise relationship is defined in 15 U.S.C. § 2801(2). That provision states:
The term “franchise relationship ” means the respective motor fuel marketing or distribution obligations and responsibilities of a franchisor and a franchisee which result from the marketing of motor fuel under a franchise. [Emphasis added.]
A franchise relationship is nothing more than the distribution obligations and responsibilities resulting from a particular franchise. As an interim franchise is a separate franchise from the previously expired franchise, the terms of the agreement, by definition, relate to different distribution obligations and responsibilities between the franchisor and franchisee and thus form a separate franchise relationship.
This conclusion finds support elsewhere in the PMPA. Section 2803(a) provides that no provision in section 2802 regarding franchise relationships shall apply to “the non-renewal of any franchise relationship— under an interim franchise.” Accordingly, section 2803(c) reads “any franchisor may fail to renew any franchise relationship— under any interim franchise” subject to certain conditions. The sections do not read “any franchise relationship of which an interim franchise is a part.” The word “under,” therefore, expresses a congressional intent that an interim franchise has its own special franchise relationship, independent of the prior franchise.
Contrary to Consumers’ position, the legislative history of the Act does not contradict the expressed provisions in the Act. Congress has stated as follows with respect to the term franchise relationship:
In connection with the non-renewal provisions of the title, the term “franchise relationship” is utilized. The term is defined to cover the broad relationship which exists between a franchisor and a franchisee by reason of the franchise agreement. The term is utilized for two reasons. First, in the renewal context, the contract which constitutes the franchise may no longer exist and the term “franchise relationship” is utilized to avoid any contention that because the “franchise” does not exist there is nothing to renew. The renewal provisions of the title- address the renewal of the relationship between the parties rather than the specific rights or obligations of the parties under the franchise agreement. Second, because the title contemplates changes in the specific provisions of the franchise agreement at the time of renewal, the title requires renewal of the relationship between the parties as distinguished from a continuation or extension of the specific provisions of the franchise agreement. Use of the narrower term “franchise” in this context could raise unintended questions regarding the ability of the franchisor to comply with the renewal obligations of the title by offering a franchise agreement which differs in any particular from the expiring franchise.
S.Rep. No. 731, 95th Cong., 2d Sess. 15, reprinted in 1978 U.S. Code Cong. & Ad. News 873, 888 (emphasis added).
The broad relationship Congress is speaking of includes those transactions between the parties after the original franchise has expired only to the extent the franchisor can not rely on loopholes in the Act to avoid the requirements of the nonrenewal provisions. Two situations seem to be covered by the term franchise relationship: 1) where the franchise agreement has expired and the parties continue to operate in a de facto franchisor-franchise relationship; and 2) where the original franchise ends and the franchisor offers a franchise agreement with terms different from the expiring franchise. Both these situations contemplate that the term franchise could be construed in a way that a franchisor could evade statutorily mandated requirements. An interim franchise, on the other hand, fits into neither of these categories; rather it was created by Congress with an independent life subject to a separate set of rules with respect to terminations and non-renewals.
The only case cited by Consumers that offers an interpretation of franchise relationship in the PMPA is Wisser Co. v. Texaco, Inc., 529 F.Supp. 727 (S.D.N.Y. 1981). In that case, the distributor entered into a series of separate agreements with Texaco over the course of twelve years. Each agreement was renewed to become effective immediately upon expiration of the prior agreement. The district court held that the frequent and temporary renewals constituted one longstanding franchise relationship subject to the nonrenewal provisions of the PMPA. Wisser, however, involved a different situation from this case. The parties never entered into a statutory interim franchise. In fact, the district court in Wisser noted that the PMPA created interim franchises as an exception to the non-renewal provisions of the PMPA, implying that the franchise relationship at issue in the case and an interim franchise are separate and distinct. See id. at 732.
Consumers raises a policy concern with our definition of franchise relationship. Such a definition, it argues, may force a distributor to sue a supplier while their business relationship has not terminated and there is still a reasonable prospect that it may continue in the future. That concern is not, however, a legitimate one. An interim franchise is not created until after the franchisor has already made a determination to withdraw from marketing its product in the region. 15 U.S.C. §§ 2803(b)(3)(C) & 2802(b)(2)(E). At that time, the distributor should have no reasonable expectation that the relationship will continue after the prior franchise has not been renewed and the interim franchise expires. Congress obviously intended that the interim franchise would serve only as a vehicle to facilitate the orderly withdrawal from the market, which incidentally benefits the franchisee by giving it time to locate an alternative supplier. Congress did not intend for the benefits accruing to the franchisee to be transposed into burdens to the franchisor by giving the franchisee enforceable rights arising from the prior franchise. The statute thus defines an interim franchise as having a relationship apart from the prior franchise and we decline to extend the meaning.
In this case, the nonrenewal of the franchise relationship under the five-year agreement occurred on April 30, 1981. Consumers did not file its suit challenging that nonrenewal until almost two years later on April 20, 1983. Given that this time exceeded the one-year period allowable under the PMPA for bringing a claim, the district court correctly held that the claim was time barred.
II.
Consumers contends next that the district court abused its discretion in denying Consumers’ request for a leave to amend its complaint to assert a violation of the one-year agreement. The motion for leave to amend was not filed until after the district court had ruled on Texaco’s summary judgment motion. The district court denied the motion after concluding that there was no viable claim under the PMPA that Consumers could pursue with respect to the nonrenewal of the one-year interim franchise.
Rule 15(a) of the Federal Rules of Civil Procedure requires that leave to amend “shall be freely given when justice so requires.” The district court also abuses its discretion in not granting leave to amend unless there is some apparent or declared reason not to allow the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Marx v. Centran Corp., 747 F.2d 1536, 1550 (6th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2656, 86 L.Ed.2d 273 (1985). Such reasons may include undue delay, bad faith or dilatory motives by the movant, undue prejudice to the opposing party by allowing the amendment, or futility of amendment. 371 U.S. at 182, 83 S.Ct. at 230. In this case, the district court addressed the merits of the claims, so the basis for the denial of Consumers’ motion shall be construed as “futility of amendment.”
Consumers advanced two reasons in support of its motion. The first reason was that Texaco had violated the PMPA by failing to renew the statutorily defined one-year interim franchise. The district court was correct in denying the motion for that reason. One of the preconditions for non-renewing a franchise is as follows:
(E) In the case of any franchise entered into prior to June 19, 1978, and in the case of any franchise entered into or renewed on or after such date (the term of which is 3 years or longer, or with respect to which the the franchisee was offered a term of 3 years or longer), a determination made by the franchisor in good faith and in the normal course of business to withdraw from the marketing of motor fuel through retail outlets in the relevant geographic market area in which the marketing premises are located, if—
(1) such determination—
(I) was made after the date such franchise was entered into or renewed, and
(II) was based upon the occurrence of changes in relevant facts and circumstances after such date
15 U.S.C. § 2802(b)(2)(E)(i)(I) & (II) (emphasis added).
Section 2802(b)(2)(E)(i) does not apply, however, when a franchisor makes a determination not to renew an interim franchise. See id. § 2803(b) (3)(D)(iii) & 2803(c). Since the basis for Consumers’ argument was that Texaco’s decision to withdraw was based on the occurrence of relevant facts after the interim agreement was entered, allowing an amendment on that basis would have been futile.
Consumers, however, advanced a second reason before the district court in support of its motion. The argument was not that the nonrenewal of the interim franchise violated the PMPA; rather, it was that the interim franchise was invalid so as not to constitute a separate franchise relationship under the PMPA. Consumers asserts that the invalidity of the interim franchise renders the five-year agreement and the one-year agreement as one ongoing and continuous franchise relationship.
Under section 2803(b)(3)(C), an interim franchise becomes effective only if the non-renewal of the prior franchise was based upon a determination described in section 2802(b)(2)(E) above. An interim franchise, therefore, only becomes effective if the decision to withdraw from the market under the prior franchise was made in good faith and in the normal course of business and based upon changes in relevant facts and circumstances after the date the prior franchise commenced. Consumers argues that there is a triable issue as to whether the decision not to renew the five-year agreement was made in accordance with the above requirements. The problem with the district court’s treatment of this argument is that the district court gave no reasons for rejecting it. The district court merely stated that it would take additional time to consider “[plaintiff’s arguments that 2803(b) and (c) invalidated the interim franchise into which the party entered.” The district court never, however, discussed the merits of this argument before denying Consumers’ motion.
We find this to be an abuse of discretion under Foman. Unless the reason was apparent, the district court must justify its denial of the motion. 371 U.S. at 182, 83 S.Ct. at 230. Simply responding to one of the arguments is not sufficient justification. Since the district court addressed the merits of the motion, we can not assume that the apparent reasons were undue delay or prejudice. It is also not apparent that allowing an amendment on the second argument advanced would have been futile. We can not conclude from reviewing the record that Consumers could not have developed facts to support its assertion that Texaco’s decision not to renew the five-year agreement was made in accordance with the requirements of section 2802(b)(2)(E) to create an interim franchise. Our discussion in Part I that a prior franchise and an interim franchise form two separate franchise relationships only applies if the interim franchise is valid. Without a valid interim franchise, any transactions occurring between the franchisor and franchisee following expiration of the prior agreement are part of the same relationship. If Consumers can prove that the interim franchise was invalid, the statute of limitations would not have begun to run on the PMPA claim until the one-year agreement expired on August 30, 1982. For those reasons, an amendment would not have been futile. The district court’s denial of Consumers’ motion for leave to amend is, therefore, reversed.
III.
Finally, Consumers contends that the district court erred in holding that its state law claims of misrepresentation and fraud were pre-empted by the PMPA. Consumers argued before the trial court that Fisher knew when he responded to Feldman’s question regarding Texaco’s possible withdrawal from the Michigan market that Texaco had already decided and prepared clandestinely to withdraw. Such a knowing misrepresentation, it argues, deprived Consumers of other distributorship opportunities. Fisher allegedly made this misrepresentation in July 1977, almost four years before the five-year agreement was scheduled to expire. The district court construed the effect of the claims as requiring Texaco to give a two to three year notice of its intention not to renew the five-year franchise agreement in contravention of the notice provisions of the PMPA. See 15 U.S.C. § 2804(b)(2)(A) (notice required not less than 180 days prior to termination or nonrenewal).
A federal statute regulating a specific area may preempt, in two ways, any state law purporting to regulate that same area. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984) (citing Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1721-22, 75 L.Ed.2d 752 (1983)). See also Kelly v. Carr, 691 F.2d 800, 804 n. 9 (6th Cir.1980). Any state regulation or law regulating or impacting in a field that Congress intended to be superceded by the federal regulation is preempted. Fidelity Federal Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). In those areas which Congress has not completely regulated, state law is still pre-empted if it conflicts with federal law, id., or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).
Unlike many federal regulations where congressional intent must be implied, Congress has expressed its intent as to the reach of the pre-emption doctrine in the PMPA. Section 2806(a) of the PMPA provides:
To the extent that any provision of this subchapter applies to the termination (or the furnishing of notification with respect thereto) of any franchise, or to the nonrenewal (or the furnishing of notification with respect thereto) of any franchise relationship, no State or any political subdivision thereof may adopt, enforce, or continue in effect any provision of any law or regulation (including any remedy or penalty applicable to any violation thereof) with respect to termination (or the furnishing of notification with respect thereto) of any such franchise relationship unless such provision of such law or regulation is the same as the applicable provision of this subchapter.
15 U.S.C. § 2806(a).
The PMPA does not preempt every state law that relates remotely to the termination or nonrenewal of petroleum franchises; but it does preempt any state law with respect to “grounds for, procedures for, and notification requirements” with respect to terminations and nonrenewals. Bellmore v. Mobil Oil Corp., 783 F.2d 300, 304 (2d Cir.1986). Section 2806(a) also expressly preempts any state law providing remedies or penalties for any violations of the notice provisions of the Act. Congress provided that the purpose underlying the Act was to create a “uniform set of rules governing the grounds for termination and non-renewal of motor fuel marketing franchises and the notice which franchisors must provide franchisees” prior to termination or nonrenewal. S.Rep. No. 731, 95th Cong., 2d Sess. 15, reprinted in 1978 U.S.Code Cong. & Ad.News 873, 877. Uniformity would thus be compromised if a claim under state law which substantially impacts or varies the nonrenewal or notice provisions of the PMPA is actionable.
On its face, a claim for misrepresentation or fraud does not appear to relate to the nonrenewal or notice requirements of the Act. In our view, however, the claim as it arises in this case has the direct effect of seeking to impose a longer notice requirement upon Texaco than that required under the PMPA. No matter how the claim is characterized, Consumers is really contending that Fisher should have given it notice in response to its inquiry that Texaco planned to withdraw from the Michigan market and planned not to renew the five-year franchise agreement three years in the future. This is not a situation where the impact of state law has a tangential or speculative effect on the 180 day notice requirement. If we were to hold that the state law claims could proceed, the impact of the misrepresentation or fraud claims would produce a result in complete variance with what the notice provision of the Act requires. A franchisee is presumed to be aware of the notice requirements at the time it signs a franchise agreement. Congress has, therefore, placed a responsibility on the franchisee to be prepared for notice of an impending termination or nonrenewal that could come as late as 180 days before the agreement expires. Even assuming Consumers’ version of the Fisher-Feldman meeting to be true, Congress did not intend for franchisors to be compelled to reveal any contemplated or completed plans for termination or nonrenewal prior to the notification limits, mandated under the PMPA. Furthermore, even if the claims were somehow actionable, they would be governed exclusively by the PMPA, which provides remedies for disputes relating to the termination or nonrenewal of franchises.
Other courts addressing the preemption issue with respect to the PMPA lend support to our conclusion. In Huth v. B.P. Oil, Inc., 555 F.Supp. 191 (D.Md.1983), the franchisor brought a state law claim for fraud and breach of contract relating to the termination of its franchise. The defendant argued that the claim was no more than a suit for wrongful termination governed by the PMPA. The district court held that the state law claims were preempted because Maryland’s three-year statute of limitations applicable to the state claims was inconsistent with the one-year limitations period in the PMPA.
Consumers relies on a recent Second Circuit decision to support its position, but that case does not detract from our conclusion. In Bellmore v. Mobil Oil Corp., 783 F.2d at 306, the court held that a Connecticut statute dealing with the compensation to be paid by a franchisor to the franchisee for the goodwill of the franchise upon termination or nonrenewal was not preempted by the Act. The state regulation provided that the franchisor was required to compensate a franchisee for the goodwill of the franchise if the franchisor failed to give one-year notice of nonrenewal of the franchise. The court determined that the payment of goodwill was merely a means to provide compensation upon termination or nonrenewal, which is not prohibited by the PMPA. Although the state statute used a one-year notice requirement to invoke the goodwill provision, the court held that the “one-year good will provision is much too tenuous, speculative, and uncertain” to frustrate the purposes of the notice requirements of the Act.
Contrary to the Connecticut goodwill statute, Consumers’ state law claims have the effect of frustrating the purpose of the notice requirements imposed by Congress. We conclude, therefore, that Consumers’ pendent state law claims are preempted by the PMPA. Because of our holding, we need not consider the district court’s alternative ruling that Consumers’ state law claims were not actionable under the state law of Michigan.
The district court’s summary judgment is, therefore, AFFIRMED and the order denying Consumers’ motion to amend is REVERSED and REMANDED for proceedings consistent with this opinion.
. Consumers attempted to argue before the district court that its complaint also asserted a violation of the one-year agreement. But the only reference in the complaint to any agreement is the agreement entered into on May 1976, which was the effective date of the five- year agreement. We cannot, therefore, construe the complaint as also raising a claim under the one-year agreement.
. There is one other consideration for the district court on remand. At the time Consumers requested leave to amend, the one-year limitations period had expired to bring a claim under the one-year agreement. The district court should determine whether the new claims relate back to the original complaint pursuant to Rule 15(c) of the Federal Rules of Civil Procedure.
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_jurisdiction
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
JEFFERSON et al. v. HACKNEY, COMMISSIONER OF PUBLIC WELFARE, et al.
No. 70-5064.
Argued February 22, 1972
Decided May 30, 1972
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Stewart, J., filed a statement joining in Part III of the Court’s opinion, -post, p. 551. Douglas, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 551. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, and in Part I of which Stewart, J., joined, post, p. 558.
Steven J. Cole argued the cause for appellants. With him on the briefs were Henry A. Freedman, Ed J. Polk, Edward V. Sparer, and Carl Rachlin.
Pat Bailey, Assistant Attorney General of Texas, argued the cause for appellees. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis, Assistant Attorney General.
Evelle J. Younger, Attorney General, and Elizabeth Palmer and Jerold A. Prod, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance.
Solicitor General Griswold, by invitation of the Court, filed a memorandum for the United States as amicus curiae.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Appellants in this case challenge certain computation procedures that the State of Texas uses in its federally assisted welfare program. Believing that neither the Constitution nor the federal welfare statute prohibits the State from adopting these policies, we affirm the judgment of the three-judge court below upholding the state procedures.
I
Appellants are Texas recipients of Aid to Families With Dependent Children (AFDC). They brought two class actions, which were consolidated in the United States District Court for the Northern District of Texas, seeking in-junctive and declaratory relief against state welfare officials. A three-judge court was convened pursuant to 28 U. S. C. § 2281.
The Texas State Constitution provides a ceiling on the amount the State can spend on welfare assistance grants. In order to allocate this fixed pool of welfare money among the numerous individuals with acknowledged need, the State has adopted a system of percentage grants. Under this system, the State first computes the monetary needs of individuals eligible for relief under each of the federally aided categorical assistance programs. Then, since the constitutional ceiling on welfare is insufficient to bring each recipient up to this full standard of need, the State applies a percentage reduction factor in order to arrive at a reduced standard of need in each category that the State can guarantee.
Appellants challenge the constitutionality of applying a lower percentage reduction factor to AFDC than to the other categorical assistance programs. They claim a violation of equal protection because the proportion of AFDC recipients who are black or Mexican-American is higher than the proportion of the aged, blind, or disabled welfare recipients who fall within these minority groups. Appellants claim that the distinction between the programs is not rationally related to the purposes of the Social Security Act, and violates the Fourteenth Amendment for that reason as well. In their original complaint, appellants also argued that any percentage-reduction system violated § 402 (a) (23) of the Social Security Act of 1935, as amended, 81 Stat. 898, 42 U. S. C. § 602 (a) (23), which required each State to make certain cost-of-living adjustments to its standard of need.
The three-judge court rejected appellants’ constitutional arguments, finding that the Texas system is neither racially discriminatory nor unconstitutionally arbitrary. The court did, however, accept the statutory claim that Texas’ percentage reductions in the AFDC program violate the congressional command of §402 (a) (23). 304 F. Supp. 1332 (ND Tex. 1969).
Subsequent to that judgment, this Court decided Rosado v. Wyman, 397 U. S. 397 (1970). Rosado held that, although § 402 (a) (23) required States to make cost-of-living adjustments in their standard-of-need calculations, it did not prohibit use of percentage-reduction systems that limited the amount of welfare assistance actually paid. 397 U. S., at 413. This Court then vacated and remanded the first Jefferson judgment for further proceedings consistent with Rosado. 397 U. S. 821 (1970).
On remand, the District Court entered a new judgment, denying all relief. Then, in a motion to amend the judgment, appellants raised a new statutory claim. They argued for the first time that although a percentage-reduction system may be consistent with the statute, the specific procedures that Texas uses for computing that reduction violate the congressional enactment. The District Court rejected this argument and denied without opinion appellants’ motion to amend the judgment. This appeal under 28 U. S. C. § 1253 then followed, and we noted probable jurisdiction. 404 U. S. 820 (1971).
II
Appellants’ statutory argument relates to the method that the State uses to compute the percentage reduction when the recipient also has some outside income. Texas, like many other States, first applies the percentage-reduction factor to the recipient’s standard of need, thus arriving at a reduced standard of need that the State can guarantee for each recipient within the present budgetary restraints. After computing this reduced standard of need, the State then subtracts any nonexempt income in order to arrive at the level of benefits that the recipient needs in order to reach his reduced standard of need. This is the amount of welfare the recipient is given.
Under an alternative system used by other States, the order of computation is reversed. First, the outside income is subtracted from the standard of need, in order to determine the recipient’s “unmet need.” Then, the percentage-reduction factor is applied to the unmet need, in order to determine the welfare benefits payable.
The two systems of accounting for outside income yield different results. Under the Texas system all welfare recipients with the same needs have the same amount of money available each month, whether or not they have outside income. Since the outside income is applied dollar for dollar to the reduced standard of need, which the welfare department would otherwise pay in full, it does not result in a net improvement in the financial position of the recipient. Under the alternative system, on the other hand, any welfare recipient who also has outside income is in a better financial position because of it. The reason is that the percentage-reduction factor there is applied to the “unmet need,” after the income has been subtracted. Thus, in effect, the income-earning recipient is able to “keep” all his income, while he receives only a percentage of the remainder of his standard of need.
Each of the two systems has certain advantages. Appellants note that under the alternative system there is a financial incentive for welfare recipients to obtain outside income. The Texas computation method eliminates any such financial incentive, so long as the outside income remains less than the recipient’s reduced standard of need. However, since Texas’ pool of available welfare funds is fixed, any increase in benefits paid to the working poor would have to be offset by reductions elsewhere. Thus, if Texas were to switch to the alternative system of recognizing outside income, it would be forced to lower its percentage-reduction factor, in order to keep down its welfare budget. Lowering the percentage would result in less money for those who need the welfare benefits the most — those with no outside income — and the State has been unwilling to do this.
Striking the proper balance between these competing policy considerations is, of course, not the function of this Court. “There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.” King v. Smith, 392 U. S. 309, 318-319 (1968) (footnotes omitted). So long as the State’s actions are not in violation of any specific provision of the Constitution or the Social Security Act, appellants’ policy arguments must be addressed to a different forum.
Appellants assert, however, that the Texas computation procedures are contrary to § 402 (a) (23):
“(a) A State plan for aid and services to needy families with children must
“(23) provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.”
Recognizing that this statutory language, by its terms, hardly provides much support for their theory, appellants seek to rely on what they perceive to have been the broad congressional purpose in enacting the provision.
In Rosado v. Wyman, supra, the Court reviewed the history of this section and rejected the argument that it had worked any radical shift in the AFDC program. Id., at 414 and n. 17. AFDC has long been referred to as a “scheme of cooperative federalism,” King v. Smith, 392 U. S., at 316, and the Rosado Court dismissed as “adventuresome” any interpretation of § 402 (a) (23) that would deprive the States of their traditional discretion to set the levels of payments. 397 U. S., at 414-415 and n. 17. Instead, the statute was meant to require the States to make cost-of-living adjustments to their standards of need, thereby serving “two broad purposes”:
“First, to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second, to prod the States to apportion their payments on a more equitable basis,” Id., at 412-413.
Texas has complied with these two requirements. Effective May 1, 1969, the standard of need for AFDC recipients was raised 11% to reflect the rise in the cost of living, and the State shifted from a maximum-grant system to its present percentage-reduction system. In this way, the State has fairly recognized and exposed the precise level of unmet need, and by using a percentage-reduction system it has attempted to apportion the State’s limited benefits more equitably.
Although Texas has thus responded to the “two broad purposes” of §402 (a) (23), appellants argue that Congress also intended that statute to increase the total number of recipients of AFDC, so that more people would qualify for the subsidiary benefits that are dependent on receipt of AFDC cash assistance. The Texas computation procedures are thought objectionable since they do not increase the welfare rolls to quite the same extent as would the alternative method of recognizing outside income.
We do not agree that Congress intended § 402 (a) (23) to invalidate any state computation procedures that do not absolutely maximize individual eligibility for subsidiary benefits. The cost-of-living increase that Congress mandated would, of course, generally tend to increase eligibility, but there is nothing in the legislative history indicating that this was part of the statutory purpose. Indeed, at the same time Congress enacted § 402 (a) (23) it included another section designed to induce States to reduce the number of individuals eligible for the AFDC program. Thus, what little legislative history there is on the point, see Rosado v. Wyman, 397 U. S., at 409-412, tends to undercut appellants’ theory. See Lampton v. Bonin, 304 F. Supp. 1384, 1391-1392 (ED La. 1969) (Cassibry, J., dissenting). See generally Note, 58 Geo. L. J. 591 (1970).
Appellants also argue that the Texas system should be held invalid because the alternative computation method results in greater work incentives for welfare recipients. The history and purpose of the Social Security Act do indicate Congress’ desire to help those on welfare become self-sustaining. Indeed, Congress has specifically mandated certain work incentives in §402 (a)(8). There is no dispute here, however, about Texas’ compliance with these very detailed provisions for work incentives. Neither their inclusion in the Act nor the language used by Congress in other sections of the Act supports the inference that Congress mandated the States to change their income-computation procedures in other, completely unmentioned areas.
Nor are appellants aided by their reference to Social Security Act §402 (a) (10), 42 U. S. C. § 602 (a) (10), which provides that AFDC benefits must “be furnished with reasonable promptness to all eligible individuals.” That section was enacted at a time when persons whom the State had determined to be eligible for the payment of benefits were placed on waiting lists, because of the shortage of state funds. The statute. was intended to prevent the States from denying benefits, even temporarily, to a person who has been found fully qualified for aid. See H. R. Rep. No. 1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong. Rec. 13934 (remarks of Rep. Forand). Section 402 (a) (10) also prohibits a State from creating certain exceptions to standards specifically enunciated in the federal Act. See, e. g., Townsend v. Swank, 404 U. S. 282 (1971). It does not, however, enact by implication a generalized federal criterion to which States must adhere in their computation of standards of need, income, and benefits. Such an interpretation would be an intrusion into an area in which Congress has given the States broad discretion, and we cannot accept appellants’ invitation to change this longstanding statutory scheme simply for policy consideration reasons of which we are not the arbiter.
I — I h — I H-t
We turn, then, to appellants'" claim that the Texas system of percentage reductions violates the Fourteenth Amendment. Appellants believe that once the State has computed a standard of need for each recipient, it is arbitrary and discriminatory to provide only 75% of that standard to AFDC recipients, while paying 100% of recognized need to the aged, and 95% to the disabled and the blind. They argue that if the State adopts a percentage-reduction system, it must apply the same percentage to each of its welfare programs.
This claim was properly rejected by the court below. It is clear from the statutory framework that, although the four categories of public assistance found in the Social Security Act have certain common elements, the States were intended by Congress to keep their AFDC plans separate from plans under the other titles of the Act. A State is free to participate in one, several, or all of the categorical assistance programs, as it chooses. It is true that each of the programs is intended to assist the needy, but it does not follow that there is only one constitutionally permissible way for the State to approach this important goal.
This Court emphasized only recently, in Dandridge v. Williams, 397 U. S. 471, 485 (1970), that in “the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” A legislature may address a problem “one step at a time,” or even “select one phase of one field and apply a remedy there, neglecting the others.” Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955). So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional strait jacket. The very complexity of the problems suggests that there will be more than one constitutionally permissible method of solving them.
The standard of judicial review is not altered because of appellants’ unproved allegations of racial discrimination. The three-judge court found that the “payment by Texas of a lesser percentage of unmet needs to the recipients of the AFDC than to the recipients of other welfare programs is not the result of racial or ethnic prejudice and is not violative of the federal Civil Rights Act or the Equal Protection Clause of the 14th Amendment.” The District Court obviously gave careful consideration to this issue, and we are cited by its opinion to a number of subsidiary facts to support its principal finding quoted above. There has never been a reduction in the amount of money appropriated by the legislature to the AFDC program, and between 1943 and the date of the opinion below there had been five increases in the amount of money appropriated by the legislature for the program, two of them having occurred since 1959. The overall percentage increase in appropriation for the programs between 1943 and the time of the District Court’s hearing in this case was 410% for AFDC, as opposed to 211% for OAA and 200% for AB. The court further concluded:
“The depositions of Welfare officials conclusively establish that the defendants did not know the racial make-up of the various welfare assistance categories prior to or at the time when the orders here under attack were issued.”
Appellants in their brief in effect abandon any effort to show that these findings of fact were clearly erroneous, and we hold they were not.
Appellants are thus left with their naked statistical argument: that there is a larger percentage of Negroes and Mexican-Americans in AFDC than in the other programs, and that the AFDC is funded at 75% whereas the other programs are funded at 95% and 100% of recognized need. As the statistics cited in the footnote demonstrate, the number of minority members in all categories is substantial. The basic outlines of eligibility for the various categorical grants are established by Congress, not by the States; given the heterogeneity of the Nation’s population, it would be only an infrequent coincidence that the racial composition of each grant class was identical to that of the others. The acceptance of appellants’ constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be. Few legislative efforts to deal with the difficult problems posed by current welfare programs could survive such scrutiny, and we do not find it required by the Fourteenth Amendment.
Applying the traditional standard of review under that amendment, we cannot say that Texas’ decision to provide somewhat lower welfare benefits for AFDC recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it.
Similarly, we cannot accept the argument in Mr. Justice Marshall’s dissent that the Social Security Act itself requires equal percentages for each categorical assistance program. The dissent concedes that a State might simply refuse to participate in the AFDC program, while continuing to receive federal money for the other categorical programs. See post, at 577. Nevertheless, it is argued that Congress intended to prohibit any middle ground — once the State does participate in a program it must do so on the same basis as it participates in every other program. Such an all-or-nothing policy judgment may well be defensible, and the dissenters may be correct that nothing in the statute expressly rejects it. But neither does anything in the statute approve or require it.
In conclusion, we re-emphasize what the Court said in Dandridge v. Williams, 397 U. S., at 487:
“We do not decide today that the [state law] is wise, that it best fulfills the relevant social and economic objectives that [the State] might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. . . . [T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.”
Affirmed.
Mr. Justice Stewart joins in Part III of the Court’s opinion.
Mr. Justice Douglas, with whom Mr. Justice Brennan concurs, dissenting.
I would read the Act more generously than does the Court'. It is stipulated that 87% of those receiving AFDC aid are blacks or Chicanos. I would therefore read the Act -against the background of rank discrimination against the blacks and the Chicanos and in light of the fact that Chicanos in Texas fare even more poorly than the blacks. See L. Grebler, J. Moore, & R. Guzman, The Mexican-American People, pts. 2 and 3 (1970) ; J. Burma, Mexican-Americans in the United States 143-199 (1970); Schwartz, State Discrimination Against Mexican Aliens, 38 Geo. Wash. L. Rev. 1091 (1970); U. S. Commission on Civil Rights, The Mexican American (1968); U. S. Commission on Civil Rights, Mexican Americans and the Administration of Justice in the Southwest (1970). In Rosado v. Wyman, 397 U. S. 397, 413, we said that in administering such a program a State “may not obscure the actual standard of need.” Texas does precisely that by manipulating a mathematical formula.
In Rosado, we described how some States establish upper limits or máximums of aid, while others, like Texas, “curtail the payments of benefits by a system of 'ratable reductions’ whereby all recipients will receive a fixed percentage of the standard of need.” Id., at 409. Then in footnote 13 we described what that meant: “A 'ratable reduction’ represents a fixed percentage of the standard of need that will be paid to all recipients. In the event that there is some income that is first deducted, the ratable reduction is applied to the amount by which the individual or family income falls short of need.” Id., at 409 n. 13 (emphasis added).
If Texas first deducted outside income and then made its ratable reduction, the welfare recipient would receive a somewhat more generous payment, as the opinion of the Court illustrates in footnote 6 of its opinion. Not only does the Texas system avoid this generous approach, but it also impermissibly constricts the standard of need in conflict with Rosado, Dandridge v. Williams, 397 U. S. 471, and Townsend v. Swank, 404 U. S. 282. Under Texas’ method of computation, a family — otherwise eligible for AFDC benefits but with nonexempt income greater than the level of benefits and less than the standard of need — is denied both AFDC cash benefits and other noncash benefits such as medicaid. It seems inconceivable that Congress could have intended that noncash benefits be denied those with incomes less than the standard of need solely because that income was earned rather than from categorical assistance. Yet this is precisely the result sanctioned by the Court today because eligibility for these programs is tied to the receipt of cash benefits.
One of the stated purposes of the AFDC program is “to help such parents or relatives [of needy dependent children] to attain or retain capability for the maximum self-support and personal independence.” 42 U. S. C. § 601 (emphasis added). The Senate Finance Committee has stated, “A key element in any program for work and training for assistance recipients is an incentive for people to take employment.” S. Rep. No. 744, 90th Cong., 1st Sess., 157 (1967) (emphasis added). The majority acknowledges that “[t]he history and purpose of the Social Security Act . . . indicate Congress' desire to help those on welfare become self-sustaining.” Ante, at 544. But it nonetheless ignores the explicit congressional policy in favor of work incentives and upholds a system which provides penalties and disincentives for those who seek employment.
The California Supreme Court in Villa v. Hall, 6 Cal. 3d 227, 490 P. 2d 1148, struck down the system this Court approves today, where California used a statutory maximum of payments rather than a ratable reduction. The California Supreme Court quite properly said that what the State was attempting was inconsistent with Rosado. Moreover, it had an additional reason:
“The conclusion that the Social Security Act requires outside income to be subtracted from standards of need rather than from statutory máximums or ratable reductions is also founded on a strong public policy of encouraging welfare recipients to become constantly more self-supporting. Yet deducting income from statutory máximums makes gainful employment significantly less attractive to the recipient. This follows because all nonexempt income will be offset directly against the amount of the grant and not against the standard of need to determine actual need; for every nonexempt dollar earned, the amount of aid will therefore be decreased one dollar. Since the grant is always less than the standard of need, in many instances the system adopted by the Welfare Reform Act will result in an individual’s need not being met even after adding both exempt and nonexempt income to the AFDC payment. Such recipients will be forced to exist below the bare minimum necessary for adequate care, even though they have commenced, by obtaining employment, to break free from the debilitating ‘welfare syndrome.’ The practice thus conflicts with the stated federal policy to provide incentives to obtain and maintain an employment status.” Id., at 235-236, 490 P. 2d, at 1153-1154.
Moreover, Townsend v. Swank, 404 U. S. 282, calls for a reversal in the present case. It is conceded that plaintiff Maria T. Davilla and 2,470 other families are denied aid in Texas by reason of its new formula, see 304 F. Supp. 1332, 1343, despite the fact that their income is below the standard of need and that of those receiving AFDC aid only 75% of their needs is met.
Under § 402 (a) (10) of the Social Security Act (which governs AFDC) “aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.” 42 U. S. C. §602 (a) (10). In Townsend children 18 through 20 years of age who attended high school or vocational training were eligible for AFDC benefits but such children in college were not eligible. We held that “a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” 404 U. S., at 286.
What Texas does here is to exclude large numbers of AFDC beneficiaries by application of a state eligibility test that is narrower than the one we approved in Rosado. "While a State has some discretion in its use of federal funds, it may not manipulate by its own formula groups of “needy” claimants. The decision to participate or not in the federal program is left to the States. Townsend v. Swank, supra, at 290-291. When, as here, federal and state funds are in short supply, the problem is not to lop off some categories of those in “need” but to design a way of managing the system of “need” so as not to raise equal protection questions. Id., at 291.
Section 402 (a) (10) of the Social Security Act provides that AFDC shall be furnished with reasonable promptness to all eligible individuals. The House Report in commenting on it said:
“Shortage of funds in aid to dependent children has sometimes, as in old-age assistance, resulted in a decision not to take more applications or to keep eligible families on waiting lists until enough recipients could be removed from the assistance rolls to make a place for them. . . . [T]his difference in treatment accorded to eligible people results in undue hardship on needy persons and is inappropriate in a program financed from Federal funds.” H. R. Rep; No. 1300, 81st Cong., 1st Sess., 48 (1949).
As the Court said in Dandridge v. Williams, 397 U. S., at 481, “So long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated.” It is violated here because nearly 2,500 families that satisfy the requirements of “need” are denied any relief.
Mr. Justice Marshall, with whom Mr. Justice Brennan joins, and with whom Mr. Justice Stewart joins as to Part I only, dissenting.
Appellants, recipients of Aid to Families With Dependent Children (AFDC) in Texas, brought this action to challenge two distinct aspects of the Texas AFDC program. First, appellants challenge the manner in which Texas arrives at the amount it will pay to persons who are needy. Second, they urge that Texas acts illegally in providing more money for persons receiving aid under other social welfare legislation than for persons receiving AFDC aid. The Court rejects both claims. I dissent.
Before proceeding to explain why I disagree with the Court, I would like to illustrate what the disputes in this case are all about. If a State is unable or unwilling to establish a level of AFDC payments to meet all the needs of all recipients, federal law permits the State to use a percentage-reduction factor as a method of reducing payments in a somewhat equitable manner. Texas has adopted a system in which the percentage-reduction factor is applied against the standard of need before outside income is deducted. Appellants contend that federal law requires the State to deduct outside income before the percentage-reduction factor is applied. While describing the differences between the two alternatives is a Herculean task, the figures themselves are not difficult to comprehend. Footnote 6 of the Court’s opinion, for example, demonstrates that the Texas system provides less aid to a family with outside income than the alternative system. It is also immediately obvious that under the Texas system, as soon as the family’s income reaches $150, it no longer receives anything from the State, whereas under the alternative, a family earning the same $150 would continue to receive some state funds. Hence, the Texas method of computation contracts the class of families eligible to receive state aid. Appellants contend that the characteristics of the Texas system are inconsistent with federal legislation and that only the alternative system comports with the intent of Congress. I agree.
Appellants also claim that the percentage-reduction factor employed by Texas is illegal, irrespective of the method of computing payments, because it is lower than the factor used in other social welfare programs that have participants with identical standards of need. I also agree with appellants on this point, but for slightly different reasons from those they have urged.
I
A. In considering the question whether Texas’ method of computing eligibility for AFDC payments comports with the federal statute, 42 U. S. C. § 601 et seq., it is important to keep in mind the words of Mr. Justice Cardozo: “When [federal] money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states.” Helvering v. Davis, 301 U. S. 619, 645 (1937). Mr. Justice Harlan reiterated this point in Rosado v. Wyman, 397 U. S. 397, 422-423 (1970), when he stated that irrespective of the policies that a State might wish to pursue by utilizing AFDC money in one way or another, the ultimate question to be answered in each case is whether the action of the State comports with the requirements of federal law.
The Court concludes in the instant case that there is no general congressional policy violated by Texas’ choice between the alternative methods of applying a percentage-reduction factor to its determined standard of need, and also that no specific statutory provision prohibits Texas from choosing one alternative rather than the other. In concluding that the legislative history is inconclusive and that “what little legislative history there is on the point . . . tends to undercut appellants’ theory,” the Court has, in my opinion, taken only a superficial look into the history of the statute and has ignored the intent of Congress in various sections of the AFDC legislation as interpreted by this Court in prior cases.
B. I begin by considering the impact of § 402 (a) (23) of the Social Security Act of 1935, as amended, 81 Stat. 898, 42 U. S. C. § 602 (a) (23), on appellants’ argument. That section provides that
“(a) A State plan for aid and services to needy families with children must
“(23) provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.”
Consideration of this section must, of. course, begin with Rosado v. Wyman, supra, where we examined the derivation of this section in great detail.
The relevant facts in Rosado are concisely stated in 397 U. S., at 416. New York State had changed its AFDC program so that it no longer determined need on an individualized basis, but instead substituted a system fixing maximum family allowances based on the number of individuals per family. The result was a drastic reduction in overall payments. New York State welfare recipients brought the suit in Rosado, claiming that by changing its AFDC system from an individualized-grant program to a maximum-grant program, New York had violated § 402 (a) (23).
Despite our recognition that “[t]he background of § 402 (a) (23) reveals little except that we have before us a child born of the silent union of legislative compromise,” 397 U. S., at 412, we determined to discover what Congress had in mind in adding the section to the pre-existing AFDC legislation. We concluded that two general purposes could be ascribed to the section:
“First, to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second, to prod the States to apportion their payments on a more equitable basis.” 397 U. S., at 412-413.
These conclusions led us to reject the holding of the District Court, 304 F. Supp. 1354, 1377, that Congress intended to prevent any reduction whatever in AFDC payments, and to reject the argument of the welfare recipients that if payments could be reduced § 402 (a) (23) would be meaningless. We decided that “a State may, after recomputing its standard of need, pare down payments to accommodate budgetary realities by reducing the percent of benefits paid or switching to a percent reduction system, but it may not obscure the actual standard of need.” 397 U. S., at
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
WOELKE & ROMERO FRAMING, INC. v. NATIONAL LABOR RELATIONS BOARD et al.
No. 80-1798.
Argued March 3, 1982
Decided May 24, 1982
Marshall, J., delivered the opinion for a unanimous Court.
John W. Prager, Jr., argued the cause for petitioner in No. 80-1798. With him on the briefs was Dwight L. Armstrong.
Lems K. Scott argued the cause for petitioners in Nos. 80-1808 and 81-91. With him on the briefs for petitioner in No. 81-91 was David H. Wilson, Jr. Thomas M. Triplett filed briefs for petitioner in No. 80-1808.
Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Lee, Elinor Hadley Stillman, Linda Sher, and John H. Ferguson.
Laurence Gold argued the cause for respondent unions. With him on the brief were Abe F. Levy, Gordon K. Hubei, Richard R. Carney, Laurence J. Cohen, and George Kaufmann.
Together with No. 80-1808, Pacific Northwest Chapter of the Associated Builders & Contractors, Inc. v. National Labor Relations Board et al.; and No. 81-91, Oregon-Columbia Chapter, Associated General Contractors of America, Inc. v. National Labor Relations Board et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed by Kenneth C. McGuiness, Robert E. Williams, and Daniel R. Levinson for the Air Conditioning and Refrigeration Institute et al.; by Richard P. Markey for Associated Builders and Contractors; by Peter G. Nash for Associated General Contractors of America, Inc.; and by Vincent J. Apruzzese, Francis A. Mastro, Lawrence B. Kraus, and Stephen A. Bokat for the Chamber of Commerce of the United States of America.
Briefs of amici curiae were filed by Gerard C. Smetana for Donald Schriver, Inc., et al.; by Michael C. Murphy and Hugh M. Davenport for Georgia Power Co.; by Peter R. Spanos for the National Association of Home Builders; and by Rex H. Reed and Joseph J. Hahn for the National Right to Work Legal Defense Foundation.
Justice Marshall
delivered the opinion of the Court.
In these consolidated cases, petitioners ask us to decide whether union signatory subcontracting clauses that are sought or negotiated in the context of a collective-bargaining relationship are protected by the construction industry proviso to §8(e) of the National Labor Relations Act (Act), 29 U. S. C. § 158(e). Such clauses bar subcontracting except to subcontractors who are signatories to agreements with particular unions. Petitioners also ask us to decide whether a union violates § 8(b)(4)(A) of the Act, 29 U. S. C. § 158 (b)(4)(A), when it pickets to obtain a lawful subcontracting clause.
The United States Court of Appeals for the Ninth Circuit held that subcontracting clauses sought or negotiated in the context of a collective-bargaining relationship are protected by the construction industry proviso even when not limited in application to particular jobsites at which both union and nonunion workers are employed. It further held that picketing to obtain such clauses does not violate § 8(b)(4)(A). See 654 F. 2d 1301 (1981) (en banc). We affirm the holding that the subcontracting clauses at issue here are protected by the construction industry proviso. Because we conclude that the Court of Appeals did not have jurisdiction to consider the picketing question, we do not review that portion of its decision.
I
A
These cases arise out of two separate labor disputes. The first involves petitioner Woelke & Romero Framing, Inc. (Woelke), a framing subcontractor in the construction industry in southern California. From July 1974 to June 1977, Woelke was party to a collective-bargaining agreement with respondent United Brotherhood of Carpenters and Joiners of America (Carpenters). Shortly before this agreement was to expire, Woelke and Carpenters commenced bargaining for the purpose of negotiating a successor agreement. In August 1977, however, the parties reached an impasse over Carpenters’ demand for a union signatory subcontracting clause. This clause would have prohibited Woelke from subcontracting work at any construction jobsite “except to a person, firm or corporation, party to an appropriate, current labor agreement with the appropriate Union, or subordinate body signatory to this Agreement.” 1 App. 86.
In support of Carpenters’ demand for a subcontracting clause, two Carpenters locals picketed Woelke’s construction sites, causing some work stoppages. Woelke filed unfair labor practice charges with the National Labor Relations Board, asserting that the subcontracting clause violated § 8(e) of the Act, which proscribes secondary agreements between unions and employers — that is, agreements that require an employer to cease doing business with another party, in order to influence the labor relations of that party. Woelke argued that because the clause violated § 8(e), Carpenters’ picketing in support of that restriction violated § 8(b)(4)(A), 29 U. S. C. § 158(b)(4)(A).
The Board agreed that the union signatory subcontracting clauses at issue were secondary in thrust. It ruled, however, that they were saved by the construction industry proviso to §8(e), which exempts agreements between a union and employer concerning work to be performed at a construction jobsite. The Board rejected Woelke’s contention that subcontracting clauses are sheltered by the proviso only if they are limited in application to particular jobsites at which both union and nonunion workers are employed. According to the Board, such clauses are lawful whenever they are sought or negotiated “in the context of a collective bargaining relationship.” Carpenters Local No. 944 (Woelke & Romero Framing, Inc.), 239 N. L. R. B. 241, 250 (1978), citing Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616 (1975). The Board further indicated that since the subcontracting clauses were lawful, picketing to obtain a subcontracting proposal was permitted under § 8(b)(4)(A). Carpenters Local No. 944, supra, at 251.
B
The second dispute concerns a collective-bargaining agreement between petitioner Oregon-Columbia Chapter of the Associated General Contractors of America, Inc. (Oregon AGC), and respondent Local 701 of the International Union of Operating Engineers, AFL-CIO (Engineers). Oregon AGC is an association of approximately 200 construction industry employers in Oregon and southwest Washington. Since 1960, the contract between Oregon AGC and the Engineers has contained a subcontracting clause prohibiting Oregon AGC from subcontracting construction jobsite work to “any person, firm or company who does not have an existing labor agreement with the [Engineers] Union covering such work.” 2 App. 9-10; see id., at 12. In addition, the agreement authorized Engineers to take “such action as they deem necessary,” including strikes and other economic self-help, to enforce awards obtained through the grievance and arbitration process on matters covered by the agreement. Id., at 10.
In April 1977, petitioner Pacific Northwest Chapter of the Associated Builders and Contractors, Inc. (Pacific Northwest), a member of Oregon AGC, filed unfair labor practice charges, asserting that the contract between the Oregon AGC and the Engineers violated §8(e). Relying on the same reasoning employed in Carpenters Local No. 944, the Board held that the union signatory subcontracting clauses, standing alone, would be protected by the construction industry proviso. International Union of Operating Engineers, Local No. 701 (Pacific Northwest Chapter of Associated Builders & Contractors, Inc.), 239 N. L. R. B. 274, 277 (1978). With one member dissenting, however, it decided that the provision of the contract permitting the union to enforce the subcontracting clause was not protected by the proviso. Id., at 276.
C
Woelke, Oregon AGC, and Pacific Northwest all sought review of the Board’s orders in the Court of Appeals. The Ninth Circuit panel consolidated the cases and reversed the Board’s decisions. It reasoned that the proviso was designed solely to minimize friction between union and nonunion workers employed at the same jobsite. Thus, the proviso shelters subcontracting clauses “only where a collective bargaining relationship exists and even then only when the employer or his subcontractor has employees who are members of the signatory union at work at some time at the jobsite at which the employer wishes to engage a nonunion subcontractor.” 609 F. 2d 1341, 1347 (1979) (three-judge panel). Because it found that the clauses were unlawful, it did not reach the questions whether picketing or striking either to obtain or enforce a valid subcontracting clause was lawful. Id., at 1351.
At respondents’ request, the cases were reheard en banc. The en banc panel decided to enforce the Board’s orders in their entirety. 654 F. 2d 1301 (1981). The majority held that union signatory subcontracting clauses are protected so long as they are sought or negotiated in the context of a collective-bargaining relationship. Id,., at. 1322. It further held that economic pressure may be used to obtain a subcontracting agreement, but that it may not be employed to enforce a subcontracting agreement. Id., at 1323-1324.
Woelke, Oregon AGC, and Pacific Northwest asked this Court to review the conclusion that the subcontracting agreements sought by respondents are protected by the construction industry proviso. Woelke also asked this Court to decide whether unions violate § 8(b)(4)(A) when they picket to obtain lawful subcontracting clauses. We granted certiorari. 454 U. S. 814 (1981).
H
>
Section 8(e), which was added to the Act by the 1959 Landrum-Griffin Act, Pub. L. 86-257, 73 Stat. 543-544, 29 U. S. C. § 158(e), states:
“It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void.”
The union subcontracting clauses at issue here fall within the general prohibition of § 8(e); they require the general contractor to boycott the services of nonunion subcontractors in order to influence the labor relations policies of the subcontractor. The construction industry proviso to § 8(e) states, however, that
“nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work.”
Thus, the question we must answer here is whether the union signatory subcontracting clauses sought or obtained by respondent unions are protected by this proviso.
Read literally, the proviso would seem to shelter the subcontracting agreements — it expressly states that § 8(e) does not apply to agreements that limit the contracting of construction site work. In Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S., at 628, however, this Court warned that § 8(e) “must be interpreted in light of the statutory setting and the circumstances surrounding its enactment.” In that case, the Court decided that the proviso did not exempt subcontracting agreements that were not sought or obtained in the context of a collective-bargaining relationship, even though they were covered by the plain language of the statute. The Court reasoned that Congress did not intend to authorize such agreements.
The subcontracting clauses at issue here were sought or negotiated in the context of collective-bargaining relationships. Petitioners argue, however, that we should further confine the scope of the proviso. They contend that Congress designed the proviso to solve the problems that arise when union and nonunion workers are employed at the same jobsite. Thus, it should be interpreted to protect only those agreements that are limited in application to construction projects where both union and nonunion workers are employed.
After examining the construction industry proviso “in light of the statutory setting and the circumstances surrounding its enactment,” Connell Construction Co., supra, at 628, we conclude that it should not be confined as petitioners suggest. The legislative history of § 8(e) and the construction industry proviso clearly indicates that Congress intended to protect subcontracting clauses like those at issue here.
B
Prior to 1959, there were gaps in the existing protections against secondary boycotts. In Carpenters v. NLRB, 357 U. S. 93 (1958) (Sand Door), this Court held that a union could not engage in strikes or other concerted activity to enforce “hot cargo” agreements — agreements that required employers to boycott the goods or services of another party with whom the union had a dispute. However, Sand Door indicated that employers and unions were free to enter into hot cargo agreements, and that compliance was lawful so long as it was voluntary. Id., at 108.
Section 8(e), which prohibits hot cargo agreements, was designed to eliminate the loophole created by the Sand Door decision. See Connell Construction Co., supra, at 628. See also National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612, 634 (1967). The provision represents a compromise between bills reported out by the Senate and House. The Senate bill would have outlawed hot cargo agreements only in the trucking industry. 105 Cong. Rec. 6556 (1959), 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, pp. 1161— 1162 (1959) (Leg. Hist.). The legislation proposed by the House — the Landrum-Griffin bill — was much broader. It made it an unfair labor practice for any labor organization and any employer to enter into an agreement whereby the employer agrees to “cease doing business with any other person.” H. R. 8400, 86th Cong., 1st Sess., § 705(b)(1) (1959), 1 Leg. Hist. 683. The Conference Committee decided to adopt the House bill. However, the Senate conferees insisted on a proviso that exempted hot cargo agreements in the garment industry, and also agreements relating to work to be done at the site of a construction project. 105 Cong. Rec. 17899 (1959), 2 Leg. Hist. 1432.
The legislative history contains several references to the construction industry proviso. After noting that the proviso extends only to work to be performed at the site of the construction, the Conference Report states:
“The committee of conference does not intend that this proviso should be construed so as to change the present state of the law with respect to the validity of this specific type of agreement relating to work to be done at the site of the construction project or to remove the limitations which the present law imposes with respect to such agreements. Picketing to enforce such contracts would be illegal under the Sand Door case (Local 1976, United Brotherhood of Carpenters v. NLRB, 357 U. S. 93 (1958)). To the extent that such agreements are legal today under section 8(b)(4) of the National Labor Relations Act, as amended, the proviso would prevent such legality from being affected by section 8(e).” H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 39 (1959), 1 Leg. Hist. 943 (emphasis added).
Senator John F. Kennedy, who was chairman of the Conference Committee, provided a similar explanation during subsequent congressional debate.
“The first proviso under new section 8(e) of the National Labor Relations Act is intended to preserve the present state of the law with respect to picketing at the site of a construction project and with respect to the validity of agreements relating to the contracting of work to be done at the site of the construction project.” 105 Cong. Rec. 17900 (1959), 2 Leg. Hist. 1433.
Senator Kennedy also said:
“The Landrum-Griffin bill extended the ‘hot cargo’ provisions of the Senate bill, which we applied only to Teamsters, to all agreements between an employer and a labor union by which the employer agrees not to do business with another concern. The Senate insisted upon a qualification for the clothing and apparel industries and for agreements relating to work to be done at the site of a construction project. Both changes were necessary to avoid serious damage to the pattern of collective bargaining in these industries.” 105 Cong. Rec. 17899 (1959), 2 Leg. Hist. 1432.
Other legislators expressed similar views. They emphasized that the final bill would not change the law with respect to construction site subcontracting agreements. See 105 Cong. Rec. 18128 (1959), 2 Leg. Hist. 1715 (remarks of Rep. Barden); 105 Cong. Rec. 18135 (1959), 2 Leg. Hist. 1721 (remarks of Rep. Thompson); 105 Cong. Rec. 19849 (1959), 2 Leg. Hist. 1823 (postenactment memorandum by Sen. Dirksen); 105 Cong. Rec. 19772 (1959), 2 Leg. Hist. 1858 (post-enactment memorandum by Sen. Goldwater).
These statements reveal that Congress wished “to preserve the status quo” regarding agreements between unions and contractors in the construction industry. National Woodwork Manufacturers Assn., supra, at 637. To the extent that subcontracting agreements were part of the pattern of collective bargaining in the construction industry, and lawful, Congress wanted to ensure that they remained lawful. Given this expression of legislative intent, we can determine whether the clauses challenged in these cases are within the scope of the proviso — or whether petitioners’ narrow interpretation of the proviso is appropriate — by examining Congress’ perceptions regarding the status quo in the construction industry.
There is ample evidence that Congress believed that union signatory contract clauses of the type at issue here were part of the pattern of collective bargaining in the construction industry. Comments made by Senator Kennedy clearly indicate that he believed broad subcontracting agreements were legal in 1959:
“Agreements by which a contractor in the construction industry promises not to subcontract work on a construction site to a nonunion contractor appear to be legal today. They will not be unlawful under section 8(e). The proviso is also applicable to all other agreements involving undertakings not to do work on a construction project site with other contractors or subcontractors regardless of the precise relation between them.” 105 Cong. Rec. 17900 (1959), 2 Leg. Hist. 1433.
Senator Kennedy’s views were shared by other legislators. Senator Curtis, testifying before the Senate Labor Committee, stated that broad subcontracting agreements were not illegal, and were used “extensively” by the building trades unions. Labor-Management Reform Legislation: Hearings on S. 505, S. 748, S. 76, S. 1002, S. 1137, and S. 1311 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 86th Cong., 1st Sess., 752 (1959) (Senate Hearings). The House Labor Committee heard similar testimony. Representatives of an employer and an independent union complained that employers and unions could lawfully enter into subcontracting clauses, and that, as a result, employers whose employees had selected another union were denied any opportunity to compete for construction jobs. They described agreements very similar to those at issue here. Labor-Management Reform Legislation: Hearings on H. R. 3540, H. R. 3302, H. R. 4473, and H. R. 4474 before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., 2363 (1959) (statement of Howard Lane) (House Hearings); id,., at 2365-2366 (statement of Edward M. Carlton).
Petitioners argue that Congress’ perception of the status quo was inaccurate. According to petitioners, subcontracting clauses were not extensively used in the construction industry prior to 1959, and neither the Board nor the courts had ruled that such clauses were lawful. However, “the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was.” Brown v. GSA, 425 U. S. 820, 828 (1976). In any event, Congress’ belief that subcontracting agreements were common and lawful was accurate.
The Board and the United States Court of Appeals for the District of Columbia Circuit had upheld broad subcontracting clauses. See Associated General Contractors of America, Inc. (St. Maurice, Helmkamp & Musser), 119 N. L. R. B. 1026 (1957), review denied and enf’d sub nom. Operating Engineers Local Union No. 3 v. NLRB, 105 U. S. App. D. C. 307, 266 F. 2d 905, cert. denied sub nom. St. Maurice, Helmkamp & Musser v. NLRB, 361 U. S. 834 (1959). Significantly, petitioners are unable to point to any pre-1959 cases in which a subcontracting agreement was found to be unlawful because it was not limited to particular jobsites at which the signatory union workers were employed.
A report published in 1961, which examined “the prevalence and characteristics of subcontracting provisions in effect in 1959 in the construction industry,” indicates that broad subcontracting agreements were quite common. Lunden, Subcontracting Clauses in Major Contracts, 84 Monthly Lab. Rev. 579 (1961). The study examined 155 construction contracts, covering 700,000 construction workers, and found that 444,000 of those workers were employed under contracts with subcontracting provisions. Id., at 582. The most frequent requirement, found in more than 50 major contracts, obligated contractors to subcontract work only to subcontractors who would apply all the “terms and conditions” of the master agreement. Id., at 715-716. The Lunden report does not describe a single agreement that limited the applicability of a subcontracting restriction to jobsites at which both union and nonunion workers were employed.
In short, Congress believed that broad subcontracting clauses similar to those at issue here were part of the pattern of collective bargaining prior to 1959, and that the Board and the courts had found them to be lawful. This perception was apparently accurate. Thus, endorsing the clauses at issue here is fully consistent with the legislative history of § 8(e) and the construction industry proviso.
r — H HH H-l
Petitioners attach little significance to the legislative history we have just described. Instead, they focus on congressional references to this Court’s decision in NLRB v. Denver Building & Construction Trades Council, 341 U. S. 675 (1951) (Denver Building Trades), which they believe support their narrow interpretation of the proviso. They also contend that if the clause is interpreted to protect any subcontracting agreements sought or obtained in the context of a collective-bargaining agreement, unions will have a potent organizational weapon. However, neither of these arguments compels the adoption of a restricted interpretation of the proviso.
A
Petitioners contend that Congress adopted the construction industry proviso primarily because it wanted to overrule this Court’s decision in Denver Building Trades, supra. That case held that picketing a general contractor’s entire project in order to protest the presence of a nonunion subcontractor is an illegal secondary boycott. According to petitioners, Congress disliked the Denver Building Trades rule because it might lead to uneasy employee relationships on the jobsite: if union workers were forced to work alongside nonunion workers, friction might result. Given this congressional purpose, the proviso should be interpreted as permitting only those subcontracting agreements that are designed to reduce friction at particular jobsites.
Petitioners are correct in suggesting that the decision in Denver Building Trades contributed to Congress’ decision to adopt the construction industry proviso. See Connell Construction Co., 421 U. S., at 629. At the time Congress was considering the proper scope of § 8(e), it had before it several proposals that would have effectively overruled the Denver Building Trades decision. See, e. g., § 702(d) of H. R. 8342, 86th Cong., 1st Sess. (1959), 1 Leg. Hist. 752-753 (Elliot bill). “It was partly in this frame of reference that the [construction industry] proviso to Section 8(e) was written.” 105 Cong. Rec. 20005 (1959), 2 Leg. Hist. 1861 (remarks of Rep. Kearns).
It is clear, however, that those who wished to overrule Denver Building Trades were concerned about more than the possibility of jobsite friction. Critics of Denver Building Trades complained that contractors and subcontractors working together on a single construction project are not the sort of neutral parties that the secondary boycott provisions were designed to protect. They pointed out that the Denver Building Trades rule denied construction workers the right to engage in economic picketing at their place of employment. And they emphasized that the employees of various subcontractors have a close community of interest, and that the wages and working conditions of one set of employees may affect others. In fact, as the Court of Appeals noted, the problem of jobsite friction between union and nonunion workers received relatively little emphasis. See 654 F. 2d, at 1319.
The proviso helps mitigate the impact of the Denver Building Trades decision: although it does not overrule the ban on picketing, it confirms that construction industry unions may enter into agreements that would prohibit the subcontracting of jobsite work to nonunion firms. However, petitioners’ argument — that the proviso was intended primarily as a response to Denver Building Trades, and that it should therefore be interpreted as protecting only those clauses designed to prevent jobsite friction — rests on faulty premises. As we have already shown, see supra, at 654-661, the proviso was not designed solely as a response to the Denver Building Trades problem. And even as a response to Denver Building Trades, the proviso is only partly concerned with jobsite friction.
B
Petitioners further contend that if the subcontracting clauses at issue here are approved, the unions will have a powerful organizing tool. Subcontractors will not be able to obtain work unless their employees are represented by the union. Thus, they will force their employees to become members of the union. In effect, the subcontracting clauses will create a “top-down” pressure for unionization; they will take the representation decision out of the hands of the employees and place it in the hands of the employers.
It is undoubtedly true that one of the central aims of the 1959 amendments to the Act was to restrict the ability of unions to engage in top-down organizing campaigns. See Connell Construction Co., supra, at 632 (discussing legislative history). It is also true that secondary subcontracting agreements like those at issue here create top-down organizing pressure. However, even if the agreements were limited in application to jobsites at which both union and nonunion workers were employed, there would be some topdown organizing effect. Such pressure is implicit in the construction industry proviso. The bare assertion that a particular subcontracting agreement encourages top-down organizing pressure does not resolve the issue we confront in these cases: how much top-down pressure did Congress intend to tolerate when it decided to exempt construction site projects from §8(e)? As we have already explained, we believe that Congress endorsed subcontracting agreements obtained in the context of a collective-bargaining relationship— and decided to accept whatever top-down pressure such clauses might entail. Congress concluded that the community of interests on the construction jobsite justified the top-down organizational consequences that might attend the protection of legitimate collective-bargaining objectives.
The top-down organizing effect of subcontracting clauses sought or obtained in the context of a collective-bargaining relationship is limited in a number of ways by other provisions of the National Labor Relations Act. A subcontractor cannot be subjected to unlimited picketing to force it into a union agreement without regard to the wishes of its employees. See 29 U. S. C. § 158(b)(7)(C). An additional safeguard is provided by § 8(f), 29 U. S. C. § 158(f), which authorizes unions and employers in the construction industry to enter into collective-bargaining agreements, even though the employees of that employer have not designated the union as their lawful bargaining representative. When a union obtains a subcontracting clause from a general contractor, subcontractors frequently attempt to ensure that they remain eligible for work by entering into a § 8(f) agreement—known as a prehire agreement — with the union. If they do so, however, § 8(f) expressly states that their employees may challenge the union’s representative status by filing an election petition with the Board. And the subcontractors themselves, if they do not have a stable work force among whom the union has secured a majority, may be free to repudiate the agreement at any project on which the union has not demonstrated that it represents a majority of their employees. See NLRB v. Iron Workers, 434 U. S. 335 (1978); Giordano Construction Co., 256 N. L. R. B. 47, 47-48, 107 LRRM 1164, 1165-1166 (1981).
Despite petitioners’ assertions to the contrary, nonunion employees are not frozen out of the job market by subcontracting agreements. Even where construction unions successfully negotiate collective-bargaining agreements that require both general contractors and subcontractors to obtain their labor from union hiring halls, the union must refer both members and nonmembers to available jobs. 29 U. S. C. §§ 158(a)(3), 158(b)(2). In addition, Courts of Appeals have suggested that the obligations of union membership that may be required under union security clauses after seven days are limited to the normal financial obligations of membership.
Finally, since the Denver Building Trades rule remains in effect, employees working for firms with whom a construction union has a primary dispute are protected against secondary picketing designed to force them off their current job. And as the Court of Appeals held in these cases, even where construction unions have negotiated secondary clauses that are sheltered by the proviso, they may not enforce them by picketing or other forms of concerted activity. See H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 39 (1959), 1 Leg. Hist. 943; 105 Cong. Rec. 19772 (1959), 2 Leg. Hist. 1858 (postenactment memorandum of Sen. Goldwater).
IV
Petitioner Woelke asks us to reverse the Court of Appeals’ holding that unions do not violate § 8(b)(4)(A) when they picket to obtain a subcontracting clause sheltered by the construction industry proviso. However, the Court of Appeals was without jurisdiction to consider that question. The issue was not raised during the proceedings before the Board, either by the General Counsel or by Woelke. Thus, judicial review is barred by § 10(e) of the Act, 29 U. S. C. § 160(e), which provides that “[n]o objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” See De troit Edison Co. v. NLRB, 440 U. S. 301, 311-312, n. 10 (1979); Garment Workers v. Quality Mfg. Co., 420 U. S. 276, 281, n. 3 (1975); NLRB v. Ochoa Fertilizer Corp., 368 U. S. 318, 322 (1961).
The § 10(e) bar applies even though the Board held that the picketing was not banned by § 8(b)(4)(A). See Carpenters Local No. 944, 239 N. L. R. B., at 251. Woelke could have objected to the Board’s decision in a petition for reconsideration or rehearing. The failure to do so prevents consideration of the question by the courts. See Garment Workers v. Quality Mfg. Co., supra, at 281, n. 3.
Because the Court of Appeals lacks jurisdiction to review objections that were not urged before the Board, we do not reach the question whether the picketing was lawful. Instead, we vacate that portion of the Court of Appeals’ judgment that relates to this issue, and remand with instructions to dismiss.
V
We hold that the construction industry proviso to § 8(e) of the National Labor Relations Act ordinarily shelters union signatory subcontracting clauses that are sought or negotiated in the context of a collective-bargaining relationship, even when not limited in application to particular jobsites at which both union and nonunion workers are employed. This interpretation of the proviso is supported by its plain language, as well as the legislative history. Thus, we affirm the decision below, insofar as it holds that the clauses at issue here were sheltered by the proviso. We further hold that the Court of Appeals was without jurisdiction to decide whether a union violates § 8(b)(4)(A) when it pickets to obtain a lawful subcontracting clause. We vacate that portion of the judgment below, and remand for further proceedings consistent with this opinion.
It is so ordered.
The proposed clause provides in full:
“The Contractor agrees that neither he nor any of his subcontractors on the jobsite will subcontract any work to be done at the site of construction, alteration, painting or repair of a building, structure or other work (including quarries, rock, san[d] and gravel plants, asphalt plants, ready-mix concrete plants, established on or adjacent to the jobsite to process or supply materials for the convenience of the Contractor for jobsite use) except to a person, firm or corporation, party to an appropriate, current labor agreement with the appropriate Union, or subordinate body signatory to this Agreement.” 1 App. 86.
The expiring contract contained a union signatory subcontracting clause that was similar in effect. Id., at 28.
Section 8(b)(4)(A) prohibits coercing “any employer or selfemployed person to join any labor or employer organization or to enter into any agreement which is prohibited by section 8(e).”
The clause provides in full:
“Employers shall not contract any
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_casetyp2_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - bankruptcy - private individual (e.g., chapter 7). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
ISAACS v. HOBBS TIE & TIMBER CO.
No. 7656.
Circuit Court of Appeals, Fifth Circuit.
March 15, 1935.
William R. Watkins, of Fort Worth, Tex., for appellant.
Norman A. Dodge, of Fort Worth, Tex., and W. N. Ivie, John R. Duty, Claude Duty, and Jeff Duty, all of Rogers, Ark., for appellee.
Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.
Rehearing denies April 8, 1935. Writ of certiorari denied 55 S. Ct. 834, 79 L. Ed. —.
WALKER, Circuit Judge.
On August 7, 1928, Henrietta E. Cunningham was adjudged bankrupt in the Northern District of 'Texas. Her estate included lands located in the Western District of Arkansas which were subject to a mortgage given to secure a debt. A short time after the bankruptcy adjudication and an order requiring the sale, by the trustee, of all the bankrupt’s property were made, the appellee, Hobbs Tie & Timber Company, bought that mortgage from the then owner thereof, paying $30,000 therefor, and in December, 1928, brought suit in an Arkansas state court for the foreclosure of that mortgage; the bankrupt and the trustee of the bankrupt estate being made parties defendant to the suit. On the petition of the bankrupt and the trustee that suit was removed to the United States District Court for the Western District of Arkansas. In that court the right of the appellee to maintain its foreclosure suit was unsuccessfully resisted, and that court rendered a decree of foreclosure and sale. From that decree an appeal to the United States Circuit Court of Appeals for the Eighth Circuit was taken. That court certified to the Supreme Court the question of appellee’s right to maintain the foreclosure suit in the circumstances stated. 282 U. S. 734, 51 S. Ct. 270, 75 L. Ed. 645. The decision of the Supreme Court was to the effect that the Arkansas foreclosure suit was not maintainable save by consent of the bankruptcy court; arid the decree of the District Court for the Western District of Arkansas was reversed, and the ■ cause was remanded to that court, for further proceedings in conformity with the opinion. Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 51 S. Ct. 270, 75 L. Ed. 645. Following the remandment of the foreclosure suit, the appellee filed in the court below a petition which asserted that it was entitled as of right to proceed with its foreclosure in the suit pending in Arkansas, and prayed the court’s consent to do so. The denial of that petition by the court below was affirmed by this court, without prejudice to the right of petitioner (appellee here) to further apply to the bankruptcy court for such relief as it may be advised it can show itself entitled to. Hobbs Tie & Timber Co. v. Isaacs (C. C. A.) 61 F.(2d) 1006. While the last-mentioned proceeding was pending on appeal, the appellee filed in the court below its petitition praying that it be permitted to proceed with its foreclosure suit in the Western District of Arkansas, and for all other relief to which petitioner is entitled. That petition contained allegations to the effect that since 1928 the trustee in bankruptcy has failed to pay taxes on the mortgaged lands, that appellee has paid such taxes, amounting to more than $5,000, to prevent the forfeiture and sale of such lands because of nonpayment of taxes, that the value of said lands is far less than the amount of the debt secured by the mortgage thereon, that the trustee in bankruptcy has been in possession of said lands since 1928, has been unable to sell those lands or any part thereof, and is now attempting to sell some of the timber on said lands and some of the land in small parcels and for small prices. To that petition the appellant interposed an “answer, set-off and counterclaim,” which, after answering allegations of the petition, set up a counterclaim which charged in effect that appellee’s conduct in instituting and prosecuting the foreclosure suit and asserting its claim to the mortgaged property in the possession of the trustee in bankruptcy constituted contempt of court; and the appellant prayed that he “recover, for the use and benefit of the estate herein, the sum of, to-wit, $150,000.00 by way of punishment for its interference with this court and its trustee, and/or' as compensation and reimbursement to the estate of the damages sustained by the trustee in the premises.” The court appointed a master to hear the facts, and report his findings of fact and conclusions of law in connection with the controversy raised by appellee’s petition and appellant’s answer and counterclaim. After hearing evidence the master made a report, containing findings of fact and conclusions of law; his conclusions being favorable to the appellant. The appellant filed exceptions to that report. No exceptions were filed to findings and conclusions of the master to the following effect: “That at the present time, the mortgage indebtedness alleged by said petitioner was a valid lien against the property and that if no set-off or counterclaim was allowed as prayed for by the trustee, then there was no equity in the land for the creditors of the bankrupt estate. And further found that except for the wrongful acts of Hobbs Tie & Timber Company as alleged, there was no equity in said lands and property for the creditors of said bankruptcy estate, and that it was the duty of the trustee to disclaim said property as burdensome and concluded that said petitioner’s claim in the sum of $55,885.49 with 7% interest from May .21, 1927, was justly due and unpaid, and that the said' Hobbs Tie & Timber Company was the legal and equitable owner and holder thereof, and that it had a valid and subsisting lien on the property involved to secure the payment of said indebtedness and the taxes paid by it in the sum of $5,000, and that said note and mortgage was not barred by the statute of limitations.”
By its decree the court sustained the ap-pellee’s exceptions to the master’s report, and adjudged:
“That the petitioner, Hobbs Tie and Timber Company, has a valid subsisting lien debt on the property described in its petition, not barred by limitation, the amount of which is in excess of the value of the land, which lien it is entitled to foreclose, and- petitioner be and is hereby granted leave to foreclose its said lien in any court of competent jurisdiction and/or to proceed with its foreclosure suit in the Western Judicial District Court of Arkansas, Fort Smith Division thereof, as it may be advised, and to make B. K. Isaacs as Trustee in Bankruptcy herein a party defendant therein.
“That the estate in bankruptcy has no equity .in said property and the said Trustee is directed to relinquish and surrender said property as burdensome to the estate and disclaim interest therein in any foreclosure suit begun or prosecuted by the petitioner. That the order of Court heretofore entered authorizing the Trustee to sell the assets of the estate in bankruptcy insofar as it embraced" and/or related to said property be and it hereby is set aside.
“That the petitioner is not guilty of contempt of court; that the acts of petitioner complained of by the Trustee do not constitute grounds, nor does any pf them constitute a ground, for imposition of fine or recovery of penalties or damages against pé-titioner as for contempt of court.
“That the Trustee in Bankruptcy be and hereby is denied recovery against petitioner on account of each and. everything set up and/or prayed for in his pleadings, and the petitioner be denied recovery against the Trustee other than as he.reby specifically decreed except in the plea and claim of petitioner for an accounting and ascertainment and recovery of damages against the Trustee for alleged conversion of a part of its mortgage security which is pretermitted and left open for further consideration, also the matter of taxing the costs is left open for later determination.”
The decree is complained of only in so far as it had the effect of disallowing the counterclaim based on the charge that ap-pellee was guilty of contempt. The brief of counsel for the appellant contains the statement: “It may be assumed that the property in controversy is now worth less than the lien against it and but for the contempt of the appellee the judgment would be right.”
What was relied on' as constituting contempt was the institution and prosecution by the appellee of -its foreclosure suit, and its conduct in having watched parts of the 12,311 acres of unhábited timberlands covered by the mortgage held by it, while those-lands were in the possession of the trustee, for the purpose' of becoming informed of the removal from those lands of timber or other things thereon. No evidence indicated that the' appellee in any way interfered with-the trustee’s possession of the mortgaged land, or procured the levy of any writ or process on those lands or any part thereof, or attempted to thwart or obstruct any order or process of the bankruptcy court. No evidence adduced furnished any ground for a claim that the appellee was guilty of any such interference with property in the custody of the court as is comparable to what was disclosed in cases principally relied on by counsel for the appellee, notably Ex parte Tyler, 149 U. S. 164, 13 S. Ct. 785, 37 L. Ed. 689, and Hitz v. Jenks, 185 U. S. 155, 22 S. Ct. 598, 46 L. Ed. 851. Certainly it could not seriously or plausibly be contended that appellee was guilty of contempt of court in seeking to keep itself informed as to the removal from the mortgaged lands, while they were in the possession of the appellant, of timber or other things thereon. It appears that upon the appellant being informed of the institution of the foreclosure suit he elected not to apply to the bankruptcy court for an injunction restraining the prosecution of that suit, as it was open to him to do (Ex parte Baldwin, 291 U. S. 610, 615, 54 S. Ct. 551, 78 L. Ed. 1020), but procured the removal of that suit to the District Court of the United States for the Western District of Arkansas, and in that court sought a postponement of the foreclosure, and contended that that court should proceed no further than to ascertain the interest of the defendants, the validity of the mortgage lien, and the amount of the debt, and prayed that after those preliminary steps the court should refuse the order of sale. Isaacs v. Hobbs Tie & T. Co., supra. It was not even claimed that appellee did anything constituting contempt under the provision of the Bankruptcy Act on that subject (11 USCA § 11); and no evidence supported a claim that appellee did anything constituting a contempt under the statute (28 USCA § 385) which defines the power of federal courts to punish for contempt. In the matter of punishment for contempt the bankruptcy court possesses no broader powers than are conferred on other federal courts. Boyd v. Glucklich (C. C. A.) 116 F. 131. Though the foreclosure suit was not maintainable without the consent of the bankruptcy court, which had in its custody the lands sought to be foreclosed, the mere bringing of the suit without such consent, unaccompanied by any interference.with the possession of the property in the court’s custody, or by any disobedience or evasion of the - court’s orders or process, is not to be classed as a contempt; the ordinary consequence of bringing a suit which is. not maintainable, where the plaintiff is not chargea.ble with both malice and want of probable cause, being that the defendant is not entitled to redress, other than an .award against the plaintiff of the taxable costs of the suit. 1 Corpus Juris, 967.
It appears that, upon the removal of' the foreclosure suit to the District Court for the Western District of Arkansas, the principal object of the appellant was to secure a postponement of the foreclosure in order to afford to the appellant and his counsel further time to make investigation as to the most favorable method of making a sale of the mortgaged property, and because the economic conditions existing at that time (December, 1928, and January, 1929) made it impossible and impracticable to sell the mortgaged land for anything near its value. When, after the question of appellee’s right to proceed with its foreclosure had been resisted for several years, the appellee made the former application to the bankruptcy court for leave to foreclose its mortgage in the District Court for the Western District of. Arkansas, which application was passed on by this court, the appellant, in resisting that application, recognized that it was impracticable to sell the ' land in a body for enough to pay the mortgage debt, and suggested the plan of trying to sell the land in small tracts of forty acres and upwards, and in some instances if possible to sell the timber separately, reserving the land, the counsel for the appellant being examined as a witness and stating: “The idea of the. Trustee at this time is that an equity exists in the property if it is handled in that manner. How long it will take to accomplish that purpose, it is impossible to tell, but the prospects are increasing and the activity in the way of getting offers and getting down to the point of making a deal is increasing and it should not take more than a reasonable time, considering the amount of land and the amount- of money ■ involved, to dispose of it. * * * ” At the time the appellee filed the petition under which the -decree appealed from wás rendered, it appears that appellant did not seriously contend that the mortgaged land could be sold for enough to pay the mortgage debt, and relied on its charge that the appellee was guilty of .contempt of court, and on the contention that- for that offense the appellee should by the judgment of the court be required to pay the appellant an amount-¡greatly -more than twice the value which the evidence indicated the mortgaged land possessed when the ''.foreclosure suit was instituted, when the -decr.ee appealed from was rendered, or at any intervening time. No evidence indicated that the former owner of the mortgage would have sold it to the appellee, shortly befare the foreclosure suit was instituted, for the sum of $30,000 if the mortgaged land had been salable for more than that sum. If the appellant had applied to the bankruptcy court for an order staying the foreclosure, it reasonably may be supposed that if that application had been favorably acted on the stay granted would have been for a reasonable time only, to enable the trustee to act advisedly in determining whether he would resist the foreclosure or recommend that the interest of the bankrupt estate in the mortgaged land be abandoned as burdensome. First Trust Co. v. Baylor (C. C. A.) 1 F.(2d) 24, 28. After it became apparent that the mortgaged land could not presently be sold for enough to pay the mortgage debt, it would have been unreasonable and unfair to the appellee for the court to stay the foreclosure for an indefinite period to enable the trustee to experiment in efforts to sell the mortgaged land or timber therefrom in small quantities. In re Morris White Holding Co. (D. C.) 52 F.(2d) 499. It is fairly to be inferred from the evidence that throughout the period during which the appellant successfully resisted appellee’s efforts to get its mortgage foreclosed the bankrupt estate had no equity in the mortgaged lands, because they were worth substantially less than the balance owing on the debt for the security of which the mortgage was given. During all that time appellant paid no taxes on the mortgaged land, such taxes being paid by the appellee in order to prevent the sale of the land for taxes, or the forfeiture thereof for the nonpayment of taxes. It is fairly inferable from the evidence that at no time would the foreclosure have caused loss or damage to the bankrupt estate, because the mortgaged land was worth less than the amount of the mortgage debt, and that there was no reasonable justification for the appellee’s prolonged successful resistance to the foreclosure. It is also fairly inferable from- the evidence that the appellee was substantially injured by the prolonged postponement of the foreclosure, during the period of such postponement the appellee having to pay taxes on the mortgaged land and the expenses of the litigation, while it could get, no benefit from the land. In the circumstances disclosed by the record the claim asserted by the appellant- that the court should adjudge that the appellee pay to the appellant the sum of $150,000, with the result of the appellee being subjected to the loss of a' sum greatly in excess of the value of the subject of the litigation, has a quite bizarre aspect. We conclude that that claim was properly disallowed, and that there was no error in the decree appealed from.
