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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)". 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".
Daniel F. BRAMAN, Plaintiff-Appellant, v. MARY HITCHCOCK MEMORIAL HOSPITAL and Hitchcock Clinic, Inc., Defendants-Appellees.
No. 1205, Docket 80-7165.
United States Court of Appeals, Second Circuit.
Argued May 23, 1980.
Decided Sept. 2, 1980.
Jerome I. Meyers, Ascutney, Vermont, for plaintiff-appellant.
Black & Plante, White River Junction, Vermont (Garfield H. Miller, Hughes, Miller & Candon, Norwich, Vermont, on brief), for defendants-appellees.
Before OAKES and MESKILL, Circuit Judges, and SAND, District Judge.
Of the United States District Court for the Southern District of New York, sitting by designation.
OAKES, Circuit Judge:
This appeal in a diversity action is from a dismissal for lack of jurisdiction over the defendants. Plaintiff, Daniel Braman, injured his hand at his place of employment in Hartland, Vermont, and was taken by his employer to the emergency medical treatment facilities of the defendants, Mary Hitchcock Memorial Hospital (the Hospital) and Hitchcock Clinic, Inc. (the Clinic), two New Hampshire corporations located in Hanover, New Hampshire. After treatment there, Braman brought an action for malpractice, which was dismissed by the United States District Court for the District of Vermont, James S. Holden, Chief Judge, under Fed.R.Civ.P. 12(b)(2), for lack of personal jurisdiction over the Hospital and Clinic. The district court dismissed the suit because there was no showing that the cause of action arose from the contacts or activities asserted as grounds for jurisdiction. The court did not reach the question whether the Hospital and Clinic had contacts with Vermont that warranted taking jurisdiction over them despite a lack of any relation between those contacts and the present action. We reverse and remand for a hearing on the issue of whether their activities in the state are sufficient to make them subject to its jurisdiction.
The question whether a defendant’s activities would support Vermont’s exercise of jurisdiction is one of state law. Arrows-mith v. United Press International, 320 F.2d 219, 229 (2d Cir. 1963) (en banc). Under V.R.C.P. 4(e) plaintiff served a summons and complaint on appellees Hospital and Clinic in the State of New Hampshire. Rule 4(e) incorporates the language of one of Vermont’s two “long-arm” statutes, Vt. Stat.Ann. tit. 12, § 913(b), which was enacted in 1968 in response to the State Supreme Court’s invitation in Avery v. Bender, 124 Vt. 309, 313, 204 A.2d 314, 316-17 (1964). The law provides for suit against a party served out of state who has, or to whom may be imputed contacts or activities within the state “sufficient to support a personal judgment against him.” As the Reporter’s notes to V.R.C.P. 4(e) indicate, “[t]he statute reaches to the outer limits permitted by the due process clause.”
The district court evidently assumed that service had been made by virtue of a different provision, Vt.Stat.Ann. tit. 12, § 855, an “alternative” long-arm statute. This section permits service upon the Secretary of State in lieu of service out of state upon a foreign corporation, again to the “outer limits” permitted by the due process clause, but with the single limitation that process may be served only “in any action or proceedings against it arising or growing out of that contact or activity” which supports Vermont’s assertion of jurisdiction. In the instant case, in which service was made directly upon the corporation, plaintiff’s claim for relief did not arise out of any contacts that defendants have with Vermont.
The district court correctly considered itself to be bound by the state court construction of the long-arm statute. Deveny v. Rheem Manufacturing Co., 319 F.2d 124, 127 (2d Cir. 1963); 4 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 1068, at 246 (1969). Correctly interpreting the Vermont cases the district court found that they required the “arising or growing out of” element to sustain jurisdiction under the alternate long-arm statute, Vt.Stat.Ann. tit. 12, § 855. The Vermont opinions, however, evidently proceeded on the basis of a misapprehension that due process demands such a nexus between the contacts and the cause of action. Huey v. Bates, 135 Vt. 160, 163-64, 375 A.2d 987, 990 (1977); Davis v. Saab Scania of America, Inc., 133 Vt. 317, 321, 339 A.2d 456, 458-59 (1975). Although this impression of due process requirements was also conveyed by a panel of this court, Deveny v. Rheem Manufacturing Co., 319 F.2d at 127, a Supreme Court decision subsequent to International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), namely Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), took the position that jurisdiction can be asserted even though the cause of action is unrelated to the defendant’s activities in the forum state provided that the activities are sufficiently continuing and substantial to make the assertion of jurisdiction reasonable, id. at 446-48, 72 S.Ct. at 418-19. See 4 C. Wright & A. Miller, supra, Civil § 1069, at 261-62; Restatement (Second) of Conflict of Laws § 47 (1971); von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121, 1142-44 (1966); Developments in the Law, State-Court Jurisdiction, 73 Harv.L.Rev. 909, 932 (1960); Comment, Long-Arm and Quasi in Rem Jurisdiction and the Fundamental Test of Fairness, 69 Mich.L.Rev. 300, 307 (1970). See also Arrowsmith v. United Press International, 320 F.2d 219, 233 n.20 (interpreting Perkins v. Benguet Consolidated Mining Co. as a case in which the “quantum of corporate activity was exceptionally large”).
Thus the critical question for our purposes is whether the long-arm statute under which jurisdiction is claimed, Vt.Stat. Ann. tit. 12, § 913(b), incorporated in V.R. C.P. 4(e)(1), embodies the same limitation as the law interpreted by the district court, Vt.Stat.Ann. tit. 12, § 855, that is, whether it also requires the “arising or growing out of” element to sustain jurisdiction. Unlike § 855, § 913(b) does not on its face impose any such condition. In addition to the reporter’s notes indicating that 4(e) and § 913(b) reach “to the outer limits permitted by the due process clause,” we also have as guidance the case of Pasquale v. Genovese, 136 Vt. 417, 392 A.2d 395 (1978), which seems to indicate that the “arising or growing out of” factor would not be necessary to sustain jurisdiction under Rule 4(e) and § 913(b). There the court said:
[W]e think it a fair inference that VWAG is engaged in manufacturing and selling cars for the American market, of which Vermont is a part, through the system described. This activity we hold to be the “active participation in the Vermont market” upheld as a basis for jurisdiction in O’Brien, supra, and to meet the “minimum contacts” test first outlined in International Shoe . . .. Our V.R.C.P. 4(e) embodies the “minimum contacts” test . . ..We think it fair to view defendant’s general course of conduct as purposefully directed toward Vermont and as inevitably affecting persons in this state; from this activity, it would seem equitable to imply submission to jurisdiction.
Id. at 419, 392 A.2d 397 (emphasis added). See also Arts-Way Manufacturing Co. v. O’Brien, No. 77-197 (D.Vt., filed Aug. 15, 1977) (unpublished opinion and order on motion to dismiss, Oct. 18, 1979, at n.2) (treating requirement of causal nexus in Vt.Stat. Ann. tit. 12, § 855 as “one of statutory derivation”).
The question remains whether in this case there were continuous, intentional, and active Vermont contacts sufficient to support jurisdiction. Cf. Bard Building Supply Co. v. United Foam Corp., 137 Vt. 125, 129, 400 A.2d 1023 (1979) (discussing requirement under § 855 when tort occurred in the state, but suggesting underlying standards); see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 565-67, 62 L.Ed.2d 490 (1980). Although appellant’s jurisdictional allegation in his complaint would be inadequate under Vermont law, cf. O’Brien v. Comstock Foods, Inc., 123 Vt. 461, 464-65, 194 A.2d 568, 571 (1963) (before new Vermont Rules of Civil Procedure enacted), under the liberal rules of federal pleading there is a sufficient question raised by the answers to Braman’s interrogatories to require consideration of the jurisdiction issue by the district court, Exchange National Bank v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976) (affidavits and other extra-pleading materials may be considered on a motion challenging jurisdiction); 5 C. Wright & A. Miller, supra, Civil § 1364, at 669, § 1366, at 676.
The interrogatories and the answers to them omit possibly significant information beáring on this remaining issue, which would permit decision here, but they do. disclose some contacts with Vermont. Both the Clinic and Hospital are parties to agreements with Vermont hospitals and health centers whereby the Hospital and Clinic supply specialty backup services as determined from time to time; the Clinic is a party to an agreement with the Veterans Administration Hospital in White River Junction, Vermont whereby members of the defendant’s medical staff serve as consultants; and the Hospital is a party to an agreement with the Springfield Hospital of Springfield, Vermont, involving emergency transfers and with the University of Vermont in Burlington, involving student affiliation for clinical education, as well as with the Cooperative Health Information Center in South Burlington, Vermont for a shared data service. But these various agreements are not in the record before us; we do not know specifically what they provide in terms of the appellees’ activities, if any, in Vermont. It is a question for decision below whether there are substantial relations, continuing in nature and involving considerable activity and exchange with Vermont medical providers.
We recognize that the Hospital and Clinic maintain listings in the White River Junction, Vermont, Upper Valley Area telephone directory and the Barre-Montpelier, Vermont, telephone directory, which cover substantial regions. We note that in the past five years, more than 33% of the defendant Clinic’s and of the defendant Hospital’s patients have been residents of Vermont. In addition, both corporations are parties to an agreement with Blue Cross/Blue Shield for New Hampshire and Vermont, a bi-state organization that is the largest single provider of medical insurance coverage in the State of Vermont. Employees or other persons associated with the Clinic and the Hospital serve on the board of directors of this Blue Cross/Blue Shield organization and thus may affect the cost and quality of medical service supplied in Vermont. Whether there are other contacts with Vermont does not appear in the record but, of course, it will be open to the district court on further hearing to pursue the question as it sees fit.
However, the factors listed above may serve to distinguish appellees from the defendant in Benson v. Brattleboro Retreat, 103 N.H. 28, 164 A.2d 560 (1960), Annot., 84 A.L.R.2d 409, a controversy in which a Vermont hospital was sued in New Hampshire. In that case it appeared from the record that the hospital did not have “any agents in the State of New Hampshire channeling patients to” it. Id. at 29, 164 A.2d at 561. The only. contacts with the forum state were that the defendant hospital had sold a tract of undeveloped land to the State of New Hampshire for one dollar some fourteen years before the commencement of the action and that the defendant’s board of trustees had held two meetings in New Hampshire at the “summer home” of a trustee who could not go to Vermont because of a broken leg.
If the district court finds jurisdiction in this case, it will have to consider the affirmative defense concerning appellant’s failure to comply with N.H.Rev.Stat.Ann. § 507-C:5, which requires plaintiffs in actions for medical injury to notify defendants of their intent to sue at least sixty days before bringing suit, and will have to determine whether this requirement is substantive in nature under Hanna v. Plumer, 380 U.S. 460, 85 S.*Ct. 1136, 14 L.Ed:2d 8 (1965), and its progeny.
Judgment reversed and cause remanded for further proceedings.
. V.R.C.P. 4(e) provides in part:
(e) Personal Service Outside the State. The following persons may be served with the summons and the complaint outside the state, in the same manner as if such service were made within' the state, by any person authorized to serve civil process by the laws of the place of service or by a person specially appointed to serve it:
(1) A person whose contact or activity in the state or such contact or activity imputable to him is sufficient to support a personal judgment against him[.]
. Vt.Stat.Ann. tit. 12 § 913 provides:
(a)When process is served upon a party outside the state in such manner as the supreme court may by rule provide, the same proceedings may be had, so far as to affect the title or right to the possession of goods, chattels, rights, credits, land, tenements or hereditaments in the state as if the process had been served on a party in the state.
(b) Upon the service, and if it appears that the contact with the state by the party or the activity in the state by the party or the contact or activity imputable to him is sufficient to support a personal judgment against him, the same proceedings may be had for a personal judgment against him as if the process or pleading had been served on him in the state.
(c) The provisions of subsection (b) are in addition to all existing manner of service, rights and remedies, and the availability of a personal judgment by reason of subsection (b) shall make the provisions of sections 855, 856, 891 and 892 of this title and section 1630 of Title 11 alternative and not inoperative.
Thus service under Rule 4(e) and Vt.Stat.Ann. tit. 12, § 913 is “alternative” to service under Vt.Stat.Ann. tit. 12, § 855, the other long-arm statute.
. Vt.Stat.Ann. tit. 12, § 855 provides:
If the contact with the state or the activity in the state of a foreign corporation, or the contact or activity imputable to it, is sufficient to support a Vermont personal judgment against it the contact or activity shall be deemed to be doing business in Vermont by that foreign corporation and shall be equivalent to the appointment by it of the secretary of the state of Vermont and his successors to be its true and lawful attorney upon whom may be served all lawful process in any action or proceedings against it arising or growing out of that contact or activity, and also shall be deemed to be its agreement that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served on the foreign corporation at its principal place of business in the state or country where it is incorporated according to the law of that state or country.
. See note 2 supra.
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:
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sc_casesource
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027
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
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
Question: What is the court whose decision the Supreme Court reviewed?
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211. Court of Private Land Claims
Answer:
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songer_genresp1
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H
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
George H. CLAY, Trustee and Securities Investor Protection Corp., Appellees, v. TRADERS BANK OF KANSAS CITY, Appellant.
No. 82-1791.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 16, 1983.
Decided June 8, 1983.
James Borthwick, Benjamin F. Mann, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for appellee Trustee.
Theodore H. Focht, Gen. Counsel, Securities Investor Protection Corp., Washington, D.C., for appellee SIPC; Michael E. Don, Associate Gen. Counsel, Kevin H. Bell, Asst. Gen. Counsel, Washington, D.C., of counsel.
David A. Welte, Mark J. Bredemeier, Pol-sinelli, White, Schulte & Vardeman, A Professional Corp., Kansas City, Mo., for appellant.
Before LAY, Chief Judge, BRIGHT and ROSS, Circuit Judges.
ROSS, Circuit Judge.
This bankruptcy appeal is brought by Traders Bank of Kansas City from the district court s judgment setting aside a deed of trust as a voidable preference under 11 U.S.C. § 547(b) (1979). For the reasons set forth in this opinion, we affirm in part and reverse and remand in part the judgment of the district court.
Facts
Jack Perry, K.R. Adams and Norman Lewis are the principals involved in PAL Investments, Inc. (Investments), Perry, Adams and Lewis Securities, Inc. (Securities) and Briarbrook Development Corp. (Briar-brook), the subjects of this bankruptcy action. On March 14, 1980, Briarbrook gave Traders Bank of Kansas City (Traders) a promissory note in the amount of $1,854,-000. 00.and executed a deed of trust on real property owned by Briarbrook to secure the note. The parties stipulated that the deed of trust was given to secure the antecedent indebtedness of Investments, Securities and the three individuals. No additional funds were advanced by Traders to the corporations or to the individuals at the time of this transaction.
On April 2,1980, Investments and Securities filed separate voluntary bankruptcy petitions under Chapter 11 of the Bankruptcy Reform Act. Also on April 2, 1980, Securities Investor Protection Corp. (SIPC) filed its application in district court seeking liquidation of Securities pursuant to provisions of the Securities Investor Protection Act, 15 U.S.C. §§ 78aaa-78lll (1981). On April 11, 1980, the district court granted SIPC’s application, appointed George H. Clay as trustee of Securities’ estate, and transferred the action to the bankruptcy court. On June 5, 1980, Briarbrook filed its voluntary bankruptcy petition. The bankruptcy court consolidated the three corporations for liquidation purposes on July 29, 1980.