That decree is affirmed.
Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - bankruptcy - private individual (e.g., chapter 7)?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_respond1_1_2
|
D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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".
NATIONAL LABOR RELATIONS BOARD v. NASHUA MANUFACTURING CORPORATION OF TEXAS.
No. 15204.
United States Court of Appeals, Fifth Circuit.
Jan. 21, 1955.
George J. Bott, General Counsel, Frederick U. Reel, Abraham Siegel, Washington, D. C., Victor H. Hess, Jr., New Orleans, La., A. Norman Somers, Marcel Mallet-Prevost, Assistant General Counsels, David P. Findling, Associate General Counsel, Washington, D. C., for National Labor Relations Board.
I. M. Lux, Kansas City, Mo., for respondent.
Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAWKINS, District Judge.
HUTCHESON, Chief Judge.
Upon findings that respondent had, in violation of the Act, interrogated its employees concerning their, union affiliations and had made statements and taken attitudes designed and calculated to discourage them from assisting or being members of a union, the examiner concluded and recommended that it be required to cease and desist from such practices.
The Board, in a decision and order reported in 108 N.L.R.B. 117, approved the findings of the examiner, entered the order recommended by him, and is here, by petition, brief, and oral argument, seeking its enforcement.
Respondent, in a vigorous brief and argument, citing cases in support, challenges findings of the examiner as without support in the evidence, and insists that, upon the view of the evidence most favorable to the Board, the things said and done were not in violation of the Act, and upon the authority of N.L.R.B. v. Montgomery Ward & Co., 2 Cir., 192 F.2d 160, that the order forbidding the interrogation of employees was too broad.
An examination of the evidence, as Board and respondent set it out, convinces us that, fairly considered, the evidence supports the findings of examiner and Board. Since, however, the order is too broad in unqualifiedly forbidding mere interrogation of employees concerning their union affiliations, the order will be amended by inserting before the word “interrogating” the words “coercively or otherwise unlawfully”. As thus amended, the order will be enforced.
Amended and enforced.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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sc_decisiontype
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
POSTERS 'N' THINGS, LTD., et al. v. UNITED STATES
No. 92-903.
Argued October 5, 1993
Decided May 23, 1994
Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Kennedy and Thomas, JJ., joined, post, p. 527.
Alfredo Parrish argued the cause for petitioners. With him on the brief was Elizabeth Kruidenier.
Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Robert A. Long, Jr., and Joel M. Gerskowitz.
Justice Blackmun
delivered the opinion of the Court.
In this case we must address the scienter requirement of the Mail Order Drug Paraphernalia Control Act, Pub. L. 99-570, Tit. I, §1822, 100 Stat. 3207-51, formerly codified, as amended, at 21 U. S. C. § 857, and the question whether the Act is unconstitutionally vague as applied to petitioners.
I
In 1977, petitioner Lana Christine Acty formed petitioner Posters ‘N’ Things, Ltd. (Posters), an Iowa corporation. The corporation operated three businesses, a diét-aid store, an art gallery, and a general merchandise outlet originally called “Forbidden Fruit,” but later renamed “World Wide Imports.” Law enforcement authorities received complaints that the merchandise outlet was selling drug paraphernalia. Other officers investigating drug cases found drug diluents (chemicals used to “cut” or dilute illegal drugs) and other drug paraphernalia that had been purchased from Forbidden Fruit.
In March 1990, officers executed warrants to search petitioners’ business premises and Acty’s residence. They seized various items, including pipes, bongs, scales, roach clips, and drug diluents including mannitol and inositol. The officers also seized cash, business records, and catalogs and advertisements describing products sold by petitioners. The advertisements offered for sale such products as “Coke Kits,” “Free Base Kits,” and diluents sold under the names “PseudoCaine” and “Procaine.”
Indictments on a number of charges relating to the sale of drug paraphernalia eventually were returned against petitioners and George Michael Moore, Acty’s husband. A joint trial took place before a jury in the United States District Court for the Southern District of Iowa.
Petitioners were convicted of using an interstate conveyance as part of a scheme to sell drug paraphernalia, in violation of former 21 U. S. C. § 857(a)(1), and of conspiring to commit that offense, in violation of 18 U. S. C. § 371. Petitioner Acty also was convicted of aiding and abetting the manufacture and distribution of cocaine, in violation of 21 U. S. C. § 841(a)(1); investing income derived from a drug offense, in violation of 21 U. S. C. § 854; money laundering, in violation of 18 U. S. C. § 1956(a)(1); and engaging in monetary transactions with the proceeds of unlawful activity, in violation of 18 U. S. C. § 1957. Acty was sentenced to imprisonment for 108 months, to be followed by a 5-year term of supervised release, and was fined $150,000. Posters was fined $75,000.
The United States Court of Appeals for the Eighth Circuit affirmed the convictions. 969 F. 2d 652 (1992). Because of an apparent conflict among the Courts of Appeals as to the nature of the scienter requirement of former 21 U. S. C. § 857, we granted certiorari. 507 U. S. 971 (1993).
II
Congress enacted the Mail Order Drug Paraphernalia Control Act as part of the Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207. As originally enacted, and as applicable in this case, the statute, 21 U. S. C. § 857(a), provides:
“It is unlawful for any person—
“(1) to make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia;
“(2) to offer for sale and transportation in interstate or foreign commerce drug paraphernalia; or
“(3) to import or export drug paraphernalia.”
Section 857(b) provides that anyone convicted under the statute shall be imprisoned for not more than three years and fined not more than $100,000.
A
Section 857(a) does not contain an express scienter requirement. Some courts, however, have located a scienter requirement in the statute’s definitional provision, § 857(d), which defines the term “drug paraphernalia” as “any equipment, product, or material of any kind which is primarily intended or designed for use” with illegal drugs. Petitioners argue that the term “primarily intended” in this provision establishes a subjective-intent requirement on the part of the defendant. We disagree, and instead adopt the Government’s position that § 857(d) establishes objective standards for determining what constitutes drug paraphernalia.
Section 857(d) identifies two categories of drug paraphernalia: items “primarily intended ... for use” with controlled substances and items “designed for use” with such substances. This Court’s decision in Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U. S. 489, 500 (1982), governs the “designed for use” prong of § 857(d). In that case, the Court considered an ordinance requiring a license for the sale of items “designed or marketed for use with illegal cannabis or drugs,” and concluded that the alternative “designed ... for use” standard referred to “the design of the manufacturer, not the intent of the retailer or customer.” Id., at 501. An item is “designed for use,” this Court explained, if it “is principally used with illegal drugs by virtue of its objective features, i. e., features designed by the manufacturer.” Ibid.
The objective characteristics of some items establish that they are designed specifically for use with controlled substances. Such items, including bongs, cocaine freebase kits, and certain kinds of pipes, have no other use besides contrived ones (such as use of a bong as a flower vase). Items that meet the “designed for use” standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them. See United States v. Mishra, 979 F. 2d 301, 308 (CA3 1992); United States v. Schneider-man, 968 F. 2d 1564,1567 (CA2 1992), cert, denied, 507 U. S. 921 (1993). Accordingly, the “designed for use” element of § 857(d) does not establish a scienter requirement with respect to sellers such as petitioners.
The “primarily intended ... for use” language of § 857(d) presents a more difficult problem. The language might be understood to refer to the state of mind of the defendant (here, the seller), and thus to require an intent on the part of the defendant that the items at issue be used with drugs. Some Courts of Appeals have adopted this construction, see Mishra, 979 F. 2d, at 307; United States v. Murphy, 977 F. 2d 503, 506 (CA10 1992); Schneiderman, 968 F. 2d, at 1567; United States v. 57,261 Items of Drug Paraphernalia, 869 F. 2d 955, 957 (CA6), cert, denied, 493 U. S. 933 (1989), and this Court in Hoffman Estates interpreted the arguably parallel phrase “marketed for use” as describing “a retailer’s intentional display and marketing of merchandise,” 455 U. S., at 502, and thus requiring scienter. On the other hand, there is greater ambiguity in the phrase “primarily intended . . . for use” than in the phrase “marketed for use.” The term “primarily intended” could refer to the intent of non-defendants, including manufacturers, distributors, retailers, buyers, or users. Several considerations lead us to conclude that “primarily intended ... for use” refers to a product’s likely use rather than to the defendant’s state of mind.
First, the structure of the statute supports an objective interpretation of the “primarily intended ... for use” standard. Section 857(d) states that drug paraphernalia “includes items primarily intended or designed for use in” consuming specified illegal drugs, “such as ...,” followed by a list of 15 items constituting per se drug paraphernalia. The inclusion of the “primarily intended” term along with the “designed for use” term in the introduction to the list of per se paraphernalia suggests that at least some of the per se items could be “primarily intended” for use with illegal drugs irrespective of a particular defendant’s intent — that is, as an objective matter. Moreover, § 857(e) lists eight objective factors that may be considered “in addition to all other logically relevant factors” in “determining whether an item constitutes drug paraphernalia.” These factors generally focus on the actual use of the item in the community. Congress did not include among the listed factors a defendant’s statements about his intent or other factors directly establishing subjective intent. This omission is significant in light of the fact that the parallel list contained in the Drug Enforcement Administration’s Model Drug Paraphernalia Act, on which § 857 was based, includes among the relevant factors “[statements by an owner . . . concerning [the object’s] use” and “[d]irect or circumstantial evidence of the intent of an owner ... to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act.”
An objective construction of the definitional provision also finds support in § 857(f), which establishes an exemption for items “traditionally intended for use with tobacco products.” An item’s “traditional” use is not based on the subjective intent of a particular defendant. In 1988, Congress added the word “traditionally” in place of “primarily” in the § 857(f) exemption in order to “clarif[yj” the meaning of the exemption. Pub. L. 100-690, Tit. VI, §6485, 102 Stat. 4384. Congress’ characterization of the amendment as merely “clarifying” the law suggests that the original phrase — “primarily intended” — was not a reference to the fundamentally different concept of a defendant’s subjective intent.
Finally, an objective construction of the phrase “primarily intended” is consistent with the natural reading of similar language in definitional provisions of other federal criminal statutes.. See 18 U. S. C. § 921(a)(17)(B) (“armor piercing ammunition” excludes any projectile that is “primarily intended” to be used for sporting purposes, as found by the Secretary of the Treasury); 21 U. S. C. § 860(d)(2) (1988 ed., Supp. V) (“youth center” means a recreational facility “intended primarily for use by persons under 18 years of age”).
We conclude that the term “primarily intended ... for use” in § 857(d) is to be understood objectively and refers generally to an item’s likely use. Rather than serving as the basis for a subjective scienter requirement, the phrase “primarily intended or designed for use” in the definitional provision establishes objective standards for determining what constitutes drug paraphernalia.
B
Neither our conclusion that Congress intended an objective construction of the “primarily intended” language in § 857(d), nor the fact that Congress did not include the word “knowingly” in the text of § 857, justifies the conclusion that Congress intended to dispense entirely with a scienter requirement. This Court stated in United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978): “Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.” Even statutes creating public welfare offenses generally require proof that the defendant had knowledge of sufficient facts to alert him to the probability of regulation of his potentially dangerous conduct. See Staples v. United States, post, at 607, and n. 3; United States v. Dotterweich, 320 U. S. 277, 281 (1943). We conclude that §857 is properly construed as containing a scienter requirement.
We turn to the nature of that requirement in this statute. In United States v. Bailey, 444 U. S. 394, 404 (1980), this Court distinguished between the mental states of “‘purpose’ ” and “ ‘knowledge,’ ” explaining, id., at 408, that, “except in narrow classes of offenses, proof that the defendant acted knowingly is sufficient to support a conviction.” In Bailey, the Court read into the federal escape statute, 18 U. S. C. § 751(a), a requirement that “an escapee knew his actions would result in his leaving physical confinement without permission,” rejecting a heightened mens rea that would have required “‘an intent to avoid confinement.’” 444 U. S., at 408. Similarly, in United States v. United States Gypsum Co., 438 U. S., at 444, the Court addressed the question whether a criminal violation of the Sherman Act “requires, in addition to proof of anticompetitive effects, a demonstration that the disputed conduct was undertaken with the ‘conscious object’ of producing such effects, or whether it is sufficient that the conduct is shown to have been undertaken with knowledge that the proscribed effects would most likely follow.” The Court concluded that “action undertaken with knowledge of its probable consequences ... can be a sufficient predicate for a finding of criminal liability under the antitrust laws.” Ibid.
As in Bailey and United States Gypsum, we conclude that a defendant must act knowingly in order to be liable under §857. Requiring that a seller of drug paraphernalia act with the “purpose” that the items be used with illegal drugs would be inappropriate. The purpose of a seller of drug paraphernalia is to sell his product; the seller is indifferent as to whether that product ultimately is used in connection with illegal drugs or otherwise. If § 857 required a purpose that the items be used with illegal drugs, individuals could avoid liability for selling bongs and cocaine freebase kits simply by establishing that they lacked the “conscious object” that the items be used with illegal drugs.
Further, we do not think that the knowledge standard in this context requires knowledge on the defendant’s part that a particular customer actually will use an item of drug paraphernalia with illegal drugs. It is sufficient that the defendant be aware that customers in general are likely to use the merchandise with drugs. Therefore, the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs. Cf. United States Gypsum, 488 U. S., at 444 (knowledge of “probable consequences” sufficient for conviction). A conviction under § 857(a)(1), then, requires the Government to prove that the defendant knowingly made use of an interstate conveyance as part of a scheme to sell items that he knew were likely to be used with illegal drugs.
Finally, although the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs, it need not prove specific knowledge that the items are “drug paraphernalia” within the meaning of the statute. Cf. Hamling v. United States, 418 U. S. 87 (1974) (statute prohibiting mailing of obscene materials does not require proof that defendant knew the materials at issue met the legal definition of “obscenity”). As in Hamling, it is sufficient for the Government to show that the defendant “knew the character and nature of the materials” with which he dealt. Id., at 123.
In light of the above, we conclude that the jury instructions given by the District Court adequately conveyed the legal standards for petitioners’ convictions under §857.
III
Petitioners argue that § 857 is unconstitutionally vague as applied to them in this case. “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U. S. 352, 357 (1983); see also Grayned v. Rockford, 408 U. S. 104, 108-109 (1972). Whatever its status as a general matter, we cannot say that § 857 is unconstitutionally vague as applied in this case.
First, the list of items in § 857(d) constituting per se drug paraphernalia provides individuals and law enforcement officers with relatively clear guidelines as to prohibited conduct. With respect to the listed items, there can be little doubt that the statute is sufficiently determinate to meet constitutional requirements. Many items involved in this case — including bongs, roach clips, and pipes designed for use with illegal drugs — are among the items specifically listed in § 857(d).
Second, § 857(e) sets forth objective criteria for assessing whether items constitute drug paraphernalia. These factors minimize the possibility of arbitrary enforcement and assist in defining the sphere of prohibited conduct under the statute. See Mishra, 979 F. 2d, at 309; Schneiderman, 968 F. 2d, at 1568. Section 857(f)’s exemption for tobacco-related products further limits the scope of the statute and precludes its enforcement against legitimate sellers of lawful products.
Finally, the scienter requirement that we have inferred in §857 assists in avoiding any vagueness problem. “[T]he Court has recognized that a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice . . . that [the] conduct is proscribed.” Hoffman Estates, 455 U. S., at 499.
Section 857’s application to multiple-use items — such as scales, razor blades, and mirrors — may raise more serious concerns. Such items may be used for legitimate as well as illegitimate purposes, and “a certain degree of ambiguity necessarily surrounds their classification.” Mishra, 979 F. 2d, at 309. This case, however, does not implicate vagueness or other due process concerns with respect to such items. Petitioners operated a full-scale “head shop,” a business devoted substantially to the sale of products that clearly constituted drug paraphernalia. The Court stated in Hoffman Estates: “The theoretical possibility that the village will enforce its ordinance against a paper clip placed next to Rolling Stone magazine ... is of no due process significance unless the possibility ripens into a prosecution.” 455 U. S., at 503-504, n. 21. Similarly here, we need not address the possible application of § 857 to a legitimate merchant engaging in the sale of only multiple-use items.
IV
Petitioner Acty’s other contentions are not properly before the Court. First, she argues that she was improperly convicted of aiding and abetting the manufacture and distribution of cocaine because the jury instructions created a “presumption” that certain items of drug paraphernalia “were intended for manufacturing with a controlled substance.” Brief for Petitioners 17. This argument was neither raised in nor addressed by the Court of Appeals. See Lawn v. United States, 355 U. S. 339, 362-363, n. 16 (1958). Second, Acty asserts that her convictions for money laundering, investing income derived from a drug offense, and engaging in monetary transactions with the proceeds of unlawful activity must be reversed. These contentions were not presented in the petition for writ of certiorari, and therefore they are not properly raised here. See this Court’s Rule 14.1(a). Finally, the petition presented the question whether the proof was adequate to support Acty’s conviction for aiding and abetting the manufacture and distribution of cocaine; but petitioners’ brief on the merits fails to address the issue and therefore abandons it. See Russell v. United States, 369 U. S. 749, 754, n. 7 (1962).
Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
A “bong” is a “water pipe that consists of a bottle or a vertical tube partially filled with liquid and a smaller tube ending in a bowl, used often in smoking narcotic substances.” American Heritage Dictionary 215 (3d ed. 1992).
The statute defines “roach clips” as “objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand.” 21 U. S. C. § 857(d)(5).
The term “freebase” means “[t]o purify (cocaine) by dissolving it in a heated solvent and separating and drying the precipitate” or “[t]o use (cocaine purified in this way) by burning it and inhaling the fumes.” American Heritage Dictionary 723 (3d ed. 1992).
Compare the decision of the Eighth Circuit in this case with United States v. Mishra, 979 F. 2d 301 (CA3 1992); United States v. Murphy, 977 F. 2d 503 (CA10 1992); United States v. Schneiderman, 968 F. 2d 1564 (CA2 1992), cert, denied, 507 U. S. 921 (1993); and United States v. 57,261 Items of Drug Paraphernalia, 869 F. 2d 955 (CA6), cert, denied, 493 U. S. 933 (1989).
In 1990, Congress repealed §857 and replaced it with 21 U. S. C. §863 (1988 ed., Supp. IV). See Crime Control Act of 1990, Pub. L. 101-647, § 2401,104 Stat. 4858. The language of § 863 is identical to that of former §857 except in the general description of the offense. Section 863(a) makes it unlawful for any person “(1) to sell or offer for sale drug paraphernalia; (2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or (3) to import or export drug paraphernalia.”
Section 857(d) provides in full:
“The term ‘drug paraphernalia’ means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under the Controlled Substances Act (title II of Public Law 91-513) [21 U. S. C. §§ 801 et seq.]. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, or amphetamines into the human body, such as—
“(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
“(2) water pipes;
“(3) carburetion tubes and devices;
“(4) smoking and carburetion masks;
“(5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;
“(6) miniature spoons with level capacities of one-tenth cubic centimeter or less;
“(7) chamber pipes;
“(8) carburetor pipes;
“(9) electric pipes;
“(10) air-driven pipes;
“(11) chillums;
“(12) bongs;
“(13) ice pipes or chillers;
“(14) wired cigarette papers; or
“(15) cocaine freebase kits.”
Section 857(e) provides:
“In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:
“(1) instructions, oral or written, provided with the item concerning its use;
“(2) descriptive materials accompanying the item which explain or depict its use;
“(3) national and local advertising concerning its use;
“(4) the manner in which the item is displayed for sale;
“(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
“(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
“(7) the existence and scope of legitimate uses of the item in the community; and
“(8) expert testimony concerning its use.”
See Schneiderman, 968 F. 2d, at 1566.
See Brief for United States 6a-7a. The Model Act lists 14 factors to be considered in addition to all other logically relevant factors in determining whether an object is drug paraphernalia. Several of the factors are similar or identical to those listed in § 857(e).
Section 857(f) provides:
“This section shall not apply to—
“(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or
“(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.”
Although we describe the definition of “primarily intended” as “objective,” we note that it is a relatively particularized definition, reaching beyond the category of items that are likely to be used with drugs by virtue of their objective features. Among the factors that are relevant to whether an item constitutes drug paraphernalia are “instructions, oral or written, provided with the item concerning its use,” § 857(e)(1), and “the maimer in which the item is displayed for sale,” § 857(e)(4). Thus, while scales or razor blades as a general class may not be designed specifically for use with drugs, a subset of those items in a particular store may be “primarily intended” for use with drugs by virtue of the circumstances of their display and sale.
We disagree with Justice Scalia insofar as he would hold that a box of paper clips is converted into drug paraphernalia by the mere fact that a customer mentions to the seller that the paper clips will make excellent roach clips. Section 857(d) states that items “primarily intended” for use with drugs constitute drug paraphernalia, indicating that it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia.
The legislative history of the Mail Order Drug Paraphernalia Control Act consists of one House subcommittee hearing. See Hearing on H. R. 1625 before the Subcommittee on Crime of the House Committee on the Judiciary, 99th Cong., 2d Sess. (1986). We recognize that a colloquy with the principal House sponsor of the Act during this hearing lends some support to a subjective interpretation of the “primarily intended” language of § 857(d). When asked to whose intent this language referred, Rep. Levine initially stated: “The purpose of the language... is to identify as clearly as possible the intent of manufacturer and the seller to market a particular item as drug paraphernalia, subject to the interpretation of a trial court.” Id,., at 48. When pressed further, he stated: “[I]t would be the intent on the part of the defendant in a particular trial.” Ibid. Given the language and structure of the statute, we are not persuaded that these comments of a single member at a subcommittee hearing are sufficient to show a desire on the part of Congress to locate a scienter requirement in the definitional provision of §857.
The knowledge standard thát we adopt parallels the standard applied by those courts that have based § 857’s scienter requirement on the “primarily intended” language of the definitional provision. See Miskra, 979 F. 2d, at 307 (Government must prove that defendant “contemplated, or reasonably expected under the circumstances, that the item sold or offered for sale would be used with illegal drugs”); Schneiderman, 968 F. 2d, at 1567 (Government must prove that defendant “knew there was a strong probability the items would be so used”); 57,261 Items of Drug Paraphernalia, 869 F. 2d, at 957 (Government must prove defendant’s “knowledge that there is a strong probability that the items will be used” with illegal drugs). The scienter requirement that we have inferred applies with respect to all items of drug paraphernalia, while at least some of the lower courts appear to have confined their scienter requirement to those items “primarily intended” (but not “designed”) for use with illegal drugs. See, e. g., Schneiderman, 968 F. 2d, at 1567.
The District Court instructed the jury that, in order to find petitioners guilty, it was required to find that they “made use of [an] interstate conveyance knowingly as part of a scheme to sell drug paraphernalia,” that “the items in question constitute drug paraphernalia,” defined as items “primarily intended or designed for use” with illegal drugs, and that petitioners “knew the nature and character of the items.” The District Court elaborated on the knowledge requirement, describing it as “knowledge of the defendants as to the nature, character, and use of the items being sold or offered for sale at the store.” App. 16-35. We think that the instructions adequately informed the jury that it could convict petitioners only if it found that they knew that the items at issue were likely to be used with illegal drugs.
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_certreason
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L
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
ARKANSAS v. SULLIVAN
No. 00-262.
Decided May 29, 2001
Per Curiam.
In November 1998, Officer Joe Taylor of the Conway, Arkansas, Police Department stopped respondent Sullivan for speeding and for having an improperly tinted windshield. Taylor approached Sullivan’s vehicle, explained the reason for the stop, and requested Sullivan’s license, registration, and insurance documentation. Upon seeing Sullivan’s license, Taylor realized that he was aware of “ ‘intelligence on [Sullivan] regarding narcotics.’ ” 840 Ark. 318-A, 318-B, 16 S.W. 3d 551, 552 (2000). When Sullivan opened his ear door in an (unsuccessful) attempt to locate his registration and insurance papers, Taylor noticed a rusted roofing hatchet on the ear’s floorboard. Taylor then arrested Sullivan for speeding, driving without his registration and insurance documentation, carrying a weapon (the roofing hatchet), and improper window tinting.
After another officer arrived and placed Sullivan in his squad car, Officer Taylor conducted an inventory search of Sullivan’s vehicle pursuant to the Conway Police Department’s Vehicle Inventory Policy. Under the vehicle’s armrest, Taylor discovered a bag containing a substance that appeared to him to be methamphetamine as well as numerous items of suspected drug paraphernalia. As a result of the detention and search, Sullivan was charged with various state-law drug offenses, unlawful possession of a weapon, and speeding.
Sullivan moved to suppress the evidence seized from his vehicle on the basis that his arrest was merely a “pretext and sham to search” him and, therefore, violated the Fourth and Fourteenth Amendments to the United States Constitution. Pet. for Cert. 3. The trial court granted the suppression motion and, on the State’s interlocutory appeal, the Arkansas Supreme Court affirmed. 340 Ark. 315, 11 S.W. 3d 526 (2000). The State petitioned for rehearing, contending that the court had erred by taking into account Officer Taylor’s subjective motivation, in disregard of this Court’s opinion in Whren v. United States, 517 U.S. 806 (1996). Over the dissent of three justices, the court rejected the State’s argument that Whren makes “the ulterior motives of police officers . . . irrelevant so long as there is probable cause for the traffic stop” and denied the State’s rehearing petition. 340 Ark., at 318-B, 16 S. W. 3d, at 552.
The Arkansas Supreme Court declined to follow Whren on the ground that “much of it is dicta.” 340 Ark., at 318-B, 16 S. W. 3d, at 552. The court reiterated the trial judge’s conclusion that “the arrest was pretextual and made for the purpose of searching Sullivan’s vehicle for evidence of a crime,” and observed that “we do not believe that Whren disallows” suppression on such a basis. Id., at 318-C, 16 S. W. 3d, at 552. Finally, the court asserted that, even if it were to conclude that Whren precludes inquiry into an arresting officer’s subjective motivation, “there is nothing that prevents this court from interpreting the U. S. Constitution more broadly than the United States Supreme Court, which has the effect of providing more rights.” 340 Ark., at 318-C, 16 S. W. 3d, at 552.
Because the Arkansas Supreme Court’s decision on rehearing is flatly contrary to this Court’s controlling precedent, we grant the State’s petition for a writ of certiorari and reverse. As an initial matter, we note that the Arkansas Supreme Court never questioned Officer Taylor’s authority to arrest Sullivan for a fine-only traffic violation (speeding), and rightly so. See Atwater v. Lago Vista, ante, p. 318. Rather, the court affirmed the trial judge’s suppression of the drug-related evidence on the theory that Officer Taylor’s arrest of Sullivan, although supported by probable cause, nonetheless violated the Fourth Amendment because Taylor had an improper subjective motivation for making the stop. The Arkansas Supreme Court’s holding to that effect cannot be squared with our decision in Whren, in which we noted our “vmwilling[ness] to entertain Fourth Amendment challenges based on the actual motivations of individual officers,” and held unanimously that “[sjubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” 517 U.S., at 813. That Whren involved a traffic stop, rather than a custodial arrest, is of no particular moment; indeed, Whren itself relied on United States v. Robinson, 414 U.S. 218 (1973), for the proposition that “a traffic-violation arrest . . . [will] not be rendered invalid by the fact that it was ‘a mere pretext for a narcotics search.’ ” 517 U. S., at 812-813.
The Arkansas Supreme Court’s alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court’s own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714 (1975). There, we observed that the Oregon Supreme Court’s statement that it could “‘interpret the Fourth Amendment more restrietively than interpreted by the United States Supreme Court’” was “not the law and surely must be an inadvertent error.” Id., at 719, n. 4. We reiterated in Hass that while “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards,” it “may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.” Id., at 719.
The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Sullivan’s motion for leave to proceed informa pauperis is granted. We have jurisdiction under 28 U. S. C. § 1257 notwithstanding the absence of final judgment in the underlying prosecution. See New York v. Quarles, 467 U.S. 649, 651, n. 1 (1984) (“[S]hould the State convict respondent at trial, its claim that certain evidence was wrongfully suppressed will be moot. Should respondent be acquitted at trial, the State will be precluded from pressing its federal claim again on appeal”).
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_circuit
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I
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
ARAGON et al. v. UNEMPLOYMENT COMPENSATION COMMISSION OF TERRITORY OF ALASKA et al.
No. 10425.
Circuit Court of Appeals, Ninth Circuit.
May 15, 1945.
Andersen & Resner, George R. Andersen, and Herbert Resner, all of San Francisco, Cal., for appellants.
E. Coke Hill, of San Francisco, Cal., for appellees Unemployment Compensation Commission of Territory of Alaska.
Marshall P. Madison, Francis R. Kirk-ham, Melvin E. Mensor, and Pillsbury, Madison & Sutro, all of San Francisco, Cal., and Faulkner & -Banfield, of Juneau, Alaska, for appellees Alaska Packers Ass’n et al.
Before DENMAN, HEALY, and BONE, Circuit Judges.
DENMAN, Circuit Judge.
This is an appeal from a judgment of the District Court of the United States for the Territory of Alaska, rendered in a proceeding to review a decision of the Unemployment Compensation Commission of the Territory. Under the Alaska Unemployment Compensation law appellant employees, hereafter called appellants, were admittedly entitled to unemployment compensation from the Commission for the several months’ period fixed by the Commission’s Regulation 10 of the fishing season of 1940 at the fishing and canning plants of the appellee corporations, hereafter called Canners, at Chignik, Karluk and Bristol Bay, Alaska.
The beneficent purpose of the Unemployment Compensation Law of Alaska is stated in its “Declaration of Territorial Public Policy,” as follows:
“Economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this Territory. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. * * * ”
The question here for determination is whether eight weeks’ time should be deducted from the admitted period of unemployment and appellants’ awards reduced by the compensation otherwise due for that period by reason of a claimed labor dispute in active progress for the eight weeks at the “factory, establishment or other premises” of the Canners, within the meaning of an exceptive provision of the Act, as follows:
“Section 5. Disqualification for Benefits. An individual shall be disqualified for benefits :
* * * * *
“(d) For any week with respect to which the Commission finds that his total or partial unemployment is due to a labor dispute which is in active progress at the factory, establishment or other premises at which he is or was last employed; provided, that such disqualification shall not exceed the 8 weeks immediately following the beginning of such dispute; * *
Such an exception to the beneficence of the Act must be strictly construed. In the recent case of A. H. Phillips, Inc. v. Walling, 65 S.Ct. 807, that Court considered the question of the rule of construction of the word “establishment” in a similar exception to the Fair Labor Standards Act of 1938, 52 Stat. 1060, 1067, 29 U.S.C. § 213(a) (2), 29 U.S.C.A. § 213(a) (2), that the wage and hour provisions of the Act shall not apply with respect to “ ‘any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.’ The issue posed by this case is whether employees working in the warehouse and central office of an interstate grocery chain store system are ‘engaged in any retail * * * establishment’ within the meaning of Section 13(a) (2) so as to be exempt from the wage and hour provisions.”
The Court states the rule of construction of exceptions to such humanitarian and remedial legislation, as here the Alaska Compensation Law is declared to be, as follows:
“The Fair Labor Standards Act was designed ‘to extend the frontiers of social progress’ by ‘insuring to all o„ur 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. To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people. We accordingly agree with the two courts below that the exception contained in Section 13(a) (2) is inapplicable in this case and that the employees involved are entitled to the benefits of the wage and hour provisions of the Act. We hold, in other words, that the warehouse and central office of petitioner’s chain store system cannot properly be considered a retail establishment within the meaning of Section 13(a) (2).”
In so holding, the Supreme Court states that “Prior to the adoption of the Fair Labor Standards Act the term ‘establishmentwas used in the sense of physical place of business by many census reports, business analyses, administrative regulations, and state taxing and regulatory statutes. * * *” (Emphasis supplied.)
Prior to the Phillips decision this circuit held in Canadian Pac. R. v. United States, 9 Cir., 73 F.2d 831, 834, a similar strict construction of a proviso excepting certain carriers from liability for overtime pay to employees of the Emigration Service under the Act of March 2, 1931, 8 U.S.C.A. § 109a, and in Reynolds v. Salt River Valley Assn., 9 Cir., 143 F.2d 863, 868 with reference to an exception to the Fair Labor Standards Act. See also same holding regarding excepting provisos in Fair Labor Standards Act in Eighth, Third and First Circuits: Fleming v. Hawkeye Button Co., 8 Cir., 113 F.2d 52, 57; Fleming v. A. B. Kirschbaum, 3 Cir., 124 F.2d 567, 572; Calaf v. Gonzalez, 1 Cir., 127 F.2d 934.
It is obvious that a workman seeking to recover under the Alaska Act would not be denied recovery unless, in addition to his unemployment, he also ■ proved that he had no “disqualification for benefits.” We have held that the burden of proving that an unemployed person, otherwise entitled to the compensation, is deprived of it by reason of falling within the exception is upon the party asserting it, here the appellees. Canadian Pac. R. v. United States, supra; Reynolds v. Salt River Valley Assn., supra; Schlemmer v. Buffalo, Rochester etc. R., 205 U.S. 1, 11, 27 S.Ct. 407, 51 L.Ed. 681.
It does not deed the application of the rule of strict construction to construe the words “factory” and “establishment” placed before the words “or other premises” in Section 5(d) of the Alaska Act as ejusdem generis with the concluding phrase and that the principle of noscitur a sociis applies. Strict construction would require such a construction as the Supreme Court made of the word “establishment” in a similar exception, supra, as the “physical place.” Webster’s New International Dictionary, Second Edition, 1940, defines the word “premises,” the plural of the word “premise,” as
“Premise * * * 4. pi. Law. The property conveyed in a deed; hence, in general [emphasis ours], a piece of land or real estate; sometimes, esp. in fire-insurance papers, a building, or buildings on land; as, to lease premises;' the premises insured. Sometimes loosely applied to personal property, as a vessel.”
The question then is whether appellees have established their burden of proof that there was a labor “dispute which, is in active progress at the factory, establishment or premises at which he is or was last employed.”
The three appellee corporations, called the Canners, maintain salmon fishing and canning establishments in Alaska at Chignik, Karluk and Bristol Bay. The establishments consist of canning factories and the premises surrounding them with quarters for the fishermen and canners, fishing boats and housing for the supplies and equipment of the establishments and their employees. Appellants, over 1300 men, residing in California, had been the employees of the Canners at these establishments in the previous fishing season of 1939. They had been carried to San Francisco on the vessels chartered or owned by the Canners. Their employment, as shown by paragraph 15 of the 1939 agreement between the Canners and the appellants, began when the employees boarded the vessels bound for Alaska and terminated on arrival of the vessels on return to San Francisco, unless leaving the employment in Alaska.
Appellants were last employed under their contract for the 1939 fishing seasons in Alaska. In that contract there are 37 paragraphs with over a hundred agreements between the 1300 employees and the Canners concerning the rates of pay, overtime, food, housing, racial discrimination, and numerous other relations of the employers and employees in the canning and fishing establishments in Alaska and on board the vessels. Any one of these agreements well may have produced a labor dispute at the establishments or on the vessels or adjacent thereto. Section 5(d) excepts the employees in all of these possible hundreds of labor disputes from the compensation of the Act for a maximum of 8 weeks. There is no merit to the contention that the exceptive section 5(d) must be intended to include disputes other than “at” such premises to give meaning and effect to the compensation Act.
The Canners’ and the Commission’s brief attempt to meet appellants’ contention only by an inferential treatment of Section 5(d) as if the words “at the factory,” etc. were to be stricken from their place after the words “active progress” and transposed above in the paragraph after the word “unemployment.” With such striking and transposing the paragraph would appear
“For any week with respect to which the Commission finds that his total or partial unemployment — at the factory, establishment or other premises at which he is or was last employed — is due to a labor dispute which is in active progress -at-tfee-faetoryv estabíish-mgnt — e?—ethsf—pre-raises—sfe which-he is or was last employed^-’
Even in the absence of the rule of strict construction we would not be justified in so reforming the phrases of the Act. Applying the rule, it is plain that such construction is not valid.
That is to say, the premises at which the appellees must prove the dispute was in active progress are such premises as the land and “physical” structures and fishing vessels in Alaska or the Canners’ vessels on the return voyage to San Francisco at which appellants were last employed.
Under the provisions of the Alaska Unemployment Compensation law appellants’ claims had been heard by a referee appointed by the Commission. At the opening of the hearing the appellants stated three contentions, of which the third we deem determinative. It is a pure question of law on the facts adduced specifically referring to Section 5(d) and the. place at which the dispute is in active progress. Appellants’ three contentions there were
“Mr. Resner [for employee appellants]. Well, I want to make a brief statement as to what our position is.
In the first place, we are contending this is not a labor dispute but simply a refusal on the part of the Alaska Packers to negotiate an agreement with the Union for the present season in Alaska affecting the Alaska Cannery Workers, Local No. 5, of San Francisco, and that is not a labor dis pute; and, therefore, these men are just out of work because of the refusal to enter into this agreement and are entitled to their benefits.
We want to contend, secondly, if under any circumstances this can be considered a labor dispute it is not such labor dispute within the meaning of the Act for these reasons: This is a seasonal industry and the contracts heretofore have been signed for' one year — have been negotiated and signed anew for each season. The contract of last year had expired and a new contract was to be signed for or negotiated for the coming season. There was no contract arrived at. And we contend the failure or the inability to arrive at a contract does not constitute a labor dispute.
Third, going to the Act itself, referring to Section 5(d), we contend this is not a labor dispute which is in active progress at the factory, establishment or other premises at which the workers were last employed." (Emphasis supplied.)
The referee states the controversy actually submitted to him to have been stipulated by the. parties to be confined to the “sole question” as to the dispute in progress “at” the Alaska plants, as follows:
“Pursuant to stipulation and understanding with Counsel for the respective parties the sole question before the Referee is to determine whether or not the facts show that at the commencement of the canning season in 1940 a labor dispute was in active progress at the plants at Karluk, Chignik and in Bristol Bay being the plants operated by the Employers in 1939 and at which the members of the Union were then employed." (Emphasis supplied.)
Appellees offered no testimony before the referee as to any dispute at the ships in which any appellant was last employed. No further testimony was taken at the subsequent proceeding before the Commission or the district court. Hence the appellees have not proved appellants within any excepted dispute at the appellees’ ships where they were last employed.
On the issue, so restricted, the referee decided adversely to the contentions of appellants, (a) that there had been no labor dispute and (b) if there were it did not exist at the Alaska plants. The referee found that there had been a labor dispute between appellants and the Canners, but found that it was in active progress for but six days “with reference to the Karluk plant operated in 1939 by the Alaska Packers Association” and for but twelve days “involving operation of the Chignik plant operated by the Alaska Packers Association” and that “at the time of the commencement of the season in Bristol Bay no labor dispute was in active progress at any of the plants operated in that District in 1939.” (Emphasis supplied). He decided that the Karluk employees should be denied six days’ compensation and the Chignik employees twelve days.
It is our opinion that the referee erred in holding against appellants on the question of law under consideration that the words of Section 5(d) “at the factory, establishment or other premises” mean “with reference to” or “involving operation of” such premises.
The evidence shows that early in 1940 a dispute arose between appellants and the Canners concerning the terms of the future fishing and canning employment of appellants for the approaching 1940 season at above mentioned establishments in Alaska and on the voyages to and from the canneries there. For the purpose of this opinion we assume, but do not decide, that it continued during the eight weeks in question. The beginning and entire activity of the dispute was “at” some unnamed place or places in San Francisco, California, and, it is claimed by the Canners, in part “at” some unnamed place in Seattle, Washington. Obviously, the dispute was not at the premises of any of the Alaska establishments.
The former Karluk and Chignik employees took no appeal to the Commission from the referee’s decision. We hold that there should be at least these deductions from the claims of the Karluk and Chignik employees, deductions which they apparently were willing to accept if the controversy there ended. There was no reason for an appeal by the Bristol Bay men.
However, the controversy continued. The referee’s decision was appealed to the Commission by the Canners, the Commission stating the Canners’ contention before it to involve the question of the premises “at” which the dispute was in progress as follows:
“The employers-respondents claim that the unemployment of the claimants-appellees is due to a labor dispute which was in active progress at the factory, establish ment or other premises of zvhich said claimants, and all of them, were last employed during the seasonable working period of the salmon industry of the Territory of Alaska, as set forth in said Commission’s Regulation No. 10.” (Emphasis supplied.)
The Commission considered the appeal on the record, made for it by the referee, of the parties’ contentions and stipulation and of the evidence taken on the stipulated issue. It thus had before it the contention of the insured men that
“Third, going to 'the A.ct itself, referring to Section 5(d), we contend this is not a labor dispute which is in active progress at the factory, establishment or other premises at which the workers were last employed” (emphasis supplied), and the stipulation of the parties confining the question to the existence of a dispute at the Alaska plants as follows:
“Pursuant to stipulation and understanding with Counsel for the respective parties the sole question before the Referee is to determine whether or not the facts show that at the commencement of the canning season in 1940 a labor dispute was in active progress at the plants at Karluk, Chignik and in Bristol Bay being the plants operated by the Employers in 1939 and at which the members of the Union were then employed.” (Emphasis supplied.)
The Commission evidently agreed with the referee that since the dispute was undeniably “with reference to” or “involving operation of” the Alaska plants in the future, it was a labor dispute then existing “at” the plants within section 5(d). Hence it confines its finding to the mere existence of the dispute during the eight weeks as follows:
“That there was an active labor dispute existing between said parties at the opening of the season; that said dispute continued, and that paragraph (d) under Section 5, under the title ‘Disqualification for Benefits’ provides * * * [followed by the words of Section 5(d)]”.
Obviously, a statement that a statute exists and setting forth its terms is not a minding of fact that the dispute between the. appellants and the Canners was actively pursued “at” the plants in Alaska named in the stipulation. In any event, there was no evidence to support such a finding had it been made. The dispute’s existence was “at” some place in California and possibly in Washington.
The appellants petitioned the district court for a review of the Commission’s decision. As before the Commission, they contended in assignments (a) to (c) that there was no dispute in active progress within the meaning of the word “dispute” in Section 5(d), 'and also, in assignment (d), that, assuming its existence, it was not “at” the premises of last employment as follows:
“d. The decision is in error in that there is neither finding nor conclusion that petitioners’ unemployment during the 1940 salmon canning season was ‘due’ to a labor dispute in active progress AT the premises where last employed (which means at the conclusion of the 1939 season), and not ‘due’ to other causes.” (Emphasis supplied.)
The hearing before the district court was upon the record before the referee stating the position of the insured men. The district court affirmed the Commission’s decision and, in its finding 10, found against appellants’ claim of error “d” supra, and that a labor dispute was in active progress at the Alaska canneries. This although throughout the proceedings in the three tribunals it was admitted that whatever dispute existed began and was carried on in either California or in Washington.
This appeal followed, appellants assigning here as error, inter alia, that finding 10 “that this labor dispute was in active progress at the cannery at which they were respectively last employed,” is not supported by the evidence.
Appellants’ brief here, at page 3 thereof, states the question as to the premises of the existence of the dispute as it was in issue before the referee, the Commission, and the district court
“Were appellants unemployed during the 1940 Alaska salmon season because of a labor dispute in active progress at the establishment at which they were last employed within the meaning of Section 5(d) of the Act?”
Appellants’ brief later answers the question, stating in its caption of section E of its argument
“E. There was no labor dispute in active progress at the ‘factory, establishment, or other premises’ where appellants were last employed.”
The argument is summarized as the last times appellants worked at any of the employers’ plants was in 1939. When the 1939 season ended appellants ceased to be employees of the employers. Work never started at any of the employers’ Alaska plants during 1940. It follows that there was no labor dispute at the place of last employment.
The Commission’s brief recognizes the challenge of the question of appellants’ brief by repeating it in full. Instead of construing the words of Section 5(d), the Commission apparently again assumes it to be sufficient that it is conceded that the dispute was “with reference to” or involved the “operation of” the plants referred to in the stipulation for the approaching season. Its brief says of the appellants’ challenging question as to the place of the dispute, “We think that statement not entirely accurate, that it is a little too broad,” and restates the question, omitting all reference to the premises “at” which the dispute was in active progress, as follows:
“We think the questions to be decided in this Court are: Is there substantial evidence to support the findings of fact of the Commission and' the District Court, and, can it be said as a matter of law that the Commission and the District Court were in error in finding that appellants’ unemployment was due to a labor dispute which was in active progress during the weeks for which appellants claim compensation ?”
At the hearing here counsel for appellants, in obvious distress at a sudden illness of the preceding night in his family, relied upon his brief. The court itself then pressed on counsel for the appellees the question so raised by appellants’ brief concerning the construction of the words of Section 5(d). Appellees’ counsel answered that they did not consider this question before us — and this with appellants’ assignment of error here as to finding 10 of the district court and the issue raised by the question and argument in appellants’ brief, which question is repeated in its exact words in the Commission’s brief.
To summarize, the attempt of the Commission here to treat the contention that the question of the “establishment at which they were last employed” as not under consideration throughout the litigation is in direct contradiction (1) to appellants’ opening contention “Third” and to the stipulation of counsel in the record before the referee upon which the entire proceeding is based; (2) to the Commission’s statement, supra, that this was the contention upon which the Canners appealed to the Commission; (3) to the ground “d” of appellants’ petition to the district court for review, supra; (4) to appellants’ claim of error here in finding 10 of the district court, supra, holding there was such a dispute but at the Alaska canning plants, and (5) to the brief of appellants here. It seems clear to us that the record in this regard cannot be misunderstood by anyone as showing that the Commission, either here or in the three prior hearings in the proceeding, has not had its day in court on the question of the construction of Section 5(d) of the Alaska Act.
We hold that appellees have not maintained their burden of proof that during the first eight weeks of the 1940 employment period there was a labor dispute at the premises of the appellants’ last employment. We further hold that regardless of the burden of proof, the evidence establishes affirmatively that no such dispute existed at the stipulated Alaska canning plants during appellants’ admitted unemployment. ,
Because of the lack of appeal of the Karluk and Chignik employees from the referee’s decision, a deduction must be made from the award for 12 days at Karluk and the 6 days at Chignik. There should be no deduction, because of the dispute, ■ from the claims of the Bristol Bay employees.
Section 6(i) of the Act, providing for this “judicial proceeding” in the district court and appeal to this court, requires that
“Upon the final determination of such judicial proceeding the Commission shall enter an order in accordance with such determination.” (Emphasis supplied.)
It is our determination that the evidence shows appellants are entitled to their compensation for their unemployment in the fishing season of 1940 above considered, without deduction by reason of the labor dispute here in question, other than that for the Karluk and Chignik employees, held to be deducted by the referee as above recited; and that the Commission shall enter an order in accordance with such determination.
The judgment of the district court is reversed and the district court instructed to enter a judgment in accord with this opinion.
Reversed.
Alaska Stats., Ch. 4, Extraordinary Session Laws of 1937, as amended by Ob. 1 and 51, S.L.1939 — hereafter designated Act.
“15. On days of arrival or departure the hour twelve (12) midnight shall be considered the basis for the computation of the payroll. On days of arrival or departure one full day shall be paid irrespective of exact time of arrival or departure with regards to the hour of 12 midnight. Wages shall commence on the day of departure and terminate on the day of return to the port of dispatching, except as herein otherwise provided.
“In the event that any employee does not elect to return to original port of embarkation upon a suitable vessel by and at the direction of the Company at the termination of the season, his employment shall be considered terminated and he shall be paid all wages due him within forty-eight (48) hours, subject to all provisions of this agreement, in which event the Company will be relieved of all obligations to the employee for return transportation.”
“10. That the unemployment of claimants in the 1940 fishing and canning season, and the whole thereof, was due to a labor dispute existing between the employers, the respondent companies herein, and the claimants, and that this labor dispute was in active progress at the cannery at which they were respectwely last employed, and there was an active labor dispute between the claimants and the respondent employers during the entire canning season as defined by the Commission at , the respective canning plants at Chignik, Karluk and various points in Bristol Bay, Alaska.” (Emphasis supplied.)
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_applfrom
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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 type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Michael Robert SHAFFER, Appellant, v. UNITED STATES of America, Appellee.
No. 19624.
United States Court of Appeals Fifth Circuit.
Oct. 17, 1962.
Rehearing Denied Nov. 26, 1962.
Frank P. Fullerton, Joseph A. Calamia, El Paso, Tex., for appellant.
Frederick J. Morton, Asst. U. S. Atty., El Paso, Tex., Ernest Morgan, U. S. Atty., San Antonio, Tex., M. H. Raney, Asst. U. S. Atty., El Paso, Tex., for ap-pellee.
Before TUTTLE, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.
PER CURIAM.
This is an appeal from a felony conviction for an “assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse * *.” 18 U.S.C.A. § 113(c). The question involved here is whether the evidence is sufficient to support the trial Court’s finding that the admitted assault was “with intent to do bodily harm.” Under the statute this element distinguishes a felony from a misdemeanor. 18 U.S.C.A. § 113(e). We hold that the evidence is sufficient.
At the time of the offense, the defendant, a PFC in the United States Army, was confined in the Stockade at Ft. Bliss, Texas. While out on detail with two other prisoners and accompanied by a guard carrying a 12 gauge sawed-off shotgun, the defendant snatched the gun from the guard and pumped a shell into the chamber. Holding the gun in both hands and waving it back and forth, the defendant asked the other prisoners if they desired to go with him. They replied negatively. Defendant then made his escape after telling the guard and the other prisoners to remain in the latrine for five minutes or he would shoot their heads off.
The Court below found that the loaded gun was a dangerous weapon. Not even the defendant could quarrel with this obvious fact. Certainly an instrument of this sort which is capable of inflicting grave bodily harm or death is a dangerous weapon.
Obviously, the defendant here did not have a legal justification or excuse for his actions. He was confined in an Army “jail.” To effectuate his escape, he brandished a loaded gun in the presence of others and threatened them with bodily harm should they make any effort to stop him.
There can be no real question of proof of an “assault.” The proof of malice is not a necessary ingredient of an assault. Neither is it necessary that there actually be an attempt to commit a battery. It is sufficient if, viewed from the standpoint of the victim, there is an apparent intent to commit a battery coupled with a present ability to do so. These facts were present here.
The only possible question is whether there is sufficient evidence to support the finding that the defendant had the requisite “intent to do bodily harm” to his guard or the other prisoners. This is not to be measured by the secret motive of the actor or some undisclosed purpose merely to frighten, not to hurt. This is to be judged objectively from the visible conduct of the actor and' what one in the position of the victim might reasonably conclude. The present ability of the defendant to fire the gun, the fact that he pumped a shell into the chamber, flourished the apparently loaded gun in the presence of the others, and threatened some or all that he would shoot unless they did his bidding was quite ample for the trier to conclude that unless the threat alone was enough, the defendant intended bodily harm.
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_appel1_7_2
|
B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America, Appellee, v. Arthur HANSEN, Defendant-Appellant.
No. 803, Docket 81-1335.
United States Court of Appeals, Second Circuit.
Submitted Nov. 9, 1982.
Decided March 4, 1983.
Barry Bassis, The Legal Aid Society, Federal Defender Services Unit, New York City, submitted a brief, for defendant-appellant.
George W.F. Cook, U.S. Atty., and P. Scott McGee, Asst. U.S. Atty., Burlington, Vt., submitted a brief, for appellee.
Before NEWMAN and CARDAMONE, Circuit Judges, and BURNS, District Judge.
The Honorable Ellen Bree Burns of the United States District Court for the District of Connecticut, sitting by designation.
NEWMAN, Circuit Judge:
This appeal from a conviction in a criminal case, now before us on a petition for rehearing, poses unusual aspects of the always troubling matter of the insanity defense. Arthur Hansen appeals from a judgment of the District Court for the District of Vermont (Albert D. Coffrin, Judge) convicting him, after a bench trial, of two counts of federal firearms violations. Count I charged Hansen with falsely denying that he was a mental patient at the time he purchased a firearm, in violation of 18 U.S.C. §§ 922(a)(6), (d)(4), 924(a) (1976), and Count II charged him with receiving a firearm after being committed to a mental institution, in violation of 18 U.S.C. §§ 922(h)(4), 924(a) (1976). Judge Coffrin imposed maximum sentences of five years on each count and ordered them to be served consecutively for an aggregate sentence of ten years. The bizarre nature of the case can readily be appreciated with knowledge of just the essential factual context in which the violations occurred: while involuntarily confined at the Vermont State Hospital and Mental Institution, Hansen made a suicide pact with his friend, Danny Ramirez, another inmate of the hospital, procured a weapon for their use, watched Ramirez use the weapon to take his own life, and then, apparently jolted by the horror of the scene, declined to complete the dreadful bargain. We readily acknowledge that the extraordinary circumstances that have befallen this deeply disturbed young man have caused us to give the matter extended reflection. Though we initially affirmed the judgment by summary order, 688 F.2d 817, we now conclude that the appropriate disposition is to vacate the sentence and remand for resentencing in light of the considerations set forth in this opinion.
I.
At our initial consideration of the appeal, we were asked to rule that the evidence was insufficient as a matter of law to permit a finding that the Government had sustained its burden of proof under the test of criminal responsibility prevailing in this Circuit. See United States v. Freeman, 357 F.2d 606, 622 (2d Cir.1966). Appellant contended that by reason of a mental disease or defect he lacked substantial capacity to conform his conduct to the requirements of law, and that the evidence was insufficient as a matter of law to permit a reasonable fact-finder to conclude that the Government had proved his responsibility under the Freeman test beyond a reasonable doubt. See United States v. Taylor, 464 F.2d 240 (2d Cir.1972).
The District Court heard the testimony of four psychiatrists. Though all four agreed that Hansen suffers from a severe form of schizophrenia, they differed in their ultimate conclusions as to the effect of his illness upon his conduct. We were satisfied at the initial hearing of the appeal that the testimony of Dr. John Ives, testifying for the Government, adequately supported the District Court’s finding of criminal responsibility, and our review of the record in light of the contentions advanced by defendant in his petition for rehearing have not altered our conclusion. Moreover, we adhere to the view, previously expressed in our summary order, that the testimony of some of the doctors who differed with Dr. Ives contained elements that permitted the trier of fact to discount the force of their ultimate conclusions.
However, our reexamination of the record occasioned by the petition for rehearing has brought to the fore an issue that deserves further consideration: whether a sentence for conduct for which a defendant is criminally responsible may be enhanced, within statutory limits, on the basis of additional conduct for which the defendant might not be criminally responsible. We asked the parties to present additional briefs on this issue and its pertinence to the facts of this case.
II.
The insanity defense in Anglo-American criminal jurisprudence has been consistent in its focus upon the mental state of the accused in relation to the conduct constituting the offense charged. Though the standards of the law of civil commitment focus on the mental state of the individual unrelated to any specific conduct, e.g., Vt.Stat. Ann. tit. 18, §§ 7504-7505 (1968 & Supp. 1982); see Developments in the Law — Civil Commitment of the Mentally Ill, 87 Harv.L. Rev. 1190, 1201-07 (1974), the criminal law, responding to the occurrence that warrants the law’s intervention, has not inquired whether the mental state of the accused generally precludes responsibility for criminal conduct, but concerns itself precisely with the mental state of the accused in the doing of the proscribed act. This approach was evident in the M’Naghten Rule and has been a central ingredient of the various subsequent formulations of the insanity defense, including the standard of the American Law Institute, currently adopted in this Circuit, see United States v. Freeman, supra, 357 F.2d at 625-26.
Hansen’s conviction illustrates the full rigor of the doctrine that confines the insanity defense to conduct constituting the offense charged. Hansen is sufficiently insane to have been committed to a state mental hospital. Moreover, there is the distinct possibility, not precluded by any finding that has yet been made, that Hansen could not be found criminally responsible for the overall course of conduct that resulted in the death of his friend. That is to say, if the State of Vermont had endeavored to prosecute Hansen on state charges of contributing to the death of Ramirez, we cannot be certain whether evidence would prove beyond a reasonable doubt that Hansen had substantial capacity to conform his conduct to the law’s requirements with respect to making the suicide pact and furnishing the gun to Ramirez, knowing of his friend’s intended use. Nevertheless Hansen has been validly convicted of two discrete acts committed in the course of a sequence of larger events for which his criminal responsibility has not been proven and perhaps could not be proven. These circumstances are unusual because in this case the acts constituting the offenses charged, though significant, are in themselves far less serious than the consequences of the acts, whereas in most cases involving the insanity defense, the conduct that is the offense is not only serious on its own terms but also generally far more serious than other acts of the accused that may be offered as evidence of insanity.
As an initial proposition, it might have been maintained that the insanity defense should be available to an accused who can put in issue his impaired mental state in relation to either the precise acts constituting the crime charged or the course of conduct of which those acts were a part. But the entire development of the insanity defense has focused on the condition of the accused’s mind in relation to only the acts constituting the offense charged, and we accept that focused relationship as a limitation inherent in the' defense. That very limitation, however, prompts our further inquiry into the permissible adverse use at sentencing of conduct for which an accused might not be criminally responsible.
III.
As a general matter a sentencing judge has broad discretion to consider all aspects of a defendant’s conduct. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States v. Sweig, 454 F.2d 181, 183-84 (2d Cir.1972); 18 U.S.C. § 3577 (1976). However, when sentences have been enhanced because of conduct other than that for which the defendant was convicted, the responses of appellate courts have not been uniform. On the one hand, a sentencing judge has been permitted to consider evidence of other crimes for which the defendant was neither tried nor convicted, United States v. Cifarelli, 401 F.2d 512, 514 (2d Cir.) (per curiam), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968), or for which charges were brought and dismissed, United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965), or for which a trial resulted in an acquittal, United States v. Sweig, supra, 454 F.2d at 184. On the other hand, a sentencing judge may not consider prior convictions unconstitutionally obtained, United States v. Tucker, supra, 404 U.S. at 447-49, 92 S.Ct. at 591-92; McGee v. United States, 462 F.2d 243, 245 (2d Cir.1972), and may not enhance a sentence because of a defendant’s refusal to implicate his confederates, United States v. Bradford, 645 F.2d 115, 117 (2d Cir.1981); DiGiovanni v. United States, 596 F.2d 74, 75 (2d Cir.1979), though lack of cooperation may apparently be assessed along with other factors, United States v. Bradford, supra, 645 F.2d at 117; United States v. Barnes, 604 F.2d 121, 154 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980).
Whether or not these decisions can all be harmonized, those that approve consideration by a sentencing judge of conduct collateral to the primary conduct for which the defendant was convicted have not always articulated the rationale for doing so. Some light is shed by the Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), in which the Court outlined the circumstances in which a sentencing judge may impose a higher sentence after retrial than the sentence imposed upon an initial conviction that was reversed on appeal. An increased sentence is permitted if the sentencing judge imposes it for reasons that relate to “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. at 726, 89 S.Ct. at 2081. Pearce illuminates our problem in several respects. First, the Court has made clear that collateral conduct can provide the basis for a discrete increment beyond the sentence that would be imposed in its absence. Second, the Court has indicated that the purpose of considering the collateral conduct is to gain a fuller assessment of the defendant so that the punishment will “ ‘fit the offender and not merely the crime’ ” for which he was convicted. Id. at 723, 89 S.Ct. at 2079 (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949)). The collateral conduct “may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ ” Id. (quoting Williams v. New York, supra, 337 U.S. at 245, 69 S.Ct. at 1082). Third, the Court has cautioned that when there arises a risk that an increment of a sentence might have been impermissibly included to punish a defendant for conduct that is not blameworthy, a sentencing court may be obliged to articulate its reasons for adding the increment to ensure that only permissible considerations underlie it. In Pearce the conduct that the Court sought to ensure would not be the occasion for increased punishment was the defendant’s exercise of his statutory right to appeal his initial conviction. Pearce is therefore not directly analogous to our case because even if an increment of Hansen’s sentence was imposed because of the consequences of his criminal conduct, there is no risk whatever of penalizing him for conduct protected by state law. Nevertheless, Pearce is instructive in pointing out the value of articulated reasons for a sentence in those special circumstances where a sentence imposed without explanation creates a risk that the sentence may have been based in part on an impermissible factor.
The issue we confront concerns collateral conduct that might never result in conviction because of the insanity defense. In some circumstances, the law permits enhancement of punishment for conduct that could not be the basis of a valid conviction. Acts of juvenile delinquency, committed below the age at which the law permits conviction and imposition of sentence, may nonetheless enhance the sentence of an adult offender. See, e.g., United States v. Madison, 689 F.2d 1300, 1315 (7th Cir.1982); cases cited in Annot., 64 A.L.R.3d 1291 (1975). A sentence may be enhanced because of conduct for which prosecution is barred by the pertinent statute of limitations. See, e.g., United States v. Wondrack, 578 F.2d 808 (9th Cir.1978) (court enhanced sentence of defendant convicted of tax fraud because unreported income was result of illegal activities, for which defendant had never been indicted and on which the statute of limitations had apparently run at the time of sentencing). A sentencing judge may take into account a defendant’s habitual association with known criminals, although prosecution for such conduct would encounter substantial constitutional objections. Each of these illustrations, however, differs from the problem we confront in a significant respect: the defendant bears in some sense a moral responsibility for the conduct considered by the sentencing judge, even though the law elects not to permit conviction and punishment for such conduct. But conduct committed when the requisite mental state is lacking due to insanity is conduct for which the law recognizes no moral responsibility at all.
More pertinent to our problem is the permissible use at sentencing of conditions affecting the defendant that could not be the basis for the imposition of penal sanctions. For example, sentencing judges frequently consider a defendant’s addiction to narcotics or alcohol, though such a status cannot be the basis of a criminal conviction, see Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). A defendant’s illiteracy or lack of job skills also illustrates the point. Though the rationale for reliance on such conditions in formulating a sentence are rarely articulated, it seems evident that the legitimacy of such considerations derives primarily from their relationship to the permissible sentencing objective of rehabilitation. Surely a sentence would encounter serious objections if it were enhanced because of addiction or illiteracy to achieve such sentencing objectives as retribution, denunciation, or specific or general deterrence. These sentencing objectives are generally thought to be permissible only with respect to conduct for which the defendant is blameworthy.
It is a fundamental principle of criminal law that a person may not be held legally responsible for conduct unless his mental state meets the prevailing standard of legal sanity. We think the same principle that requires a finding of criminal responsibility before a conviction may be obtained exerts a substantial caution against the enhancement of a sentence because of conduct for which the defendant was not criminally responsible. To countenance unfettered use of such conduct to enhance punishment would be to ignore “the long unbroken tradition of the criminal law that harsh sanctions should not be imposed where moral culpability is lacking.” Lennon v. Immigration and Naturalization Service, 527 F.2d 187,193 (2d Cir.1975). We do not doubt that a sentencing judge may consider the mental state of a defendant and any acts of misconduct he may have committed in assessing his need for rehabilitation and his potential dangerousness. The legitimacy of such consideration, however, does not warrant condemnation for conduct for which the defendant bears no criminal responsibility. When the Supreme Court in Williams v. New York, supra, and in North Carolina v. Pearce, supra, recognizes that collateral conduct may throw light on a defendant’s “moral propensities,” it cannot mean that a defendant is to be adjudged morally less worthy because of some insane act. To enhance a sentence for conduct that was the product of insanity in order to achieve the punitive purposes of sentencing would be as intolerable as aggravating a sentence for acts done under threat of imminent death or serious bodily injury.
The point we make is a very narrow one. We intend no limitation on the broad discretion of sentencing judges in the general run of cases, and even in unusual cases like Hansen’s, where the record reveals conduct, beyond the offenses charged, as to which there is a serious issue of criminal responsibility, we do not preclude the sentencing judge’s consideration of such conduct in selecting a sentence that meets the defendant’s need for rehabilitation and treatment or the community’s need for protection. Our only concern is that conduct that may have been the product of mental illness should not result in a sentence enhanced in order to achieve those punitive purposes of sentencing traditionally associated with conduct for which an individual may properly be held responsible.
IV.
In this case, the record raises a substantial question whether the decision of the sentencing judge to impose a maximum aggregate sentence of ten years may have improperly penalized the defendant for his conduct in making and endeavoring to carry out á suicide pact, conduct for which he might not be criminally responsible by reason of mental illness. We turn our attention first to the considerations articulated by the District Judge in imposing sentence and then to the state of the record concerning Hansen’s responsibility for any conduct other than the bare acts of procuring the firearm and falsifying the application for it.
Judge Coffrin obviously faced a difficult task in selecting an appropriate sentence for Arthur Hansen. At least three circumstances were available for consideration. First, Hansen stood convicted of two federal firearms offenses for which the maximum aggregate penalty was ten years. Though those offenses were significant in themselves, their elements did not include any infliction of harm against another person. As defense counsel pointed out at sentencing, sentences for obtaining a firearm by a false statement are frequently lenient, and probation is not unusual. Second, Hansen suffered from a serious mental illness, which inevitably occasioned both concern for his unfortunate plight and apprehension over the risks he posed to himself and other persons. Third, Hansen had been a participant in a course of conduct that had resulted in the death of his friend. As the prosecutor argued at the sentence hearing, Hansen’s acts on the day of the offense “were knowingly done not just to get Mr. Hansen a gun, but for a very abhorent [sic] purpose which resulted in the death of another patient at the hospital.”
Facing these considerations, Judge Coff-rin could not fail to have been moved by the difficulties presented, and his colloquies with counsel and the defendant reflect an earnest effort to approach his unenviable task with care and sensitivity. The death of Hansen’s friend, and other violent episodes in Hansen’s past, obviously weighed heavily with the District Judge, although he explicitly recognized that these were not matters for which Hansen was being sentenced. As he told defense counsel, “Well, of concern to the Court, and I will be quite frank with you, is the fact that Mr. Hansen has had a propensity in the past to be, more or less recent past, to at least be around where violent death has occurred on at least three occasions, and that is not what he is before the Court this afternoon charged with or being sentenced, but it is of concern to the Court that at least incidentally or coincidentally it has occurred.... [I]t is of concern to the Court when it comes to fashioning what would be an appropriate sentence.” Speaking to the defendant, Judge Coffrin said, “I cannot impress upon you enough how concerned society has been with your problem, but also concerned with the results that have occurred when you fail to take your medication, or when you fail to respond to treatment . ... ” Though these remarks acknowledge that the tragic death of Hansen’s friend was not what Hansen was being sentenced for, they leave ambiguous the purposes for which the sentencing judge assessed the consequences of Hansen’s conduct. Prom our review of the sentencing hearing we cannot be certain that the sentence was not enhanced to punish Hansen because of the consequences of his violations, specifically his activity in furnishing the firearm to his friend and thereby facilitating the friend’s death. It is possible that Judge Coffrin conscientiously put aside any thought of penalizing Hansen for the consequences of his federal law violations and imposed the maximum ten-year sentence for Hansen’s rehabilitation or out of concern that an extended period of incarceration was needed to safeguard the community from the risk of dangerous behavior. But the distinct possibility that the sentence was enhanced to punish Hansen because of his use of the firearm after its purchase, or at least hold him accountable for such conduct, prompts us to examine what the record reveals as to his criminal responsibility for such conduct.
Dr. Ives was the only medical expert who expressed an opinion that Hansen, though unquestionably suffering from a mental disease, did not lack substantial capacity to conform his conduct to the requirements of the law. Examination of his testimony leaves no doubt that he was willing to express this opinion only with respect to Hansen’s precise conduct constituting the offenses charged — obtaining the firearm and falsifying his application for it. The following portions of his testimony make the point clear:
Q. [by the prosecutor] [W]ith respect to the second prong of [the Freeman test of criminal responsibility], specifically with respect to the criminal conduct in question, namely, the falsification of a federal firearms form in obtaining a firearm and with respect to the date and time which that conduct occurred, October 12th, 1979, in your opinion did the Defendant have or lack substantial capacity to conform his conduct to the requirements of the law?
A. With the question put in that particular narrow form, I would have to say that he did indeed have the capacity to conform his conduct to the requirements of the law. In other words, he may have very much been interested in suicide, but he could have done it by another means.
Q. [by defense counsel] So basically, I think the most fair statement that could be made here, isn’t it, that really you don’t know whether Mr. Hansen could have conformed his conduct to the requirements of the law on the day in question?
A. It rather depends on how the question i[s] phrased. I certainly could answer the prosecutor’s statement as you noted. If the question were phrased more broadly, then perhaps I would have difficulty in answering the question that you are mentioning now.
Q. [by the Court] Well, as far as the act in question is concerned, based on the medical definition of insanity as opposed to the legal definition of insanity, you would still say that he was not insane on that narrow issue of falsifying a form?
A. Given the narrow definition, I would have to say that he was sane in regards to the filling out of the form. I would have to point out, however, that given a broader medical definition of insanity, I believe that the subject is insane.
Q. [by defense counsel] And that’s why in your report you never really came to a conclusion on whether Mr. Hansen could conform his conduct to the requirements of law, is that correct?
A. That is correct. The only way I could resolve that question was by waiting to hear the precise form the question would take.
The téstimony of Dr. Ives and that of the other medical experts at the very least leaves unresolved the issue whether Hansen had substantial capacity to conform to the requirements of the law his conduct after the precise acts that constitute the federal offenses. Unquestionably no finding has been made as to whether Hansen’s mental state permits holding him responsible for his conduct subsequent to purchasing the firearm.
The record is thus unclear both as to whether (1) Hansen could be found criminally responsible for his conduct in making the firearm available to his friend, knowing its intended use, and (2) the purposes for which such conduct was considered in enhancing the sentence. Under these circumstances we consider this to be a case where a reasoned explanation for the sentence imposed would be not only helpful, see, United States v. Driscoll, 496 F.2d 252 (2d Cir.1974); United States v. Velazquez, 482 F.2d 139 (2d Cir.1973); United States v. Brown, 479 F.2d 1170 (2d Cir.1973), but necessary to ensure that the sentence has not been impermissibly enhanced, cf. North Carolina v. Pearce, supra. Therefore, in light of the unusual facts underlying this particular conviction, we grant the petition for rehearing, vacate the sentence, and remand to the District Court for resentencing. Upon remand, the District Court may either impose sentence without regard to Hansen’s conduct subsequent to purchase of the firearm, or, if such conduct is relied upon, clarify the purpose for which such conduct is being considered. In the latter event, the sentence may not reflect any attribution of blame upon Hansen for what he did with the firearm unless the Court is able to find, on the existing or a supplemented record, that Hansen’s mental state rendered him responsible for such conduct according to the Freeman standard. Since such a finding, if made, will be the basis for selecting a sentence rather than adjudicating guilt, it need be not established beyond a reasonable doubt. See United States v. Fatico, 603 F.2d 1053, 1057 & n. 9 (2d Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980); Hollis v. Smith, 571 F.2d 685, 694-96 (2d Cir.1978). Whether or not Judge Coffrin elects to consider Hansen’s use of the firearm in connection with the suicide pact, he may wish to consider, upon resentencing, the circumstances of Hansen’s recent incarceration.
Petition for rehearing granted, sentence vacated, and cause remanded for resentenc-ing.
. “[I]t must be clearly proved that, at the time of the committing of the act, the party accused was labouring-under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.” M’Naghten's Case, 10 Clark & Fin. 200, 210, 8 Eng.Rep. 718, 722 (H.L. 1843) (emphasis added).
. See, for example, the “irresistible impulse” test, supplementing the M’Naghten “right-wrong” test, see Smith v. United States, 36 F.2d 548, 549 (D.C.Cir.1929) (“The modern doctrine is that the degree of insanity which will relieve the accused of the consequences of a criminal act must be such as to create in his mind an uncontrollable impulse to commit the offense charged.’’) (emphasis added), and the Durham test, displacing the M’Naghten test in the District of Columbia from 1954 to 1972, see Durham v. United States, 214 F.2d 862, 874-75 (D.C.Cir.1954) (“[A]n accused is not criminally responsible if his unlawful act was the product of mental disease or defect.”) (emphasis added).
. “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Model Penal Code § 4.01(1) (Final Draft 1962) (emphasis added).
. It would, of course, be entirely inadmissible to maintain that an impaired mental state with respect to a specific act should insulate an accused from responsibility for unrelated conduct. See United States v. Brawner, 471 F.2d 969, 991 (D.C.Cir.1972) (en banc) (“Presumably the mental disease of a kleptomaniac does not entail as a ‘result’ a lack of capacity to conform to the law prohibiting rape.”).
. We are not concerned with a situation in which a convicted defendant, endeavoring to mitigate a sentence, offers evidence of bizarre behavior to show a mental impairment that might justify leniency, thereby accepting the risk that such conduct might be perceived as an aggravating circumstance. See Granviel v. Estelle, 655 F.2d 673, 675-76 (5th Cir. 1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982).
. In the context of a resentencing after a successful appeal and a subsequent conviction, the Court in Pearce confined consideration of collateral conduct for purposes of an increased sentence to conduct occurring after the original sentencing. See North Carolina v. Pearce, supra, 395 U.S. at 726, 89 S.Ct. at 2081. The limitation is stated in the majority opinion and made emphatic by comparison with the partial concurrence of Justice White, see id. at 751, 89 S.Ct. at 2088 (expressing view that an increased sentence should be permissible “based on any objective, identifiable factual data not known to the trial judge at the time of the original sentencing proceeding”). This limitation may reflect apprehension that reliance on “newly discovered” facts occurring prior to the original sentence might too easily disguise an intention to punish for exercising a right of appeal, or, at a minimum, might be perceived by potential appellants as serving such an impermissible purpose and thereby deter appeals.
. Attributing a moral responsibility to a juvenile delinquent with respect to acts of misconduct is appropriate for youths of sufficient age to have the requisite mens rea, an age the common law thought was seven, In re Gault, 387 U.S. 1, 16, 87 S.Ct. 1428, 1437, 18 L.Ed.2d 527 (1967).
. “The courts have emphasized over the centuries that ‘free will’ is the postulate of responsibility under our jurisdiction. 4 Blackstone’s Commentaries 27.... The concept of lack of ‘free will’ is both the root of origin of the insanity defense and the line of its growth.” United States v. Brawner, supra, 471 F.2d at 985-86 (footnote omitted).
. Defense counsel represents that Hansen was initially sent to the United States Medical Center for Federal Prisoners at Springfield, Missouri. He remained there only two months and was transferred to the Federal Correctional Institution at Milan, Michigan. At FCI, Milan, Hansen attempted suicide by cutting his wrists and was returned to Springfield. Counsel alleges that the Bureau of Prisons contemplates returning Hansen to Milan.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
TAXATION WITH REPRESENTATION FUND v. INTERNAL REVENUE SERVICE, Appellant.
No. 80-1688.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 15, 1981.
Decided March 12, 1981.
Stephen Gray, Atty., Dept, of Justice, Washington, D. C., with whom M. Carr Ferguson, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., Michael L. Paup and Richard W. Perkins, Attys., Dept, of Justice, Washington, D. C., were on brief for appellant. Ernest J. Brown, Atty., Dept, of Justice, Washington, D. C., also entered an appearance for appellant.
William A. Dobrovir, Washington, D. C., with whom Thomas F. Field, Washington, D. C., was on brief for appellee.
Before ROBB and EDWARDS, Circuit Judges, and PENN, District Judge, United States District Court for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
HARRY T. EDWARDS, Circuit Judge:
The issues raised by this appeal require this court’s consideration for the first time whether certain records of the Internal Revenue Service (“IRS”) may be withheld from public disclosure pursuant to Exemption 5 of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(b)(5). Exemption 5 of the FOIA protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). While Exemption 5 has been construed generally to exempt those documents normally privileged in the civil discovery context, the focus of this litigation is the “deliberative process” privilege portion of Exemption 5.
The records in dispute in this ease fall under three general headings: General Counsel’s Memoranda (“GCMs”), Technical Memoranda (“TMs”), and Actions on Decisions (“AODs”). After carefully considering the evidence before it, the District Court found that none of the disputed documents were covered by Exemption 5. Taxation With Representation Fund v. Internal Revenue Service, 485 F.Supp. 263 (D.D.C. 1980). As to the GCMs, the trial court found that these documents “contain the reasons behind the adoption of revenue rulings, private letter rulings, and technical advice memoranda,” and that they are “indexed and have important precedential value in determining future tax questions.” Id. at 266. As to AODs, the trial court found that the documents “contain the reasons behind the acquiescence or nonacquiescence of the IRS in court decisions,” and that the documents are “made available to IRS personnel and are cited and applied by IRS personnel in later AOD’s, and TM’s to promote the consistent application of the tax laws.” Id. at 267. As to the TMs, the trial court found that these documents “explain the reasons behind the adoption of [a] Treasury Decision” and that “[t]hey are used by IRS personnel in determining the tax status of taxpayers.” Id.
Given these findings, the District Court concluded that the disputed documents could not be protected from disclosure under the executive “deliberative process” privilege encompassed by Exemption 5. The court also concluded that the disputed material was “not protected by the attorney-client privilege and does not constitute protected attorney work product.” Id. at 268. Pursuant to these conclusions, the District Court ordered the IRS to make available all existing and future GCMs, TMs and AODs, and related indices, upon request, subject to the nonapplicability of other exemptions. See Taxation With Representation Fund v. Internal Revenue Service, 485 F.Supp. 263 (D.D.C.1980) and Supplemental Order, reprinted in Joint Appendix (“J.A.”) at 191. For the reasons discussed below, we affirm the judgment of the District Court with certain modifications indicated in this opinion.
I. BACKGROUND
In order to get a clear understanding of the issues at stake here, it is essential to focus on the disputed documents which are the subject of this appeal. To this end, in this section we will first describe GCMs, TMs and AODs, and explain the function and significance of each document in IRS decisionmaking processes, and then outline the procedural history of this case.
A. Descriptions of the Documents
1. General Counsel’s Memoranda (GCMs)
General Counsel’s Memoranda are: legal memorandums from the Office of Chief Counsel to the Internal Revenue Service prepared in response to a formal request for legal advice from the Assistant Commissioner (Technical). They are primarily prepared by attorneys in the Interpretative Division of the Office of Chief Counsel and usually addressed to the Office of the Assistant Commissioner (Technical) in connection with the review of proposed private letter rulings, proposed technical advice memorandums, and proposed revenue rulings (hereinafter proposed determinations) of the Service. The GCM sets forth the issues presented by whichever of these proposed determinations is under review, the conclusions reached and a brief factual summary. The body of the GCM contains a lengthy legal analysis of the substantive issues, and the recommendations and opinions of the Office of Chief Counsel. The GCM is often accompanied by a draft of the proposed determination that reflects the changes and modifications recommended in the GCM.
Affidavit of Jerome D. Sebastian, Director, Interpretative Division, Office of Chief Counsel, Internal Revenue Service, reprinted in J.A. at 165, 166.
Generally, GCMs are prepared in connection with approximately two percent of all proposed revenue rulings, private letter rulings, or proposed technical advice memoranda issued by the Office of Assistant Commissioner (Technical). Defendant’s “Statement of Material Facts As To Which There Is No Genuine Issue,” reprinted in J.A. at 153, 155 [hereinafter “Defendant’s Statement”]. The preparation of GCMs involves the research of appropriate statutes, regulations, revenue rulings and case law, as well as previous GCMs and briefs prepared by the Office of Chief Counsel. Id. While less elaborate GCMs may consist of a single, short paragraph, full scale GCMs follow a specific format — including “Issue,” “Conclusion,” “Facts,” and “Analysis” — which is set out in written instructions to the lawyers who prepare GCMs. Id. at 156.
A completed GCM is forwarded to the Office of the Assistant Commissioner (Technical), who uses the memorandum to determine “what positions will be taken in the proposed revenue ruling, proposed private letter ruling, or proposed technical advice memorandum.” Id. The Office of the Assistant Commissioner (Technical) is responsible for the issuance of IRS revenue rulings, private letter rulings, and technical advice memoranda; in handling this responsibility, the Assistant Commissioner “acts as the principal assistant to the Commissioner in providing basic principles and rules for the uniform interpretation and application of the Federal tax laws.” Internal Revenue Service Manual § 1113.9, reprinted in Appellee’s brief, Addendum. In other words, the Assistant Commissioner (Technical), is the final decisionmaker of significant agency law and policy.
If differences arise between the positions of the Office of Assistant Commissioner (Technical) and the Office of Chief Counsel, the differences “are generally reconciled on an informal basis before the adoption of the revenue ruling, private letter ruling, or technical advice memorandum in question.” “Defendant’s Statement,” supra, at 156-57. After the Assistant Commissioner (Technical) makes a final decision on the substantive issue(s) posed in a revenue ruling, private letter ruling or technical advice memorandum, the GCM is modified and rewritten “to represent the position taken in the .. . ruling.” The District Court’s finding that “differences between the GCM and ruling are resolved before the GCM is considered complete and before it becomes available for future reference,” as well as our own understanding from the record and the oral arguments made by counsel as to what happens to the memoranda, support the conclusion that the entire document, body and conclusion, is rewritten to reflect the Assistant Commissioner’s position.
Completed GCMs are then copied and distributed to key officials within the Internal Revenue Service, including the Office of Chief Counsel. “Defendant’s Statement,” supra, J.A. at 157. The Digest Section of the Interpretative Division, Office of Chief Counsel, also prepares 161 copies of a weekly “Library Digest Bulletin,” which summarizes the GCMs that have been recently finalized. The Digest is distributed to key IRS and Office of Chief Counsel officials, to “60-some” Interpretative Division attorneys, as well as to the field offices. Id.; Sebastian Deposition, J.A. at 69-70.
The Office of Chief Counsel retains completed GCMs, and indexes and digests the memoranda “for the purpose of an in-house research tool.” “Defendant’s Statement,” supra, J.A. at 157. This is done to ensure that “there [will] be some uniformity of positions taken.” Sebastian Deposition, J.A. at 75. Citations of GCMs in subsequent GCMs are noted on “citator” index cards, along with the Code and Regulations sections cited in the GCM, “just like Shepherd’s.” Id. at 61, 63. These index cards are plugged into a “RIRA system,” and placed on microfilm, which is available to IRS personnel in the field offices. Id. at 65-66.
IRS personnel who confer or negotiate on tax liability matters with taxpayers may refer to GCMs for guidance as to the positions to take in such negotiations. During such negotiations, IRS staff members do not typically state that a particular position is required by a GCM, nor do agency personnel provide copies of GCMs to taxpayers. Answer to Interrogatory, reprinted in J.A. at 30. In addition, IRS personnel are instructed by section 4245.3(3) of the Internal Revenue Manual that GCMs should not be used “as precedents in the disposition of other cases but may be used as a guide with other research material in formulating a district office position on an issue.” IRM § 4245.3, reprinted in J.A. at 169. However, GCMs are frequently cited by staff attorneys in the Office of Chief Counsel in subsequent GCMs “to insure consistency, avoid duplication of research, provide a reference source, and update earlier memorandums when a position on an issue is sustained, modified, or changed within the Office of Chief Counsel.” Sebastian Affidavit, J.A. at 167. GCMs are also considered by attorneys in the Interpretative Division and the Litigation Division to be “of some precedent as a research item.” Sebastian Deposition, J.A. at 74-75.
From 1926 until 1953, the IRS published selected GCMs in the Internal Revenue Bulletin. Although no clear reason appears in the record to explain why publication ceased, the Answer to Interrogatory No. 5 does indicate that the IRS has recognized that some GCMs were “of such importance as to be of general interest ... [because they] announce[d] a ruling or decision upon a novel question or upon a question in regard to which there exist[ed] no previously published ruling or decision.” J.A. at 24.
2. Technical Memoranda (TMs)
Technical Memoranda are memoranda from the Commissioner of the Internal Revenue Service to the Assistant Secretary of the Treasury (Tax Policy). Bley Affidavit, reprinted in J.A. at 170, 171. The TMs at issue in this case are drafted by attorneys in the Legislation and Regulations Division of the Office of Chief Counsel in connection with the preparation of proposed Treasury decisions or regulations. Id. at 171. An affidavit filed by the Director of the Legislation and Regulations Division of the Office of Chief Counsel describes TMs as follows:
The purpose of a TM is to help decision-makers determine whether the proposed Treasury decision .. . should be issued and what its substantive content should be. Although TMs resemble each other in function, they are not prepared according to a standard format. Generally, however, a TM summarizes or explains the proposed rules, provides background information, states the issues involved, identifies any controversial legal or policy questions, discusses the approach taken by the draftsperson, and gives the reasons for that approach.
J.A. at 172-73.
TMs may be developed “contemporaneously with the preliminary drafts or at a later point in time, after the drafts [have] moved further along in terms of agreement between staffs.” Bley Deposition, reprinted in J.A. at 82, 85. TMs are initially prepared to aid decisionmakers who are responsible for approving or disapproving a Treasury decision or regulation. Because a TM “may have to summarize a position that was taken in the regulation, or point out where it was taken .. . and then give the options and explain why a particular route was chosen,” the TM may “tell more about the regulation than is in the regulation itself.” Id. at 91. TMs may also refer to case law, GCMs, AODs, and other TMs as relevant precedent. Id. at 91, 107-08; Answers to Interrogatories, J.A. at 25-27.
Before a TM finally leaves the IRS, it is compiled into a “signature package,” with a transmittal memorandum and the final form of the proposed regulation to which it pertains. Id. at 87-88; Bley Affidavit, J.A. at 171-72. This package is then approved by the Chief Counsel, the Assistant Commissioner (Technical) and the Commissioner, after which copies of the documents are returned to the Legislation and Regulations Division for recordskeeping. Bley Deposition, J.A. at 87-90. After the package has been approved by the Secretary of the Treasury, the proposed regulation is returned to the Legislation and Regulations Division for processing, i. e., delivery to the Federal Register for publication. Id. at 95. The transmittal memorandum and TM are retained at Treasury. Id.
Although there is no general distribution of TMs, the Office of Chief Counsel maintains a file of TMs pertaining to regulations that have been published in final form. Bley Deposition, J.A. at 97-98. These documents are filed consecutively by Treasury Decision (“TD”) number, and can be easily located for legal research. Id. at 100. TMs are referred to by lawyers in the Office of the Chief Counsel and the Office of the Assistant Commissioner “in order to find out what the detailed explanation of the regulation is.” Id. at 105. In addition, “IRS personnel who confer or negotiate on tax liability matters with taxpayers . . . may refer to TMs for a more detailed explanation of the applicable regulations;” however, IRS personnel do not openly rely on a TM to justify a particular position and they do not provide copies of TMs to taxpayers or their representatives. Answer to Interrogatory, J.A. at 31.
When asked whether TMs were a form of “legislative history,” like congressional committee reports that are prepared in connection with newly enacted legislation, the Director of Legislation and Regulations Division stated that:
Well, I would think that anybody probing in the nuts and bolts of either a statute or regulation would .. . indeed find a committee report helpful, certainly; and I think they would find a technical memorandum helpful in probing of the nuts and bolts of the reg, as well as the other material....
Bley Deposition, J.A. at 115-16.
3. Actions On Decisions (AODs)
Actions on Decisions are legal memoranda prepared by attorneys in the Tax Litigation Division and directed to the Chief Counsel whenever the IRS loses a case in the Tax Court, a Federal District Court, the Court of Claims, or the United States Court of Appeals. “Defendant’s Statement,” supra, J.A. at 161. AODs
are prepared by the attorney in the Tax Litigation Division responsible for review of the case at the same time he or she prepares a formal recommendation to the Department of Justice as to whether [the] particular case should be appealed. The AOD sets forth the issue which was decided against the Government, a brief discussion of the facts and the reasoning of the attorney behind his or her recommendations that the Commissioner either “acquiesce” or “nonacquiesce” in a decision of the Tax Court or of the federal district court. .. . Once the proposed AOD is reviewed and approved, it is sent to the Office of the Assistant Commissioner (Technical). If the Assistant Commissioner (Technical) is not in disagreement with the recommendation to “acquiesce” or “nonacquiesce,” the AOD is printed and distributed.
Pigg Affidavit, reprinted in J.A. at 174, 175.
AODs that recommend appeal do not leave the reviewing staff attorney’s desk until the Department of Justice has acted on the recommendation. Pigg Deposition, reprinted in J.A. at 118, 120. If there is a recommendation to acquiesce, the proposed AOD is reviewed and approved by the Office of Chief Counsel and is sent on to the Assistant Commissioner (Technical):
The Assistant Commissioner (Technical) then has ten days to agree or disagree with the AOD. In the event of disagreement, conferences will be held in order to resolve the differences.... The final authority to “acquiesce” or “non-acquiesce” rests with the Office of Assistant Commissioner (Technical). The AOD contains what the Office of. Chief Counsel considers to be the correct interpretation of the law in a given case. There may be more or different reasoning than that contained in the AOD which caused the AOD to be approved by the Office of Assistant Commissioner (Technical). AOD’s are collected and printed after approval by the Office of Assistant Commissioner (Technical). After printing, some 1,700 copies are distributed in the National Office and to personnel in the field. The purpose of the distribution is to provide a research tool and guidance to Office of Chief Counsel brief writers in the field and in the National Office. The distribution also provides guidance to IRS field personnel as to the legal positions of the Office of Chief Counsel on a given issue in the time between an adverse decision in a court case and the ultimate resolution of the issue after appeal or action on the application for certiorari.
“Defendant’s Statement,” supra, J.A. 162-63 (footnote added).
The record is unclear as to whether AODs recommending appeal are also reviewed by the Assistant Commissioner (Technical). However, there is some evidence to indicate that these AODs are printed and distributed along with all other AODs. Pigg Deposition, J.A. at 134.
The “bottom line” decisions of AODs are published in the Internal Revenue Bulletin with respect to reported decisions of the Tax Court. “Defendant’s Statement,” supra, J.A. at 161. However, the full text of an AOD is never released to the public.
AODs are maintained in both the National and field offices of the Chief Counsel, in either hard copy or microfilm form. Answers to Interrogatories, J.A. at 15-17. In both formats, AODs appear to be less elaborately schematized than the GCMs and TMs. AODs are filed and indexed chronologically, alphabetically, or randomly, with no log sheet or other mechanism to record or control access to the documents.
In Defendant’s Answers to Interrogatories, reprinted in J.A. at 31, it is noted that:
IRS personnel who confer or negotiate on tax liability matters with taxpayers or taxpayer representatives may refer to AODs for guidance as to the positions to take in such negotiations.
IRS personnel do not state that a particular position is required or necessitated by an AOD. IRS personnel do not provide copies of AODs to taxpayers or taxpayer representatives. IRM § 4245.2 instructs IRS personnel not to use AODs as precedent in the disposition of other cases where “the Commissioner’s position is not sustained and he/she has neither indicated'his/her acquiescence nor issued a pronouncement or Regulation.” IRS personnel are further instructed by IRM § 4245.2 to follow AODs where “the Commissioner’s position is sustained or in which he/she has acquiesced or has indicated his/her acceptance in the Internal Revenue Bulletin or Service Regulations.”
In his deposition, Mr. Pigg testified that the publication of AODs would not, “in [his] personal opinion,” cause any harm to the IRS. Pigg Deposition, J.A. at 141. He also conceded that, at least in those cases in which no appeal is taken, the AODs would be “of great interest” to tax lawyers and the public. Id.
B. Procedural History of the Case
In July of 1977, appellee Taxation With Representation Fund (“TWRF”) requested the Internal Revenue Service to permit it to inspect and copy all GCMs, AODs and TMs prepared by the Service, as well as the IRS index to those documents. Complaint, reprinted in J.A. at 4-7. After exhausting its administrative remedies, TWRF filed suit in the United States District Court for the District of Columbia on December 8, 1978, seeking access to the requested documents under 5 U.S.C. § 552(a)(2) and (3) of FOIA.
In its complaint, TWRF alleged that [GCMs, AODs, and respective indices] are regularly referred to by IRS personnel and ... are followed and applied as authoritative by IRS personnel in preparing rulings and rendering decisions on other matters. [GCMs and AODs] constitute final agency opinions or statements of policy within the meaning of 5 U.S.C. § 552(a)(2), but are not published nor are the indexes thereto made public as required by subsection (a)(2). Both [GCMs and AODs] and [respective] indexes are identifiable records within the meaning of 5 U.S.C. § 552(a)(3).....
and that
IRS personnel regularly refer to TM’s as authoritative explanations of the meaning of IRS’ Treasury Regulations [which are applied] in the decision of various matters affecting taxpayers. TM’s constitute final agency opinions or statements of policy within the meaning of 5 U.S.C. 552(a)(2), but are not published nor are the indexes thereto made public as required by subsection (a)(2). Both TM’s and the indexes are identifiable records within the meaning of 5 U.S.C. § 552(a)(3).
Complaint, J.A. at 4-6. TWRF also sought to compel the IRS to disclose all GCMs, AODs and TMs prepared in the future, and to prepare and disclose current indexes to such documents. Id. at 6.
In its Answer, the IRS denied that any of the three categories of documents constituted final agency opinions or statements of policy within the meaning of 5 U.S.C. § 552(a)(2). Answer, reprinted in J.A. at 8-13. While admitting that the documents were regularly referred to by Service personnel, the IRS denied that the memoranda were followed and applied as authoritative precedent. Appellant specifically referred to Internal Revenue Manual § 4245.3, wherein IRS personnel are instructed not to use GCMs as precedent in the disposition of other cases, and averred further that “approval and acceptance of an AOD by the Commissioner does not necessarily mean acceptance and approval of any or all of the reasons assigned by the Office of Chief Counsel for its conclusions.” Appellant did admit, however, that TMs “constitute a detailed explanation of the regulations” and, since the memoranda do not follow a standard format, TMs “may, for example, summarize the regulations, evaluate possible problems in interpreting the statute or pri- or regulations, provide background information, or explain the reasons for the approaches taken in specific provisions of the regulations.”
As an affirmative defense, the IRS claimed that all of the requested memoranda and indices were exempt from disclosure pursuant to section 552(b)(5) of the FOIA, which protects
inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.
Id. at 13.
After the IRS submitted its answers to TWRF’s interrogatories, along with the deposition testimony and affidavits of several IRS officials, the parties filed cross-motions for summary judgment. On January 22, 1980, the District Court granted TWRF’s motion for summary judgment. See Taxation With Representation Fund v. Internal Revenue Service, 485 F.Supp. 263 (D.D.C.1980).
The District Court relied on several statements submitted by IRS officials — in particular, a statement that any differences between a GCM and the ruling discussed in the GCM were reconciled before the document was considered complete and made available for future reference — to conclude that GCMs “contain the reasons behind the adoption of revenue rulings, private letter rulings, and technical advice memoranda,” 485 F.Supp. at 266, and are, therefore, not encompassed by Exemption 5. The District Court added:
As the Supreme Court made clear in [NLRB v.] Sears, it is just such records that are of vital concern to the public and their release offers little chance of interfering with the decision-making process of the agency. Furthermore, GCM’s are indexed and have important precedential value in determining future tax questions. Accordingly, the Court concludes that completed GCM’s are not protected by the governmental privilege.
Id.
Similarly, the District Court focused on statements made by IRS officials indicating that AODs are made available to IRS personnel and are cited and applied by IRS personnel in later AODs and TMs to promote the consistent application of the tax laws. In ruling that AODs are not exempt from disclosure under section 552(b)(5), the District Court concluded that
AOD’s contain the reasons behind the acquiescence or non-acquiescence of the IRS in court decisions. These reasons are of vital concern to the public and their release will not harm the decision-making process of the agency.
485 F.Supp. at 267.
And finally, the District Court found that TMs are “indexed, digested, and made available to IRS personnel in order to assure consistent treatment of taxpayers,” 485 F.Supp. at 267, and, therefore, concluded that TMs also were not encompassed by section 552(b)(5). The court noted further that
TM’s explain the reasons behind the adoption of the Treasury Decision. They are used by IRS personnel in determining the tax status of taxpayers. Accordingly, they are not deliberative material.
Id.
In support of these rulings, the District Court pointed out that two other court decisions had recently held that GCMs and TMs were not protected from mandatory disclosure by Exemption 5 in FOIA. See Pies v. Internal Revenue Service, 484 F.Supp. 930 (D.D.C.1979) (appeal pending, No. 79-2303, D.C.Cir.), and Falcone v. Internal Revenue Service, 479 F.Supp. 985 (E.D.Mich.1979) (appeal pending No. 80-1105, 6th Cir.). See also Caspe v. United States, 80-1 U.S.T.C. ¶ 9201 (S.D.Iowa 1980) (appeal pending, No. 80-1604, 8th Cir.).
On February 1, 1980, the IRS filed a Motion for Reconsideration of the District Court’s Order, and a supporting affidavit contending that the disputed records “may contain information properly exempt under Exemptions (b)(1) through (b)(9) of the Freedom of Information Act . .. [or] under Code Section 6103 as tax information concerning specific taxpayers.” Motion for Reconsideration, reprinted in J.A. at 189, 190. On April 23,1980, the District Court denied the appellant’s motion. Order, reprinted in J.A. at 191. In response to the IRS’ concern that the disclosure of information protected by section 6103 of the Internal Revenue Code might be compelled by the District Court’s order, the court authorized the redaction of portions of documents containing tax return information protected by section 6103. In addition, the District Court supplemented its original order with a holding that the disputed documents also fall within section 552(a)(2) of FOIA, and that the IRS has a “continuing duty” to make the records and indices available.
On June 19, 1980, the IRS filed a notice of appeal from the District Court’s orders. J.A. at 192.
II. ANALYSIS OF THE RELEVANT CASE LAW
A. A General Definition of the Deliberative Process Privilege
Appellee sought disclosure of the GCMs, TMs and AODs described above pursuant to sections (a)(2) and (3) of the Freedom of Information Act, 5 U.S.C. § 552(a)(2) and (3). These sections require the disclosure of records constituting final opinions or statements of policy promulgated by an agency, and any records reasonably described upon request, subject to the nine specific exemptions contained in section (b) of the Act. Appellant denied that the documents constitute final opinions or statements of agency policy within the meaning of the statute, and claimed that the documents were exempt pursuant to Exemption 5.
Exemption 5, which is the focus of this litigation, protects
inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.
5 U.S.C. § 552(b)(5). Given the literal language of Exemption 5, it is not surprising that the courts have construed this exemption to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context.
The courts have recognized that Exemption 5 protects, as a general rule, materials which would be protected under the attorney-client privilege, Mead Data Central, 184 U.S.App.D.C. at 360-363, 566 F.2d at 252-255; the attorney work-product privilege, NLRB v. Sears, 421 U.S. at 154, 95 S.Ct. at 1518, Bristol-Myers Co. v. FTC, 194 U.S.App.D.C. 99, 598 F.2d 18 (1978); or the executive “deliberative process” privilege, EPA v. Mink, 410 U.S. [73] at 85-90, 93 S.Ct. [827] at 835-837 [35 L.Ed.2d 119]; Vaughn v. Rosen, 173 U.S. App.D.C. 187, 523 F.2d 1136 (1975) (Vaughn II).
Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C.Cir.1980). See also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975); and Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 1500, 44 L.Ed.2d 57 (1975). Of these privileges recognized under section (b)(5) of FOIA, the only privilege claimed by appellants, and considered by the court below, was the “deliberative process” privilege, sometimes called the “executive” or “governmental” privilege.
The deliberative process privilege protects “confidential intra-agency advisory opinions . .. disclosure of which would be injurious to the consultative functions of government.” Sears, 421 U.S. at 149, 95 S.Ct. at 1516 (citations omitted). As was recently noted by Judge Wald in Coastal States, the deliberative process privilege is “unique to government” and
has a number of purposes: it serves to assure that subordinates within an agency will feel free to provide the decision-maker with their uninhibited opinions and recommendations
Question: What is the total number of appellants in the case that fall into the category "natural persons"? 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.
LANCE, Inc. v. UNITED STATES.
No. 6263.
United States Court of Appeals, Fourth Circuit.
Argued June 15, 1951.
Decided June 18, 1951.
Frank H. Kennedy, Charlotte, N. C., for appellant and cross-appellee.
Melvin Richter, Attorney, Department of Justice, Washington, D. C. (Holmes Baldridge, Asst. Atty. Gen., Thomas A. Uzzell, Jr., U. S. Atty., Ashville, N. C., Francis H. Fairley, Asst. U. S. Atty., Charlotte, N. C, Samuel D. Slade, Arthur W. Murphy and George F. Foley, Attorneys, Department of Justice, all of Washington, D. C., on the brief), for appellee and cross-appellant.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
These are cross appeals from a judgment in favor of the United States for the recovery of damages under the Walsh-Healey Act of June 30, 1936, 49 Stat. 2036, 41 U.S.C.A. §§ 35-45. The appeal of the United States complains because interest was awarded only from the institution of the action, the appeal of the defendant because the action was not held barred by the two-year statute of limitations imposed by section 6 of the Portal-to-Portal Act of May 14, 1947, 61 Stat. 87, 29 U.S.C.A. § 255. It is not necessary to pass upon the interest point, since we are satisfied that the maintenance of the action is barred by the statute of limitations relied on. The employments lipón which the action is ■based were in the year 1945. The action was not instituted until 1949, more than four years later. The government contends that the cause of action did not accrue until the Public Contracts Administrator made his report with respect to the matter, which was in 1949, only a few months before the action was instituted. The judge below so held, which was in accordance with the holdings in several District Court decisions: Since then the Court of Appeals of the Fifth Circuit, after a careful review of the matter, has held to the contrary in an able opinion by Judge Sibley in United States v. Lovknit Mfg. Co., Inc., 5 Cir., 189 F.2d 454. We are in accord with this holding and think that nothing need be added to what was said by Judge Sibley. The judgment appealed from is accordingly 'reversed.
Reversed.
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_const1
|
101
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Willie BURTON, Jr., Appellant, v. A. LIVINGSTON, Appellee.
No. 85-1941.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 14, 1986.
Decided May 8, 1986.
Thomas L. Barron of Little Rock, Ark., for appellant.
Jerry E. Rose, Asst. Atty. Gen., Little Rock, Ark., for appellee.
Before HEANEY, ARNOLD, and WOLLMAN, Circuit Judges.
ARNOLD, Circuit Judge.
Willie Burton, Jr., an inmate at the Tucker Maximum Security Unit of the Arkansas Department of Correction, appeals from the dismissal of his 42 U.S.C. § 1983 complaint against Sgt. A. Livingston, a guard at the Cummins Unit of the Arkansas Department of Correction.
Mr. Burton alleged in his complaint that on 12 June 1984 he was in attendance at the federal courthouse in Pine Bluff, Arkansas, for a hearing on a complaint against guards at the Cummins Unit. He was accompanied to that hearing by Mr. Livingston and at least one other guard. Mr. Burton’s handwritten pro se complaint alleged that after his appearance in court he was taken to the “holding tank” in the courthouse. Then:
Livington had continued harassing me pointing at his revolver pistol as threats; he then pull his revolver, thumb cocked it and stated, [“] nigger run so I can blow your Goddamn brains out, I want you to run so I'll be justified [”]; then another prison guard stepped between us, and move me to the opposite side of him from defendant Livington; then just out side the Court Building, as we were approaching the transporting van, def. Livington drew his pistol 357 Magnum and stated [“] nigger run, I want you to run [”], where he tried his best to scare me into running where he could shoot me in my back and say I tried to escape; I was then placed on the van and transported back to Cummins Prison Unit ... [sic]
Complaint at 3. Mr. Burton’s complaint asserted that the alleged conduct of Sgt. Livingston violated the Eighth Amendment prohibition on cruel and unusual punishment and the Fourteenth Amendment Due Process and Equal Protection Clauses. He requested damages and injunctive relief. The District Court dismissed Mr. Burton’s complaint sua sponte for failure to state a claim for which relief may be granted. The Court stated that “ ‘[m]ere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations.’ ” Burton v. Livingston, No. PB-C-85-289, slip op. at 2 (E.D.Ark. July 19,1985), quoting Coyle v. Hughs, 436 F.Supp. 591, 593 (W.D.Okla.1977). We reverse. On the facts alleged in Mr. Burton’s complaint, he has stated a claim which is entitled to be heard.
As a general rule, the federal civil-rights remedies available to a person under 42 U.S.C. § 1983 are not so broad as those available under state law, common or statutory. While a plaintiff may seek redress and win damages under state law for any unwanted touching under the common law of battery, the federal remedies under § 1983 are directed against more egregious conduct. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.” Id. Similarly, while the common law may provide a cause of action for assault when there is no contact at all, and even for some offensive words under the law of defamation, § 1983 does not duplicate the common law in these areas.
The District Court correctly stated the general proposition that in the usual case mere words, without more, do not invade a federally protected right. See Coyle v. Hughs, 436 F.Supp. 591, 593 (W.D.Okla.1977). It is also true that in most instances of “simple assault,” as the term is known to the common law, there is no federal action under § 1983, see Bolden v. Mandel, 385 F.Supp. 761, 764 (D.Md.1974), unless actual physical injury results from the assault and the defendant’s conduct is especially blameworthy. But these propositions are true not because the Due Process Clause distinguishes hypertechnically between the various forms of common-law trespass, but rather because in most instances conduct which is called “defamation” or “simple assault” does not invade a federally protected right. The Due Process Clause was intended to secure the individual from the abuse of power by government officials. Daniels v. Williams, — U.S. —, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). The threshold level at which an individual’s due-process rights are violated is different from the threshold level at which he acquires a cause of action in tort. But the difference usually has nothing to do with the common-law label attached to the underlying conduct.
Due process of law has been said to encompass a “guarantee of respect for those personal immunities which are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952) (Frankfurter, J., quoting Cardozo, J., in Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)). The guarantee of due process draws a line between the power of the government, on the one hand, and the security of the individual, on the other. This line is not a fixed one like a property boundary. Its location must be surveyed anew by the court in each case through an examination of the benchmarks disclosed by the circumstances surrounding the case. Among these landmarks are the nature of the individual right, the relationship between the individual and the government, and the justification offered by the government for its conduct. Thus, a lawfully incarcerated prisoner may be said to forfeit rights which would be taken for granted in free society, when that is necessary for the order and discipline of a penal environment. See Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). However, a prisoner does not lose all of his civil rights. “[Tjhose that are fundamental follow him, with appropriate limitations, through the prison gate, and the walls do not foreclose his access to the courts to protect those rights.” Courtney v. Bishop, 409 F.2d 1185, 1187 (8th Cir.), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969).
In determining whether the conduct of a prison guard has impermissibly infringed a protected right of the prisoner, we must consider (1) the need for the guard’s action; (2) the relationship between that necessity and the amount of force actually used; (3) the degree of injury to the prisoner’s retained rights; and (4) whether the conduct was a good-faith effort to maintain discipline or engaged in maliciously and sadistically for the sole purpose of causing harm. See Johnson v. Glick, 481 F.2d at 1033.
In applying these principles to the present case, Mr. Burton’s allegations must be taken as true for the purpose of determining whether he stated a claim cognizable under § 1983. A pro se complaint must be liberally construed and can be dismissed only if it appears to a certainty that the complainant can prove no set of facts which would entitle him to relief. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976).
The complaint states that Sgt. Livingston pointed a lethal weapon at the prisoner, cocked it, and threatened him with instant death. This incident occurred immediately after the prisoner had given testimony against another guard in a § 1983 action. The death threat was accompanied by racial epithets which strongly suggest that the prisoner would have been treated differently had he not been black. Apparently, another guard who was present took the threat seriously enough to step between the prisoner and Sgt. Livingston. In case the point had not been made, Sgt. Livingston repeated the performance moments later. According to the uncontro-verted words of the complaint, there was no provocation for the guard’s action other than the prisoner’s attempting to exercise his due-process and First Amendment right of access to the federal courts. The complaint describes in plain words a wanton act of cruelty which, if it occurred, was brutal despite the fact that it resulted in no measurable physical injury to the prisoner. The day has passed when an inmate must show a court the scars of torture in order to make out a complaint under § 1983. We hold that a prisoner retains at least the right to be free from the terror of instant and unexpected death at the whim of his allegedly bigoted custodians.
So far as we can tell at this early stage of the case, the guard’s conduct was not motivated by the necessity of correcting a rebellious inmate or by legitimate concerns for institutional security. See Bolden v. Mandel, 385 F.Supp. at 764. Neither is it an instance of rough language which resulted only in bruised feelings. See Coyle v. Hughs, 436 F.Supp. at 593. In such cases the actions of a guard might well be de minimis or in any event excusable by the realities of maintaining order amongst a large population of prisoners, who are, as we are aware, “not usually the most gentle or tractable of men and women ...”, Johnson v. Glick, 481 F.2d at 1033. This is rather a complaint that a prison guard, without provocation, and for the apparent purpose of retaliating against the prisoner’s exercise of his rights in petitioning a federal court for redress, terrorized him with threats of death. Under the circumstances of this incident, the guard’s actions, if proved, were a violation of Mr. Burton’s rights under the First Amendment and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Reversed and remanded.
. A simple allegation that an individual prison guard used racially offensive language in dealing with a prisoner might not, by itself, state a claim under the Equal Protection Clause. Compare Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir.1985). But when the racially derogatory language is coupled with conduct infringing the prisoner’s right to security of his person, an inference arises that the conduct was motivated by racial bias.
. We do not reach plaintiffs Eighth Amendment theory. We have held that his complaint states a claim under the First Amendment as well as under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. All of the facts that would be relevant to an Eighth Amendment theory will be admissible on the various other theories that his complaint alleges sufficiently, and no relief that he could obtain by prevailing on an Eighth Amendment theory would be different from or additional to that obtainable under his other approaches. No purpose would therefore be served by discussing whether the complaint also states a claim under the Eighth Amendment.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_respond1_1_4
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J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
Ruby M. JUNE, Administratrix of the Estate of Eldon June, Deceased, Appellant, v. DETROIT EDISON COMPANY, Appel-lee.
No. 8671.
Circuit Court of Appeals, Sixth Circuit.
Oct. 17, 1941.
Bresnahan & Groefsema and John R. Rood, all of Detroit, Mich., for appellant.
Oxtoby, Robison & Hull, of Detroit, Mich., for appellee.
Before ALLEN, MARTIN, and McAL-LISTER, Circuit Judges.
PER CURIAM.
This case came on to be heard upon the briefs and record and the argument of counsel ; and the court being of opinion that the trial court did not err in finding that no evidence of negligence on the part of the appellee was presented in the record, it is ordered that the judgment appealed from be, and it hereby is, affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer:
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songer_appbus
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1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
OVERSEAS NATIONAL AIRWAYS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Saturn Airways, Inc., Universal Airlines, Inc., Seaboard World Airlines, Inc., Intervenors.
No. 683, Docket 33851.
United States Court of Appeals, Second Circuit.
Argued April 3, 1970.
Decided May 25, 1970.
Leonard N. Bebchick, Washington, D. C., for intervenor Saturn Airways, Inc.
Stephen D. Potts, Washington, D. C., for petitioner.
Paul Y. Seligson, Washington, D. C., for intervenor Universal Airlines, Inc.
John Michael Roach, Atty., Civil Aeronautics Board (Richard W. McLaren, Asst. Atty. Gen., Howard E. Shapiro, Atty., Dept, of Justice, Joseph B. Goldman, Gen. Counsel, Civil Aeronautics Board, O. D. Ozment, Deputy Gen. Counsel, Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, on the brief), for respondent.
Dudley B. Tenney, New York City, (Cahill, Gordon, Sonnett, Reindel & Ohl, Irwin Schneiderman, Philip R. Forlenza, New York City, Fisher, Gelband & Rodriguez, Washington, D. C., on the brief), for intervenor Seaboard World Airlines, Inc.
Before KAUFMAN and FEINBERG, Circuit Judges, and TIMBERS, District Judge
Chief Judge of the District of Connecticut, sitting by designation.
FEINBERG, Circuit Judge.
Petitioner Overseas National Airways, Inc. (“ONA”) and intervenors Saturn Airways, Inc. and Universal Airlines, Inc., collectively referred to as petitioners, seek review of two orders of the Civil Aeronautics Board, which refused to expand the scope of a proceeding before the Board. We hold that the orders are not final, and accordingly dismiss the petition for review.
I.
Petitioners are all parties in the Transatlantic Supplemental Charter Authority Renewal Case, Docket 20569, which was instituted in December 1968 by the CAB, Order 68-12-93, in response to the applications of ONA, Saturn and four other supplemental, or charter, carriers. The purpose of the proceeding as initially defined by the Board was to consider “the renewal of existing authority” held by the six applicants to provide transatlantic passenger charter transportation. In June 1969, by Order 69-6-25, the Board consolidated with Docket 20569 various other applications' for transatlantic passenger charter authority submitted by carriers who do not now have such authority; Universal is one of these additional applicants.
What has prompted petitioners to seek review is the Board’s refusal to expand the scope of the proceeding before it to include consideration of the related, but hitherto distinct, subject of transatlantic cargo charter authority. In its original Order 68-12-93, the Board refused to consider those aspects of petitioners’ applications which sought transatlantic cargo charter authority, and dismissed that portion of the applications without prejudice. The Board’s stated reason was “to limit the scope of this proceeding, thereby avoiding undue complication of the issues and delay.” After petitions for reconsideration had been filed, the Board did expand the scope of the proceedings somewhat, as has already been noted, to include consideration of applicants for transatlantic passenger charter authority not previously granted such authority, and in various other ways not here relevant. However, the Board held fast in its determination not to inject cargo charter questions into Docket 20569. In its Order 69-6-25, the Board noted that it had considered the question of transatlantic cargo charter authority less than three years before, and it was not convinced that “the present proceeding should be expanded to include a further review of that issue at this time.” In. the earlier case referred to by the Board, the Supplemental Air Service Proceeding, Docket 13795, the Board had continued the authority of Seaboard World Airlines, Inc., an intervenor in the present case aligned with the Board, to operate transatlantic cargo charters along with scheduled transatlantic cargo flights.
Petitioners persisted and again asked the Board to reconsider. By Order 69-9-49, dated September 9, 1969, the Board rejected arguments similar to those now presented to us, and refused for a third time to inject questions of cargo authority into the current passenger authority proceeding. The Board stated:
The argument advanced is that, unless the Board considers the cargo-carrying competence of each applicant, it would be denying due process since the degree of an applicant’s cargo ability could be a factor in its selection for licensing as a passenger carrier. We cannot accept this argument as valid and as requiring us to undertake the obviously broad expansion of the proceeding that would accompany the injection of cargo issues.
Order 69-9-49, supra
II.
At the outset, we must decide whether the orders denying consolidation are interlocutory and not subject to judicial review at this time. There is also a question whether the orders are ever judicially reviewable, since they involve foreign air transportation and ultimate approval by the President. The principal authority on both of these issues is Chicago & Southern Air Lines, Iñc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948), in which the Supreme Court dismissed a petition to review a CAB order, issued with presidential approval, which granted one application for an overseas air route and denied another. The Court held:
We conclude that orders of the Board as to certificates for overseas or foreign air transportation are not mature and are therefore not susceptible to judicial review at any time before they are finalized by Presidential approval. After such approval has been given, the final orders embody Presidential discretion as to political matters beyond the competence of the courts to adjudicate.
Id. at 114, 68 S.Ct. at 437. According to the Board, petitioners are therefore not entitled to judicial intervention. On the one hand, the orders sought to be reviewed are not “final” because they fail to “impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.” Id. at 113, 68 S.Ct. at 437. On the other hand, if they are “final” in the above sense, they are not reviewable because they derive their vitality “from the exercise of unreviewable Presidential discretion.” Id.
To escape the dilemma posed by Waterman, petitioners attempt to place the orders in a narrow area not reached by that decision. Although the matter is not free from doubt, we have previously agreed with the District of Columbia Circuit that “the Waterman case does not ‘govern a situation where the action of the Board, before the matter reaches the President, is beyond the Board’s power to act.’ ” Pan American World Airways, Inc. v. Civil Aeronautics Board, 380 F.2d 770, 775 (2d Cir. 1967), aff’d by an equally divided court, 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968). See American Airlines, Inc. v. Civil Aeronautics Board, 121 U.S.App.D.C. 120, 348 F.2d 349, 351-353 (1965). Accordingly, petitioners argue that the Board exceeded its statutory authority and acted unconstitutionally when it refused to consolidate their applications for cargo charter authority. Assuming arguendo that this statement of petitioners’ claim would avoid the problem of presidential discretion, the question remains whether the orders under attack are sufficiently “final” at this stage to allow review.
On this aspect of the case, petitioners stress the alleged interdependence of transatlantic cargo and passenger charter operations. We are told that the demand for transatlantic cargo charter service is now, and will be for the foreseeable future, too small to permit profitable operation unless this service is appended to some other activity, whether it be scheduled transatlantic cargo service like that now offered by Seaboard, or transatlantic passenger charter operations, the subject of Docket 20569. Petitioners claim that possession of cargo authority would strengthen them financially because it would increase revenues and reduce the need to fly an empty aircraft from place to place in order to pick up a passenger charter party, known as “ferry” flying. Thus, according to petitioners, the exclusion of the cargo charter issue severely prejudices their applications for passenger charter authority because they will be unable to demonstrate how they might operate at the level of efficiency which possession of cargo authority would permit.
While petitioners’ economics may possibly be correct — and on that we express no view — we do not see how that transforms the orders under attack into more than threshold procedural determinations, interlocutory in nature and not now subject to judicial review. In refusing to expand the scope of Docket 20569 to include transatlantic cargo, as well as passenger, charter transportation, the Board has not suggested that the question of transatlantic cargo charter authority will remain a closed one indefinitely, with Seaboard remaining the permanent beneficiary of Board inaction. It is our understanding that the Board has merely decided to defer consideration of this complex set of issues until such time as it determines is convenient and appropriate. Moreover, it has expressed a desire not to undertake in Docket 20569 what it apparently considers would be an overly broad and premature general review of transatlantic charter policy. The Board points out that both Seaboard’s cargo authority and the passenger authority at issue in Docket 20569 were originally granted on an experimental basis and that neither experiment has yet produced the contemplated experience required for an informed permanent solution. Thus, the Board’s threshold decision would seem to be within its discretion to determine the scope and priority of its proceedings. See, e.g., National Airlines, Inc. v. Civil Aeronautics Board, 129 U.S.App.D.C. 180, 392 F.2d 504, 509 (1968); City of San Antonio v. Civil Aeronautics Board, 126 U.S.App.D.C. 112, 374 F.2d 326, 329 (1967); Frontier Airlines, Inc. v. Civil Aeronautics Board, 349 F.2d 587, 590-591 (10th Cir. 1965). Accordingly, we are not disposed to interfere with the Board. Our reluctance to interfere is not altered by the argument that exclusion of evidence of possible revenue from carge operations prejudices petitioners’ applications for passenger authority; if reviewable at all, that point can be made when, if ever, petitioners are denied passenger authority.
However, petitioners claim that while it does not seem that the Board has ruled upon the merits of their applications for cargo authority, as a practical matter it has, and in doing so has denied them due procees. For this argument, petitioners rely chiefly on Ashbacker Radio Co. v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), which we recently characterized as holding that:
if an agency’s award of one application for operating authority would be mutually exclusive as a matter of fact with the award of others before the agency, the competing applications must be considered contemporaneously.
Mohawk Airlines, Inc. v. Civil Aeronautics Board, 412 F.2d 8, 9 (2d Cir. 1969). Petitioners argue that cargo and passenger authority are “mutually exclusive” under Ashbacker because those supplemental carriers who lose out in the current transatlantic passenger charter proceeding will never be able to compete for similar cargo authority when the Board finally reconsiders that issue, since without passenger charter authority it makes no economic sense to seek cargo charter authority.
Application of the Ashbacker doctrine frequently raises complex problems. See 1 K. Davis, Administrative Law § 8.12 (1958) . Whether grants of authority are truly mutually exclusive is often difficult to determine. Moreover, the claim that an Ashbacker hearing has been improperly denied presents a delicate issue of timing of judicial review. See Note, Comparative Hearings for Air Route Authorizations: Transplanting the Ashbacker Doctrine, 40 N.Y.U.L.Rev. 928 (1965). The doctrine was originally based upon “a physical mutual exclusivity of two licenses” to operate a radio station. Delta Air Lines v. Civil Aeronautics Board, 107 U.S.App.D.C. 174, 275 F.2d 632, 637 (1959) , cert. denied, 362 U.S. 969 (1960). Citing the last-mentioned case, petitioners claim that the doctrine also extends to any situation where “as a matter of economic necessity,” the grant of some applications precludes the grant of others ; e. g., if the foreseeable traffic would support only two out of five carrier applicants. But even as expanded, the Ashbacker doctrine requires that a grant of authority to X do more than merely lessen the probability of an award to Y; it must make it impossible as a practical matter. According to petitioners, this is such a ease, and the Board’s orders must be reversed.
We do not agree. In Delta Air Lines, supra, the competing applicants essentially sought the right to render service over the same route. The claim here that anyone denied passenger charter authority in Docket 20569 can never hope to obtain cargo authority in the future presses Ashbacker very far, because it “compares” applicants for entirely distinct services. Since this would require consideration of different economic factors, the argument immensely complicates use of the Ashbacker doctrine in air route cases, an exercise already difficult enough; orie text has called application of Ashbacker in that context “confusing” with “the equities marginal.” L. Jaffe, Judicial Control of Administrative Action 445 (1965). Petitioners are already involved in Docket 20569 and may eventually obtain passenger authority, which would render their argument moot. In addition, the “mutual exclusivity” between transatlantic passenger and cargo charter applications, if such it be, is at best highly speculative. Cf. Eastern Air Lines, Inc. v. Civil Aeronautics Board, 271 F.2d 752 (2d Cir. 1959), cert. denied, 362 U.S. 970, 80 S.Ct. 954, 4 L.Ed.2d 901 (1960). We conclude that reversing the orders under attack is not compelled by Ashbacker and that “to do so at this stage * * * would be an invasion of the Board’s function.” United Air Lines, Inc. v. Civil Aeronautics Board, 97 U.S. App.D.C. 42, 228 F.2d 13, 15 (1955). See Eastern Air Lines, Inc. v. Civil Aeronautics Board, 100 U.S.App.D.C. 184, 243 F.2d 607 (1956); Frontier Airlines, Inc. v. Civil Aeronautics Board, supra.
Finally, petitioners urge that in excluding the issue of cargo charter authority in Docket 20569, the Board has neglected the public interest in making available the broadest degree of charter services over the North Atlantic. However, fashioning an inquiry to best serve the public interest is primarily a Board determination, and on the record before us, we do not think the Board has acted contrary to its mandate. Cf. Palisades Citizens Association, Inc. v. Civil Aeronautics Board, 420 F.2d 188 (D.C.Cir. 1969).
Accordingly, we conclude that judicial review of the orders under attack is not now warranted. The Board has not made any final determination on the merits of petitioners’ applications; at this stage of the proceeding it has neither exceeded its statutory powers nor denied petitioners due process. We are asked to compel the Board to consider now the complex issues of transatlantic cargo charter authority ; this we decline to do.
None of the other contentions made by petitioners warrant discussion. Because the orders complained of are not yet final, the petition for review is dismissed.
. “Supplemental air transportation” means “charter trips in air transportation.” 49 U.S.O. § 1301(33).
. Review of Order 69-9-49 is not sought, although petitioners have called it to our attention.
. 49 Ü.S.C. § 1461.
. We note that we deal only with citizen carriers in this case. See Pan American World Airways, Inc. v. Civil Aeronautics Board, 129 U.S.App.D.C. 159, 392 F.2d 483, 490-493 (1968). See generally Miller, The Waterman Doctrine Revisited, 54 Geo.L.J. 5 (1965).
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_appel1_1_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
TANDY CORPORATION, Plaintiff-Appellant, v. MALONE & HYDE, INC., Defendant-Appellee.
No. 84-5277.
United States Court of Appeals, Sixth Circuit.
Argued April 9, 1985.
Decided July 31, 1985.
I.C. Waddey, Jr., Waddey & Newport, and Daniel C. Kaufman, argued, Nashville, Tenn., for plaintiff-appellant.
D.L. Lansden, argued, Dennis J. Meaker, Walter H. Crouch, Michael E. Moore, Waller, Lansden, Dortch & Davis, Nashville, Tenn., Alan S. Cooper, Banner, Birch, McKie & Beckett, and Stephanie K. Wade, Washington, D.C., for defendant-appellee.
Before MERRITT and CONTIE, Circuit Judges, and KINNEARY, District Judge.
The Honorable Joseph P. Kinneary, Judge, United States District Court for the Southern District of Ohio, sitting by designation.
MERRITT, Circuit Judge.
In this trademark infringement appeal concerning the legal standards applicable to the equitable defense of laches, plaintiff Tandy claims that defendant Malone and Hyde’s use of the trademark “AUTO SHACK” infringes Tandy’s marks “RADIO SHACK,” “THE SHACK,” and “SHACK.” The District Court granted Malone and Hyde's summary judgment motion on the basis of laches without reaching the merits and barred both injunctive and monetary relief. The District Court barred on grounds of unreasonable delay plaintiff’s action brought 32 months after it arose. The Court gave no deference or presumptive effect to the three-year statute of limitations which would be applicable if the action were characterized as one at law instead of in equity. Because the Court erred in failing to give presumptive effect to the three-year legal limitations period, we reverse and remand for further proceedings.
I.
In 1977, defendant Malone and Hyde, a wholesale and retail grocer, considered going into the retail auto parts business through acquisition of an existing chain of stores. Defendant negotiated with Mr. Scavariel, owner of several stores in Phoenix, Arizona, operating under the name “Auto Shack, Inc.” After unsuccessful acquisition negotiations, defendant decided to enter the auto parts business by starting a new operation. Scavariel helped defendant in this process by providing information on supplier networks, marketing techniques, inventory design, and management. Scavariel then gave defendant permission to use the name AUTO SHACK in areas outside Arizona.
Malone and Hyde opened its first AUTO SHACK store in July 1979. By August it had opened five AUTO SHACK stores and had spent approximately $25,000 in promoting the name. By March 1982 it had opened 55 AUTO SHACK stores and had spent approximately $1.5 million promoting the name.
Plaintiff learned of defendant’s use of the AUTO SHACK mark in July 1979 when defendant opened its first store. From that point Tandy began to document instances of public confusion. In March 1982 Tandy notified Malone and Hyde of its objections to the mark AUTO SHACK. Tandy filed suit against Malone and Hyde in April 1982.
The District Court held that Tandy’s 32-month delay in notifying Malone and Hyde of its objections to the AUTO SHACK mark was “inexcusable and unreasonable,” and that the delay had substantially prejudiced Malone and Hyde. 581 F.Supp. 1124 at 1128. The District Court therefore granted summary judgment on the basis of laches. The Court then analyzed whether laches should bar injunctive as well as monetary relief and determined that “the interests and equities of the parties and the public” required a denial of all relief. 581 F.Supp. at 1131. The District Court’s opinion does not refer to the three-year Tennessee statute for tortious injury to property, Tenn.Code Ann. § 28-3-105 (1980), which the parties appear to agree is the applicable state limitation statute.
The District Court, in applying the doctrine of laches, erred in failing to give the appropriate presumptive effect to Tennessee’s three-year limitations period. A brief review of the equitable doctrine of laches and the common law history of trademark litigation is helpful in order to put the issue before us in perspective.
II.
The substantive and remedial doctrines of trademark law draw upon legal principles developed both at law and in equity. Although trademark litigation began as early as the 1600’s, the law of trademarks did not undergo significant development until the nineteenth century, when the increasing use of trademarks to symbolize and market products created the need for defining and protecting owners’ rights. See F. Schechter, The Historical Foundations of the Law Relating to Trademarks 122-45 (1925).
Both equity and law courts decided trademark cases in England during the early stages of trademark development, but equitable principles seem to have dominated that process because injunctive relief was generally considered the first and most effective step for courts to take in redressing a trademark infringement. Id. American courts also stressed equitable relief’ and principles in their responses to trademark disputes. See, e.g., Hanover Star Milling Co. v. Allen & Wheeler Co., 208 F. 513, 516 (7th Cir.1913). Thus, prior to statutory protection for trademarks, courts determined rights and liabilities primarily on the basis of equitable theory. They treated the damages portion of such suits as an equitable action in the nature of an accounting. Consistent with this history of trademark law, § 34 of the Lanham Act of 1946 allows for injunctive relief “according to the principles of equity,” 15 U.S.C. § 1116 (1982), and § 35 allows monetary relief “subject to the principles of equity,” id., § 1117.
Despite this pervasive equity background, the damages or accounting aspect of trademark infringement actions are considered legal actions for purposes of the jury trial clause of the Seventh Amendment. In Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), the Supreme Court held that a litigant has a right to a jury trial in an infringement action for money damages on the theory that “an adequate remedy at law” is available. 369 U.S. at 478, 82 S.Ct. at 900. Thus infringement actions are hybrids, a mixture of law and equity.
The Lanham Act does not contain a statute of limitations. In determining when a plaintiffs suit should be barred under the Act, courts have consistently used principles of laches as developed by courts of equity. See, e.g., Saratoga Vichy Spring Co., Inc. v. Lehman, 625 F.2d 1037, 1040 (2d Cir.1980); Polaroid Corp. v. Polaroid Electronics Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961).
Under equitable principles the statute of limitations applicable to analogous actions at law is used to create a “presumption of laches.” This principle “presumes” that an action is barred if not brought within the period of the statute of limitations and is alive if brought within the period. See Note, Developments in the Law — Statutes of Limitations, 64 Harv.L. Rev. 1177, 1184 (1950). See also DeSilvio v. Prudential Lines, Inc., 701 F.2d 13 (2d Cir.1983) (a determination of laches in admiralty must include reference to the analogous statute of limitations); Goodman v. McDonnell Douglas Corp., 606 F.2d 800 (8th Cir.1979), cert. denied 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980) (analogous statute of limitations is “important consideration” in action under Veterans’ Reemployment Rights Act). See also Reconstruction Finance Corp. v. Harrisons & Crosfield, 204 F.2d 366, 370 (2d Cir.), cert. denied 346 U.S. 854, 74 S.Ct. 69, 98 L.Ed. 368 (1953) (petition for order permanently enjoining defendant from arbitrating a claim against plaintiff); Shell v. Strong, 151 F.2d 909 (10th Cir.1945) (action for specific performance of a contract). We have recently followed this so-called “presumption” or general principle on a similar issue in the patent context. See TWM Manufacturing Co. v. Dura Co., 592 F.2d 346, 348 (6th Cir.1979) (applicable legal limitations period is the normal period to be used for laches).
The general principle outlined in TWM and other laches cases provides that, in the absence of unusual circumstances, a suit will not be barred before the analogous statute has run but will be barred after the statutory time has run.
This principle has been applied in trademark cases. Layton Pure Food Co. v. Church & Dwight, 182 F. 35, 40 (8th Cir. 1910) (except under “unusual conditions or extraordinary circumstances,” a federal court applying a limitation statute by analogy will not bar damages remedy in a trademark infringement action if the analogous statute of limitation would not bar the action).
Several reasons underlie the use of the statutory period as the laches period. It enhances the stability and clarity of the law by applying neutral rules and principles in an evenhanded fashion rather than making the question purely discretionary. It also requires courts to make clear distinctions between threshold or special defenses or pleas in bar and the merits of the case. It enhances the rationality and objectivity of the process by preventing courts from short circuiting difficult issues on the merits by confusing or conflating the merits of an action with other defenses.
Although early federal decisions faithfully followed the presumption, later decisions outside the trademark area have somewhat eroded the requirement that only “extraordinary circumstances or unusual conditions” defeat the presumption favoring the statutory limitations period. See, e.g., Gruca v. United States Steel Corp., 495 F.2d 1252, 1259 and n. 8 (3d Cir.1974) (effect of the analogous statute of limitation on a claim in equity is only burden-shifting). Some courts recently have looked at the analogous statute as simply one factor to be weighed in a determination of unreasonable delay and prejudice. See Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 805 (8th Cir.1979), cert. denied 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980). Some courts in ruling on purely equitable claims have analyzed the effect of the analogous state limitation both before and after it has elapsed, and have concluded that unreasonable prejudicial conduct short of the limitation can bar the equitable claim. See, e.g., Cannon v. Uni versity Health Sciences/Chicago Medical School, 710 F.2d 351 (7th Cir.1983) (on claim for injunctive relief arising under 42 U.S.C. § 1983, laches can shorten the applicable time under the state limitation statute); Gruca v. United States Steel Corp., 495 F.2d 1252, 1259 n. 8 (3d Cir.1974) (reference to an analogous statute of limitation “does not determine the minimum limit of the delay necessary to invoke the first element of the laches doctrine.”)
The presumption should remain strong and uneroded in trademark eases. They are not “purely equitable” suits, as the Supreme Court noted in Dairy Queen, supra. They are mixed actions in law and equity. A strong presumption enhances objectivity and clear analysis in decision making. It clarifies and broadens the protection of the public from confusion and deception.
We therefore affirm the rule in the trademark context that, if the analogous statute of limitation has not elapsed, there is a strong presumption that plaintiff’s delay in bringing the suit for monetary relief is reasonable. Only rarely should laches bar a case before the analogous statute has run. Cf. Shouse v. Pierce County, 559 F.2d 1142, 1147 (9th Cir.1977) (noting in the context of § 1983 action that it is “extremely rare for laches to be effectively invoked when a plaintiff has filed his action before limitations in an analogous action of law has run.”)
III.
The District Court did not consider the application of the presumption to the facts of this case. The applicable statute is the three year statute for tortious injury to property, Tenn.Code Ann. § 28-3-105 (1980). To set aside the presumptive period, a court must articulate compelling reasons. Although the trial court here correctly placed the burden on each of the laches elements on the defendant, the court did not test the defendant’s proof against a standard that presumed Tandy’s 32-month delay to be reasonable.
When we apply this standard to the present case, it is clear that Tandy’s behavior does not compel the extraordinary imposition of laches before the analogous statute has run. Malone and Hyde has pointed to no evidence of bad faith on Tandy’s part, nor of any effort by Tandy to mislead Malone and Hyde. There is no evidence of behavior amounting to acquiescence, a doctrine related to laches relying on express or implied consent theories, by Tandy. A reasonable businessman should be afforded some latitude to assess both the impact of another’s use of an allegedly infringing trademark as well as the wisdom of pursuing litigation on the issue. The 32-month delay may be evidence of corporate indecision but it is not so unreasonable as to overcome the presumption afforded by the analogous 3-year statute.
IV.
In addition to its conclusion that Tandy’s 32-month delay was sufficiently unreasonable to invoke laches, the District Court held that Malone and Hyde justifiably relied on Tandy’s inaction against Scavariel’s Arizona-based AUTO SHACK store. The District Court essentially held that Malone and Hyde could “tack on” the time during which Scavariel developed the marks in Arizona, a period of three years, to demonstrate further the unreasonableness of Tandy’s delay.
This holding is error. For purposes of laches an assignee of a trademark can tack on the period during which the assignor used the mark, PepsiCo, Inc. v. Grapette Co., 416 F.2d 285 (8th Cir.1969), but only when the mark is assigned in conjunction with the sale of the goodwill of the business to which it is attached. Section 10 of the Lanham Act, 15 U.S.C. § 1060 (1982), so provides. There was no such transfer here.
Scavariel had developed an apparently prosperous Phoenix based business, and had generated goodwill from the consuming public in that geographic area. Had Scavariel sold his Phoenix business to Malone and Hyde along with his permission for Malone and Hyde to use the name AUTO SHACK, he would have assigned both the mark and its goodwill. Instead, Scavariel kept the Arizona business. Although he was forthcoming and helpful to Malone and Hyde in providing information about auto parts marketing, perhaps with an eye toward a future working relationship or merger, he did nothing that conveyed to Malone and Hyde the good will of the business. See Greenlon, Inc. of Cincinnati v. Greenlawn, Inc., 542 F.Supp. 890 (S.D.Ohio 1982), for similar facts and reasoning. The transaction functioned as a naked assignment and nothing more. Thus, a tacking argument dependent on an assignment theory fails.
In addition, Malone and Hyde may not justifiably rely on Tandy’s inaction against Scavariel in a contained geographic area as a bar to challenging their widespread use of the mark in areas outside of that contained area. See Conan Properties, Inc. v. Conans Pizza, Inc., 752 F.2d 145 (5th Cir.1985). Tandy’s failure to object to limited geographic use of a mark does not bar it from objecting later to widespread use of the mark. Id. at 152.
Accordingly, the judgment of the District Court is reversed and remanded for proceedings not inconsistent with this opinion.
. The standard requiring only unreasonable delay and prejudice to the defendant used by the District Court below has been used by other courts in cases in which the plaintiff sought to extend the normal legal statute of limitation period, see Gardner v. Panama R.R. Co., 342 U.S. 29, 30-31, 72 S.C.t. 12, 13-14, 96 L.Ed. 31 (1951), or cases in which no issue has been made regarding the presumptive effect of the analogous statute of limitation, see, e.g., American Home Products Corp. v. Lockwood Mfg. Co., 483 F.2d 1120 (6th Cir.1973); Cuban Cigar Brands N. V. v. Upmann International, Inc., 457 F.Supp. 1090 (S.D.N.Y.1978), aff’d 607 F.2d 995 (2d Cir.1979). This more general, less rigorous standard should not be used when the plaintiff brings an action prior to expiration of a presumptively effective statute of limitation.
. In the context of purely equitable relief, the correct standard may be the somewhat more general and discretionary standard of determining only unreasonable delay and prejudice to the defendant. See Patterson v. Hewitt, 195 U.S. 309, 25 S.Ct. 35, 49 L.Ed. 214 (1904). To deny injunctive relief in trademark litigation, however, some affirmative conduct in the nature of an estoppel, see, e.g., James Burrough Ltd. v. Sign of Beefeater, Inc., 572 F.2d 574, 578-79 (7th Cir.1978), or conduct amounting to "virtual abandonment,” see University of Pittsburgh v. Champion Products, Inc., 686 F.2d 1040, 1044-45 (3d Cir.1982), is necessary. On the basis of the record before us, Tandy’s behavior does not fit either of the above categories. Therefore, the District Court erred in using laches to bar both forms of relief.
. Section 10, 15 U.S.C. § 1060 provides in relevant part:
A registered mark or a mark for which application to register has been filed shall be assignable with the goodwill of the business in which the mark is used, or with that part of the goodwill of the business connected with the use of and symbolized by the mark, and in any such assignment it shall not be necessary to include the goodwill of the business connected with the use of and symbolized by any other mark used in the business or by the name or style under which the business is conducted. Assignments shall be by instruments in writing duly executed____
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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songer_state
|
22
|
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".
AUTOGRAPHIC REGISTER CO. v. PHILIP HANO CO., Inc.
No. 4632.
United States Court of Appeals First Circuit.
July 10, 1952.
Thomas J. Byrne, New York City (Clifford H. Byrnes, Boston, Mass., on brief), for appellant.
Richard F. Walker, Boston, Mass., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a final judgment in a suit for patent infringement wherein the court below dismissed the plaintiff’s complaint and also its counterclaim for an accounting and royalties, and awarded the defendant $6,999.49, with interest at 6 per cent from June 29, 1950, and costs, on its counterclaim for certain royalties which it alleged it paid the plaintiff “under protest and without prejudice” under circumstances to be presently described.
The patents in suit are No. 2,-082,730 issued to the plaintiff as assignee of C. W. Brenn on June 1, 1937, and No. 2,258,573 issued to the plaintiff as assignee of A. A. Johnson on October 7, 1941. The court below held such of the claims of both patents as were put in issue in this litigation invalid “for lack of invention.” D.C., 102 F.Supp. 981, 983. Moreover all of the claims of both patents were held invalid for the same, and also for other reasons, in a suit brought by the plaintiff against another defendant in the Seventh Circuit. Autographic Register Co. v. Uarco, Inc., D.C.N.D.Ill.1949, 86 F.Supp. 730, affirmed, 7th Cir.1950, 182 F.2d 353, certiorari denied 340 U.S. 853, 71 S.Ct. 82, 95 L.Ed. 625, rehearing denied, 1951, 342 U.S. 856, 72 S.Ct. 71. We see no occasion to canvass the matter of patentable invention again. It will suffice for us to say that in spite of everything said by the appellant in its briefs and oral argument, reading the three opinions cited above leaves us with the firm conviction that the claims of the patents here in suit cover but shadows of shades of ideas “which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures”, to paraphrase and quote the now classic language of Mr. Justice Bradley in Atlantic Works v. Brady, 1882, 107 U.S. 192, 200, 2 S.Ct. 225, 231, 27 L.Ed. 438, and hence will not support the grant of a monopoly under the patent laws. Indeed the district court opinions cited above, and Judge Lindley’s thorough opinion written for the Court of Appeals for the Seventh Circuit in the Uarco case, all so fully cover the facts, and so clearly demonstrate invalidity for lack of patentable invention, that further elaboration on our part could add nothing of any consequence to what has already been said. Therefore, except to record our amazement that 12 and 45 claims respectively should be used to cover obviously very simple alleged inventions, indeed inventions said by the plaintiff to have outstanding merit for that reason, we leave the matter of validity where it stands and turn to the questions raised by the respective counterclaims, taking up first the one filed by the defendant.
It appears from the findings of the court below, as to which there is no real dispute, that on July 21, 1942, the plaintiff granted the defendant a non-exclusive non-transferable license to manufacture, use and sell the devices covered by the Brenn and Johnson patents in suit, and three other patents. The defendant as licensee agreed, inter alia, that during the term of the license it would not “directly or indirectly attack or question the validity” of any of the patents included in the license, and, absent the licensee’s insolvency, the license was to continue in force until October 7, 1958. There was no provision for earlier termination of the license by either party. Apparently the license was lived up to by both parties without question until the patents in suit were held invalid by the United States District Court for the Northern District of Illinois in 1949 in the Uarco case cited above. The defendant was not a party or a privy in that litigation, but when it learned of the judgment therein its counsel communicated with the plaintiff for the purpose of repudiating the license agreement of 1942. Defendant’s counsel talked with Mr. C. W. Brenn, the plaintiff’s vice president and general manager, over the telephone and said that, in view of the Uarco decision the defendant did not consider itself liable for any future royalty payments. Mr. Brenn expressed confidence that the District Court’s judgment in the Uarco case would be reversed on appeal, and defendant’s counsel then suggested that royalty payments accruing in the future should be paid to some third party “in part or in full in escrow” subject to refund if the District Court’s judgment in the above case should be affirmed. Mr. Brenn did not accept or reject this proposal out of hand but said he would have the plaintiff’s patent attorney, Mr.'A. A. Johnson, who is not a member of the bar, communicate in reply. Mr. Johnson did so by telephone later that day and defendant’s counsel repeated the substance of his earlier conversation with Mr. Brenn, and added that so far as the defendant was concerned the license agreement “stood denounced, so that defendant could be sued as an infringer.” However, defendant’s counsel said that he would advise his client “to offer future royalty payments on the understanding that if the plaintiff declined to agree to contingent refund, it should return the checks, whereupon the defendant would make no further payments.” Moreover, counsel for the defendant stated that if the plaintiff should accept and retain royalty payments made as above, “such retention would constitute an undertaking to repay” in the event that the plaintiff was unsuccessful in its appeal from the District Court’s judgment in the Uarco case. Mr. Johnson replied that if the plaintiff “was not entitled to the royalties,” defendant’s counsel “would have his relief whether they were paid under protest or not.”
Following this conversation, in October 1949, the defendant sent the plaintiff a check bearing the legend “this payment is made under protest and without prejudice,” and with the check it sent a letter reading: “In conformity with the telephone conversation had between our attorney, Mr. Maurice V. Seligson of New York, and your attorney, Mr. A. A. Johnson, enclosed herewith please find royalty check which is paid under protest and without prejudice.” The check and the letter were brought to the attention of Mr. Brenn, and by him discussed with Mr. Johnson. The court below found that Mr. Brenn “was aware of the defendant’s last proposal and understood that the check was submitted as an offer pursuant thereto.” The plaintiff accepted and retained the proceeds of the check without communicating with the defendant. In January and again in May, 1950, the defendant, “believing that its offer had been accepted,” to quote again from the findings of the court below, sent the plaintiff checks bearing the same legend, with similar covering letters, and the plaintiff again appropriated the proceeds of the checks without communicating with the defendant. The checks sent as above totaled $6,999.49 which is the amount with interest thereon which the defendant seeks to recover under its counterclaim.
On May 25, 1950, (rehearing denied June 29, 1950) the Court of Appeals for the Seventh Circuit handed down its decision affirming the District Court’s judgment in the Uarco case, and the defendant on the day rehearing was denied made demand on the plaintiff for repayment of the amount of the three checks. The plaintiff refused, and then the parties entered into a written agreement terminating their 1942 license as of June 28, 1950, without prejudice to the “obligations of the parties under the said license agreement which existed prior to the cancellation thereof.”
On the facts outlined above the court below held that the parties in 1949, by their properly constituted agents, had orally modified their license agreement of 1942 whereby the defendant acquired the right to recover the amount of the royalties it had paid to the plaintiff “under protest and without prejudice.” That court said:
“I conclude and rule that an offer was made by the defendant to the plaintiff on September 7, 1949, which was intended to effect a modification of the original license agreement. The plaintiff through Mr. Johnson did not reject this offer and the subsequent act of the plaintiff in cashing the checks and retaining the proceeds therefrom constituted an acceptance of it. The license agreement was thereby modified and the obligations of the parties thereto were correspondingly changed. The plaintiff, therefore, is obligated to the defendant in the amount of $6,999.-49 with interest from June 29, 1950, the date of the defendant’s demand therefor.”
The defendant rests its counterclaim upon the theory adopted by the court below, that is, upon the theory of an oral modification of a pre-existing licensing contract whereby royalties paid thereunder from and after the date of the District Court’s judgment in the Uarco case would be refunded by the plaintiff in the event that that judgment should be affirmed by the Court of Appeals for the Seventh Circuit. Thus the counterclaim is a permissive one filed under Rule 13(b), Fed.Rules Civ. Proc. 28 U.S.C. for it is one arising under the licensing contract, a transaction separate and distinct from the subject matter of the opposing party’s claim for patent infringement, and a transaction which does not arise under the patent laws of the United States. Luckett v. Delpark, 1926, 270 U.S. 496, 46 S.Ct. 397, 70 L.Ed. 703, and cases cited. See also for further citation of cases 3 Walker, Patents, (Deller’s Ed.) § 413. Hence it would seem from numerous decisions of the inferior federal courts, (the Supreme Court so far as we have been able to determine has not passed on the question, see Moore v. N.Y. Cotton Exchange, 1926, 270 U.S. 593, 609, 46 S.Ct. 367, 70 L.Ed. 750) federal jurisdiction over the counterclaim must rest upon some ground independent of jurisdiction over the original cause of action alleged by the plaintiff. See 3 Moore’s Federal Practice, Second Ed., § 13.19 for statement of the rule and citation of cases.
We need not consider the jurisdictional problem lurking in cases like the present in greater detail, however, for here we have a clear independent ground under Title 28 U.S.C. § 1332(a) (1) for federal jurisdiction over the counterclaim for the sum in controversy is nearly $7,000 and the corporate plaintiff owes its existence to the laws of New Jersey and the corporate defendant to the laws of Massachusetts. State law is therefore applicable under the rule of Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 and we must turn to the law of the forum, Massachusetts, to determine what state’s law to apply. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477.
Massachusetts, in conformity with the usual rule (see Am.Law Inst., Restatement, Conflict of Laws § 332) refers to the law of the place of contracting to determine the validity and effect of a promise in the respects with which we are here concerned, Adamowski v. Curtiss-Wright Flying Service, Inc., 1938, 300 Mass. 281, 15 N.E.2d 467 and the place of contracting was New Jersey where the plaintiff has its principal office, for that is where the plain- • tiff by its silent appropriation of the defendant’s checks accepted the defendant’s offer, if its act amounted to acceptance, and the contract amending, the 1942 license agreement came into being if any such contract ever came into being at all. Am.Law Inst., Restatement, Conflict of Laws § 327.
Two questions of New Jersey law arise. The first is whether the plaintiff’s acceptance of the defendant’s checks and its appropriation of the proceeds thereof without communicating with the defendant constitute an acceptance of defendant’s offer to modify the pre-existing license agreement of 1942. And second, if it did, was there any valid consideration flowing from the defendant to the plaintiff to support the undertaking of the latter to refund the royalies paid “under protest and without prejudice” in the event that the District Court’s judgment in the Uarco case should be affirmed on appeal?
There is no finding by the court below, perhaps on the evidence there could be none, that the plaintiff acting through its president and general manager by silent acceptance and appropriation of the defendant’s checks intended as a matter of fact to accept the defendant’s offer for modification of the license agreement. On the other hand, there is no finding of a contrary intention. However, a finding of positive intention to accept an offer is not always necessary to the creation of a contract. It is elementary that an offer may be accepted by performing or refraining from performing a specified act as well as by an affirmative answer, and it is stated in Am. Law Inst., Restatement, Contracts, § 72(2) as the general rule that “Where the offeree exercises dominion over things which are offered to him, such exercise of dominion in the absence of other circumstances showing a contrary intention is an acceptance.” See also 1 Williston, Contracts, (Rev.Ed.) §§ 91, 91D. Furthermore, silent acceptance of a check sent in payment of a disputed claim, even in the absence of a finding of mental assent, is now generally held by parity of reasoning constitute an accord and satisfaction of the claim. See 6 id. § 1854 wherein with full citation of cases, including Decker v. George W. Smith & Co., 88 N.J.L. 630, 96 A. 915, it is said that the “great and increasing” weight of authority in the United States “as a matter of law regards the use and retention of the check by the creditor, with knowledge of the condition, as assent to it. It is said that the acceptance of the check necessarily involves an acceptance of the condition upon which it was tendered.” New Jersey law appears to be in accord with the above. Columbia Rolling Mill Co. v. Beckett Foundry Co., 55 N.J.L. 391, 26 A. 888. At least we find no New Jersey cases to the contrary, so we answer the first question in the affirmative.
Thus we come to the question whether the plaintiff’s implied undertaking to refund the royalties under consideration in the event of an affirmance by the Court of Appeals in the Uarco case was supported by adequate consideration. The plaintiff contends that it was not. The argument is that the defendant in paying those royalties was only performing a clear obligation imposed upon it by the licensing contract, and hence the payment will not support the plaintiff’s conditional promise to refund for the reason that performance of a previously existing contractual obligation is not a sufficient consideration. 1 Williston, Contracts, (Rev.Ed.) § 130; see also 1 Am. Law Inst., Restatement, Contracts § 76(a). We do not agree for the reason that the defendant’s contractual duty to pay royalties after the District Court’s decision in the Uarco case was not clear but on the contrary open to honest and reasonable dispute.
In Automatic Radio Mfg. Co., Inc. v. Hazeltine Research, Inc., 1 Cir.1949, 176 F.2d 799, affirmed 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312, rehearing denied, 1950, 340 U.S. 846, 71 S.Ct. 13, 95 L.Ed. 620, this court had occasion to consider at some length the question of a non-exclusive licensee’s duty to pay royalties after the patent, or some of the patents covered by the license, had been held invalid in litigation between the patentee-licensor and third parties. There is no occasion here to go over the ground again. It will be enough to say that the discussion in the above case and the texts therein cited (1 Williston, Contracts, (Rev.Ed.) § 137 and 2 Walker, Patents (Deller’s Ed.) § 384) clearly indicate that the law on the matter is, in general, unsettled, and that we have been able to find no clear and unequivocal holding in New Jersey that on no theory whatever may a non-exclusive licensee be excused from further payment of royalties by a holding in other litigation that the licensed patent is invalid. Thus the defendant forbore exercise of its right to litigate its duty to pay royalties following the District Court’s decision in the Uarco case, and this forbearance, even though only temporary, being a detriment to it constituted sufficient consideration for the plaintiff’s promise to repay the royalties in the event of an affirmance on appeal of the District Court’s judgment in the Uarco case, 1 Williston, Contracts, (Rev.Ed.) § 103F.
In view of our conclusion that the court below was correct in holding that the oral agreement of 1949 modifying the licensing contract of 1942 was valid and binding, with the result that the defendant is entitled to recover on its counterclaim, there is no occasion to consider the plaintiff’s counterclaim which is for an accounting and payment of royalties from the date of the District Court’s judgment in the Uarco case to June 28, 1950, when the licensing contract of 1942 was terminated by mutual agreement in writing.
The judgment of the District Court is affirmed.
. Am.Law Inst., Restatement, Contracts § 29.
. The closest New Jersey cases we have found involve licensing contracts wherein possible invalidity was a recognized factor leading to the agreement and so are deary distinguishable. See International Signal Co. v. Marconi Wireless Telegraph Co., 1918, 89 N.J.Eq. 319, 104 A. 378, affirmed International Radio Telegraph Co. v. Marconi Wireless Telegraph Co., 90 N.J.Eq. 271, 108 A. 891; Scannell v. Ransome Concrete Machinery Co., 1933, 164 A. 592, 11 N.J.Misc. 134.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
BAILEY v. BLOCK.
No. 6747.
United States Court of Appeals for the District of Columpia.
Argued Jan. 8, 1937.
Decided Feb. 8, 1937.
Elwood G. Hubert) of Washington, D. C., for appellant.
Lawrence Koenigsberger, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
PER CURIAM.
This appeal is from a judgment of the Supreme Court of the District of Columbia (now the United States District Court for the District of Columbia), sustaining a demurrer to appellant’s second amended declaration.
The appellant, plaintiff below, a domestic servant of a tenant of the defendant, sued to recover damages for personal injuries sustained by her as the result of the fall of plaster from a ceiling of the leased premises.
We are confronted with a motion of the defendant to dismiss the appeal because of plaintiff’s failure to file an assignment of errors, either in this court or in the court below. Paragraph 9 of rule 5 of this court provides: “Prior to the settling and signing of the bill of exceptions by the trial justice or judge there shall be filed in the office of the clerk of the lower court the assignment of errors relied on by the appellant or plaintiff in error, as the case may be. The errors shall be separately and specifically stated and the assignment shall be included in the transcript of record. If error is assigned to the ruling upon the report of an auditor or master, the specification shall state the exceptions to the report and the action of the court thereon. ' Ap-pellee may object to the settlement of the bill until the assignment is filed as required. In a case where there is no bill of exceptions or statement of evidence the assignment shall be filed in time for inclusion in the transcript.”
Since the case was disposed of upon demurrer to the declaration, there is no bill of exceptions or statement of evidence, but under the above-quoted rule this furnishes no excuse for the failure to file an assignment of errors. The rule has been strictly enforced, not only in this court but in the Supreme Court of the United States. E. R. Squibb & Sons v. Mallinckrodt Chemical Works, 293 U.S. 190, 55 S.Ct. 135, 79 L.Ed. 279; Rowe v. Phelps, 152 U.S. 87, 14 S.Ct. 632, 38 L.Ed. 365; Boston Mining Co. v. Eagle Mining Co., 115 U.S. 221, 6 S.Ct. 33, 29 L.Ed. 392; Cooper v. Sillers, 30 App. D.C. 567.
Paragraph 5 of rule 8 of this court provides that we may, at our option, “notice and pass upon a plain error not assigned.” It may be observed that this rule specifies “a plain error.” We find no plain error in this case and therefore, since there was an utter failure to comply with paragraph 9 of rule 5, we think that the judgment must be affirmed.
This discretion to notice a plain error is similar to that conferred by the corresponding rule of the Supreme Court (paragraph 4 of rule 27 of the present rules, 28 U.S.C.A. following section 354), which has been exercised almost exclusively in criminal cases, where, to meet the ends of justice, the court has relaxed the strict requirements of its rules. Weems v. United States, 217 U.S. 349, 362, 30 S.Ct. 544, 54 L.Ed. 793, 19 Ann. Cas. 705.
The judgment is affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
MICHIGAN v. DeFILLIPPO
No. 77-1680.
Argued February 21, 1979
Decided June 25, 1979
Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 40. Brennan, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 41.
Timothy A. Baughman argued the cause for petitioner. With him on the briefs was William L. Cahalan.
James C. Howarth, by appointment of the Court, 439 U. S. 976, argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed by Frank Carrington, Wayne W. Schmidt, Glen R. Murphy, Thomas Hendrickson, James P. Costello, and Richard F. Mayer for Americans for Effective Law Enforcement, Inc., et ah; and by Eveüe J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, and Harley D. Mayfield and Karl Phaler, Deputy Attorneys General, for the State of California.
Briefs of amici curiae urging affirmance were filed by Edward M. Wise for the American Civil Liberties Union Fund of Michigan; and by John J. Cleary for California Attorneys for Criminal Justice et al.