On September 5,1980, the trustee filed a complaint requesting the deed of trust be set aside as a voidable preference under 11 U.S.C. § 547(b) or, in the alternative, as a fraudulent transfer under 11 U.S.C. § 548. The parties stipulated to certain facts which left for trial the issue of whether the consolidated debtor corporations were insolvent on the date of the execution of the deed of trust, as required by subsection 547(b)(3).
At trial, on April 29, 1981, the trustee sought to prove the debtors’ insolvency through the testimony of Howard D. Hull, Jr., a certified public accountant, who prepared statements of financial condition for the three debtor corporations as of April 2, 1980. The parties’ major dispute as to the computation of the debtors’ insolvency pertains to the value of certain bonds held as assets by the corporations and their related debt.
Jefferson County, Missouri Water District No. 7 issued bonds in 1972 to finance the construction of a water project. JV & M Construction Co. (JV & M), a corporation partially owned by Perry, Adams and Lewis, contracted with the water district to construct the district improvements. The project was to be financed by the 1972 bond issue. JV & M received a number of the bonds from the county and sold them to Investments for $1,900,000.00. Investments sold about $1,400,000.00 of the bonds to the public. The remaining $545,000.00 of bonds are held as assets by the debtor corporations and were pledged to Traders to secure certain notes payable by Securities and Investments. At the time this action was filed, Investments owed JV & M $999,950.00 on the purchase price of the water district bonds. For reasons not established in the record, the water project was not constructed.
Mr. Hull’s testimony at trial established that the par value of all the debtors’ bonds, including the water district bonds, was $1,343,000.00 while fair market value was only $302,807.00. These figures included the water district bonds with par value of $545,000.00 and an estimated fair market value of zero. Mr. Hull calculated that the debtors’ total assets amounted to $2,038,-000.00 and liabilities were $4,174,630.00, including the debt owed to JV & M of $999,-950.00. Therefore, Mr. Hull’s figures showed the debtors to be insolvent by $2,136,630.00.
Traders presented no direct evidence on the issue of solvency but relied on its cross-examination of Mr. Hull to prove the debtors’ solvency. Traders challenged Mr. Hull’s testimony regarding bond valuation as hearsay because the values had been obtained from bond appraisers who did not testify at trial.
At the close of the trustee’s evidence, the bankruptcy court dismissed the second count of the complaint which alleged the deed of trust to be a fraudulent transfer. That ruling has not been appealed. On June 11, 1981, the bankruptcy court denied the trustee’s claim to set aside the deed as a voidable preference. The bankruptcy court concluded that Mr. Hull’s testimony as to bond values was inadmissible hearsay and absent any other admissible evidence of the value of the bonds, all the bonds should be valued at full par value. Thus, the court valued the bonds at par of $1,343,000.00, including the water bonds at par value of $545,000.00. Additionally, the court excluded from liabilities the $999,950.00 debt owed by Investments to JV & M and a $375,-000.00 debt not at issue here. As a result, the bankruptcy court concluded the debtors were solvent.
On appeal, the district court reversed the bankruptcy court’s judgment and granted the trustee’s claim to set aside the deed of trust as a voidable preference. The district court found it unnecessary to determine the admissibility of Mr. Hull’s testimony regarding bond values because the court found other evidence in the record of the value of the water district bonds. The district court held that the evidence showed that because the water project was never constructed it was “doubtful that the Water District could be held liable on the bonds.” Thus, the court subtracted the par value of the water district bonds from the total par value of all the bonds (reducing total assets by $545,000.00) and concluded that the debtors were insolvent. Accordingly, the district court reversed the judgment of the bankruptcy court and set aside the deed of trust as a voidable preference. Traders appealed from the judgment of the district court.
Discussion
At the outset, we note that a bankruptcy court’s conclusions of law are freely reviewable on appeal. Matter of Multiponics, Inc., 622 F.2d 709, 713 (5th Cir.1980). See also United States v. Mississippi Valley Co., 364 U.S. 520, 526, 81 S.Ct. 294, 297, 5 L.Ed.2d 268 (1961). The bankruptcy court’s determination of solvency, however, is a finding of fact subject to the clearly erroneous rule. Matter of PRS Products, Inc., 574 F.2d 414, 416-17 (8th Cir.1978); See also In re Bush, 696 F.2d 640, 643 n. 3 (8th Cir.1983) (bankruptcy court’s findings of fact subject to clearly erroneous rule). Mindful of our. scope of review in this case we proceed to the issue of the solvency of the debtor corporations at the time the deed of trust was given.
Subsection 547(f) provides: “For the purposes of this section, the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.” 11 U.S.C. § 547(f) (1979). The parties stipulated that the deed of trust was transferred within ninety days of the date on which Briarbrook filed its bankruptcy petition. Thus, at least initially, the trustee is afforded the benefit of a presumption that the debtor corporations were insolvent. The committee notes to section 547 state that:
Subsection (f) creates a presumption of insolvency for the 90 days preceding the bankruptcy case. The presumption is as defined in Rule 301 of the Federal Rules of Evidence * * *. The presumption requires the party against whom the presumption exists to come forward with some evidence to rebut the presumption, but the burden of proof remains on the party in whose favor the presumption exists.
Rule 301 provides that the “burden of proof in the sense of the risk of nonpersuasion” remains on the party in favor of whom the presumption operates.
Clearly, the ultimate burden of persuasion is not shifted by the existence of the presumption. The notes of the Senate Committee on the Judiciary indicate that:
The effect of the rule as adopted by the committee is to make clear that while evidence of facts giving rise to a presumption shifts the burden of coming forward with evidence to rebut or meet the presumption, it does not shift the burden of persuasion on the existence of the presumed facts. The burden of persuasion remains on the party to whom it is allocated under the rules governing the allocation in the first instance.
S.Rep. No. 1277, 93rd Cong. 1st Sess. 9 (1974) reprinted in 1974 U.S.Code Cong. & Ad.News 7051, 7056. The Joint Conference Committee adopted the Senate Committee’s version of Rule 301. Conf.Rep. No. 1597, 93rd Cong. 1st Sess. 5-6 (1974) reprinted in 1974 U.S.Code Cong. & Ad.News 7098, 7099.
The bankruptcy court held that the trustee failed to sustain his burden of proving insolvency because Mr. Hull’s testimony regarding bond valuation was inadmissible hearsay. The bankruptcy court found no other evidence of the fair market value of the bonds and thus adopted Traders’ reasoning that the bonds should be valued at par.
The district court concluded that the bankruptcy court erred in failing to require Traders to rebut the presumption of insolvency. Because the district court found sufficient other evidence of bond values, it did not decide the issue of whether Mr. Hull’s testimony regarding bond valuation was hearsay.
Traders argues the district court was in error in requiring Traders to bring substantial evidence to prove solvency. Traders maintains that the district court applied too stringent a test in measuring Traders’ burden of proof. From our reading of the district court’s memorandum it is questionable whether the district court used the term “substantial evidence” as a term of art or merely as an adjective. The district court stated that:
The burden was then upon the creditor to produce evidence offsetting this presumption and establishing the nonexistence of the debtor corporations’ insolvency as of the date of the transfer. This Court is of the opinion that the record in this case fails to disclose any substantial evidence from which a finding of solvency of the three debtor corporations can be made.
Regardless of whether the district court erroneously applied the substantial evidence test or correctly required Traders to show only some evidence of solvency, we agree with the district court’s ultimate finding that there was sufficient evidence establishing the debtor corporations’ insolvency on the date of the transfer.
The bankruptcy court’s determination that the debtor corporations were solvent was made by including as assets the bonds valued at par and by excluding from liabilities the $999,950.00 debt of Investments to JY & M arising from the purchase of the water bonds. The district court subtracted from the $1,343,000.00 par value of the bonds only the $545,000.00 par value of the water bonds. The district court agreed with the bankruptcy court’s conclusion that the $999,950.00 debt should be excluded from liabilities because due to JV & M’s failure to construct the project, Investments would most likely be under no obligation to pay JV & M.
We are informed by counsel that the water project and the liabilities of the parties there involved are the subject of litigation unrelated to' this bankruptcy action. Shelter Mutual Ins. Co. v. Public Water Supply District # 7 of Jefferson County, Missouri, Civ. 81-1352-C(A) (E.D.Mo.); State ex rel. Trader Bank of Kansas City v. Wibble, CV 181-1472-CCJ Div. 3 (Jefferson County, Mo.). Therefore, it is not for this court to determine the ultimate liability of Investments on its debt to JV & M; nor do we attempt such a ruling. We are, however, firmly convinced that the balance sheet treatment of the water bonds as assets and of the related debt to JV & M should be consistent. Common sense mandates that either the bonds are worthless as assets and the debt is excluded from liabilities or alternatively the bonds are valued at par and the full amount of the debt is included as a liability.
The bankruptcy court’s valuation of the water bonds at par and exclusion of the debt to JV & M is unjustified. As the bankruptcy court itself noted “[i]t strains credulity for the court to believe that bonds can have worth for one purpose on the date in question and no worth for another purpose.” Consistent treatment of the water bonds and related debt, results in a finding of insolvency, Thus, we affirm the district court’s finding of insolvency and its judgment setting aside the deed of trust, subject to the following discussion.
$125,000.00 obligation
The parties stipulated that the $1,854,-000. 00 note to Traders secured by the deed of trust, included a $125,000.00 debt owed to Traders by Jack Perry, K.R. Adams and Norman Lewis, in their individual capacities. Mr. Hull testified that in March and May 1979 the individuals borrowed a total of $125,000.00 from Traders and in turn transferred the money to Investments as officers’ loans. The individuals executed a note to Traders for $125,000.00 on September 1, 1977. The debt was secured by 150,-000 shares of Securities stock privately owned by the individuals. On March 14, 1980, the $125,000.00 loan to the individuals was incorporated in the $1,854,000.00 note and secured by the deed of trust given by Briarbrook. The record does not reveal whether the individuals’ note of September 1, 1977, was returned to them or whether their 150,000 shares of Securities stock were released after the deed of trust was executed.
Mr. George Lehr, Chairman of the Board of Traders Bank, testified that in January 1980, in another transaction, the bank agreed to fund a $125,000.00 overdraft of one of the corporations. The overdraft was to have been paid by proceeds from the anticipated sale of the Briarbrook Golf Course. The repayment was not made and the overdraft debt was eventually secured by the March 14 deed of trust.
Traders argues that $125,000.00 of the total $1,854,000.00 debt secured by the deed of trust is not the antecedent debt of the debtor corporations, but rather is the personal debt of the individuals, Perry, Adams and Lewis. The bankruptcy court declined to address the question because of its finding of solvency. The district court held that “[e]ven though the individual principals may have been obligated for this $125,-000.00 there is certainly sufficient facts to support a finding that [Investments] was also obligated.” However, it is clear from the district court’s memorandum that it confused the $125,000.00 overdraft of Investments with the $125,000.00 note of the individuals. The parties filed a stipulation with this court in which they agreed the district court mistakenly found the $125,-000.00 note executed by the individuals on September 1,1979, represented an indebtedness involving an overdraft on the checking account of Investments.
Traders argues on appeal that the debt of the individuals is not the debt of the corporation. Traders notes that the individuals and their debts were never made the subject of consolidation orders in this case and none of the three individuals were debtors in this bankruptcy proceeding. The trustee contends that Mr. Lehr’s testimony that he considered the corporations and the individuals as “one entity from the standpoint of getting our depositors’ money back,” is some support for a finding that the debts of the individuals should be considered the debts of the corporations. However, we are reluctant to rely solely on Mr. Lehr’s business judgment regarding repayment of the loans to support the legal conclusion that the $125,000.00 note is a debt of the corporations to Traders. In fact, other evidence tends to support Traders’ argument that the debt was personal to the individuals. Because of the district court’s confusion as to the origin of the $125,000.00 debt, we reverse the district court’s finding and remand this issue to the district court for a determination of whether the $125,000.00 debt to Traders incurred on September 1, 1979, by the individuals, is an antecedent debt of the debtor corporation.
Affirmed in part. Reversed and remanded in part.
. The Honorable Russell G. Clark, United States District Court for the Western District of Missouri.
. Briarbrook Development Corp. is the wholly-owned subsidiary of PAL Investments, Inc.
. Prior to the execution of the note and deed of trust, Investments was indebted to Traders in the amount of $534,000.00, Securities owed Traders $1,194,837.00 and Perry, Adams and Lewis jointiy owed Traders $125,000.00. The consolidated debt was $1,853,837.00 which was rounded to $1,854,000.00.
. A proceeding under the Securities Investor Protection Act is brought in the bankruptcy court, SEC v. White & Co., 546 F.2d 789, 791 (8th Cir.1976), and is to “be conducted in accordance with, and as though it were being conducted under” the Bankruptcy Code. 15 U.S.C. § 78fff(b) (1981).
. Dennis J. Stewart, Bankruptcy Judge, Western District of Missouri.
. 11 U.S.C. § 547(b) (1979) provides in pertinent part:
the trustee may avoid any transfer of property of the debtor—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition;
if! s(e
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
. The bankruptcy court found the debtor corporations to be solvent by approximately $300,-000.00 by valuing the water bonds at $545,-000.00 as assets and excluding the $999,950.00 debt from liabilities. Because both the par value of the water bonds and the value of the related debt exceed $300,000.00, either subtraction of the water bonds from assets or addition of the debt to liabilities would result in a finding of insolvency under the balance sheet test. 11 U.S.C. § 101(26)(A) (1979); See Constructora Maza, Inc. v. Banco de Ponce, 616 F.2d 573, 577 (1st Cir.1980) (balance sheet test of insolvency applied).
. Testimony at trial established that the overdraft was on the account of either Investments or Securities, although it was not clear which corporation was responsible for the overdraft. The parties and the district court attribute the overdraft to Investments. Because the corporations have been consolidated in this action the account holder need not be identified. For simplicity sake we will assume the overdraft was on the account of Investments.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_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.
UNITED STATES v. UNIVERSAL C. I. T. CREDIT CORPORATION et al.
No. 47.
Argued November 18-19, 1952.
Decided December 22, 1952.
John F. Davis argued the cause for the United States. With,him on the brief were Acting Solicitor General Stern, Assistant Attorney General Murray, Beatrice Rosenberg, J. F. Bishop, William S. Tyson and Bessie Margolin. Philip B. Perlman, then Solicitor General, was on the Statement as to Jurisdiction.
Melbourne Bergerman argued the cause for appellees. With him on the brief were Aaron Lewittes, Seymour Kleinman and James P. Aylward.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This case arises on an information under §§15 and 16 (a) of the Fair Labor Standards Act, 52 Stat. 1060, 1068-1069, as amended, 63 Stat. 910, 919, 29 U. S. C. §§ 215, 216 (a), charging the defendant corporation, its division operations manager and two successive branch managers with violations of the minimum wage, overtime, and record-keeping provisions of the Act. Thirty-two counts were laid: six for failure under § 6 of the Act to pay minimum wages, twenty for violation of the overtime provisions of § 7, and six for failure to comply with the requirements for record-keeping under § 11. Counts 1-6 charge minimum wage violations in six separate weeks, one per week, but only as to one employee in any one week and only as to three employees in all. Counts 7-26 charge overtime violations in twenty separate weeks, one per week. A total of eleven employees are involved, two violations having been charged as to each of nine employees. Counts 27-32 charge record-keeping violations as to four employees, two violations as to each of two employees being charged. Section 16 of the Act subjects an employer, offending for the first time, to a maximum fine of $10,000 for violation of any provision of § 15, and would, the District Court assumed, authorize a fine of $320,000 upon conviction under this information.
Rejecting a reading of § 15 whereby the prosecutor could treat as a separate offense each breach of the statutory duty owed to a single employee during any single workweek, the District Court granted defendant’s motion to dismiss all but three counts of the information. The court held that it is a course of conduct rather than the separate items in such course that constitutes the punishable offense and ordered consolidation of the separate acts set forth in the information into three counts, charging one violation each of §§ 6, 7 and ll. To review this decision, the Government brought the case here under the Criminal Appeals Act, 34 Stat. 1246, 18 U. S. C. § 3731.
The problem of construction of the criminal provisions of the Fair Labor Standards Act is not easy of solution. What Congress has made the allowable unit of prosecution — the only issue before us — cannot be answered merely by a literal reading of the penalizing sections. Generalities about statutory construction help us little. They are not rules of law but merely axioms of experience. Boston Sand Co. v. United States, 278 U. S. 41, 48. They do not solve the special difficulties in construing a particular statute. The variables render every problem of statutory construction unique. See United States v. Jin Fuey Moy, 241 U. S. 394, 402. For that reason we may utilize, in construing a statute not unambiguous, all the light relevantly shed upon the words and the clause and the statute that express the purpose of Congress. Very early Mr. Chief Justice Marshall told us, “Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived . . . .” United States v. Fisher, 2 Cranch 358, 386. Particularly is this so when we construe statutes defining conduct which entail stigma and penalties and prison. Not that penal statutes are not subject to the basic consideration that legislation like all other writings should be given, insofar as the language permits, a commonsensical meaning. But when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.
The penal provision of the Fair Labor Standards Act is only part of a scheme available to the Government and to the employee for enforcing the Act. The preventive remedy of an injunction and individual or class actions for restitution and damages in § 16 (b) are not only also available. They are the remedies more frequently invoked and more effective in achieving the purposes of the Act. Of course the various remedies must be read in relation to each other. But we are asked here in addition to infer that an employer’s failure to perform his obligations as to each employee creates a separate criminal offense because the provisions for civil liability in § 16 (b) expressly recognize a right in the individual employee to maintain a separate action against his employer for restitution and damages. The argument cuts both ways. If Congress had wanted to attach criminal consequences to each separate civil liability it could easily have said so, just as it had no difficulty in stating explicitly that the unit for civil liability was what was owing to each employee. Instead of balancing the various generalized axioms of experience in construing legislation, regard for the specific history of the legislative process that culminated in the Act now before us affords more solid ground for giving it appropriate meaning.
When originally introduced in Congress, the bill out of which the Fair Labor Standards Act evolved had two separate penalty provisions, one for underpayments in violation of § 6 or § 7 and one for failure to comply with the record-keeping provisions of § 11. Each provision set the maximum fine at $500 and explicitly defined what constituted a separate offense. As to §§ 6 and 7 the employee was the unit of criminal offense and as to § 11 each week of violation was a separate offense. After the measure wound its way through a long legislative process there resulted consolidation of the two penalty provisions, elimination of the separate offense clauses, and substitution of $10,000 for $500 as the maximum fine. These rather striking changes would in themselves afford justifiable ground for giving the less harsh and therefore more reasonable construction to the offense-creating portions of the legislation. In addition, we have illuminating statements in both houses concerning the separation of offenses. Although the separate offense clause for record-keeping violations was deleted early in the legislative process, the other separate offense clause was attacked in debate precisely because it would authorize the sort of multiplication of offenses by the number of employees that the information before us represents. Indeed, multiplication in this information goes beyond what even the original bills would have authorized. Underpayments of the same employees are split into separate counts of the information, and record-keeping violations during the same week are split to serve as the basis of separate counts.
It would be self-deceptive to claim that only one answer is possible to our problem. But the history of this legislation and the inexplicitness of its language weigh against the Government’s construction of a statute that cannot be said to be decisively clear on its face one way or the other. Because of the history and language of this legislation, the case is not attracted by the respective authority of two cases pressed upon us. In re Snow, 120 U. S. 274, and Blockburger v. United States, 284 U. S. 299.
The district judge was therefore correct in rejecting the Government’s construction of the statute. The offense made punishable under the Fair Labor Standards Act is a course of conduct. Such a reading of the statute compendiously treats as one offense all violations that arise from that singleness of thought, purpose or action, which may be deemed a single “impulse,” a conception recognized by this Court in the Blockburger case, supra, at 302, quoting Wharton’s Criminal Law (11th ed.) § 34. Merely to illustrate, without attempting to rule on specific situations: a wholly unjustifiable managerial decision that a certain activity was not work and therefore did not require compensation under F. L. S. A. standards cannot be turned into a multiplicity of offenses by considering each underpayment in a single week or to a single employee as a separate offense.
However, a wholly distinct managerial decision that piece workers should be paid less than the statutory requirement in terms of hourly rates, see United States v. Bosenwasser, 323 U. S. 360, involves a different course of conduct, and so would constitute a different offense. Thus, underpayments based on violations of the statute as to these piece workers could not be compounded into a single offense with unrelated underpayments which resulted from the decision that a certain activity was not work, merely because the two kinds of underpayments occurred in the same workweek or involved the same employee. Whether an aggregate of acts constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts.
This information is based on what we find to be an improper theory. But a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence. He may cast the indictment in several counts whether the body of facts upon which the indictment is based gives rise to only one criminal offense or to more than one. To be sure, the defendant may call upon the prosecutor to elect or, by asking for a bill of particulars, to render the various counts more specific. In any event, by an indictment of multiple counts the prosecutor gives the necessary notice and does not do the less so because at the conclusion of the Government’s case the defendant may insist that all the counts are merely variants of a single offense.
By affirming this order without prejudice to amendment of the information, we do not mean to suggest that amendment to increase the number of offenses may be made after trial has begun. But the Government is not precluded from now amending the information either to meet the exigencies of the evidence or to charge as separate offenses separate courses of conduct as to each substantive provision. All we now decide is that the district judge correctly held that a single course of conduct does not constitute more than one offense under § 15 of the Fair Labor Standards Act.
Without prejudice to amendment of the information before trial if the evidence to be offered warrants it, the order below is
Affirmed.
The criminal enforcement provisions of the Fair Labor Standards Act are §§ 15 and 16. Section 16 provides a maximum fine of $10,000 for “[a]ny person who willfully violates any of the provisions of section 15 . . . .” Section 15 makes it “unlawful for any person ... (2) to violate any of the provisions of section 6 or section 7 ... (5) to violate any of the provisions of section 11 (c) . . . .” Section 6 provides, “Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce . . . not less than 75 cents an hour; . . . .” Section 7 provides “. . .no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” Section 11 (c) requires the employer to “make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order . . . .”
102 F. Supp. 179, 186, modified by Order dated March 10, 1952, R. 20.
The Government urges that the Act be construed “to punish each failure to comply with each duty imposed by the Act as to each employee in each workweek and as to each record required to be kept.” Brief for United States, p. 10. However, in none of the first 26 counts, charging minimum wage or overtime underpayments, were similar violations charged as to two employees in the same week, so that it would be sufficient in this case to urge that the violations may be split according to the workweek, rather than also according to the employee. As to the last six counts, charging record-keeping violations, it might have been possible for the Government to urge less than that each record required to be kept is a separate offense. With one minor exception, violations were alleged as to at least two employees in every workweek for which record-keeping violations were charged. The workweek was not the unit of prosecution, since the periods of time in these six counts range from about seven weeks to over six months. But the employee was also not the unit, since although violations as to each employee were made into separate charges, two employees are the subject of two charges apiece.
Whatever differences exist between the minimum necessary to sustain this particular information and the claim made by the Government are immaterial, in view of our disposition of the case.
Appellee does not urge in this case that § 15 prescribes only-one offense even if there are three kinds of violations. Such an argument seems to have been made and was rejected, as to distinct requirements under two different sections of the act there involved, in Blockburger v. United States, 284 U. S. 299, 305, where the penal provision applied to “any person who violates or fails to comply with any of the requirements of this act.”
See §§ 27 (a) and 27 (b) in S. 2475 and H. R. 7200, 75th Cong., 1st Sess.
In §27 (a), the clause read: “Where the employment of an employee in violation of any provision of this Act or of a labor-standard order is unlawful, each employee so employed in violation of such provision shall constitute a separate offense.” In §27 (b), the clause was: “. . .' and each week of such failure to keep the records required under this Act or to furnish same to the Board or any authorized representative of the Board shall constitute a separate offense.”
See 81 Cong. Rec. 7792; 81 Cong. Rec. 9507; 82 Cong. Rec. 1828. Force is added to these statements by the fact that one was made by a member of the House who proposed the amendment which was adopted, by vote on division, specifically to delete the separate offense clause of §27 (a) (then §22 (a)). 82 Cong. Rec. 1828-1839. The bill thus came to the Conference from the House with both separate offense clauses deleted, but from the Senate with only the clause of § 27 (b) deleted. Both versions still provided a maximum fine of $500. The Conference accepted the House version, with neither separate offense clause, but raised the maximum fine to $10,000. See S. 2475, 75th Cong., 1st Sess., §§ 23 (a), 23 (b), as reported from Committee, July 8, 1937; 81 Cong. Rec. 7957; H. R. Rep. No. 2182, 75th Cong., 3d Sess. 5; 83 Cong. Rec. 7450; Conference Report, § 16 (a), 83 Cong. Rec. 9249.
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_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
In re OWEN.
Court of Appeals of District of Columbia.
Submitted March 13, 1928.
Decided April 2, 1928.
No. 2038.
I. Patents <§=>28 — Originality and beauty are necessary to obtain design patent; mere mechanical skill being insufficient (35 USCA § 73).
To entitle one to a design patent under Rev. St. § 4929, as amended (35 USCA § 73; Comp. St. § 9475), there must be originality and beauty; mere mechanical skill being insufficient.
2.. Patents <§=>22 — Substitution of handles, differing little in design from handles of prior art, on ends of electric storage battery container, held not to involve invention (35 US CA § 73).
Mere substitution of handles, differing little in design from handles of prior art, on ends of electric storage battery container, held not tó. involve invention, entitling applicant to design patent under Rev. St. § 4929, as amended (35 'USCA § 73; Comp. St. § 9475).
Appeal from the Commissioner of Patents.
In the matter of the application of Prederieka D. Owen, administratrix of the estate of Richard B. Owen, deceased, for a design patent. Prom a decision of the Commissioner of Patents refusing to allow the application, applicant appeals.
Affirmed.
B. F. Garvey, of Washington, D. C., for appellant.
T. A. Hostetler, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
ROBB, Associate Justice.
Appeal from a decision of the Patent Office refusing to allow appellant’s application for a design patent in the form of an electric storage battery container.
The container is a plain, rectangular receptacle, with a handle projecting from the top of each end.
Section 4929, R. S., as amended (35 USCA § 73; Comp. St. § 9475), provides that “any person who has invented any new, original, and ornamental design for an article of manufacture, not known or used by others in this country before his invention thereof, and not patented or described in any printed publication in this or any foreign country before his invention thereof, * * * may, upon payment of the fees required by law and other due proceedings had, * * * obtain a patent therefor.”
To entitle one to a design patent, there must be “originality and beauty. Mere mechanical skill is insufficient.” Smith v. Whitman Saddle Co., 148 U. S. 674, 13 S. Ct. 768, 37 L. Ed. 606. See, also, H. C. White Co. v. M. E. Converse & Sons Co. (C. C. A.) 20 F.(2d) 311.
As observed by the Commissioner, handles were old, and the mere substitution of applicant’s handle, which differs little in design from the handles of the prior art, does not involve invention.
The decision is affirmed.
Affirmed.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Plaintiff-Appellee, v. Robert A. SWANSON, Defendant-Appellant.
No. 71-1115.
United States Court of Appeals, Seventh Circuit.
Jan. 5, 1972.
Gerald M. Werksman, Sheldon Golding, Chicago, 111., for defendant-appellant.
James R. Thompson, U. S. Atty., Donald C. Shine, Asst. U. S. Atty., William J. Bauer, U. S. Atty., Chicago, 111., for plaintiff-appellee. John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.
Before CASTLE, Senior Circuit Judge, and KILEY and SPRECHER, Circuit Judges.
CASTLE, Senior Circuit Judge.
The defendant-appellant Robert A. Swanson, was convicted upon his plea of guilty to a three-count indictment charging him with transporting forged securities in interstate commerce in violation of 18 U.S.C.A. § 2314. On February 8, 1968, the District Court entered judgment sentencing the defendant to three years imprisonment on each count, the sentences to run concurrently. The judgment order suspended execution of the sentences and placed the defendant on probation for a period of three years. It further ordered that during such period the defendant “shall conduct himself as a law-abiding, industrious citizen”.
The defendant prosecutes this appeal from a November 10, 1970, order of the District Court revoking his probation and committing him to custody under the sentences originally imposed. This revocation order was entered after a hearing was held pursuant to a rule on the defendant to show cause why probation should not be revoked. Defendant had been arrested on a bench warrant, and he was present with counsel who participated in the hearing. Defendant’s probation was revoked because of his conviction and sentence to the Illinois penitentiary in September 1970 for a burglary committed following his release on probation. He had been arrested on June 10, 1968, on the state burglary charge and indicted therefor in January 1969 but did not report these facts to the Probation Office on subsequent reporting dates.
The defendant contended on brief that the District Court was without jurisdiction or authority to enter the November 10, 1970, order which revoked his probation and committed him under the sentences originally imposed. In this connection the defendant pointed out that the record discloses that on February 11, 1970, the government, acting on a report from the Probation Office that defendant had complied with all of the conditions of probation satisfactorily and “is no longer in need of probation supervision”, moved to “terminate” defendant’s probation, and the court entered an order that the defendant “be discharged from probation”. The defendant urged that, therefore, the court had no jurisdiction over him after February 11, 1970. However, on oral argument before this Court the defendant’s counsel conceded that under the controlling statutory provisions (18 U. S.C.A. §§ 3651 and 3653) the District Court’s jurisdiction over the defendant had not terminated prior to the entry of the revocation order. That concession was correctly made. It is in keeping with the rationale and holdings of the cases cited and relied upon by the government to the effect that a district court’s jurisdiction over a person admitted to probation continues throughout the maximum probation period authorized by the statute (now 5 years under § 3651) even though the court fixed the period of supervised probation at a lesser time. In this respect, although § 3651 provides that a defendant’s liability for punishment imposed as to which probation is granted “shall be fully discharged by the fulfillment of the terms and conditions of probation”, § 3653 explicitly provides that:
“ . . . At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised or if he is no longer under supervision, the court for the district in which he was last under supervision, may issue a warrant for his arrest for violation of probation occurring during the probation period. . As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, . . . ”
Here, after the defendant was arrested for violation of his probation he was afforded a hearing, with counsel, in the District Court in conformity with Hahn v. Burke, 7 Cir., 430 F.2d 100. He does not contest that the showing made with respect to his conviction for a state felony committed during the period of his probation did establish a violation of the terms and conditions of probation.