Laurance S. Smith filed a brief for the National Legal Aid and Defender Association as amicus curiae.
Mr. Chief Justice Burger
delivered the opinion of the Court.
The question presented by this case is whether an arrest made in good-faith reliance on an ordinance, which at the time had not been declared unconstitutional, is valid regardless of a subsequent judicial determination of its unconstitutionality.
I
At approximately 10 p. m. on September 14, 1976, Detroit police officers on duty in a patrol car received a radio call to investigate two persons reportedly appearing to be intoxicated in an alley. When they arrived at the alley, they found respondent and a young woman. The woman was in the process of lowering her slacks. One of the officers asked what they were doing, and the woman replied that she was about to reheve herself. The officer then asked respondent for identification; respondent asserted that he was Sergeant Mash, of the Detroit Police Department; he also purported to give his badge number, but the officer was unable to hear it. When respondent again was asked for identification, he changed his answer and said either that he worked for or that he knew Sergeant Mash. Respondent did not appear to be intoxicated.
Section 39-1-52.3 of the Code of the City of Detroit provides that a police officer may stop and question an individual if he has reasonable cause to believe that the individual’s behavior warrants further investigation for criminal activity. In 1976 the Detroit Common Council amended § 39-1-52.3 to provide that it should be unlawful for any person stopped pursuant thereto to refuse to identify himself and produce evidence of his identity.
When he failed to identify himself, respondent was taken into custody for violation of § 39-1-52.3; he was searched by one of the officers who found a package of marihuana in one of respondent’s shirt pockets, and a tinfoil packet secreted inside a cigarette package in the other. The tinfoil packet subsequently was opened at the station; an analysis established that it contained phencyclidine, another controlled substance.
Respondent was charged with possession of the controlled substance phencyclidine. At the preliminary examination, he moved to suppress the evidence obtained in the search following the arrest; the trial court denied the motion. The Michigan Court of Appeals allowed an interlocutory appeal and reversed. It held that the Detroit ordinance, § 39-1-52.3, was unconstitutionally vague and concluded that since respondent had been arrested pursuant to that, ordinance, both the arrest and the search were invalid.
The court expressly rejected the contention that an arrest made in good-faith reliance on a presumptively valid ordinance is valid regardless of whether the ordinance subsequently is declared unconstitutional. Accordingly, the Michigan Court of Appeals remanded with instructions to suppress the evidence and quash the information. 80 Mich. App. 197, 262 N. W. 2d 921 (1977).
The Michigan Supreme Court denied leave to appeal. We granted certiorari, 439 U. S. 816 (1978), to review the Michigan court’s holding that evidence should be suppressed on federal constitutional grounds, although it was obtained as a result of an arrest pursuant to a presumptively valid ordinance. That holding was contrary to the holdings of the United States Court of Appeals for the Fifth Circuit that such arrests are valid. See United States v. Carden, 529 F. 2d 443 (1976); United States v. Kilgen, 445 F. 2d 287 (1971).
II
Respondent was not charged with or tried for violation of the Detroit ordinance. The State contends that because of the violation of the ordinance, i. e., refusal to identify himself, which respondent committed in the presence of the officers, respondent was subject to a valid arrest. The search that followed being incidental to that arrest, the State argues that it was equally valid and the drugs found should not have been suppressed. Respondent contends that since the ordinance which he was arrested for violating has been found unconstitutionally vague on its face, the arrest and search were invalid as violative of his rights under the Fourth and Fourteenth Amendments. Accordingly, he contends the drugs found in the search were correctly suppressed.
Under the Fourth and Fourteenth Amendments, an arresting officer may, without a warrant, search a person validly arrested. United States v. Robinson, 414 U. S. 218 (1973); Gustafson v. Florida, 414 U. S. 260 (1973). The constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search. United States v. Robinson, supra, at 235. Here the officer effected the arrest of respondent for his refusal to identify himself; contraband drugs were found as a result of the search of respondent’s person incidental to that arrest. If the arrest was valid when made, the search was valid and the illegal drugs are admissible in evidence.
Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law. Ker v. California, 374 U. S. 23, 37 (1963); Johnson v. United States, 333 U. S. 10, 15, and n. 5 (1948). Respondent does not contend, however, that the arrest was not authorized by Michigan law. See Mich. Comp. Laws § 764.15 (1970). His sole contention is that since the arrest was for allegedly violating a Detroit ordinance later held unconstitutional, the search was likewise invalid.
Ill
It is not disputed that the Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense. Adams v. Williams, 407 U. S. 143, 148-149 (1972); Beck v. Ohio, 379 U. S. 89, 91 (1964). The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest. We have made clear that the kinds and degree of proof and the procedural requirements necessary for a conviction are not prerequisites to a valid arrest. See Gerstein v. Pugh, 420 U. S. 103, 119-123 (1975); Brinegar v. United States, 338 U. S. 160, 174-176 (1949).
When the officer arrested respondent, he had abundant probable cause to believe that respondent’s conduct violated the terms of the ordinance. The ordinance provides that a person commits an offense if (a) an officer has reasonable cause to believe that given behavior warrants further investigation, (b) the officer stops him, and (c) the suspect refuses to identify himself. The offense is then complete.
Respondent’s presence with a woman, in the circumstances described, in an alley at 10 p. m. was clearly, in the words of the ordinance, “behavior . . . warrant [ing] further investigation.” Respondent’s inconsistent and evasive responses to the officer’s request that he identify himself, stating first that he was Sergeant Mash of the Detroit Police Department and then that he worked for or knew Sergeant Mash, constituted a refusal by respondent to identify himself as the ordinance required. Assuming, arguendo, that a person may not constitutionally be required to answer questions put by an officer in some circumstances, the false identification violated the plain language of the Detroit ordinance.
The remaining question, then, is whether, in these circumstances, it can be said that the officer lacked probable cause to believe that the conduct he observed and the words spoken constituted a violation of law simply because he should have known the ordinance was invalid and would be judicially declared unconstitutional. The answer is clearly negative.
This Court repeatedly has explained that “probable cause” to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. See Gerstein v. Pugh, supra, at 111; Adams v. Williams, supra, at 148; Beck v. Ohio, supra, at 91; Draper v. United States, 358 U. S. 307, 313 (1959); Brinegar v. United States, supra, at 175-176; Carroll v. United States, 267 U. S. 132, 162 (1925).
On this record there was abundant probable cause to satisfy the constitutional prerequisite for an arrest. At that time, of course, there was no controlling precedent that this ordinance was or was not constitutional, and hence the conduct observed violated a presumptively valid ordinance. A prudent officer, in the course of determining whether respondent had committed an offense under all the circumstances shown by this record, should not have been required to anticipate that a court would later hold the ordinance unconstitutional.
Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.
In Pierson v. Ray, 386 U. S. 547 (1967), persons who had been arrested for violating a statute later declared unconstitutional by this Court sought damages for false arrest under state law and for violation of the Fourteenth Amendment under 42 U. S. C. § 1983. Mr. Chief Justice Warren speaking for the Court, in holding that police action based on a presumptively valid law was subject to a valid defense of good faith, observed: “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted' in damages if he does.” 386 U. S., at 555. The Court held that “the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.” Id., at 557. Here, the police were not required to risk “being charged with dereliction of duty if [they did] not arrest when [they had] probable cause” on the basis of the conduct observed.
IV
We have held that the exclusionary rule required suppression of evidence obtained in searches carried out pursuant to statutes, not previously declared unconstitutional, which purported to authorize the searches in question without probable cause and without a valid warrant. See, e. g., Torres v. Puerto Rico, 442 U. S. 465 (1979); Almeida-Sanchez v. United States, 413 U. S. 266 (1973); Sibron v. New York, 392 U. S. 40 (1968); Berger v. New York, 388 U. S. 41 (1967). Our holding today is not inconsistent with these decisions; the statutes involved in those cases bore a different relationship to the challenged searches than did the Detroit ordinance to respondent’s arrest and search.
Those decisions involved statutes which, by their own terms, authorized searches under circumstances which did not satisfy the traditional warrant and probable-cause requirements of the Fourth Amendment. For example, in Almeida-Sanchez v. United States, supra, we held invalid a search pursuant to a federal statute which authorized the Border Patrol to search any vehicle within a “reasonable distance” of the border, without a warrant or probable cause. The Attorney General, by regulation, fixed 100 miles as a “reasonable distance” from the border. 413 U. S., at 268. We held a search so distant from the point of entry was unreasonable under the Constitution. In Berger v. New York we struck down a statute authorizing searches under warrants which did not “particularly describ[e] the place to be searched, and the persons or things to be seized,” as required by the Fourth and Fourteenth Amendments. 388 U. S., at 55-56.
In contrast, the ordinance here declared it a misdemeanor for one stopped for “investigation” to “refuse to identify himself” ; it did not directly authorize the arrest or search. Once respondent refused to identify himself as the presumptively valid ordinance required, the officer had probable cause to believe respondent was committing an offense in his presence, and Michigan's general arrest statute, Mich. Comp. Laws § 764.15 (1970), authorized the arrest of respondent, independent of the ordinance. The search which followed was valid because it was incidental to that arrest. The ordinance is relevant to the validity of the arrest and search only as it pertains to the “facts and circumstances” we hold constituted probable cause for arrest.
The subsequently determined invalidity of the Detroit ordinance on vagueness grounds does not undermine the validity of the arrest made for violation of that ordinance, and the evidence discovered in the search of respondent should not have been suppressed. Accordingly, the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
As amended, Code of the City of Detroit §39-1-52.3 provided:
“When a police officer has reasonable cause to believe that the behavior of an individual warrants further investigation for criminal activity, the officer may stop and question such person. It shall be unlawful for any person stopped pursuant to this section to refuse to identify himself, and to produce verifiable documents or other evidence of such identification. In the event that such person is unable to provide reasonable evidence of his true identity, the police officer may transport him to the nearest precinct in order to ascertain his identity.”
While holding the ordinance unconstitutional, the Michigan Court of Appeals construed the ordinance to make refusal to identify oneself a crime meriting arrest. 80 Mich. App. 197, 201 n. 1, 262 N. W. 2d 921, 923 n. 1 (1977).
The preamble to the amendment indicates that it was enacted in response to an emergency caused by a marked increase in crime, particularly street crime by gangs of juveniles.
The woman was arrested on a charge of disorderly conduct; she is not involved in this case.
The purpose of the exclusionary rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found on the person of the respondent, was the product of a lawful arrest and a lawful search. To deter police from enforcing a presumptively valid statute was never remotely in the contemplation of even the most zealous advocate of the exclusionary rule.
In terms of the ordinance, § 39-1-52.3 authorizes officers to detain an individual who is “unable to provide reasonable evidence of his true identity.” However, the State disclaims reliance on this provision to authorize the arrest of a person who, like respondent, “refuse [s] to identify himself.” Tr. of Oral Arg. 5.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_weightev
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
C-B BUICK, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 73-2068.
United States Court of Appeals, Third Circuit.
Argued Sept. 6, 1974.
Decided Nov. 14, 1974.
H. David Rothman, Pittsburgh, Pa., for petitioner.
William H. DuRoss, III, Atty., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., for respondent.
Before SEITZ, Chief Judge, and GIBBONS and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
Petitioner C-B Buick, Inc. (Buick) appeals from that portion of the September 17, 1973 order of the NLRB (Board) which held that the petitioner had committed an unfair labor practice by violating Section 8(a)(5) and (1) of the National Labor Relations Act. The violation found by the Board was petitioner’s refusal to furnish certain financial data requested by the Union during collective bargaining sessions. On this appeal we are asked by petitioner to set aside that provision of the Board’s September 17, 1973 order which requires Buick to furnish the Union with the requested data. The Board has filed a cross-petition to enforce its entire order. For the reasons set forth below, we decline to enforce so much of the Board’s order as would require Buick at this time to furnish the financial data previously sought by the Union.
I.
In 1971, the Union was certified as the exclusive bargaining representative for eight service-and-parts department workers employed by Buick. Thereafter, Buick and the Union entered into a one-year collective bargaining agreement which expired on June 30, 1972. Prior to the expiration of this agreement, the Union’s business representative submitted certain demands to Buick relevant to a new agreement. Some four days prior to the first bargaining session (which had been scheduled for July 19, 1972) Buick’s president unilaterally met with the employees and informed them that Buick could not afford the Union’s demands and that if these demands had to be met Buick might be forced to close. This meeting, and a subsequent after-hours meeting at which Buick’s supervisor advised against union representation, led to the finding by the Board that Buick had violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act).
At the first two bargaining sessions held on July 19, 1972 and August 2, 1972, the Union’s demands were discussed. Buiek’s position at both sessions was that it could not afford to meet the various Union proposals. The Union thereupon asked to see Buick’s profit and loss statement, to determine for purposes of further contract negotiations whether Buick’s plea of poverty could be substantiated. Buick denied this request at the same time as it submitted counter proposals. Before the August 2, 1972 session ended however, Buick, without abandoning its position that the Union could not see its books, gave the Union an oral statement of Buick’s “pre-tax profits” for the preceding year. This session, like the first, ended without agreement on any issue.
On August 9, 1972 the Union filed with the NLRB an unfair labor practice charge against Buick, claiming (1) that Buick had bypassed the Union and dealt directly with its employees and had threatened them, and (2) that Buick had refused to disclose to the Union relevant employer financial data after asserting that Buick could not afford the Union contract proposals. The Administrative Law Judge who conducted the NLRB hearing on November 20, 1972, concluded that although Buick violated Section 8 (a)(5) and (1) by its direct dealings with and threats to its employees, Buick had not committed an unfair labor practice in failing to bargain collectively when it refused to provide the Union with the financial data requested during the bargaining sessions. The NLRB’s General Counsel filed limited exceptions to the Law Judge’s conclusions urging the Board to conclude that Buick’s conduct in refusing to furnish the Union with financial information constituted an unfair labor practice. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). On September 17, 1973, the Board, with one dissent, reversed the Administrative Law Judge’s conclusion and amended his order to require, inter alia, Buick to furnish the Union, “on request and within a reasonable time, that information sought by the Union relating to the respondent’s [Buick’s] claimed inability to pay the wage increases and other benefits requested by the Union.” (see footnote 3, supra).
Between the hearing conducted by the Administrative Law Judge on November 20, 1972 and the Board's order of September 17, 1973, negotiations between Buick and the Union had continued and on March 13, 1973 the parties entered into a new collective bargaining agreement. Buick thereupon petitioned the Board for reconsideration and for a stay of enforcement of the financial disclosure portion of the order, arguing that the signing of a new collective bargaining agreement mooted this issue. Buick’s petition was denied by the Board, with one dissent, on November 15, 1973. Thereupon, Buick sought this review of the Board’s order contending that so much of the order requiring disclosure of financial data should be set aside. Buick argues that the Board erred in finding Buick’s conduct to constitute an unfair labor practice, and that the disclosure issue is now moot in light of the existing collective bargaining agreement. The Board opposes such action and requests enforcement of its September 17, 1973 order.
II.
TRUITT VIOLATION
Buick argues, inter alia, that its refusal to supply the requested financial data was not a violation of the Act inasmuch as the Union was not bargaining in good faith and was the intransigent party. See, e. g., Boston Herald-Traveler Corp. v. NLRB, 223 F.2d 58, 63 (1st Cir. 1955). In support of this contention, Buick relies on the Administrative Law Judge’s finding that the Union, as the “intransigent” caused the breakdown in negotiations. Buick claims that the Board acted arbitrarily and in disregard of the Administrative Law Judge’s credibility determinations when it concluded that the breakdown in negotiations “was not so much due to intransigence on the part of the Union . . . as it was due to Respondent’s [Buick’s] adamancy in refusing to furnish the requested financial data.”
In reviewing Buick’s bargaining posture, the Board correctly recognized that Buick’s refusal to furnish the information requested of it must be examined in light of the Supreme Court’s decision in NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). In Truitt, the Union demanded a 10^ per hour wage increase. Truitt, the respondent, offered a 2^2 0 per hour increase, claiming that it could not afford to pay more and that any amount above 2V2 0 would “put it out of business.” The employer refused to permit an examination of its books when the Union asked for substantiation of its claimed inability to pay. The Supreme Court sustained the Board’s position that “an employer has not bargained in good faith where the employer claims it cannot afford to pay higher wages but refuses requests to produce information substantiating its claim.” 351 U.S. at 150, 76 S.Ct. at 754. In so holding, the Supreme Court stated:
“In their effort to reach an agreement here both the union and the company treated the company’s ability to pay increased wages as highly relevant. The ability of an employer to increase wages without injury to his business is a commonly considered factor in wage negotiations. Claims for increased wages have sometimes been abandoned because of an employer’s unsatisfactory business condition; employees have even voted to accept wage decreases because of such conditions.”
“Good-faith bargaining necessarily requires that claims made by either bargainer should be honest claims. This is true about an asserted inability to pay an increase in wages. If such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy.”
351 U.S. at 152-153, 76 S.Ct. at 755. (footnote omitted).
This Court has held that it is a per se violation of the Act for an employer to refuse to furnish relevant requested information in the Truitt context. Curtiss-Wright Corp., Wright Aeronautical Division v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965). Buick’s conduct and the record as developed therefore must be examined in light of these principles. The Board’s findings with respect to these facts bearing on its disclosure order will not be set aside if supported by “substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e). We adhere to this standard even in instances, where as here, the Administrative Law Judge and the Board may differ. International Union of Elec., Radio and Machine Workers, AFL-CIO v. NLRB, 273 F.2d 243, 247 (3d Cir. 1959). The record reveals that the Board’s eonclusion is in accord with law and rests upon findings which are supported by substantial evidence. Hence, on review, we will not disturb the Board’s conclusion that a Truitt violation occurred. NLRB v. Truitt Mfg. Co., supra; see Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951); International Union of Elec., Radio and Machine Workers, AFL-CIO v. NLRB, supra.
Buick, however, is not obliged to disclose to the Union its profit and loss data and its “books” merely because they might be helpful to the Union. See United Furniture v. NLRB, 388 F.2d 880 (4th Cir. 1967). It is only where an employer, in asserting its financial inability to meet the demands of the union refuses to disclose its. relevant financial data that the Truitt doctrine is applicable. Under such circumstances an employer must disclose, and a union must be permitted to know, the factual basis substantiating the employer’s assertion of economic inability. NLRB v. Truitt Mfg. Co., 351 U.S. at 152-153, 76 S.Ct. 753. If it were otherwise, the collective bargaining processes would be frustrated. Here, if the Union could not meaningfully evaluate Buick’s economic claims it could not determine whether the claims of financial inability were valid or spurious. Thus, absent Buick’s compliance with the Truitt mandate, the Board was justified in holding that Buick failed to bargain in good faith.
III.
ENFORCEMENT
Our task, however, has not been completed with our determination that Buick’s refusal to furnish financial information was properly held to constitute a violation of the Act. We must still resolve the question of whether we should presently enforce the Board’s disclosure order.
Our power to enforce Board orders is equitable in nature and is properly invoked only when the relief sought is consistent with principles of equity. NLRB v. Kingston Cake Co., 206 F.2d 604, 611 (3d Cir. 1953). Accordingly, where the power of this Court is to be exercised for the enforcement of a Board order requiring the disclosure of financial data, the order must be appropriate for present enforcement. NLRB v. Eanet, 85 U.S.App.D.C. 371, 179 F.2d 15, 17, 21 (1948), reh. denied, 179 F.2d 17 (1949). See also New Standard Publishing Co., Inc. v. Federal Trade Comm., 194 F.2d 181, 183 (4th Cir. 1952). When enforcing Board orders our function is not to put our stamp of authority automatically upon whatever request is made of us, NLRB v. Eanet, supra, nor should we enter an enforcement decree “ . . . in the absence of any showing whatever, based on reasonably recent inquiry, that a decree of court is appropriate or necessary.” NLRB v. Eanet, 179 F.2d at 22. An order of the Board when judicially confirmed must “ . . . like the injunction order of a court, state with reasonable specificity the acts which the respondent is to do or refrain from doing . . . .” NLRB v. Express Publishing Co., 312 U.S. 426, 433, 61 S.Ct. 693, 698, 85 L.Ed. 930 (1941).
With these teachings in mind, we direct our inquiry first to Buick’s contention of “mootness” and then to the controlling issue of relevance.
IV.
MOOTNESS
Buick asserts that even if it is held to have committed an unfair labor practice in refusing to furnish requested financial data to the Union (as we so hold), the Board’s order requiring disclosure should be denied enforcement. Buick argues that the three-year collective bargaining agreement executed after Buick failed to make disclosure of its books renders present disclosure moot. Buick claims that any information it could be obliged to furnish now has been made stale by the passage of time and can serve no useful purpose to the Union either in its role as a bargaining agent or in its role administering the new collective bargaining agreement.
On the other hand, the Board contends that the subsequent execution of the collective bargaining agreement does not “moot” its disclosure order. The Board argues that the forced production of Buick’s economic information would prevent Buick from profiting from its unfair labor practice. Such information, says the Board, could also be used by the Union in “(1) implementing, enforcing or modifying the current agreement; (2) proposing additional requests; (3) formulating future demands or requests; and/or (4) evaluating and assessing the credibility of Respondent’s assertions and claims or the viability of its bargaining position during future negotiations and meetings.”
We requested additional post argument briefing, concerning the effect of implementing the Board’s proposed order at this time, during the period of the existing agreement; and at its termination.
A Board order, lawful when made, does not become moot solely “because changing circumstances indicate that the need for it may be less than when made.” NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831 (1938); see also NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970). Indeed, under the circumstances presented here, we reject Buick’s contention that the signing of a collective bargaining agreement subsequent to a Truitt violation by the employer automatically renders moot a Board order under review which pertains to the refusal to furnish relevant information. We regard Buick’s proscribed conduct as being capable of repetition in some relevant context with the Union. Cf. Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). The significance of the contract execution on March 13, 1973 must therefore be measured by considerations of relevancy (see our discussion infra) rather than by considerations of mootness.
V.
RELEVANCE
An essential ingredient in establishing an unfair labor practice under the doctrine announced in Truitt is that the information withheld be relevant. Relevance, in this case, should be measured with respect to the Union’s statutory functions [the negotiation and administration of the collective bargaining agreement, NLRB v. Acme Indus. Co., 385 U.S. 432, 437, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); International Tel. & Tel. Corp. v. NLRB, 382 F.2d 366, 371-372 (3d Cir. 1967), cert. denied, 389 U.S. 1039 (1968)] and with respect to the ongoing relations of the parties.
A. Negotiation
Based on the record presented, there is no showing that the information requested during the period of contract negotiations in July and August 1972 is relevant or can be of use to the Union in carrying out its statutory responsibility as an exclusive bargaining agent. While the provision of the Board’s order here challenged does not delineate the period of time for which records must be produced, the Board has conceded in its supplemental brief that its order pertains only to those records of Buick which were in existence and available on or before July 19, 1972. There are no pending bargaining negotiations between Buick and the Union. On this record, we find it difficult to understand how the financial data requested by the Union on July 19, 1972 and on August 2, 1972 is now relevant to a present negotiating or bargaining issue, even though we hold that such relevance once existed. We have not been shown and we will not speculate that the disclosure of Buick’s 1971 or 1972 financial data at this time can serve any useful collective bargaining purpose. Cf. NLRB v. Eanet, supra. In so holding, we reject the Board’s contention that if Buick’s records indicated that Buick could have afforded higher labor costs, the Union could presently modify the existing agreement’s wage or benefit provisions by an action under § 301 of the Act. 29 U.S.C. § 185.
We have been shown no authority where during the term of a collective bargaining agreement, modifications of that agreement’s contractual provisions have been permitted as a result of a pre-contract Truitt violation. § 301 applies to actions for the violation of contracts. An unfair labor practice does not necessarily result in a contract violation which would invoke the jurisdiction of federal courts pursuant to § 301, cf. Adams v. Budd Co., 349 F.2d 368 (3d Cir. 1965); Proctor & Gamble Independent Union v. Proctor & Gamble Manufacturing Co., 312 F.2d 181 (2d Cir. 1962, cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963), especially where, as here, no necessary or sufficient connection is shown between the unfair labor practice and the contract. Moreover, nowhere has it been claimed that the Union has sought to modify the present contract, or wage or benefit provisions any time after the execution of the contract on March 13, 1973.
B. Union Administration
The record is also silent with respect to the Union’s needs for such financial information in order to “administer” the collective bargaining agreement. We realize that a union is entitled to information necessary to prosecute grievances, NLRB v. Acme Indus. Co., supra, but there is no showing that the information requested has any present or future relevance to such a situation. Indeed, we are not aware of any grievances past or present pending under the present contract provisions. There is no indication that the Union’s obligation to “administer” the collective bargaining agreement might be affected by the information sought. See International Tel. & Tel. Corp. v. NLRB, 382 F.2d at 371-372. The predictions of the Board as to how such information may be employed by the Union are mere speculation. As such, no demonstration of relevance has been shown. Absent such a showing, we cannot say that present enforcement of the Board’s financial disclosure order would achieve ends “fairly said to effectuate the policies of the Act.” See NLRB v. Kingston Cake Co., 206 F.2d 604, 611 (3d Cir. 1953).
C. During Term of Contract
Although the record discloses no pending grievances or issues, it is conceivable that under the existing agreement a problem may arise in a context where Buiek’s financial information may become relevant. We cannot know at this time: (a) whether Buick will plead economic inability; (b) whether if such plea is made, Buick will then refuse disclosure of its substantiating data; (c) whether under the circumstances then existing Buick’s conduct would constitute an unfair labor practice; (d) whether the records which are subject to the Board’s September 17, 1973 order (i. e., pre-July 1972 records) and the only records with which we are concerned here, would have any relevance whatsoever to the particular issue then disputed; and (e) whether the collective bargaining provisions of the existing contract would have any effect on the dispute. The mere cataloging of the myriad issues to be faced, as to which neither of the parties can have knowledge at this time, fortifies our view that the enforcement of the Board’s order would be inappropriate. We cannot anticipate from Buick’s past conduct that it will take unlawful action in the future, nor will we grant enforcement of an order to restrain the possible future commission of a new violation unrelated to that with which Buick was here charged. See NLRB v. Express Publishing Co., 312 U.S. 426, 435-437, 61 S.Ct. 693, 85 L.Ed. 930 (1941).
In light of this discussion, we refrain from comment on the potential application of the Truitt doctrine to any viable issue that might arise during the course of the present agreement. It is sufficient for our purposes here to recognize that the record is deficient, both with respect to the relevance of a Truitt violation during the term of the contract, and the relevancy of pre-July 1972 financial information to an issue which has not now and may never arise.
D. Termination of Contract
The collective bargaining agreement executed on March 13, 1973 does not expire by its terms until March 1976. We cannot know now whether Buick will claim inability to meet Union demands when and if a renewal of that contract is negotiated. We do not and cannot know from this record whether Buick if asked for financial data, will refuse to furnish such information. “Thus, while the board’s discretion in ordering affirmative action is wide and should not lightly be disturbed, it has its limits. Certainly, a court of appeals has some responsibility for the effects of its own decree . . . .” NLRB v. Kingston Cake Co., 206 F.2d at 611. We cannot, consistent with our equitable role, defer to the Board’s discretion in ordering affirmative action by Buick without knowing the context within which a subsequent violation might arise — or if indeed a subsequent violation will ever occur. (See our discussion under Part, V.C., supra). As a court of equity, we will not engage in such a vain endeavor.
VI.
We are fully cognizant of those cases in which orders have been enforced after a change in circumstances. See, e. g., NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); NLRB v. Electric Steam Radiator Corp., 321 F.2d 733 (6th Cir. 1963) (enforcement of order despite the employer having discontinued operations and having gone out of business). But an examination of those cases reveal that in each instance the Board’s order provided a “cease-and-desist” sanction which would subject the employer to contempt proceedings if the acts constituting the unfair labor practice were to be resumed. Here, there is no such proposed cease- and-desist sanction in the Board’s remedial order as its respects the production of financial information. As the Board recognizes in its supplemental brief, its order would not subject Buick to contempt proceedings with respect to future collective bargaining conduct. Thus, the Board recognizes, as do we, that under certain limited circumstances a violation of the Act may go unpunished. Our objective, however, is to effectuate the policies of the Act, and not necessarily to impose punitive sanctions where the “punishment” may not be relevant to correct the violation committed.
We emphasize again that our refusal to enforce the Board’s order is prompted by the dilution in relevancy occasioned by the passage of time and the execution of the present collective bargaining agreement. In respect to remedial orders for Truitt violations, it is our view that to effectuate the policies of the Act, the information to be furnished by the employer must have current relevancy both to the Union in the proper performance of its functions and to the issues involved. We consider the execution of the new agreement under the circumstances then existing, to be but one factor in establishing the relevance of the information to be supplied to the Union for carrying out its functions.
Accordingly, so much of the Board’s order as requires the disclosure of Buick’s financial data will be.set aside and enforcement as to that portion of the September 17, 1973 order will be denied. Enforcement will be ordered as to the remainder of the Board’s order. Each party shall bear its own costs.
. 29 U.S.C. § 158(a)(5) and (1) provides:
“(a) It shall be an unfair labor practice for an employer—
(I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; . . .
(5) to refuse to bargain collectively with the representative of his employees, subject to the provisions of section 159(a) of this title.”
Section 8(d) of the Act, 29 U.S.C. § 158(d), provides:
“For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder.”
. The Union is the International Association of Machinists & Aerospace AVorkers, District Local 63, AFL-CIO.
. The original order was issued by the Administrative Law Judge and in relevant part provided :
Respondent C-B Buick, Inc., its officers, agents, successors and assigns shall:
1. Cease and desist from :
(a) Bypassing the Machinists and dealing directly with its employees concerning the Machinists’ demands for a new contract and threatening them that such demands or a strike to enforce them might cause it to go out of business; telling its employees that they could do better. dealing with it through a supervisor than through their exclusive bargaining agent.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively and exclusively with Machinists as the exclusive bargaining representatives of the unit found appropriate herein concerning rates of pay, wages, hours and terms and conditions of employment and, if agreement is reached, embody such understanding in a written agreement.
On September 17, 1973, the Board amended the original order by adding paragraph 2(b), which requires Buick to :
(b) Furnish the Union, on request and within a reasonable time, that information sought by the Union relating to the Respondent’s claimed inability to pay the wage. increases and other benefits requested by the Union.
Buick does not challenge any provision of the Board’s final order other than paragraph 2(b). The Board seeks enforcement of the order as amended.
. On this appeal, Buick does not challenge this finding.
. The Union’s request for Buick’s financial data sought an examination of the profit and loss statement and “the books.” (Tr. 65-66). Though this request was somewhat vague, Buick’s duty to furnish information on the Union’s request is not defeated by the failure to ask for the precise kind of information which the employer has available, as long as the employer has data of a similar nature to that requested by the Union. See NLRB v. Western Wirebound Box Co., 356 F.2d 88 (9th Cir. 1966).
. The new collective bargaining agreement is for a term of three years. It contains substantially the same provisions as were contained in the preceding one-year contract. The current collective bargaining agreement provides, however, for an increase in wages, holidays and fringe benefits.
. We have jurisdiction to entertain this matter pursuant to 29 U.S.C. § 160(f).
. Decision of Administrative Law Judge, JD-33-73, Case No. 6-CA-6244, at 10. (Issued January 30, 1973).
. C-B Buick, Inc. and International Ass’n of Machinists & Aerospace Workers, District Lodge No. 63, AFL-CIO, 200 NLRB No. 10, 84 LRRM 1173, 1175 (1973).
. We reject Buick’s contention that its oral statement to the Union of its preceding years “pre-tax profits” sufficed to substantiate its claim of economic inability and sufficed to bar a finding of an unfair labor practice premised upon a Truitt violation. A partial oral presentation of financial data, even if it is of an uncomplicated nature, cannot be held to have satisfied the employer’s duty to furnish information to the Union in a context such as this one. Cf. J. I. Case Co. v. NLRB, 253 F.2d 149 (7th Cir. 1958). Moreover, the information to be furnished must be from current data. See NLRB v. Rybold Heater Co., 408 F.2d 888 (6th Cir. 1969).
. Counsel for General Counsel’s Opposition to Respondent’s Petition for Reconsideration, For Remand to Adduce Additional Evidence if Necessary and for a Stay of Enforcement, Case No. 6-CA-6244, dated October 29, 1973.
. Article 3 of the existing collective bargaining agreement provides as follows :
The Company agrees that it will negotiate with the Union during the term of this Agreement concerning any matter involving the wages, hours and working conditions of the employees which is not specifically provided for in this Agreement. Any disputes which are not settled by negotiations shall be subject to the Grievance and Arbitration Provisions, provided for in this Agreement.
Article 20 establishes a four-step grievance procedure;
Article 21 provides for arbitration.
. We can consider the issue of mootness although it obviously was not raised before the Administrative Law Judge. When after the issuance of an NLRB order, circumstances arise which may affect the propriety of enforcing the order, this Court has discretion to decide the matter itself or to remand it to the Board for further consid-ration. NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575, reh. denied, 331 U.S. 868, 67 S.Ct. 1725, 91 L.Ed. 1872 (1947). We regard the issue before us as essentially one of law, and we do not find it necessary to remand this proceeding for further factual findings.
. The initial demand for financial data was made in July 1972. The record is silent as to the manner and form of Buick’s record keeping and as to Buick’s fiscal year. Hence, we cannot tell if Buick’s books and records would have reflected monthly or year-end figures through June 1972, or calendar year figures through December 1971, or figures through any other intermediate date.
. 29 U.S.C. § 185 in pertinent part provides :
(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
. In this regard, we note that suits for the breach of a bargaining representative’s duty of fair representation may be brought under section 301(a) only if a sufficient connection is shown between the contract and the breach. See Leskiw v. Local 1470, IBEW, 464 F.2d 721 (3d Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 526, 34 L.Ed.2d 490 (1972); International Longshoremen’s & Warehousemen’s Union v. Kuntz, 334 F.2d 165 (9th Cir. 1964).
The cases to which the Board refers us do not support the Board’s contention that the Union may seek modification of the existing contract. An analysis of Mearns v. Lewis, 168 F.Supp. 134 (N.D.W.Va.1958), aff’d 268 F.2d 427 (4th Cir. 1959) and Local Union No. 600, United Auto Aircraft & Agricultural Implement Workers of America, UAW-CIO v. Ford Motor Co., 113 F.Supp. 834 (E.D. Mich.1953) reveals that both cases involved attempts to rescind collective bargaining agreements on the basis that fraudulent representations were used to induce one of the parties
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_casetyp1_7-3-1
|
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 - taxes, patents, copyright".
KIMBALL v. COMMISSIONER OF INTERNAL REVENUE.
No. 4180.
Circuit Court of Appeals, First Circuit.
Nov. 1, 1946.
Before MAHONEY, GOODRICH (by special assignment), and WOODBURY. Circuit Judges.
Robert C. McKay, of Boston, Mass., for petitioner for review.
Melva M. Graney, Sp. Asst, to the Atty. Gen., of Washington, D. C. (Douglas W.. McGregor, Asst. Atty. Gen., and Sewall Key and J. Louis Monarch, Sp. Asst. to the Atty. Gen., all of Washington, D. C., on the brief), for Commissioner.
PER CURIAM.
This case comes before us on a petition to review a decision of' The Tax Court of the United States which sustained a determination by the Commissioner of Internal Revenue of a deficiency in petitioner’s liability for withholding income tax at the source for the years 1941 and 1942, under § 143(b) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 143(b).
The petitioner is the sole trustee of a trust fund under the will of Annie Bi Webb, late of Salem, Massachusetts, who died in 1925. In Clause 18 of her will, the testatrix left the residue of her property to trustees and authorized them to pay from the net income:
“(c) To Mabel Duncan and Ethel Duncan, now or recently residing at 6 Place St., Sulpice, Paris, an annuity of four hundred dollars, one half to each, and the whole to the survivor for life.
“(d) To the following named persons, annuities for their respective lives, namely: Germaine St. Laurent, eight hundred dollars * *
Both Ethel Duncan and Germaine St. Laurent were citizens of France and resided there in the years 1941 and 1942 and the latter had been in the employ of the testatrix from 1913 to 1925.
The petitioner paid or deposited to the credit of Ethel Duncan and Germaine St. Laurent in each of the years 1941 and 1942 200 and 800 dollars respectively. These amounts were not included in the withholding tax returns as income subject to withholding, because the petitioner claimed that the annual payments to the former constituted a “life annuity” and to the latter both a “private pension” and a “life annuity” paid to citizens and residents of France, and hence were exempt under Article IX(c) of the Convention and Protocol on Double Taxation between the United States and the Republic of France executed April 27, 1932, and effective January 1, 1936. 49 Stat. 3145 (1935.) The Tax Court sustained the action of the Commissioner in refusing to accept this contention and held that the words “life annuities” in the Treaty could reasonably be limited to purchased or contractual annuities and therefore would not include testamentary annuities. It also held that it was unnecessary for it to decide the scope of the term “private pensions” as used in the Treaty because it found that in this case amounts paid to Germaine St. Laurent were not paid as a pension, but that she was simply one of several named beneficiaries under the terms of a trust. It further stated that there was no indication in the will that the payments were to be made for past services nor that an employee-employer relationship had existed between her and the decedent.
Whether or not this was a pension is a question of fact and we are bound by the determination of the Tax Court. Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248; Commissioner v. Scottish American Investment Co., 1944, 323 U.S. 119, 65 S.Ct. 169, 89 L.Ed. 113.
Likewise we are in accord with the reasoning of the Tax Court and its conclusion that the payments made to Ethel Duncan and Germaine St. Laurent were not “life annuitiés” within the meaning of Article IX(c) of the Convention and Protocol on Double Taxation between the United States and France.
The decision of the Tax Court of the-United States is affirmed.
“See. 143. Withholding of tax at source
$ * if. * *
“(b) Nonresident aliens. All persons, in whatever capacity acting, including lessees or mortgagors of real or personal property, fiduciaries, employers, and all officers and employees of the United States, having the control, receipt, custody, disposal, or payment of interest, * * * dividends, rent, salaries, wages, premiums, annuities, compensation, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income (but only to the extent that any of the above items constitutes gross income from sources within the United States), of any nonresident alien individual, * * * shall * * * deduct and withhold from such annual or periodical gains, profits, and. income a tax * *
Article IX- — Convention and Protocol on Double Taxation between the United States and the Republic of Prance.
“The following classes of income paid in one of the contracting States to a corporation of tbe other State, or to a citizen of the latter State residing there, are exempt from tax in the former State: * * * *
“(c) private pensions and life annuities.”
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
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.
Captain Henry BECK, Superintendent of the Pulaski County Penal Farm; and Clint Cavin, Surety, Appellants, v. Robert WINTERS, Appellee.
No. 19278.
United States Court of Appeals Eighth Circuit.
Feb. 25, 1969.
Certiorari Denied June 16, 1969.
See 89 S.Ct. 2104.
H. Clay Robinson, Deputy Pros. Atty., and Don Langston, Asst. Atty. Gen., Little Rock, Ark., for appellants, Joe Purcell, Atty. Gen., and Richard B. Atkisson, Pros. Atty., Little Rock, Ark., on the brief.
Michael Meltsner, New York City, for appellee, Jack Greenberg, New York City, John W. Walker and Norman Chachkin, Little Rock, Ark., and Anthony G. Amsterdam, Philadelphia, Pa., on the brief.
Before MATTHES, GIBSON and LAY, Circuit Judges.
MATTHES, Circuit Judge.
Captain Henry Beck, Superintendent of the Pulaski County Penal Farm and Clint Cavin, surety, have appealed from the order of the United States district court granting Robert Winters relief in this habeas corpus proceeding. The history of the litigation giving rise to this appeal is fully and accurately reported in the district court’s opinion in Winters v. Beck, 281 F.Supp. 793 (E.D.Ark. 1968). A brief resume of the relevant facts will suffice for the purpose of this opinion.
Winters, appellee, was tried and convicted without the assistance of counsel in the Municipal Court of Little Rock, Arkansas, for obscene and lascivious conduct proscribed by Little Rock City Ordinance No. 25-121. He received the maximum punishment of 30 days in jail and a fine of $250, to which was added $4 costs. Being an indigent and unable to pay the fine, he was sentenced to the Pulaski County Penal Farm for a total of 284 days as provided by Ark.Stat.Ann. § 19-2416 (1968 Repl. Vol.).
After appellee had exhausted his state remedies through habeas corpus proceedings, Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364 (1965), cert. denied, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (1966) (Mr. Justice Stewart dissenting), he filed a petition for habeas relief in the United States district court on November 8, 1966.- Judge Young initially dismissed appellee’s petition on the ground that petitioner was at liberty on bail and not under such restraint as was necessary to require consideration of the petition. On appeal we remanded for a rehearing on the merits in conformity with the teachings of the Supreme Court in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). On remand, Judge Young held a hearing and in a soundly-reasoned opinion found that “the interaction of the ‘dollar-a-day’ statute of Arkansas with a $254 fine plus a 30-day jail sentence constituted a ‘serious offense,’ and the failure of the trial court to notify petitioner of his right to the assistance of counsel and offer him counsel if he was unable financially to retain counsel rendered the judgment of conviction and sentence constitutionally invalid.” 281 F.Supp. at 801-802.
On this appeal, appellants in their brief again questioned appellee’s standing to seek habeas relief, their position being that since he was at liberty on bond when he filed his petition in the United States district court, he was not in custody within the meaning of 28 U.S.C. § 2241, and consequently the writ was not available to him. Our remand of the district court’s first order, motivated by Jones v. Cunningham, supra, disposed of this issue. In oral argument the Assistant Attorney General of Akansas with candor conceded there was no merit to the lack of standing issue and expressly abandoned this contention.
The clear-cut question we must decide is whether the district court was correct in holding that appellee was deprived of his Sixth Amendment right to assistance of counsel as applied to the states through the due process clause of the Fourteenth Amendment. We subscribe to Judge Young’s conclusion and affirm.
The Attorney General of Arkansas argues. for a reversal on the premise that the question of whether an indigent state defendant is entitled to the assistance of counsel is one “which traditionally in the American system of government belongs to the Legislatures, not to the courts.” We are reminded that Arkansas has recognized its responsibility by enacting legislation providing “free counsel” for indigent defendants in felony cases, Ark. Stat.Ann. § 43-1203 (1964 Repl. Yol.); that the Supreme Court of Arkansas has held not only that appellee Winters was not entitled to counsel, but has expressly rejected the concept that an indigent defendant charged with a misdemeanor should have the assistance of counsel. Cableton v. State, 243 Ark. 351, 420 S.W. 2d 534 (1967). The Cableton Court was obviously influenced by practical considerations, stating in part: “[T]here are more justices of the peace in Arkansas than there are resident practicing lawyers and that there are counties in which there are no practicing lawyers. The impact of such a rule would seriously impair the administration of justice in Arkansas and impose an intolerable burden upon the legal profession.” Id. at 538-539.
We are fully cognizant of and appreciate appellants’ concern over the federal government intruding into problems which are primarily relegated to the states for resolution. The Supreme Court recognized the importance of comity between the federal and state courts in Ker v. California, 374 U.S. 23, 31, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726 (1963):
“Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States, [364 U.S. 206, 221, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1961)] that ‘a healthy federalism depends upon the avoidance of needless conflict between state and federal courts’ by itself urging that ‘ [¶] ederal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches.’ ”
Accord, Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).
The sum of appellants’ argument is predicated on the pronouncement of the Supreme Court of Arkansas that “[a]ny change in the law of Arkansas, after certiorari was denied in the Winters case should either come through legislative enactment or by an express decision of the United States Supreme Court.” 420 S.W.2d at 537-538.
Appellants are correct in suggesting that the Supreme Court of the United States has not expressly extended the Sixth Amendment right to assistance of counsel to misdemeanor cases. We are firmly convinced, however, from the rationale of the decisions of the Supreme Court that the fundamental right to counsel extends to a situation where, as here, the accused has been found guilty of an offense, which has resulted in imprisonment for approximately nine and one-half months.
The Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in holding that the Sixth Amendment guarantee of the right to assistance of counsel is applicable to the states through the Fourteenth Amendment, proclaimed: “[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. at 344, 83 S.Ct. at 796.
Appellants seem to regard the Gideon opinion as limiting the application of the Sixth Amendment to offenses which are characterized as felonies. We are not persuaded that the Gideon Court intended to circumscribe the application of its decision to such narrow confines. The Court did not draw a line between felonies and any and all misdemeanors. Indeed, consideration of the opinion in context leads us to conclude that the right to counsel must be recognized regardless of the label of the offense if, as here, the accused may be or is subjected to deprivation of his liberty for a substantial period of time.
It should be remembered that the Sixth Amendment makes no differentiation between misdemeanors and felonies. The right to counsel is not contingent upon the length of the sentence or the gravity of the punishment. Rather, it provides that the guarantee extends to “all criminal prosecutions.” Furthermore, we note that the phrase “all criminal prosecutions” applies not only to the right to counsel but also to the right to a jury trial. Logically the phrase should be accorded the same meaning as applied to both protections. Thus we believe significant the Supreme Court’s pronouncements in cases involving the jury trial guarantee.
In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed. 491 (1968), the Supreme Court held that “trial by jury in criminal cases is fundamental to the American scheme of justice,” and that the Fourteenth Amendment guarantees a right of jury trial in all state criminal cases “which — were they tried in a federal court — would come within the Sixth Amendment’s guarantee.” The Court concluded that a jury trial is guaranteed in all “serious offenses” but does not extend to “petty crimes.” The Duncan Court, however, declined to settle the exact location of the line between petty offenses and serious crimes. It did hold that on the facts before it, where appellant had been sentenced to 60 days in jail and fined $300 for commission of simple battery, a misdemeanor punishable up to two years, he was entitled to a jury trial.
In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed. 522 (1968), the Court reiterated its holding in Duncan and held that the right to jury trial extends to serious criminal contempts and that denial of a jury trial to appellant, who was sentenced to imprisonment for two years, was constitutional error. Conversely, in Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), the Court did not extend the right to an offense it found petty. Dyke involved contemnors who were sentenced under a Tennessee criminal contempt statute that provided for a maximum penalty of 10 days in jail and a fine of $50. Relying on its earlier decision in Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1537, 16 L.Ed.2d 629 (1966), where it held that a six-month sentence is short enough to be “petty,” the Court reasoned that the petitioners in this case were charged with a “petty offense” and had no federal constitutional right to jury trial.
Equally significant, we believe, is the Court’s recent declaration that the right to assistance of counsel extends to juvenile proceedings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed.” In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
The Fifth Circuit also has been faced with the question of how far the right to counsel extends and has refused to formulate a rigid rule which would either extend the protection to all criminal cases or limit it only to felonies. Rather, in adopting a broad view it expressly ruled that the safeguard extends to misdemeanor cases, but also recognized that there are some offenses where one would not be entitled to the services of an attorney at the expense of the state.
In Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965), the defendant, without being advised that he was entitled to assistance of counsel, pled guilty to, was convicted of and sentenced to the maximum punishment of a $500 fine and 90 days in jail for possession of whiskey, a misdemeanor in Mississippi. Noting that such a plea had “grievous consequences,” the court held that under the facts of the case, defendant was unconstitutionally convicted because of the failure to advise him that he was entitled to be furnished counsel.
In MacDonald v. Moore, 353 F.2d 106 (1965) the Fifth Circuit reaffirmed its position in Harvey. There appellant was charged (1) with illegal sale of gin, and (2) with illegal possession of whiskey and gin, both misdemeanors under Florida law. She pled guilty and was sentenced to 6 months in jail or $250 fine on each charge. Because the facts in the case were so similar to those in Harvey, the court stated that it was required to hold that appellant was entitled to assistance of counsel.
Recently, the Fifth Circuit again dealt with the question and expressly held that under the Sixth and Fourteenth Amendments, right to counsel extends to misdemeanor cases. Goslin v. Thomas, 400 F.2d 594 (1968). Defendant asserted that he had been denied counsel in four Louisiana misdemeanor proceedings. In the last proceeding, defendant had been sentenced to jail for one year.
Based on the rationale of the foregoing authorities, we conclude that the right to counsel cannot be dependent upon the mere arbitrary label that á state legislature attaches to an offense.
We find it unnecessary to decide that all indigents have the right to assistance of counsel in all misdemeanor prosecutions, no matter how trivial may be the consequences. Whether a person accused of an offense labeled as a misdemeanor is entitled to counsel must be resolved upon proper consideration of all circumstances relative to the question. In addition to the financial status of the accused, the punishment that may be imposed if he is found guilty is certainly a vital factor. The trial court should fully explore all of the relevant circumstances, and if it is determined that counsel should be provided, the accused must be so informed. Unless he intelligently and knowingly waives the right, counsel should be furnished. We go no further in attempting to delineate the guidelines.
In summary, it is abundantly clear that the district court correctly decided the question at issue. The order vacating the judgment and sentence is affirmed..
. Appellant Clint Cavin is surety on Winters’ appearance bond, and apparently was named as a respondent in the habeas corpus proceeding on the theory that Winters is in the technical custody of Cavin. He did not file a responsive pleading in the district court.
. The statute under which appellee was committed provides in effect that prisoners confined in the county jail or city prison, by sentence of the mayor or police court, for a violation of a city ordinance may, by ordinance, be required to work out the amount of all fines, penalties, forfeitures and costs at the rate of $1 per day. Little Rock Ordinance No. 25-121, and § 19-2416, Ark. Stat.Ann., are reproduced in the district court’s opinion.
. Apparently, the legal profession in Arkansas recognizes the need for more effective legislation in this area. The Arkansas Bar Association’s Special Committee on the Defense of Criminal Indigents is preparing proposed legislation that would establish a public defender— appointed counsel system in Arkansas not limited to felony cases. See Sizemore, Defense of Accused Indigents in Arkansas : New Hope or More of the Same, Arkansas Lawyer, Oct., 1968, at 6.
. Appellants have placed undue reliance upon denial of certiorari in Winters v. Beck, supra. The sole significance of a denial of a petition for writ of certiorari is discussed at some length in Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-918, 70 S.Ct. 252, 94 L.Ed. 562 (1950). “[S]uch a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review.” Id. at 919, 70 S.Ct. at 255.
. Gideon expressly overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), in which the Supreme Court refused to hold that the Sixth Amendment right to counsel extended to the states through the Fourteenth Amendment. Betts did recognize, however, that where there existed special circumstances, the right to counsel became fundamental and essential so as to require applicability of the Sixth Amendment to the state through the due process clause of the Fourteenth Amendment.
. Although there is no limitation on the right to appointed counsel in the majority opinion, Mr. Justice Harlan, in a concurring opinion, comments: “Whether the rule should extend to all criminal cases need not now be decided.” Id. at 351, 83 S.Ct. 792, at 801. That the reach of Gideon is not altogether clear is evidenced by two dissenting opinions of Justices in denials of certiorari in Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207 (1966) and DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966). In those opinions the Justices call for the Court to clarify its holding in Gideon.
. The Court stated:
“The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Id. at 36, 87 S.Ct. 1428, at 1448.
. In MacDonald v. Moore, infra, the court commented:
“It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the services of an attorney at the expense of the state or the municipality. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state.”
. The court quoted from Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633, 638 (1942) approvingly:
“It is * * * suggested * * * that the constitutional guaranty of the right to the assistance of counsel in a criminal case does not apply except in the event of ‘serious offenses.’ No such differentiation is made in the wording of the guaranty itself, and we are cited to no authority, and know of none, making this distinction. * * * And so far as the right to the assistance of counsel is concerned, the Constitution draws no distinction between loss of liberty for a short period and such loss for a long one.”
. The lower court’s opinion, Petition of Thomas, 261 F.Supp. 263 (W.D.La.1966), held that under Harvey and MacDonald, Gideon must be applied to all criminal cases. The Court of Appeals for the Fifth Circuit stopped short of this holding, stating that the only question was whether the right to counsel under the Sixth and Fourteenth Amendments extends to state misdemeanor cases.
. Other federal cases rejecting the misdemeanor-felony dichotomy and holding that the Sixth Amendment right to assistance of counsel extends to misdemeanor prosecutions are: Brinson v. Florida, 273 F.Supp. 840 (S.D.Fla.1967) ; Rutledge v. City of Miami, 267 F.Supp. 885 (S.D.Fla.1967) ; Arbo v. Hegstrom, 261 F.Supp. 397 (D.Conn.1966). See Stubblefield v. Beto, 399 F.2d 424, 425 (5th Cir. 1968) (dissenting opinion) ; Wilson v. Blabon, 370 F.2d 997 (9th Cir. 1967). See also the following articles: Carlson, Appointed Counsel in Criminal Prosecutions : A Study of Indigent Defense, 50 Iowa L.Rev. 1073 (1965) ; Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich.L.Rev. 219 (1962) ; Kamisar and Choper, The Right to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations, 48 Minn.L.Rev. 1 (1963) ; Milroy, Court Appointed Counsel for Indigent Misdemeanants, 6 Ariz.L.Rev. 280 (1965) ; Comment, The Right to Counsel for Misdemeanants in State Courts, 20 Ark.L. Rev. 156 (1966).
. As Mr. Justice Stewart pointed out in his dissent in the Court’s denial of certiorari in Winters v. Beck, supra, some misdemeanors in Arkansas are punishable by up to three years’ imprisonment. Ark. S tat. Ann. § 41-805 (1964 Repl. Vol.).
. While we do not formulate and lay down an arbitrary, mechanical rule which could automatically and simply be applied in every case to determine whether the right to assistance of counsel attaches, we do point out some of the various approaches and suggestions promulgated by courts, commissions and statutes. In Brinson v. Florida, 273 F.Supp. 840 (S.D.Fla.1967), the court constructed what it believed to be the proper test: “The right to assistance of counsel is determined by the seriousness of the offense, measured by the gravity of the penalty to which the defendant is exposed on any given violation.’’ Id. at 843. The court further stated: “I hold that the minimum offense for which counsel must be provided is one which carries a possible penalty of more than six months imprisonment, which is the line of demarcation drawn in federal practice.” Id. at 845. The Criminal Justice Act of 1964, 18 U.S.C. § 3006A, provides that appointed counsel in federal courts shall be afforded to indigents in all felony and misdemeanor cases other than petty offenses. The Act defines petty offenses as those punishable by not more than six months imprisonment or $500 fine or both. 18 U.S.C. § 1. The ABA’s project on Minimum Standards for Criminal Justice in its tentative draft on Standards Relating to Providing Defense Services § 4.1 (1967) has recommended the following rule:
“Counsel should be provided in all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed, regardless of their denomination as felonies, misdemeanors or otherwise.”
In the Challenge of Crime in a Free Society : A Report by the President’s Commission on Law Enforcement and Administration of Justice (1967), the commission recommended:
“The objective to be met as quickly as possible is to provide counsel to every criminal defendant who faces a significant penalty, if he cannot afford to provide counsel himself. This should apply to cases classified as misdemeanors as well as to those classified as felonies.” Id. at 150.
In its summary, however, the commission stated that “traffic and similar petty charges” are excluded from this recommendation. Id. at viii.
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:
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songer_respond1_1_2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
UNITED STATES of America, Appellant, v. EL POMAR INVESTMENT COMPANY, Appellee.
No. 7342.
United States Court of Appeals Tenth Circuit.
April 23, 1964.
Phillip Miller, Atty., Dept. of Justice, (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz, Karl Schmeidler, Attys., Dept. of Justice, Lawrence M. Henry, U. S. Atty., and Merle R. Knous, Asst. U. S. Atty., on the brief), for appellant.
Ben S. Wendelken, Colorado Springs, Colo. (Murray, Baker & Wendelken, Colorado Springs, Colo., of counsel, on the brief), for appellee.
Before MURRAH, Chief Judge, and PHILLIPS and PICKETT, Circuit Judges.
ORIE L. PHILLIPS, Circuit Judge.
This is an action to recover on a tax refund claim. It involves the question of whether deficits of predecessor corporations were carried over to successor corporations, which acquired the assets of their respective predecessors through tax-free reorganizations, with the result that earnings and profits of the last successor corporation realized after the last reorganization, but prior to 1951, retained by it until 1951, and in that year distributed to stockholders constituted a return of capital, rather than a dividend, taxable under § 115(a) of the Internal Revenue Code of 1939, 26 U.S.C. § 115(a).
El Pomar Investment Company, a Coloi-ado corporation, is the taxpayer involved. From a judgment in favor of Pomar for $2,621.65, with interest, the United States has appealed.
The case was tried on a written stipulation and the exhibits attached thereto, filed by the parties, from which the following facts appear:
Pomar was a stockholder in the Garden City Company, a Colorado corporation. During the year 1951, it distributed to its stockholders $117,477. Pomar received $67,539 thereof and reported it in its income tax return for 1951 as dividend income and paid the tax thereon. Thereafter, it filed a timely claim for refund of $2,832.13 on the ground that 45.72967 per cent of the amount received by it, or $30,885.36, was a dividend from earnings of Colorado-Garden City and 54.27033 per cent thereof, or $36,653.64, was a return of capital and not taxable. The claim was disallowed and Pomar then brought this action to recover on its claim for refund.
On April 2, 1919, Garden City Sugar and Land Company, a corporation, had outstanding First Mortgage and Refunding Bonds of the face value of $2,224,750; Real, Chattel, and Collateral Trust Bonds of the face value of $2,500,000; and 25-Year Income Bonds of the face value of $685,000. It did not have sufficient cash to pay the interest on the First Mortgage and Refunding Bonds, which had become due January 1, 1919, and had neither funds nor credit through which it could obtain funds to pay the installments of interest on the First Mortgage and Refunding Bonds and the Real, Chattel, and Collateral Trust Bonds, respectively, to accrue and become due July 1, 1919, and it was without funds or credit to finance its farming operations for the current year. A bondholders’ committee was created and a plan evolved and reduced to writing for the adjustment of such securities and the establishment of adequate credit with which to provide the necessary working capital for the operations of the current year. Acceptance of the plan was obtained and the bonds were transferred to and deposited with the bondholders’ committee.
On October 10, 1919, the bondholders’ committee obtained a decree of foreclosure against the Sugar and Land Company in the District Court of Finney County, Kansas. In January, 1920, the committee caused the Garden City Company, a Delaware corporation, and the first successor corporation to be organized. The committee purchased all the property of the Sugar and Land Company at the foreclosure sale had pursuant to such foreclosure decree and transferred all of such property to Delaware-Garden City in exchange for its bonds, having a face value of $4,250,000, and its entire issue of stock, being 100,000 shares of no par value common stock. The new bonds were made inferior to a working capital loan, which was not to exceed $500,000.
During the period January 1, 1914, to January 1, 1920, the Sugar and Land Company had a cash operating deficit of $714,360.46 and an allowed depreciation deficit of $500,024.51, or an aggregate of $1,214,384.97.
At the time Delaware-Garden City was organized, it had neither accumulated earnings nor deficits from operations, except such accumulated earnings or deficits as were carried over from the Sugar and Land Company.
Delaware-Garden City carried on the same kind of business at the same place and with the same property as had the Sugar and Land Company.
On August 15, 1929, $3,980,417.50 of income bonds of Delaware-Garden City, secured by a mortgage on its property, were issued and outstanding. No interest had been paid on such bonds. On January 1, 1930, all of the principal of such bonds and accrued interest thereon would mature and be payable. Delaware-Garden City was not financially able to pay such principal and interest and a readjustment of the capital financial structure of the company was unavoidable. Aside from the amounts due on such bonds for principal and interest, Delaware-Garden City was in good financial condition and had quick assets of over $500,000, consisting largely of cash and sugar in storage. It was necessary to retain such quick assets in order to finance the current operations of Delaware-Garden City and keep it a going concern, but such assets were sufficient to provide it or a reorganized company with adequate working capital. Aside from the bond indebtedness, Delaware-Garden City had no substantial indebtedness, even for current bills.
Thereafter, pursuant to a plan of reorganization, the following events took place:
On August 15, 1929, a bondholders’ committee was created by the holders of income mortgage bonds of Delaware-Garden City; such bondholders transferred such income-mortgage bonds to the 1929 bondholders’ committee; the 1929 bondholders’ committee obtained a decree of foreclosure of Delaware-Garden City’s mortgage securing its income bonds; on November 6, 1930, it organized Colorado-Garden City; and on November 14, 1930, it acquired all of the property of Delaware-Garden City at a foreclosure sale under such decree of foreclosure and caused the same to be transferred to Colorado-Garden City in exchange for all of its authorized common stock, which the bondholders’ committee caused to be issued to the bondholders of Delaware-Garden City.
Colorado-Garden City carried on the same kind of business at the same place and with the same property that had been carried on by Delaware-Garden City. !
During the period January 1, 1920, to November 17, 1930, Delaware-Garden City had accumulated a total deficit of $2,931,197.02, which included accrued and unpaid interest on income bonds of $2,-540,668.28. .
At the time Colorado-Garden City acquired all of the assets from the bondholders’ committee, it had neither accumulated earnings nor deficits from operations, except such accumulated earnings or deficits as might have been properly carried over from Delaware-Garden City and the Sugar and Land Company.
For the fiscal year ending February 29, 1952, Colorado-Garden City had earnings and profits available for distribution in the amount of $56,843.47, without any deduction for cost depletion; and for the same year had undistributed earnings and profits realized during prior years in the amount of $348,222.54, after payment of dividends in previous years, but before taking into account operating deficits of Delaware-Garden City and the Sugar and Land Company.
On each reorganization all of the debts owing to creditors of the predecessor corporation, other than bond indebtedness, were assumed and paid in full by the successor corporation.
On the first reorganization all of the stock of the successor corporation, Delaware-Garden City, was issued to holders of 25-Year Income Bonds and of Real, Chattel, and Collateral Trust Bonds issued by the predecessor corporation, the Sugar and Land Company, but not qua stockholders in the predecessor.
On the second reorganization all of the stock of the successor corporation, Colorado-Garden City, was issued to the several holders of outstanding bonds issued by the predecessor corporation, Delaware-Garden City, each of such bondholders receiving shares of such stock on the basis of his proportionate interest in the whole of such bonds. Thus, on the second reorganization there was a continuity of stock ownership, although certain bondholders of Delaware-Garden City, who may not have been stockholders in it, became stockholders in Colorado-Garden City. While technically the foreclosure on each reorganization wiped out the interests of unsecured creditors and stockholders of the respective predecessor corporation, that result did not actually occur as the reorganization was carried out. On each reorganization the successor corporation assumed and paid in full the indebtedness of the unsecured creditors, although such indebtedness was inferior to the indebtedness secured by the bond mortgage and on the second reorganization all of the holders of stock in the predecessor corporation received stock in the successor corporation, thus preserving a continuity of stock ownership and the adjustment of the bond indebtedness on each reorganization enhanced the value of the stockholders’ equity.
The applicable statutory provisions are set forth in Note 5.
The second reorganization in the instant case was a reorganization in the sense that term was defined in § 112(i) (1) of the Revenue Act of 1928 and the first reorganization in the instant case came within the provisions of § 202(b) of the Revenue Act of 1918.
Under § 115(a) (2) a distribution by a corporation to its shareholders out of its earnings or profits of the taxable year in which the distribution is made is a dividend and taxable as such, even though the corporation at the time of such distribution has an accumulated deficit resulting from losses in prior years. But where a corporation realizes earnings or profits in a particular year and retains them until a subsequent year and such corporation, at the time such earnings or profits were realized, had an accumulated deficit resulting from losses during prior years, such earnings or profits, up to the amounts of the existing accumulated deficit, do not become accumulated earnings or profits. Rather, they are a restoration of capital and when distributed to stockholders are a return of capital, not a dividend.
Hence, the specific question for determination is whether the accumulated •deficit of the Sugar and Land Company •carried over to its successor, Delaware-Garden City, and whether such deficit and the additional deficit accumulated by Delaware-Garden City carried over to Colorado-Garden City.
We believe that the answer to that question may be found in the adjudicated cases dealing with analogous situations and we now turn to a consideration of those cases.
In Commissioner of Internal Revenue v. Sansome, 2 Cir., 60 F.2d 931, c.d. San-some v. Burnet, 287 U.S. 667, 53 S.Ct. 291, 77 L.Ed. 575, a taxpayer bought stock in a New Jersey company on January 1, 1921. On April 1, 1921, the company sold all of its assets to another company, which assumed all of its existing liabilities. The new company issued stock to the shareholders of the old company, proportionately with their respective stockholdings in the old company. The charter of the new company was similar to that of the old company, but provided for expanded business purposes. The old company had a large surplus and undivided profits, earned before January 1, 1921. The new company dissolved in 1923 and began making liquidation payments to its stockholders, which the Commissioner treated as dividends, since the surplus and undivided profits of the old company had not been exhausted by losses that had been suffered by the new company. Sansome contended that he was entitled to treat the liquidation payments as a return of capital to set off against his cost basis of his stock in determining gain or loss. The Board of Tax Appeals held that the companies were separate entities; that the second corporation had distributed none of its earnings and profits; and that the liquidation payments were a return of capital to be set off against Sansome’s cost basis. The Second Circuit reversed and in its opinion in part said:
“However, we prefer to dispose of the case as a matter of statutory construction, quite independently of decisions made in analogous, though not parallel, situations. It seems to us that section 202(c) (2) (42 Stat. 230) should be read as a gloss upon séction 201. That section provides for cases of corporate ‘reorganization’ which shall not result in any ‘gain or loss’ to the shareholder participating in them, and it defines them with some particularity. He must wait until he has disposed of the new shares, and use his original cost as the ‘base’ to subtract from what he gets upon the sale. Such a change in the form of the shares is ‘an exchange of property,’ not ‘a sale or other disposition’ of them. Section 201 was passed, in some measure at least, to fix what should come into the computation of ‘gain or loss’; it allowed all payments except those cut out by subdivision c. It appears to us extremely unlikely that what was not ‘recognized’ as a sale or disposition for the purpose of fixing gain or loss, should be ‘recognized’ as changing accumulated profits into capital in a section which so far overlapped the later. * * * Hence we hold that a corporate reorganization which results in no ‘gain or loss’ under section 202(c) (2) (42 Stat. 230) does not toll the company’s life as continued venture under section 201, and that what were ‘earnings or profits’ of the original, or subsidiary, company remain, for purposes of distribution, ‘earnings or profits’ of the successor, or parent, in liquidation. * * *”
In Commissioner v. Munter, 331 U.S. 210, 67 S.Ct. 1175, 91 L.Ed. 1441, the facts were as follows: In 1928, stockholders of L. Henderson & Sons, Inc., and certain stockholders of Crandall-McKenzie Company agreed together and with underwriters to effect a merger of the two corporations into a new one. The underwriters agreed to buy for cash 52 per cent of the stock of the new corporation for public sale. The new corporation was formed and it acquired all of the assets of Henderson and McKenzie. The six stockholders of Henderson accepted stock in the new corporation as full payment for surrendering their old company stock. Holders of nearly one-half of the stock in McKenzie did not accept new corporation stock, but were paid $355,000 in cash for their old stock. The other McKenzie shareholders accepted for their old stock the new corporation stock. The result was the distribution of the new corporation stock as follows: To old stockholders of Henderson, 9,524 shares; to old stockholders of McKenzie, 14,607 shares; and to the general public, 25,869 shares.
The Commissioner assessed deficiencies against the taxpayers involved, on account of dividends paid them on stock in the new corporation. The new corporation had not realized, after 1928, earnings or profits sufficient to pay such dividends and they were not taxable as such unless the accumulated earnings and profits of the two old corporations carried over to the new corporation.
The court held there was a tax-free merger of the two old corporations into the new corporation and in its opinion said:
“A basic principle of the income tax laws has long been that corporate earnings and profits should be taxed when they are distributed to the stockholders who own the distributing corporation. See Int.Rev.Code §§ 22, 115(a), (b). The controlling revenue acts in question, however, exempt from taxation distributions of stock and money distributions, at least in part, made pursuant to a reorganization such as transpired here in 1928. See Revenue Act of [May 29] 1928, § 112(b), (c), (i) (1) (A); § 115(c) (h), 45 Stat. 791, 816-818, 822, 823, 26 U.S.C.A.Int.Rev.Acts, pages 377, 378, 379, 385. Thus unless those earnings and profits accumulated by the predecessor corporations and distributed in this reorganization are deemed to have been acquired by the successor corporation and taxable upon distribution by it, they would escape the taxation which Congress intended. * * * ”
The court further said that in the San-some case “it was held that implicit in the tax exemption of reorganization distributions was the understanding that the earnings and profits so exempt were acquired by the new corporation and were taxable * * * when subsequently distributed” ; and that Congress had repeatedly expressed its approval of the San-some rule as a correct interpretation of the purpose of the tax laws governing reorganizations. It further said: “The congressional purpose to tax all stockholders who receive distributions of corporate earnings and profits cannot be frustrated by any reorganization which leaves earnings and profits undistributed in whole or in part” and held that the participation of new investors in the successor corporation did not prevent the operation of the Sansome rule.
In Commissioner v. Phipps, 336 U.S. 410, 69 S.Ct. 616, 93 L.Ed. 717, the facts were as follows: In 1936, the Nevada-California Electric Co3rporation liquidated five of its wholly-owned subsidiary corporations by transferring to itself all of their assets and assuming all of their liabilities and by redeeming and canceling all of their outstanding stock. It was a tax-free liquidation and no gain or loss was recognized for income tax purposes under § 112(b) (6) of the Revenue Act of 1936. On the date of liquidation one of the subsidiaries had accumulated earnings and profits of $90,362.77, and the other four subsidiaries had deficits which aggregated $3,147,803.62. On December 31, 1936, the parent had earnings and profits accumulated after February 28, 1913, of $2,129,957,81, which amount did not reflect earnings or deficits of the subsidiaries. In 1937, the parent had earnings and profits of $390,387.02.
Phipps was the owner of 2,640 shares of preferred stock of the parent. During 1937, the parent made a pro rata cash distribution to its preferred stockholders of $802,284, of which Phipps received $18,480. The Commissioner determined that the distribution was a dividend under § 115 of the Revenue Act of 1936 and constituted ordinary income in its entirety. Of the 1937 distribution, approximately 49 per cent, or $390,387.02, was attributable to and paid out of earnings and profits of the tax year 1937. When the ease reached the Tax Court for review, Phipps conceded the amount paid out of current earnings and profits was taxable as a dividend. The Tax Court held that the balance of the distribution to her was not a taxable dividend distributed out of earnings or profits, on the theory that all of the parent’s accumulated earnings and profits, plus the accumulated earnings and profits of the subsidiary that had a surplus were erased and wiped out by the aggregate deficits of the other four subsidiaries. On appeal, the Court of Appeals (Tenth Circuit) affirmed. 167 F.2d 117. The Supreme Court granted certiorari and reversed. In its opinion the Supreme Court said:
“The rationale of the Sansome decision as a ‘continued venture’ doctrine has been often repeated in the cases, and in some of them the fact that the successor cosrporation has differed from the predecessor merely in identity or form has lent it plausibility. Other cases, however, demonstrate that the ‘continued venture’ analysis does not accurately indicate the basis of the decisions. The rule that earnings and profits of a corporation do not lose their character as such by virtue of a tax-free reorganization or liquidation has been applied where more than one corporation has been absorbed or liquidated, where there has been a ‘split-off’ reorganization, and where the reorganization has resulted in substantial changes in the proprietary interests.”
After reviewing Commissioner v. Munter, supra, the court further said:
“* * * We conclude from the cases that the Sansome rule is grounded not on a theory of continuity of the corporate enterprise but on the necessity to prevent escape of earnings and profits from taxation.”
In distinguishing the case of Harter v. Helvering, 2 Cir., 79 F.2d 12, the court said:
“ * * * In that case the situation was as follows: A Corporation and B Corporation, each of which had accumulated earnings and profits, merged to form C Corporation. By the operation of the Sansome rule, the earnings and profits retained their character as such in the hands of C. Some time later, D Corporation acquired all the stock of C, and thereafter liquidated it in a transaction in which no gain or loss was recognized. At the time of the liquidation of C Corporation, D Corporation, the parent, had a deficit in earnings and profits. The court held, in determining the amount of earnings and profits available to D Corporation after the liquidation for distribution as dividends, that its deficit should be deducted from the accumulated earnings and profits acquired from its subsidiary. It is vigorously contended that the logic of the Harter case compels the allowance of a deduction of the deficits of the subsidiaries from the accumulated earnings and profits of the parent. We believe this view to be the product of inadequate analysis. The difference between the Harter situation and the problem before us may perhaps be clarified by comparing them taxwise if neither liquidation had occurred. Briefly stated, in the case of a distribution to a corporation with a deficit from either current or prior losses, the corporation receiving the distribution has no taxable income or earnings or profits available for current distribution until current income exceeds current losses, and no accumulated earnings or profits until its actual deficit from prior losses is erased. See 1 Mertens, Law of Federal Income Taxation (1942) § 9.30, and eases cited therein n. 44 et seq. In the instant situation, however, the parent did have accumulated earnings and profits available for distribution as dividends, absent the liquidation. * * *
-k * * * *
“ * * * Respondent’s contention that the logic of the Sansome rule requires subtracting the deficit of the subsidiary from the earnings and profits of the parent as a corollary of carrying over the earnings and profits of the subsidiary has a superficial plausibility; but the plausibility disappears when it is noted that the taxpayer would thus obtain an advantage taxwise that would not be available absent the liquidation since there is no way to ‘declare’ a deficit, and thus no method of loss realization open to the parent parallel to a declaration of dividends as a mode of realizing the profits of a subsidiary.
* *****
“Congress has expressed its purpose to tax all stockholders who receive distributions of earnings and profits. In order to facilitate simplification of corporate financial structures, it has further provided that certain intercorporate transactions shall be free of immediate tax consequences to the corporations. There has been judicially superimposed by the Sansome rule, with the subsequent explicit ratification of Congress, the doctrine that tax-free reorganizations shall not disturb the status of earnings and profits otherwise available for distribution. Nevada-California (the parent) at the time of the 1937 distribution to respondent had such earnings and profits. Since we believe that to allow deduction from these earnings of the deficits of its subsidiaries would be in effect to recognize losses the tax effects of which Congress has explicitly provided should be deferred, the judgment of the Court of Appeals is reversed.”
This brings us to a consideration of United States v. Snider, 1 Cir., 224 F.2d 165. In that case there was a tax-free reorganization of a Massachusetts real estate trust, which owned and operated two Boston hotels, the Hotel Braemore and Hotel Kenmore, into two corporations, the Hotel Braemore Corp. and the Hotel Kenmore Corp. The case involved the taxability of a dividend declared by the Hotel Kenmore Corp. In the opinion the court said:
“The plaintiff, Abraham Snider, owned 25 shares of the 100 shares outstanding of the Massachusetts real estate trust which had been organized in 1922. In 1947 the stockholders of the trust agreed that it would be preferable that the hotel properties be owned and operated by two corporations rather than a real estate trust. At this time the trust had a deficit of about $327,000. The Hotel Braemore Corp. was organized on May 29, 1947. The real estate trust transferred the Hotel Braemore property to this Hotel Braemore Corp. in exchange for all the outstanding stock of the latter corporation except for four shares which had previously been issued to the trust for a nominal sum. Also on May 29, 1947, the Hotel Kenmore Corp. was organized and this corporation issued all its outstanding stock to the four stockholders of the real estate trust in exchange for their trust stock except for four shares which had been issued to these four stockholders for a nominal sum. The Hotel Kenmore Corp. then liquidated the real estate trust and transferred all its assets to itself. Thus the Hotel Kenmore Corp. acquired ownership of the Hotel Kenmore and through its ownership of the stock of the Hotel Braemore Corp., the Hotel Braemore. * * * profits were earned by the Hotel Kenmore Corp. in the fiscal years ending March 31, 1948, 1949, 1950 and 1951 of about $140,000. On December 8, 1950 a cash dividend of $36,000 was paid to the stockholders of the Hotel Kenmore Corp., the plaintiff, Abraham Snider, receiving $9,000. The Hotel Kenmore Corp. had available for distribution in 1950 as current earnings and profits a little over $20,000 and there is no question that approximately $5,100 of the $9,000 received by the plaintiff was clearly dividend income attributable to current earnings and profits and taxable to the plaintiffs.
“The issue in this case is whether any portion of this $36,000 distribution to stockholders of the Hotel Kenmore Corp. may be offset by the 1947 deficit of the Massachusetts real estate trust (which deficit is greater than the earnings and profits accumulated by the Hotel Kenmore Corp. since 1947) despite the fact that the real estate trust was terminated in 1947 following the tax-free reorganization * * *.”
The First Circuit, in holding that Snider was distinguishable from and not ruled by Phipps, in its opinion said:
“ * * * In the instant case the transferee, Hotel Kenmore Corp., had no accumulated earnings and profits at the time of the reorganization while in the Phipps case the parent corporation did possess accumulated earnings and profits at the date of the tax-free reorganization. Any distributions made by the parent corporation in the Phipps case would have undoubtedly been dividends and therefore taxable to the recipient if the reorganization had not taken place. The result in the Phipps ease was necessary in order to prevent corporations which had earnings and profits from distributing these earnings and profits so as to avoid taxation merely by acquiring the assets of a business possessing a deficit. In the instant case, however, where there were no accumulated earnings and profits at the date of the reorganization of the ownership of the Hotel Braemore and Hotel Kenmore, the taxpayer could not have obtained a tax advantage through a reorganization. In other words, if the taxpayer’s business had continued in its trust form and there had been no reorganization, the $3,909.01 distribution clearly would not have qualified as a dividend under the 1939 Internal Revenue Code and therefore would not have been taxable to the plaintiffs.
“There is language in the Phipps opinion which tends to support the plaintiff’s contention. At page 420 of 336 U.S., at page 621 of 69 S.Ct., [93 L.Ed. 717] it is said ‘ * * * the effect of the Sansome rule is simply this; a distribution of assets that would have been taxable as dividends absent the reorganization or liquidation does not lose that character by virtue of a tax-free transaction.’ At page 421 of 336 U.S., at page 622 of 69 S.Ct., [93 L.Ed. 717] : 'There has been judicially superimposed by the Sansome rule, with the subsequent explicit ratification of Congress, the doctrine that tax-free reorganizations shall not disturb the status of earnings and profits otherwise available for distribution.’
“Thus, the Supreme Court seems to emphasize the possession by one of the business entities involved in the tax-free reorganization of accumulated earnings and profits at the time of the reorganization. The non-existence of such earnings and profits in the instant case clearly distinguishes it from the Phipps case. * * *”
The First Circuit held that the deficit of the real estate trust could be carried over to offset earnings and profits realized after 1947 by the Hotel Kenmore Corporation, retained by it to a year subsequent to their realization, and then distributed to its stockholders.
But commentators and text writers have placed a broader construction on the opinion in Phipps than did the First Circuit in Snider.
Wales, in his commentary on the subject of “Tax Advantages of an Acquired Corporation,” Eighth Annual N.Y.U. Institute on Federal Taxation, pp. 920-924 (1950) said:
“Though as is hereafter pointed out, the main thrust of the decision [the Phipps case] is prevention of tax avoidance * * * the Court apparently lays down a flat rule that deficits of a predecessor cannot be taken over by a successor. Apparently it makes no difference what kind of reorganization occurs — presumably the result would not have been different if the subsidiary had merged into the parent by tax-free statutory merger. And, of course, a taxable reorganization would not carry the deficit in earnings and profits over to a successor. In short, a deficit cannot be acquired by any corporation other than the one where it originated; if a corporation dies, its deficit ceases to exist.
* * * if * *
“The result of all this seems to be a flat and somewhat arbitrary rule that deficits do not survive the extinction of the corporation in which they arose. The rule apparently has no exceptions; it is comparable to certain statutory rules designed to prevent avoidance, like, say, Section 24(b) or (e) [of the 1939 Code].”
And in Mertens Law of Federal Income Taxation, 1962, Rev., Vol. 1, § 9.52, p. 102, the author states that under Phipps:
“ * * * if the acquiring corporation was the one with the deficit, that deficit would offset the earnings and profits of the transferor or distributor. But if the transferor or distributor had the deficit, that deficit would not wipe out earnings and profits of the acquiring corporation.”
We think the opinion in Phipps, in keeping with well-settled rules for construing judicial opinions, should be read in the light of the facts on which it is based and the ends it sought to attain.
In Phipps, at the time the subsidiaries were liquidated and merged into the parent, in the year 1936, the latter had earnings and profits accumulated after February 28, 1913, of $2,129,957.81, and four of the subsidiaries had deficits aggregating $3,147,803.62. In 1937, the parent made a distribution to its stockholders of $802,284, of which $390,387.02 was current earnings, and the balance earnings and profits accumulated prior to the merger. It is clear that all of the 1937 distribution would have been taxable as dividends, had there been no liquidation and merger into the parent of the subsidiaries.
Hence, in Phipps, to have permitted the deficits to be carried over to the parent would have resulted in relieving from taxation as dividends distributions which, but for the liquidation and merger, would have been taxable as dividends and would have opened the door to the use of tax-free reorganizations to avoid taxes.
We think the reasoning in the Phipps case would also apply to earnings and profits realized by the successor corporation subsequent to the reorganization, retained to a year subsequent to their realization, and then distributed to stockholders, if they would have been taxable as accumulated earnings and profits, had there been no merger or reorganization. That, because the rule in Sansome and Phipps is grounded, we think, on the necessity of preventing earnings and profits from escaping taxation by the utilization of a tax-free reorganization. The utilization of a tax-free reorganization should not be permitted to enable stockholders of the successor corporation to escape taxes on earnings and profits distributed to them if they would have been taxable as such, absent such reorganization.
We think preventing tax avoidance by means of tax-free reorganizations was the touchstone of Sansome and Phipps.
In the instant case, however, if instead of carrying out the tax-free reorganization in 1920, the Sugar and Land Company had adjusted its bond debt by issuing new bonds and new stock having preference rights over its outstanding stock, and had it again in 1930, instead of carrying' out a tax-free reorganization, again adjusted its bond indebtedness by issuing new stock, and had all of the deficits accumulated by it and by Delaware Garden City up to 1930 been accumulated by it alone, as would have been the case had the reorganizations not occurred, all of such deficits would clearly have been available for an offset against earnings and profits realized by it between the fiscal years 1930 and 1951 and retained by it and not distributed until fiscal 1952, and such distributions not to ■exceed the amount of such defiicits would have been a return of capital and not a taxable dividend. It follows that the reorganizations in the instant case were not carried out in order to avoid taxes on earnings and profits accumulated by the successor corporation at the time of the respective reorganizations or later.
The basis for the rule laid down in Sansome and Phipps being absent in the instant case, we think the rule should not apply. To hold otherwise would tend to defeat the essential purpose of Congress in enacting the provisions for tax-free reorganizations.
It should be noted that the test we have applied is the one used by the Supreme Court in Phipps in distinguishing the Harter case.
United States v. Kavanagh, 8 Cir., 308 F.2d 824, in our opinion, is distinguishable from the instant case. Kavanagh was a reorganization of an insolvent corporation and two of its insolvent subsidiaries under § 77B of the Bankruptcy Act.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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sc_casesourcestate
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25
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
MARYLAND v. BLAKE
No. 04-373.
Argued November 1, 2005
Decided November 14, 2005
Kathryn Grill Graeff, Assistant Attorney General of Maryland, argued the cause for petitioner. With her on the briefs were J. Joseph Curran, Jr., Attorney General, and Annabelle L. Lisie and Diane E. Keller, Assistant Attorneys General.
James A. Feldman argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General Richter, Deputy Solicitor General Dreeben, John P. Elwood, and Joel M. Gershowitz.
Kenneth W. Ravenell argued the cause for respondent. With him on the brief were Ivan J. Bates, Matthew A. S. Esworthy, and Jeffrey T. Green.
Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, R. Ted Cruz, Solicitor General, Don Clemmer, Deputy Attorney General, and Gena Bunn, Edward L. Marshall, and Fredericka Sargent, Assistant Attorneys General, and by the Attorneys General for their respective jurisdictions as follows: M. Jane Brady of Delaware, Robert J. Spagnoletti of the District of Columbia, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Michael A Cox of Michigan, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and William Sorrell of Vermont; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.
Briefs of amici curiae urging affirmance were filed for the National Association of Criminal Defense Lawyers by James J. Tomkovicz and Joshua L. Dratel; and for the National Legal Aid and Defender Association by Steven B. Duke.
Per Curiam.
The writ of certiorari is dismissed granted. as improvidently
It is so ordered.
Question: What is the state of the court whose decision the Supreme Court reviewed?
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_usc1
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18
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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.
Kenneth A. GREEN, Appellant, v. UNITED STATES of America, Appellee.
No. 17489.
United States Court of Appeals Ninth Circuit.
Dec. 20, 1961.
Kenneth A. Green, El Reno, Okl., appellant, in pro. per.
Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, David Y. Smith, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before JERTBERG and BROWNING, Circuit Judges, and TAYLOR, District Judge.
JERTBERG, Circuit Judge.
Appellant was convicted on his plea of guilty to both counts of a two-count indictment, each charging the offense of violating Title 18 U.S.C.A. § 2314, in that appellant unlawfully and fraudulently caused to be transported in interstate commerce a false security, the cheek in Count 1 being in the amount of $214.45 and the check in Count 2 in the amount of $322.
On December 14, 1959, appellant was sentenced under Count 1 to imprisonment for two years. Imposition of sentence under Count 2 was suspended, and appellant was placed on probation for a period of five years, to commence upon completion of service of sentence imposed on Count 1. On the same day, the district court ordered a stay of execution of the sentence until twelve o’clock noon, January 18, 1960.
On April 25, 1960, following appellant’s conviction on his plea of nolo contendere to a one-count indictment charging violation of Title 18 U.S.C.A. § 2314, alleged to have been committed on or about January 8, 1960, the appellant was sentenced to imprisonment for three years, such sentence to run concurrently with the sentence imposed under the two-count indictment.
On May 3, 1961, the appellant moved the district court “for the discharge of the defendant from Count 2 of the two-count indictment * * The motion was denied and this appeal is from the order denying such motion.
Appellant, who appears in propria persona, makes two contentions.
First, he contends that the district court was without authority to suspend the imposition of sentence on Count 2 of the two-count indictment and place him on probation for the five-year period to commence upon completion of the two-year penitentiary sentence imposed on Count 1 of the same indictment.
Such contention is without merit.
The two offenses set forth in the two-count indictment are separate and distinct offenses, for which separate and distinct sentences may be imposed. Castle v. United States, 287 F.2d 657 (5th Cir. 1961); Carlson v. United States, 274 F.2d 694 (8th Cir.1960); United States v. Taylor, 210 F.2d 110 (2d Cir.1954). The punishment provided by Title 18 U.S. C.A. § 2314, is a fine of not more than $10,000 or imprisonment for not more than ten years, or both. Title 18 U.S. C.A. § 3651, authorizes a suspension of imposition of sentence and the granting of probation. The sentence pronounced by the district court on Count 2 of the two-count indictment is specifically authorized by said section, which in pertinent part reads:
“Probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.”
The express contention urged by appellant was considered by this court and rejected in Weber v. Squier, 124 F.2d 618 (9th Cir.1941), certiorari denied 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209, 1942. In the Weber case, the defendant was sentenced to imprisonment for two years on one count of the indictment and for five years on another count of the same indictment, but execution of this sentence was suspended and the defendant was placed on probation for five years. At page 621, of 124 F.2d, this court states:
“ * * * there was nothing wrong with the District Court’s order in the instant case in sentencing petitioner to the penitentiary upon one count and at the same time sentencing him and suspending sentence under a period of probation under another count of the same indictment.”
To the same effect, see Palmer v. Sanford, 57 F.Supp. 104 (D.C.Ga.1944), affirmed 147 F.2d 549 (5th Cir.1945), certiorari denied 325 U.S. 878, 65 S.Ct. 1555, 89 L.Ed. 1995, 1945; United States v. Vasen, 222 F.2d 3 (7th Cir. 1955).
- Appellant quotes at great length from United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309, 1928. In the Murray case, it was held that where a person had begun to serve his sentence, the court was without power under the Probation Act to suspend further execution and grant probation, even though in that ease the term to which sentence was imposed had not expired. In the instant case, the suspension of imposition of sentence on Count 2 of the two-count indictment was pronounced at the same time as the sentence of imprisonment on Count 1 of the indictment, and hence before appellant had begun to serve his sentence on Count 1. Appellant appears to recognize that the holding in the Murray case is not apposite, but he derives comfort from a lengthy dissertation in the opinion with reference to the basic philosophy underlying the Probation Act.
Appellant’s second contention is that the imposition of the three-year imprisonment sentence for the violation set forth in the one-count indictment, to run concurrently with the sentence imposed on the two-count indictment, makes the probationary sentence imposed upon Count 2 of the indictment a nullity, because upon the expiration of the imprisonment sentence of two years pronounced upon Count 1, probation under Count 2 will run concurrently with the last year of the three-year imprisonment sentence imposed upon the one-count indictment. Appellant describes this situation, by a borrowed phrase, as an “unholy union.” It is clear that the Supreme Court does not so regard such situation. In Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266, 1932, the petitioner pleaded guilty to three counts of an indictment. He was sentenced on the first count to imprisonment for one year; on the second count, to pay a fine of $2,000; and on the third count, to imprisonment for five years. Execution of the last-mentioned sentence was suspended and the court granted probation for a period of five years under specified terms. While petitioner was serving his sentence on the first count, it was found that he had violated the terms of probation, and the district court revoked the probation order. After reviewing the Probation Act and the principles governing it, the court stated at page 223, 53 S.Ct. at page 156:
“Applying these principles, it is apparent that the instant case has the peculiar feature that the probationer was actually serving a jail sentence while on probation with respect to another sentence. But, even in jail, he was subject to the conditions of the probation.”
The court refused to disturb the order of the district court revoking the petitioner’s probation.
Appellant’s reliance on United States v. Greenhaus, 85 F.2d 116, 107 A.L.R. 630 (2d Cir.1936), is misplaced. In Weber v. Squier, supra, 124 F.2d at page 621 this court said:
“But as has been seen, we do not follow the Greenhaus doctrine, but hold that sentence to the penitentiary under one count and suspension of sentence with probation under another count is altogether a valid proceedings.”
In Frad v. Kelly, 302 U.S. 312, at page 316, 58 S.Ct. 188, at page 191, 82 L.Ed. 282, 1937, the Supreme Court said:
“The mere fact that a sentence of a fine and imprisonment had been imposed upon one of the indictments in no way militated against the prescription of probation in respect of the pica of guilty under the other two.”
We have noted appellee’s suggestion that we hold the running of the probationary period under Count 2 shall be tolled so as to commence to run upon the expiration of the three-year sentence-imposed upon the single-count indictment, and not upon the expiration of the two-year sentence imposed on Count 1 of the two-count indictment. We decline to do so. The question implied in such suggestion is not before us.
The order appealed from is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Appellee, v. Roy Rogers FAUNTLEROY, Appellant.
No. 73-1625.
United States Court of Appeals, Fourth Circuit.
Submitted Nov. 11, 1973.
Decided Dec 4, 1973.
Jay Tronfeld, Richmond, Va. [court-appointed], for appellant.
Brian P. Gettings, U. S. Atty., and Raymond A. Carpenter, Asst. U. S. Atty., for appellee.
Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
PER CURIAM.
Roy Rogers Fauntleroy appeals from his conviction by the district court sitting without a jury on two counts charging him with knowingly making false statements in the purchase of firearms in violation of 18 U.S.C. § 922(a)(6). Fauntleroy was sentenced to concurrent three-year prison terms on the two counts.
Fauntleroy contends on appeal that (1) the prosecution failed to adduce sufficient evidence showing that he possessed the requisite intent to knowingly make a false oral or written statement with regard to his prior felony conviction, and (2) § 922(a)(6) violates the due process clause of the Fifth Amendment in that it arbitrarily and unreasonably discriminates against convicted felons as a class.
The evidence is uncontradicted that on two separate occasions, May 27, 1972, and November 9, 1972, Fauntleroy purchased a .25 caliber automatic pistol from White’s Auto Store in Tappahan-nock, Virginia. It is also uncontradicted that Fauntleroy was convicted in a Virginia state court on January 23, 1969, of a crime punishable by imprisonment for a term exceeding one year. The record includes firearms transaction forms signed by Faultleroy on which negative answers were entered to the following question [8b]: “Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?” There is no question that the forms contain material false information and bear Fauntleroy’s signature.
Notwithstanding the forms, appellant contends that he was illiterate when he signed the forms and could not read the question pertaining to his criminal record. Even if he were unable to read the question, and the record does contain substantial evidence indicating that Fauntleroy was illiterate, his illiteracy did not preclude his understanding of the questions which were read aloud to him by the sales manager of the store, Thomas Chinault. Chinault, who sold both guns to Fauntleroy, stated that before asking Fauntleroy to sign the forms, he read them aloud in their entirety and told Fauntleroy that if he did not understand a question, he (Chinault) would explain it to him. According to Chinault, Fauntleroy indicated that he understood the questions. Chinault was satisfied that during both transactions Fauntleroy was able to freely communicate in the English language and did not appear to be under the influence of alcohol or any drug. Chinault’s testimony provided sufficient evidence on which the trier of fact could find that on two separate occasions Fauntleroy knowingly gave a false answer to the question concerning his previous conviction for a crime punishable by imprisonment exceeding one year. United States v. Brown, 458 F.2d 375 (6 Cir. 1972); United States v. Sherman, 421 F.2d 198 (4 Cir. 1970), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970).
Appellant argues that § 922(a)(6) violates the constitutional guarantee of due process in that it distinguishes felons from nonfelons. Section 922(a)(6) incorporates by reference other provisions of the Federal Gun Control Act, making it a crime for convicted felons to receive, possess, or transport in commerce any firearms. See 18 U.S.C. § 922(g); 18 U.S.C. § 922(b).
In United States v. Weatherford, 471 F.2d 47 (7 Cir. 1972), the court considered the constitutionality of 18 U.S.C. § 922(g) which prohibits the interstate shipment of firearms by previously convicted felons and held that § 922(g) did not arbitrarily discriminate against previously convicted felons as a class. The court observed that “[i]t seems crystal clear that the purpose of Congress in enacting this legislation was to eliminate firearms from the hands of criminals, while interfering as little as possible with the law abiding citizen.” 471 F.2d at 51.
We agree with the court in Weatherford that the classification distinguishing felons from nonfelons for purposes of gun control legislation is reasonable.
This court has held that the Federal Gun Control Act, including specifically 18 U.S.C. § 922(a)(6), under which Fauntleroy was convicted, is constitutional. United States v. Cabbler, 429 F. 2d 577, 578 (4 Cir. 1970).
Accordingly, we dispense with oral argument and affirm.
Affirmed.
. 18 U.S.C. § 922(a) (6) provides that:
(a) It shall be unlawful—
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.
. The case of United States v. Brown, 458 F.2d 375 (6 Cir. 1972), is nearly identical to the one at bar. Brown was convicted for violating 18 U.S.C. § 922(a)(6). Gilbert, the store manager who sold the gun, testified that he asked Brown the questions [including 8(b)] from the firearms transaction form. Brown contended, as does appellant here, that he could not read and that the salesman did not read the questions to him. In upholding the conviction, the Sixth Circuit stated:
In finding appellant guilty .... the jury must have credited Gilbert’s testimony that he had asked Brown the required questions and that Brown had responded falsely. That determination of credibility was within the province of the jury. Accordingly, since there is substantial evidence to support the jury’s verdict, it will be sustained. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). [458 F.2d at 376.]
The only difference in the cases is that this appellant was tried by the court without a jury, a distinction that would have no effect on the result in Brown.
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_typeiss
|
D
|
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HAMILTON PLASTIC MOLDING COMPANY, Respondent.
No. 14958.
United States Court of Appeals Sixth Circuit.
Feb. 6, 1963.
Marion Griffin, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Broad, Atty., N.L.R.B., Washington, D.C., on the brief), for petitioner.
J. Mack Swigert, Cincinnati, Ohio (Frank H. Stewart, Cincinnati, Ohio, on the brief; Robert G. Woellner, Cincinnati, Ohio, of counsel), for respondent.
Before McALLISTER, MILLER, and O’SULLIVAN, Circuit Judges.
McALLISTER, Circuit Judge.
This is a petition for enforcement of an order of the National Labor Relations Board which found that Local Union 156, Upholsterers’ International Union of North America, AFL-CIO, was the bargaining agent of respondent’s employees, and that respondent was guilty of unfair labor practices in refusing to bargain collectively, as well as violating the National Labor Relations Act in interrogating employees about their Union membership and using threats and promises in violation of the law.
The Hamilton Plastic Molding Company is an Ohio corporation. It is a small organization engaged in the manufacture of plastic products, principally toys. Its busy season is from about the first of September until shortly before Christmas. Its complete staff, including supervisors, ranges from eight in the slack season, to as many as thirty in the busy season. It employs a single clerical employee, a toolmaker, and a varying number of machine operators. It has its plant and place of business in New Burlington, Ohio.
On May 9, 1960, four of the men working for the company went to the office of Local Union No. 156, and told Arthur Cook, the Union’s business manager, that “they were interested in trying to put a Union into their plant.”
One of the four men was Anthony Michaels, foreman of the company’s third shift. Another was Lonnie Whitaker, a machine operator, and an employee within the meaning of the National Labor Relations Act. The other two were Frank Papania and Lawrence Heis, whose status as foremen or as employees, was, and is, in dispute. These four men each signed one of the Union’s combination bargaining authorization and check-off cards, and returned to Cook the next day with similar cards signed by seven more of the company’s machine operators. The company’s payroll list for May 10, 1960, included the plant superintendent, Foreman Michaels, and another shift foreman (who were admittedly supervisors), and also the only clerical employee. There was also one machine operator, Anglian, who was solicited by a foreman to sign a card. Altogether, there were nineteen persons on the payroll, counting the two supervisors, the clerical employee, and the machine operator who had been solicited to sign the authorization by a foreman. Omitting these four, there were fifteen on the payroll. It is claimed by respondent company that, of these fifteen, two were supervisors, namely: Papania and Heis. Counting Papania and Heis as employees rather than as supervisors, the Union had in its possession on March 10, 1960, the apparently valid bargaining authorizations of ten out of fifteen of the company’s production employees. If Papania and Heis, whose status is in (Jispute, as above mentioned, are to be considered supervisors, the Union had the bargaining authorizations of eight out of thirteen of the company’s employees. Considering Papania and Heis as supervisors rather than employees, the Union still had a majority of bargaining authorizations of the company’s employees on May 10,1960. However, if Papania and Heis were supervisors, the bargaining authorizations solicited by them from the employees would be invalid, and the Union would not have had a majority authorizing it to act as bargaining agent.
The crucial question, therefore, is whether Papania and Heis were supervisors or employees. A further question for determination in this proceeding is whether respondent company was guilty of unfair labor practices in interrogating its employees as to their Union membership, and indulging in threats and promises, thereby interfering with, restraining, and coercing its employees in the exercise of their rights under the Act.
We do not have before us any question of reinstatement of employees discharged by respondent company, or liability of the company for back pay to any employees. In the original complaint, the Board alleged that respondent company had committed unfair labor practices by discriminatory layoffs of Frank Papaiiia, Lawrence Heis, Lonnie Whitaker, and Robert Kichler, the leaders of the Union organization movement. However, at the beginning of the hearing before the Trial Examiner, the General Counsel moved to strike this allegation of discriminatory layoffs, and the motion was granted.
The Trial Examiner found that Pa-pania and Heis, as well as Foreman Michaels, were supervisors.
Papania testified on the hearing that he was first hired in 1959; that four months later he became assistant foreman on the first shift; that later he became foreman on the third shift; that thereafter he became assistant foreman, on the first shift; and that he was more or less in charge of the first shift in the room when the plant superintendent was not there. It was conceded by the General Counsel that Papania was a “supervisor” as defined in the Act, while he was foreman of the third shift.
The reasons for the findings and conclusions of the Trial Examiner are best set forth in his report as follows:
“Coming now to the disputed question of whether Papania and Heis were supervisors on May 10, 1960, it appears that Papania was then working on the first shift from 8 a.m. to 4 p.m., that Heis was working on the second shift from 4 p.m. until midnight, and that the functions and duties of the two men were the same on their respective shifts. At the time, the Respondent was running three shifts, with from three to five machine operators on each shift. Superintendent Lew Babbitt was in overall charge of the plant and, since Babbitt was normally in the plant from 7 a.m. until 5 p.m., there was no foreman for the first shift on which Papania worked. Apparently because of Babbitt’s absence during the other two shifts, Foreman Ray Stemmerding was in charge of the second shift on which Heis worked, and Foreman Anthony Michaels was in charge of the third shift from midnight to 8 a.m.
“Until May 2, 1960, Papania had been foreman of the third shift but, at his own request, he was then transferred to the first shift and replaced by Michaels as foreman on the third shift. According to Pa-pania’s testimony, upon his transfer to the first shift, he was told by Superintendent Babbitt that he was to be an ‘assistant foreman.’ Although Papania also testified that his wage rate was reduced 10 cents per hour, it appears from his canceled wage check, that his wage rate remained the same as it had been when he was foreman on the third shift.
“In performing their work on their respective shifts after May 2 (and thus on May 10, the critical date in this case), Papania and Heis sometimes operated the machines, relieved the other operators for dinner and other work breaks, mixed materials, filled the hoppers, repaired machines when they broke down, and even swept the floor. In these respects, Papania’s job after May 2 was the same as it had been before May 2 when he was foreman on the third shift. The evidence is in conflict, however, as to whether Papania and also Heis, had any such authority in directing the work of the machine operators as would make them supervisors within the meaning of Section 2(11) of the Act.
“According to Papania, his job on the first shift was the same as his job as foreman on the third shift ‘except for the responsibility.’ He explained that, as third shift foreman, he assigned operators to machines and to new jobs, unless on special work Babbitt made a particular assignment to an operator, and that he also permitted operators to go home when they were sick. But according to Papania, Superintendent Babbitt was always in the plant during the first shift, although perhaps in another room, and Papania, during his short service on the first shift, merely relayed Babbitt’s instructions to the girl operators. But Babbitt testified that, as he had informed Papania, Pa-pania was in complete charge of the first shift when Babbitt was not there. Upon Babbitt’s testimony to this effect and Papania's admission that Babbitt had said he was to be an assistant foreman when he was transferred to the first shift on May 2, I conclude that Papania did in fact have authority responsibly to direct the work of employees on his shift and that not only he, but also Heis whose job was identical on the second shift, were supervisors within the meaning of Section 2(11) of the Act. Consequently they were not employees within the appropriate unit which the Union sought to represent and neither they nor their cards may be counted in determining whether the Respondent was designated as bargaining representative by a majority of the employees in the unit. I further find that, with the proper exclusion of Papania and Heis as supervisors, the appropriate bargaining unit of production employees which the Union seeks to represent, consisted on May 10, 1960, of only 13 employees.
“My conclusion that Papania and Heis, as well as Foreman Michaels, were supervisors has an even broader significance affecting the Union’s claim of majority. For these three-supervisors along with employee-Whitaker not only started the Union’s organization of the Respondent’s employees by their visit to-Business Manager Cook’s office on May 9, but thereafter procured the-signatures of employees on the remaining seven of the bargaining authorization cards submitted by the General Counsel and the Union at. the hearing. Thus, according to-uncontradicted evidence, Foreman Michaels procured the signature of Louise Anglian; Papania procured the signatures of employees Fay Gullett, Eve Fowlie, Rosie Thompson, and Joyce Stoelting; and Heis,, in the company of employee Whitaker, procured the signatures of employees Betty Jo Noah and Robert Kichler. In this situation, I find that the seven cards procured by Supervisors Michaels, Papania, and Heis, are not to be counted as clearly free designations by the employees of the Union as their exclusive bargaining representative, and that the only apparently free and effective bargaining authorization submitted by the Union was that of employee Lonnie Whitaker. Upon the foregoing considerations, I conclude that the Union has shown only one effective bargaining authorization from the 13 employees composing the production unit appropriate for collective bargaining. Since the Union was therefore not freely designated as exclusive bargaining representative by a majority of the employees in the unit, the allegation of the complaint that the Respondent has refused to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act, has not been proved. I shall therefore recommend a dismissal of this allegation of the complaint.”
There was a conflict between the testimony of Papania and Superintendent Babbitt in regard to the extent of Papania’s authority. However, it was for the Trial Examiner to pass upon the weight of the evidence and the credibility of the witnesses, and the findings and conclusions of the Trial Examiner that Papania and Heis were supervisors were sustained by substantial evidence.
The Board reversed the Trial Examiner as to Papania and Heis, stating:
“In view of the routine work of the assistant foreman and the machine operators, the small number of employees working on each shift, and the fact that during each shift there was an admitted supervisor on duty at all times, we are satisfied that the authority and responsibility delegated to Papania and Heis were extremely limited. Even admitting that they may have made some assignments or transfers of machine operators, we believe that the Trial Examiner erred in concluding that this constituted an exercise of authority responsibly to direct the work of other employees.”
In Section 2(11) of the National Labor Relations Act, (29 U.S.C.A. §§ 151-197), a supervisor is defined as follows:
“The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
When the Trial Examiner and the Board disagree on the evidence, we may not disregard the superior advantages of the Examiner, who heard and saw the witnesses, for determining their credibility. Ohio Associated Telephone Company v. N. L. R. B., 192 F.2d 664, 668 (C.A.6). See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 495, 496, 71 S.Ct. 456, 95 L.Ed. 456.
In Ohio Power Company v. N. L. R. B., 176 F.2d 385, 388, 11 A.L.R.2d 243 (C.A.6), this court set aside the Board’s determination as to supervisory powers, and sustained the Trial Examiner, and, in so ruling, stated:
“Section 2(11) covers any individual ‘having authority * * * responsibly to direct * * It does not require the exercise of the power described for all or any definite part of the employee’s time. It is the existence of the power which determines the classification. That power responsibly to direct exists here is uncontradicted. The control operator at all times responsibly directs the assistant control operator and the auxiliary equipment operator. * * * It is undisputed that in the absence of the shift operating engineer the responsibility rests upon the control operator to direct other employees in the handling of emergencies; that an emergency may require split second action, and that the control operator exercises this authority not as a matter of routine, but by the use of independent judgment.”
See also N. L. R. B. v. Mt. Clemens Metal Products Company, 287 F.2d 790 (C.A.6).
In accordance with the foregoing, we are of the view that the Board erroneously reversed the findings of the Trial Examiner that there was no unlawful refusal to bargain.
A review of the record discloses, however, that there is substantial evidence to sustain the findings and conclusions of the Trial Examiner, which were affirmed by the Board, that respondent was guilty of unfair labor practices in interrogating its employees as to their Union membership and indulging in threats and promises, thereby interfering with, restraining, and coercing its employees in the exercise of - their rights under the Act.
The order of the National Labor Relations Board is, therefore, modified as hereinbefore indicated, and, as so modified, enforcement thereof is decreed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_circuit
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C
|
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.
GOVERNMENT OF the VIRGIN ISLANDS v. Beaumont GEREAU, Ishmael LaBeet, Warren Ballantine, Meral Smith, Raphael Joseph. Appeal of Ishmael LaBEET.
No. 78-1386.
United States Court of Appeals, Third Circuit.
Argued Dec. 12, 1978.
Decided Jan. 31, 1979.
Victor G. Schneider, Charlotte Amalie, St. Thomas, V. I., for appellant.
Ishmael Meyers, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., Mark L. Milligan, James F. Rutherford, Asst. U. S. Attys., Christiansted, St. Croix, V. I., for appellee.
Before SEITZ, Chief Judge, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
Appellant, Ishmael LaBeet, now known as Ishmail M. Ali, and four co-defendants, were convicted on eight counts of first degree murder, two counts of robbery and four counts of first degree assault on August 13, 1973, following a jury trial in the District Court of the Virgin Islands. Each defendant was sentenced by the court to eight consecutive terms of life imprisonment on the first degree murder counts; concurrent terms were imposed on the remaining counts. See Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975).
On June 14, 1976, a timely motion for reconsideration of the eight consecutive life sentences was filed in the district court on appellant’s behalf. That motion, filed pursuant to Rule 35 of the Federal Rules of Criminal Procedure, 5 V.I.C. App. II, R. 35, was comprised of a challenge to the legality of appellant’s sentence and a plea for judicial leniency. The motion was denied by the district court in an opinion and order dated February 9, 1978. Ali’s appeal from that order presents only one issue for the consideration of this Court: “Whether the imposition of eight life sentences to be served consecutively constitutes cruel and unusual punishment, in violation of the eighth amendment to the Constitution of the United States.”
Ali contends that his sentence constitutes cruel and unusual punishment because: (1) it is more excessive than other sentences that have been imposed for murder in the Virgin Islands; (2) it removes any possibility that he will become eligible for parole; (3) it is inherently cruel and severe; (4) it is disproportionate to the offense charged; (5) it is unnecessarily cruel in that the permissible aims of punishment could have been achieved as effectively by a less severe sentence; (6) it has had the effect of “denationalizing” Ali from his indigenous citizenship as a Virgin Islander; and (7) it was imposed arbitrarily and selectively to a member of an unpopular minority group. We do not find any of these contentions meritorious.
I.
Ali was sentenced by the district court in accordance with 14 V.I.C. § 923(a), which then provided: “Whoever commits murder in the first degree shall be imprisoned for life.” At that time, appellant’s eligibility for parole was defined by 5 V.I.C. § 4601, stating:
“Every prisoner confined . . . for the term of his natural life, whose record of conduct shows that he has observed the rules of the institution in which he is confined, upon recommendation of the Warden, supported by the recommendation of a psychiatrist and/or psychologist, may be released on parole after serving 10 years of a life sentence . ; Provided, however, That the Board of Parole, subject to the approval of the Governor, in its discretion by at least a two-thirds affirmative vote of all its members, upon recommendation by the Warden, supported by the recommendation of a psychiatrist and/or psychologist, is authorized to fix an earlier eligibility date for the release of prisoners on parole.
Because the district court determined that each of appellant’s sentences on the first degree murder counts was to run consecutively to the others, he will not become eligible for normal parole consideration until August 13, 2053. The district court’s decision to impose consecutive, rather than concurrent, terms of imprisonment upon Ali has created the alleged constitutional infirmities in his sentence.
II.
Two of appellant’s contentions with respect to the constitutionality of the sentence imposed upon him evoke the equal protection strain inherent in the eighth amendment’s prohibition of cruel and unusual punishments. See, e. g., Furman v. Georgia, 408 U.S. 238, 257, 92 S.Ct. 2726, 2735, 33 L.Ed.2d 346 (1972) (Douglas, J., concurring) (“discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments”). Ali claims that his sentence was imposed in a,, discriminatory fashion because it is more severe than other sentences that have been imposed for murder in the Virgin Islands and because it was imposed upon a group of young, black, native Virgin Islanders. With respect to these contentions he has called this Court’s attention to the favorable treatment afforded by the district court to a white, mainland American’s motion for reduction of a sentence imposed for second degree murder. The distinguishing features between appellant’s crimes and that of a man convicted of second degree murder for the killing of his wife’s lover adequately explains the district court’s disparate treatment of the two motions. The record is completely devoid of any proof that could even arguably support an equal protection claim. In the absence of any showing that Ali’s sentence was either illegal or unconstitutional, we have no power to review the sentence imposed. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Government of Virgin Islands v. Richardson, 498 F.2d 892, 894 (3d Cir. 1974).
Ali contends that a sentence of eight consecutive life terms is an inherently cruel and severe punishment, analogous to torture. We do not find this analogy persuasive. He also contends that his punishment was cruel and unusual because it eliminated any possibility of his becoming eligible for parole, thereby eliminating any incentive for rehabilitation. The Supreme Court held in Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), that a no-parole condition attached by the President to the commutation, of a death sentence “is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole; it does not offend the Constitution.” Id. 267, 95 S.Ct. at 385 (footnote omitted). Recently, the Sixth Circuit has applied Schick v. Reed in rejecting a claim that a Kentucky statute authorizing the imposition of life imprisonment without parole for rape is violative of the eighth amendment. See Moore v. Cowan, 560 F.2d 1298, 1302-03 (6th Cir. 1977), cert. denied, 435 U.S. 929, 98 S.Ct. 1500, 55 L.Ed.2d 525, 436 U.S. 960, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978). The Supreme Court’s opinion in Schick v. Reed mandates the conclusion that it is not per se impermissible for the legislature to authorize, and a court to impose, a term of imprisonment that precludes the possibility that the defendant will be paroled.
This Court also rejects Ali’s argument that the district court’s sentencing decision was inconsistent with the Virgin Islands Legislature’s decision to allow persons imprisoned for life to be considered for parole release after serving ten years. The Legislature has granted the district court discretion in specifying whether sentences are to be served concurrently or consecutively, and has not indicated that that discretion is to be limited by considerations of parole eligibility. See 5 V.I.C. § 3672 & Revision note. Moreover, the Legislature has revised the penalties for murder subsequent to Ali’s conviction. 14 V.I.C. § 923(a) now provides that: “Whoever commits murder in the first degree shall be imprisoned for the remainder of his natural life without parole.” Act of May 1, 1974, No. 3560, § 1 (V.I.C. Cum.Supp.1976). The same enactment amended the definition of parole eligibility in 5 V.I.C. § 4601 accordingly.
We note as well, that although appellant has characterized his sentence as one eliminating any possibility that he will become eligible for parole, the district court pointed out that parole eligibility is not absolutely precluded in this case. The proviso to 5 V.I.C. § 4601, quoted above, allows the Board of Parole to fix an earlier eligibility date for parole release than would otherwise be specified by that section. Although that proviso would not apply to one convicted of first degree murder after the 1974 amendments to 14 V.I.C. § 923(a), it does provide some possibility of earlier release in appellant’s case.
Ali contends that a punishment of life imprisonment without possibility of parole is disproportionate to his crimes. See Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion) (sentence of death is disproportionate to the crime of rape). The Supreme Court has held, however, that the death penalty may be imposed for the crime of deliberate murder. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). A fortiori, a sentence of eight consecutive life terms imposed for a conviction on eight counts of first degree murder is not “grossly out of proportion to the severity of the crime.” Coker, supra at 592, 97 S.Ct. at 2865.
Appellant also contends that his sentence was disproportionate in that a lesser sentence may have served as effectively the permissible aims of punishment. The plurality in Coker did state that “a punishment' is ‘excessive’ and unconstitutional if it . makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering . .” Id. Despite Ali’s contention to the contrary, we believe that the sentence imposed in this case may serve more effectively the legitimate penal purpose of isolating the offender from society than would a sentence imposing eight concurrent life terms of imprisonment. Viewed in the context of the crimes for which appellant was convicted, we cannot say that the legislative authorization and judicial implementation of the sentence imposed in this case constituted “the purposeless and needless imposition of pain and suffering.” See generally Carmona v. Ward, 576 F.2d 405, 415-17 (2d Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 874, 59 L.Ed.2d 58 (1979).
Finally, Ali contends that his incarceration in a penitentiary situated on the United States mainland constitutes cruel and unusual punishment in that it effects his “denationalization” as a Virgin Islander. See Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (denationalization as a punishment for wartime desertion is cruel and unusual punishment). Appellant has previously challenged the legitimacy of his transfer to a mainland penitentiary and the conditions of confinement there in requests for habeas corpus relief addressed to the District Court of the Virgin Islands and the United States District Court for the Northern District of Georgia. See Ali v. Gibson, 572 F.2d 971 (3d Cir. 1978) (remanding case to the district court for further proceedings); United States ex rel. Gereau v. Henderson, 526 F.2d 889 (5th Cir. 1976). Without addressing the merits of the contentions raised by the appellant in his pending habeas action, we conclude that his transfer to a mainland prison for the service of his sentence did not constitute denationalization, and that his transfer alone did not amount to the imposition of cruel and unusual punishment proscribed by the eighth amendment.
III.
The judgment of the district court, denying appellant’s request for a reduction of sentence, will be affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Appellee, v. Richard M. PENTA, Defendant, Appellant.
No. 72-1331.
United States Court of Appeals, First Circuit.
Argued Jan. 5, 1973.
Decided March 7, 1973.
Paul F. Sweeney, Boston, Mass., for defendant, appellant.
Richard E. Bachman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
In June, 1970, appellant Penta was convicted of fraudulently possessing and transferring counterfeit Federal Reserve Notes in violation of 18 U.S.C. §§ 472 and 473. His sole defense was that he was entrapped by an alleged government agent. We affirmed the conviction in December, 1970, in an unpublished memorandum and order. Subsequently, in May, 1972, in a post-conviction collateral proceeding, the Massachusetts Supreme Judicial Court reversed earlier state court convictions of appellant in the mid-1960’s for concealing stolen motor vehicles, on the basis that some of the evidence introduced resulted from an illegal search and seizure. Commonwealth v. Penta, 1972 Mass.Adv.Sh. 1015, 282 N.E.2d 674. Since these convictions had been used in the 1970 federal trial to impeach appellant’s credibility, he moved for a new trial and appeals from the denial thereof.
Initially we are met with the government’s contention, superficially appealing, that appellant may not be heard to complain about the use of the state convictions by the prosecutor on cross-examination since his own trial counsel elicited admissions of these convictions from him on direct examination. While there is some authority for the view that a defendant who first raises the issue of his prior convictions cannot complain of prosecutorial reference thereto, that rule is based upon the premise that the convictions were properly admissible in the first place to impeach the defendant’s credibility and might have been inquired into by the prosecutor in the face of a defendant’s silence on direct examination. Bohol v. United States, 227 F.2d 330 (9th Cir. 1955); United States v. Menk, 406 F.2d 124 (7th Cir. 1968) cert. denied, 395 U.S. 946, 89 S.Ct. 2019, 23 L.Ed.2d 464 (1969). That is a far cry from what we take to be the claim here: that while the state convictions may have been properly admissible at the time of the federal trial, their subsequent reversal requires a new federal trial. Moreover, we cannot fault appellant’s trial counsel who, apparently acting in good faith, introduced into evidence appellant’s prior state convictions, so as to prevent the prosecutor, on cross-examination, from stunning the jury by being first to bring these skeletons out of what otherwise might have been viewed as the defendant’s deceptively clean closet. We thus address appellant’s argument.
Appellant does not deny that he committed the act in question, but rather argues that he was entrapped by one O’Connell, a former business associate acting as a government agent. His story is that O’Connell owed him several thousand dollars, which O’Connell said could be paid only if appellant helped him, as a middleman, to sell counterfeit money. O’Connell supposedly approached appellant on December 3, 1969, with this request which was allegedly consistently refused until December 10, the morning of the sale. From the testimony of government agent Hurley it appears that O’Connell first told Hurley on December 9 that an unnamed friend of his wished to sell counterfeit money. At that time Hurley told O’Connell that he “would see what [he] could do for [O’Connell]” on account of his help. Late at night, after viewing samples of the counterfeit money, Hurley instructed O’Connell how to continue dealing with appellant and set up a meeting preceding the sale. Appellant’s name was never revealed to Hurley, despite his continual questioning, until one hour before the meeting on December 10.
At the conclusion of appellant’s testimony his trial counsel asked him about his prior convictions and parole status, all of which he openly admitted. Assuming arguendo that after O’Connell’s December 9 visits with Hurley he could be said to have become a government agent — an issue sent to the jury — only then would appellant’s credibility be crucial to his defense-of entrapment. See generally Kadis v. United States, 373 F.2d 370 (1st Cir. 1967). In that situation, appellant alleges — and we will assume so at this juncture — that the evidence of prior convictions must have affected the jury’s view of his veracity. Consequently we must determine if the subsequent reversal of those convictions requires a new trial on the counterfeiting charge.
It has recently been decided that if a conviction is based in part, on the use of prior convictions which are constitutionally invalid due to lack of counsel and which were introduced to impeach a defendant’s credibility, it must be set aside if there is no harmless error. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). See also Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). While the Supreme Court had before it in Loper the broad question “Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case”, in its resolution of that issue in the particular fact situation before it, the Court drew exclusively upon the rationale behind the rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which “goes to ‘the very integrity of the fact-finding process’ in criminal trials” and recognizes that convictions of uncounseled defendant lack reliability. Loper, supra, 405 U.S. at 484, 92 S.Ct. at 1019. Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969), involving a factual situation virtually identical to the one before us now, addressed the problem of prior convictions subsequently found invalid because of an illegal search or seizure and could find no controlling distinction between Fourth and Sixth Amendment rights which would support a conclusion different from Burgett, the predecessor to Lo-per. It said that “while it is true that the use of evidence resulting from an unlawful search and seizure is less likely to affect the integrity of the fact-finding process than the denial of counsel at trial . . . the creation of such a constitutional hierarchy is not part of the rationale of Burgett.” Id. at 316.
In light of subsequent developments involving the exclusionary rule and Stacks’ omission of any discussion of Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), see infra, we feel compelled to examine anew the issue in Stacks. We agree that the use of evidence obtained from an unlawful search and seizure has a definite influence on the fact-finding process, but in a very different way from deprivation of counsel. Such evidence tends to make the resulting conviction more, not less trustworthy. There is no lack of reliability as there was in Loper.
If the use of appellant’s prior state convictions, subsequently found to suffer from a constitutional defect, require that his federal conviction be vacated absent harmless error, it is only because the fruits of the poisonous tree now contain this additional genus. But an'examination of the roots of that tree and recent actions to limit its growth require rejection of appellant’s claim. The exclusionary rule has been called a deterrent against future illegal police conduct. “Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). And long ago, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), established the rule as a remedy for violations of the offender’s Fourth Amendment rights.
When these principles are examined in an effort to apply the exclusionary rule here, they give little support to appellant. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) permitted the introduction into evidence of a confession relating to the offenses charged which was uncoerced, hence apparently trustworthy, but otherwise inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The confession was used as a means of impeaching a defendant who had testified falsely on direct examination as to matters bearing quite directly on those offenses. But cf. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). And earlier Walder allowed the admission of evidence which was illegally seized in a prior unrelated action to impeach a defendant who had testified falsely on direct examination as to matters collateral to the trial at which the evidence was admitted. Concededly, the otherwise inadmissible but trustworthy confessions and physical evidence in Harris and Walder were used to directly contradict specific false statements made on direct examination, and not to attack the defendant’s credibility in a more general manner. Yet it appears that the controlling rationale was that the valuable aid to assessing the defendant’s credibility should not be lost “because of the speculative possibility that impermissible police conduct will be encouraged thereby . . . . [Sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.” Harris, supra, 401 U.S. at 225, 91 S.Ct. at 645. We think that the deterrent effect in instances like the one before us is similarly speculative.
If the exclusionary rule’s application in these circumstances is sought to be justified as a remedy for violation of appellant’s Fourth Amendment rights many years ago by Massachusetts police, we think that the suggested cure is worse than the disease. First, appellant has already received a remedy which is the most appropriate — his prior convictions were reversed. But more fundamentally, at the time of the federal trial the Massachusetts Supreme Judicial Court had already affirmed appellant’s state convictions. Commonwealth v. Penta, 352 Mass. 271, 225 N.E.2d 58. (1967). There was not the least hint or suggestion that those convictions were invalid. The situation is far different from cases like Loper where a trial judge could rather easily resolve a deprivation of counsel claim by reference to a defendant’s sworn statements and trial court records of prior convictions. It would play havoc with our court system to require a judge to conduct side-trials into the allegedly invalid prior convictions to determine the legality of a search or seizure. See United States v. Wendt, 347 F.Supp. 647 (N.D.Ga.1972) (dictum). We do not think that the theoretical possibilities regarding additional police deterrence or the need to effectively remedy violations of Fourth Amendment rights can serve as the justification for imposing such heavy burdens on our courts.
Nothing we have said so far is meant to suggest that we would condone introduction of the state convictions had they been overturned, on the basis of the illegal search, prior to the time of the federal trial. We note that appellant did not testify falsely on direct examination as to matters which could be specifically contradicted by reference to the prior convictions or acts as was done in Walder and Harris where the Court desired to prevent the affirmative use of perjured testimony by a defendant. No case has gone so far to suggest that the prosecution might introduce what has already been determined to be illegally obtained evidence from prior unrelated acts or convictions to impeach generally a defendant’s credibility and this contention appears to have been rejected in People v. Taylor, 104 Cal.Rptr. 350, 501 P.2d 918 (1972). In that situation the exclusionary rule does not interfere with the orderly functioning of the judicial system. Additionally, a contrary holding might otherwise affect the defendant’s choice of whether to testify in his own behalf. Harris, supra, 401 U.S. at 230, 91 S.Ct. 643, 28 L.Ed.2d 1 (Brennan, J., dissenting). We only go so far as to hold that a conviction which may have been influenced by the use, for general impeachment purposes, of prior convictions, which have been subsequently overturned on constitutional ’ grounds . relating to an illegal search or seizure, may properly stand.
To the extent that we may be incorrect in reading the recent Supreme Court holdings as requiring rejection of appellant’s claim, we still believe that the use of the prior convictions constituted harmless error beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 258 (1972). First, appellant’s credibility on his entrapment defense was greatly harmed by evidence relevant to predisposition that he had been charged with possession of burglar tools in the past. Second, his story was contradicted directly in part by government agents who testified to appellant’s suede coat being dry — though he alleged having walked some three blocks in a rainstorm to the place of the sale — and to his having stated, after being warned of his right to remain silent, that he had been sent out with some money to obtain some bread and had returned with neither money nor bread — a fact appellant denied at trial. Though appellant may have been incorrect in his testimony on these points and still may have been capable of being believed as to his story of entrapment in the main, we think that the use of the convictions when considered in this context added no more than minimally to the enormous damage already done to his credibility.
Affirmed.
. The search warrants involved did not comply with Mass.Gen.Laws ch. 276, § 2B, which, as it has not been contended otherwise, we take to furnish constitutional minima.
. Of course, where a defendant’s counsel introduces prior convictions which ho knows to be illegal or which so appear on their face — e. g., those resulting from deprivation of counsel — then there is a far greater reason to accept the government’s estoppel argument. While there might be the possibility that a defense lawyer could, where the legality of the prior convictions is less clear, seed the record with anticipated errors relating to the prior convictions, and upon his client’s couviction seek to attack the prior convictions in (be hope that if successful, the subsequent conviction would also fall, that game of Russian roulette seems improbable, and, in any event, our disposition here removes that concern.
. O’Connell, who did not testify in this case, subsequently received a reward of $2000.
. The Court in Loper, supra, 405 U.S. at 482 n. 11, 92 S.Ct. 1014, 31 L.Ed.2d 374, noted this distinction in contrasting the use of uncounseled convictions to impeach general credibility in the case before it with the more specific contradictions in Harris and Walder. While an argument can be made to the contrary, we do not think, because of the policies underlying application of the rule of exclusion for illegal search, that this footnote should be considered as requiring a finding of error where prior convictions, used only for general impeachment purposes, are subsequently reversed ; nor because of the entire thrust of the text in Loper, do we think that the footnote should be read as indicating that Loper applies in a Fourth Amendment as well as a Sixth Amendment context.
. Appellant waited until November, 1970, to challenge these convictions in a federal habeas corpus suit winch was dismissed without prejudice in March, 1971, for failure to exhaust state remedies. We need not reach the question whether the exclusionary rule might have some application where an appeal or some other proceeding which challenges the legality of the prior convictions on search and seizure grounds is pending. Cf. F.R.Evid. 609 (e).
. If Taylor is correct, there would seem to be a prohibition on prosecutorial reference to either the voided prior convictions or evidence discovered as the result of an illegal search or seizure in an effort to impeach generally.
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_interven
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
MERCADO v. BRANNAN, Secretary of Agriculture.
No. 4386.
United States Court of Appeals First Circuit.
March 25, 1949.
Abrahan Diaz Gonzalez, of Santurce, Puerto Rico (Pedro M. Porrata, Charles Cuprill, and Benjamin Ortiz, all of Ponce, Puerto Rico, on the brief), for appellant.
Lewis A. Sigler, Ass’t Associate Solicitor, U. S. Department of Agriculture, of Washington, D. C. (Neil Brooks, Associate Sol., U. S. Department of Agriculture, and John M. Durbin, Atty., U. S. Department of Agriculture, both of Washington, D. C., on the brief), for appellee.
Before MAGRUDER, Chief Judge, and CLARK and WOODBURY, Circuit Judges.
Judge CLARK of the Second Circuit, serving by designation.
CLARK, Circuit Judge.
This is the second appearance before us of this action for treble damages, under § 205(e) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 925(e), for the sale of cane blackstrap molasses at 'an overceiling price. The facts are stated in our earlier opinion, Anderson v. Mercado, 1 Cir., 163 F.2d 303, certiorari denied Mercado v. Anderson, 332 U.S. 837, 68 S.Ct. 220, remanding the case to the district court for reconsideration of its award of damages. In our view of the case there had been a substantially greater delivery of the product in violation of the law than the district court had originally found, Porter v. Mercado, D.C.P.R., 67 F.Supp. 107, and reconsideration of its refusal to assess penalties beyond the overcharge itself was necessary because it had failed to take note of certain further factors we held to be relevant. Upon the new trial the court necessarily accepted our conclusion as to the overcharge itself and therefore increased it to the sum of $42,501.36. Then after further evidence the court found that defendant-appellant had not established its partial defense under § 205(e), namely, that its overcharge was not willful or the result of failure to take practicable precautions against the occurrence of the violation. Accordingly the court, in the exercise of its statutory discretion to assess a penalty not less than the amount of the overcharge or more than three times that amount, Bowles v. Krodel, 7 Cir., 149 F.2d 398, fixed defendant’s liability at one and one-half times that amount, or at an additional sum beyond the overcharge itself of $21,250.68. From the resulting judgment defendant has taken this appeal.
Willfulness in violating a regulatory statute implies not so much malevolent design as action-with knowledge that one’s acts are proscribed or with careless disregard for their lawfulness or unlawfulness. Zimberg v. United States, 1 Cir., 142 F.2d 132, 137, 138, certiorari denied 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573. As is of course well known, the Office of Price Administration and its successors have not only conducted vast operations, but have also provided extensive informational services for the benefit of those subject to regulation. In view of this, the contention that an honest and reasonable belief in the validity of all acts done pursuant to an earlier contract is sufficient to support a defense of lack of willfulness, without proof of attempted verification of such a belief from the appropriate governmental officers, presents a problem. Compare, for example, Bowles v. Krasno Bros. Glove & Mitten Co., D.C.E.D.Wis., 59 F.Supp. 581, 583, and Bowles v. Arcade Inv. Co., D.C.Minn., 64 F.Supp. 577, with Bowles v. Pechersky, D.C.W.D.Pa., 64 F.Supp. 641.
We need not decide this issue, however, since defendant was clearly Unable to establish the defense that it had taken practicable precautions to avoid the violation. Bowles v. Pechersky, supra. It learned of Amendment 32 to- Revised Maximum Price Regulation 183, providing a maximum price of 13.6{5 a gallon “delivered at the mill,” before it had made any of the deliveries in issue. Nevertheless it made no attempt to obtain an official interpretation of the amendment, but relied entirely on its own view of the law. This was incorrect, as the district court ruled at the first trial, 67 F.Supp. 107; and we agreed, 163 F.2d 30-3, 308. In fact, defendant took no precautions of any kind, beyond its blind reliance upon a pre-existing contract, to make sure that it had complied with these new, definite, and complete regulations affecting its business. It was not reasonable for it thus to assume that entering into a contract for the future would make it thereafter immune from changes in established maximum prices. This is particularly so, since the Act itself provides otherwise. § 4(a), 50 U.S.C.A.Appendix, § 904(a), making it unlawful to sell or deliver any commodity in violation of a price regulation, “regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into.”
The court below made explicit findings of fact, followed by equally explicit conclusions of law, against defendant on each of these defenses. Other than that it placed first its holding as to the defense we have considered, there is no indication that it rated one defense as more important than the other or that it exercised its discretion in fixing the penalty 'because of the double-barreled nature of its holding. On the contrary, it's restraint in settling the assessment, fixing this as it did at only one-quarter of the amount authorized under the statute,. shows that it gave all the consideration permissible to defendant’s claim of honesty of purpose in disregarding the new regulations. A discretion so moderately exercised cannot be found to have been abused.
Defendant also argues that any recovery here, either for the overcharge or for additional penalties, is prevented by § 205(d) of the Act, 50 U.S.C.A.Appendix, § 925(d), barring awards for acts done in ■good faith pursuant to any provision of the Act or any regulation or “agreement there-, under,” even though thereafter changed or found invalid. But we have already answered that contention in our former opinion, 163 F.2d 303,'310, where we pointed out that the deliveries made by defendant were not in compliance with a regulation, but in violation of one. True, we did suggest, 163 F.2d 303, 309, that the original contract may itself have been illegal, as in excess of charges made by defendant during the base period; and this point has now been removed from the case by the finding of the district court that defendant ■“did not grant rebates or quantity discounts” during the base- period. The effect of this finding is to establish the legality of the contract when originally made, since it means that the contract price of 17f a gallon was then the correct one for purchasers for consumption, even though, they purchased in such large amounts as were here involved. But this does not reach our conclusion that a delivery illegal under the regulations in force at the time it is made is not thereby validated under § . 205 (d) merely by reason of the fact that it is in fulfillment of a contract of sale valid- when made.
Defendant vigorously asserts, however, that the statutory phrase “agreement thereunder” refers to just such a contract as the one before us. But we agree with the plaintiff that, as the context clearly requires, the phrase means an agreement under the terms of the Act, i.e., not a private contract, but' an agreement in the same class with a regulation or price order of the Administrator. Thus it refers to a pricing agreement which the Administrator was authorized to make with industry or other groups under § 5 of the Act, 50 U.S.C.A. Appendix, § 905. There was obviously no intent upon the part of the legislative body to nullify the provisions of § 4(a), supra, making unlawful sales or deliveries in violation of a price regulation, though made to fulfill a prior contract. Foster & Co. v. Bowles, Em.App., 144 F.2d 870, 874; Bowles v. Franceschini, 1 Cir., 145 F.2d 510, 513.
The. judgment of the District Court is affirmed.
Here defendant’s representatives had visited the local Office of Price Administration to inquire about the ceiling price of molasses before the contract of sale was entered into, but they did not exhibit the contract. The crucial question, however, as our earlier opinion shows, was as to the deliveries made under the contract with relation to the later enacted regulations. Defendant’s representatives made no subsequent visits or inquiries until an OPA investigator approached them after the deliveries had been completed. Defendant’s general awareness of the price regulation program was shown by its attempt, though unsuccessful, to contract out of any possible liability under the Act and regulations in not merely this contract, but also other earlier contracts.
“No person shall be held liable for damages or penalties in any Federal, State, or Territorial court, on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any ■ regulation, order, price schedule, requirement, or agreement thereunder, or under any price schedule of the Administrator of the Office of Price Administration or of the Administrator of the Office of Price Administration and Civilian Supply, notwithstanding that subsequently such provision, regulation, order, price schedule, requirement, or ■ agreement may be modified,-rescinded, or determined to be invalid.” 50 U.S.O.A. Appendix, § 925(d).
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:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
MEDIA DUPLICATION SERVICES, LTD., Plaintiff, Appellee, v. HDG SOFTWARE, INC., Defendant, Appellant, Joseph Wine, Appellant.
No. 90-1495.
United States Court of Appeals, First Circuit.
Heard Oct. 1, 1990.
Decided March 27, 1991.
As Amended April 23, 1991.
Marshall M. Schribman, Boston, Mass., with whom Joseph Wine, Braintree, Mass., was on brief, for defendant, appellant and appellant.
Harry C. Mezer, Boston, Mass., with whom M. Robert Queler, Wellesley, Mass., was on brief, for plaintiff, appellee.
Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and WOODLOCK, District Judge.
Of the District of Massachusetts, sitting by designation.
WOODLOCK, District Judge.
Trial counsel in this case, each separately pursuing a shortsighted and obfuscatory course, have together managed to suffuse a relatively modest piece of contract litigation with the mists of considerable confusion.
The confusion began at the inception of the action when the defendant disingenuously declined to acknowledge the efficacy of service by mail. Confronted by the defendant’s dissimulation regarding service, the plaintiff in turn never bothered to take the steps necessary to establish a perfected service.
The confusion continued through to the culmination of the case in the trial court, when defendant’s counsel unilaterally undertook to absent himself from the scheduled trial itself, thereby promptly earning a $7,500 sanction. For his part, plaintiff’s counsel attended the trial but failed to direct the court to what he understood — albeit mistakenly — to be an unresolved dispute concerning subject matter jurisdiction.
The outcome after this discreditable course of advocatory conduct is that the judgment on the merits for plaintiff must be reversed and the case, which doubtless will be recommenced, must be dismissed in the district court below. In addition, we remand for further consideration of the sanction the trial judge imposed for the failure of defendant’s counsel to attend properly to the court’s proceedings.
I
On January 25, 1989, plaintiff Media Duplication Services, Ltd. (“MDS”) filed a complaint claiming $41,671.86 in damages for the alleged failure of defendant HDG Software, Inc. (“HDG”) to pay MDS for software diskettes and manuals. The complaint also alleged that HDG willfully violated Mass.Gen.L. ch. 93A, § 11 by (i) ordering goods when HDG had neither the intention nor the ability to pay for them; (ii) falsely alleging defects in the goods to avoid payment; and (iii) falsely threatening to sue MDS without adequate factual or legal basis.
A. The Dispute Over Service of Process
MDS attempted to serve HDG, a Massachusetts corporation, by mailing copies of the summons, complaint and Form 18-A— the notice and acknowledgment form for service by mail — pursuant to Fed.R.Civ.P. 4(c)(2)(C)(ii). The material was sent by certified and regular mail, addressed to “HDG Software Inc.” at the Massachusetts address MDS had used when it last did business with HDG. On March 7, 1989, MDS filed a copy of a return receipt reflecting delivery in Florida on February 13, 1989, and requested that HDG be defaulted for failing to answer the complaint. The district court issued the default the day it was requested.
On March 17, 1989, HDG entered a special appearance and moved the court to remove the default and either dismiss the complaint due to insufficient service of process or, in the alternative, permit HDG to answer late. In support, HDG filed the affidavit of Helen Gens, its sole officer and director. Mrs. Gens averred that HDG, while “still a Massachusetts corporation,” stopped doing business in Massachusetts as of November, 1988. She declared that the purported mail service was delivered to her Florida residence and was received by a family member having no affiliation with HDG. She asserted that the service documents were not brought to her attention until the notice of default was also forwarded to Florida. Mrs. Gens never returned the 18-A acknowledgment form, and MDS never attempted to serve HDG by any other method.
MDS opposed HDG’s motion, arguing that service was effective because HDG admitted receipt of the summons and complaint. The district court allowed the motion to remove the default, but denied without opinion the motion to dismiss due to invalid service. Thereafter, HDG filed its answer raising as defenses, inter alia, inadequate service and lack of diversity jurisdiction. A counterclaim alleged that MDS had breached its contract with HDG by making only partial delivery, by shipping defective goods, and by refusing to compensate HDG for replacement costs and loss of sales.
B. The Dispute Over Diversity Jurisdiction
On September 3, 1989, MDS moved for summary judgment on its contract claim and against HDG on the counterclaim for defective goods, arguing that there was no dispute about HDG having purchased the goods and further that HDG had not established any evidence of defects. HDG responded on September 20 by filing: an opposition to the MDS motion for summary judgment, with supporting affidavits; a motion to strike the one affidavit MDS submitted in support of its motion for summary judgment; and a motion to dismiss for lack of subject matter jurisdiction.
The original papers reflect that the district court denied both the MDS motion for partial summary judgment and the HDG motion to dismiss for lack of subject matter jurisdiction by endorsement on October 26, 1989. However, these decisions were not recorded on the docket at that time. The decision denying the MDS motion for partial summary judgment was finally noted on the docket on April 20, 1990, the day after a pretrial conference was held. But no notation was ever recorded on the docket regarding the denial of the HDG motion to dismiss for lack of diversity jurisdiction. Thus, before us, counsel for both parties appeared to share the erroneous view that the trial court never expressly acted with respect to that motion. The motion to strike the affidavit was apparently never acted upon.
C. The Trial and The Sanction
The pretrial conference on April 19 set the case down for jury trial beginning Monday, April 30, and resulted in an order requiring the parties to submit witness lists and voir dire questions by April 26.
On April 23, 1990, Attorney Wine, defense counsel, notified counsel for MDS by letter that HDG had instructed him not to prepare for or appear at trial because the court lacked jurisdiction. Attorney Wine did not himself notify the court of his intentions in this regard. In lieu of a pretrial memorandum, on April 26 counsel for MDS filed with the district court a copy of the letter from Attorney Wine along with a cover letter declaring the intention of attorneys for MDS to appear ready for trial on the appointed date.
Plaintiffs counsel appeared for trial on April 30, 1990. Before taking evidence the trial judge asked counsel for MDS whether there were any outstanding disputes about jurisdiction. Despite the fact that MDS has continuously maintained — even in argument before us — that the district court never explicitly acted on the HDG motion to dismiss on grounds of lack of diversity, trial counsel for MDS in the following colloquy failed to alert the trial judge regarding what he believed to be a jurisdictional loose end.
THE COURT: The issue of jurisdiction has been determined, has it not?
MR. QUELER: It has your Honor.
THE COURT: Well, I need not make any further findings on the question of jurisdiction. This Court has jurisdiction of this cause of action.
MR. QUELER: That’s correct, your Hon- or.
The trial judge summarily found for plaintiff on the breach of contract claim. After hearing testimony from one witness, the court found the conduct of HDG, including its pre-trial strategy of pressing the defense and counterclaim that the goods were defective, was in bad faith and in violation of Mass.Gen.L. ch. 93A. Consequently, the court assessed triple damages against HDG as well as attorney’s fees of $7500. In addition, the court ruled that the conduct of defense counsel in pressing for trial on the issue of defective goods and then failing to appear on the ground that the court lacked jurisdiction— without notifying the court of his intentions — was “in bad faith and close to contumacious of this court’s order.” The court imposed an additional $7500 sanction against Attorney Wine personally, payable to counsel for MDS, for “gross” violation of Fed.R.Civ.P. 11. The trial judge thereafter signed a form Order on Sanctions, prepared by plaintiff’s counsel, reciting Fed.R.Civ.P. 16 and 28 U.S.C. § 1927, in addition to Rule 11, as authority for the sanction.
On appeal, HDG argues that the district court erred by not granting the motions to dismiss for lack of personal jurisdiction and lack of subject matter jurisdiction. Defense counsel also argues that the trial judge erred by imposing sanctions without affording him notice and an opportunity to be heard.
II
We are of the view the district court’s assertion of personal jurisdiction over HDG was erroneous, given the manner of service undertaken by MDS. This lack of personal jurisdiction alone is sufficient basis to reverse the judgment and order the case dismissed. In addition, because we assume that plaintiff may seek to recommence the action with proper service in the United States District Court for the District of Massachusetts, and because we have concluded that diversity jurisdiction was not established there in this proceeding, we also base our decision to dismiss the judgment on grounds of lack of subject matter jurisdiction.
A. Service to Obtain Personal Jurisdiction
1. Fed.R.Civ.P. 4(c)(2)(C)(ii)
HDG contends that personal jurisdiction was never established because service of process is ineffective under Fed.R. Civ.P. 4(c)(2)(C)(ii) unless the Form 18-A acknowledgment is returned. The Rule provides in pertinent part:
(C) A summons and complaint may be served upon a [corporate defendant]
(ii) by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph in the manner prescribed by subdivision (d)(1) or (d)(3).
MDS concedes that the Form 18-A acknowledgment was never returned. But it counters the ineffective service contention, pressed by HDG throughout the litigation before the district court, by asserting that service was effective despite the absence of the acknowledgment. Valid service was accomplished, MDS argues, because actual notice was achieved, as evidenced by the admissions of Mrs. Gens.
The issue whether actual notice can satisfy Rule 4(e)(2)(C)(ii) without the return of a Form 18-A acknowledgment is one which has split the circuits. MDS relies on Morse v. Elmira Country Club, 752 F.2d 35 (2d Cir.1984), in arguing that service was effective under Fed.R.Civ.P. 4(c)(2)(C)(ii) even absent formal acknowledgment by HDG. In Morse, the Second Circuit held that the requirements of the service by mail provision in Fed.R.Civ.P. 4(c)(2)(C)(ii) were satisfied where it was demonstrated the defendant received the summons and complaint but declined to acknowledge it. 752 F.2d at 39.
Morse has been severely criticized in the commentary. See, e.g., Sinclair, Service of Process: Rethinking The Theory and Procedure of Serving Process Under Federal Rule Jt(c), 73 Va.L.Rev. 1183, 1266 (1987) (terming Morse “a fanciful interpretation of the rule”). And all other circuits addressing the question hold to the contrary by requiring the acknowledgment form be returned before service under Rule 4(c)(2)(C)(ii) is effective. See, e.g., McDonald v. United States, 898 F.2d 466, 468 (5th Cir.1990); Gulley v. Mayo Found., 886 F.2d 161, 165 (8th Cir.1989); S.J. Groves & Sons Co. v. J.A. Montgomery, Inc., 866 F.2d 101, 102 (4th Cir.1989) (citing Armco, Inc., v. Penrod-Stauffer Building Systems, Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)); Geiger v. Allen, 850 F.2d 330, 332 n. 3 (7th Cir.1988); Worrell v. B.F. Goodrich Co., 845 F.2d 840, 841-42 (9th Cir. 1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3191, 105 L.Ed.2d 699, reh. denied 492 U.S. 938, 110 S.Ct. 24, 106 L.Ed.2d 636 (1989); Combs v. Nick Garin Trucking, 825 F.2d 437, 448 (D.C.Cir.1987); Green v. Humphrey Elevator & Truck Co., 816 F.2d 877, 879-83 (3d Cir.1987); see also United States v. Gluklick, 801 F.2d 834, 836 (6th Cir.1986) (citing with approval other courts which have held failure to acknowledge renders service invalid), cert. denied, 480 U.S. 919, 107 S.Ct. 1376, 94 L.Ed.2d 691 (1987).
We have yet to take a position on whether service may be effective under Fed.R. Civ.P. 4(c)(2)(C)(ii) absent an acknowledgment. We now join all the other circuits which have spoken in declining to follow Morse. Not only does the Morse approach run contrary to the plain language and apparent purpose of the Rule, it invites burdensome evidentiary hearings on the question whether a summons and complaint were actually received in a timely manner by the proper party. Finally, the Morse rule may subject a defendant to unfair surprise because the required acknowledgment form advises the recipient that the only consequence of failing to return the form is that she may be required to pay the expenses of alternative service.
Rule 4(c)(2)(C)(ii) was an effort to provide a cost-saving mechanism to establish service of process by securing the cooperation of the defendant. But in the absence of timely assent by the defendant, (C)(ii) service is ineffective and the plaintiff must resort to another authorized form of service. A plaintiff who is unlikely to obtain cooperation from a defendant with respect to service runs the risk of delaying effective service if it first resorts to (C)(ii). See Siegel, Practice Commentary on Amendment of Federal Rule ) (Eff Feb. 26,1983) with Special Statute of Limitations Precautions, 96 F.R.D. 88, 113-14 (1983) (suggesting that if (C)(ii) service is to be attempted, it should be initiated promptly so that if it fails, a second attempt may be made by other means within the 120 day time limit). The plaintiff here faces the consequence of that risk.
2. Fed.R.Civ.P. 4(c)(2)(C)(i)
MDS also argued before the district court that even if the formalities of Rule 4(c)(2)(C)(ii) were not observed, service deficient under that rule can alternatively be effective under Fed.R.Civ.P. 4(c)(2)(C)(i), which provides that service may be made
pursuant to the law of the State in which the district court is held for the service of summons or other like process upon such defendant in an action brought in the courts of general jurisdiction of that State.
However, no such means of rescuing failed attempts at effective service under 4(c)(2)(C)(ii) could possibly apply here, because the plaintiff did not attempt any follow-up service. Rule 4(c)(2)(C)(ii), as the District of Columbia Circuit has observed, requires “that if a defendant does not return the notice of acknowledgment, the plaintiff must make a second attempt to secure service on that defendant if he is to be further pursued in the litigation.” Combs v. Nick Garin Trucking, 825 F.2d at 443.
Thus, a failed effort at service under Rule 4(c)(2)(C)(ii) is not alchemized by that failure into an effort under Rule 4(c)(2)(C)(i) pursuant to state service provisions. Permitting such a transformation would violate the clear language of the Rule and unfairly prejudice the defendant without notice of the necessity to respond. The plaintiff must separately undertake some other form of authorized service as a follow-up to the failed effort under subsection (C)(ii). See Combs v. Nick Garin Trucking, 825 F.2d at 444-48; Stranahan Gear Co. v. N.L. Indus., Inc., 800 F.2d 53, 56-57 (3d Cir.1986); Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d at 1089. This posed no significant burden for the plaintiff here, yet the plaintiff chose not to undertake the undemanding effort required to insulate its case from effective attack on grounds of insufficiency of service. The consequence is that plaintiff is deprived of its judgment on the merits.
We recognize that there is a high degree of formalism in our conclusion that this case must be dismissed for failure of proper service, despite the obvious fact that the defendant has received actual notice of the lawsuit. But the service rules were established to provide bright lines and avoid entangling the courts in ad hoc determinations about whether and to what degree actual notice of a lawsuit was provided. If these rules are to be modified, it must be through the authorized rule-making procedure — as is currently being undertaken, see generally supra note 5 — and not through the practical and understandable, but unauthorized, disinclination of courts to countenance clever reliance on technical objections such as those raised by the defendant here.
B. Diversity Subject Matter Jurisdiction
The district court was also drawn into error in asserting subject matter jurisdiction. The complaint alleges that MDS is a Delaware corporation and that its principal place of business is in California. The HDG answer specifically denied this second claim. Once jurisdictional allegations are challenged, the party asserting diversity has the burden of establishing those allegations with competent proof. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942); Topp v. CompAir Inc., 814 F.2d 830, 839 (1st Cir.1987); de Walker v. Pueblo Int’l, Inc., 569 F.2d 1169, 1172 n. 4 (1st Cir.1978). No presumption of truthfulness attaches to the allegations. Mortensen v. First Fed. Sav. & Loan Assoc., 549 F.2d 884, 891 (3d Cir.1977).
For purposes of determining whether jurisdiction is properly asserted on the basis of diversity, a corporation is considered to be a citizen of its state of incorporation as well as the state where it has its principal place of business. 28 U.S.C. § 1332(c)(1). In order to find diversity jurisdiction, a federal court must identify the principal place of business of a corporation, regardless of whether the corporation has ever made such an identification for itself. Topp v. CompAir, Inc., 814 F.2d at 839. The facts at the time the action is commenced govern the diversity determination. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113 n. 1, 1 L.Ed.2d 1205 (1957); Lugo-Vina v. Pueblo Int'l, Inc., 574 F.2d 41, 42 n. 1 (1st Cir.1978). If the matter is contested, the burden of proving a corporation’s principal place of business, based on the location of corporate activities at the time suit is instituted, rests upon the party asserting existence of diversity jurisdiction. 13B Wright, Miller & Cooper, Federal Practice & Procedure § 3625, at 640 (1984). Where there is inadequate evidence adduced to establish the location of a corporation’s principal place of business at the time the complaint was filed, there are insufficient facts to support diversity jurisdiction. Cf. O’Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982) (party seeking to invoke diversity jurisdiction which fails to avail itself of opportunity to present evidence acts at its own peril).
MDS did not file an opposition specifically addressed to the motion to dismiss based on lack of diversity; nor did it file any affidavits or other documentary evidence designed to support the allegation in the complaint that California was its principal place of business. Other filings in the case, however, supply a factual basis for approaching the principal place of business issue.
It appears that MDS was incorporated in Delaware and that it is a subsidiary of Polaroid, a Massachusetts corporation. There is, however, no direct evidence in the record demonstrating the principal place of business of MDS on the date the complaint was filed, January 25, 1989. To be sure, there are letters between HDG and MDS which indicate that MDS had its corporate offices in California at least for some time prior to February, 1988. The term “Corporate Office” with an Irvine, California, address is placed at the bottom of the MDS Massachusetts stationery used for those letters. That stationery suggests that the MDS home office or “nerve center” was located in California at that time. In addition, an MDS brochure indicated that at one point the plaintiff maintained three “regional service centers” including one in Hopkinton, Massachusetts. In the absence of any indication to the contrary, it might be reasonable to infer that the MDS corporate offices were not moved by January, 1989. However, it remains entirely unclear what functions the California “Corporate Office” performed and the relation of that office to MDS’s other activities.
Comparable evidence was considered insufficient in de Walker, 569 F.2d at 1171-72. Noting that the annual report of the corporation in question included New York City as a site of one of its “executive offices,” we observed in de Walker that such a description gave no indication of the character of these offices, absent information about who was employed there and which corporate affairs were conducted there. Id. Notably absent from the evidence here are factual allegations bearing on the array of factors typically considered in determining a corporation’s principal place of business, e.g.: location of directors’ meetings and where major policy decisions are made; location of managers and other corporate personnel who direct daily operations; location of the operations themselves; location from which corporate income tax is filed; location of bank accounts. See, e.g., Topp v. CompAir, Inc., 814 F.2d at 838. See generally 13B Miller, Wright & Cooper, Federal Practice & Procedure § 3625 (1984). Although we are sensitive to the fact that addressing a challenge to diversity can sometimes produce delay and otherwise be costly, we note that when a corporation is called upon to establish its own citizenship — particularly, as in this case, a corporate plaintiff which has chosen to initiate the litigation under the federal courts’ diversity jurisdiction — the imposition is hardly overwhelming because information concerning “the relevant factors regarding its principal place of business normally is available to it through its own corporate records,” id. § 3625, at 641.
A district court’s determination of citizenship for purposes of diversity jurisdiction may not be set aside unless it is clearly erroneous. Valedon Martinez v. Hospital Presbiteriano, 806 F.2d 1128, 1132 (1st Cir.1986); accord U.S.I. Properties Corp. v. M.D. Constr. Co., 860 F.2d 1, 6 (1st Cir.1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989). But, in the appeal before us, the district court’s bare, unexplained denial of the motion to dismiss for lack of subject matter jurisdiction does not provide a basis to evaluate the factual grounds for its decision. No doubt if counsel for the plaintiff had been candid when asked on the day of trial concerning his awareness of any outstanding jurisdictional issues or if defendant’s counsel had appeared to press the matter, the district court would have inquired into the matter more fully.
As the record now stands, however, the evidence of principal place of business is significantly less informative even than that we have judged in other cases to be insufficient to meet the burden. Cf. de Walker, 569 F.2d at 1172 (no diversity because plaintiff did not establish company’s “nerve center” or any substantial part of its operations was outside the forum); Lugo-Vina, 574 F.2d at 44 (evidence insufficient for finding that “nerve center” was in another state). Here again, the consequence of the plaintiffs neglect of the predicates to jurisdiction — in this instance its failure to take the undemanding steps necessary to establish its principal place of business — is that the plaintiff is deprived of its judgment on the merits.
Ill
On the appointed day for trial in this case Joseph Wine, trial counsel for the defendant, failed to appear. One week before, Wine had sent a letter to counsel for MDS advising that he would not appear, on the instructions of his client, which still maintained its jurisdictional objections. Counsel for MDS forwarded a copy of Wine’s letter to the district court. Before entering judgment, the trial judge heard from one witness, a Polaroid employee. Then, based on the conduct of defendant’s counsel and a finding that the defendant’s affirmative defense and counterclaim had been made in bad faith, the district court orally announced sanctions would be imposed on Attorney Wine pursuant to Rule 11. The written Order on Sanctions the district court issued that day recited Fed.R. Civ.P. 11, 16 and 28 U.S.C. § 1927 as authority for the sanction.
Considerable discretion is vested in a district judge to decide whether to impose sanctions and what form they should take. Lancellotti v. Fay, 909 F.2d 15, 19-20 (1st Cir.1990) (discussing Rule 11 sanctions); Anderson v. Beatrice Foods Co., 900 F.2d 388, 393-94 (1st Cir.) (same), cert. denied, — U.S. — , 111 S.Ct. 233, 112 L.Ed.2d 193 (1990). However, we do not “rubber-stamp” decisions of the district court to impose sanctions. Damiani v. Rhode Island Hosp., 704 F.2d 12, 17 (1st Cir.1983) (upholding dismissal as sanction). In our review, we apply an abuse-of-discretion standard to “all aspects of a district court’s Rule 11 determination.” Cooler & Gell v. Hartmarx Corp., — U.S.— , 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). We will apply the same standard to the other announced bases for sanction. See, e.g., Barreto v. Citibank, 907 F.2d 15, 16 (1st Cir.1990) (dismissal for failure of counsel to appear reviewed only for abuse of discretion).
Under the circumstances of this case, we find an abuse of discretion as a matter of procedure in conducting sanction proceedings without notice to defense counsel. Moreover, we find an abuse of discretion as a matter of substance: it was clearly erroneous on this record for the district court to find that the defendant’s affirmative defense and counterclaim, both based on allegations of defective product, were made in bad faith.
A. Procedure
Although we have in the past declined to endorse any per se rule — and we do not adopt one today — we have noted the general desirability and sometime necessity of affording notice and an opportunity to be heard when monetary sanctions are imposed. In re Richardson, 793 F.2d 37, 40 (1st Cir.1986); see also Boettcher v. Hartford Ins. Group, 927 F.2d 23, 25-26 (1st Cir.1991); Anderson v. Beatrice Foods Co., 900 F.2d at 396-97.