The remaining contention of the defendant is premised on the fact that the record discloses that on March 12, 1970, the District Court on an ex parte motion of the government, and without notice to the defendant, ordered defendant’s probation “reinstated” because of his failure to report his arrest and subsequent indictment on the state burglary charge. In this connection the defendant argues that the trial court made a fundamental constitutional error by reinstating defendant’s probationary status without notice to the defendant and without affording him an opportunity to be heard thereon. But this argument is based on a misconception. It would have merit if such a “reinstatement” had been necessary as a condition prerequisite to the court’s revocation of probation. Such a reinstatement, however, was wholly unnecessary, and any infirmity of the March 12 order, constitutional or otherwise, due to lack of notice and hearing, supplies no basis which requires a reversal or vacation of the November 10, 1970 order revoking probation and committing defendant under the sentences originally imposed. The step taken by the government to “reinstate” defendant’s probation was not essential to the court’s exercise of its jurisdiction and authority under Sections 3651 and 3653 to enter the November 10 order. The only effect of the order of February 11 “discharging” the defendant from probation was to terminate his supervision by the Probation Office. In this respect § 3653 provides:
“When directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereupon discharge the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable. ft
The February 11 order did not terminate the court’s jurisdiction and authority under the remaining portion of § 3653, previously quoted herein, to act within the probation period to “revoke the probation and require [the probationer] to serve the sentence imposed”.
The District Court acted timely within the period of its jurisdiction and authority over the defendant to revoke his probation on grounds which are uncontested and to require him to serve the sentences originally imposed but suspended. It is obvious that the reinstatement order was entered without procedural due process. But that order was surplusage and the defendant was in no manner prejudiced thereby.
The order appealed from is affirmed.
Affirmed.
. The plea was entered November 17, 1967, under Rule 20 of the Federal Rules of Criminal Procedure.
. Those cases include Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282; Williams v. Hunter, 10 Cir., 165 F.2d 924; Whitehead v. United States, 6 Cir., 155 F.2d 460; United States v. Van Riper, 2 Cir., 113 F.2d 929; and United States v. Moore, 2 Cir., 101 F.2d 56. Insofar as here pertinent the only difference in the statute at the time of these decisions was that the maximum probation period was measured by the maximum period for which the defendant might originally have been sentenced, rather than the 5 year period now prescribed in § 3651.
. In the interim between the February 11 order discharging the defendant from supervised probation and March 12, 1970, the government had learned from other sources of the defendant’s 1969 arrest and indictment for burglary. It was thus apprised of the Probation Office’s mistake in having earlier reported favorably on defendant’s compliance with the conditions of probation — which mistake had been occasioned by the defendant’s failure to disclose his arrest and indictment in the reports he was required to make.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_usc1
|
26
|
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.
William L. RICHARDS, Jr. and Frances M. Richards, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 17244.
United States Court of Appeals Sixth Circuit.
Aug. 17, 1967.
William L. Richards, Jr., in pro. per.
J. Nicholas McGrath, Atty., Dept, of Justice, Washington, D. C. (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Gilbert E. Andrews, Anthony Zell Roisman, Attys., Dept, of Justice, Washington, D. C., on the brief), for respondent.
Before CELEBREZZE, PECK and McCREE, Circuit Judges.
ORDER.
The facts of this case were stipulated to the Tax Court, from which this appeal was perfected, and are not in issue. They establish that in petitioner-appellant’s Federal income tax return for 1962 he claimed a deduction for the entire amount of payments made during the taxable year on account of a mortgage executed by him and his former wife. They then owned the subject property jointly, but under the terms of a separation agreement entered into in 1958, when they were divorced, appellant conveyed his one-half interest in the property to their four children.
The respondent-appellee disallowed one-half of the amount of the mortgage payments claimed by appellant as an alimony deduction and the Tax Court confirmed that determination. 26 U.S.C. § 215(a) permits as a deduction in the return of a taxpayer paying alimony amounts includable “in the gross income of his [former] wife,” and therefore the dispositive issue in this case is whether the one-half of the mortgage payments disallowed by appellee constituted taxable income to appellant’s former wife.
As above indicated, there is no issue concerning the deductibility of one-half of the mortgage payments; that one-half increased the value of the former wife’s equity in the property and constituted income to her. Conversely, the remaining one-half increased only the value of the equity of the four children, and not only did not in any way increase the value of the former wife’s holdings but also did not constitute taxable income to her. The disallowance by the appellee and the conclusion of the Tax Court properly reflect the applicable law. See Kiesling v. United States, 349 F.2d 110 (3d Cir. 1965); Seligmann v. Commissioner of Internal Revenue, 207 F.2d 489 (7th Cir. 1953); Neely B. Taylor, Jr., 45 T.C. 120; and James Parks Bradley, 30 T.C. 701.
Affirmed.
Petitioners-appellants filed a joint return for the year in question, a remarriage having occurred. Since, however, we are here concerned only with the deduction claimed by the husband the term “appellant” will be hereinafter used.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_respond1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
DOGGETT v. CHELSEA TRUST CO.
No. 2908.
Circuit Court of Appeals, First Circuit.
Nov. 10, 1934.
Harry Shapiro, of Boston, Mass. (Alexander C. Gould, of Boston, Mass., on the brief), for appellant.
Lafayette R. Chamberlin, of Boston, Mass. (Chamberlin, Stone & Bosson, of Boston, Mass., on the brief), for appellee.
Before BINGHAM, WILSON, and •MORTON, Circuit Judges.
WILSON, Circuit Judge.
This is an appeal from an order of the District Court of Massachusetts affirming the orders of a referee in bankruptcy.
From the pleadings set forth in the record, it appears that the H. T. West Company, which hereinafter will be referred to as the West Co., filed a voluntary petition in bankruptcy on August 23, 1932, and on the same day it was adjudicated a bankrupt, and the case was referred to a referee in bankruptcy. On September 20, 1932, the appellant was appointed trustee of the estate of the bankrupt.
On September 14 the appellee, which hereinafter will be referred to as the Trust Company, filed a petition with the referee setting forth that in the regular course of business it had loaned the bankrupt money and taken notes as evidence of said loan with an assignment of accounts receivable as collateral security; that the trustee since his appointment had collected said accounts receivable and had refused to turn over iho sums so collected to the Trust Company, and prayed that the trustee be ordered to turn over the proceeds thereof to the Trust Company.
To this petition the trustee answered, admitting Hint lie had collected certain of the accounts receivable, but with ihe approval of the court and consent of the Trust Company, and that he was holding the proceeds subject to the order of (lie court; but set forth that within four months of the filing of iho petition in bankruptcy the bankrupt had transferred property to the Trust Company under conditions which resulted in giving ihe Trust Company a preference over oilier creditors and prayed that such transfer be declared to be a voidable preference.
The trustee also filed a petition with the referee alleging that the Trust Company had in its possession approximately $1,700 represented by certificates of deposit, whieh had been improperly withhold by the Trust Company; that since the filing of the petition in bankruptcy it had collected the sum of $115.91 oil a certain trade acceptance, ihe proceeds of which it had improperly withheld from the trustee; and that the Trust Company had also improperly withheld deposits made by the bankrupt prior to the filing of its petition in bankruptcy in the amount of approximately $3,3ol.
The referee heard those petitions by agreement of the parties, who waived all questions as to pleadings and jurisdiction, and, in general, found that the Trust Company was entitled to apply in payment of a $5,000 note, though not yet due, the deposits of $3,361.91, and ihe $1,704.78 alleged to be held on certificates of deposit, and that it was entitled to have the trustee turn over to it the sum of $4,920.67, whieh it was agreed that the trustee had collected on the assigned accounts receivable, less the sum of $115.91 collected by the Trust Company on the trade acceptance, and ihat the Trust Company was entitled to collect the remainder of the accounts receivable assigned to it prior to bankruptcy and after liquidation of all the indebtedness of the bankrupt, pay any balance to the trustee.
On the petition of the trustee for a review of the referee’s order, the referee certified to the District Court his findings of fact, whieh, in substance, are as follows:
-//,/The Trust Company had been lending money to the West Co. for about twelve years. On April 7, 1932, two unsecured notes of $5,000 each fell due. Following a practice of long standing, the West Co. substituted two new notes, unsecured, for $5,000 each, and payable on July 7, 1932. Shortly after this, and before April 28, 1932, the West Co. asked for a new loan. By this time the bank had come under new management. A new president insisted upon an examination of the affairs of Iho West Co., and it was found that the West Co. was borrowing from a New York finance company on accounts receivable. The Trust Company refused to go on if thé West Co. continued to pledge its «accounts receivable to outside finance compiinies. The new president demanded that the West Co. must do all of its business with the Trust Company, or none. Accordingly, it was arranged for the Trust Company to advance about $4,500 with which the- West Co. paid off the New York finance company and got back the receivables previously pledged to that company. The Trust Company then insisted that the West Co. take up one of the $5,000 unsecured notes whieh was not due until July 7, 1932, and substitute therefor a collateral note for $5,000, secured by a second mortgage on some property in Winchester. This new note was dated April 28, 3932, and made payable July 28, 1932.
After this new arrangement the Trust Company made loans to the West Co. from time to time on accounts receivable to the extent of 65 per cent, of their face value, taking in each instance an assignment of such receivables to secure the advances made. The Trust Company, however, allowed the West Co. to collect the assigned receivables and to keep 35 per cent, of the amount so collected; the remaining 65 per cent, being paid to the Trust Company in reduction of its loans.
On «July 7, 1932, when the second $5,000 unsecured note fell due, the Trust Company demanded and received a note in collateral form, which became due October 7, 1932, and whieh provided that any moneys or other property of the maker in the possession of the Trust Company might at all times at the option of the Trust Company be held and treated as collateral for its payment. When the note of $5,000 secured by the Winchester mortgage came due on July 28, 1932, it was also renewed for three months in collateral form. Thereafter business between the Trust Company and the West Co. continued «as usual, and the Trust Company continued to advance substantial sums on receivables «assigned as security.
On August 13, 1932, the treasurer of the West Co. informed the Trust Company that the West Co. had to have about $5,000 more to pay a creditor who was pressing for payment. At this time the West Co., in addition to the $10,000 evidenced by the two collateral notes, owed the Trust Company $7,842 for new money advanced on assigned accounts receivable as security. The Trust Company refused to make further loans to the West Co. and proceeded to liquidate its loans.
On August 15 following, the Trust Company applied the entire amount which the West Co. had on deposit subject to cheek, viz., $3,361.91, in liquidation of the $5,000 collateral note due October 7,1932.
The Trust Company also proceeded to collect the receivables assigned to it. There was evidently an understanding between the parties that the 35 per cent, which had previously been retained by the West Co. should now be held by the Trust Company in a separate ' fund, against which the Trust Company would issue certificates of deposit. No certificates of deposit, however, were ever issued to the West Co. The 35 per cent, of the receivables collected by the Trust Company before a receiver- was appointed for the West Co. amounted to $1,704.78. The Trust Company at some time after the adjudication of bankruptcy, and before the appointment of the trustee, applied this sum to the liquidation of the collateral note due October 7, 1932, which sum, together with the amount of the checking account already applied by the Trust Company to this note, was sufficient to pay it in full.
Upon these facts the referee found there was no preference received by the Trust Company as a result of these transactions, and held that the terms of the collateral notes given on July 7 and July 28 were broad enough to permit the Trust Company to apply both the sum on deposit subject to check and all sums collected on the receivables in liquidation of the indebtedness of the bankrupt. The District Court by its order affirmed the •order of the referee, though in its memorandum of decision it inadvertently stated that the referee’s order permitted the Trust Company to retain also the sum of $115.91 collected on the trade acceptance after the filing of the petition in bankruptcy, although the referee expressly stated in his order that the trustee in bankruptcy was entitled to have turned over to him this sum. We think the District Court’s order must be understood as being modified to this extent,
The notes of July 7 and July 28 did not increase the indebtedness of the bankrupt. They were given for a valid consideration, viz., the discharge of a prior note for the same amount. No preference resulted in giving these notes. The application by the Trust Company of the deposits on hand on August 15 of $3,361.91 was warranted, we think, by the Trust Company’s right of set-off under the Bankruptcy Act (11 USCA).
No reasonable objection could be raised by a trustee in bankruptcy to the Trust Company availing itself of this right of set-off under the circumstances of this case, since, as trustee in bankruptcy, he would have been obliged to allow it after adjudication. While the authorities do not appear to be entirely in accord as to the right of set-oil in all eases against notes not due, there are authorities which sustain such right of set-off by a bank under sections 63 and 68 of the Bankruptcy Act (11 USCA §§ 103,108), especially where the insolvency of the debtor is apparent and bankruptcy later follows. Rupp v. Commerce Guardian Trust & Savings Bank (C. C. A.) 32 F.(2d) 234; Germania Savings Bank & Trust Co. v. Loeb (C. C. A.) 188 F. 285; American Bank & Trust Co. v. Morris (C. C. A.) 16 F.(2d) 845; Putnam v. United States Trust Co., 223 Mass. 199, 202, 111 N. E. 969; Carr v. Hamilton, 129 U. S. 252, 256, 9 S. Ct. 295, 32 L. Ed. 669; Federal Reserve Bank of Minneapolis v. First National Bank of Eureka, S. D. (D. C.) 277 F. 300, 302, 303.
There is no ground for a contention that the deposits amounting to $3,361.91 were made except in the usual course of business and were subject to cheek. From July 7 to August 13 the bankrupt did business as usual, making deposits and issuing cheeks against the deposit, which were honored by the Trust Company. There are no facts certified to by the referee that require the inference that it received them for the purpose of building up a deposit to set off against the depositor’s notes, or that the depositor had any intent to thereby give the Trust Company a preference over other creditors. Plymouth County Trust Co. v. MacDonald (C. C. A.) 60 F.(2d) 94, 95; Fourth National Bank of Wichita, Kan., v. Smith (C. C. A.) 240 F. 19.
As to the application of the $1,700 item, a different situation arises. The right to offset this sum against the indebtedness of the bankrupt must depend on the terms of the collateral notes and of the assignment of the accounts receivable, or an equitable right of set-off. Scott v. Armstrong, 146 U. S. 499, 13 S. Ct. 148, 36 L. Ed. 1059; Putnam v. United States Trust Co., supra; Schuler v. Israel, 120 U. S. 506, 510, 7 S. Ct. 648, 30 L. Ed. 707; 24 R. C. L. 843; Nashville Trust Co. v. Nashville Fourth National Bank, 91 Tenn. 336, 18 S. W. 822, 15 L. R. A. 710.