A Rule 11 sanction does not require a full hearing in every case, and we continue to adhere to the view of the Rules Advisory Committee that the Rule 11 procedural format “should depend on the circumstances of the situation.” Muthig v. Brant Point Nantucket Inc., 838 F.2d 600, 606-07 (1st Cir.1988) (motion for sanctions and briefing process provided adequate notice and opportunity to be heard). However, a judge’s decision to impose Rule 11 sanctions must comport with due process requirements, and the determination of what process is due is, in part, a function of the type and severity of the sanction. See Advisory Committee Note, reprinted in 97 F.R.D. 165, 198-201 (1983); see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 & n. 14, 100 S.Ct. 2455, 2464 & n. 14, 65 L.Ed.2d 488 (1980) (attorney’s fees, like other sanctions, should not be assessed without fair notice and an opportunity for a hearing on the record; due process concerns posed by dismissal, however, are greater than those presented by assessing attorney’s fees). We note two particular aspects of the instant circumstances which indicate that the procedure followed was inadequate.
First, the monetary sanction imposed against Wine and awarded to counsel for MDS was in addition to attorney’s fees already awarded by the court under Mass. Gen.L. ch. 93A. In general, a higher standard of due process protection is required where, as in this case, the sanction is a fine designed to go beyond compensation and punish an attorney. See Donaldson v. Clark, 819 F.2d 1551, 1561 (11th Cir.1987) (the more serious the sanctions in relation to actual expenditures the more process will be due), cited with approval in Muthig, 838 F.2d at 607.
Second, unlike many situations where sanctions are imposed, in this instance no motion for sanctions had been filed by the opposing party beforehand. Where Rule 11 sanctions have been imposed, we have noted the value of prior notice and “an opportunity to present any additional factual information that might have led [defendant] to form a reasonable belief that the” statements made in its papers were supportable. Bay State Towing Co. v. Barge American 21, 899 F.2d 129, 131 (1st Cir.1990). In the instant case the attorney was sanctioned in absentia, without either notice or opportunity to respond.
We find that fair notice and opportunity to be heard were lacking in the process afforded here. To be sure, Attorney Wine had notice that the case was set for trial, and he declined to appear. Nonetheless, the sanctions in this instance were not imposed solely on the basis of the failure of counsel to appear, and, in any event, counsel should generally be given some opportunity to justify his actions, Donaldson, 819 F.2d at 1560. Thus, we conclude that the procedures employed to reach a decision about sanctions did not provide adequate due process to Attorney Wine. The Order on Sanctions must be reversed and the matter remanded to the district court for further proceedings not inconsistent with this opinion.
B. Substance
In the written Order on Sanctions that it entered, the district court relied upon Fed. R.Civ.P. 11, 28 U.S.C. § 1927, and Fed.R. Civ.P. 16. We are of the view that neither Rule 11 nor § 1927 are applicable here. Thus the remand on sanctions will take up the issue only from the perspective of Rule 16.
1. Fed.R.Civ.P. 11
In her oral statement of reasons for imposing sanctions, the trial judge focussed exclusively on Rule 11. Our analysis of the applicability of Rule 11 to the facts of this case, leads us to the conclusion that the sanctionable conduct involved here does not come within the ambit of Rule 11.
When making the subsidiary finding of bad faith with respect to the defense that the goods were defective, which provided the basis for her Rule 11 holding, the district court stated:
That finding is based on the fact that the alleged defect was not disclosed to the plaintiff until some nine to ten months after the first goods were shipped; that the alleged defect was not asserted until after the lawsuit was filed, after the defendant had been defaulted and the default removed, after the defendant’s motion to dismiss for lack of jurisdiction had been denied.
The defect the district court focused upon was a problem with the computer diskettes reproduced by MDS for HDG. It was uncontested that these were delivered to HDG “in sealed packages and were shrink wrapped, with a copyright warning if the seal was broken. Therefore the disks could not be inspected by the defendant prior to sale and shipment to a customer.” It was to be expected that HDG would only learn of the defects from their customers after they had sold and shipped a number of units. Mr. Huff testified that MDS started to ship the goods in July of 1987 and that “the question of defective product was first brought up in March of 1988 in a letter from HDG.” An eight-month delay in discovering and reporting such defects is not particularly surprising.
Furthermore, it is not evidence of its bad faith that HDG failed to assert a legal claim based on the defects until it filed its answer in the instant lawsuit. HDG complained about the
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re UNION FOOD STORES CO. KING v. NIMLOS.
(Circuit Court of Appeals, Seventh Circuit.
January 2, 1925.)
No. 3429.
1. Bankruptcy <§=212— Petitioner for possession of property transferred to bankrupt had burden of proving his right to possession or to an accounting.
Receiver of corporation, which had transferred its assets to bankrupt corporation in consideration of bankrupt corporation’s assumption of first corporation’s debts, had burden of proving his right to possession of such assets or' to an accounting in such bankruptcy proceedings.
2. Corporations <§=583 — Consent of , every stockholder not necessary to transfer of assets to other cornoration.
Consent of every stockholder was not necessary to transfer of • corporation’s .assets to other corporation, on other corporation’s assumption of first corporation’s debts.
3. Corporations <§=574 — Stockholders estopped to disavow reorganization plans, as against creditors of newly organized corporation.
Where corporation was reorganized with approval of Securities Division of Railroad Commission of Wisconsin, by organization of new corporation, to take over its assets and to assume its debts, and where assets of first corporation were transferred to the newly organized corporation, stockholders of first corporation were estopped to disavow reorganization plans, as against creditors of newly organized corporation.
4. Bankruptcy <§=I40(1) — Unsecured creditors of corporation, which had transferred assets to bankrupt corporation in consideration of bankrupt corporation’s assumption of debts, held not entitled to return of property.
Where corporation transferred assets to other corporation, in consideration of other corporation’s assumption of first corporation’s debts, and other corporation in fact satisfied a large portion of first corporation’s debts, and where such action on part of first corporation was not ultra vires, the remaining unsecured creditors of first corporation could not require trustee in bankruptcy of other corporation to turn back such assets, without offering to repay to second corporation amount paid by it in satisfying first corporation’s debts; the only remedy of such remaining creditors being to file ■their claims in the bankruptcy.court.
Appeal from the District Court of the United States for the Eastern District of Wisconsin.
In the matter of the Union Eood Stores Company,• bankrupt, in which Henry R. King, as receiver of the Waukegan Tea Company, filed a claim .with Thomas H. Nimios, trustee in bankruptcy of the Union Eood Stores Company. Erom an order disallowing the claim, claimant appeals.
Affirmed.
Appellant and appellee are contestants for assets possessed by appellee shortly after his appointment and qualification as trustee of the estate of Union Eood Stores Company, herein called for brevity, the Eood Company. The Waukegan Tea Company will be referred to as the Tea Company. The facts are involved, many are difficult of ascertainment, and not easy to narrate in a brief and satisfactory statement.
The Tea Company was a Wisconsin corporation, organized May 9, 1919, to conduct a chain of grocery stores, with a capital stock of $100,.000, which on January 20, 1920, was increased to $300,000; $100,000 being common, and the balance preferred. The 'volume of its business was large, and offered opportunity for growth, but its basic 'soundness was at all times doubtful. Careless bookkeeping and inaccurate statements best served the real purpose of the officers and promoters, which was to enrich themselves through promotion management.
The Food Company was organized in the summer of 1921, upon a capitalization in keeping with the plans of the promoters, there being 200,000 shares of preferred stock of $10 each, and 20,000 shares of common stock at no par value. It was organized to become the successor of the Tea Company. The reorganization plan contemplated that the outstanding stock in the Tea Company should be exchanged for the preferred stock of the Eood Company, and the obligations of the Tea Company were to be assumed by the new company, and. when this was accomplished the Tea Company was to be dissolved. The officers and directors of the Tea Company were the promoters, and subsequently, in large part, the officers and directors, of the Eood Company.
A profit and loss statement of the Tea Company from- January 1 to November 1, 1921, shows the character of the enterprise. The business for this short period was conducted at a loss of $321,539.81. Its total . assets at that date were put at $635,509.46. The bookkeeper very briefly and aptly described both the financial condition and the character of the management. He said;
“On October 31, 1921, I was instructed to prepare trading and profit and loss statement of the Waukegan Tea Company, and I prepared such a statement, which has been introduced in evidence here as Exhibit 64. It shows a net' operating loss of $321,-539.81, and on the same date I prepared' a financial statement of the "Waukegan Tea Company, introduced in evidence as Exhibit 65, showing a surplus on account of revaluation. I couldn’t tell just what the purpose of that surplus was. I couldn’t read their minds. I presume it was for the purpose of wiping out that operating loss. That condition of the company on October 31st was such that the officers revised some of the assets; that is, the real estate was revised (upwards) to the extent of $90,000, store fixtures $15,161.16, good will $30,000. A donation of common stock of $100,000 and preferred stock of $80,000 was made. These items were instrumental in creating surplus as of November 1st in the amount of $10,-373.82.”
Notwithstanding this showing, semiannual dividends were thereafter regularly paid.
Tho Food Company succeeded in selling a large amount of its stock, and some $230,-000 received therefrom was used in paying obligations of the Tea Company and in operating the business. The Food Company, either by cash payment or assumption of obligations, reduced the obligations of the Tea Company to the extent of $407,000. Until the necessary exchange of stock from the Tea Company to the Food Company was completed, and tho obligations of tho Tea Company met through the Food Company’s sale of stock or assumption of liability therefor, it was agreed that the business of tho Food Company and the Tea Company should he operated as a joint enterprise. Tho articles of association of both corporations provided that their powers should be in part as follows:
“To enter into partnership or into any arrangement for sharing profits, union of interest, co-operation, joint adventure, reciprocal concession, or otherwise, with any person or company carrying on or engaged in, any business or transaction which this company is authorized to carry on or engage in, or any business or transaction capable of being conducted so as directly or indirectly to benefit this company.”
Tho plan of reorganization and joint operation of business by the two companies was embodied in the minutes of the meeting of tho board of directors of the Union Food Company, a copy of which is set forth below:
“Whereas, this company intends to eventually, and as soon as practicable, take over the business of said Waukegan Tea Company (that is, as soon as its outstanding indebtedness is liquidated, so as to enable such business to be taken over without incurring the penalties attaching by reason of such Bulk Sales Law), and to thereupon dissolve the corporation known as Wauke-gan Tea Company, and to conduct the business formerly conducted by it under the name of this company, or, if deemed necessary, under the trade-name of Waukegan Tea Company:
“Now, therefore, for the purpose of carrying out the objects as hereinbefore set forth, be it resolved:
“That all purchases, expenses, and disbursements necessary to be made or incurred to continue to carry on the business of said Waukegan Tea Company subsequent to October 29, 1921, be made or incurred in the name of this company, this company to assume liability therefor, and charge said Waukegan Tea Company on its books for merchandise so purchased and expenses so incurred, the object being that in due course this company shall become the sole creditor of said Waukegan Tea. Company.
“That tho officers of this company from time to time report to tho stockholders the progress of such liquidation and advise the Securities Division of tho Railroad Commission of the general object of the business being conducted by said two corporations, and that said officers in all respects comply with the requirements that may from time to time be imposed by the director of such Securities Division.”
This proposed plan of reorganization was approved by the Securities Division of the Railroad Commission of tho state of Wisconsin, and a permit was issued to the Food Company to sell its stock. A large amount of stock was thus sold, and the business, while conducted in part by each company, after November 1st became more and more the business of tho Food Company. Dividends were paid December, 1921, and July, 1922, to the stockholders of each company, but upon checks drawn by the Food Company, which were stamped “Food Company Dividend Checks.”
From the sale of stock, and by a shifting of liability, outstanding obligatións of the Tea Company to the extent of $407,000 were paid. Certain real estate in Milwaukee in which the Tea Company possessed an equity was conveyed to the Food Company. In response to an inquiry from one of the creditors the general manager wrote:
“I am in receipt of yours of the 3d inst., in regard to how tho bills to our firm should be charged. They should ho hilled Union Food Stores Company, Successors to Wau-kegan Tea Company, as both corporations are in existence. Hoping this will give you the desired information, we remain yours very truly, Union Food Stores Company, Successors to Waukegan Tea Company, -, General Manager.”
The referee found that the Tea Company was not entitled to have “any of the property or assets now in the possession of the trustee in bankruptcy turned over to the state court for administration, but the property and assets here before the court for administration shall be distributed to the creditors'of Waukegan Tea Company — Economy Grocery and Union Food Stores Company without preference.”
The District Judge, on reviewing the referee’s finding and order, ruled:'
“I doubt whether, in view of the petitioner’s claim to have assets turned over to him, the referee should, at this state of the proceedings, broadly decree ratable distribution, in the absence of .any issues tendered by particular creditors of either company. When all the claims have been filed, and opportunity afforded to particular creditors, any question of priority may be then determined, but upon the present petition — especially in view of denial of the fundamental relief sought — questions properly presentable by individual creditors should not be embarrassed in their determination by the broad ruling above. Therefore the affirmance of the referee’s order will be deemed coupled ‘with a reservation of full right in the future to determine particular questions of priority or preference as they may arise.’ ”
Because the Food Company has paid or assumed a large portion of the Tea Company’s liabilities existing at the time of the reorganization, and the balance of the obligations of the Tea Company are relatively small, and inasmuch as the obligations of the Food Company have become relatively large, it is to the interest of the Tea Company to have the property administered -for the benefit of its creditors separate from the administration of the estate for the benefit of all creditors. The contest is therefore one between groups of creditors.
Albert K. Stebbins and Otto Dorner, both of Milwaukee, Wis., for appellant.
Leon F. Foley, of Milwaukee, Wis., for appellee.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
EVAN A. EVANS, Circuit Judge
(after stating the fgets as above). Appellant’s reclamation proceeding was to recover all of the property turned over to appellee by appellant at the time of the reorganization. In his petition appellant alleges:
“That * * * on the 1st day of July, 1921, * * * said Union Food Stores Company entered into possession 'of, and converted to its own use, unlawfully, and, as your petitioner is informed and believes and alleges the fact to be, without' the knowledge or consent of any of the preferred stockholders of said Waukegan Tea Company, all of the assets, cash, credits, and effects of said Waukegan Tea Company, ® * * and that said Union Food Stores Company thereupon took over the management of all of the said stores.”
Upon appellant’s own theory, then, the trustee in bankruptcy, upon the adjudication of the Food Company as a bankrupt, lawfully came into possession of the real and personal property here the subject of litigation, and should administer the estate, unless appellant can satisfy this court that the estate or some part of it should be returned to him.
Upon oral argument it was urged that the hearing had broadened the issues, and appellant, if denied possession of the property should at least be awarded an accounting. We approach the question from the standpoint of (a) the common stockholders of the Tea Company; (b) the preferred stockholder of the Tea Company; (c) the creditor of the Tea Company. Appellant asserts that he represents them all.
The evidence, due to the hopeless confusion that existed in the affairs of these companies, is not as satisfactory as it might be. But, inasmuch as the petitioner carries the burden of proving his right to possession of the goods, or to an "accounting, he must rely upon the record as presented. Without detailing all of the evidence that supports our conclusion, we will merely say that we find all the common stock of the Tea Company had been surrendered before the plan of reorganization was approved by the Securities Division of the Railroad Commission of Wisconsin. There is no holder of common stock interested in this controversy.
The situation in reference to the preferred stockholders is not so clear. We conclude, however, that on the occasion of the hearing before the state authorities above referred to, when permission to sell the stock in order to carry out the plan of reorganization was granted to the Food Company, the preferred stockholders acquiesced in or were bound by the action of the officers and agents of the Tea Company, and cannot now complain. A part of the preferred stock was surrendered. General Manager Berry, a director in both companies, testified:
“The Union Food Stores Company was organized about July 1, 1921, and was on that date licensed to transact business. It started selling stock and operated its stores as fast as it could get the required allotment in each town. They got the money for the stores they conducted from the stock sold. They started new stores, and also operated the Waukegan Tea Company stores. They did not take over the Waukegan Tea Company. They operated some stores. For a while they kept books separately. I could not recall how many of the Waukegan Tea Company stores were taken over the 1st of July. I do not know whether they took over any at that time. The records would show that. They were supposed to be in charge of the stores on November 1, 1921. That was the time they were supposed to take over the stores previously operated by the Waukegan Tea Company; that is, between July 1st and November 1st the Union Food Stores Company took over the stores previously operated by the Waukegan Tea Company and continued to operate them. In taking over the stores, they took over all of the merchandise that was in the stores, the shelving and counters and fixtures and apparatus, such as scales, etc. The Union Company assumed ownership and control. My stock and that of the other gentlemen who were directors was transferred. I do not recall the date. After that there was no new election of directors of the Wauke-gan Tea Company, nor of officers. I became a director of the Union Food Stores Company.”
In appellant’s brief the names of three and possibly four small preferred stockholders are given, and it is asserted that they never consented to the transfer of assets. As to them, it is sufficient to say (a) that their consent was not necessary; (b) that they are estopped to disavow the reorganization plans; and (c) their noneonsent is not satisfactorily established.
As the District Judge briefly stated: “When, as further appears, this situation continues, month after month, and with the sanction of the corporate articles and the state tribunal above adverted to, the shareholders of neither company should be heard to urge, against innocent creditors of either, that because the ordinary formal corporate assent to a transfer is not shown, the situation should not be found and dealt with as the referee determined.”
Moreover, in view of the facts as disclosed by this record, neither ^ the common stockholders nor the preferred stockholders are interested in this controversy. The Tea Company was insolvent in July, 1921, and its insolvency became more pronounced thereafter. The Food Company was at the time of its adjudication hopelessly insolvent. Only the creditors of the two companies are in fact interested.
Approaching the controversy from the standpoint of the creditor, we find the outstanding obligations of the Tea Company on November 1, 1921 to be $484,735.18. For the previous 10 months it showed an operating loss of $321,000. The Food Company, after November 1st, paid (or had the obligations transferred to it) on these outstanding obligations $407,240.89. This would leave a balance of approximately $77,500 unpaid obligations of the Tea Company. But $83,000 of this sum was the unpaid purchase price of certain real estate in Milwaukee, the purchase price being $100,000. The vendor is secured, and this indebtedness must ultimately be paid by appellee, or the property lost. The remaining creditors, save one, were closely connected with the company, and must have known of the reorganization plans, and must have acquiesced in their consummation.
But, if we assume that there is one or more unsecured creditor of the Food Company who is in a position to assert his rights, he cannot, without offering to do equity, seek the relief here sought by the receiver. That the Food Company, having relieved the Tea Company of over $400,000 of its debts, shall now be required to turn back the assets by it received as a consideration for such assumption of liability, because, perchance, the officers and directors of the Tea Company did not, before acting, obtain the consent of the stockholders (though they held or represented practically all of the preferred stock, and all the common stock had been surrendered), and leave the creditors of the Food Company unprotected, is a contention hardly worthy of serious consideration.
Lot us take a somewhat analogous case. Assume A. (a corporation acting through its officers and directors without the authorization of the stockholders) sells all its assets consisting of a piece of real estate to B. for $100,000. Upon the real estate is an outstanding mortgage of $90,000. B. pays the balance of the purchase price ($10,000) to A., and later pays off the $90,000 mortgage. May the noneonsenting stockholders or creditors of A. repossess the real estate without paying to B. the $10,000 by A. received, or the $90,000 B. paid on the mortgage? Obviously not. Railway Co. v. McCarthy, 96 U. S. 267, 24 L. Ed. 693; Rankin v. Emigh, 218 U. S. 27, 35, 30 S. Ct. 672, 54 L. Ed. 915; 7 R. C. L. 677.
In the present.ease, instead of a mortgage upon the property, there were outstanding claims aggregating $475,000. B., the purchaser, satisfies $407,000 of the claims, and adequately secures another claim of $60,000. Can the remaining creditors of A. ask that the property be returned without offering to repay B. the $467,000 which B. either paid or secured to the creditors of A? The answer must he in the negative.
Other reasons supporting this conclusion need hardly he mentioned. However, we do say upon the evidence before us that the acts of the directors of the Tea Company in dealing with B. were not ultra vires.
Respecting appellant’s urge that, if the goods he not returned, an accounting should be ordered, it is perhaps sufficient to say that no such relief was sought in appellant’s petition, nor was the hearing sufficient to justify the determination of such an issue, assuming the pleadings be amended so as to permit of its consideration.
In passing, we may say, however, that, inasmuch as the action of the Tea Company was not ultra virés, its creditors and the nonconsenting preferred stockholders (if any there he) have only one remedy; that is, to file their claims in the bankruptcy court, and take such dividend as upon all of the evidence they are entitled to receive. If aggrieved by the determination, they will, of Course, have their right to appeal. The District Judge gave the creditors of both corporations ample protection through the amendment he- made to the referee’s order.
The decree is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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sc_issue_2
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41
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What follows is an opinion from the Supreme Court of the United States. Your task is to 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.
CRAWFORD-EL v. BRITTON
No. 96-827.
Argued December 1, 1997
Decided May 4, 1998
Stevens, J., delivered the opinion of the Court, in which Kennedy, Soüter, Ginsburg, and Breyer, JX, joined. Kennedy, X, filed a concurring opinion, post, p. 601. Rehnquist, C. X, filed a dissenting opinion, in which O’Connor, X, joined, post, p. 601. Scalia, X, filed a dissenting opinion, in which Thomas, X, joined, post, p. 611.
Daniel M. Schember argued the cause and filed briefs for petitioner.
Walter A. Smith, Jr., Special Deputy Corporation Counsel of the District of Columbia, argued the cause for respondent. With him on the brief were John M. Ferren, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel.
Jeffrey P. Minear argued the cause for the United States as amicus curiae urging affirmance. On the brief were Acting Solicitor General Warman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Preston, Irving L. Gomstein, Barbara L. Herwig, and Robert Loeb.
Briefs of amici curiae urging affirmance were filed for the State of Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, John R. Munich, Deputy Attorney General, and Alana M. Barrágan-Scott and Gretchen E. Rowan, Assistant Attorneys General, Charles H. Trout-man, Acting Attorney General of Guam, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Brucé M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A NoHon of Colorado, M. Jane Brady of Delaware, Robert A Butterworth of Florida, Margery S. Bron-ster of Hawaii, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Jeffrey B. Pine of Rhode Island, Mark W Barnett of South Dakota, Dan Morales of Texas, Jan Graham of Utah, William H. Sorrell of Vermont, Richard Cullen of Virginia, Julio A Brady of the Virgin Islands, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the American Civil Liberties Union et al. by Arthur B. Spitzer and Steven R. Shapiro; and for J. Michael Quinlan et al. by Michael L. Martinez.
Daniel H. Bromberg and Paul Michael Pohl filed a brief for William G. Moore, Jr., as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
Petitioner, a long-time prison inmate, seeks damages from a corrections officer based on a constitutional claim that requires proof of improper motive. The broad question presented is whether the courts of appeals may craft special procedural rules for such cases to protect public servants from the burdens of trial and discovery that may impair the performance of their official duties. The more specific question is whether, at least in eases brought by prisoners, the plaintiff must adduce- clear and convincing evidence of improper motive in order to defeat a motion for summary-judgment.
I
Petitioner is serving a life sentence in the District of Columbia’s correctional system. During his confinement he has filed several lawsuits and has assisted other prisoners with their cases. He has also provided interviews to reporters who have written news stories about prison conditions. He is a litigious and outspoken prisoner.
The events that gave rise to this ease occurred in 1988 and 1989. Because of overcrowding in the District of Columbia prison in Lorton, Virginia, petitioner and other inmates were transferred to the county jail in Spokane, Washington. Thereafter, he was moved, first to a Washington State prison, later to a facility in Cameron, Missouri, next back to Lorton, then to Petersburg, Virginia, and ultimately to the federal prison in Marianna, Florida. Three boxes containing his personal belongings, including legal materials, were transferred separately. When the District of Columbia Department of Corrections received the boxes from the Washington State facility, respondent, a District correctional officer, asked petitioner’s brother-in-law to pick them up rather than sending them directly to petitioner’s next destination. The boxes were ultimately shipped to Marianna by petitioner’s mother, at petitioner’s expense, but he was initially denied permission to receive them because they had been sent outside official prison channels. He finally recovered the property several months after his arrival in Florida.
Petitioner contends that respondent deliberately misdirected the boxes to punish him for exercising his First Amendment rights and to deter similar conduct in the future. Beyond generalized allegations of respondent’s hostility, he alleges specific incidents in which his protected speech had provoked her. His claimed injury caused by the delay in receiving his boxes includes the costs of having the boxes shipped and purchasing new clothes and other items in the interim, as well as mental and emotional distress. Respondent denies any retaliatory motive and asserts that she entrusted the property to petitioner’s brother-in-law, who was also a District of Columbia corrections employee, in order to ensure its prompt and safe delivery.
Although the factual dispute is relatively simple, it engendered litigation that has been both protracted and complex. We shall briefly describe the proceedings that led to the en bane Court of Appeals decision that we are reviewing, and then summarize that decision.
The Early Proceedings
Petitioner filed suit against respondent and the District of Columbia seeking damages under Rev. Stat. §1979, 42 U. S. C. § 1983. The principal theory advanced in his original complaint was that respondent had diverted the boxes containing his legal materials in order to interfere with his constitutional right of access to the courts.
Prior to discovery, respondent, relying in part on a qualified immunity defense, moved for dismissal of the complaint or summary judgment. The motion was denied and respondent appealed, arguing, first, that the complaint did not allege a violation of any constitutional right that was clearly established at the time of her acts; and, second, that the complaint "failed to satisfy the 'heightened pleading standard’ that this circuit applies to damage actions against government officials.” 951 P. 2d 1314, 1316 (CADC 1991).
The Court of Appeals agreed with petitioner that his constitutional right of access to the courts was well established in 1989, and that his allegations of wrongful intent were sufficiently detailed and specific to withstand a motion to dismiss even under the Circuit’s “heightened pleading standard.” Id., at 1318, 1321. The court concluded, however, that the allegations of actual-injury to his ability to litigate were insufficient under that standard; accordingly, the complaint should have been dismissed. Id., at 1321-1322. Because the contours of the pleading standard had been clarified in a decision announced while the case was on appeal, see Hunter v. District of Columbia, 943 F. 2d 69 (CADC 1991), the court concluded that petitioner should be allowed to replead.
On remand, petitioner filed an amended complaint adding more detail to support his access claim and also adding two new claims: a due process claim and the claim that respondent’s alleged diversion of his property was motivated by an intent to retaliate against Mm for exercising Ms First Amendment rights. The District Court dismissed the amended complaint because the court access claim and the due process claim were legally insufficient, and because the First Amendment retaliation claim did not allege “direct evidence of unconstitutional motive.” 844 F. Supp. 795, 802 (DC 1994). The dismissal was, in effect, mandated by prior decisions of the Court of Appeals holding that allegations of circumstantial evidence of such a motivation were insufficient to withstand a motion to dismiss. See Martin v. D. C. Metropolitan Police Department, 812 F. 2d 1425, 1485 (1987); Siegert v. Gilley, 895 F. 2d 797, 800-802 (1990), aff’d on other grounds, 500 U. S. 226 (1991).
The En Banc Proceeding
A panel of the Court of Appeals affirmed the dismissal of the first two claims but suggested that the entire court should review the dismissal of the First Amendment retaliation claim. Accordingly, the en bane court ordered the parties to file briefs addressing five specific questions, two of which concerned the power of the Circuit to supplement the Federal Rules of Civil Procedure with special pleading requirements for plaintiffs bringing civil rights claims against government officials, and two of which concerned possible special grounds for granting defense motions for summary judgment in cases “where the unlawfulness depends on the actor’s unconstitutional motive.” The fifth was a catchall question that asked the parties whether there are “any alternative devices which protect defendants with qualified immunity, in cases of constitutional tort depending on the defendant’s motive or intent, from the costs of litigation?” App. to Pet. for Cert. 109a.
The en banc court responded to these questions in five separate opinions. A majority of the judges appear to have agreed on these four propositions: (1) the case should be remanded to the District Court for further proceedings; (2) the plaintiff does not have to satisfy any heightened pleading requirement, and may rely on circumstantial as well as direct evidence; (3) in order to prevail in an unconstitutional-motive case, the plaintiff must establish that motive by clear and convincing evidence; and (4) special procedures to protect defendants from the costs of litigation in unconstitutional-motive eases are required by the reasoning' in this Court’s opinion in Harlow v. Fitzgerald, 457 U. S. 800 (1982).
The primary opinion, written by Judge Williams, announced two principal conclusions: “First, we think Harlow allows an official to get summary judgment resolution of the qualified immunity issue, including the question of the official’s state of mind, before the plaintiff has engaged in discovery on that issue. Second, we believe that unless the plaintiff offers clear and convincing evidence on the state-of-mind issue at summary judgment and trial, judgment or directed verdict (as appropriate) should be granted for the individual defendant.” 93 F. 3d 813, 815 (CADC 1996).
Judge Silberman criticized Judge Williams’ approach as confusing, id., at 833, and suggested that Harlow’s reasoning pointed to a “more straightforward solution,” 93 F. 3d, at 834. In his opinion, whenever a defendant asserts a legitimate motive for his or her action, only an objective inquiry into pretextuality should be allowed. “If the facts establish that the purported motivation would have been reasonable, the defendant is entitled to qualified immunity.” Ibid.
Judge Ginsburg agreed with the decision to impose a clear and convincing standard of proof on the unconstitutional motive issue, but he could not accept Judge Williams’ new requirement that the District Court must “grant summary judgment prior to discovery unless the plaintiff already has in hand” sufficient evidence to satisfy that standard. Id., at 839. He described that innovation as “a rather bold intrusion into the district court’s management of the fact-finding process” that would result in the defeat of meritorious claims and “invite an increase in the number of constitutional torts that are committed.” Ibid. He would allow limited discovery on a proper showing before ruling on a summary judgment motion, but noted that in cases involving qualified immunity it would be an abuse of discretion for the trial judge to fail to consider, not only the interests of the parties, “but also the social costs associated with discovery had against a government official.” Id., at 840. With reference to the case at hand, he expressed the view that if petitioner could not show that discovery might reveal more than already appeared in the record, summary judgment would be appropriate without any discovery. Id., at 841-844.
Judge Henderson “fully” endorsed the plurality’s new clear and convincing evidence standard, but thought that it was a mistake for her colleagues to hear this case en bane because the record already made it abundantly clear that petitioner’s claim had no merit. Id., at 844-845.
Chief Judge Edwards, joined by four other judges, criticized the majority for “‘crossing the line between adjudication and legislation.”’ Id., at 847 (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 535 (1947)). He expressed the view that the new evidentiary standards were unauthorized by statute or precedent and “would make it all but certain that an entire category of constitutional tort claims against government officials — whether or not meritorious — would never be able to survive a defendant’s assertion of qualified immunity.” 93 F. 3d, at 847.
The different views expressed in those five opinions attest to the importance of both the underlying issue and a correct understanding of the relationship between our holding in Harlow v. Fitzgerald, 457 U. S. 800 (1982), and the plaintiff’s burden when his or her entitlement to relief depends on proof of an improper motive. Despite the relative unimportance of the facts of this particular ease, we therefore decided to grant certiorari. 520 U. S. 1273 (1997).
1 — I HH
The Court of Appeals’ requirement of clear and convincing evidence of improper motive is that court’s latest effort to address a potentially serious problem: Because an official’s state of mind is “easy to allege and hard to disprove,” insubstantial claims that turn on improper intent may be less amenable to summary disposition than other types of claims against government officials. 93 F. 3d, at 816, 821. This category of claims therefore implicates obvious concerns with the social costs of subjecting public officials to discovery and trial, as well as liability for damages. The other Courts of Appeals have also grappled with this problem, but none has adopted a heightened burden of proof. See id., at 851-852, n. 7 (Edwards, C. J., concurring in judgment) (citing eases).
The new rule established in this ease is not limited to suits by prisoners against local officials, but applies to all classes of plaintiffs bringing damages actions against any government official, whether federal, state, or local. See Butz v. Economou, 438 U. S. 478, 500-504 (1978). The heightened burden of proof applies, moreover, to the wide array of different federal law claims for which an official’s motive is a necessary element, such as claims of race and gender discrimination in violation of the Equal Protection Clause, cruel and unusual punishment in violation of the Eighth Amendment, and termination of employment based on political affiliation in violation of the First Amendment, as well as retaliation for the exercise of free speech or other constitutional rights. A bare majority of the Court of Appeals regarded this sweeping rule as a necessary corollary to our opinion in Harlow.
There is, of course, an important difference between the holding in a ease and the reasoning that supports that holding. We shall, therefore, begin by explaining why our holding in Harlow does not resolve the issue presented in this case — indeed, it does not even address any question concerning the plaintiff’s affirmative case. We shall then consider whether the reasoning in that opinion nevertheless supports the conclusion reached by the Court of Appeals.
Harlow’s Specific Holding
In 1968, A. Ernest Fitzgerald testified before a congressional subcommittee about technical difficulties and excessive costs incurred in the development of a new transport plane. His testimony was widely reported and evidently embarrassed his superiors in the Department of Defense. In 1970, his job as a management analyst with the Department of the Air Force was eliminated in a “departmental reorganization and reduction in force.” Nixon v. Fitzgerald, 457 U. S. 731, 733 (1982). After the conclusion of extended proceedings before the Civil Service Commission in 1973, Fitzgerald filed suit against the President of the United States and some of his aides alleging that they had eliminated his job in retaliation for his testimony. He sought damages on both statutory grounds and “in a direct action under the Constitution.” Id., at 748. When his charges were reviewed in this Court, we considered the defendants’ claims to immunity in two separate opinions. In Nixon v. Fitzgerald, we held that a former President is entitled to absolute immunity from damages liability predicated on conduct within the scope of his official duties. Id., at 749. In Harlow v. Fitzgerald, 457 U. S. 800 (1982), we held that the senior aides and advisers of the President were not entitled to absolute immunity, id., at 808-813, but instead were protected by a “qualified immunity standard that would permit the defeat of insubstantial claims without resort to trial.” Id., at 813.
Our definition of that qualified immunity standard was informed by three propositions that had been established by earlier eases. First, in Gomez v. Toledo, 446 U. S. 635, 639-641 (1980), we held that qualified immunity is an affirmative defense and that “the burden of pleading it rests with the defendant.” Second, in Butz v. Economou, 438 U. S., at 503-504, we determined that the scope of that defense was the same in actions against state officials under 42 U. S. C. § 1983 and in actions against federal officials under the Federal Constitution, and that in both types of actions the courts are “competent to determine the appropriate level of immunity.” Third, in Scheuer v. Rhodes, 416 U. S. 232 (1974), we presumed that the defense protects all officers in the executive branch of government performing discretionary functions, id., at 245-248, but held that the presumption was rebuttable, id., at 249-250.
The actual scope of the defense had been the subject of debate within the Court in Wood v. Strickland, 420 U. S. 308 (1975), a case involving a constitutional claim against the members of a school board. A bare majority in that case concluded that the plaintiff could overcome the defense of qualified immunity in two different ways, either if (1) the defendant “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected,” or (2) “he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.” Id., at 322. In dissent, Justice Powell argued that the majority’s standard was too demanding of public officials, but his proposed standard, like the majority’s, included both an objective and a subjective component. In his view, our opinion in Scheuer had established this standard: “whether in light of the discretion and responsibilities of his office, and under all of the circumstances as they appeared at the time, the officer acted reasonably and in good faith” 420 U. S., at 330 (emphasis added).
In Harlow, the Court reached a consensus on the proper formulation of the standard for judging the defense of qualified immunity. Speaking for the Court, Justice Powell announced a single objective standard:
“Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U. S., at 817-818.
Under that standard, a defense of qualified immunity may not be rebutted by evidence that the defendant’s conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant’s subjective intent is simply irrelevant to that defense.
Our holding that “bare allegations of malice” cannot overcome the qualified immunity defense did not implicate the elements of the plaintiff’s initial burden of proving a constitutional violation. It is obvious, of course, that bare allegations of malice would not suffice to establish a constitutional claim. It is equally clear that an essential element of some constitutional claims is a charge that the defendant’s conduct was improperly motivated. For example, A. Ernest Fitzgerald’s constitutional claims against President Nixon and his aides were based on the theory that they had retaliated against him for speaking out on a matter of public concern. Our consideration of the immunity issues in both the Nixon ease and in Harlow itself assumed that Fitzgerald would be entitled to prevail but for the immunity defenses. Thus, although evidence of improper motive is irrelevant on the issue of qualified immunity, it may be an essential component of the plaintiff’s affirmative case. Our holding in Harlow, which related only to the scope of an affirmative defense, provides no support for making any change in the nature of the plaintiff’s burden of proving a constitutional violation.
Nevertheless, the en banc court’s ruling makes just such a change in the plaintiff’s cause of action. The court’s clear and convincing evidence requirement applies to the plaintiff’s showing of improper intent (a pure issue of fact), not to the separate qualified immunity question whether the official’s alleged conduct violated clearly established law, which is an “essentially legal question.” Mitchell v. Forsyth, 472 U.S. 511, 526-529 (1985); see Gomez, 446 U.S., at 640 (“[TJhis Court has never indicated that qualified immunity is relevant to the existence of the plaintiff’s cause of action”). Indeed, the court’s heightened proof standard logically should govern even if the official never asserts an immunity defense. See 93 F. 3d, at 815, 838. Such a rule is not required by the holding in Harlow.
The Reasoning in Harlow
Two reasons that are explicit in our opinion in Harlow, together with a third that is implicit in the holding, amply justified Harlow’s reformulation of the qualified immunity defense. First, there is a strong public interest in protecting public officials from the costs associated with the defense of damages actions. That interest is best served by a defense that permits insubstantial lawsuits to be quickly terminated. Second, allegations of subjective motivation might have been used to shield baseless lawsuits from summary judgment. 457 U. S., at 817-818. The objective standard, in contrast, raises questions concerning the state of the law at the time of the challenged conduct — questions that normally can be resolved on summary judgment. Third, focusing on “the objective legal reasonableness of an official’s acts,” id., at 819, avoids the unfairness of imposing liability on a defendant who “could not reasonably be expected to anticipate subsequent legal developments, nor . . . fairly be said to ‘know* that the law forbade conduct not previously identified as unlawful,” id., at 818. That unfairness may be present even when the official conduct is motivated, in part, by hostility to the plaintiff.
This last rationale of fairness does not provide any justification for the imposition of special burdens on plaintiffs who allege misconduct that was plainly unlawful when it occurred. While there is obvious unfairness in imposing liability — indeed, even in compelling the defendant to bear the burdens of discovery and trial — for engaging in conduct that was objectively reasonable when it occurred, no such unfairness can be attributed to holding one accountable for actions that he or she knew, or should have known, violated the constitutional rights of the plaintiff. Harlow itself said as much: “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Id., at 818-819; see also Butz, 438 U. S., at 506 (“[Ijt is not unfair to hold liable the official who knows or should know he is acting outside the law ...”).
The first two reasons underlying our holding in Harlow, however, would provide support for a procedural rule that makes it harder for any plaintiff, especially one whose constitutional claim requires proof of an improper motive, to survive a motion for summary judgment. But there are countervailing concerns that must be considered before concluding that the balance struck in the context of defining an affirmative defense is also appropriate when evaluating the elements of the plaintiff’s cause of action. In Harlow, we expressly noted the need for such a balance “between the evils inevitable in any available alternative.” 457 U. S., at 813-814. -We further emphasized: “In situations of abuse of office, an action for damages may offer the only realistic avenue for .vindication of constitutional guarantees.” Id., at 814. Social costs that adequately justified the elimination of the subjective component of an affirmative defense do not necessarily justify serious limitations upon “the only realistic” remedy for the violation of constitutional guarantees.
There are several reasons why we believe that here, unlike Harlow, the proper balance does not justify a judicial revision of the law to bar claims that depend on proof of an official’s motive. Initially, there is an important distinction between the “bare allegations of malice” that would have provided the basis for rebutting a qualified immunity defense under Wood v. Strickland and the allegations of intent that are essential elements of certain constitutional claims. Under Wood, the mere allegation of intent to cause any “other injury,” not just a deprivation of constitutional rights, would have permitted an open-ended inquiry into subjective motivation. 420 U. S., at 322. When intent is an element of a constitutional violation, however, the primary focus is not on any possible animus directed at the plaintiff; rather, it is more specific, such as an intent to disadvantage all members of a class that includes the plaintiff, see, e. g., Washington v. Davis, 426 U. S. 229, 239-248 (1976), or to deter public comment on a specific issue of public importance. Thus, in Harlow, hostility to the content of Fitzgerald’s testimony, rather than an intent to cause him harm, was the relevant component of the constitutional claim. In this case, proof that respondent diverted the plaintiff’s boxes because she hated him would not necessarily demonstrate that she was responding to his public comments about prison conditions, although under Wood such evidence might have rebutted the qualified immunity defense.
Moreover, existing law already prevents this more narrow element of unconstitutional motive from automatically carrying a plaintiff to trial. The immunity standard in Harlow itself eliminates all motive-based claims in which the official’s conduct did not violate clearly established law. Even when the general rule has long been clearly established (for instance, the First Amendment bars retaliation for protected speech), the substantive legal doctrine on which the plaintiff relies may facilitate summary judgment in two different ways. First, there may he doubt as to the illegality of the defendant’s particular conduct (for instance, whether a plaintiff’s speech was on a matter of public concern). See generally Anderson v. Creighton, 483 U. S. 635, 640-641 (1987). Second, at least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation — there must also be evidence of causation. Accordingly, when a public employee shows that protected speech was a “motivating factor” in an adverse employment decision, the employer still prevails by showing that it would have reached the same decision in the absence of the protected conduct. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977). Furthermore, various procedural mechanisms already enable trial judges to weed out baseless claims that feature a subjective element, as we explain in more detail in Part IV, infra.
Thus, unlike the subjective component of the immunity defense eliminated by Harlow, the improper intent element of various causes of action should not ordinarily preclude summary disposition of insubstantial claims. The reasoning in Harlow, like its specific holding, does not justify a rule that places a thumb on the defendant’s side of the scales when the merits of a claim that the defendant knowingly violated the law are being resolved. And, a fortiori, the policy eon-eerns underlying Harlow do not support Justice Scalia’s unprecedented proposal to immunize all officials whose conduct is “objectively valid,” regardless of improper intent, see post, at 612 (dissenting opinion).
III
In fashioning a special rule for constitutional claims that require proof of improper intent, the judges of the Court of Appeals relied almost entirely on our opinion in Harlow, and on the specific policy concerns that we identified in that opinion. As we have explained, neither that case nor those concerns warrant the wholesale change in the law that they have espoused. Without such precedential grounding, for the courts of appeals or this Court to change the burden of proof for an entire category of claims would stray far from the traditional limits on judicial authority.
Neither the text of § 1983 or any other federal statute, nor the Federal Rules of Civil Procedure, provide any support for imposing the clear and convincing burden of proof on plaintiffs either at the summary judgment stage or in the trial itself. The same might be said of the qualified immunity defense; but in Harlow, as in the series of earlier cases concerning both the absolute and the qualified immunity defenses, we were engaged in a process of adjudication that we had consistently and repeatedly viewed as appropriate for judicial decision — a process “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Imbler v. Pachtman, 424 U. S. 409, 421 (1976); see also Butz, 438 U. S., at 503-504; Wyatt v. Cole, 504 U. S. 158, 170-172 (1992) (Kennedy, J., concurring). The unprecedented change made by the Court of Appeals in this ease, however, lacks any common-law pedigree and alters the cause of action itself in a way that undermines the very purpose of § 1988 — to provide a remedy for the violation of federal rights.
In the past, we have consistently declined similar invitations to revise established rules that are separate from the qualified immunity defense. We refused to change the Federal Rules governing pleading by requiring the plaintiff to anticipate the immunity defense, Gomez, 446 U. S., at 639-640, or requiring pleadings of heightened specificity in cases alleging municipal liability, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164-169 (1993). We also declined to craft an exception to settled rules of interlocutory appellate jurisdiction and rejected the argument that the policies behind the immunity defense justify interlocutory appeals on questions of eviden-tiary sufficiency. Johnson v. Jones, 515 U. S. 304, 317-318 (1995). Our reasons for those unanimous rulings apply with equal force to the imposition of a clear and convincing burden of proof in cases alleging unconstitutional motive.
As we have noted, the Court of Appeals adopted a heightened proof standard in large part to reduce, the availability of discovery in actions that require proof of motive. To the extent that the court was concerned with this procedural issue, our'eases demonstrate that questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the rulemaking process or the legislative process. See, e. g., Leatherman, 507 U. S., at 168-169. Moreover, the Court of Appeals’ indirect effort to regulate discovery employs a blunt instrument that carries a high cost, for its rule also imposes a heightened standard of proof at trial upon plaintiffs with bona fide constitutional claims. See Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 252-255 (1986).
One particular recent action by Congress highlights our concern with judicial rulemaking to protect officials from damages actions. Both Judge Silberman’s opinion below and a brief filed in this Court by 84 States, Guam, and the Virgin Islands suggest that new substantive or procedural rules are warranted because of the very large number of civil rights actions filed by prison inmates. See 93 F. 3d, at 830, 838; Brief for State of Missouri et al. as Amici Curiae 12. Arguably, such cases deserve special attention because many of them are plainly frivolous and some may be motivated more by a desire to obtain a “holiday in court,” than by a realistic expectation of tangible relief.
Even assuming that a perceived problem with suits by inmates could justify the creation of new rules by federal judges, Congress has already fashioned special rules to cover these cases. The Prison Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321, enacted in April 1996, contains provisions that should discourage prisoners from filing claims that are unlikely to succeed. Among the many new changes relating to civil suits, the statute requires all inmates to pay filing fees;' denies informa pauperis status to prisoners with three or more prior “strikes” (dismissals because a filing is frivolous, malicious, or fails to state a claim upon which relief may be granted) unless the prisoner is “under imminent danger of serious physical injury,” § 804(d); bars suits for mental or emotional injury unless there is a prior showing of physical injury; limits attorney’s fees; directs district courts to screen prisoners’ complaints before docketing and authorizes the court on its own motion to dismiss “frivolous,” “malicious,” or meritless actions; permits the revocation of good time credits for federal prisoners who file malicious or false claims; and encourages hearings by telecommunication or in prison facilities to make it unnecessary for inmate plaintiffs to leave prison for pretrial proceedings. See 28 U
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Thomas O. ROBINSON, Jr. and Aleida Robinson, Defendants-Appellants.
No. 82-5366.
United States Court of Appeals, Sixth Circuit.
Argued May 4, 1983.
Decided May 25, 1988.
Bart Durham, Nashville, Term., Joseph Dalton, argued, for defendants-appellants.
Joe B. Brown, U.S. Atty., Nashville, Tenn., Robert J. Washko, argued, Joel M. Gershowitz, Washington, D.C., for plaintiff-appellee.
Before KEITH and WELLFORD, Circuit Judges, and COHN, District Judge.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.
PER CURIAM:
On September 7, 1983 the conviction of defendant Thomas O. Robinson was reversed by this Court, 716 F.2d 1095 (6th Cir.1983). On March 4, 1985 the Supreme Court granted a petition for a writ of cer-tiorari, 470 U.S. 1025, 105 S.Ct. 1387, 84 L.Ed.2d 778 (1985), vacated the judgment and remanded the cause for further consideration in light of United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). On July 9, 1986 this Court reaffirmed its prior decision, 794 F.2d 1132 (6th Cir.1986). Thereafter, on February 23, 1987 the Supreme Court granted a petition for a writ of certiorari, — U.S. -, 107 S.Ct. 1282, 94 L.Ed.2d 141 (1987), and on February 24, 1988 reversed this Court’s decision and remanded the cause for further proceedings in conformity with its opinion. — U.S. -, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988). In conformity with the decision of the Supreme Court the conviction of defendant Thomas O. Robinson is AFFIRMED.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_genresp1
|
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.
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.
CITY TRUST COMPANY, Executor of the Will of Frederick A. Lockwood, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
No. 938, Docket 74-1036.
United States Court of Appeals, Second Circuit.
Argued May 14, 1974.
Decided May 17, 1974.
Louis Ciccarello, Norwalk, Conn. (Lovejoy, Cuneo & Curtis, Norwalk, Conn., on the brief), for plaintiff-appellee.
Donald H. Olsen, Atty., Tax Div., Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Garry R. Allen, Attys., Tax Div., Dept, of Justice, Washington, D. C., on the brief, Stewart Jones, U. S. Atty. for the District of Connecticut, of counsel), for defendant-appellant.
Before KAUFMAN, Chief Judge, and HAYS and OAKES, Circuit Judges.
IRVING R. KAUFMAN, Chief Judge:
The appeal before us presents the single, narrow question whether the remainder interest bequeathed to charity under the will of Frederick A. Lockwood, deceased, is an allowable, charitable deduction for estate tax purposes, 26 U.S.C. § 2055. The court below responded in the affirmative, and accordingly entered judgment for the taxpayer in the amount of $197,497.53. Since we find, however, that the language of the will provides no objective standard to govern the trustee’s power to invade corpus for the benefit of Lockwood’s widow, the life beneficiary, we reverse.
Lockwood died a resident of Norwalk, Connecticut on May 21, 1966. His will was admitted to probate in the Probate Court for the District of Norwalk, and appellee City Trust Company was duly qualified as executor. Article 3 of the will established a trust, the income from which was to benefit Lockwood’s widow during her lifetime, and also to benefit his sister and certain relatives in the event his sister survived his widow. Upon the death of the survivor the trust was to cease, with fifty percent of the remainder to be paid to certain charities.
During Mrs. Lockwood’s life tenancy, the trustee could invade corpus for her benefit in accordance with the following provision of the will:
My trustee may, in its absolute and unhampered discretion, pay so much of the principal of this trust as it may deem to be necessary for the proper care, comfort, welfare and happiness of my wife. It is my desire that my wife may occupy her own home and live in the manner to which she has been accustomed in our life together so long as she desires to do so, and that she shall have from my estate at least Five Hundred Dollars ($500.00) a month, from the date of my death, with payments to begin as soon after my death as is practicable, for her own personal spending money and for whatever she may desire, after the payment of all of her necessary expenses. I direct my executor and trustee to begin to make regular monthly payments to my wife on account of the income which is due or will become due to her as soon after my death as it is practicable to do so. (emphasis added)
The district court construed this language as establishing the widow’s customary standard of living as an objective determinant to limit the trustee’s power of invasion. To be sure, this standard finds mention, but that objectivity is totally lost among such subjective factors as provision for her “happiness,” for “whatever she may desire,” and for monthly payments of “at least $500.00 . . . after the payment of all of her necessary expenses.” With a guideline so pregnant with subjective considerations, the size of the charitable bequest is simply not, as it must be for deductibility, “presently ascertainable.” See Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 69 S.Ct. 35, 93 L.Ed. 259 (1949); Merchants National Bank of Boston v. Comm’r., 320 U.S. 256, 64 S.Ct. 108, 88 L.Ed. 35 (1943); Treas. Reg. § 20.2055-2(a) (1958). And compare Seubert v. Shaughnessy, 233 F.2d 134, 137 (2d Cir. 1956) with Hartford National Bank & Trust Co. v. United States, 467 F.2d 782, 785 (2d Cir. 1972). Thus, the language in issue, read in its entirety, makes clear that the decedent intended his trustee to prefer his wife’s desires at all times over the needs of the charitable remaindermen. Accordingly, the taxpayer, we hold, can effectuate that wish only by foregoing its charitable deduction.
We note, finally, with some surprise, the Government’s suggestion — an afterthought perhaps for it first appeared in the Government’s reply brief —that we remand “for consideration whether taxpayer is entitled to an additional estate tax deduction for the legal expenses incurred by it in defending this appeal.” Since the Government had earlier entered into a stipulation with taxpayer assuring the allowance of an estate tax deduction for reasonable attorney’s fees “in connection with this litigation,” we believe it is bound by this agreement. See also Treas.Reg. § 20.-2053-3(C)(2) (1958). The district court is instructed to retain jurisdiction to compute reasonable attorney’s fees, in the event the parties are unable to agree on the sum.
. Since Lockwood died on May 21, 1966, we need not concern ourselves here with the substantial amendment of 26 U.S.C. § 2055 by the Tax Reform Act of 1969, 83 Stat. 560-561. As applicable to gifts and transfers made before December 31, 1969, Section 2055 stated in relevant part:
(a) In general. — For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate the amount of all bequests, legacies, devises, or transfers (including the interest which falls into any such bequest, legacy, devise, transfer, as a result of an irrevocable disclaimer of a bequest, legacy, devise, transfer, or power, if the disclaimer is made before the date prescribed for the filing of the estate tax return)
(2) to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation;
. This matter was initially heard by a United States Magistrate, who filed a memorandum decision on April 30, 1973. Judge Newman entered judgment on July 30, 1973.
. This amount was bequeathed to the following charities: The First Congregational Church on the Green, Norwalk, Connecticut (10%), Yale University (5%), Young Men’s Christian Association of Norwalk (5%), Langdon Hubbard Memorial Hospital, Badaxe, Michigan (10%), and The Norwalk Hospital Association, Inc. (20%). The balance of the remainder interest was to be paid to certain relatives.
. It is well settled, moreover, that where, as here, subjective standards prevail, the fact that invasion may be remote because of a widow’s frugality or her independent means, will not supply the saving grace. See Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 599, 69 S.Ct. 35, 93 L.Ed. 259 (1949); Seubert v. Shaughnessy, 233 F.2d 134, 138 (2d Cir. 1956).
. Treas.Reg. § 20.2055-2 (a) reads in pertinent part:
Remainders and similar interests. If a trust is created or property is transferred for both a charitable and a private purpose, deduction may be taken of the value of the charitable beneficial interest only insofar as that interest is presently ascertainable, and hence severable from the noncharitable interest.
. Connecticut law, of course, governs our construction of the will. And, City Trust maintains that the courts of Connecticut would restrict the exercise of the trustee’s discretion to an objective standard in order to protect the interests of the remainder-man. It is clear, however, that where the will establishes no such standard, the courts of Connecticut will not imply one. See Connecticut Bank and Trust Co. v. Lyman, 148 Conn. 273, 170 A.2d 130 (1961).
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_concur
|
1
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court.
THE IDEFJORD. BLUMENTHAL IMPORT CORPORATION v. DEN NORSKE AMERIKALINJE A/S.
No. 397.
Circuit Court of Appeals, Second Circuit.
Aug. 9, 1940.
Writ of Certiorari Denied Nov. 25, 1940.
See 61 S.Ct. 175, 85 L.Ed.-.
Martin Detels, of New York City (Big-ham, Englar, Jones & Houston and James N. Senecal, all of New York City, on the brief), for libelant-appellant.
Wharton Poor, of New York City •(Haight, Griffin, Deming & Gardner and James McKown, Jr., all of New York City, on the brief), for claimant-appellee.
Before SWAN, CLARK, and PATTERSON, Circuit Judges.
CLARK, Circuit Judge.
This appeal raises the question of liability of a forwarding steamship carrier, under a through bill of lading, for damage by reason of rain and spray to a cargo of wool, owned by libelant and stowed on deck of the steamer. The district court exonerated the carrier on the ground that such on-deck stowage had been agreed to by representatives of the shipper and owner of the goods and was proper under the circumstances. Libelant denies that it as owner ever consented, and rests its basic claim of error in the decision on the ground that a “clean” bill of lading negotiated to innocent purchasers does not permit of such a change from the terms of the original contract of carriage.
In December, 1936, and January, 1937, libelant, a New York importing concern, had purchased 321 bales of wool from one Zariffa, in Cairo, Egypt, by cable exchanges. Terms were C. & F., and libel-ant, immediately on contracting for the purchase, opened a letter of credit in favor of Zariffa at London banks through American banking corporations. The banks were instructed to honor Zariffa’s drafts with bills of lading attached.
At Alexandria, Egypt, Zariffa, between January 26 and February 19, 1937, delivered the wool to D. C. Pitellos & Co. in five lots for shipment, notifying libelant by telegraph as each delivery was made. Pitellos & Co. issued five similar negotiable bills of lading stating that varying numbers of bales of wool had been shipped in apparent good order at Alexandria for delivery in New York and Philadelphia to libelant’s bankers or their assigns as consignees. Each bill provided for transshipment of the goods at Port Said by a named vessel “or other suitable steamer.” On the face of the bills, after designation of the number of bales of wool and their weight, and the directions for their transshipment at Port Said, there appeared printed in small capitals the words “Subject to All the Terms and Conditions Contained in the Bills of Lading at Present in Use By: Messrs. -.” The blank following the word “Messrs.” was on four of the bills completed with -the typewritten words “The oncarrying line of steamers”; in the fifth case a specific name had been typed in, only to be crossed out and the same phrase as in the other bills added by pen and ink. The bills also contained some twenty-seven numbered and three unnumbered conditions and reservations printed in small type, among which were separate provisions exonerating Pitellos & Co. and the carrier from all liability for delay in forwarding, and other provisions that goods forwarded were subject tó the conditions and exceptions of the forwarding or carrying conveyance. The bills did not, however, contain permission for on-deck carriage.
The goods were freighted below decks from Alexandria to Port Said. At Port Said, in some manner not disclosed by the record, the wool came under the control of Wm. Stapledon & Son, whose letterhead shows them to be agents for several steamship lines, but not including any concern participating in the transaction now before us. Stapledon & Son experienced considerable difficulty in finding a suitable ship for on-carriage to the United States. At length, toward the end of February, Staple-don & Son arranged with the Port Said & Suez Coal Co., agents for the charterers of the Idefjord, to carry'the wool on the Idef-jord, above deck, at shipper’s risk across the Mediterranean, with restowage in the hold at Casablanca. Libelant asserts a complete lack of proof as to whether or not Stapledon & Son were authorized by the shipper, Zariffa, to contract for on-deck carriage; but in the view we take of the case, Zariffa could not give such authority, had he tried to do so, unless he noted that fact on the original bills of lading before presenting them.
The wool was placed on the Idefjord’s deck, and nonnegotiable bills of lading were prepared on February 27, 1937, by the Port Said & Suez Coal Co., stating the terms of carriage and expressly providing for stowage “on deck at shippers’ risk till Casablanca only where goods must be re-stowed in hold.” It does not appear that these bills were ever issued to the shipper, though the previous correspondence and the' master’s receipts were to a similar effect. Before the Idefjord sailed, its captain was presented with, and he accepted, the “captain’s copy” of each of the five original Alexandria bills of lading. By that time four of these original bills, together with sight drafts and other documents of sale and transfer, had been presented by Zariffa to- the London banks, and Zariffa’s drafts had been honored. And, pursuant to the instructions given earlier, the last bill was so honored on March 2, 1937.
When the wool was damaged en route, libelant filed this libel against the Idefjord. The district court held that' Stapledon & Son had possessed apparent authority to bind all parties interested in the wool to a contract for stowage on deck at shipper’s risk. It also ruled that the damage to the wool had been caused solely as a result of its shipment on deck, and that the Idefjord had not been negligent in its stowage or in departing from Port Said loaded slightly above its summer marks. The Idefjord, D. C. S. D. N. Y., 31 F.Supp. 667.
We see no reason to disturb the finding that the damage was due solely to the on-deck carriage, and accept the lower court’s conclusion that the Idefjord and its crew were otherwise free from negligence. The only substantial issue remaining in the case, as we view it, concerns the privilege of the Idefjord to agree with Stapledon & Son for on-deck carriage, in view of the outstanding Alexandria bills of lading.
1. The Idefjord contends that its liability must be measured by its own contract of carriage, as expressed in the nonnegotiable bills of lading which it prepared at Port Said, with the statement “on deck at shippers’ risk” typed thereon. It is argued that the Idefjord could not have been bound by any of the terms or conditions of the original Alexandria through bills, even though the Idefjord’s captain was presented with his copies thereof. We are not disposed to accept this measure of the on-carrying steamer’s responsibility.
The Alexandria through bills of lading were negotiable, and upon their presentation with drafts to the London banks the seller received his money. This was by no means an' unusual or an unreasonable course of business.' The Idefjord, having notice of the existence and terms of these bills, knew, therefore, that commercial drafts were being or might be honored in reliance on the normal conditions of carriage set forth therein. Under these .circumstances we do not believe it was free to arrange carriage of the cargo in substantial disregard of the original agreement. The T. A. Goddard, D. C. S. D. N. Y., 12 F. 174, 182; The Cayo Mambi, 2 Cir., 62 F.2d 791, 792. The authority of Stapledon & Son to vary that agreement was not known to the Idefjord; even if Stapledon & Son had obtained the requisite permission from the seller, the Idefjord was on notice, from the terms of the bills, that the seller or order was not the consignee of the goods and therefore might not and probably did not possess valid authority to bind whosoever might be the holder of the negotiable through bills of lading. Unless a duty on the part of the on-carrying steamer to comply with the through bill be recognized, no protection can be afforded to the banks and merchants who are accustomed to rely upon such arrangements for financing imports. Nor does the imposition of this obligation confront the Idefjord with Hobson’s choice; it was free to reject the cargo if it was unable to carry it as required by the through bills of lading.
Cases which have been cited to us as containing language supporting the opposite view, such as Reid v. Fargo, 241 U.S. 544, 36 S.Ct. 712, 60 L.Ed. 1156; The Cayo Mambi, supra; Miller v. Harvey, 221 N.Y. 54, 57, 116 N.E. 781, L.R.A.1917F, 559; and Briggs v. Boston & L. R. Co., 6 Allen, Mass., 246, 83 Am.Dec. 626 — to which may be added Aberdeen Grit Co. v. Elierman’s Wilson Line, (Court of Session) [1933] Sess.Cas. 9 — are not opposed in fact. Many of these did not involve variation of the terms of negotiable through bills of lading, and in none of them does it appear that the on-carrying conveyance had notice of the terms of the original through agreement. We read The Cayo Mambi, supra, for example, as sustaining our position. Certain language in The St. Hubert, 3 Cir., 107 F. 727, 732, and in Crossan v. New York & N. E. R. Co., 149 Mass. 196, 198, 21 N.E. 367, 3 L.R.A. 766, 14 Am.St.Rep. 408, taken from its context does lend more support to claimant’s position. Limited to their facts, however, both these holdings are not pertinent to the present aspect of the case. In The St. Hubert, supra, it did not clearly appear whether or not the through bills were negotiable; in any event, certain clauses of the through bills were construed as authorizing the variations later made — a circumstance we refer to at length below. In the Crossan case, again no problem of negotiability was involved, and the on-carrier ran the risk of a lawsuit by the plaintiff if it were to refuse, as a common carrier, to carry the shipment. The Idefjord was in no such danger. It was already loaded above even its summer marks, and no rule of law compelled it to accept further on-deck cargo, even when tendered by the owners thereof. Indeed, the alternative of delay in the forwarding was provided for in the original bills.
2. The Idefjord next contends that the variation it inserted in the contract of carriage was expressly authorized by "the terms of the original Alexandria bills. It was within the contemplation of all parties that the cargo would be transshipped at Port Said, and on-carried to New York by another steamship line. The provision that the forwarding shipment should be subject to the conditions of the bills of lading at present in use by the on-carrying steamers, or some equivalent expression, such as the “regular” bills of lading of the on-carrier, seems not infrequent. It had the effect of incorporating into the original bills of lading whatever terms were to be found in the regular printed form of bill of lading used by the Idefjord, so long as those terms were not inconsistent with the original bills. Bank of California v. International Mercantile Marine Co., 2 Cir., 64 F.2d 97; The Cayo Mambi, supra; The Hibernian, [1907] P. 277 (especially the opinion of Fletcher Moulton, L. J., at 282). Cf. Scrutton on Charterparties and Bills of Lading, 14th Ed. 1939, 84. But this clause would be of no help to the Idefjord, since the provision for on-deck carriage was not part of the Idefjord’s printed form bill of lading, but was typed over the printed form for this particular contract of affreightment. It was in no sense a term of the bill of lading “at present in use by Messrs.-The oncarrying line of steamers.” Even if it were, it could hardly be said to be consistent with the original bills.
Each of the original bills also contained as a part of Clause 7 the provision that “Goods transhipped, overcarried or destined for ports where the ship does call will be forwarded at ship’s expense but subject to the conditions and exceptions of the forwarding conveyance" which was substantially repeated at the end of the bill, as follows: “This Bill of Lading shall be construed and governed by English Law, and shall apply from the time the goods are received for shipment until delivery, but always subject to the conditions and exceptions of the carrying conveyance.’' (Italics added.) This provision must be construed in the light of the earlier provision referring to the regular bills or the bills “at present in use” by the on-carrier. The earlier provision, being filled out for the occasion by typing or handwriting,. would be preferred if there were any inconsistency between them. Pacific Rice Mills v. Westfeldt Bros., 5 Cir., 31 F.2d 979; Deutschle v. Wilson, 8 Cir., 39 F.2d 406; Thomas v. Taggart, 209 U.S. 385, 389, 28 S.Ct. 519, 52 L.Ed. 845, affirming In re Jacob Berry & Co., 2 Cir., 149 F. 176. In any event, this added provision did not mean that the second carrier might propose, and the initial carrier might agree to, any sort of harsh, arbitrary conditions of carriage. We may assume it did mean that on-carriage need not accord strictly with the terms of the original bills. Aberdeen Grit Co. v. Ellerman’s Wilson Line, supra. But the most this clause can mean is that by the express provisions of the Alexandria documents, the initial carrier or its representative and the Idefjord might arrange reasonable terms for carriage of the goods, in line with the latter’s ordinary forms of contract and not fundamentally inconsistent with the original bills.
The case therefore turns on whether or not a contract for on-deck carriage at shippers’ risk was such a reasonable one under the circumstances. We do not think it was. The very essence of the' C. & F. contract was payment on presentation of a clean bill of lading. As stated above, the Idefjord was chargeable not only with notice of the existence of outstanding clean negotiable bills, but also with knowledge that such bills might be transferred to innocent parties in the regular course of trade. It is settled beyond dispute that a clean bill of lading negatives on-deck carriage of goods such as wool. The Delaware, 14 Wall. 579, 604, 20 L.Ed. 779; St. Johns N. F. Shipping Corp. v. S. A. Companhia Geral Commercial, 263 U.S. 119, 124, 44 S.Ct. 30, 68 L.Ed. 201, affirming The St. Johns N. F., 2 Cir., 280 F. 553; The Gran Canaria, D. C. S. D. N. Y., 16 F. 868, 872. It has even been held that a captain cannot issue a clean bill if the goods are stowed above deck. The Kirkhill, 4 Cir., 99 F. 575, 578. Had the on-deck provision been noted on the original bills, they might in all probability never have been honored by the London banks. By carrying the goods above deck, knowing that fact was not marked on the original bills, the Idefjord allowed a fraud to be worked upon any one who might innocently pay value for the bills. The Kirkhill, supra. The contract for on-deck stowage, therefore, cannot be deemed consistent with the original bills, or reasonably within the contemplation of the parties. It may have been true that the alternative of allowing the goods to remain in Port Said until below-deck stowage became available was fraught with danger to the value of the cargo; but such a course was authorized by the provisions in the original bills waiving liability for delay in transshipment. On-deck carriage was not.
The view we have taken does not conflict with The St. Hubert, supra, Reid v. Fargo, supra, or cases like Crossan v. New York & N. E. R. Co., supra, and Aberdeen Grit Co. v. Ellernian’s Wilson Line, supra. The reasonableness oí the variation depends on the circumstances of the particular case, and upon whether or not a clean negotiable document of title is outstanding. The variations in the decisions above cited were either of the sort ordinarily to be expected in different bills of lading or eminently reasonable under the situation confronting the on-carrying conveyance. In none of those cases was the variation one which could work harm upon an innocent third party.
3. We find necessary only brief comment on the other contentions advanced. The supposed proof that the buyer ratified the arrangement for on-deck stowage is not convincing. Knowledge was not brought home to the libelant before the ship sailed; only the shipper knew, and he appears to have done nothing except to write libelant a letter delivered in America long after the damage was done. But after all, he had stepped out of the picture and was perhaps well advised in so doing. That libelant affected insurance when it received the shipper’s letter on March 17, 1937, and did not seek to disaffirm its purchase, can have no bearing here; the bills had already been presented, and libelant’s responsibility to the holders fixed. Cf. Hansson v. Hamel & Horley, [1922] 2 A. C. 36, 46; Harper v. Hochstim, 2 Cir., 278 F. 102, 103, 20 A.L.R. 1232. And though it is claimed that the ship’s liability in a suit in rem is measured by the contract of her master, and not by an antecedent agreement with third persons, not the agents of the ship, yet the Idefjord, by accepting the cargo for carriage with knowledge of the clean through bills, made the issuer of those bills its agent. It could not then accept the goods under its own conditions,' and it was bound in rem for right delivery. The Sprott, D. C. S. D. N. Y., 70 F. 327; The Poznan, D. C. S. D. N. Y., 276 F. 418.
The decree is reversed, with directions to the district court to enter a decree in favor of libelant, and to proceed to assess the damages, by reference or otherwise as it shall determine.
Before he resigned Judge PATTERSON heard the argument of this appeal, and voted at the conference to reverse the judgment. Since his resignation he has read this opinion and authorizes us to say that it accords with his views.
Here the buyer’s bank or order, rather than the seller or order, was the named consignee. The only effect of this variation, so far as concerns ns here, was to take the seller out of the picture at once, as the carriers would then see at a glance.
Moreover, the decision of the second carrier in the Orossan. case was eminently reasonable under the circumstances. 'The only variation was in the amount of the freight to be charged; and had the shipment of horses been refused, the cost of their upkeep would probably have exceeded the amount of the. disputed freight charge. The reasonableness of the variation imposed by the Idefjord — on-deck carriage — is discussed below.
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
Answer:
|
songer_respond2_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 second 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".
ROYAL BUSINESS MACHINES, INC., Plaintiff-Appellant, v. LORRAINE CORP. and Michael L. Booher, Defendants-Appellees. LORRAINE CORP. and Michael L. Booher, Plaintiffs-Appellees, v. LITTON BUSINESS SYSTEMS, INC. and Royal Business Machines, Inc., Defendants-Appellants.
Nos. 79-1946, 79-2256.
United States Court of Appeals, Seventh Circuit.
Argued April 2, 1980.
Decided Oct. 7, 1980.
Rehearing Denied Oct. 30, 1980.
Philip B. Kurland, Chicago, 111., for Royal Business Machines and Litton Business Systems.
Morris L. Klapper, Indianapolis, Ind., for Lorraine Corp. and Michael L. Booher.
Before PELL and WOOD, Circuit Judges, and BAKER, District Judge.
The Honorable Harold A. Baker, United States District Judge for the Central District of llli-nois, is sitting by designation.
BAKER, District Judge.
This is an appeal from a judgment of the district court entered after a bench trial awarding Michael L. Booher and Lorraine Corp. (Booher) $1,171,216.16 in compensatory and punitive damages against Litton Business Systems, Inc. and Royal Business Machines, Inc. (Royal). The judgment further awarded Booher attorneys’ fees of $156,800.00. It denied, for want of consideration, the recovery by Royal of a $596,-921.33 indebtedness assessed against Booher earlier in the proceedings in a summary judgment. The judgment also granted Royal a set-off of $12,020.00 for an unpaid balance due on computer typewriters.
The case arose from commercial transactions extending over a period of 18 months between Royal and Booher in which Royal sold and Booher purchased 114 RBC I and 14 RBC II plain paper copying machines. In mid-August 1976, Booher filed suit against Royal in the Indiana courts claiming breach of warranties and fraud. On September 1, 1976, Royal sued Booher on his financing agreements in the district court and also removed the state litigation to the district court where the cases were consolidated.
The issues in the cases arise under Indiana common law and under the U.C.C. as adopted in Indiana, Ind.Code § 26-1-2-102 et seq.- (1976). The contentions urged by Royal on appeal are that:
(1) substantial evidence does not support the findings that Royal made certain express warranties or that it breached any express warranty and, as a matter of law, no warranties were made; and
(2) substantial evidence does not support the findings that Royal breached the implied warranties of merchantability and fitness for a particular purpose; and
(3) substantial evidence does not support the finding that Booher made a timely revocation of acceptance of the goods sold; and
(4) substantial evidence does not support the findings upon which the awards of compensatory damages were made and that certain awards constituted a double recovery; and
(5) substantial evidence does not support the findings upon which the awards of punitive damages were made.
We reverse and remand for a new trial on the grounds set forth in this opinion. EXPRESS WARRANTIES
We first address the question whether substantial evidence on the record supports the district court’s findings that Royal made and breached express warranties to Booher. The trial judge found that Royal Business Machines made and breached the following express warranties:
(1) that the RBC Model I and II machines and their component parts were of high quality;
(2) that experience and testing had shown that frequency of repairs was very low on such machines and would remain so;
(3) that replacement parts were readily available;
(4) that the cost of maintenance for each RBC machine and cost of supplies was and would remain low, no more than Vfc cent per copy;
(5) that the RBC machines had been extensively tested and were ready to be marketed;
(6) that experience and reasonable projections had shown that the purchase of the RBC machines by Mr. Booher and Lorraine Corporation and the leasing of the same to customers would return substantial profits to Booher and Lorraine;
(7) that the machines were safe and could not cause fires; and
(8) that service calls were and would be required for the RBC Model II machine on the average of every 7,000 to 9,000 copies, including preventive maintenance calls.
Substantial evidence supports the court’s findings as to Numbers 5, 7, 8, and the maintenance aspect of Number 4, but, as a matter of law, Numbers 1, 2, 3, 6, and the cost of supplies portion of Number 4 cannot be considered express warranties.
Paraphrasing U.C.C. § 2-313 as adopted in Indiana, an express warranty is made up of the following elements: (a) an affirmation of fact or promise, (b) that relates to the goods, and (c) becomes a part of the basis of the bargain between the parties. When each of these three elements is present, a warranty is created that the goods shall conform to the affirmation of fact or to the promise.
The decisive test for whether a given representation is a warranty or merely an expression of the seller’s opinion is whether the seller asserts a fact of which the buyer is ignorant or merely states an opinion or judgment on a matter of which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment. Weiss v. Rockwell Mfg. Co., 9 Ill. App.3d 906, 293 N.E.2d 375 (1977), citing Keller v. Flynn, 346 Ill.App. 499, 105 N.E.2d 532, 536 (1952); General Supply & Equipment Co. v. Phillips, 490 S.W.2d 913 (Tex. Civ.App.1972). General statements to the effect that goods are “the best,” Thompson Farms, Inc. v. Corno Feed Products, Ind.App. —, 366 N.E.2d 3 (1977), or are “of good quality,” Olin — Mathieson Chemical Corp. v. Moushon, 93 Ill.App.2d 280, 235 N.E.2d 263 (1968), or will “last a lifetime” and be “in perfect condition,” Performance Motors, Inc. v. Allen, 280 N.C. 385, 186 S.E.2d 161 (1972), are generally regarded as expressions of the seller’s opinion or “the puffing of his wares” and do not create an express warranty.
No express warranty was created by Royal’s affirmation that both RBC machine models and their component parts were of high quality. This was a statement of the seller’s opinion, the kind of “puffing” to be expected in any sales transaction, rather than a positive averment of fact describing a product’s capabilities to which an express warranty could attach. Thompson Farms, Inc. v. Corno Feed Products, supra; Keller v. Flynn, supra.
Similarly, the representations by Royal that experience and testing had shown that the frequency of repair was “very low” and would remain so lack the specificity of an affirmation of fact upon which a warranty could be predicated. These representations were statements of the seller’s opinion.
The statement that replacement parts were readily available is an assertion of fact, but it is not a fact that relates to the goods sold as required by Ind.Code § 26-l-2-313(l)(a) and is not an express warranty to which the goods were to conform. Neither is the statement about the future costs of supplies being Ve cent per copy an assertion of fact that relates to the goods sold, so the statement cannot constitute the basis of an express warranty.
It was also erroneous to find that an express warranty was created by Royal’s assurances to Booher that purchase of the RBC machines would bring him substantial profits. Such a representation does not describe the goods within the meaning of U.C.C. § 2-313(l)(b), nor is the representation an affirmation of fact relating to the goods under U.C.C. § 2-313(l)(a). It is merely sales talk and the expression of the seller’s opinion. See Regal Motor Products v. Bender, 102 Ohio App. 447, 139 N.E.2d 463, 465 (1956) (representation that goods were “readily saleable” and that the demand for them would create a market was not a warranty). See also Conant v. Terre Haute National State Bank, 121 Ind. 323, 22 N.E. 250, 251 (1889); Harness v. Horne, 20 Ind.App. 134, 50 N.E. 395, 397 (1898).
On the other hand, the assertion that the machines could not cause fires is an assertion of fact relating to the goods, and substantial evidence in the record supports the trial judge’s findings that the assertion was made by Royal to Booher. The same may be said for the assertion that the machines were tested and ready to be marketed. See Bemidji Sales Barn v. Chatfield, 312 Minn. 11, 250 N.W.2d 185 (1977) (seller’s representation that cattle “had been vaccinated for shipping fever and were ready for the farm” constituted an express warranty). See generally R. Anderson, Uniform Commercial Code § 2-313:36 (2d ed. 1970) (author asserts that seller who sells with seal of approval of a third person, e. g., a testing laboratory, makes an express warranty that the product has been tested and approved and is liable if the product was in fact not approved).^ The record supports the district court’s finding that Royal represented that the machines had been tested.
As for findings 8 and the maintenance portion of Number 4, Royal’s argument that those statements relate to predictions for the future and cannot qualify as warranties is unpersuasive. An expression of future capacity or performance can constitute an express warranty. In Teter v. Schultz, 110 Ind.App. 541, 39 N.E.2d 802, 804 (1942), the Indiana courts held that a seller’s statement that dairy cows would give six gallons of milk per day was an affirmation of fact by the seller relating to the goods. It was not a statement of value nor was it merely a statement of the seller’s opinion. The Indiana courts have also found that an express warranty was created by a seller’s representation that a windmill was capable of furnishing power to grind 20 to 30 bushels of grain per hour in a moderate wind and with a very light wind would pump an abundance of water. Smith v. Borden, 160 Ind. 233, 66 N.E. 681 (1903). Further, in General Supply and Equipment Co. v. Phillips, supra, the Texas courts upheld the following express warranties made by a seller of roof panels: (1) that tests show no deterioration in 5 years of normal use; (2) that the roofing panels won’t turn black or discolor ... even after years of exposure; and (3) that the panels will not burn, rot, rust, or mildew. Snow's Laundry and Dry Cleaning v. Georgia Power Co., 61 Ga.App. 402, 6 S.E.2d 159 (1959), impliedly recognized that a warranty as to future gas consumption following installation of gas equipment was possible. In holding that no warranty was created in that particular case, the Georgia court noted: “The statements made by Spencer were denominated by him as estimates, nowhere did he warrant or guarantee that the gas consumption would not exceed $230.50 per month.” 61 Ga.App. at 405, 6 S.E.2d at 162. See Matlack, Inc. v. Butler Mfg. Co., 253 F.Supp. 972 (E.D.Pa.1966).
Whether a seller affirmed a fact or made a promise amounting to a warranty is a question of fact reserved for the trier of fact. General Supply and Equip. Co. v. Phillips, supra. Substantial evidence in the record supports the finding that Royal made the assertion to Booher that maintenance cost for the machine would run lh cent per copy and that this assertion was not an estimate but an assertion of a fact of performance capability.
Finding Number 8, that service calls on the RBC II would be required every 7,000 to 9,000 copies, relates to performance capability and could constitute the basis of an express warranty. There is substantial evidence in the record to support the finding that this assertion was also made.
While substantial evidence supports the trial court’s findings as to the making of those four affirmations of fact or promises, the district court failed to make the further finding that they became part of the basis of the bargain. Ind.Code § 26-1-2-313(1) (1976). While Royal may have made such affirmations to Booher, the question of his knowledge or reliance is another matter.
This case is complicated by the fact that it involved a series of sales transactions between the same parties over approximately an 18-month period and concerned two different machines. The situations of the parties, their knowledge and reliance, may be expected to change in light of their experience during that time. An affirmation of fact which the buyer from his experience knows to be untrue cannot form a part of the basis of the bargain. City Machine & Mfg. Co. v. A. & A. Machinery Corp., 4 UCCRS 461 (E.D.N.Y.1967). See generally R. Anderson, Uniform Commercial Code, § 22-313:18 (2d ed. 1970). Therefore, as to each purchase, Booher’s expanding knowledge of the capacities of the copying machines would have to be considered in deciding whether Royal’s representations were part of the basis of the bargain. The same representations that could have constituted an express warranty early in the series of transactions might not have qualified as an express warranty in a later transaction if the buyer had acquired independent knowledge as to the fact asserted.
The trial court did not indicate that it considered whether the warranties could exist and apply to each transaction in the series. Such an analysis is crucial to a just determination. Its absence renders the district court’s findings insufficient on the issue of the breach of express warranties.
Since a retrial on the questions of the breach of express warranties and the extent of damages is necessary, we offer the following observations. The court must consider whether the machines were defective upon delivery. Breach occurs only if the goods are defective upon delivery and not if the goods later become defective through abuse or neglect. Chisholm v. J. R. Simplot Co., 94 Idaho 628, 495 P.2d 1113 (1972).
In considering the promise relating to the cost of maintenance, the district court should determine at what stage Booher’s own knowledge and experience prevented him from blindly relying on the representations of Royal. A similar analysis is needed in examining the representation concerning fire hazard in the RBC I machines. The court also should determine when that representation was made. If not made until February 1975, the representation could not have been the basis for sales made prior to that date.
FRAUD AND MISREPRESENTATION
The district court found that beginning in April or May of 1974 and continuing throughout most of 1975, Royal, by and through its agents and employees acting in the course and scope of their employment, persuaded Booher to buy RBC I and RBC II copiers by knowingly making material oral misrepresentations which were relied upon by Booher to his injury.
Under Indiana law, the essential elements of actionable fraud are representations, falsity, scienter, deception, and injury. Middelkamp v. Hanewich, 147 Ind. App. 561, 263 N.E.2d 189 (1970). A fraud action must be predicated upon statements of existing facts, not promises to perform in the future. Conant v. Terre Haute Nat’l State Bank, 121 Ind. 323, 22 N.E. 250, 251 (1889). Nor do expressions of opinion qualify as fraudulent misrepresentations. The district court made no specific findings as to which of the alleged representations it relied upon in finding fraud. If the court held all eight to be fraudulent misrepresentations, the court erred as to Numbers 1, 2, and 6 because, as discussed above, these were merely expressions of the seller’s opinion rather than statements of material fact upon which a fraud action could be based. Numbers 3, 4, 5, 7, and 8, on the other hand, readily qualify as material factual representations.
The specific findings of the district court with regard to scienter connected to findings 3, 4, 5 (as it applied to the RBC II), 7, and 8 are upheld by the record. State of mind is a question to be determined, if at all possible, by the trier of fact.
The trial court, however, is silent on the remaining question, that of deception or reasonable reliance by Booher on the representations in the various transactions. Gonderman v. State Exchange Bank, Roann, 166 Ind.App. 181, 189-90, 334 N.E.2d 724 (1975). This issue is virtually identical to the basis of the bargain question remanded under the express warranty theory.
The district court’s finding of fraud, therefore, must be set aside, and the cause remanded for retrial on the questions of the specific misrepresentations relied upon by Booher in each transaction and the reasonableness of that reliance.
With regard to rescission as a remedy for fraud, rescission would be available only for those specific sales to which fraud attached. Wolfeld v. Hanika, 95 Ind.App. 44, 179 N.E. 178 (1932).
IMPLIED WARRANTIES
The district court found that Royal breached the implied warranties of merchantability and of fitness for a particular purpose. We cannot agree that the record supports the court’s findings.
A warranty of merchantability is implied by law in any sale where the seller is a merchant of the goods. To be merchantable, goods must, inter alia, pass without objection in the trade under the contract description, be of fair average quality, and be fit for the ordinary purposes for which such goods are used. Ind.Code § 26-1-2-314 (1976). They must “conform to ordinary standards, and ... be of the same average grade, quality and value as similar goods sold under similar circumstances.” Jones v. Abriani, — Ind.App. —, 350 N.E.2d 635, 645 (1976), citing Woodruff v. Clark County Farm Bureau Coop. Ass’n, 153 Ind.App. 31, 286 N.E.2d 188 (1972). It was Booher’s burden to prove that the copying machines were not merchantable. Mullet v. Emme, 144 Ind. App. 638, 248 N.E.2d 178 (1969); McMeekin v. Gimble Bros. Inc., 223 F.Supp. 896 (W.D. Pa.1963). Booher failed to satisfy his burden of proof as to standards in the trade for either the RBC I or RBC II machine. No evidence supports the trial court’s findings of a breach of the implied warranty of merchantability.
An implied warranty of fitness for a particular purpose arises where a seller has reason to know a particular purpose for which the goods are required and the buyer relies on the seller’s skill or judgment to select or furnish suitable goods. Ind.Code § 26-1-2-315 (1976). The court found that Royal knew the particular purpose for which all the RBC machines were to be used and, in fact, that Royal had taken affirmative steps to persuade Booher to become its dealer and that occasionally its employees even accompanied Booher on calls to customers. See Thompson Farms, Inc. v. Corno Feed Products, supra.
The district court, however, failed to distinguish between implied warranties on the RBC I and on the RBC II machines. Nor did the court differentiate among the different transactions involving the two machines. On remand the district court should make further findings on Booher’s actual reliance on Royal’s skill or judgment in each purchase of the RBC I and RBC II machines. We view it as most unlikely that a dealer who now concedes himself to be an expert in the field of plain paper copiers did not at some point, as his experience with the machines increased, rely on his own judgment in making purchases.
We are troubled by one further aspect of the district court’s rulings. It is the law that a plaintiff may not recover for breach of express or implied warranty “where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible and it is just as reasonable and probable that the injury was the result of one cause or the other . . . . ” Republic Corp. v. Procedyne Corp., 401 F.Supp. 1061, 1070 (S.D.N.Y.1975). Accord, Chisholm v. J. R. Simplot Co., supra. Royal argues that the evidence demonstrates that Booher’s modifications of the machines and lack of maintenance were the cause of the damages claimed. The district court found as to both machines that “certain modifications were made which were necessitated by machine defects or by parts shortages all of which were suggested by representatives of Royal-Litton.” On remand, the district court should clarify its holding. Is the district court holding that Royal is estopped from arguing modification as a defense? Or, in the alternative, has the court found breach of warranties to be the sole cause of damages?
We reject Royal’s argument that the implied warranties have been limited or disclaimed. Such a disclaimer must be clear, conspicuous, conscionable, and consciously bargained for, and, in the case of an implied warranty of fitness for a particular purpose, the disclaimer must be in writing. Ind.Code § 26-1-2-316(2) (1976); See also Ind.Code § 26-l-2-317(c) (1976); Woodruff v. Clark County Farm Bureau Coop. Ass’n, 153 Ind.App. 31, 286 N.E.2d 188 (1972).
REVOCATION OF ACCEPTANCE
The district court found that Booher made a timely revocation of acceptance of both the RBC I and the RBC II machines. We disagree.
The U.C.C. provides that a buyer who has accepted goods may revoke his acceptance when the goods are non-conforming and their value is impaired and “the goods were accepted without knowledge of the nonconformity or acceptance occurred with the reasonable assumption that the defect would be cured,” Ind.Code § 26-1-2-608(1) (1976), and “the revocation occurred within a reasonable time and before any substantial change in the condition of the goods,” Ind.Code § 26-1-2-608(2) (1976).
Regarding the RBC I machines, the district court found that Booher accepted the machines without discovering the latent defects, including the fire hazard defect, which did not become apparent until the machines were in use. The district court further found (1) that Royal assured Booher that the machines were not defective and/or would not catch fire, (2) that Booher revoked acceptance of the RBC I machines within a reasonable time after discovery was made that fires were indeed possible, and (3) that revocation took place before any substantial change had occurred to the machines except such changes as were caused or necessitated by defects in the equipment itself and by the shortages of Royal replacement parts.
Booher purchased his first RBC I in June 1974. He purchased additional machines through December of 1975. The district court found that it was not until the fall of 1976 that Booher received first-hand confirmation of “open flame” fires in the machines and that in February 1975, Booher had asked Royal about fire hazard and had been assured that there was no danger of fire. The revocation of acceptance of the goods occurred on December 3, 1976, three months after the commencement of this litigation.
The evidence is uncontradicted that Boo-her had complaints from customers as early as February 4, 1975 that “burn jams” occurred in the RBC I. Those complaints recurred during the two-year period Boo-her was operating the Royal franchise and must have put him on notice of a problem inherent in the RBC I. The other “defects” in function claimed by Booher-copy quality, electrical defects, and gross jamming problems-were also well-known from his experience with the RBC I and, as shown by the evidence, became apparent soon after Boo-her became the franchise operator.
Rule 52(a) of the Federal Rules of Civil Procedure provides that upon appellate review a district court’s “findings of fact shall not be set aside unless clearly erroneous.” In United States v. United States Gypsum Co., 33 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), the Supreme Court said: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake -has been committed.” See generally 5A Moore’s Federal Practice % 52.03(1) (1980). Where, as here, the decisions of the trial court do not appear to be based upon the credibility of the witnesses, and the underlying facts are uncontroverted, and no reason appears for not believing them, the scope of review becomes even broader. Apolskis v. Concord Life Ins. Co., 445 F.2d 31, 34 (7th Cir. 1971). Considering all the evidence in the case bearing on timeliness of revocation, we are “left with the definite and firm conviction that a mistake has been committed.” The district court’s finding that Booher’s revocation of acceptance of the RBC I machines was reasonable in time is clearly erroneous. The finding is contrary to the clear weight of the evidence which reveals that, for some two and one-half years prior to revocation, Booher had been purchasing RBC I machines with full knowledge of their operating deficiencies. Added to that, the revocation did not occur until three and one-half months after the inception of this litigation.
The same may be said for the RBC II copiers. What is a reasonable time within which to revoke acceptance of goods depends upon the nature, purpose, and circumstances of the particular case. “Reasonable time” does not necessarily mean immediately. Trailmobile Div. of Pullman, Inc. v. Jones, 118 Ga.App. 472, 164 S.E.2d 346 (1968). Booher had known of the defects in the RBC II machines since approximately August of 1974. The evidence reveals, however, that Royal continually made promises to cure the RBC II defects and in April of 1976 replaced nine of Booher’s oldest RBC II machines with nine new RBC II machines. On June 30, 1976, Royal modified the remaining five RBC II machines that had not been replaced. A seller’s repeated assurances to cure can extend the time within which revocation is reasonable. Jones v. Abriani, supra. However, it was some seven months after the replacement of the nine RBC II machines that Booher finally revoked acceptance. If the defects had not been cured, that must have been known to Booher long before December 3, 1976. The trial court’s finding that revocation of acceptance of the RBC II machines was timely was in error. Heibel v. United States Air Conditioning Corp., 206 Minn. 288, 288 N.W. 393 (1939).
Since the remedy of revocation is not available to Booher, on rehearing the district court may reinstitute the summary judgment, which was previously vacated, awarding Royal the $596,921.33 unpaid balance on the purchase price of the copying machines.
PUNITIVE DAMAGES
The district court awarded punitive damages in the sum of $83,512.80 to Booher and $376,492.32 to Lorraine Corp., for a total of $460,005.12. Royal argues strongly that no valid ground exists in law or in fact for the imposition of punitive damages.
Generally, Indiana follows the rule that punitive damages ordinarily are not awarded in cases involving a breach of contract. Monte Carlo, Inc. v. Wilcox, — Ind.App. —, 390 N.E.2d 673 (1979). However, in Vernon Fire & Casualty Ins. Co. v. Sharp, 264 Ind. 599, 349 N.E.2d 173 (1976), the Indiana Supreme Court held that punitive damages may be awarded “where the conduct of the breaching party not only amounts to a breach of the contract, but also independently establishes the elements of a common-law tort such as fraud.” Id. at 180. Alternatively, the court continued, punitive damages may be awarded in the absence of an independent tort if “it appears from the evidence as a whole that a serious wrong, tortious in nature, has been committed, but the wrong does not conveniently fit the confines of a pre-determined tort . . . [and] that the public interest will be served by the deterrent effect punitive damages will have upon future conduct of the wrongdoer and parties similarly situated.” Id. This policy has been applied in a series of cases following Vernon Fire. Photovest Corp. v. Fotomat Corp., 606 F.2d 704 (7th Cir. 1979); First Fed. Sav. & Loan Ass’n of Indianapolis v. Mudgett, — Ind. App. —, 397 N.E.2d 1002 (1979); Sandock v. F. D. Borkholder Co., —Ind.App. —, 396 N.E.2d 955 (1979); United Farm Bureau Family Life Ins. v. Fultz, — Ind.App. —, 375 N.E.2d 601 (1978); State Farm Mut. Auto. Ins. Co. v. Shuman, — Ind.App. —, 370 N.E.2d 941 (1977); Hibschman Pontiac, Inc. v. Batchelor, 266 Ind. 310, 362 N.E.2d 845 (1977); Joseph Schlitz Co. v. Central Beverage Co., — Ind.App.—, 359 N.E.2d 566 (1977).
The district court does not specify which aspect of the Vernon Fire test the court relied upon in awarding punitive damages. The court awarded punitive damages against Royal “for the found willful tor-tious misconduct.” If the award of punitive damages was based on fraud, then the award must be reconsidered along with the issue of fraud as discussed earlier in this opinion. Under a fraud theory, punitive damages can be awarded only for those specific transactions which constitute actionable fraud.
Vernon Fire, however, makes it clear that, as an alternative, an award of punitive damages can be supported by tortious conduct other than actionable fraud. State Farm Mut. Auto. Ins. Co. v. Shuman, supra. Absent fraud, there are two prerequisites to recovery: (1) the commission of a serious wrong, tortious in nature; and (2) the public interest must be served by the award. The Indiana courts have interpreted conduct “tortious in nature” to include an act committed with a fraudulent state of mind, First Fed. Sav. & Loan Ass’n of Indianapolis v. Mudgett, supra, or in bad faith, Jones v. Abriani, supra, even though all the elements of actionable fraud are not proved.
In this case, conduct which could constitute a breach of contract might also be tortious in nature, Monte Carlo, Inc. v. Wilcox, supra, and an award of exemplary damages might serve the public interest by deterring others from like conduct. But see Owen Co. Farm Bureau Coop. v. Waeger, 73 Ind.Dec. 482 (Ind.Ct.App.1980) (breach did not rise to level of oppression, fraud, or malice). If the district court’s award of punitive damages is based on the second aspect of Vernon Fire, the award must be reconsidered together with the issues of breach of express and implied warranties as discussed earlier in this opinion. Punitive damages could only be awarded for those transactions constituting a breach of contract.
Royal argues that a statutory authorization of attorneys’ fees, Ind.Code § 26-1-2-721 (1976) precludes an award of punitive damages. Johnson v. Tyler, 277 N.W.2d 617 (Iowa 1979), and Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979), cited by Royal to support its argument, are inapposite. They deal with situations providing for statutory treble damages where an additional allowance of punitive damages would work a double punishment. Treble damages are punitive in nature. Attorneys’ fees are compensatory. The comments accompanying Ind.Code § 26-1-2-721 state: “The purpose of this section is to add the statutory remedies to the ordinary remedies.” It seems evident that Ind.Code § 26-1-2-721 does not extinguish the common law right to recover punitive damages in a fraud action,
ATTORNEYS’ FEES
Booher has asked for reasonable attorneys’ fees in defending this appeal. Attorneys’ fees on appeal may be awarded to an appellee where the judgment is affirmed on appeal. Marshall v. Reeves, 262 Ind. 403, 316 N.E.2d 828 (1974); Willsey v. Hartman, 150 Ind.App. 485, 276
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_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.
Norman L. LONGVAL, Petitioner, Appellant, v. Lawrence R. MEACHUM, et al., Respondents, Appellees.
No. 80-1503.
United States Court of Appeals, First Circuit.
Argued Oct. 4, 1982.
Decided Nov. 24, 1982.
John Leubsdorf, Boston, Mass., Professor of Law, Court appointed counsel, for petitioner, appellant.
Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Division, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for respondents, appellees.
Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.
BAILEY ALDRICH, Senior Circuit Judge.
The Supreme Court, on petition for cer-tiorari in this habeas corpus proceeding, vacated the judgment resulting from our earlier opinion, Longval v. Meachum, 651 F.2d 818, (1st Cir.1981), and remanded for further consideration in the light of Goodwin v. United States, - U.S. -, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). Following remand, we called for briefs and heard oral argument. Unhappily, we think that because of a collateral remark in our opinion, seized upon by respondents, the issue in this case may have been misunderstood by the Court.
In respondents’ petition for certiorari a given ground was,
“The court further held that since the trial judge’s participation in plea bargaining raises the ‘possible appearance of vindictiveness’ the case need be remanded for sentencing by a judge other than the one who presided at trial.” (Emphasis suppl.)
In point of fact, this is not a plea bargaining case. The respondents had no basis for so indicating except that we quoted from a plea bargaining case in support of our conclusions. Rather, this is a case where there had been no bargaining, and the trial court, sua sponte, informed the defendant that if he did not follow its advice to bargain and plead, it “might be disposed to impose a substantial sentence” if the jury convicted him.
Concededly it is true that we spoke once in terms of “a possible appearance of vindictiveness,” which, standing alone, might be misinterpreted. A fair account, however, would have noted that our meaning was what that appearance led to, viz., “a reasonable apprehension of vindictiveness,” the phrase used in Blackledge v. Perry, 1974, 417 U.S. 21, at 28, 94 S.Ct. 2098, at 2102, 40 L.Ed.2d 628, and which we quoted three times. The substance of our opinion was that the trial judge’s apparent attitude, whatever his actual intent, had unconstitutionally created this apprehension, and that this was in no way dissipated by the sentences thereafter imposed. We fully accept the Court’s guidance in Goodwin that recovery on the basis of a reasonable apprehension of vindictiveness also requires that the situation be one in which, in general, there is a “reasonable likelihood of vindictiveness,” and we reaffirm our conclusion that this was such a situation.
The undisputed facts are that near the close of the prosecution’s case the trial judge addressed defense counsel essentially as follows.
“Mr. Primason, the evidence in this case as it is coming in is very serious — robbery of a drug store; taking [i.e. theft of] drugs, use of a shot gun. I am wondering if you and the Commonwealth have had any discussion regarding a plea [of guilty]. I strongly suggest that you ask your client to consider a plea, because, if the jury returns a verdict of guilty, I might be disposed to impose a substantial prison sentence. You know that I am capable of doing that because you know of the sentences in a previous trial.”
The judge had not been asked by defense counsel for his views, nor were they interjected into any plea bargaining conference between defense counsel and the prosecutor. Rather, they came out of the air, and ended with a recitation of the judge’s power and disposition that could well be read as “plea or else.” Whatever his actual state of mind, or purpose, we regard the judge’s mid-trial interjections as susceptible of appearing from the defendant’s perspective to be an attempt to coerce him to plead. Defendant refused and stood trial.
After conviction, the judge sentenced defendant to thirty-two to forty years in the state penitentiary on the armed robbery charges, and concurrent terms of eight to ten years on the counts for gun carrying and assault, to be served from and after the sentence for armed robbery. Thus, defendant was sentenced to a total of forty to fifty years. The assault sentence exceeded the statutory maximum, and both of these lesser charges were basically, in terms of conduct, included in the armed robbery count, as the Massachusetts Appellate Division essentially recognized. On appeal it reduced the principal sentence to thirty to forty years, the assault to five, and ordered all sentences to be served concurrently. This effectively cut ten years off the defendant’s sentence, but since the court was without knowledge of the judge’s remarks to counsel that are the basis of the present proceeding, we cannot regard this as rectification. In the absence of indication to the contrary, we assume that the Appellate Division includes in its consideration the sentences originally imposed.
Defendant complains of the disparity between the three-year sentence in the house of correction given his co-defendant who pleaded guilty and the lengthy prison sentence given him. The Massachusetts court justified this on the basis of a comparison of their prior records. We do not pursue this, except to note that the trial court voiced no explanation, in contrast to the practice often found appropriate because of the circumstances. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969) (quoted in United States v. Goodwin, 102 S.Ct. at 2489); United States v. Miller, 589 F.2d 1117, 1137-39 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979); United States v. Capriola, 537 F.2d 319, 320-21 (9th Cir.1976) (per curiam). What we do say is that the on-the-surface differential, and the total sentence imposed, are too great to allay a reasonable apprehension that the sentencing judge’s original remarks were unjudicial urgings to plead, and that the sentences were a retaliatory consequence of the defendant’s refusal.
That apparent judicial coercion is more serious than alleged prosecutorial coercion involved in Goodwin, we dealt with generally in our earlier opinion, and need not repeat in full. The distinction particularly important in the present case, however, is this. By hypothesis, the prosecutor and the defendant are adversaries and are expected to be at odds with one another. As pointed out in Goodwin, in the give and take of pretrial proceedings it is all too easy to call any particular undertaking a threat, even when it is not. A judge, however, is expected to be impartial, and to appear impartial. It is difficult to reconcile with impartiality a forceful recommendation to consider pleading, ending on a note of the judge’s power to impose a substantial sentence if not complied with.
We would distinguish this case from one in which a judge merely inquired of counsel whether he had considered plea bargaining. This language was far different. We would add, if respondent wishes to speak in terms of plea bargaining participation, that the judge in effect participated in plea bargaining in advance. If plea bargaining had ensued, his volunteered attitude would clearly seem to have strengthened the prosecutor’s hand. Advice to plea bargain “or else,” would not gladden the heart of bargaining defense counsel.
A rule which required a defendant to make a prima facie case of actual vindictiveness on the part of a judge, which the Massachusetts court seemingly adopted, Commonwealth v. Longval, 378 Mass. 246, 390 N.E.2d 1117, 1120 (1979), even if counsel were willing to suffer the reputation with the bench that this would be likely to give him, would impose an almost impossible burden. We believe the present case, and our decision, fall squarely within the Court’s reasoning in Goodwin, rather than without it. The writ of habeas corpus shall issue unless within sixty days the defendant is resentenced before a Massachusetts Superior Court justice other than the one who presided at his trial.
. United States v. Werker, 535 F.2d 198, 203 (2d Cir.), cert. denied, 429 U.S. 926, 97 S.Ct. 330, 50 L.Ed.2d 296 (1976). See 651 F.2d at 821.
. The Commonwealth argues that the fact that the defendant continued with the trial and took the stand shows that there was no coercion. This is beside the point; it does not negate the appearance of an attempt, nor dispel the possibility of a retaliatory sentence. The fact is, although we do not rest our decision on it, that defendant, on the stand, may well have felt coerced, as he freely admitted his participation in the robbery. His unfavorable testimony was that his co-defendant was not involved, a contention the jury ultimately agreed with.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
In re CRYSTAL PALACE GAMBLING HALL, INC., Debtor. CRYSTAL PALACE GAMBLING HALL, INC., Frank P. Silver, Donald Brown, Frank Meyer, Appellants and Cross-Appellees, v. MARK TWAIN INDUSTRIES, INC., Appellee and Cross-Appellant.
Nos. 85-1614, 85-1663.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 8, 1986.
Decided May 20, 1987.
Eric Zubel, Las Vegas, Nev., for appellants and cross-appellees.
Dawn Coda-Wagener, Los Angeles, Cal., for appellee and cross-appellant.
Before NORRIS, BEEZER and BRUNETTI, Circuit Judges.
PER CURIAM:
I
FACTS AND PROCEEDINGS BELOW
On January 16, 1980, the Crystal Palace Gambling Hall filed a Chapter 11 bankruptcy petition. On May 25, 1984, Crystal Palace and Mark Twain Industries (MTI) entered into an agreement whereby Crystal Palace would sell the casino to MTI. Pursuant to this purchase agreement, MTI deposited $450,000 into an escrow account on June 18 of that year.
Crystal Palace had filed a plan of reorganization on May 31, 1984, and on October 1 the district court ordered that the proposed plan be confirmed. In that order, the court stated that “[t]he effective date of the plan shall be the date the sale to Mark Twain Industries closes, which sale shall close not less than thirty (30) days from the entry of this Order.” For some reason, the district court’s order of October 1 was not entered until October 17.
On October 29, counsel for Crystal Palace approached the district court ex parte, without notice to MTI, and sought modification of the district court’s order. As a result, the district judge entered a second order modifying the terms of the first order from “not less than thirty days” to “[the] sale shall close by October 31,1984.” That order was entered on November 1 (the day after the order required the sale to close). On October 30, counsel for MTI filed a motion to extend the time for closing the sale until November 10.
On November 8, MTI petitioned for an expungement of the court’s October 29 order, and sought an order confirming the plan of reorganization. The court granted the motion, expunged its second order, and ordered the sale to occur “on or before ... November 16, 1984.”
Between November 9 and November 19, the debtor filed numerous motions. However, none of these motions sought clarification or reconsideration of the district court’s order that required the sale to close on November 16. On November 13; MTI deposited the purchase price ($4,500,000) with the escrow holder.
On November 15, Crystal Palace filed a notice of appeal from the court order that required sale on November 16. This appeal was entitled In re Crystal Palace Gambling Hall, Inc., Debtor, Crystal Palace Gambling Hall, Inc. vs. Mark Twain Industries, No. 84-2735. Crystal Palace did not seek a stay of the district court’s order pending appeal. On December 27, MTI filed a motion for dismissal of the appeal, and on February 21, 1985, the appeal was dismissed.
On November 16, 1984, the district court appointed a special master for the purpose of considering (1) MTI’s motion for an order to show cause why the debtor should not be held in contempt, (2) Crystal Palace’s motion requiring MTI to forfeit the earnest money deposit, and (3) Crystal Palace’s modified plan of reorganization.
On November 27, Crystal Palace signed an agreement with Margaret Elardi to sell the casino to her. Also on November 27, the special master filed his report and recommendations. Both parties filed objections to the special master’s report, and on December 31, the district judge issued an order as to the objections of both parties. In that order, the court generally adopted the master’s recommendations, and directed the appellants to immediately execute all the closing documents necessary to sell the casino to MTI. Contrary to the master’s recommendation, the judge found both Crystal Palace and its shareholders in contempt of court for failure to close the sale in conformity with his prior order. The judge ordered the debtor and shareholders to pay MTI “any reasonable amounts expended by it for interest on monies borrowed from November 16, 1984, until appropriate documents of sale are properly executed by the debtor ... in compliance with the present order.” The judge also expressed concern that he had been misled into signing the October 29, 1984 order.
The sale to MTI was finally concluded on January 11, 1985. On January 30, Crystal Palace filed a notice of appeal from the district court’s December 31 order, and on February 8, the shareholders joined in that appeal. On February 8, MTI also noticed its cross-appeal of the district court’s December 31 order.
II
JURISDICTION
As we have stated previously, “[w]here the contempt proceeding is the sole proceeding before the district court, an order of civil contempt finding a party in contempt of a prior final judgment and imposing sanctions is a final decision under section 1291.” Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983). The order is final for purposes of section 1291 “[e]ven though the size of the sanction imposed by the order depends upon the duration of contumacious behavior occurring after entry of the contempt order, ....” Id. Thus, the contempt order in this case is appealable. However, the filing of a timely notice of appeal is “mandatory and jurisdictional....” United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960).
MTI alleges that the shareholders did not file a timely notice of appeal. Federal Rule of Appellate Procedure 4(a) states that notice of appeal “shall be filed with the clerk of the district court within 30 days after ... entry of the ... order appealed from____” Fed.R.App.P. 4(a)(1). The order appealed from was entered December 31, 1984, and MTI argues that since notice of appeal was not filed until February 8, 1985, well past the thirty day limit, it was untimely.
Generally, an notice of appeal must be filed within thirty days. However, under the circumstances of this case, the shareholders had fourteen days after Crystal Palace filed its appeal to file their notice of appeal. Federal Rule of Appellate Procedure 4(a)(3) states:
f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.
The clear language of this rule indicates that this fourteen day period applies to “any other party” to a lawsuit. It does not distinguish between appellants and appellees. This was the viewpoint of those who drafted the rule. The 1966 committee note to this subsection states:
[t]he added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.
Leading commentators have stated that this rule “permits any party to the action ... such added time as the sentence affords.” 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 204.11[1] (2d ed. 1986) (emphasis added); see also id. at ¶ 203.25[3].
The appeal by the shareholders was filed within eight days of the initial appeal by Crystal Palace. Thus, even though thirty days had passed since the final judgment, the shareholders’ appeal was timely, pursuant to Fed.R.App.P. 4(a)(3). Thus, we have jurisdiction over the shareholders’ appeal.
Ill
STANDARD OF REVIEW
“A court has wide latitude in determining whether there has been contemptuous defiance of its order,” and we review a lower court’s decision to impose sanctions for contempt for an abuse of discretion. Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir.1984). Under this standard, a contempt order will not be reversed unless we have a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached after it weighed the relevant factors. Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985).
IV
ANALYSIS
A. The District Court’s Standard of Review.
The appellants argue that the district court must accept the master’s findings of fact unless they are clearly erroneous. We agree. See Fed.R.Civ.P. 53(e)(2); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2614 (1971); Leader Clothing Company v. Fidelity and Casualty Company of New York, 237 F.2d 7, 11 (10th Cir.1956). The district court accepted all of the master’s findings of fact and conclusions of law except for the master’s conclusions concerning contempt.
Congress has determined that the power to hold a party in contempt is a discretionary power vested in the court whose order has been violated. “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority ... as ... disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.G. § 401 (1982). The appellants in this case did not violate an order of the master, they violated an order of the district court. Thus, the discretion to hold the appellants in contempt remained in the district court and the master’s recommendations on that subject could not bind the court. The judge did not abuse his discretion by disregarding the master’s conclusion and imposing sanctions for contempt on the appellants.
B. The District Court’s Contempt Order.
Appellants argue that their actions were not contemptuous. They state that (1) exceptional circumstances justified their actions, and (2) MTI had not closed escrow within the thirty days provided for in the plan of reorganization.
1.
The appellants explain that they obtained a commitment from Margaret Elardi to purchase their assets for $690,000 more than MTI had agreed to pay and that these “exceptional circumstances” justified their decision not to transfer the property.
The special master seemed to agree with this “exceptional circumstances” analysis. He stated that “[t]he action of the Debtor in Possession in failing to conclude the sale was motivated by a desire to gain additional monies for its equity security holders and as of this time does not appear to be contemptuous in nature.”
The district court expressed doubts that these “exceptional circumstances” justified disobedience to a court order, particularly in light of its order filed November 8th requiring the sale to close on or before November 16,1984. We agree with the district court. The “exceptional circumstances” offered by the appellants are irrelevant. If a person disobeys a specific and definite court order, he may properly be adjudged in contempt. Shuffler v. Heritage Bank, 720 F.2d 1141, 1146 (9th Cir.1983). “A person fails to act as ordered by the court when he fails to take ‘all the reasonable steps within [his] power to insure compliance with the [court’s] order[ ].’ ” Id. at 1146-47 (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977)). It does not matter what the intent of the appellants was when they disobeyed the court’s order. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984). Moreover, the contempt need not be willful. Perry v. O’Donnell, 759 F.2d 702, 704-06 (9th Cir.1985). Even though “[t]he sole question is whether a party complied with the district court’s order,” a party can escape contempt by demonstrating that he is unable to comply. Mazzola, 716 F.2d at 1240. That was not the case here. If the appellants believed that the district court incorrectly issued an order, their remedy was to appeal and request a stay pending the appeal. Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975); see also Chapman v. Pacific Telephone and Telegraph Co., 613 F.2d 193, 197 (9th Cir.1979). “Absent a stay, ‘all orders and judgments of courts must be complied with promptly.’ ” Mazzola, 716 F.2d at 1240, (quoting Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975)). Although both Crystal Palace and the shareholders appealed, no stay was obtained. A party cannot disobey a court order and later argue that there were “exceptional circumstances” for doing so. This proposed “good faith” exception to the requirement of obedience to a court order has no basis in law, and we reject the invitation to create such an exception. The appellants were not justified by exceptional circumstances in disobeying the court’s order.
2.
The appellants argue that they were “amply justified” in not executing the necessary documents, since MTI did not close escrow within the thirty days provided for in the plan of reorganization. They assert that MTI should have forfeited the earnest money deposit of $450,000.
This argument is without merit. The sale closed in a timely manner. Both the special master and the district judge found that the parties intended that the running of the thirty-day closing period should begin with the entry of the confirmation order as opposed to the issuance of the confirmation order. This finding is strongly supported by the record.
However, whether the sale closed in a timely manner, whether there were inconsistencies in the documents, whether the district court was correct, or whether the appellants thought they were justified in their legal position, all became irrelevant when the court filed its November 8th order. That order, in no uncertain terms, required Crystal Palace to execute the necessary documents by November 16. Thus, as of November 8, Crystal Palace had no legal justification for not executing the necessary documents. Again, the appellants’ only recourse was to appeal and obtain a stay pending the outcome of that appeal. No stay was obtained and the documents should have been executed. The appellants’ unreasonable subjective beliefs do not provide legal justification for their disobedience of a court order.
C. The District Court’s Actions,
Appellants also argue that the actions of the court caused confusion and that this confusion was the reason they did not comply with the order. In support of this proposition, Crystal Palace points out that the district judge referred two of its motions to the special master, and therefore, the judge apparently felt that these motions were of sufficient importance and complexity to require this reference. We reject the notion, that by referring these issues to a special master, the court somehow implied that the appellants’ motions were meritorious.
Furthermore, the appellants’ actions betray their allegations of confusion. After the district court ordered Crystal Palace to transfer the documents, Crystal Palace filed numerous motions, but not one of those motions requested either clarification or reconsideration of the court’s order. Nor did the appellants seek a stay while they challenged the court’s order on appeal.
Crystal Palace argues that “[wjhile a party is not free to disregard a lawful order of a court, a party may seek clarification of that order.” At the time the appellants decided not to execute the necessary documents, the district court’s order needed no clarification. The November 8th order explicitly stated that the sale must occur “on or before ... November 16, 1984.” If there had been any ambiguity or uncertainty earlier, that ambiguity ceased to exist when the November 8th court order was issued.
D. Sanctions.
The district court properly concluded that the appellants were in contempt of court. As a sanction, the court ordered that the debtor and its shareholders pay MTI “any reasonable amounts expended by it for interest on monies borrowed from November 16, 1984, until appropriate documents of sale are properly executed by the debtor ... in compliance with the present order.”
In its cross-appeal, MTI argues that the sanctions should include (1) $43,000 in loan fees, (2) the lost use of the purchase price for a two month period, (3) $80,000 in legal fees for “warding off appellants’ various legal attacks on the first order[,j” (4) legal costs in defending the appeal from the district court’s third order, “which this court found meritless and dismissed,” and (5) the two months of lost proceeds it would have otherwise obtained from the operation of the casino.
As we have stated previously, a sanction for “[cjivil contempt is characterized by the court’s desire to ... compensate the contemnor’s adversary for the injuries which result from the noncompliance.” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir.1983). However, an award to an opposing party is limited by that party’s actual loss. United States v. United Mine Workers of America, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); Shuffler, 720 F.2d at 1148; Falstaff, 702 F.2d at 779.
We affirm the imposition of sanctions. The award of interest on monies borrowed by MTI to consummate the purchase of the casino was not an abuse of discretion. See Shuffler v. Heritage Bank, 720 F.2d 1141, 1148-49 (9th Cir.1983). However, the amount and nature of the sanctions imposed by the court are unclear.
We remand this case to the district court for a determination of the amount of the sanctions to be awarded and whether the sanctions shall include the loan fees, the lost use of the purchase price, attorney fees or the proceeds earned by the casino.
V
CRYSTAL PALACE’S MOTION TO STRIKE AND MOTION TO RECONSIDER
The appellants have filed a motion to strike portions of the Appellee’s answering brief. They state that a number of matters discussed in that brief are not properly before this court and should not be raised in the answering brief. They further argue that if they made procedural errors, MTI should have objected pursuant to Fed. R.App.P. 27(a) and (b).
Ninth Circuit Rule 13 requires that an opening brief recite the procedural posture of the case, what justification a party has for seeking attorney fees, and whether an appeal is properly before this court. The appellee’s brief did not go beyond the scope of this rule. The motion to strike is denied.
The appellants also urge us to reconsider our August 25 order, in which we denied their motion for an extension of time to file a reply brief. That motion is now moot. However, we note that the reply brief was due August 11, but the order gave the appellants until September 2 to file their brief. Thus, although the order denied an extension of time, the appellants actually received a twenty-two day extension.
VI
ATTORNEY FEES AND COSTS ON APPEAL
MTI argues that it is entitled to compensation for attorneys’ fees, costs, damages and other expenses incurred as a result of this appeal pursuant to Federal Rule of Appellate Procedure 38. Pursuant to Rule 38, a party may be entitled to attorney fees if an appeal is frivolous. We conclude that this appeal is not frivolous, and deny the award of attorney fees. Each party will bear its own costs.
VII
CONCLUSION
The district court properly found the appellants in contempt, and its ruling was not an abuse of discretion. We remand to the district court so it can determine the amount and nature of the sanctions to be imposed on Crystal Palace and its shareholders. The appellants’ motion to strike is denied, and the motion to reconsider is moot.
AFFIRMED AND REMANDED WITH INSTRUCTIONS. EACH PARTY WILL BEAR ITS OWN COSTS.
. Crystal Palace filed the following motions: motion for forfeiture of earnest money deposit, motion to extend time, motion to disqualify counsel, motion to continue hearing to take place on November 16, debtor’s objection to application for order compelling sale of property, motion for an order modifying the debtor’s plan of reorganization, debtor’s modified plan of reorganization, ex parte application for an order requiring MTI to forfeit earnest money deposit, debtor’s first modified plan of reorganization, brief re: rejection of postpetition executory contract.
. Even though the agreement with Elardi was not signed until November 27, the special master found that it was concluded on November 6.
. Although there is a conflict in the terms of several of the documents as to when this thirty-day closing period was supposed to begin running, three of the four documents that discuss this matter: paragraph 4 of the purchase agreement, the confirmation order (both of which were drafted by counsel for Crystal Palace), and article III of the plan of reorganization, all indicate that the transaction was supposed to occur within a period of time after entry of the order as opposed to issuance of the order,
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SMITH & WESSON, Respondent.
No. 7459.
United States Court of Appeals, First Circuit.
April 21, 1970.
Baruch A. Fellner, Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Leonard M. Wagman, Washington, D. C., were on brief, for petitioner.
Martin E. Skoler, Springfield, Mass., with whom Glazier & Skoler, Springfield, Mass., was on brief, for respondent.
Before ALDRICH, Chief Judge, COFFIN, Circuit Judge, and BOWNES, District Judge.
PER CURIAM.
This is a petition to enforce an NLRB order based on violations of section 8(a) (3) and (1) of the act, 29 U.S.C. § 158 (a) (3) and (1). The Board found that the company had engaged in certain threats of reprisals and other related anti-union conduct and that it subsequently discharged one William Dau-plaise because of his union activity. The company’s opposition in this court is based on the claim that the evidence did not warrant the findings.
For reasons not necessary to detail, the single contradicted incident of supervisor Haines’ initially telling Dauplaise that he would be “sorry” if the union lost, does not greatly impress us. In addition, the trial examiner’s finding it unlikely that leadman Parker would joke when he saw the word “Subpoena” on a paper seems, in all candor, unrealistic. Nor are we enthusiastic about holding the company for an isolated remark by an employee of so little authority as Parker. If not jocose, his statement not to pay attention to Board subpoenas seems self-generated, and unauthorized by any general company conduct or policy.
If this were all there were to the Board’s case we would find it of dubious strength. However, this inclination evaporates when we come to the principal issue. The Board’s finding with respect to Dauplaise’s termination is so strongly supported that we cannot regard the company’s resistance thereto as anything but frivolous. In spite of much protesting, there is not only no evidence that any previous employee had been terminated because he made his request for extended leave orally rather than in writing, but no solid reason appears for such rigidity. This is not even a case where there was a question as to the oral request. On the contrary, all witnesses not only agree that it was made, but that the employee was told he could have his job back as soon as he had his doctor’s certificate. Furthermore, on the company’s own evidence, the rule was not self-operating, and might be waived. Finally, apart from anti-union animus, there was a strong reason why Dauplaise should be retained, rather than let go.
This, of course, is the guts of the case. Some penalty should attach to taking up our time with such a meritless contention. The order will be enforced, and pursuant to FRAP 38 the Board will recover, in addition to its regular costs, the sum of $500 for expense.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
Raymond M. SCHRAMM and Diane Schramm, Appellants, v. Stanley OAKES, Midtown Motors, Inc., Cooper Oldsmobile, Inc., and Todkill Lincoln-Mercury, Inc., Appellees. Pete V. DOMENICI as Administrator for C. M. Schramm, Appellant, v. Stanley OAKES, Midtown Motors, Inc., Cooper Oldsmobile, Inc., and Todkill Lincoln-Mercury, Inc., Appellees.
Nos. 8011, 8012.
United States Court of Appeals Tenth Circuit.
Sept. 16, 1965.
Rehearing Denied Oct. 18, 1965.
Pete V. Domenici, Albuquerque, N. M. (Gino J. Matteucci & Richard C. Civerolo, Albuquerque, N. M., on the brief), for appellants.
Joseph B. Zucht, Albuquerque, N. M., for appellee, Todkill Lincoln-Mercury, Inc.
Russell Moore, Alburquerque, N. M. (W. A. Keleher, A. H. McLeod and Michael L. Keleher, Albuquerque, N. M., on the brief), for appellees, Stanley Oakes and Midtown Motors, Inc.
Gerald R. Cole, Albuquerque, N. M. (Botts, Botts & Mauney and Vance Mauney, Albuquerque, N. M., on the brief), for appellee, Cooper Oldsmobile, Inc.
Before BREITENSTEIN, HILL and SETH, Circuit Judges.
HILL, Circuit Judge.
This factually complicated case is here for a third time. On the first occasion we refused an interlocutory appeal under 28 U.S.C.A. § 1292(b). When the case came up the second time, we were compelled to remand the same for lack of an appealable order. At that time, we suggested a reconsideration of the order quashing service as to certain defendants in light of cited authorities. It is apparent that our suggestions were not followed as the appeal comes now, after a final judgment, from the order quashing service upon certain of the same original defendants. Because of the complicated facts a detailed statement of the case becomes a necessity.
In their second amended complaint, appellants (plaintiffs below) Raymond M. and Diane Schramm, father and daughter, alleged that on or about August 31, 1958, they were driving in a car owned by Raymond M. Schramm on Highway 66 near Albuquerque, New Mexico, when an automobile driven by one of the defendants who is not an appellee here, Shukri ‘M’ El-Khatib, a citizen of Jordan, negligently collided with the automobile in which they were riding causing personal injuries to them and property damage to the automobile. The following parties were joined as defendants, Murdock-Salyer Chevrolet Company, Red Gilmore, and Cooper Oldsmobile, Inc., (all residents of Oklahoma), Stanley Oakes, Midtown Motors, . Inc., Garth Cameron, B. A. Todkill and Tod-kill Lincoln-Mercury, Inc., (all residents of Nevada), on the basis that Shukri ‘M’ El-Khatib was driving the vehicle involved in the collision as an employee, agent and chauffeur for the defendants, all of whom, were owners of the automobile or had an interest therein. Appellants sought service of process on the out of state residents through'service on the Secretary of State of New Mexico, pursuant to 64-24-3 and 64-24-4, New Mexico Statutes Annotated, 1953.
All of the appellees here and the other defendants except Shukri ‘M’ El-Khatib entered special appearances for the purpose of moving to quash the service of process on them on the grounds generally that Shukri ‘M’ El-Khatib was not their respective agent, employee or servant but an independent contractor and further that none of them were owners of the automobile which he was driving. Also accompanying Red Gilmore’s motion to quash was Exhibit A, which is a copy of his agreement with Shukri ‘M’ El-Khatib concerning the transportation of the automobile which was involved in the collision. Affidavits were filed by each of the defendants in support of the motions to quash. In addition, at appellant’s request, depositions were taken of Stanley Oakes, B. A. Todkill, who was president of Todkill Lincoln-Mercury, Inc., and Shukri ‘M’ El-Khatib. An affidavit by Stanley Oakes revealed the following. That formerly he was in the used car business in Nevada under the name of Midtown Motors, Inc., and Stan Oakes, but that prior to the date of the collision he sold his business to Bert Tod-kill and became employed by Todkill; that one Garth Cameron contacted Bert Todkill and requested that Todkill obtain a Chevrolet Station Wagon for Cameron to buy; that Todkill told Oakes to see if he could locate such a car for Cameron; that Oakes contacted Cooper Oldsmobile, Inc., in Yukon, Oklahoma, and was informed that it could obtain an automobile like the one sought by Oakes; that one Red Gilmore made all the necessary arrangements with Shukri ‘M’ El-Khatib to drive the car from Norman, Oklahoma, to Las Vegas, Nevada; and that Oakes was at all times in the employ of Todkill Lincoln-Mereury, Inc., and that Midtown Motors, Inc., had nothing to do with the transaction. In his deposition he admitted that Midtown Motors, Inc., is still in existence even though most, if not all, of its assets now belong to Todkill Lincoln-Mercury, Inc., and that he now works for that company managing the lot he used to own selling cars on a salary plus commission basis; that he merely told Cooper Oldsmobile, Inc., to ship the Chevrolet Station Wagon to Las Vegas and he gave no instructions on how to deliver it but only to get it to Todkill Lincoln-Mereury, Inc., in Las Vegas. He also said he paid for the wrecked automobile with a check drawn by Todkill Lincoln-Mercury, Inc., to either him or Midtown Motors, Inc., and that he executed an installment note for the amount of the automobile thereafter to Todkill Lincoln-Mercury, Inc.
B. A. Todkill by affidavit and deposition revealed that he was president of Todkill Lincoln-Mercury, Inc., in Las Vegas; that he never owned the 1958 Chevrolet Station Wagon that Shukri ‘M’ El-Khatib was driving; that he never had any dealings with Red Gilmore or Shukri ‘M’ El-Khatib; that the company hired Stanley Oakes; that the company was trying to procure an automobile for one Garth Cameron and that he was present when Oakes contacted Cooper Oldsmobile, Inc., in Oklahoma, but that he doesn’t remember what type of arrangements were made for payment, etc.
In behalf of Cooper Oldsmobile, Inc., in Yukon, Oklahoma, the company’s secretary-treasurer deposed that the corporate records showed that Shukri ‘M’ El-Khatib was never employed by the company; that there is no record of the company acquiring a 1958 Chevrolet Station Wagon. However, Jackie Cooper, who was president of Cooper Oldsmobile, Inc., deposed that he did receive a call from Stanley Oakes in behalf of Todkill Lincoln-Mercury, Inc., seeking a 1958 .Chevrolet Station Wagon; that Cooper located such a vehicle at Murdock-Salyer Chevrolet Company in Norman, Oklahoma, and informed Oakes of this and that Oakes then ordered the automobile- and directed Cooper to draw a draft for the purchase price on Todkill Lincoln-Mercury’s bank in Las Vegas and to deliver the car to Todkill Lincoln-Mercury, Inc., in Las Vegas. Cooper then directed Murdock-Salyer Chevrolet Company to bill said automobile to one Garth Cameron and that it would be picked up at Murdoek-Salyer’s office. Cooper then telephoned Red Gilmore in Oklahoma City and directed him to deliver the automobile to Oakes in Las Vegas. A. F. Salyer for Murdock-Salyer Chevrolet stated in his affidavit that they were paid for the automobile in question by Cooper Oldsmobile, Inc., and that they released the automobile to one Red Gilmore at direction of Cooper Oldsmobile and further that they had no relationship with Shukri ‘M’ El-Khatib.
The trial judge found after examining the pleadings, exhibits, affidavits and depositions that Murdock-Salyer Chevrolet Company, Stanley Oakes, Midtown Motors, Inc., Garth Cameron, B. A. Tod-kill, Todkill Lincoln-Mercury, Inc., and Cooper Oldsmobile, Inc., were nonresidents of New Mexico and served with process out of state; that Red Gilmore was an independent contractor and was not the authorized employee,. agent or chauffeur of any of the defendants; that the evidence may establish Shukri ‘M’ El-Khatib was the chauffeur, agent or employee of Red Gilmore; that Shukri 'M’ El-Khatib did not operate the automobile as agent, employee or chauffeur of any of the other defendants nor with their permission; and that the motions of the defendants, other than Gilmore, to quash are granted and that the motion of Gilmore to quash is overruled. At this point the interlocutory appeal was attempted which we refused to take.
With most of the defendants no longer parties to the lawsuit by virtue of the court having granted their respective motions to quash service of process, the case proceeded to trial on the merits with Red Gilmore and Shukri ‘M’ El-Khatib as the only defendants. A jury found for the plaintiffs and awarded Raymond M. Schramm $30,000 and Diane Schramm $5,000 against the defendant Red Gilmore. A default judgment was taken against Shukri ‘M’ El-Khatib in the amount of $30,000 for Raymond M. Schramm and $5,000 for Diane Schramm. Thereafter, the plaintiffs appealed to this court, alleging it was error for the trial court to have quashed service of process on the defendants because the affidavits and depositions relied on to sustain the motions created issues of fact which were the same issues necessary to be decided on the merits. Furthermore, plaintiffs urged that even if a factual determination was then proper, the affidavits and depositions clearly brought the defendants within the New Mexico Non Resident Motorist Statute. This court, however, on appeal sustained a motion to dismiss the appeal because no final judgment had been entered disposing of the claim of the plaintiffs against such defendants, supra, note 1.
In light of the opinion by this court that the trial court reconsider its order on the motions to quash, the plaintiffs filed a motion requesting the trial court to do so. Thereafter, the trial judge notified the parties that “I have concluded to leave matters exactly as they presently stand in the above cause.” The plaintiffs then filed a motion requesting the trial court to enter an order finalizing all matters theretofore ruled on, so that an appeal could be perfected.
Thereafter, in open court, the plaintiffs moved to dismiss with prejudice their causes of action against defendants Murdock-Salyer Chevrolet Company, Garth Cameron and B. A. Todkill individually for reasons other than any alleged defect of service of process, and elected to stand upon the service of process presently in effect against the defendants, Stanley Oakes, Midtown Motors, Inc., Todkill Lincoln-Mercury, Inc., and Cooper Oldsmobile, Inc., who are the appellees here. An order of dismissal was entered as to these four original defendants based on the previous ruling quashing service. From this final decree, the plaintiffs have appealed citing once again as error that: The trial court erred in quashing service of process and dismissing the complaint against the appellees here based on the pleadings, affidavits and depositions, since to do so the court made factual determinations which were the same as those required to decide the case on the merits and that even if the factual determination was proper at the time the affidavits and depositions clearly bring the appellees within the purview of the New Mexico Non Resident Motorist Statute.
Initially, we note appellees’ contentions that the issues raised by appellants now should not be considered because they failed to timely present these issues to the trial court. They cite to us a recent case from this circuit, Occidental Petroleum Corporation v. Walker, 289 F.2d 1, where the court said at page 6, “It is a well-recognized rule of frequent application that a party litigant may not sit quiet at the time action is taken in the trial court and then complain on appeal.” Rule 46 contemplates that a dissatisfied party make known to the trial court the action desired or his objection. The purpose for this rule is obviously to allow the trial court to reconsider his rulings so that the trial court may correct its own possible errors. See Fort Worth and Denver Railway Company v. Harris, 5th Cir., 230 F.2d 680. There can be no doubt that the trial court was aware of the contentions involved here. When on January 5, 1960, Judge Rogers granted appellees' motions to quash, he consented to an interlocutory appeal and the appellants attempted such appeal raising the issues now urged as error. Furthermore, when the case was appealed, this court in dismissing the appeal suggested to the trial court it reconsider its order on the motions to quash. We are satisfied that the trial court was aware of appellants’ objections to its rulings.
Turning now to appellants’ contentions, Rule 12(d) of the Federal Rules of Civil Procedure clearly contemplates a preliminary hearing and determination of jurisdictional issues in advance of trial unless the court defers such action until the time of trial. Furthermore, as there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court. Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111. Certainly the trial court may gather evidence on the question of jurisdiction by affidavits or otherwise in an effort to determine the facts as they exist, Wetmore v. Rymer, 169 U.S. 115, 18 S.Ct. 293, 42 L.Ed. 682 and KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183, and based upon the evidence so obtained, decide the jurisdictional dispute before trial. One deviation from this procedure is in the case where the issue of jurisdiction is dependent upon a decision on the merits. Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209. In that circumstance, the trial court should determine jurisdiction by proceeding to a decision on the merits. The purpose of postponing a determination upon a jurisdictional question when it is tied to the actual merits of the case is to prevent a summary decision on the merits without the ordinary incidents of a trial including the right to jury. See E. g. Wade v. Rogala, 3rd Cir., 270 F.2d 280, and Fireman’s Fund Ins. Co. v. Railway Express Agency, 6th Cir., 253 F.2d 780. We recognize that both these cases did not deal with the precise question of jurisdiction involved here but instead were concerned with the matter of jurisdictional amount necessary for a diversity suit. Yet we feel the principles to be applied in each instance are substantially similar.
In Moore’s treatise on Federal Practice he states in Vol. II, § 12.16 at page 2274, discussing Rule 12(d), “The emphasis of (d) is in the direction of hearing such defenses prior to trial. Certainly it will be advisable generally to decide such defenses as lack of jurisdiction * * * of the person * * * promptly after they are raised, and not defer them to the trial. On the other hand, where determination of the defense will involve going into the merits, the question may well be reserved until trial.” (See also the comments and cases cited in the 1964 supplement). So too in Vol. IA, Barron & Holtzoff, Federal Practice and Procedure, § 355, page 352, it is stated: “Different questions of agency for a nonresident automobile owner and validity of service on a state officer may warrant postponement of determination of the validity of service of process until trial on the merits.”
The record before us is only fragmentary and leaves many questions either in doubt or unsettled. Too, the trial court in sustaining appellees’ motions to quash, did not give us the basis of its conclusions. Based then on what we have, we are unable to say with any degree of legal certainty that the appellants could not make out a valid cause of action against one or more of the appellees. For instance, what was the relationship between Red Gilmore and the appellees here and particularly appellee Cooper Oldsmobile, Inc. If the appellants could establish that Gilmore was the servant or agent of one or more of these appellees, liability might be established. In Gilmore’s affidavit he states, “ * * * I was contacted by Cooper Motor Company * * * and requesed to furnish a driver for a 1958 Chevrolet Station Wagon to be taken to the Midtown Motors at Las Vegas, Nevada, * * Jackie Cooper of Cooper Oldsmobile, Inc., stated in one of his affidavits that, “Deponet then telephoned Red Gilmore * * * and directed him to deliver the automobile * * * to Stanley Oakes in Las Vegas, Nevada.” In Gilmore’s contract with the driver, Shukri ‘M’ El-Khatib, supra, note 6, the heading lists Midtown Motors, Inc., as owner of the car and Red Gilmore’s signature appears followed by the word agent in parenthesis. The evidence is as yet inconclusive as to who was the owner of the automobile at the time of the collision. H. K. Salyer, president of Murdock-Salyer Chevrolet Company, stated in his affidavit that his company was paid for the automobile on August 30, 1958, by Cooper Oldsmobile, Inc. Cooper Oldsmobile, Inc., was not paid until after the collision and then by a check made by Todkill Lincoln-Mercury, Inc., to Stanley Oakes, which he endorsed to Cooper Oldsmobile, Inc.
It also appears that a caravan permit was required in taking the car through the State of New Mexico but no evidence was clear concerning in whose name the permit was issued. From this it may be possible that the owner would be liable for acts even of an independent contractor where the independent contractor operates a vehicle under a highway permit or franchise granted the owner. See 8 Am.Jur., 2d § 577.
While this is not meant to be an exhaustive review of the facts which might subject appellees to service of process, it does clearly show that the possibilities exist. At least this is the type of case where appellants should have the opportunity of proving jurisdiction during the trial on the merits and not be cut off at a preliminary hearing.
Reversed and remanded with directions to proceed in accordance with the views expressed herein.
. Schramm v. Murdock-Salyer Chevrolet Company, 10 Cir., 312 F.2d 249.
. The plaintiffs originally commenced this action in the District Court for the County of Bernalillo, State of New Mexico, but the action was removed to the U.S. District Court for New Mexico upon petition of defendant Shukri ‘M’ El-Khatib.
. Also fatally injured in the collision was C. M. Schramm, a passenger in appellant’s automobile, who through her administrator filed a companion case to this one, No. 8012. The parties have stipulated on appeal that the issues in both cases are the same and that the appeal shall be binding in the companion ease.
. Defendant Shukri ‘M’ El-Khatib was physically present in the State of New Mexico.
. 64-24-3 provides:
“Nonresident owners and operators— Service of process on secretary of state in accident cases.- — The acceptance by nonresidents of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the state of New Mexico, or the operation by a nonresident, or his authorized chauffeur, or agent, of a motor vehicle on the said highways, other than under said laws, shall be deemed equivalent to an irrevocable appointment by such nonresident, binding upon his executor, administrator or personal representative, of the secretary of state of the state of New Mexico, or his successor in office, to be his true and lawful agent, upon whom may be served all lawful process in any action or proceeding against said nonresident, growing out of any accident or collision in which said motor vehicle may be involved, while same is operated in the state of New Mexico by said nonresident, or by his authorized chauffeur or agent; and said acceptance or operation of said vehicle shall be signification of his agreement that any such process against him, or his executor, administrator or personal representative, which is so served on the secretary of state shall be of the same legal force and validity as if served upon him personally, or his executor, administrator or personal representative, within the state.”
64-24-4 merely provides the procedure for accomplishing the service which need not be set forth here.
.
“Car Left 8-30-58 Date Due To Arrive 9-2-58
Deliver To Midtown Motors, Inc. — Stanley Oakes
Address 1212 So. 5th Street City Las Vegas State Nevada
Owners Name Midtown Motors, Inc.
Address Same City_ State __
Being of legal age and desirous of reaching the city of Las Yegas, State of Nevada I, the undersigned, will in no way hold said Owner responsible upon my arrival in the above mentioned city for my financial or moral support, and I am acting as an independent contractor and not as an agent or employee of above owner.
I agree to comply with all Federal, State and City driving laws and to protect this automobile or unit from damage to the best of my ability.
Further I waive all claims of injury sustained by me while driving or riding in said automobile or unit, this document releasing Midtown Motors, Inc., from any liability on my part or my heirs past now and forever.
I agree to drive this automobile or unit from the city of Norman, Oklahoma by routes 152 & 66 & 466 to the above mentioned city and state for my transportation and deliver in same condition of which time the deposit of $20.00 is to be refunded to Shukri M El-Khatib.
I agree to pay for any minor repairs or service necessary to the operation of this vehicle which are not due to my own negligence obtaining receipts for same in order to receive reimbursement from the above-named owner.
It is further agreed and understood between the above parties that title and ownership of this automobile rests with Said Owner, and that after 3 days this document is subject to conversion and I am subject to prosecution at their discretion.
In the event of any accident or major service involving this vehicle I will at once notify the above-mentioned owner of the car, giving him all details and waiting for his instructions before proceeding.
I agree to deliver this automobile to the above mentioned address within twelve (12) hours after arrival within the State of destination.
Make Ohev Style Sta. Wagon Model 58 Color_ Ser. No.
#998743
A 58 K 161945 Mtr. No. _ Lie. No. Drive Out Permit Year _ State _ Radio Yes Heater Yes Spare Yes Jack Yes Wrench Yes. Driver’s Name Shukri M El-Khatib Married Yes
**##**♦*##***
Signature (Agent) Red Gilmore
Signature (Driver) Shukri M El-Khatib
Notary_ County_ Commission _
Pickup New Mexico & Arizona Caravan Permits”
. Earlier in the state court proceedings a deposition was taken of Shukri ‘M’ El-Khatib which was a part of the record. However, it added little to the circumstances of El-Khatib’s relationship with the other defendants but was more directed toward the events surrounding the collision itself.
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_appel1_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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
Helen C. BOYD; Roger E. Boyd; Veronica Lynn Boyd, by her parents and next friends, Helen Boyd & Roger E. Boyd, Plaintiffs-Appellees, v. R.A. BULALA, M.D., Defendant-Appellant, Association of Trial Lawyers of America; Virginia Trial Lawyers Association; Distressed Parents Together; Consumer Federation of America; Medical Society of Virginia, Amici Curiae.
Helen C. BOYD; Roger E. Boyd; Veronica Lynn Boyd, by her parents and next friends, Helen Boyd & Roger E. Boyd, Plaintiffs-Appellees, v. COMMONWEALTH OF VIRGINIA; R.A. Búlala, M.D., Defendants-Appellants.
Nos. 88-2055, 88-2056.
United States Court of Appeals, Fourth Circuit.
Submitted March 27, 1990.
Decided June 12, 1990.
Phillip C. Stone, Ronald D. Hodges, Wharton, Aldhizer & Weaver, Harrison-burg, Va., A.E. Dick Howard, Charlottes-ville, Va., Mary Sue Terry, Atty. Gen., Gregory E. Lucyk, Asst. Atty. Gen., Richmond, Va., for defendants-appellants.
William O.P. Snead, III, Fairfax, Va., J. Randolph Parker, Tucker, Parker & Bes-kin, Charlottesville, Va., Rosemarie Annun-ziata, Dickstein, Shapiro & Morin, Vienna, Va., for plaintiffs-appellees.
Bill Wagner, Tampa, Fla., Jeffrey R. White, Washington, D.C., Fred D. Smith, Jr., Minor & Smith, Richmond, Va., for amici curiae The Ass’n of Trial Lawyers of America, Virginia Trial Lawyers Ass’n, Consumer Federation of America, and Distressed Parents Together.
Allen C. Goolsby, III, Patricia M. Schwarzschild, Robert Aeosta-Lewis, Timothy A. Hartin, Hunton & Williams, Richmond, Va., for amicus curiae The Medical Soc. of Virginia.
J. Joseph Curran, Jr., Atty. Gen., Judson P. Garrett, Jr., Deputy Atty. Gen., Robert A. Zarnoch, Kathryn M. Rowe, Asst. Attys. Gen., Annapolis, Md., for amicus curiae State of Md.
John R. Bolton, Asst. Atty. Gen., Robert S. Greenspan, Scott R. McIntosh, Civ. Div., U.S. Dept, of Justice, Washington, D.C., for amicus curiae U.S.
Before HALL and PHILLIPS, Circuit Judges, and WINTER, Senior Circuit Judge.
Judge Winter participated in oral argument and submission of this case back to the panel after certification to the Supreme Court of Virginia, but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d).
PER CURIAM:
This medical malpractice action returns to us after certification of several questions to the Supreme Court of Virginia. See Boyd v. Búlala, 877 F.2d 1191 (4th Cir.1989). That court recently issued an opinion answering those questions, and we are now able to decide the remaining issues in the appeal.
I
The facts of the case and the course of proceedings leading to this appeal are fully set out in our earlier opinion and in the opinion of the Supreme Court of Virginia, see Búlala v. Boyd, 389 S.E.2d 670 (Va. 1990), and need not be repeated here. A brief summary will suffice for present purposes.
This medical malpractice action was based on allegations of negligence by Dr. Búlala which resulted in the birth of Veronica Boyd with serious birth defects and injury to her mother, Helen Boyd, during the process of Veronica’s birth. The action included claims by Veronica Boyd for her personal injuries; by Helen Boyd, for her personal injury and emotional distress; by the father, Roger Boyd, for emotional distress; and by the parents jointly for Veronica’s anticipated medical expenses. Veronica and Helen Boyd’s claims were for both compensatory and punitive damages.
A jury found Dr. Búlala liable on all the claims and, in separate verdicts, made the following damage awards:
(1) For Veronica Boyd
compensatory damages $1,850,000
punitive damages $1,000,000
(2) For Helen Boyd
compensatory damages $1,575,000
punitive damages $1,000,000
(3) For Roger Boyd
(emotional distress) $1,175,000
(4)For Helen and Roger Boyd jointly
(medical expenses) $1,700,000
Total Awards $8,300,000
The district court first entered judgment on the verdicts as returned, but then reduced the judgment of each plaintiff proportionately to reflect an aggregate settlement of $650,000, which they had received in a state court action against the hospital involved. See Boyd v. Búlala, 877 F.2d 1191, 1193 n. 1 (4th Cir.1989). This appeal by Dr. Búlala followed.
Dr. Bulala’s principal contention on appeal was that the district court erred in holding that Virginia’s then statutory “cap” of $750,000 on medical malpractice awards, Va.Code Ann. § 8.01-581.15 (1984), violated both state and federal constitutional provisions and so could not be applied to limit in any way the overall recovery against him. He also challenged the district court’s rulings and instructions to the jury that under Virginia law he could be found liable to the plaintiffs for the negligence of hospital nurses on a respondeat superior basis; that the father, Roger Boyd, might recover for his emotional distress in the absence of any physical injury to himself; that Veronica might recover compensatory damages for her loss of the enjoyment of life and, on the evidence adduced, for lost earning capacity; and that the evidence warranted awards of punitive damages against him. Finally, he challenged two critical procedural rulings: that Veronica’s death after verdict but before judgment did not require converting her claim into one for wrongful death, and that her death in that interval did not require relief from the judgment which reflected awards on the basis of a much more extended life expectancy.
In our first opinion we decided several of these issues. Specifically, we held that Virginia’s $750,000 statutory cap on medical malpractice recoveries violated neither the state nor federal constitutional provisions relied on by Búlala. And we further held that under settled Virginia law and on the evidence adduced, Búlala properly could be found liable to the plaintiffs on a respondeat superior basis; that punitive damages on both Veronica’s and Helen Boyd’s claims properly could be awarded; and that Roger Boyd properly could recover for his emotional distress despite the lack of any personal injury to himself. But we thought that several further questions of Virginia law whose resolution was potentially required to decide the appeal were sufficiently unsettled to warrant their certification to the Supreme Court of Virginia to provide answers for our guidance. Accordingly, we requested that court to answer the following questions:
1. Where there are two or more plaintiffs entitled to recover damages arising from the same act or acts of medical malpractice, does § 8.01-581.15 apply individually to each plaintiff or overall to two or more such plaintiffs? If the statute does apply to all or any combination of plaintiffs’ claims, how is it to be apportioned among them?
2. Does § 8.01-581.15 apply to damages for the infliction of emotional distress arising from some act or acts of medical malpractice?
3. Does § 8.01-581.15 apply to an award of punitive damages for an act or acts of medical malpractice?
4. Does Virginia law allow recovery for the loss of enjoyment of life when death results from an act or acts of medical malpractice?
5. Does Virginia law allow Veronica Boyd to recover damages for her lost earning capacity based upon the evidence presented in this case?
6. What is the effect, under Va.Code Ann. §§ 8.01-21, 8.01-25, and 8.01-56, of Veronica Boyd’s death after verdict but before judgment in this case?
See Boyd v. Bulala, 877 F.2d 1191, 1200 (4th Cir.1989).
Accepting the certification, the Supreme Court of Virginia, in a comprehensive opinion, Búlala v. Boyd, 389 S.E.2d 670 (Va.1990), answered the questions as follows (in our paraphrase):
(1), (2), and (3). The statutory cap sets a separate limit on the total damages recoverable for “any injury” to a single “patient,” regardless of the number of claims and claimants and theories of recovery related to that injury. Accordingly, the cap applicable to any single patient’s injury covers both compensatory and punitive damage claims of the patient and any claims by others that, by substantive law, are “derivative” of the patient’s claims.
As applied to the facts found in this case, Veronica Boyd and her mother, Helen Boyd, were each “patients” of Dr. Búlala who suffered separate injuries from his negligence. On this basis, the cap applies separately as a limit upon all the damages, both compensatory and punitive, recoverable by anyone for the respective injuries of these two patients, i.e., as a $750,000 limit upon the total damages properly recoverable for Veronica Boyd’s injuries, and as a $750,000 limit upon the total damages properly recoverable for Helen Boyd’s injuries. Because both the claim of Roger Boyd for his emotional distress arising from Veronica’s injuries and the joint claim of Roger and Helen Boyd for medical expenses attributable to those injuries are “derivative” of Veronica’s claim, they are therefore subject to the cap applicable to that claim.
Where, as here, the aggregate of the damage awards subject to a separate cap exceeds the cap, reduction of the awards, in whole or part, to reach the cap level (with any consequent apportionment between claimants) should occur in the following order of reduction: first, awards based on derivative claims of others than the patient; next, punitive damage awards to the patient; last, compensatory damage awards to the patient. On this basis, because the compensatory damage awards to each of the patients, Veronica Boyd and Helen Boyd, each exceeded $750,000, all of the further awards based upon the derivative claims of Roger Boyd and of Roger and Helen Boyd jointly, and the punitive damage awards to Veronica and Helen Boyd, respectively, must be annulled in toto. The remaining compensatory awards to Veronica and Helen Boyd, respectively, must then be reduced to the $750,000 cap, less a further reduction of each by $325,-000, representing one-half of the total $650,000 realized in the earlier settlement.
(4). Virginia does not recognize as a separately compensable item of damages for personal injury the “loss of enjoyment of life.”
(5). On the evidence adduced in this case, Virginia law would not permit recovery by Veronica Boyd of damages for “lost earning capacity.”
Consequently, the district court’s submission of these to the jury as compensable items of damage in respect of Veronica Boyd’s claim was erroneous.
(6). Under Virginia law, Veronica Boyd’s death after verdict did not require converting her claim into one for wrongful death. Va.Code Ann. § 8.01-21 directly so provides, by directing that in such cases, “judgment may be entered as if [death] had not occurred.” Sections 8.01-25 and 8.01-56 are not in conflict. They deal with the situation where death occurs before verdict.
II
The Virginia court’s careful answers, which we of course fully accept, allow us now to resolve the issues reserved in our earlier opinion and fully to decide the appeal.
Resolution of the reserved issues would be flatly dictated by those answers save for one difficulty. It is that posed by the Virginia court’s advice that under Virginia law, the district court erred in allowing the jury to take into account loss of enjoyment of life and lost earning capacity in assessing Veronica Boyd’s compensatory damages. The problem is that we cannot know for sure whether the jury’s consideration of either or both of these items could have run their compensatory award above the $750,000 cap level. At $1,850,000, that award was of course over a million dollars in excess of the cap. We would therefore have to assume that more than a million dollars, an amount more than one-half of the award, was probably attributable to these two items in order to find a new trial on damages compelled. While the importance of these items, hence the weight probably attached to them by the jury, is obvious, we are yet doubtful that they could have had such a dominant impact on the total award. Whatever uneasiness we might feel on the point, however, is dispelled by the fact that over and above the compensatory award was an untainted punitive damage award of an additional $1,000,000 which could be applied to the recovery allowable under the cap. And even if we were to speculate that a new trial which yielded a reduced compensatory award would probably yield a commensurately reduced punitive award, we think the possibility that the two in combination could fail to reach the available cap level is too remote to warrant the expense and delay of a new trial on the damages issue.
Under 28 U.S.C. § 2106, we have the power and obligation, sitting in appellate review, to take whatever action is “just under the circumstances.” Here, despite the existence of legal error in the jury instructions on compensatory damages as to Veronica Boyd’s claim, we think the circumstances do not warrant requiring a new trial on that issue. Given the substantial margin — in the range of two million dollars — by which the combined compensatory and punitive damage awards exceed the statutory cap, we think it would not be just to withhold judgment limited to the much lower cap figure.
One further issue which we reserved pending the Virginia court’s response concerned the district court’s denial of Dr. Bulala’s motion under Fed.R.Civ.P. 60(b)(6) to be relieved of the judgment in favor of Veronica Boyd because of her intervening death. Dr. Bulala’s contention is that, if her claim was not required to be converted to one for wrongful death, her early death made it manifest that the jury award for her personal injuries, based as it necessarily was on the assumption of a much more extended life expectancy, was so substantially over-inflated as to provide the necessary “reason” under Rule 60(b)(6) for being relieved of the judgment. The district court denied that motion in an exercise of the broad discretion conferred by this residual relief provision of Rule 60(b). As we have recognized, "[t]he remedy provided by [this] Rule ... is extraordinary and is only to be invoked upon a showing of exceptional circumstances." Compton v. Alton Steamship Co., 608 F.2d 96, 102 (4th Cir.1979). Under all the provisions of Rule 60(b), a threshold condition for granting the relief is that the movant demonstrate that granting that relief will not in the end have been a futile gesture, by showing that she has a meritorious defense or claim. See generally 11 Wright & Miller, Federal Practice and Procedure: Civil § 2857, p. 161 (1973).
Here, essentially for the same reasons that we found the granting of a new trial because of erroneous jury instructions not warranted, i.e., that a new trial on damages would not yield damages totalling less than the cap, we think the circumstance of this claimant's early death not an exceptional one warranting relief from that judgment. We therefore conclude that the district court did not abuse its discretion in denying the motion.
III
For the foregoing reasons, we remand the action to the district court with directions to vacate its present judgment and to enter judgment in favor of Veronica Boyd in the sum of $425,000, with interest and costs, and in favor of Helen Boyd in the sum of $425,000, with interest and costs.
SO ORDERED.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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songer_state
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31
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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".
In the Matter of PARAGON SECURITIES COMPANY, a New Jersey Corporation, Paragon Securities Company of New York, a New York Corporation, Municiplex Funding, Inc., a New Jersey Corporation, Paragon Life Agency, Inc., a New Jersey Corporation, Paragon Insurance Agency, a New Jersey Corporation, Nelson Stousland School, Inc., a New Jersey Corporation, and Paragon Securities Company of Florida, a Florida Corporation, Bankrupts, Pearl Levine, Appellant.
No. 78-2127.
United States Court of Appeals, Third Circuit.
Argued Feb. 20, 1979.
Decided May 18, 1979.
Garrett M. Heher (argued), Steven R. Lane, Ann Reichelderfer, Smith, Stratton, Wise & Heher, Princeton, N. J., for appellant.
Frank J. Vecchione (argued), Crummy, DelDeo, Dolan & Purcell, Newark, N. J., for appellee.
Before ROSENN, Van DUSEN, and GARTH, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.
This appeal concerns the recurring and difficult question of ownership of negotiable securities found in the control of a stockbroker upon his insolvency. The problem arises out of the practice of brokerage houses engaged in securities trading and underwriting to carry on their extensive business activities not only with their own funds but also with borrowed money collat-eralized by securities purchased for, and fully paid by, their customers. Paragon Securities Company (“Paragon”), a New Jersey corporation, had been engaged in the business of buying and selling securities, primarily municipal bonds. Its sudden demise in August 1973 left a flurry of distraught customers’ claims to securities under Paragon’s control at the time it so ignominiously expired. See, e. g., In the Matter of Paragon Securities Co., 589 F.2d 1240 (3d Cir. 1978). Among the claims is one of Pearl Levine, a disenchanted customer of Paragon, who filed a reclamation proceeding against the trustee in bankruptcy for certain bearer bonds. The bankruptcy judge applied section 60e of the Bankruptcy Act, 11 U.S.C. § 96(e) (1976), and denied her claim. On appeal, the United States District Court for the District of New Jersey affirmed.
Levine appealed from the judgment of the district court to this court claiming that state law, not the Bankruptcy Act, should govern her claim and that under either state or federal law she is entitled to reclamation. We are constrained to disagree and we affirm the judgment of the district court.
I.
In its trading of bonds and securities, Paragon engaged Securities Processing Services (“SPS”), a New York corporation which functioned as a private clearing facility for municipal bond dealers. SPS received all of the bonds purchased by Paragon, and upon specific instructions from Paragon would either deliver the bonds to Paragon’s customers or retain them in SPS vaults in one of three accounts it maintained for Paragon.
The first account (“98” account) contained all of the major new issues which Paragon had purchased or underwritten. The “46” account was also a general inventory account, but included secondary or old market issues. The third (“124” account) was for customer safekeeping. The bonds in this account, unlike the other bonds, were tagged and identified as belonging to the specific Paragon customer who had purchased them.
In addition to serving as a private clearing house, SPS often advanced money to Paragon for purchases of bonds. As collateral for these loans, SPS held a lien interest in the securities comprising the “98” and “46” accounts. It does not appear that Paragon’s customers whose bonds were held in the general inventory accounts were aware that their bonds were being used in this manner.
Levine maintained a trading account with Paragon and traded bonds with some frequency. On February 21, 1973, she purchased $30,000 of Marion County bonds bearing an interest rate of 8V4 percent and due March 1, 1990, for a total price of $32,412.30. The purchase order provided that the bonds were to be held by Paragon. The bonds were delivered to SPS on June 6, 1973, and were placed in the general inventory account. In letters dated June 1 and July 2, Levine requested that Paragon deliver the bonds to her. Unhappily for Levine, Paragon’s failure to respond promptly to these requests led to her subsequent undoing and this litigation.
On August 1, 1973, Paragon filed a petition for voluntary dissolution in the New Jersey state court and obtained the appointment of a receiver. The following day SPS received instructions from Paragon to ship the Marion County bonds to Levine. Before the preparations for delivery could be completed, however, the receiver cancelled the instruction. On August 6, 1973, an involuntary petition in bankruptcy was filed in the United States District Court for the District of New Jersey, and on August 28 Paragon was adjudicated a bankrupt.
Upon learning of Paragon’s precarious financial position, SPS promptly moved to protect its position and sold a major portion of the bonds in the general inventory account to satisfy Paragon’s debt to SPS. Unfortunately, the bonds sold included many which had been fully paid for by Paragon’s customers but had not been delivered or transferred to the customers’ safekeeping account. SPS sold bonds having an approximate face value of $1,600,000 and only turned over to the bankruptcy trustee $670,000 worth of bonds, including $30,000 of Marion County bonds. However, customer claims against the trustee to be satisfied by these bonds aggregated $1,800,-000. Levine filed a complaint in bankruptcy court seeking reclamation of the Marion County bonds.
II.