The collateral notes were general in form and were drafted to apply also to other situations than those present here, and contained the following provisions, which are applicable to the facts in this case:
“It is further agreed that any moneys or other property at any time in the possession of the Trust Company belonging to any of the parties liable hereon to the Trust Company, as maker or endorser or guarantor, and any deposits, balance of deposits, or other sums at any time credited by or due from the Trust Company to any of said parties, inay at all times at the option of the Trust Company, be held and treated as collateral security for the payment of this note or any other liability of the maker hereof to the Trust Company, whether due or not due, and the Trust Company may at any time at its option set off the amount due or to become due hereon against any claim of any of said parties against the Trust Company.” (Italics supplied.)
The assignment of the accounts receivable was given for a valid consideration, viz., a loan of 65 per cent, of their face, and under its terms the Trust Company was entitled to collect the entire amount and apply it on the loans to secure which they were assigned as collateral, at least until fully paid. The assignor was entitled to any balance, unless the collateral notes given July 7 and July 28 gave to the Trust Company the right to retain any such balance and apply it on the notes of July 7 and July 28.
Until August 13, 1932, there was no apparent change in the business relations between the Trust Company and the bankrupt. The Trust Company, no doubt, from the fact that it was requiring collateral on all its loans, had become satisfied in April, 1932, that the bankrupt’s credit w'as somewhat impaired, but it does not follow that it had become convinced that the West Co. was insolvent and would not eventually meet its obligations. Conservative banking alone required that it protect its future loans.
On August 13, however, it was faced with the proposition that the West Co. needed $5,-000 to meet the demands of a creditor who was pressing for payment. It already owed the Trust Company nearly $18,000. We think the Trust Company was then warranted in concluding that the West Co. was insolvent, as it was later conclusively shown to be by its voluntary petition in bankruptcy filed ten days thereafter.
What the actual status of the $1,700 item was at the time of the adjudication of bankruptcy, or when a receiver was appointed, is not clear from the record. The Trust Company on August 15 took over the collection of the accounts receivable, as it had a right to do under the assignments; there being nothing in the written assignment to the contrary, or permitting the West Co. to collect. While the referee found that some arrangement was made by which the Trust Company agreed to retain 35 per cent, in a special fund and issue certificates of deposit therefor, it was not required to do so by the terms of the assignment. No certificates of deposit against this fund were ever issued; but at some time, either upon the adjudication of bankruptcy, or the appointment of a receiver, the Trust Company applied this $1,700 item on the note of the bankrupt dated July 7, 1932. That it was not then due is no ground of objection to this procedure, since, if not a preference, they were a proper set-off under sections 63 and 68 of the act (11 USCA §§ 103, 108); an adjudication in bankruptcy having taken place. New York County National Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Studloy v. Boylston National Bank, 229 U. S. 523, 33 S. Ct. 806, 57 L. Ed. 1313; Fourth National Bank v. Smith, supra. This procedure by the Trust Company was also warranted by the terms of its collateral notes.
The assignment of the accounts receivable in good faith as security for a present loan cannot be held to be a preference, even if made within four months of bankruptcy. The giving of a new note for an old matured note within four months of a petition in bankruptcy is not a preference, nor does the fact that it contained a provision that any collateral held by the payee, or any funds which came into its hands should be applied in payment, constitute a preference unless the debtor was insolvent, and the creditor had reasonable grounds to believe it would effect a preference. Sections 60a and 60b of the act (11 USCA § 96 (a,b); Peck & Co. v. Whitmer (C. C. A.) 231 F. 893; Essley Machinery Co. v. Belsley (C. C. A.) 235 F. 285. That the collateral notes were not given to prefer the Trust Company over other creditors, or that they were procured by the Trust Company for that purpose, is evidenced by the fact that up to August 15 the Trust Company permitted the bankrupt to collect the accounts receivable and retain 35 per cent, thereof, paying the balance only to the Trust Company. The burden of proving the facts constituting a voidable preference was on the trustee.
These facts the referee must have found in favor of the Trust Company. The evidence on which the referee based his findings of fact is not before this court, but we see nothing in the pleadings or the certificate of facts by the referee to require a contrary finding by the District Court, or this court.
If the accounts receivable were assigned for a valid consideration and no preference resulted from the giving of the collateral notes, then the Trust Company was entitled to collect the entire receivables and apply them to any indebtedness of the bankrupt. The order of the referee to that effect, therefore, was properly affirmed.
Except as to the item of the trade acceptance amounting to $115.91, the order of the District Court is affirmed, with costs, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
sc_casesource
|
026
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
WALKER PROCESS EQUIPMENT, INC. v. FOOD MACHINERY & CHEMICAL CORP.
No. 13.
Argued October 12-13, 1965.
Decided December 6, 1965.
Charles J. Merriam argued the cause for petitioner. With him on the briefs were Edward A. Haight and Louis Robertson.
Sheldon 0. Collen argued the cause for respondent. With him on the brief were R. Howard Goldsmith, Charles W. Ryan and Lloyd C. Hartman.
Daniel M. Friedman argued the cause for the United States, as amicus curiae, urging reversal. On the brief were Assistant Attorney General Orrick and Robert B. Hummel.
Mr. Justice Clark
delivered the opinion of the Court.
The question before us is whether the maintenance and enforcement of a patent obtained by fraud on the Patent Office may be the basis of an action under § 2 of the Sherman Act, and therefore subject to a treble damage claim by an injured party under § 4 of the Clayton Act. The respondent, Food Machinery & Chemical Corp. (hereafter Food Machinery), filed this suit for infringement of its patent No. 2,328,655 covering knee-action swing diffusers used in aeration equipment for sewage treatment systems. Petitioner, Walker Process Equipment, Inc. (hereafter Walker), denied the infringement and counterclaimed for a declaratory judgment that the patent was invalid. After discovery, Food Machinery moved to dismiss its complaint with prejudice because the patent had expired. Walker then amended its counterclaim to charge that Food Machinery had “illegally monopolized interstate and foreign commerce by fraudulently and in bad faith obtaining and maintaining ... its patent . . . well knowing that it had no basis for ... a patent.” It alleged fraud on the basis that Food Machinery had sworn before the Patent Office that it neither knew nor believed that its invention had been in public use in the United States for more than one year prior to filing its patent application when, in fact, Food Machinery was a party to prior use within such time. The counterclaim further asserted that the existence of the patent had deprived Walker of business that it would have otherwise enjoyed. Walker prayed that Food Machinery’s conduct be declared a violation of the antitrust laws and sought recovery of treble damages.
The District Court granted Food Machinery’s motion and dismissed its infringement complaint along with Walker’s amended counterclaim, without leave to amend and with prejudice. The Court of Appeals for the Seventh Circuit affirmed, 335 F. 2d 315. We granted cer-tiorari, 379 U. S. 957. We have concluded that the enforcement of a patent procured by fraud on the Patent Office may be violative of § 2 of the Sherman Act provided the other elements necessary to a § 2 case are present. In such event the treble damage provisions of § 4 of the Clayton Act would be available to an injured party.
I.
As the case reaches us, the allegations of the counterclaim, as to the fraud practiced upon the Government by Food Machinery as well as the resulting damage suffered by Walker, are taken as true. We, therefore, move immediately to a consideration of the legal issues presented.
Both Walker and the United States, which appears as amicus cunde, argue that if Food Machinery obtained its patent by fraud and thereafter used the patent to exclude Walker from the market through “threats of suit” and prosecution of this infringement suit, such proof would establish a prima facie violation of § 2 of the Sherman Act. On the other hand, Food Machinery says that a patent monopoly and a Sherman Act monopolization cannot be equated; the removal of the protection of a patent grant because of fraudulent procurement does not automatically result in a § 2 offense. Both lower courts seem to have concluded that proof of fraudulent procurement may be used to bar recovery for infringement, Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 (1945), but not to establish invalidity. As the Court of Appeals expressed the proposition, “only the government may ‘annul or set aside’ a patent,” citing Mowry v. Whitney, 14 Wall. 434 (1872). It went on to state that no case had “decided, or hinted that fraud on the Patent Office may be turned to use in an original affirmative action, instead of as an equitable defense. . . . Since Walker admits that its anti-trust theory depends on its ability to prove fraud on the Patent Office, it follows that . . . Walker’s second amended counterclaim failed to state a claim upon which relief could be granted.” 335 F. 2d, at 316.
II.
We have concluded, first, that Walker’s action is not barred by the rule that only the United States may sue to cancel or annul a patent. It is true that there is no statutory authority for a private annulment suit and the invocation of the equitable powers of the court might often subject a patentee “to innumerable vexatious suits to set aside his patent.” Mo wry, supra, at 441. But neither reason applies here. Walker counterclaimed under the Clayton Act, not the patent laws. While one of its elements is the fraudulent procurement of a patent, the action does not directly seek the patent’s annulment. The gist of Walker’s claim is that since Food Machinery obtained its patent by fraud it cannot enjoy the limited exception to the prohibitions of § 2 of the Sherman Act, but must answer under that section and § 4 of the Clayton Act in treble damages to those injured by any monopolistic action taken under the fraudulent patent claim. Nor can the interest in protecting patentees from “innumerable vexatious suits” be used to frustrate the assertion of rights conferred by the antitrust laws. It must be remembered that we deal only with a special class of patents, i. e., those procured by intentional fraud.
Under the decisions of this Court a person sued for infringement may challenge the validity of the patent on various grounds, including fraudulent procurement. E. g., Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 (1945); Hazel-Atlas Co. v. Hartford-Empire Co., 322 U. S. 238 (1944); Keystone Driller Co. v. General Excavator Co., 290 U. S. 240 (1933). In fact, one need not await the filing of a threatened suit by the patentee; the validity of the patent may be tested under the Declaratory Judgment Act, 28 U. S. C. § 2201 (1964 ed.). See Kerotest Mfg. Co. v. C-O Two Fire Equipment Co., 342 U. S. 180, 185 (1952). At the same time, we have recognized that an injured party may attack the misuse of patent rights. See, e. g., Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661 (1944). To permit recovery of treble damages for the fraudulent procurement of the patent coupled with violations of § 2 accords with these long-recognized procedures. It would also promote the purposes so well expressed in Precision Instrument, supra, at 816:
“A patent by its very nature is affected with a public interest. ... [It] is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope.”
III.
Walker’s counterclaim alleged that Food Machinery obtained the patent by knowingly and willfully misrepresenting facts to the Patent Office. Proof of this assertion would be sufficient to strip Food Machinery of its exemption from the antitrust laws. By the same token, Food Machinery’s good faith would furnish a complete defense. This includes an honest mistake as to the effect of prior installation upon patentability — so-called “technical fraud.”
To establish monopolization or attempt to monopolize a part of trade or commerce under § 2 of the Sherman Act, it would then be necessary to appraise the exclusionary power of the illegal patent claim in terms of the relevant market for the product involved. Without a definition of that market there is no way to measure Food Machinery’s ability to lessen or destroy competition. It may be that the device — knee-action swing diffusers — used in sewage treatment systems does not comprise a relevant market. There may be effective substitutes for the device which do not infringe the patent. This is a matter of proof, as is the amount of damages suffered by Walker.
As respondent points out, Walker has not clearly articulated its claim. It appears to be based on a concept of per se illegality under § 2 of the Sherman Act. But in these circumstances, the issue is premature. As the Court summarized in White Motor Co. v. United States, 372 U. S. 253 (1963), the area of per se illegality is carefully limited. We are reluctant to extend it on the bare pleadings and absent examination of market effect and economic consequences.
However, even though the per se claim fails at this stage of litigation, we believe that the case should be remanded for Walker to clarify the asserted violations of § 2 and to offer proof thereon. The trial court dismissed its suit not because Walker failed to allege the relevant market, the dominance of the patented device therein, and the injurious consequences to Walker of the patent’s enforcement, but rather on the ground that the United States alone may “annul or set aside” a patent for fraud in procurement. The trial court has not analyzed any economic data. Indeed, no such proof has yet been offered because of the disposition below. In view of these considerations, as well as the novelty of the claim asserted and the paucity of guidelines available in the decided cases, this deficiency cannot be deemed crucial. Fairness requires that on remand Walker have the opportunity to make its § 2 claims more specific, to prove the alleged fraud, and to establish the necessary elements of the asserted § 2 violation.
Reversed and remanded.
26 Stat. 209, 15 U. S. C. § 2 (1964 ed.):
“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor . . . .”
38 Stat. 731, 15 U. S. C. § 15 (1964 ed.):
“Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”
The patent in question was issued in the name of the inventor, Lannert. But he had previously assigned the patent rights to his employer, Chicago Pump Company, a division of Food Machinery.
See, e. g., United States v. New Wrinkle, Inc., 342 U. S. 371, 376 (1952).
This conclusion applies with equal force to an assignee who maintains and enforces the patent with knowledge of the patent’s infirmity.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
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211. Court of Private Land Claims
Answer:
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sc_respondentstate
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26
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
STEWART v. MASSACHUSETTS
No. 71-5446.
Decided June 29, 1972
Per Curiam.
The appellant in this case was sentenced to death. The imposition and carrying out of that death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v. Georgia, ante, p. 238. The motion for leave to proceed in forma pauperis is granted. The judgment is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and the case is remanded for further proceedings.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
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40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
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48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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sc_issue_1
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05
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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.
HUDSON v. PALMER
No. 82-1630.
Argued December 7, 1983
Decided July 3, 1984
Burger, C. J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O’Connor, JJ., joined, and in Part II-B of which BREnnan, Marshall, Blackmun, and Stevens, JJ., also joined. O’Connor, J., filed a concurring opinion, post, p. 537. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 541.
William G. Broaddus, Chief Deputy Attorney General of Virginia, argued the cause for petitioner in No. 82-1630 and respondent in No. 82-6695. With him on the briefs were Gerald L. Baliles, Attorney General, Donald C. J. Gehring, Deputy Attorney General, and Peter H. Rudy, Assistant Attorney General.
Deborah C. Wyatt argued the cause for respondent in No. 82-1630 and petitioner in No. 82-6695. With her on the briefs was Leon Friedman.
Together with No. 82-6695, Palmer v. Hudson, also on certiorari to the same court.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari in No. 82-1630 to decide whether a prison inmate has a reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures. We also granted certiorari in No. 82-6695, the cross-petition, to determine whether our decision in Parratt v. Taylor, 451 U. S. 527 (1981), which held that a negligent deprivation of property by state officials does not violate the Fourteenth Amendment if an adequate postdeprivation state remedy exists, should extend to intentional deprivations of property.
I
The facts underlying this dispute are relatively simple. Respondent Palmer is an inmate at the Bland Correctional Center in Bland, Va., serving sentences for forgery, uttering, grand larceny, and bank robbery convictions. On September 16, 1981, petitioner Hudson, an officer at the Correctional Center, with a fellow officer, conducted a “shakedown” search of respondent’s prison locker and cell for contraband. During the “shakedown,” the officers discovered a ripped pillowcase in a trash can near respondent’s cell bunk. Charges against Palmer were instituted under the prison disciplinary-procedures for destroying state property. After a hearing, Palmer was found guilty on the charge and was ordered to reimburse the State for the cost of the material destroyed; in addition, a reprimand was entered on his prison record.
Palmer subsequently brought this pro se action in United States District Court under 42 U. S. C. § 1983. Respondent claimed that Hudson had conducted the shakedown search of his cell and had brought a false charge against him solely to harass him, and that, in violation of his Fourteenth Amendment right not to be deprived of property without due process of law, Hudson had intentionally destroyed certain of his noncontraband personal property during the September 16 search. Hudson denied each allegation; he moved for and was granted summary judgment. The District Court accepted respondent’s allegations as true but held nonetheless, relying on Parratt v. Taylor, supra, that the alleged destruction of respondent’s property, even if intentional, did not violate the Fourteenth Amendment because there were state tort remedies available to redress the deprivation, App. 31 and that the alleged harassment did not "rise to the level of a constitutional deprivation,” id., at 32.
The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. 697 F. 2d 1220 (CA4 1983). The court affirmed the District Court’s holding that respondent was not deprived of his property without due process. The court acknowledged that we considered only a claim of negligent property deprivation in Parratt v. Taylor, supra. It agreed with the District Court, however, that the logic of Parratt applies equally to unauthorized intentional deprivations of property by state officials: “[O]nce it is assumed that a postdeprivation remedy can cure an unintentional but negligent act causing injury, inflicted by a state agent which is unamenable to prior review, then that principle applies as well to random and unauthorized intentional acts.” 697 F. 2d, at 1223. The Court of Appeals did not discuss the availability and adequacy of existing state-law remedies; it presumably accepted as correct the District Court’s statement of the remedies available under Virginia law.
The Court of Appeals reversed the summary judgment on respondent’s claim that the shakedown search was unreasonable. The court recognized that Bell v. Wolfish, 441 U. S. 520, 555-557 (1979), authorized irregular unannounced shakedown searches of prison cells. But the court held that an individual prisoner has a “limited privacy right” in his cell entitling him to protection against searches conducted solely to harass or to humiliate. 697 F. 2d, at 1225. The shakedown of a single prisoner’s property, said the court, is permissible only if “done pursuant to an established program of conducting random searches of single cells or groups of cells reasonably designed to deter or discover the possession of contraband” or upon reasonable belief that the particular prisoner possessed contraband. Id., at 1224. Because the Court of Appeals concluded that the record reflected a factual dispute over whether the search of respondent’s cell was routine or conducted to harass respondent, it held that summary judgment was inappropriate, and that a remand was necessary to determine the purpose of the cell search.
We granted certiorari. 463 U. S. 1206 (1983). We affirm in part and reverse in part.
II
A
The first question we address is whether respondent has a right of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches. As we have noted, the Court of Appeals held that the District Court’s summary judgment in petitioner’s favor was premature because respondent had a “limited privacy right” in his cell that might have been breached. The court concluded that, to protect this privacy right, shakedown searches of an individual’s cell should be performed only “pursuant to an established program of conducting random searches . . . reasonably designed to deter or discover the possession of contraband” or upon reasonable belief that the prisoner possesses contraband. Petitioner contends that the Court of Appeals erred in holding that respondent had even a limited privacy right in his cell, and urges that we adopt the “bright line” rule that prisoners have no legitimate expectation of privacy in their individual cells that would entitle them to Fourth Amendment protection.
We have repeatedly held that prisons are not beyond the reach of the Constitution. No “iron curtain” separates one from the other. Wolff v. McDonnell, 418 U. S. 539, 555 (1974). Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. For example, we have held that invidious racial discrimination is as intolerable within a prison as outside, except as may be essential to “prison security and discipline.” Lee v. Washington, 390 U. S. 333 (1968) (per curiam). Like others, prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts. Johnson v. Avery, 393 U. S. 483 (1969).
Prisoners must be provided “reasonable opportunities” to exercise their religious freedom guaranteed under the First Amendment. Cruz v. Beto, 405 U. S. 319 (1972) (per curiam). Similarly, they retain those First Amendment rights of speech “not inconsistent with [their] status as . . . prisoners] or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U. S. 817, 822 (1974). They enjoy the protection of due process. Wolff v. McDonnell, supra; Haines v. Kerner, 404 U. S. 519 (1972). And the Eighth Amendment ensures that they will not be subject to “cruel and unusual punishments.” Estelle v. Gamble, 429 U. S. 97 (1976). The continuing guarantee of these substantial rights to prison inmates is testimony to a belief that the way a society treats those who have transgressed against it is evidence of the essential character of that society.
However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. See Bell v. Wolfish, 441 U. S., at 545. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are “justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285 (1948); see also Bell v. Wolfish, supra, at 545-546 and cases cited; Wolff v. McDonnell, supra, at 555. The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of “institutional needs and objectives” of prison facilities, Wolff v. McDonnell, supra, at 555, chief among which is internal security, see Pell v. Procunier, supra, at 823. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.
We have not before been called upon to decide the specific question whether the Fourth Amendment applies within a prison cell, but the nature of our inquiry is well defined. We must determine here, as in other Fourth Amendment contexts, if a “justifiable” expectation of privacy is at stake. Katz v. United States, 389 U. S. 347 (1967). The applicability of the Fourth Amendment turns on whether “the person invoking its protection can claim a ‘justifiable/ a ‘reasonable/ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, 442 U. S. 735, 740 (1979), and cases cited. We must decide, in Justice Harlan’s words, whether a prisoner’s expectation of privacy in his prison cell is the kind of expectation that “society is prepared to recognize as ‘reasonable.’ ” Katz, supra, at 360, 361 (concurring opinion).
Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.
Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct. Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others. Even a partial survey of the statistics on violent crime in our Nation’s prisons illustrates the magnitude of the problem. During 1981 and the first half of 1982, there were over 120 prisoners murdered by fellow inmates in state and federal prisons. A number of prison personnel were murdered by prisoners during this period. Over 29 riots or similar disturbances were reported in these facilities for the same time frame. And there were over 125 suicides in these institutions. See Prison Violence, 7 Corrections Compendium (Mar. 1983). Additionally, informal statistics from the United States Bureau of Prisons show that in the federal system during 1983, there were 11 inmate homicides, 359 inmate assaults on other inmates, 227 inmate assaults on prison staff, and 10 suicides. There were in the same system in 1981 and 1982 over 750 inmate assaults on other inmates and over 570 inmate assaults on prison personnel.
Within this volatile “community,” prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison; they must be vigilant to detect escape plots, in which drugs or weapons may be involved, before the schemes materialize. In addition to these monumental tasks, it is incumbent upon these officials at the same time to maintain as sanitary an environment for the inmates as feasible, given the difficulties of the circumstances.
The administration of a prison, we have said, is “at best an extraordinarily difficult undertaking.” Wolff v. McDonnell, 418 U. S., at 566; Hewitt v. Helms, 459 U. S. 460, 467 (1983). But it would be literally impossible to accomplish the prison objectives identified above if inmates retained a right of privacy in their cells. Virtually the only place inmates can conceal weapons, drugs, and other contraband is in their cells. Unfettered access to these cells by prison officials, thus, is imperative if drugs and contraband are to be ferreted out and sanitary surroundings are to be maintained.
Determining whether an expectation of privacy is “legitimate” or “reasonable” necessarily entails a balancing of interests. The two interests here are the interest of society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: A prison “shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room.” Lanza v. New York, 370 U. S. 139, 143-144 (1962). We strike the balance in favor of institutional security, which we have noted is “central to all other corrections goals,” Pell v. Procunier, 417 U. S., at 823. A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that “[l]oss of freedom of choice and privacy are inherent incidents of confinement.” Bell v. Wolfish, 441 U. S., at 537.
The Court of Appeals was troubled by the possibility of searches conducted solely to harass inmates; it reasoned that a requirement that searches be conducted only pursuant to an established policy or upon reasonable suspicion would prevent such searches to the maximum extent possible. Of course, there is a risk of maliciously motivated searches, and of course, intentional harassment of even the most hardened criminals cannot be tolerated by a civilized society. However, we disagree with the court’s proposed solution. The uncertainty that attends random searches of cells renders these searches perhaps the most effective weapon of the prison administrator in the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband. The Court of Appeals candidly acknowledged that “the device [of random cell searches] is of. . . obvious utility in achieving the goal of prison security.” 697 F. 2d, at 1224.
A requirement that even random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon. It is simply naive to believe that prisoners would not eventually decipher any plan officials might devise for “planned random searches,” and thus be able routinely to anticipate searches. The Supreme Court of Virginia identified the shortcomings of an approach such as that adopted by the Court of Appeals and the necessity of allowing prison administrators flexibility:
“For one to advocate that prison searches must be conducted only pursuant to an enunciated general policy or when suspicion is directed at a particular inmate is to ignore the realities of prison operation. Random searches of inmates, individually or collectively, and their cells and lockers are valid and necessary to ensure the security of the institution and the safety of inmates and all others within its boundaries. This type of search allows prison officers flexibility and prevents inmates from anticipating, and thereby thwarting, a search for contraband.” Marrero v. Commonwealth, 222 Va. 754, 757, 284 S. E. 2d 809, 811 (1981).
We share the concerns so well expressed by the Supreme Court and its view that wholly random searches are essential to the effective security of penal institutions. We, therefore, cannot accept even the concededly limited holding of the Court of Appeals.
Respondent acknowledges that routine shakedowns of prison cells are essential to the effective administration of prisons. Brief for Respondent and Cross-Petitioner 7, n. 5. He contends, however, that he is constitutionally entitled not to be subjected to searches conducted only to harass. The crux of his claim is that “because searches and seizures to harass are unreasonable, a prisoner has a reasonable expectation of privacy not to have his cell, locker, personal effects, person invaded for such a purpose.”, Id., at 24. This argument, which assumes the answer to the predicate question whether a prisoner has a legitimate expectation of privacy in his prison cell at all, is merely a challenge to the reasonableness of the particular search of respondent’s cell. Because we conclude that prisoners have no legitimate expectation of privacy and that the Fourth Amendment’s prohibition on unreasonable searches does not apply in prison cells, we need not address this issue.
Our holding that respondent does not have a reasonable expectation of privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates’ property rights with impunity. The Eighth Amendment always stands as a protection against “cruel and unusual punishments.” By the same token, there are adequate state tort and common-law remedies available to respondent to redress the alleged destruction of his personal property. See discussion infra, at 534-536.
B
In his complaint in the District Court, in addition to his claim that the shakedown search of his cell violated his Fourth and Fourteenth Amendment privacy rights, respondent alleged under 42 U. S. C. § 1983 that petitioner intentionally destroyed certain of his personal property during the search. This destruction, respondent contended, deprived him of property without due process, in violation of the Due Process Clause of the Fourteenth Amendment. The District Court dismissed this portion of respondent’s complaint for failure to state a claim. Reasoning under Parratt v. Taylor, 451 U. S. 527 (1981), it held that even an intentional destruction of property by a state employee does not violate due process if the state provides a meaningful postdeprivation remedy. The Court of Appeals affirmed. The question presented for our review in Palmer’s cross-petition is whether our decision in Parratt v. Taylor should extend, as the Court of Appeals held, to intentional deprivations of property by state employees acting under color of state law.
In Parratt v. Taylor, a state prisoner sued prison officials under 42 U. S. C. § 1988, alleging that their negligent loss of a hobby kit he ordered from a mail-order catalog deprived him of property without due process of law, in violation of the Fourteenth Amendment. The Court of Appeals for the Eighth Circuit had affirmed the District Court’s summary judgment in the prisoner’s favor. We reversed, holding that the Due Process Clause of the Fourteenth Amendment is not violated when a state employee negligently deprives an individual of property, provided that the state makes available a meaningful postdeprivation remedy.
We viewed our decision in Parratt as consistent with prior cases recognizing that
“either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking . . . satisfies] the requirements of procedural due process.” 451 U. S., at 539 (footnote omitted).
We reasoned that where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when the loss will occur. Id., at 541. Under these circumstances, we observed:
“It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under ‘color of law,’ is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.” Ibid.
Two Terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.
While Parrott is necessarily limited by its facts to negligent deprivations of property, it is evident, as the Court of Appeals recognized, that its reasoning applies as well to intentional deprivations of property. The underlying rationale of Parrott is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply “impracticable” since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the “practicability” of affording predeprivation process is concerned. The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent.
If negligent deprivations of property do not violate the Due Process Clause because predeprivation process is impracticable, it follows that intentional deprivations do not violate that Clause provided, of course, that adequate state post-deprivation remedies are available. Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state’s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.
Respondent presses two arguments that require at least brief comment. First, he contends that, because an agent of the state who intends to deprive a person of his property “can provide predeprivation process, then as a matter of due process he must do so.” Brief for Respondent and Cross-Petitioner 8 (emphasis in original). This argument reflects a fundamental misunderstanding of Parratt. There we held that postdeprivation procedures satisfy due process because the state cannot possibly know in advance of a negligent deprivation of property. Whether an individual employee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the state is in a position to provide for predeprivation process.
Respondent also contends, citing to Logan v. Zimmerman Brush Co., supra, that the deliberate destruction of his property by petitioner constituted a due process violation despite the availability of postdeprivation remedies. Brief for Respondent and Cross-Petitioner 8. In Logan, we decided a question about which our decision in Parratt left little doubt, that is, whether a postdeprivation state remedy satisfies due process where the property deprivation is effected pursuant to an established state procedure. We held that it does not. Logan plainly has no relevance here. Respondent does not even allege that the asserted destruction of his property occurred pursuant to a state procedure.
Having determined that Parratt extends to intentional deprivations of property, we need only decide whether the Commonwealth of Virginia provides respondent an adequate postdeprivation remedy for the alleged destruction of his property. Both the District Court and, at least implicitly, the Court of Appeals held that several common-law remedies available to respondent would provide adequate compensation for his property loss. We have no reason to question that determination, particularly given the speculative nature of respondent’s arguments.
Palmer does not seriously dispute the adequacy of the existing state-law remedies themselves. He asserts in this respect only that, because certain of his legal papers allegedly taken “may have contained things irreplacable [sic], and incompensable” or “may also have involved sentimental items which are of equally intangible value,” Brief for Respondent and Cross-Petitioner 10-11, n. 10, a suit in tort, for example, would not “necessarily” compensate him fully. If the loss is “incompensable,” this is as much so under § 1983 as it would be under any other remedy. In any event, that Palmer might not be able to recover under these remedies the full amount which he might receive in a § 1983 action is not, as we have said, determinative of the adequacy of the state remedies. See Parratt, 451 U. S., at 544.
Palmer contends also that relief under applicable state law “is far from certain and complete” because a state court might hold that petitioner, as a state employee, is entitled to sovereign immunity. Brief for Respondent and Cross-Petitioner 11. This suggestion is unconvincing. The District Court and the Court of Appeals held that respondent’s claim would not be barred by sovereign immunity. As the District Court noted, under Virginia law, “a State employee may be held liable for his intentional torts,” Elder v. Holland, 208 Va. 15, 19, 155 S. E. 2d 369, 372-373 (1967); see also Short v. Griffitts, 220 Va. 53, 255 S. E. 2d 479 (1979). Indeed, respondent candidly acknowledges that it is “probable that a Virginia trial court would rule that there should be no immunity bar in the present case.” Brief for Respondent and Cross-Petitioner 14.