We must first determine whether section 60e of the Bankruptcy Act, 11 U.S.C. § 96(e) (1976), is applicable. Section 60e governs the liquidation of bankrupt stockbrokers. It divides customer claimants into three classes:
(1) Cash customers who are able to specifically identify their securities in accordance with the provisions of section 60e(4). These customers are permitted reclamation of their securities.
(2) All other customers. The property of these customers constitutes a single and separate fund for the payment of these claims on a pro rata basis.
(3) General creditors. This class includes those customers whose claims cannot be fully satisfied from the single and separate fund.
A prerequisite to the applicability of section 60e is a finding that the bankrupt was a stockbroker, a term left undefined by the statute. Without providing a specific definition, the bankruptcy judge in this case concluded that the Paragon-Levine relationship was'that of stockbroker-client.
Here the bankrupt set up a trading account for the plaintiff; it traded the claimant’s bonds to satisfy other customers’ orders, as it did when it sold her New York City bonds; it received and held cash for the sole purpose of trading bonds, as it did when it sold the plaintiff’s Lake of Egypt bonds and held the money until it could purchase the Tama, Iowa bonds; it paid the plaintiff interest on the monies so held for her account. Certainly these are not the practices of a principal but those of a stockbroker, and clearly establish the bankrupt as a § 60e stockbroker for purposes of this claim.
We agree with Judge Commisa’s reasoning. We believe that a stockbroker should be defined as any person “engaged in the business of effecting [securities] transactions for the account of others.” This broad definition advances one of the congressional purposes which inspired section 60e — the elimination of prior conflicts in state law and the establishment of a uniform law nationwide. See Tepper v. Chichester, 285 F.2d 309, 311 (9th Cir. 1960); In re McMillan, Rapp & Co., 123 F.2d 428, 429-30 (3d Cir. 1941); 3 Collier on Bankruptcy, ¶¶ 60.71, 60.73 (14th ed.). This objective can only be achieved by making section 60e the exclusive remedy for stockbrokers’ bankruptcies.
Levine contends, however, that Congress could not have intended section 60e to defeat her claim if the claim were valid under state law. She argues that if New Jersey law recognizes the Marion County bonds as her property and permits reclamation, then to transfer the property to the trustee in bankruptcy under section 60e would constitute a deprivation of property without due process of law. Pursuant to the principle of avoiding constitutional adjudications, it becomes necessary for us to determine whether under New Jersey law the bonds would belong to Levine. See New York Transit Authority v. Beazer, - U.S. -, -, 99 S.Ct. 1355, 59 L.Ed.2d 507 (1979). Because we conclude that the bonds do not belong to Levine under New Jersey law, it is unnecessary for us to decide the constitutional question.
The relevant statute, N.J.Stat.Ann. § 12A:8-301 (Uniform Commercial Code § 8-301), provides: “Upon delivery of a security the purchaser acquires the rights in the security which his transferor had or had actual authority to convey . . .” The parties agree that whether “delivery” took place is the controlling question. New Jersey law sets forth that delivery to a purchaser occurs when:
(a) he or a person designated by him acquires possession of a security; or
(b) his broker acquires possession of a security specially indorsed to or issued in the name of the purchaser; or
(c) his broker sends him confirmation of the purchase and also by book entry or otherwise identifies a specific security in the broker’s possession as belonging to the purchaser; or
(d) with respect to an identified security to be delivered while still in the possession of a third person when that person acknowledges that he holds for purchaser; or
(e) appropriate entries on the books of a clearing corporation are made under 12A:8-320.
N.J.Stat.Ann. § 12A:8-313.
Levine contends that delivery has taken place under either (a) or (c) of the statute. We believe, however, that the delivery requirement was not satisfied under any of the provisions. For delivery to take place under section 8-313(1)(a), the purchaser or her designee must obtain actual physical possession of the security. See Kaufman v. Diversified Industries, Inc., 460 F.2d 1331, 1334 (2d Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 517, 34 L.Ed.2d 487 (1972); Matthysse v. Securities Processing Services, Inc., 444 F.Supp. 1009, 1017 (S.D.N.Y.1977). The only party to have had actual physical possession of the bonds in this case was SPS, but it was neither the purchaser nor her designee.
There are three elements to be met to establish delivery under section 8-313(l)(c): (1) the broker sends confirmation of the purchase; (2) the broker by book entry or otherwise identifies a specific security as belonging to the purchaser; and (3) the security is in the broker’s possession. Paragon satisfied the first element — Levine received confirmation of her purchase in March 1973. The critical absence of the second element (identification of the specific security), however, prevents the establishment of delivery in this case under section 8-313(l)(c).
We leave for later discussion of section 60e the basis for our conclusion that the Marion County bonds were not sufficiently identified under the New Jersey statute. We believe that the identification requirement under New Jersey law and section 60e is substantially the same. Support for this position can be found in the New Jersey Study Comments following the statutory provision:
A difficulty exists, of course, where the broker goes bankrupt and there are insufficient securities in fungible bulk to satisfy all outstanding claims. . . . It is in such a situation that priority will be established according to Section 8-313(1). If there be no specified security in the hands of the broker, the creditor customers will share pro rata in the fungible bulk, which will not be part of the bankrupt’s assets; (Section 8-313(2) and Section 60(e) Bankruptcy Act) claiming any deficits as general creditors.
We conclude that New Jersey law would not convey ownership of the bonds to Levine and therefore does not conflict with section 60e. Because there is no constitutional impediment to applying the Bankruptcy Act in this case, we reject Levine’s argument that Congress did not intend section 60e to apply.
III.
Having decided that section 60e is applicable, we must determine whether Levine is entitled to reclamation under this provision. Section 60e(2) allows reclamation by those “cash customers who are able to identify specifically their property in the manner prescribed in paragraph (4) of this subdivision.” 11 U.S.C. § 96(e)(2) (1976). The bankruptcy judge found, and the parties agree, that Levine was a cash customer. She is thus entitled to reclamation if she can identify her specific bonds in accordance with section 60e(4).
Section 60e(4) provides that securities are specifically identifiable if:
(1) they remained in their identical form in the stockbroker’s possession until the date of bankruptcy; or
(2) they were allocated to or physically set aside for a cash customer either
(a) more than four months before bankruptcy; or
(b) at a time while the stockbroker was still solvent; and remained so allocated or set aside at the date of bankruptcy.
11 U.S.C. § 96(e)(4) (1976). Levine claims that she has satisfied both of the tests although only one is needed to allow reclamation.
The first test requires that the bonds remain in their identical form in the stockbroker’s possession until the date of bankruptcy. The Marion County bonds purchased by Levine were part of a bulk acquisition by Paragon of $150,000 worth of bonds of the same description. These bearer bonds were received by SPS on June 6, 1973, and placed in the “98” (general inventory) account. The bonds remained in that account until the date of bankruptcy. It appears that when SPS liquidated a portion of the genéral inventory account all but $30,000 of these Marion County bonds were sold.
We believe that these facts fail to satisfy the first test under section 60e(4) because of the requirement that the bonds be in the stockbroker’s possession. Levine contends that possession by SPS is sufficient to constitute constructive possession by Paragon and relies on Matthysse v. Securities Processing Services, Inc., 444 F.Supp. 1009, 1018-20 (S.D.N.Y.1977), in support of her contention. Matthysse was a Paragon customer whose bonds were among those sold by SPS from the general inventory account. He sued SPS for conversion and the district court found it necessary to determine whether possession by SPS constituted constructive possession by Paragon for the purposes of applying section 8— 313(l)(c) of the Uniform Commercial Code. The court held that it was sufficient “by virtue of [Paragon’s] contractual relationship with SPS which held the bonds on behalf of Paragon as its clearing agent and subject to its directions.” Id. at 1018.
We are unconvinced that “in the stockbroker’s possession” under section 8-313(l)(c) should necessarily be defined the same way for the purposes of construing section 60e. Congress intended the provisions concerning specific identification to be strictly construed in order to further the purpose of providing equal treatment of brokerage house customers. See Securities and Exchange Commission v. First Securities Company of Chicago, 507 F.2d 417, 420 (7th Cir. 1974); In re McMillan, Rapp & Co., supra, 123 F.2d at 431; Harvard Note, supra, 1302-03. Furthermore, the court in Matthysse appeared to ignore the security interest SPS held in the bonds in the general inventory account. This lien severely limited Paragon’s ability to control the bonds. Thus, under the first test of section 60e(4), the bonds were not in their “identical form in the stockbroker’s possession.”
In order to prove specific identification under the second test, Levine must show that the bonds were allocated to or physically set aside for her either four months prior to bankruptcy or at a time while Paragon was solvent and that they remained so allocated until bankruptcy. Because the bonds were received by SPS on June 6, 1973, and bankruptcy occurred on August 1, 1973, Levine fails to satisfy the four month requirement. It is therefore necessary that she prove that Paragon was solvent at a time while the bonds were allocated to or physically set aside for her. However, the bankruptcy judge made no finding concerning the date of Paragon’s insolvency. For the purposes of this appeal we will assume that Paragon was solvent on June 6, 1973, the date SPS received the bonds. We believe, however, that Levine has failed to prove that Paragon or SPS ever allocated or physically set aside the bonds for her prior to bankruptcy.
Levine makes no claim that the bonds were physically set aside for her prior to bankruptcy; rather she relies on the contention that the bonds were allocated to her. This reliance is essentially predicated upon the evidence that after SPS had liquidated much of Paragon’s general inventory account, $30,000 of Marion County bonds remained fitting the exact description of those purchased by Levine. Furthermore, Paragon had previously listed on its computer printouts $30,000 of Marion County bonds as assigned to Levine. These records, however, did not reflect any certificate numbers. In addition, at no time prior to bankruptcy did SPS specifically allocate or otherwise earmark certain bonds for Levine. SPS did allocate bonds in this manner for those customers whose securities were held in safekeeping. “By way of corroboration” of her contention, Levine points to the specific exclusion at the request of the trustee of bonds identical to those in this proceeding from the application for distribution and liquidation of the bonds then held by Paragon. This treatment, however, was only an exercise of prudence by the trustee while the bonds were subject to Levine’s claim for reclamation and in no way supports the contention that the bonds were allocated prior to bankruptcy.
We conclude that the bankruptcy judge was correct in holding that this evidence was insufficient to satisfy the requirements of section 60e(4). That the exact amount of bonds fitting the description of the bonds claimed by Levine remained in the general inventory account was merely a fortuitous happenstance unrelated to the purposes of section 60e. These bonds were not specifically identified for Levine as required by the Act. Although we sympathize with Levine’s plight, we must recognize that there are others like her who have been thrust into a similar predicament of paying in full for bonds but not receiving them. Congress intended that each member of this class receive equal treatment under the law. SPS’s arbitrary decision not to sell the $30,-000 of Marion County bonds should not be a basis for giving Levine a preference over other cash customers whose bonds were sold and must now share in a single and separate fund. To reclaim property held by the trustee of an insolvent stockbroker, a customer must demonstrate that his property has met the strict requirements of specific identification under the Act, thereby justifying preferred treatment over other customers subject to losses from the bankruptcy. This Levine has been unable to do.
IV.
Levine also appeals from an order of the bankruptcy judge concerning modification of the interest payment schedule of the Marion County bonds. On November 29, 1977, the trustee applied to the bankruptcy court for permission to send a letter authorizing modification of the payment schedule of all Marion bonds held by the trustee. On December 1, 1977, Levine filed a motion requesting a stay of the trustee’s application pending disposition of Levine’s appeal of the reclamation proceeding. The bankruptcy judge authorized the trustee to send the letter concerning all of the Marion County bonds except those claimed by Levine. The trustee was ordered to take no action regarding those bonds without the express written consent of Levine’s attorneys.
Levine appealed that order to the district court which affirmed. Levine has now appealed to this court claiming that the trustee, not Levine’s attorney, must make the decision concerning modification of the payment schedule. In view of Levine’s motion to stay, we believe that the action of the bankruptcy judge was eminently reasonable.
V.
The orders of the district court affirming the judgment and order of the bankruptcy judge will be affirmed. Each party will bear its own costs.
. This section, along with the entire bankruptcy code, has been superseded by Act of Nov. 6, 1978, Pub.L.No.95-598, 92 Stat. 2549 (to be codified in 11 U.S.C. §§ 101, et seq.). The provisions concerning stockbroker bankruptcies appear in the new act at 11 U.S.C.A. §§ 741-752 (1979). The new law is effective October 1, 1979, and does not affect this appeal.
. See Note, Protection of the Accounts of Stockbrokerage Customers, 77 Harv.L.Rev. 1290, 1301 (1964). This definition appears in the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(4) (1976) and the new Bankruptcy Act, 11 U.S.C.A. § 101(39) (1979).
. It also appears that the requirement that the bonds remain in their identical form has not been met. According to Collier:
When securities are placed in bulk segregation, whatever right a cash customer may have had to a particular certificate terminates. In exchange, therefor, he acquires an undivided interest, pro tanto, in the segregated mass. Consequently, he can not reclaim any portion of that mass on a theory that his original property has remained in its “identical form,” within the meaning of paragraph (4). He may only lay claim to that mass as, pro tanto, representing the proceeds of, or substitutes for, his property.
3 Collier on Bankruptcy ¶ 60.74[2] (14th ed.) (emphasis supplied). Although Collier appears to be referring to securities originally earmarked for a customer and then placed in bulk segregation, the consequences should be the same where, as here, the securities are in bulk segregation from the beginning. See In re McMillan, Rapp & Co., supra, 123 F.2d at 430 (requires certificates to be in the name of purchaser to be reclaimable under this provision).
. The congressional purpose behind section 60e has been recognized in this circuit: “This inequality among claimants of the same status had long been noted and the need for its correction had been the subject of considered comment. It was to remedy this inequity that Congress inserted Section 60, sub. e into the bankruptcy law with the enactment of the Chandler Act. In re McMillan, Rapp & Co., 123 F.2d 428, 431 (3d Cir. 1941).
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_respond2_1_4
|
B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
John WARD and Patricia Ward, Plaintiffs-Appellants, v. The DESACHEM COMPANY and Lyndal Chemical, Inc., Defendants-Appellees. The DESACHEM COMPANY, Third-Party Plaintiff-Appellee, v. DAIRYLEA COOPERATIVE, INC., Third-Party Defendant-Appellee.
No. 1325, Docket 85-7226.
United States Court of Appeals, Second Circuit.
Argued June 12, 1985.
Decided Aug. 28, 1985.
Patrick J. Fogarty, Mineóla, N.Y. (Fogarty & Fogarty, P.C., Mineóla, N.Y., Scott Fairgrieve, Mineóla, N.Y., of counsel), for plaintiffs-appellants.
Michael A. Calandra, New York City (Dwyer, Peltz & Walker, New York City, of counsel), for defendant-appellee Lyndal Chemical.
Richard B. Marrin, New York City (Ford Marrin Esposito & Witmeyer, New York City, of counsel), for defendant-appellee The Desachem Company.
Alexander, Ash, Schwartz & Cohen, P.C., New York City, for third-party defendantappellee Dairylea Cooperative, Inc.
Before LUMBARD, OAKES, and WINTER, Circuit Judges.
LUMBARD, Circuit Judge:
John and Patricia Ward, plaintiffs-appellants in this employment-related personal injury action, appeal from a February 21, 1985 decision and order of the Eastern District of New York, Mark A. Costantino, J. The challenged decision and order granted summary judgment in favor of defendantsappellees The Desachem Company (“Desachem”) and Lyndal Chemical, Inc. (“Lyndal”) on the ground that New York’s three-year statute of limitations for personal injury suits bars the Wards’ action. The district court based its findings upon a variety of supporting materials, including attorneys’ affidavits, answers to interrogatories, physicians’ reports, and — in particular — upon excerpts from the deposition of plaintiff John Ward. Although the facts in these documents are taken as undisputed for purposes of this appeal, we find that they are nevertheless insufficient to support a determination that the Wards’ action is time-barred; accordingly, we reverse the grant of summary judgment and remand for further proceedings.
The facts alleged by the Wards, and tak- ■ en as undisputed, are as follows. In January, 1974, John Ward commenced working as a night utility man and subsequently as a day-off relief man in the Woodside, New York, plant of Dairylea, Cooperative, Inc. (“Dairylea”). In January, 1978, Ward became a member of Dairylea’s clean-up crew; he held this position until 1983. While associated with the clean-up crew, Ward worked'40 to 70 hours per week cleaning machines and equipment with chlorine, caustic soda, and other chemicals; these chemicals were supplied by Desachem and Lyndal. On January 18, 1978, shortly after Ward began to work with the clean-up crew, he visited Dr. Martin Tuchman and complained of irritability, fatigue, and sensations in his chest. According to Ward’s deposition, Ward suspected at the time that these symptoms were related to his exposure to the chemical fumes and he had, in fact, earlier lodged a complaint to that effect with his supervisor. Nevertheless, after examining Ward Dr. Tuchman concluded that the patient was physically sound, but was suffering from the depression and fatigue often associated with overwork.
Bolstered by Dr. Tuchman’s essentially positive prognosis (and, incidentally, by his own strong performances in the 1978 and 1979 New York City Marathons), Ward continued to work on the Dairylea clean-up crew and consequently underwent continuous exposure to the toxic chemical fumes. In January, 1980, while using chlorine to clean a milk tank, Ward began to experience shortness of breath, dizziness, and other symptoms. Ward was concerned by this incident and by his continuing intermittent shortness of breath; consequently, in February and March of that year he received extensive physical examinations from a second physician, Dr. Erwin Cohen. Dr. Cohen concluded, as had Dr. Tuchman, that Ward was in good health; he warned, however, that Ward’s continued exposure to chemical fumes in the workplace might result in “respiratory sensitivity ... [and lead] to permanent damage.”
Finally, on October 27, 1980, Ward passed out while cleaning an unvented sugar tank with chlorine and caustic, and had to be pulled from the tank by a co-worker. Ward immediately visited a third physician, Dr. Melvin Holden, and apprised him of the symptoms he had had since the January milk tank incident. On December 10, 1980, following comprehensive examinations, Dr. Holden diagnosed Ward’s breathing difficulties as “asthma produced bybxposure to noxious fumes.” He recommended that Ward “scrupulously avoid” such fumes from then on.
Despite Dr. Holden’s diagnosis, Ward continued to work on the Dairylea clean-up crew. He eventually saw a fourth physician, Dr. John J. Rooney, who (in a letter to Dairylea dated February, 1982) reported that Ward was suffering from chronic asthmatic bronchitis, or intrinsic asthma. Dr. Rooney concluded that Ward could not tolerate continued exposure to chemicals. Ward finally terminated his association with the Dairylea clean-up crew in June, 1983.
The Wards filed this action against Desachem on July 28, 1981, and an amended summons and complaint against Lyndal on January 7, 1982, alleging that the two companies had manufactured, sold, supplied, and delivered the chemicals that had produced the harmful toxic fumes. The Wards sought damages based on theories of negligence, breach of express and implied warranties, failure to warn, and strict tort liability. Desachem and Lyndal moved for summary judgment, alleging that the claims were time-barred pursuant to New York’s three-year statute of limitations for personal injuries. See N.Y.Civ.Prac.Law § 214(5) (McKinney 1984).
The district court granted the defendants’ motion for summary judgment, noting that under New York law the statute of limitations “begins to run from the time when liability for the wrong has arisen,” citing Schmidt v. Merchants Despatch Trans. Co., 270 N.Y. 287, 200 N.E. 824 (1936). The district court found that the defendants’ alleged liability to the Wards would have accrued around the time Ward consulted Dr. Tuchman in January, 1978; the court stated that at that point Ward had been “exposed [to the chemicals and had] apparently discovered his injury____” The court concluded that because the Wards did not institute their action against Desachem until mid-1981, the three-year limitation period had elapsed.
The district court went on to reject the plaintiffs’ attempt to invoke the case of Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297 (1981), cert. denied, 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982), as support for the proposition that in cases involving assimilation of harmful products or substances into the body — as distinguished from one-time insertion or implantation— the New York Statute of Limitations runs from the last date of exposure to the product or substance. See also Wright v. Carter Prods., 244 F.2d 53 (2d Cir.1957) (applying “last date of exposure rule” on theory that plaintiff’s last exposure to the harmful product, which occurred within the New York Statute of Limitations period, may have caused her entire injury); accord Lindsay v. Ortho Pharmaceutical Corp., 481 F.Supp. 314, 341-43 (E.D.N.Y.1979), rev’d on other grounds, 637 F.2d 87 (2d Cir.1980). The district court stated that, assuming Steinhardt stands for this principle, it applies only when the “time-bomb” effect of an assimilated substance makes it impossible to discover the harm during the three-year limitation period. Citing the deposition testimony of John Ward, the court stated that Ward knew of his illness and its cause when he visited Dr. Tuchman in 1978 and, consequently, that it would be inappropriate to apply the Steinhardt “last date of exposure rule” to the Wards’ claim.
The central issue on appeal, therefore, is whether the district court erred in holding that the “date of last exposure rule” recently reaffirmed in Steinhardt and other New York cases does not apply to an inhalation action in which the plaintiff’s injury and its probable cause was discoverable— and, indeed, may have been discovered— more than three years prior to the filing of his lawsuit. Because we believe that the New York courts did not intend to create a “discoverability” exception to the date of last exposure rule, we hold that the Wards’ action is timely filed regardless of when John Ward knew that he was being harmed by defendants’ toxic chemical fumes. Accordingly, we reverse the judgment of the district court.
The New York Court of Appeals has stated repeatedly that the New York Statute of Limitations for inhalation, ingestion, or injection of harmful substances begins to run “from the last exposure to the substance, not from discovery of the injury.” Martin v. Edwards Laboratories, 60 N.Y.2d 417, 426, 469 N.Y.S.2d 923, 927, 457 N.E.2d 1150, 1154 (1983) (emphasis added); see also Steinhardt, supra, 54 N.Y.2d at 1010, 446 N.Y.S.2d at 246, 430 N.E.2d at 1299 (observing that the last exposure rule renders irrelevant the date on which injury “was or could have been discovered”). Until such time as the Court of Appeals is prepared to reconsider this beleaguered strict “date of injury” rule for accrual of the cause of action, it must be applied flatly and without regard to whether or when the plaintiff discovered his injury. See, e.g., Thornton v. Roosevelt Hospital, 47 N.Y.2d 780, 784, 417 N.Y.S.2d 920, 923, 391 N.E.2d 1002, 1004-05 (1979) (Fuchsberg, J., dissenting) (calling for reexamination of the rule); Note, Toward a Time-of-Discovery Rule for the Statute of Limitations in Latent Injury Cases in New York State, 13 Fordham Urban L.J. 113, 137-46 (1985) (urging adoption of a “discovery-of-injury” rule). Thus, we see no reason to assume that the Court of Appeals’ interpretation of the New York statute would vary when the last exposure occurs after —rather than before — discovery of the harm. Cf. Lindsay, supra, 481 F.Supp. at 340-41 (applying rule although plaintiff’s symptoms first appeared prior to last exposure to the harmful product); Sterling Drug, Inc. v. Cornish, 370 F.2d 82 (8th Cir.1966) (same). Indeed, policy considerations clearly support application of the date of last exposure rule to actions — such as the Wards’ — in which it is difficult to determine the point at which the harm was “discoverable” and the injury manifest; such issues are better resolved by a jury after trial than by the court on summary disposition.
Applying the New York law, therefore, we hold that the Wards have timely sued for any chemical-related work injuries that John Ward may have suffered in the three years prior to their commencement of this action. In addition, Ward may recover for any cumulative effect on such injuries that may have resulted from inhalations occurring prior to the three-year period. See Aranoff v. Winthrop Laboratories, 102 A.D.2d 736, 476 N.Y.S.2d 571, 572 (1st Dep’t 1984). On the other hand, a jury could properly consider Ward’s alleged negligent self-exposure to the toxic fumes as a factor in apportioning comparative culpability. See N.Y.Civ.Prac.Law § 1411 (McKinney 1984); Billiar v. Minnesota Mining & Mfg. Co., 623 F.2d 240, 244 (2d Cir.1980) (discussing comparative culpability in products liability action); Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976) (noting employee’s duty of reasonable care in work-related injury case); Curry v. Moser, 89 A.D.2d 1, 454 N.Y.S.2d 311 (2d Dep’t 1982) (discussing comparative negligence in New York). In this regard, the matter of when Ward discovered his injury, as relevant to the determination of damages, is an issue for the jury to determine.
Reversed and remanded for further proceedings.
. The parties agree that New York law applies to this diversity action. John and Patricia Ward are New York domiciliaries. Desachem and Lyndal are New Jersey citizens. The plant that was the site of Ward’s injuries is located in Woodside, New York.
. Desachem subsequently brought a third-party action against defendant Dairylea, who was Ward's employer throughout his exposure to the chemicals.
. The district court based its finding on one critical passage in the Ward deposition:
Q. Do you remember if your complaints to Dr. Tuckman [sic] at that time, were related to the exposure you had at the clean-up crew? A. Yes, yes; that was about the time I was feeling that way and depressed; yes.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_majvotes
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
In re ROGERS’ ESTATE. STICKNEY et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 261.
Circuit Court of Appeals, Second Circuit.
July 6, 1944.
John W. Drye, Jr., and Theodore Pearson, both of New York City (William H. Harrar, of New York City, of counsel), for petitioner.
Samuel O. Clark, Jr., Sewall Key, and Morton K. Rothschild, all of Washington, D. C., for respondent.
Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1. The Tax Court held, and the taxpayers and the Commissioner now agree, that the sale was an installment sale within the meaning of § 44(b) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Code, § 44(b). We think that the Tax Court correctly held that the subsequent transfers by the executors of the installment obligations to various trusts of which the executors were themselves trustees and to an escrow agent for a residuary legatee, were within the provisions of § 44(d), “distributed, transmitted, sold, or otherwise disposed of.” Maguire v. Commissioner, 313 U.S. 1, 61 S.Ct. 789, 85 L.Ed. 1149; and Helvering v. Gambrill, 313 U.S. 11, 61 S.Ct. 795, 85 L.Ed. 1155, are most persuasive here, although in those cases the tax arose under § 113(a)-5 of the 1928 Revenue Act, 26 U.S.C.A. Int.Rev.Acts, page 380. Taxpayers’ contention that these transfers were transactions without real substance, because the installment obligations vested in the beneficiaries from the moment the obligations were acquired by the estate, is substantially the position taken by this court in its opinion in Commissioner v. Gambrill, 2 Cir., 112 F.2d 530, which was reversed by the Supreme Court in Helvering v. Gambrill, supra. In Brewster v. Gage, 280 U. S. 327, 50 S.Ct. 115, 74 L.Ed. 457, the question here before us was not considered; it is to be noted, too, that Brewster v. Gage was relied upon in this court in reaching its reversed decision in the Gambrill case.
2. We also agree with the Tax Court that the capital gain resulting from the sale of decedent’s property by the executors was not income of the estate “paid or credited” to beneficiaries within the meaning of § 162(c), 26 U.S.C.A. Int.Rev. Code, § 162(c). Decedent’s will expressly forbade such a result since it provided that “all realized appreciation in the value of stock * * *, resulting from the sale * * * thereof, shall be considered principal and not income * * Likewise, under the New York decisions, such a gain is regarded as an addition to the corpus of the estate; Bank of Richmondville v. Graves, 259 App.Div. 4, 18 N.Y.S.2d 133, affirmed 284 N.Y. 671, 30 N.E.2d 720. In the accounts filed by the executors with the Surrogates they showed these gains as part of the “principal.” In Weber v. Commissioner, 2 Cir., 111 F.2d 766, the terms of the will were such that the gains upon the making of the sale became at once a profit of the legatees; obviously it therefore immediately became income so far as they were concerned; that casé is therefore not in point, and any language in that opinion possibly indicating a conclusion different from that we have reached here should be regarded as dictum. We think that Helvering v. Butterworth, 290 U.S. 365, 54 S. Ct. 221, 78 L.Ed. 365, is not at variance with the Tax Court’s decision here; the Supreme Court there dealt not with the distribution of any portion of the estate but with an annuity, which it held not to be deductible as income distributed to a beneficiary.
3. Before the railway stock was sold by the executors, they had held it for about a year and a half. ' After the sale, the executors held the installment notes for a period of about ten months! If those ten months be properly added to the year and a half, then for the purpose of computing income under § 117(a), 26 U.S.C.A. Int. Rev.Acts, page 873, there was a holding for more than two years and less than five, with the consequence that 60% of the gain should be taken into account in computing income. § 44(d), relating to gain or loss upon the disposition of installment obligations, provides that “any gain * * * resulting shall be considered as resulting from the sale * * * of the property in respect of which the installment obligation was received.” The purpose of that provision is shown by the Congressional Committee Reports which read in part as fol-
lows: “This amendment to the House bill makes it clear that where the profit on the sale or exchange of property is returned on the installment basis by spreading the profit over the period during which the installment obligations are satisfied or disposed of, such profit shall be taken into account under the brackets set forth in section 117 of the bill according to the period for which the original property sold was held rather than according to the period for which the installment obligations were held.” In the light of that statement, we agree with the Tax Court that the perio'd of holding here was for less than two years, and that, accordingly, 80% of the gain must be taken into account in computing income under § 117(a).
Affirmed.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
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.
ESTATE OF William Wikoff SMITH, Deceased, George J. Hauptfuhrer, Jr., Administrator Pro Tem., Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Appeal of Mary L. SMITH.
No. 80-1582.
United States Court of Appeals, Third Circuit.
Argued Oct. 15, 1980.
Decided Jan. 20, 1981.
Irving R. Segal (argued), George H. Nofer, Bruce A. Rosenfield, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellant.
P. J. DiQuinzio (argued), Barbara W. Freedman, Dechert, Price & Rhoads, Philadelphia, Pa., for petitioner-appellee.
Gayle P. Miller (argued), Ann B. Durney, Michael L. Paup, M. Carr Ferguson, Asst. Atty. Gen., Tax Division, Dept, of Justice, Washington, D. C., for respondent-appellee.
Before HUNTER and WEIS, Circuit Judges, and FISHER, District Judge.
Honorable Clarkson S. Fisher, Chief Judge, United States District Court for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
WEIS, Circuit Judge.
This appeal is from an order denying intervention in a Tax Court suit contesting an estate tax deficiency. The appellant had sought intervention to challenge the valuation of stock in her deceased husband’s estate. A low valuation would have a substantial adverse impact upon the appellant, but at the same time a favorable effect on the beneficiaries of a residuary trust. In challenging the Commissioner’s assessment, the administrator of the estate advocated a valuation lower than appellant desired. Appellant’s petition to intervene in order to protect her interests was denied by a “special trial judge” of the Tax Court. We conclude that we lack jurisdiction to consider the appeal because authority had not been given the special trial judge to issue a decision of the Tax Court.
Appellant is the widow of William Wikoff Smith, who died testate in January 1976. She was appointed executrix under the will, which provides a marital trust for her and a residuary trust for the decedent’s children. Mrs. Smith elected to take against the will and, under Pennsylvania law, became entitled to receive one-third the estate’s net assets. Under the terms of the will, the residuary trust is liable for all death taxes.
At the time of his death, Mr. Smith had substantial stock holdings in Kewanee Industries, Inc. In October 1976, Mrs. Smith, in her capacity as executrix, filed a federal estate tax return reporting a date of death value of approximately $13.00 per share. On August 8, 1977, some twenty months after her husband’s death, these shares were sold at a price of $47.50 per share. On April 14, 1978, the executrix filed a federal income tax return on behalf of the estate, asserting that the $13.00 per share valuation was erroneous and that since the correct value should have been $47.50 per share, no gain had been realized on the sale.
The beneficiaries of the residuary trust then petitioned the Common Pleas Court of Montgomery County, where the estate was being administered, to remove Mrs. Smith as executrix because of a conflict of interest. The court found that Mrs. Smith had a “deep and personal financial interest in seeing that a high valuation be settled on this stock.” If the value placed on the stock were low, a substantial capital gains tax would be paid by the estate, thereby reducing the estate’s net assets and, consequently, her share. On the other hand, if the value as of the date of death were high, the resulting increased estate tax would be paid solely by the residuary trust. The Common Pleas Court accordingly relieved Mrs. Smith, as executrix, of her responsibility for determining the estate’s taxes for the year 1977. For that limited purpose, George J. Hauptfuhrer, Jr. was appointed administrator pro tern.
Hauptfuhrer promptly wrote to counsel for Mrs. Smith and the residuary beneficiaries and requested information about the value of the stock. At his request, Kidder, Peabody & Company, Inc. appraised the stock and concluded that the date of death value was between $26.00 and $29.00 per share. Hauptfuhrer also arranged to have counsel for all parties join him in a conference before the Internal Revenue Service Appeals Officer.
In September 1979, the Commissioner of Internal Revenue issued a notice of estate tax deficiency of $27,360,399.40 based upon a valuation of the Kewanee stock at $44.10 per share. The administrator filed a petition in the Tax Court seeking a redetermination of the deficiency.
Six weeks later Mrs. Smith moved to intervene, arguing that every dollar of difference in valuation would affect her to the extent of $500,000.00. The difference between the Kidder appraisal of $29.00 and her figure of $47.50 would therefore mean a loss of over $9,000,000.00. She alleged inadequate representation in the Tax Court because neither the administrator pro tem nor the Commissioner had any substantial interest in advocating her cause. With respect to the Commissioner’s position, she argued that what was not paid in estate tax would be exacted as income tax, and that the government would receive the same amount in either case. Mrs. Smith also asserted that the administrator had taken the position that the stock was worth $26.00 to $29.00 per share and had all but agreed to a settlement at an undisclosed figure when the petition to intervene was filed. Furthermore, she contended that the administrator could not urge her position without sacrificing the interest of the beneficiaries of the residuary trust. The administrator and the Commissioner both opposed the intervention.
In a bench opinion, a special trial judge denied intervention, finding that neither party’s interest was adverse to Mrs. Smith’s and that she was adequately represented. In support of this conclusion, he stated that the Commissioner would seek a high valuation in order to maximize estate tax liability, and in that way promote Mrs. Smith’s interest. He added that the administrator was an independent party, interested only in performing his duty of fairly evaluating the stock. Moreover, the special trial judge felt that allowing intervention would circumvent the state court’s order that the administrator fairly represent the interests of all beneficiaries. Mrs. Smith appeals.
The Commissioner and administrator contend that the order below is not a “decision” of the Tax Court under 26 U.S.C. § 7482(a) (1976). The jurisdictional issue has two facets. As originally briefed and argued, the Commissioner and administrator challenged the order as being interlocutory and not a decision within the meaning of § 7482(a) because it did not dismiss the proceeding or determine the existence or absence of a deficiency. During oral argument, we raised a second issue bearing on the powers of a special trial judge and the jurisdictional effect to be given his order. At our request, the parties later submitted comments on the question.
Under 26 U.S.C. § 7482(a), a court of appeals has “exclusive jurisdiction to review the decisions of the Tax Court ... in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” Just what constitutes a “decision” for jurisdictional purposes is not defined by that section. However, in 26 U.S.C. § 7459(c) (1976), which addresses the “date of decision,” there are references to certain orders of the Tax Court.
In Commissioner v. S. Frieder & Sons Co., 228 F.2d 478, 480 (3d Cir. 1955), we said a reading of § 7482(a) and § 7459(c) together led to the conclusion that, “normally at least,” the word “decision” refers to two kinds of judicial actions by the Tax Court— one, dismissing the petition before it or, two, formally determining the existence or absence of a deficiency. We found appealable in Frieder a Tax Court order declining jurisdiction over an asserted deficiency in the Commissioner’s answer to a petition for redetermination of excess profits tax liability. This interpretation of the statute differed from the very restrictive approach of the Court of Appeals for the First Circuit in Commissioner v. Smith Paper, Inc., 222 F.2d 126 (1st Cir. 1955). As Judge Hastie put it, the order “had great substantive effect, limiting the proceedings to the extent of denying its essential nature. Such action merits characterization as a ‘decision’ for purposes of our appellate jurisdiction.” 228 F.2d at 482; accord, Commissioner v. Seminole Manufacturing Co., 233 F.2d 395 (5th Cir. 1956).
The Commissioner maintains that Frieder is consistent with the rule he advocates, that § 7459(c) gives content to § 7482(a) and, absent an independent statutory grant of authority, appellate jurisdiction is limited to determinations of deficiencies and dismissals for lack of jurisdiction. A similar argument was presented in Louisville Builders Supply Co. v. Commissioner, 294 F.2d 333 (6th Cir. 1961), and rejected. In that case the court heard an appeal from a Tax Court order permitting the Commissioner to depose a witness. No petition for redetermination of tax or notice of tax deficiency had been filed. Finding that it had jurisdiction, the court of appeals noted that the order was not interlocutory and that a contrary ruling would result in the Tax Court having made a final, nonreviewable decision, a power not expressly granted by Congress.
Louisville Builders cited United States v. California Eastern Line, Inc., 348 U.S. 351, 75 S.Ct. 419, 99 L.Ed. 383 (1955), where the Supreme Court concluded that a court of appeals had jurisdiction to review Tax Court renegotiation orders. In discussing the statutory antecedent of § 7482(a), Justice Black wrote, “The language of [that section] is broad enough to justify review .... And we cannot say that because the section was originally passed primarily to authorize review of decisions on revenue matters it should be held inapplicable to decisions on other justiciable matters entrusted to the Tax Court by Congress.” 384 U.S. at 353-54, 75 S.Ct. at 420-421. Louisville Builders relied on this more generous interpretation of appellate jurisdiction in its rejection of the position urged by the Commissioner.
Two years after it decided Louisville Builders, the Sixth Circuit explained that case as holding that “some orders of the Tax Court made under certain unusual circumstances, are reviewable . . . even though they do not fall within the provisions of Section 7459(c).” Licavoli v. Commissioner, 318 F.2d 281, 282 (6th Cir. 1963). But in order to be reviewable, the order must not be an interlocutory one. The court emphasized the importance of the fact in Louisville Builders that “[i]f not reviewable when made, [the order] could never be reviewed.” Id. Accordingly, it had the finality required to be reviewable.
Although Commissioner v. Smith Paper, Inc., supra, still retains some viability, see, e. g., W. W. Windle Co. v. Commissioner, 550 F.2d 43 (1st Cir.), cert. denied, 431 U.S. 966, 97 S.Ct. 2923, 53 L.Ed.2d 1062 (1977), many of the cases which cite it, in reality, address interlocutory and not final orders. E. g., Licavoli v. Commissioner, supra. No satisfactory reasoning has emerged in the Smith line of cases to explain why its restrictive approach to appealability is required by statute or by policy. The Smith philosophy runs counter to the general rule favoring reviewability of final agency action, see 5 U.S.C. § 702 (1976), and the Supreme Court’s expansive attitude in deciding in favor of reviewability of the Tax Court’s decision in United States v. California Eastern Line, Inc., supra. For sound reasons a similar posture should be employed here.
Unquestionably an order of the Tax Court denying intervention to Mrs. Smith would be final. Nothing further would remain to be done on her petition and recourse, if any, would be through appeal. In a district court proceeding a similar matter would be ripe for appellate review, as a final order, McClune v. Shamah, 593 F.2d 482 (3d Cir. 1979), and we conclude that a Tax Court order denying intervention is a “decision” for the purposes of appellate jurisdiction.
We must next consider whether the order of the special trial judge is an order of the Tax Court.
Under 26 U.S.C. § 7456(c) (Supp. II 1978), the Chief Judge of the Tax Court may appoint commissioners (later denominated special trial judges) who proceed under rules and regulations of the court. The statute specifically authorizes the assignment of declaratory judgment proceedings arising under §§ 7428 (tax exempt status of certain entities), 7476 (qualification of retirement plans), 7477 (transfer of property from the United States), and 7478 (status of certain governmental obligations) to commissioners. Further, “the court may authorize a commissioner to make the decision of the court with respect to such proceedings, subject to such condition and review as the court may by rule provide.” 26 U.S.C. § 7456(c) (Supp. II 1978). Another section enables the Chief Judge to delegate the responsibility for rendering the decision of the court in disputes involving $5,000.00 or less to a special trial judge. 26 U.S.C. § 7463(g) (Supp. II 1978). By rule the Tax Court has chosen, however, to limit these delegations by requiring that before the decision of the special trial judge is filed, it must be submitted to and approved by the Chief Judge or another judge of the court. Tax Court Rules 183, 218, 230.
The Tax Court has also provided by rule that the Chief Judge may designate a special trial judge “to deal with any matter pending before the Court in accordance with these Rules and such directions as may be prescribed by the Chief Judge.” Tax Court Rule 180. The powers and duties of a special trial judge are more fully described in Rule 181, authorizing him to regulate all proceedings before him including “hearings on motions,” and “do[ing] all acts and tak[ing] all measures necessary or proper for the efficient performance of his duties.” He is empowered to issue subpoenas, place witnesses under oath and examine them, and rule upon admissibility of evidence. He is given incidental authority for the conduct of trial or other proceedings.
In cases tried before a special trial judge, Rule 182 states that, unless otherwise provided, he shall file a report which includes findings of fact and an opinion. The parties may file exceptions with the court and request oral argument. The division of the Tax Court to which the case is assigned may then adopt, modify, or reject the report.
The rules make no formal provision for appeals from a special trial judge to the division or to a judge of the Tax Court in the event of a ruling which is final, but occurs before the ultimate disposition of the case. The appellant has advised us, however, that the clerk of the Tax Court as a matter of practice accepts petitions for this purpose. Thus, although not specifically provided by the rules, review by the Tax Court of a ruling by a special trial judge denying intervention is, in practice, available through petition.
In an order dated December 19, 1979, the Chief Judge of the Tax Court assigned a special trial judge, Francis J. Cantrel, to certain cases “for the purpose of conducting the hearing and ruling on the interlocutory matters with respect to each said case.” Nothing in the designation purports to make an order of the special trial judge that of the Tax Court, nor is there any direction for review of his orders by a judge or division of the court.
The limited scope of the order assigning cases to special trial judge Cantrel contrasts with the designations in other situations. In assigning cases that Congress has said may finally be decided by special trial judges, the extent of the special trial judge’s power has been explicitly defined. For example, in assigning cases with $5,000.00 or less in controversy, pursuant to 26 U.S.C. § 7463(g), the Chief Judge has clearly conferred authority on the special trial judge “to make the decision of this Court.” General Order No. 7, Nov. 9, 1978, 71 T.C. at IV; cf. General Order No. 6, March 8, 1978, 69 T.C. at XV-XVI (unreviewed opinion of special trial judge does not constitute opinion of Tax Court).
Even if the Chief Judge had purported to extend such authority in the case at hand, it is questionable whether he could have done so within the power granted by the statute. The Tax Court itself is purely a creature of statute and has only the power given to it by Congress. Burns, Stix Friedman & Co. v. Commissioner, 57 T.C. 392, 396 (1971). The designation of the special trial judge to hear matters in the case at hand was not within the statute’s provisions authorizing the Chief Judge to delegate responsibility to the special trial judge “to make the decision of the court”— §§ 7428, 7463, 7476, 7477, and 7478.
Although special trial judges were obviously intended to assist the Tax Court in the disposition of its work, we find no indication that Congress intended to give the Chief Judge carte blanche to designate persons and confer on them all the authority given by the statute to duly appointed Tax Court judges. As we see it, the special trial judge acts in a capacity not dissimilar to that of a magistrate in district court. In statutorily limiting the magistrate’s authority, Congress has explicitly set forth the conditions under which a magistrate’s order may be directly appealed to a court of appeals. 28 U.S.C. § 636(c)(3) (Supp. Ill 1979). In all other circumstances the magistrate’s work is first reviewed by a district judge. 18 U.S.C. § 3402 (1976); 28 U.S.C. § 636(b)(1), (c)(4) (1976 & Supp. Ill 1979). In the absence of authorization from Congress, we must assume that a similar procedure was intended for the Tax Court.
The appellant urges us to decide the appeal on the merits so that the controversy may be concluded expeditiously. We understand and are sympathetic to her concerns, but we are not free either to avoid the statutory limitation on our jurisdiction or to ignore the institutional requirement of exhaustion of remedies below. The judges of the Tax Court should be given the first opportunity to correct alleged errors of the special trial judge, and thus alleviate our already overburdened docket.
We conclude that in the circumstances here the special trial judge was not authorized to issue an order that would constitute a “decision” of the Tax Court. Accordingly, the appeal will be dismissed without prejudice to appellant’s right to resort to this court after her contentions have been reviewed by the Tax Court.
. Int.Rev.Code of 1939, ch. 5, § 1141(a), 53 Stat. 164.
. Tax Court Rule 3(d) provides:
“The term Special Trial Judge . . . refers to a Commissioner of the Court appointed pursuant to Section 7456(c) of the Code.”
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:
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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.
McCRAW v. SIMPSON et al. (two cases).
Nos. 2811, 2812.
Circuit Court of Appeals, Tenth Circuit.
March 17, 1944.
Rehearing Denied April 20, 1944.
James E. Whitehead, of Fort Smith, Ark., for appellant.
Roy Frye, of Sallisaw (Amelia Patterson, of Sallisaw, on the brief), for appellees.
Before PHILLIPS and MURRAH, Circuit Judges, and KENNEDY, District Judge.
KENNEDY, District Judge.
This appeal involves two suits instituted in the State Courts of Oklahoma, one in and for the County of Sequoyah and the other in and for the County of Hughes. In each suit appellant McCraw was the defendant and she caused a removal of both the suits to the United States District Court for the Eastern District of Oklahoma upon the grounds of diversity of citizenship or separable controversy. In the latter Court the cases were consolidated for the purpose of trial.
The facts pertinent to the consideration of the points here involved may be briefly stated as follows: Hugh Simpson between the years 1916 and 1922 executed deeds conveying to the appellant Penelope McCraw, his daughter, certain parcels of real estate located in the counties hereinbefore named. In the deeds of the property so conveyed relevant to the issues here, a life estate was reserved in the grantor. In 1926 Simpson executed in Arkansas a last will and testament which in effect, confirmed the grants of the real estate theretofore made but included testamentary bequests to his wife Mary B. Simpson, appellee. Simpson died on the 13th day of August, 1941, at the age of 90, being at the time of his death a legal resident of Sequoyah County, Oklahoma. Thereafter the will was probated in the Courts of Oklahoma. In 1929 a lease was executed in the State of Arkansas by Simpson covering the real estate in Sequoyah County to the Tollers, appellees here, and McCraw as the remainder man under said deeds, as confirmed by the will, consented to the lease by joining in the execution thereof. The lease was on the crop-share plan, was to run for a period of five years, and was still in operation at the time of Simpson’s death. A portion of the land was also prior to the death of Simpson operated under a contract with the United States Agricultural Administration involving crop payments to the owner during the year 1941. The causes here on appeal were instituted by Mary B. Simpson, individually and as Administratrix of the Estate of Hugh Simpson, for the primary purpose of setting aside the deeds and provisions of the will of Simpson and recovering the property, and seeking the right to all profits accruing under the leases. Issues were joined and the case tried to the Court which resulted in findings of fact and conclusions of law and judgment in favor of the Defendant McCraw as to all the issues, holding the deeds valid but with a life estate reserved to the grantor. Upon a motion for a new trial on behalf of Appellee, Mary B. Simpson, the Court made supplemental findings and conclusions with a judgment modifying the former judgment to the extent that the Appellee Simpson should be entitled to the rental crop benefits for the year 1941 in which Simpson died and which had not been paid over to him before his death. In all other respects the judgment, as to the ownership and possession of the lands in both counties, was confirmed in the Appellant McCraw. Inasmuch' as no rents and profits seem to be involved in the property located in Hughes County we see no reason why it should be presented here on appeal and at least there is no reason why it should be considered further.
The Appellant asserts that the Trial Court was without authority to modify its original findings and conclusions and judgment, but with the motion for a new trial before it on behalf of the then Plaintiff Simpson, there can be no doubt that the Court was clearly within its rights in modifying the judgment in accordance with the provisions of Rule 59, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
The only remaining question in the case is the correctness of the Court’s judgment in awarding the undistributed crop rentals to Simpson’s legal representative for the year in which he died. The decision in this respect is based first upon the determination of whether or not the law of Oklahoma shall govern the transactions. The Oklahoma Statute provides that real property within the State is governed' by the law of the State (Title 60, Section 21, O.S.1941) ; also that the validity and interpretation of wills concerning real property is governed by the law of the State (Title 84, Section 20, O.S.1941). In Oklahoma under the Statute, a contract is to. be interpreted according to the law and the: place where it is to be performed (Title 15,. Section 162, O.S.1941), so that while the deeds, the will, and the lease in controversy here may have been executed in the State-of Arkansas, they are clearly governed in-construction and interpretation by the laws, of the State of Oklahoma where the property was located, where the decedent resided, where the will was probated and whereby the terms of the lease it was to be performed. The rule in regard to the interpretation of contracts according to the law of the place of performance is confirmed' by the Oklahoma decisions. Security Trust & Savings Bank v. Gleichmann, 50 Okl.. 441, 150 P. 908, L.R.A.1915F 1203; Collins v. Holland, 169 Okl. 10, 34 P.2d 587; Sheehan Pipe Line Const. Co. v. State-Commission, 151 Okl. 272, 3 P.2d 199.
The only remaining point to be-considered is what may be the Oklahoma law in regard to the disposition of crops, growing upon the lands of a life tenant, which have not been harvested and paid, over to said life tenant prior to his death,, originally characterized as emblements. Some states have positive statutes covering-such a situation, other states do not, and Oklahoma appears to be in the latter class. The Oklahoma Statute provides that the-common law, as modified by constitutional- and statutory law, judicial decisions and the-condition and wants of the people, shall. remain in force, in aid of the general statutes of Oklahoma (Title 12, Sec. 2, O.S. 1941). It would appear that under these circumstances the common law covering the situation, if it can be determined, should be applied. In this respect the Courts seem to generally agree that the common law is that where a tenant for life sows land he is entitled through his legal representative to the growing crops in case the estate terminates by his death before the produce can he gathered. Wilhoit v. Salmon, 146 Cal. 444, 80 P. 705; Bradley v. Bailey, 56 Conn. 374, 15 A. 746, 1 L.R.A. 427, 7 Am.St.Rep. 316; Keays v. Blinn, 234 Ill. 121, 84 N.E. 628, 14 Ann.Cas. 37. In other states the rule is the same but is regulated by statute. For example Ohio and Indiana.
It is therefore clear that the Trial Court did not err in applying the common law to the situation and awarding the undistributed crop benefits for the year in which the life tenant died, to his personal representative instead of the remainder man. The judgment of the Trial Court is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_origin
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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 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.
Irving and Charlotte RADOL, A. James Ibold, Dwight C. Baum, the Crossett Charitable Foundation, Reuben B. Fishbein, Trustee for Teri Fishbein Hecht, Beneficiary, and Robert C. Utley, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. W. Bruce THOMAS, William R. Roesch, David M. Roderick, United States Steel Corporation, USS Inc., USS Holdings Company, USS Merger Sub, Inc., Goldman, Sachs & Co., Marathon Oil Company, Harold D. Hoopman, Charles H. Barre, Elmer H. Graham, W.E. Swales, Jack H. Herring, Victor G. Beghini, Neil A. Armstrong, James A.D. Geier, J.C. Haley, J.N. Land, Jr., Raymond C. Tower, Robert G. Wingerter, and the First Boston Corporation, Defendants-Appellees.
No. 83-3598.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 22, 1985.
Decided Sept. 13, 1985.
Jacob K. Stein [Lead Counsel], Paxton & Seasongood, Cincinnati, Ohio, Melvyn I. Weiss, argued, Milberg, Weiss, Bershad & Specthrie, New York City, Stanley R. Wolfe, Berger & Montague, P.C., Stewart Savett, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., for plaintiffs-appellants.
Murray Monroe, Cincinnati, Ohio, John L. Strauch [Marathon Oil], argued, Robert R. Weller, John M. Newman, Jr., Cleveland, Ohio, Richard S. Walinski, Toledo, Ohio, John W. Beatty, Cincinnati, Ohio, Richard J. Holwell [Lead Counsel], argued, Richard Reinthaler, New York City, William D. Ginn, Cleveland, Ohio, Henry T. Reath, Thomas Preston, Duane, Morris & Heckscher, Philadelphia, Pa., David C. Greer, Dayton, Ohio, Michael P. Graney, Simpson, Thacher & Bartlett, Columbus, Ohio, James T. Griffin, Michael P. Mullen, William J. Raleigh, Chicago, 111., Ronald S. Rolfe, Cravath, Swaine & Moore, New York City, N.Y., for defendants-appellees.
Before MERRITT and KENNEDY, Circuit Judges; and PECK, Senior Circuit Judge.
. Throughout this opinion, “A” refers to the appendix on this appeal, “Def. (PI.) Ex.” refers to defendants’ (plaintiffs’) exhibit below, and "T" refers to the trial transcript.
MERRITT, Circuit Judge.
This class action suit arises out of the fall, 1981 contest for control of Marathon Oil Company which ended in a two-stage merger of Marathon into United States Steel (Steel), one of the largest mergers in United States history. The first stage involved a tender offer by Steel for 51 per cent of Marathon’s outstanding shares at $125 per share. The second stage was a “freezeout merger” — a merger in which the majority buys out the minority shareholders — with Marathon merged into Steel as a wholly onwed subsidiary, and remaining Marathon shareholders receiving bonds worth approximately $76 per Marathon share. This suit is the consolidation of 13 separate actions challenging the two-step acquisition of Marathon by Steel as viola-tive of the federal securities laws and state common law and fiduciary duty obligations. The three primary contentions underlying the various legal issues are that certain appraisals of Marathon’s assets should have been disclosed to Marathon shareholders at the tender offer stage of the transaction, that the two-tier transaction with a second stage merger price lower than the front-end tender offer price was illegally coercive, and that Marathon’s directors breached their fiduciary duty to the shareholders by structuring such a transaction in order to preserve their control over Marathon.
This action was heard before Judge Rubin in the Southern District of Ohio, and all issues were decided in favor of the defendants, some on summary judgment and others after trial before a jury. On appeal, the plaintiffs raise a large number of essentially legal challenges to the proceedings in the District Court, but for the reasons set forth at length below, we reject these challenges and affirm the District Court’s decision in all respects.
I. FACTUAL BACKGROUND
In October, 1981, Marathon was a widely held, publicly traded Ohio corporation with over 58 million shares held by over 35,000 stockholders. Marathon was a vertically integrated oil and gas company, conducting exploration, production, transportation, refining and marketing and research. From 1976 to 1980, Marathon’s net revenues and profits advanced at average annual rates exceeding 15%, but the first half of 1981 brought lower worldwide demand for oil and a strengthened dollar, events causing a sharp reversal in Marathon’s performance. Earnings per share plunged to $2.64 from $4.08 a year earlier, and during the June, 1981 quarter, Marathon’s four U.S. refineries operated at only 58% of capacity. A. 2588, Def.Ex. 424.10. The market price of a share of Marathon common stock, which had stood at $81 in November, 1980, fell to $45 in June, 1981. A. 2686, Def. Ex. 695.
Although Marathon’s stock price had fallen during early 1981, the company held substantial long term oil and gas reserves, including the Yates Field in West Texas, one of the largest and most productive oil fields ever discovered, and along with a number of other oil companies, Marathon became a prime potential takeover target in the summer of 1981. In this threatening atmosphere, Marathon’s top level management began preparations to defend against a hostile takeover bid. Harold Hoopman, Marathon’s president and chief executive officer, instructed the company’s vice presidents to compile a catalog of Marathon’s assets. This document, referred to as the “Strong Report” or “internal asset evaluation,” estimated the value of Marathon’s transportation, refining and marketing assets, its other equipment and structures, and the value of proven, probable and potential oil reserves as well as exploratory acreage. This report, discussed at greater length in Starkman v. Marathon Oil Co., 772 F.2d 231, (6th Cir.1985), estimated the present value of oil and gas properties based on highly speculative assumptions regarding the level of prices and costs expected to prevail as far as thirty to fifty years into the future, and was described by Hoopman and John Strong, his assistant who was responsible for combining materials received from the various divisions into the final report, as a “selling document” which placed optimistic values on Marathon’s oil and gas reserves so as to attract the interest of prospective buyers and ensure that Marathon could either ward off a hostile takeover attempt or at the very least obtain the best offer available and avoid being captured at a bargain price.
The Strong Report valued Marathon’s net assets at between $19 billion and $16 billion, a per share value of between $323 and $276. A similar report using identical methodology but based only on publicly available information (excluding, therefore, potential and unexplored acreage) was prepared in mid-July 1981 by the investment banking firm of First Boston, which had been hired by Marathon to assist in preparing for potential takeover bids. The First Boston Report was similarly described as a “presentation piece” to avoid a takeover or to maximize the price obtained in a takeover, and it placed Marathon’s net asset value at between $188 and $225 per share.
Marathon’s market value was far below these appraised values, however, and on October 29, 1981, Marathon closed at $63.75 per share. The next day, Mobil Oil Company announced its tender offer to purchase up to approximately 68% of outstanding Marathon common stock for $85 per share in cash. Mobil proposed to follow the tender offer with a going-private or freezeout merger in which the remaining shareholders of Marathon would receive sinking fund debentures worth approximately $85 per share.
On October 31, 1981, Marathon’s board of directors met in a day-long emergency session to consider Mobil’s hostile tender offer. At this time, there were twelve members of Marathon’s board, equally split between inside and outside directors. The inside directors were Hoopman and Marathon’s five divisional vice presidents. The outside directors were N.A. Armstrong, former astronaut; J.A.D. Geier, the chairman of Cincinnati Milacron; J. Haley, vice president of Chase Manhattan Bank; R.G. Weingerter, chairman of LOF; R.C. Tower, president of FMC; and J.N. Land, a former investment banker then engaged in financial consulting. Haley was the only director absent from the October 30, 1981 meeting.
The meeting began with a presentation by inside and outside legal counsel explaining the possible adverse antitrust implications of the Mobil offer and reviewing the legal obligations of the board to act in the best interests of Marathon’s shareholders. Representatives of First Boston then delivered a lengthy presentation in which they compared the premium over market price offered by Mobil and stated their opinion that this premium was at best modest compared with other recent oil company takeovers. First Boston presented the results of its asset valuation report, but cautioned that the values did not represent realistic market values, as evidenced by the large number of companies whose market value was far less than their appraised value, and also that liquidation value would be significantly less than appraised value because of the relative bargaining positions in a liquidation, which in any event was felt to be an unrealistic response to Mobil’s tender offer because of the length of time required to secure shareholder approval of a liquidation. First Boston urged the board to take quick action to find an alternative merger partner in the time remaining for shareholders to withdraw their tenders to Mobil, because even with potential antitrust problems, First Boston thought Mobil’s offer still capable of succeeding.
After this presentation by First Boston, John Strong, Hoopman’s assistant, spoke briefly and handed out the executive summary to the Strong Report. He described the document as a catalog that would be used in trying to sell the company to another bidder, and cautioned that there was very little correlation between the theoretical asset valuations and the market value of Marathon.
At the completion of these discussions, the outside directors met separately and unanimously determined to recommend that the board as a whole reject Mobil’s offer, based on its potential illegality under the antitrust laws and the opinion of First Boston and the directors’ own opinion that it was unfair to shareholders. The board as a whole then reconvened and unanimously agreed to recommend that shareholders reject Mobil’s offer and authorized management to begin immediately the search for another potential bidder and also authorized counsel to file an antitrust suit seeking to enjoin Mobil from proceeding further with its bid.
On November 1, 1981, Marathon filed its antitrust suit against Mobil, Marathon Oil Co. v. Mobil Corp., 530 F.Supp. 315 (N.D. Ohio 1981), and secured a temporary restraining order prohibiting Mobil from purchasing any additional Marathon shares. Marathon’s board and senior management meanwhile speedily contacted all of the thirty to forty companies who were considered reasonable merger candidates, while simultaneously advising shareholders by letter to reject Mobil’s bid as “grossly inadequate.” Both the Strong and First Boston reports were presented to potential merger partners in an attempt to kindle interest in Marathon.
Representatives of Steel and Marathon first met on November 10, 1981, at which time Hoopman gave Steel president David Roderick a copy of the asset valuation reports. On November 12, board member Elmer Graham, Marathon’s vice president for finance, delivered financial information, including five-year earnings and cash flow projections to Steel in Pittsburgh. Negotiations between Hoopman and Roderick ended on November 17 in an offer by Steel to purchase up to 30 million shares (about 51%) of Marathon stock for $125 per share in cash, to be followed by a merger proposal in which each remaining Marathon shareholder would receive one $100 face value, 12 year, 12}h% guaranteed note per share of common stock.
On November 18, a formal meeting of Marathon’s board was held to consider Steel’s offer in light of competing, but more tentative, proposals from Allied Corporation and Gulf Oil Corporation. Allied’s proposal was considered to be highly questionable, because it was premised upon Marathon’s purchase of an Allied subsidiary at a greatly inflated price in order to give Allied the cash to bid $101-105 per share for a minority interest in Marathon. Gulf proposed to purchase 50% of the outstanding Marathon shares for $130-140 per share and then consummate a merger in which Marathon shareholders would receive securities worth $100-110 per share, but Marathon’s counsel advised that a merger with Gulf would pose antitrust problems equal to if not more severe than those raised in Marathon’s own antitrust suit against Mobil. First Boston estimated that since current market interest rates were then in the 18 to 20% range, the second stage notes offered in Steel’s proposal would sell for approximately $86 per share, yielding an average price, with the first stage tender offer at $125 per share, of $106 per share. First Boston then compared the 76.6% premium over market offered by Steel with other recent takeover premiums, showing that the premium offered by Steel greatly exceeded the average premium in recent control transactions. First Boston recommended that the board accept Steel’s bid.
Steel’s offer was communicated by Roderick over a conference telephone call to the entire Marathon board, and was offered on a take-it-or-leave-it basis, to remain open for one day. After Roderick’s call, the board discussed Steel’s offer, and outside director Land asked if there were any severance agreements or “golden parachutes” granted to Marathon’s senior management in a side agreement. Hoop-man answered that Steel had agreed only to cash out Marathon employee stock options held by the officers and upper level management at the expected average price offered by Steel to other Marathon shareholders of $106 per share, and that Steel had requested that the present Marathon board be kept intact. After this brief discussion, the directors were polled individually, and voted unanimously in favor of recommending that the shareholders accept Steel’s offer.
Steel mailed its tender offer on November 19, 1981, and simultaneously filed a Schedule 14D-1 with the SEC, as required by Rule 14d-3, 17 C.F.R. § 240.14d-3. Steel’s tender offer specifically stated that the tender offer was the first step in “United States Steel’s proposed acquisition of the entire equity interest” in Marathon, and described the terms of the second stage bond exchange. Def.Ex. 233, A. 2222, 2331-32. Hoopman sent a letter to Marathon’s shareholders on November 19 in which he similarly described the two-tier transaction and recommended that shareholders accept Steel’s tender offer. Def.Ex. 382, A. 2353. Marathon’s Schedule 14D-9 attached to Hoopman’s letter informed the shareholders of Gulf’s proposal (describing Gulf anonymously as a “major oil company”) and stated that this proposal had not been accepted because of anticipated antitrust problems. Id. Neither Steel’s tender offer materials nor Hoop-man’s letter and attached Schedule 14D-9 revealed the existence of the Strong and First Boston reports and neither discussed Marathon’s net appraised value, but Steel’s tender offer did disclose that Steel had access to net income and cash flow projections for Marathon which were not publicly available, and those figures were set forth. Def.Ex. 233, A. 2228.
After Steel’s tender offer was announced, the market price of Marathon stock rose, and fluctuated between $100 and $105 per share from November 19 until December 7. Def.Ex. 695, A. 2688-89. Mobil modified its offer in response to Steel’s competing bid to provide for the purchase of 30 million shares at $126 per share, to be followed by a transaction in which the remaining shares would be exchanged for various securities to be valued at about $90 per share, and Mobil’s offer remained open until enjoined on November 30 on the ground that it entailed probable antitrust violations. Marathon Oil Co. v. Mobil Corp., 530 F.Supp. 315 (N.D.Ohio), aff'd, 669 F.2d 378 (6th Cir.1981), cert. denied, 455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982). After this court invalidated both the stock and Yates Field options originally promised to Steel as manipulative devices under Section 14(e) of the Williams Act in Mobil Corp. v. Marathon Oil Co., 669 F.2d 366 (6th Cir.1981), the withdrawal date on Steel’s tender offer was set at January 6, 1982. Between the original withdrawal deadline of December 7 and January 6, 1982, Marathon stock traded at between $88 and $82 per share. Def.Ex. 695, A. 2688-89. By this latter date, a total of over 53 million shares, or 91.18% of the total outstanding had been tendered to Steel, and Steel purchased the promised 30 million shares on a pro rata basis on January 7.
On February 8, 1982, a proxy statement was sent to the remaining Marathon shareholders announcing a March 11,1982 shareholder meeting at which the merger with Steel would be consummated if approved by two-thirds of the Marathon stockholders, as required by Ohio law. The proxy statement discussed the Strong and First Boston appraisals at some length, as is required in freezeout mergers by Rule 13e-3, 17 C.F.R. § 240-13e-3, warning, however, that the First Boston Report “should not be regarded as an independent evaluation or appraisal of Marathon’s assets,” and that the two reports were not “viewed by Marathon’s Board of Directors as being reflective of ... per share values that could realistically be expected to be received by Marathon or its shareholders in a negotiated sale of the Company as a going concern or through liquidation of the Company’s assets.” Def.Ex. 756, A. 2707-08.
On March 11,1982, the special shareholder meeting was held, and the shareholders approved the merger, with approximately 55% of the non-Steel Marathon shareholders voting for the merger, 20% voting against the merger, and 25% abstaining or not voting. A. 3525, Doc. 147. Marathon stock had traded at between $76 and $73 from the January 6 purchase date to the date of the shareholder meeting, indicating that the market eventually valued the bonds received in the merger at roughly $10 per share less than was forecast by First Boston.
II. SUMMARY OF PROCEEDINGS BELOW
The present class action suit represents the consolidation of thirteen separate actions by former Marathon shareholders asserting claims against Marathon, Steel, their directors (as of November, 1981) and investment bankers. The plaintiff class consists of two subclasses: Marathon shareholders who owned stock on November 19, 1981 and did not tender to Steel; and those who did tender to Steel. The plaintiffs presented claims under the federal securities laws and alleged state common law fraud and breach of fiduciary duty. Of these various claims, there are five substantive issues involved in this appeal, and we briefly summarize the treatment of these issues below before discussing our disposition of each in more detail.
On February 2, 1983, Judge Rubin granted defendants’ motion for summary judgment on all of the plaintiffs’ federal securities law claims except the claim that the failure of the Marathon and Steel defendants to disclose the Strong and First Boston Reports in the tender offer materials violated Section 10(b) of the Securities and Exchange Act of 1934 (the Exchange Act), 15 U.S.C. § 78j(b), SEC Rule 10b-5, 17 C.F.R. § 240.10b-5, and Section 14(e) of the Williams Act, 15 U.S.C. § 78n(e). Plaintiffs claimed that the failure to disclose these documents in the tender offer materials constituted the omission of material facts necessary to make the other statements made not misleading. In Radol v. Thomas, 556 F.Supp. 586, 593-94 (S.D.Ohio 1983), the District Court ruled that under the definition of materiality set forth in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976), the issue of whether the Strong and First Boston asset appraisals were material facts was a question “best left to a jury.” In answer to questions 1 and 2 of the special interrogatory, the jury found unanimously that the omission of these reports from the tender offer materials distributed on November 19, 1981, did not violate the federal securities laws. T. 2667, A. 1053.
The District Court entered summary-judgment for the defendants on plaintiffs’ claim that the tender offer materials constituted proxy solicitations because they represented the tender offer and second stage merger as a unitary transaction and violated Section 14(a) of the Exchange Act because they failed to comply with the proxy disclosure rules. Judge Rubin reaffirmed the view (as expressed in his decision denying plaintiffs’ motion for a preliminary injunction) that “a tender offer and merger are distinct acts with separate consequences toward which the securities laws and SEC Rules are directed in their regulatory schemes,” and that references to the second stage merger in the tender offer materials were made in compliance with SEC rules governing tender offers and “were not the equivalent of solicitations for the merger which would call forth application of the full panoply of the proxy rules.” 556 F.Supp. at 591 (quoting Radol v. Thomas, 534 F.Supp. 1302, 1314 (S.D.Ohio 1982)).
On the final federal securities claim at issue on this appeal, the District Court ruled that the two-tier merger of Marathon and Steel did not constitute market “manipulation” in violation of Section 10(b) of the Exchange Act or Section 14(e) of the Williams Act. 556 F.Supp. at 589-90. Judge Rubin observed that although the disparity between the front-end tender offer price offered by Steel and the back-end merger price did place pressure on Marathon shareholders to accept the tender offer, all tender offers are to some extent coercive, but the two-tier tender offer here did not “circumvent the natural forces of market demand” and did not discourage competing offerors and was therefore not “manipulative” under our interpretation of the term in Mobil Corp. v. Marathon Oil Co., 669 F.2d 366 (6th Cir.1981).
The District Court refused to grant summary judgment for the defendants on plaintiffs’ state law claim that Marathon’s board violated their fiduciary duty to Marathon’s shareholders by structuring a coercive two-stage transaction and consummating the merger at an unfair price, by failing to disclose the Strong and First Boston reports and other material information, and by cashing out their stock options at terms that were unavailable to other Marathon shareholders. A. 3316-18, 3321-22. The jury subsequently unanimously found that Marathon’s directors had not breached their fiduciary duties to Marathon shareholders. A. 2667.
The District Court, however, entered summary judgment for Steel on plaintiffs’ fiduciary duty claims, finding that Steel’s involvement as a fiduciary was only as a majority shareholder of Marathon after the tender offer and only with respect to consummation of the second stage merger. Judge Rubin held that under Ohio law, a dissenting minority shareholder’s sole remedy to redress his dissatisfaction with a freezeout merger is the statutory appraisal action provided by O.R.C. § 1701.85(A), provided that the merger is authorized by statute. A. 3318.
III. DISCUSSION: FEDERAL SECURITIES ISSUES
A. Duty to Disclose the Strong and First Boston Appraisals
Rule 13e-3(e), 17 C.F.R. § 240.13e-3(e), requires the disclosure of certain information set forth in Schedule 13E-3, 17 C.F.R. § 240.13e-100, in freezeout merger proxy statements. Item 9 of Schedule 13E-3 requires that a summary of any asset appraisal prepared in connection with such a merger must be furnished, and the summary must describe the methods, results and underlying assumptions of the appraisal. Steel complied with this rule by describing the Strong and First Boston reports in the second stage merger proxy statement. Plaintiffs contend, however, that such disclosure should also have been made in the tender offer materials distributed to shareholders by Marathon and Steel, and that the failure to disclose these reports violated Section 10(b) of the Exchange Act, Rule 10b-5, and Section 14(e) of the Williams Act because it constituted an omission of material facts necessary to make not misleading other affirmative statements made in the tender offer materials.
On appeal, plaintiffs particularly challenge the trial court’s jury instructions on materiality and the duty to disclose these reports. The disputed instructions state:
An omitted fact is material if there is a substantial likelihood that a reasonable person would consider it important in deciding whether to tender his stock.
Only disclosure of existing material facts is required. Economic forecasts are not.
A failure to make known a projection of future earnings is not a violation of the Federal Securities law.
T. 2647-48, A. 1045-46.
In Starkman v. Marathon Oil Co., 772 F.2d 231, (6th Cir.1985), we have reaffirmed our adherence to the basic rule established by our prior decisions that tender offer materials must disclose soft information, such as these asset appraisals based upon predictions regarding future economic and corporate events, only if the predictions underlying the appraisal are substantially certain to hold. The Supreme Court’s test for materiality as set forth in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 450, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976), is whether there is a “substantial likelihood that, under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder.” The District Court’s instructions to the jury accurately stated this general test for materiality and the specific rule in this circuit governing the duty to disclose asset appraisals, and we have, in any event, held in Starkman that there was no duty to disclose the asset appraisals at issue here.
Indeed, if there was an error below on this issue, it was in allowing it to reach the jury. There is no other reported decision sending the materiality of an asset appraisal to the jury; every such decision involving an asset appraisal has held that there was no duty to disclose the appraisal. Judge Rubin ruled that the Strong and First Boston reports were not immaterial as a matter of law because “[i]t is conceivable that a ‘reasonable shareholder’ would have accorded the valuations ‘actual significance’ in his deliberations, even if disclosure would not have altered his decision.” Radol v. Thomas, 556 F.Supp. 586, 594 (S.D.Ohio 1983) (emphasis supplied). But the Supreme Court in TSC Industries v. Northway, 426 U.S. at 445-48, 96 S.Ct. at 2130-32, specifically reversed the court of appeals’ definition in that case of material facts as all those which a reasonable shareholder might consider important, a definition which is essentially identical to Judge Rubin’s ruling that the Strong and First Boston reports could be found to be material because a reasonable shareholder conceivably could consider them important. The purpose of the more stringent “substantial likelihood” test for materiality is to lessen the uncertainty facing corporate officials in determining what must be disclosed while preserving shareholders’ access to all truly factual information. Even with the correct instructions on materiality, sending the issue to the jury on the basis of an incorrect application of the test for materiality introduces great uncertainty regarding a particular jury’s view of “substantial likelihood,” and under our decisions, the District Court should have ruled that the reports were not material and removed the issue from the jury.
B. Failure to Comply with the Proxy Rules
Plaintiffs claim that since the tender offer and the merger were viewed and represented by Steel and Marathon as a “unitary transaction,” Marathon and Steel’s tender offer materials constituted solicitations of shareholder consent to the proposed merger and should have contained all the information required to be included in a proxy statement under Section 14(a) of the Exchange Act. Relying on recent law review commentary, plaintiffs argue that the two-tier tender offer put the typical Marathon shareholder in a position where he had to assume that if he tendered, he would virtually assure Steel’s ability to consummate the merger, and that shareholders thus should have received all the information needed to evaluate the merger prior to the deadline tendering. The only judicial authority adduced in support of the plaintiffs’ position is Judge Learned Hand’s ruling in SEC v. Okin, 132 F.2d 784, 786 (2d Cir.1943), that “writings which are part of a continuous plan ending in solicitation and which prepare the way for its success” are subject to the SEC’s power to regulate proxy solicitations.
In rejecting this claim on the defendants’ summary judgment motion, Judge Rubin correctly ruled that “a tender offer and subsequent merger are distinct acts with separate concerns toward which the securities laws and SEC rules are directed in their regulatory schemes,” and that it was “entirely appropriate to consider each step in such a transaction separately.” Radol v. Thomas, 556 F.Supp. 586, 591 (S.D.Ohio 1983). Steel complied with Rule 14d-3, 17 C.F.R. § 240.14d-3, by filing a Schedule 14D-1 with the Commission which disclosed the basic terms of the proposed merger with Marathon, as required by Item 5(a) of 17 C.F.R. § 240.14d-100. As the target, Marathon complied with Rule 14e-2, 17 C.F.R. § 240.14e-2, by sending a letter to its shareholders recommending acceptance of Steel’s offer and describing the two-stage plan, and Marathon also complied with Rule 14d-9, 17 C.F.R. § 240.-14d-9 by filing a Schedule 14D-9 with the Commission which described the basic terms of the merger. Both Steel and Marathon therefore complied with the specific disclosure requirements which apply to tender offers.
Requiring compliance with the proxy rules, in particular Rule 14a-9, 17 C.F.R. § 240.14a-9, or the specific freezeout merger proxy disclosure requirements in Rule 13e-3, 17 C.F.R. § 240.13e-3, in the tender offer stage of a two-tier transaction of this sort would be unfair because it would subject the tender offeror and target to the risk of liability for violating Section 5 of the Securities Act of 1933, 15 U.S.C. § 77e, by making an “offer to sell” securities prior to filing a registration statement for the securities. In Securities Act Release No. 33-5927, reprinted in 3 Fed.Sec.L.Rep. (CCH) II 24,284H (April 24, 1978), the Commission stated that the Section 5 “jumping the gun” prohibition would not apply to disclosure of a proposed second stage merger in tender offer materials as required by Schedule 14D-1, because to rule that such disclosure constituted an offer to sell would not further the policies of the 1933 Act and would be inconsistent with the Williams Act policy of requiring such information in order to provide full disclosure to investors confronted with an investment decision in the context of a tender offer. However, the Commission also warned that disclosure at the tender offer stage should not go beyond that specifically required by the Williams Act and the tender offer rules, and that “statements which are not required by the Williams Act may constitute an ‘offer to sell’ the securities to be exchanged in the subsequent merger and, in the absence of a registration statement filed with the Commission at the commencement of the tender offer, may constitute a violation of Section 5 of the 1933 Act.” 3 Fed.Sec.L.Rep. at 17,754. The plaintiffs’ proposed extension of the comprehensive proxy statement disclosure requirements to the tender offer stage of a two-tier transaction thus risks placing the board in a completely untenable position in which liability attaches under the proxy rules for too little disclosure and under the 1933 Act for too much disclosure, a result we are unwilling to endorse. Accord Sheinberg v. Fluor Corp., 514 F.Supp. 133, 137 (S.D.N.Y.1981); American General Corp. v. NLT Corp., [1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) H 98,808, at 94,-142 (S.D.Texas July 1, 1982).
In addition, unlike SEC v. Okin, 132 F.2d at 786, where Judge Hand found that the Commission “would be powerless to protect shareholders” from misleading letters concerning an ongoing proxy solicitation sent in preparation for a soon-to-follow competing solicitation unless the letters were themselves held to be proxy solicitations, the Commission has set forth disclosure requirements for tender offers, and there are sound policy reasons for treating tender offers differently, with respect to the volume and content of required disclosure, than proxy statements.
Contrary to the plaintiffs’ assumption, an individual shareholder does not assure the success of the second stage merger by choosing to tender in the first stage. Rather, the merger occurs only if the tender offer succeeds, and the success of the tender offer is determined by shareholders’ collective valuation of the premium offered in relation to other competing offers (here, Mobil’s outstanding tender offer). In the tender offer context, the market plays an important role in providing shareholders with information regarding the value of the target firm, and target management has an incentive to broker the best deal for shareholders and provide favorable, optimistic information to prospective bidders — precisely the kind of information the plaintiffs say was contained in the Strong and First Boston reports and precisely that which majority shareholders have an incentive to keep from the minority in an unfair freeze-out merger. The more extensive legal disclosure requirements which apply to freeze-out merger proxy statements are therefore justified by the fact that the law has given the majority the power to foreclose the ownership rights of the minority and has thereby eliminated the market as a correcting mechanism, leaving minority shareholders with only the option of dissent and appraisal, an option which cannot rationally be exercised unless the majority is compelled to make full disclosure regarding appraisals, earnings projections and other information that sheds light on the value of the firm. Cf. Toms, Compensating Shareholders Frozen Out in Two-Step Mergers, 78 Colum.L
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:
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