Respondent attempts to cast doubt on the obvious breadth of Elder through the naked assertion that “the phrase ‘may be held liable’ could have meant . . . only the possibility of liability under certain circumstances rather than a blanket rule . . . Brief for Respondent and Cross-Petitioner 13. We are equally unpersuaded by this speculation. The language of Elder is unambiguous that employees of the Commonwealth do not enjoy sovereign immunity for their intentional torts, and Elder has been so read by a number of federal courts, as respondent concedes, see Brief for Respondent and Cross-Petitioner 13, n. 13. See, e. g., Holmes v. Wampler, 546 F. Supp. 500, 504 (ED Va. 1982); Irshad v. Spann, 543 F. Supp. 922, 928 (ED Va. 1982); Frazier v. Collins, 544 F. Supp. 109, 110 (ED Va. 1982); Whorley v. Karr, 534 F. Supp. 88, 89 (WD Va. 1981); Daughtry v. Arlington County, Va., 490 F. Supp. 307 (DC 1980). In sum, it is evident here, as in Parratt, that the State has provided an adequate postdeprivation remedy for the alleged destruction of property.
Ill
We hold that the Fourth Amendment has no applicability to a prison cell. We hold also that, even if petitioner intentionally destroyed respondent’s personal property during the challenged shakedown search, the destruction did not violate the Fourteenth Amendment since the Commonwealth of Virginia has provided respondent an adequate postdeprivation remedy.
Accordingly, the judgment of the Court of Appeals reversing and remanding the District Court’s judgment on respondent’s claim under the Fourth and Fourteenth Amendments is reversed. The judgment affirming the District Court’s decision that respondent has not been denied due process under the Fourteenth Amendment is affirmed.
It is so ordered.
The District Court determined that Palmer could proceed against Hudson in state court either for conversion or for detinue, and that under applicable Virginia law, see Elder v. Holland, 208 Va. 15, 155 S. E. 2d 369 (1967), Hudson would not be entitled to immunity for the alleged intentional tort.
The Court of Appeals observed that “there is no practical mechanism by which Virginia could prevent its guards from conducting personal vendettas against prisoners other than by punishing them after the fact.. . .” 697 F. 2d, at 1223.
See n. 1, supra.
Petitioner maintains that the Court of Appeals’ decision rests at least in part upon a finding of an independent right of privacy for prisoners under the Fourteenth Amendment alone. Arguably, it is not entirely clear whether the Court of Appeals believed that the limited privacy right it recognized was guaranteed solely by the Fourth Amendment, and applicable to the States only through the Fourteenth Amendment, or whether the right emanated from the Fourteenth Amendment alone, or both. The court’s opinion, however, explicitly speaks to the “primary purpose of the Fourth and Fourteenth Amendments,” 697 F. 2d, at 1224, and nowhere does it suggest an intention to draw a distinction between the Fourth and Fourteenth Amendment right of privacy in prison cells. Under the circumstances, we assume, since there is no suggestion to the contrary, that the court did not mean to imply in this context that any right of privacy that might exist under the Fourteenth Amendment alone exceeds that which exists under the Fourth Amendment.
The majority of the Courts of Appeals have held that a prisoner retains at least a minimal degree of Fourth Amendment protection in his cell. See United States v. Chamorro, 687 F. 2d 1 (CA1 1982); United States v. Hinckley, 217 U. S. App. D. C. 262, 672 F. 2d 115 (1982); United States v. Lilly, 576 F. 2d 1240 (CA5 1978); United States v. Stumes, 549 F. 2d 831 (CA8 1977); Bonner v. Coughlin, 517 F. 2d 1311 (CA7 1975) (vacating District Court judgment), on rehearing, 545 F. 2d 565 (1976) (en banc) (affirming District Court on other grounds), cert. denied, 435 U. S. 932 (1978). The Second and Ninth Circuits, however, have held that the Fourth Amendment does not apply in a prison cell. See Christman v. Skinner, 468 F. 2d 723 (CA2 1972); United States v. Hitchcock, 467 F. 2d 1107 (CA9 1972), cert. denied, 410 U. S. 916 (1973).
In Lanza v. New York, 370 U. S. 139, 143-144 (1962), a plurality of the Court termed as “at best a novel argument” the assertion that a prison “is a place where [one] can claim constitutional immunity from search or seizure of his person, his papers, or his effects.” This observation, however, was plainly dictum. In fact, three Members of the Court specifically dissented from
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
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songer_respond1_3_3
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
BELL’S ESTATE v. COMMISSIONER OF INTERNAL REVENUE. BELL v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 12484, 12485.
Circuit Court of Appeals, Eighth Circuit.
Aug. 4, 1943.
Albert L. Hopkins, of Chicago, 111. (Anderson A. Owen, Harry D. Orr, Jr., and Samuel H. Horne, all of Chicago, 111., on the brief), for petitioners.
L. W. Post, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for respondent.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
SANBORN, Circuit Judge.
The question for decision is whether, under the Revenue Act of 1936, the consideration received by the life beneficiary of a trust for the transfer of the life interest to the remainderman was ordinary income or was capital.
The facts are agreed to and are as stated in the opinion of the Board of Tax Appeals (now the Tax Court of the United States), 46 B.T.A. 484. It is unnecessary to restate them in detail.
Frederic Somers Bell (now deceased) and Frances Laird Bell, husband and wife, of Winona, Minnesota, on April 28, 1932, each created a trust. The corpus of each trust consisted of 550 shares of the common stock of the Thorncroft Company. The trustees of the Frederic S. Bell trust were Laird Bell, George R. Little, and Willard L. Hillyer. The trustees of the Frances L. Bell trust were Laird Bell, George R. Little, and Frederic S. Bell. Laird Bell is the son of the grantors of the trusts. The trust agreement executed by Frederic S. Bell provided: “The Trustees shall pay to Frances Laird Bell, wife of the Grantor, during her lifetime, the entire net income of the Trust Estate. Upon her death, the Trustees shall pay, deliver, and convey the Trust Estate to Laird Bell, son of the Grantor.”
The trust agreement executed by Frances L. Bell provided: “The Trustees shall pay to Frederic Somers Bell, husband of the Grantor, during his lifetime, the entire net income of the Trust Estate. Upon his death, the Trustees shall pay, deliver, and convey the Trust Estate to Laird Bell, son of the Grantor.” The shares of stock constituting the corpus of each trust were transferred to the trustees. On February 1, 1936, Frederic S. Bell assigned to Laird Bell “all his [Frederic S. Bell’s] right, title and interest in, to and under the trust property held by George R. Little, Frederic Somers Bell and Laird Bell, as Trustees under trust agreement between Frances L. Bell and said Trustees, dated April 28, 1932, in consideration of the receipt of $104,349.26 [cash and securities], paid as hereinafter stated, the receipt whereof is hereby acknowledged.” On the same day, Frances L. Bell assigned to Laird Bell “all her right, title and interest, in, to and under the trust property held by Laird Bell, George R. Little and Willard L. Hillyer, as Trustees under trust agreement between Frederic S. Bell and said Trustees, dated April 28, 1932, in consideration of the receipt of $93,060.87 [cash and securities] (being 16.57144% of the agreed value of the trust property), paid as hereinafter stated, the receipt whereof is hereby acknowledged.” The consideration delivered by Laird Bell to each of the life beneficiaries represented the value, at the time of the assignments, of their respective life interests, apparently computed upon the basis of a 4% yield on the agreed value of the trust corpus for the life expectancy of each of the life beneficiaries. Laird Bell, having then acquired absolute title to the corpus of each of the trusts, received the trust assets, and the trusts were terminated. In his income tax return for each subsequent year, Laird Bell included the income from the former trust assets.
Frederic S. Bell and Frances L. Bell, in the belief that the consideration which they had received from Laird Bell for the life interests conveyed to him represented the proceeds of a sale of capital assets, made their respective income tax returns for the year 1936 upon that basis, the return of each of them showing a small capital gain resulting from the sale. The Commissioner of Internal Revenue ruled that the entire consideration received by the life beneficiaries was income under § 22(a) of the Revenue Act of 1936, 49 Stat. 1648. The Board of Tax Appeals affirmed the Commissioner, and the decision of the Board is now before this Court for review.
The Commissioner contends that the consideration received by the life beneficiaries for their respective life interests was in reality an advance payment of future income of the trusts during their life expectancies, and was taxable as ordinary income, even if the son, who acquired the interests, is required to include in his returns all income received by him from the former trust assets. This contention is based mainly upon the opinion of the Supreme Court in Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L.Ed. 1168, in which it was held that the amount received by a lessor from a lessee as consideration for the cancellation of a lease was, in effect, a substitute for the future rents reserved in the lease, and was therefore income and not a return of capital. However, there was no transfer of any interest in the lease or of any property involved in that case. The court said (page 32 of 313 U.S., page 759 of 61 S.Ct, 85 L.Ed. 1168): “* * * The cancellation of the lease involved nothing more than relinquishment of the right to future rental payments in return for a present substitute payment and possession of the leased premises.”
If the parents of Laird Bell, instead of creating these trusts in 1932, had transferred the stock in the Thorncroft Company to him in consideration of his agreement to pay to each of them annually a certain sum for life, and if, in 1936, he had purchased from them releases of his obligations to make further annual payments, the consideration received by them in 1936 would unquestionably have been income, under the ruling in the Hort case. But that is not the situation here.
If the case of Blair v. Commissioner, 300 U.S. S, 57 S.Ct. 330, 81 L.Ed. 465, is still the law, the decision of the Board will, in our opinion, have to be reversed. Blair was the life beneficiary of a testamentary trust. He assigned to his children portions of the net trust income which he was entitled to receive. The Commissioner ruled that, notwithstanding the assignments, the entire income of the trust continued to be taxable to Blair. The question presented to the Board of Tax Appeals, on petition to review, was “whether the petitioner, by the assignments in question, assigned future income or a present interest in property.” Blair v. Commissioner, 31 B.T.A. 1192, 1204. The Board ruled that he had assigned a present interest in property, and was not liable for taxes on income accruing to the assignees under the assignments. The Board said (at page 1205 of 31 B.T. A.): “ * * * The instant proceedings, in so far as this phase of our question is concerned, are quite similar to Marshall Field [v. Commissioner], supra [15 B.T.A. 718], followed by the Board in Edward T. Blair [v. Commissioner], supra, [18 B.T.A. 69], and affirmed by the United States Circuit Court of Appeals for the Second Circuit in. Commissioner v. Field, supra, [42 F.2d 820]. The following cases, involving circumstances more or less similar, also sustain our conclusion herein in this respect. Eugene Siegel, Executor [v. Commissioner], 20 B.T.A. 563; petition to review dismissed by the United States Circuit Court of Appeals for the Sixth Circuit on October 6, 1931; Copland v. Commissioner, [7 Cir.], 41 F.2d 501; Rosenwald v. Commissioner, [7 Cir.], 33 F.2d 423; certiorari denied, 280 U.S. 599, [50 S.Ct. 69, 74 L.Ed. 644]; Shellabarger v. Commissioner, [7 Cir.], 38 F.2d 566; Nelson v. Ferguson, [3 Cir.], 56 F.2d 121; certiorari denied, 286 U.S. 565, [52 S.Ct. 646, 76 L. Ed. 1297]; and Hall v. Burnet, [60 App.D. C. 332], 54 F.2d 443, [83 A.L.R. 86]; certiorari denied, 285 U.S. 552, [52 S.Ct. 408, 76 L.Ed. 942].”
The Circuit Court of Appeals for the Seventh Circuit, upon review, reversed the Board’s decision. Commissioner v. Blair, 83 F.2d 655. That court, after an analysis of the relevant authorities, stated its conclusion as follows (at page 662 of 83 F.2d) :
“The question is not one of the validity of the assignments but for the purpose of determining income tax liability it is one involving the date when the income became transferable. This question turns upon whether the assignor had such an interest in the corpus of the trust as to permit of its transfer or whether the assignor’s interest was separate from the property and limited to the income which accrued from year to year.
“The latter seems to be the situation. The testator made an income provision for his son. It was in the trustees’ hands beyond the reach of the son’s creditors. The son could not create obligations enforceable against it. Upon the son’s death the said income ceased. It passed to either his children or to the heirs of the testator or in part to the widow of the son, depending upon survivorship, etc. The income passed to them not by act of the son, but by the testamentary trust provision of the testator. The son’s interest was therefore not in any way attached to the corpus of the estate that produced the income. The income was not even subject to his disposition until he received it. The attempted assignment to his children was in legal effect merely a direction to the trustees to pay to his children, out of the income due to him, various specified amounts each year. It does not militate against the conclusion that the income was his, and was due to him. While he could authorize the trustees to deliver to another what was due to him, it was not deliverable until it was his to dispose of.”
The Supreme Court, on certiorari, in a unanimous opinion (Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465), reversed the decision of the Circuit Court of Appeals, and affirmed that of the Board. The Supreme Court said (at pages 13, 14, of 300 U.S., at pages 333, 334, of 57 S.Ct., 81 L.Ed. 465) :
“The will creating the trust entitled the petitioner during his life to the net income of the property held in trust. He thus became the owner of an equitable interest in the corpus of the property. Brown v. Fletcher, 235 U.S. 589, 598, 599,35 S.Ct. 154, 157, 59 L.Ed. 374; Irwin v. Gavit, 268 U.S. 161, 167, 168, 45 S.Ct. 475, 476, 69 L.Ed. 897; Senior v. Braden, 295 U. S. 422, 432, 433, 55 S.Ct. 800, 79 L.Ed. 1520, 100 A.L.R. 794; Merchants’ Loan & Trust Co. v. Patterson, 308 111. 519, 530, 139 N.E. 912. By virtue of that interest he was entitled to enforce the trust, to have a breach of trust enjoined and to obtain redress in case of breach. The interest was present property alienable like any other, in the absence of a valid restraint upon alienation. Commissioner v. Field, 2 Cir., 42 F.2d 820, 822; Shanley v. Bowers, 2 Cir., 81 F.2d 13, 15. The beneficiary may thus transfer a part of his interest as well as the whole. See Restatement of the Law of Trusts, §§ 130, 132 et seq. The assignment of the beneficial interest is not the assignment of a chose in action but of the ‘right, title, and estate in and to property.’ Brown v. Fletcher, supra; Senior v. Braden, supra. See Bogert, Trusts and Trustees, vol. 1, § 183, pp. 516, 517; 17 Columbia Law Review, 269, 273, 289, 290.
“We conclude that the assignments were valid, that the assignees thereby became the owners of the specified beneficial interests in the income, and that as to these interests they and not the petitioner were taxable for the tax years in question.”
There can be no question that in Blair v. Commissioner, supra, the Supreme Court ruled that assignments of life interests such as those here involved are transfers of interests in the trust assets, and are not merely assignments of income. The Commissioner, however, in seeking for a distinction between that case and these cases, says in his brief: “It is true that in Blair v. Commissioner, supra, it was held that the assignment of the right to receive trust income during the life of the assignor carried with it such a property interest in the fund that the transferee and not the transferor was taxable upon future income. But there the assignments were by way of gift and there was no question such as here presented with respect to the taxability of the consideration. As pointed out by the Board of Tax Appeals and as hereinabove indicated, that question is answerable by reference to the Hort case, Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L. Ed. 1168, where the Court expressly held that simply because the lease was ‘property’ the amount received for its cancellation was not a return of capital. Similarly, simply because the life interests here may have been property within the scope of the Blair case, it does not follow that the amounts received by the transferors did not constitute ordinary income to them. It is submitted that those amounts were ordinary income in the same sense as prepaid rentals, interest or salaries are ordinary income.”
The Supreme Court, in the cases of Helvering v. Horst, 311 U.S. 112, 118, 119, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655, and Harrison v. Schaffner, 312 U.S. 579, 582, 61 S.Ct. 759, 85 L.Ed. 1055, has referred to its decision in Blair v. Commissioner, supra. In Helvering v. Horst, the question was whether a gift, during the donor’s taxable year, of interest coupons which were detached from bonds and delivered to the donee shortly before their maturity and which were later in the year paid to the donee, was income taxable to the donor. In speaking of Blair v. Commissioner, supra, the court said in the Horst case (at pp. 118, 119 of 311 U.S., at page 148 of 61 S.Ct, 85 L.Ed. 75, 131 A.L.R. 655): “ * * * In the circumstances of that case the right to income from the trust property was thought to be so identified with the equitable ownership of the property from which alone the beneficiary derived his right to receive the income and his power to command disposition of it that a gift of the income by the beneficiary became effective only as a gift of his ownership of the property producing it. Since the gift was deemed to be a gift of the property the income from it was held to be the income of the owner of the property, who was the donee, not the donor, a refinement which was unnecessary if respondent’s contention here is right, but one clearly inapplicable to gifts of interest or wages.”
A majority of the court ruled that the donor had assigned income and not an interest in income-producing property. Three Justices (including Chief Justice Hughes, the author of the opinion in Blair v. Commissioner, supra) dissented, stating that “The general principles approved in Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465, are applicable and controlling” (at p. 122 of 311 U.S. at page 149 of 61 S.Ct, 85 L.Ed. 75, 131 A.L.R. 655). The same Justices also dissented, for the same reasons, in Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81, which held that, notwithstanding an assignment by a general agent of a life insurance company of his right to future renewal commissions, the commissions remained his income for purposes of taxation. The Circuit Court of Appeals of the Second Circuit had held in the Eubank case (Eubank v. Commissioner, 110 F.2d 737) that the assignment of the right to the future renewal commissions by the assignor was an assignment of a property right and not of income, relying in part upon Blair v. Commissioner, supra.
In Harrison v. Schaffner, 312 U.S. 579 61 S.Ct. 759, 85 L.Ed. 1055, a life beneficiary of a trust had assigned to her children specified amounts in dollars from her trust income for the year following the assignment. The trustees paid these amounts to the assignees. The Supreme Court, in its opinion holding that the amounts, for tax purposes, remained the income of the assignor, said with respect to Blair v. Commissioner, supra (at p. 582 of 312 U.S., at page 761 of 61 S.Ct., 85 L. Ed. 1055): “ * * * It is true, as respondent argues, that where the beneficiary of a trust had assigned a share of the income to another for life without retaining any form of control over the interest assigned, this Court construed the assignment as a transfer in praesenti to the donee, of a life interest in the corpus of the trust property and held in consequence that the income thereafter paid to the donee was taxable to him and not the donor. Blair v. Commissioner, supra. But we think it quite another matter to say that the beneficiary of a trust who makes a single gift of a sum of money payable out of the income of the trust does not realize income when the gift is effectuated by payment, or that he escapes the tax by attempting to clothe the transaction in the guise of a transfer of trust property rather than the transfer of income where that is its obvious purpose and effect.”
The Supreme Court has not, expressly or by implication, overruled or modified its decision in Blair v. Commissioner, supra. The assignments in Helvering v. Horst, supra, Helvering v. Eubank, supra, and Harrison v. Schaffner, supra, are distinguishable from the assignments involved in Blair v. Commissioner, supra, and from the assignments involved in the instant cases. The Supreme Court has made the distinction, and it is not for this Court to unmake it. We have already pointed out that Blair v. Commissioner does not conflict with Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L.Ed. 1168, which involved the extinguishment of a contractual right to future rentals, and not an assignment of an interest in property. See Shuster v. Helvering, 2 Cir., 121 F.2d 643, 645.
Our conclusion is that in 1936 Frederic S. Bell and Frances L. Bell did not sell to Laird Bell income or naked rights to receive income, but sold to him life interests in trust property, and that the considerations received by them were not ordinary income, taxable as such, but were the proceeds of sales of capital assets.
Since the Board was of the opinion that the consideration received by each of the life beneficiaries was ordinary income, it expressed no opinion as to the proper basis for determining the amount of capital gain, if any. The parties are not in accord upon that question, and we are asked to decide it. We think the question should first be determined by the Tax Court. See Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037.
The decision of the Board is reversed, and the cases are remanded for further proceedings not inconsistent herewith.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
Revenue Act of 1936, 49 Stat. 1648, 26 U.S.O.A. Int.Rev.Acts, page 873.
“Sec. 117. Capital Gains and Losses
“(b) Definition of capital assets. For the purposes of this title, ‘capital assets’ means property held by the taxpayer (whether or not connected with his trade or business) * *
Revenue Act of 1986, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Aets, page 825.
“Sec. 22. Gross Income
“(a) General Definition. ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income from any source whatever. • * »”
In Pearce v. Commissioner, 315 U.S. 543, at page 554, 62 S.Ct. 754, at page 760, 86 L.Ed. 1016, the Supreme Court said, referring to Helvering v. Horst, Helvering v. Eubank, and Harrison v. Schaffner: “ * * * Those cases dealt with situations where the taxpayer had made assignments of income from property. He was held taxable on the income assigned by reason of the princi-' pie ‘that the power to dispose of income is the equivalent of ownership of it and that the exercise of the power to procure its payment to another, whether to pay a debt or to make a gift, is within the reach’ of the federal income tax law. Harrison v. Schaffner, supra, 312 U.S. at page 580, 61 S.Ct. at page 760, 85 L.Ed. 1055. But in those cases the donor or grantor had ‘parted with no substantial interest in property other than the specified payments of income.’ Id. 312 U.S. at page 583, 61 S. Ct. at page 762, 85 L.Ed. 1055. Here he has parted with the corpus. And ‘the tax is upon income as to which, in the general application of the revenue acts, the tax liability attaches to ownership.’ Blair v. Commissioner, 300 U.S. 5, 12, 57 S.Ct. 330, 333, 81 L.Ed. 465.” See, also, Helvering v. Stuart, 317 U.S. 154, 168, 63 S.Ct. 140, 87 L.Ed. —.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
|
songer_stpolicy
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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".
Ronald Paul FIELDS, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Brenda SOLOFF, Robert M. Morgenthau, Sterling Johnson, Jr., Lewis Halpern, Robert Siberling, J.D., 1 & 2 Wardens, Hon. Robert Abrams, and The New York State Office of Court Administration, Defendants-Appellees.
No. 507, Docket 90-7240.
United States Court of Appeals, Second Circuit.
Argued Nov. 9, 1990.
Decided Dec. 11, 1990.
Ronald Paul Fields, New York City, pro se.
Thomas P. Litsky, Asst. Dist. Atty., New York County, New York City (Robert M. Morgenthau, Dist. Atty., New York County, Marc Frazier Scholl, Asst. Dist. Atty., New York City, of counsel), for defendants-appellees Morgenthau, Johnson, Halpern and Siberling.
Frederic L. Lieberman, Asst. Atty. Gen. of State of N.Y., New York City (Robert Abrams, Atty. Gen. of State of N.Y., New York City, of counsel), for defendant-appel-lee Soloff.
Before KAUFMAN, KEARSE and McLaughlin, circuit judges.
IRVING R. KAUFMAN, Circuit Judge:
The purpose and powers of grand juries have been subject to debate for many years. Over three hundred years ago, John Somers, later Lord Chancellor of England, explained the role of the grand jury:
[T]he truth of such inquisitions should be put in the hands of Persons of understanding, and integrity, indifferent and impartial, that might suffer no man to be falsely accused, or defamed, nor the lives of any to be put in jeopardy, by the malicious conspiracies of great or small ... For these necessary, honest ends was the institution of Grand Juries. Somers, The Security of English-Mens Lives, or The Trust, Power and Duty of Grand Jurys of England 13 (1681).
Grand juries have not always acted as safeguards against unjust prosecutions. Originally, their sole purpose was to initiate prosecutions by investigating crimes in their communities and by accusing purported wrongdoers. The modern American counterpart retains aspects of both functions.
Appellant pro se Ronald Fields seeks affirmation of the inviolability of the grand jury’s traditional investigatory powers. He alleges that his constitutional rights were violated when the supervising state judge and prosecutors imposed restrictions on actions he undertook while serving on a New York State grand jury. Since, however, there is no federal constitutional right to indictment by a state grand jury, and because the doctrine of immunity bars his federal civil rights action against state officials for their court-related activities, the district court properly dismissed Fields’ claims.
BACKGROUND
Appellant Fields was selected to serve on a New York County Special Narcotics Grand Jury between September 14 and October 9, 1987. He claims that in 1983, while serving on a different grand jury, he became aware of allegedly indictable felony offenses committed by New York County District Attorney Robert Morgenthau. The 1983 grand jury had investigated the circumstances surrounding the death of Michael Stewart, a young black man who died while in the custody of transit police. According to newspaper accounts submitted by appellant in connection with the present action, Fields, while serving on the 1983 grand jury, became suspicious that the District Attorney’s office had intentionally presented a weak case. He then independently investigated the matter and shared his assessments with the other grand jurors involved in the Stewart inquiry. The presiding state court judge eventually dismissed the charges because of Fields’ interference. The transit officers were later indicted, tried and acquitted.
While serving on the 1987 grand jury, Fields attempted to initiate criminal proceedings against District Attorney Morgen-thau. While he did not cite specific criminal violations, appellant alleged generally that Morgenthau promoted an illegal policy of preventing investigation of police brutality claims. Fields asked Assistant District Attorney (“ADA”) Lewis Halpern, the “legal advisor” to the grand jury, for permission to present materials about his allegations. This request was denied. He then asked the supervising judge, Acting New York Supreme Court Justice Brenda Soloff, to instruct the grand jury that it had the authority to originate complaints independently of the prosecutor. Justice Soloff refused and issued an oral restraining order prohibiting Fields from communicating with his fellow jurors about matters other than those brought to their attention by the prosecutor.
Fields appeared before the Appellate Division seeking an expedited appeal, presumably from Justice Soloff’s oral ruling. He asserts that when he argued this motion, Justice Theodore Kupferman informed him that oral orders were not binding authority. Relying on Justice Kupferman’s comment, Fields distributed information packets containing articles about the general and historical aspects of grand jury service to the other grand jurors. Justice Soloff then directed ADAs Lewis Halpern and Robert Siberling, along with two unnamed court wardens, to confiscate the packets, which they proceeded to do, and to enjoin the jurors from discussing the content of the documents.
In response, Fields and ten other grand jurors filed a pro se Article 78 petition for a writ of mandamus to require Justice So-loff to return their property and allow them to discuss related matters freely. The Appellate Division dismissed their petition, as did the New York State Court of Appeals.
Fields then sought relief in federal court pursuant to 42 U.S.C. § 1983, which subjects government officials to personal liability for damages when, acting under color of state law, they deprive an individual of “any rights, privileges, or immunities secured by the Constitution.” He claimed that Justice Soloff and the state prosecutors violated his federal constitutional rights under the First, Fourth, Tenth and Fourteenth Amendments and sought compensatory and punitive damages, as well as injunctive and declaratory relief.
All of the served defendants moved to dismiss the action. Magistrate Nina Ger-shon filed a report and recommendation, which was adopted by Judge David Edel-stein. The district court dismissed appellant’s claims with prejudice.
DISCUSSION
Fields’ allegations relate to restrictions imposed upon him during his service as a New York State grand juror. Before addressing the merits of his appeal, we pause to consider the historical foundation of grand jury powers as they relate to his claims.
Beginning in the Twelfth Century, English grand juries functioned exclusively as the King’s investigatory and accusatory arm. They were expected to reach out into the community, retrieve information of wrongdoing and report to the court. Indictments were based solely on the grand jurors’ rendition of local gossip, under oath, before a judge. See R. Walker & M. Walker, The English Legal System 14-15 (1972). It is this historic practice of investigating and generating accusatory reports, called “presentments,” which constitutes what has come to be known as the grand jury’s “sword” power.
Slower to develop was the grand jury’s role as a buffer against government prosecution — its “shield” function. In the Fourteenth Century, grand juries began considering charges brought by outside sources, hearing the evidence of others and listening to witnesses. See P. Devlin, Trial by Jury 10-12 (1956). Deliberations began to focus on whether, not merely which, persons under government suspicion should be indicted. By the end of the Seventeenth Century, the grand jury had matured into an independent and formidable power. Juries refused to indict people perceived as innocent, despite intense pressure from the King. No longer instruments of the crown, they began aggressively to defend against biased prosecutions.
Grand jury practice expanded to the American colonies, where they devoted most of their time to indictments and presentments. See generally Younger, The People’s Panel: The Grand Jury in the United States, 1634-1941 (1963). Just prior to the American Revolution, they became vigilant in insulating from prosecution colonists who had violated unpopular British laws. It is interesting to see this development occurring in an historic and important case. In 1734, the New York “Weekly Journal” published attacks on New York’s Royal Governor, William Cosby. Cosby sought prosecution of John Peter Zenger, the paper’s printer, for seditious libel but failed to secure an indictment from successive grand juries. Though Zenger was later charged in an information and successfully defended by his lawyer, Andrew Hamilton, protection of his rights began with the grand jury. Kaufman, The Grand Jury — Sword and Shield, The Atlantic 56-57, April 1962.
It was this power — the ability to thwart government persecution of innocent citizens — that the framers sought to preserve in the Constitution. The Fifth Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” Though courts have interpreted this provision to require grand jury indictments before institution of charges for federal felony offenses, they have not read it to confer plenary indictment power upon the grand jury. See United States v. Cox, 342 F.2d 167, 189 (5th Cir.) (en banc), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965) (Wisdom, J. concurring). Because indictments wield the power to ruin lives and reputations, concert of action between the grand jury and the government attorney is a sound precondition.
The dangers threatened by unfettered grand jury power were addressed in United States v. Cox. In Cox, a Mississippi federal grand jury sought to abrogate the prosecutor’s authority by indicting two black men on charges of perjury for statements made during a lawsuit against voting authorities. These individuals had testified at trial that local officials prevented them from registering to vote. After the grand jury reported that it was ready to indict the two men on perjury charges, Judge Cox ordered the U.S. Attorney to prepare an indictment for the grand jury and to sign it. When the prosecuting attorney refused, the judge found him guilty of contempt of court and imposed a jail sentence pending his compliance. The Fifth Circuit Court of Appeals reversed, holding that “the affixing or withholding of the signature is a matter of executive discretion which cannot be coerced or reviewed by the courts.” Id. at 172.
The relevance of Cox to our opinion is not in its teaching that indictments require consent of the government attorney. More pertinent is Cox’s telling statement about the nature of the checks and balances inherent in our legal system. Not only must the prosecutor wait for the grand jury’s determination before he or she may proceed in a felony case, but the grand jury may not issue an indictment where the prosecutor is opposed. Moreover, the court lacks the power to compel the prosecutor to proceed over his objection. Viewed in this light, the federal grand jury system reflects the structure of our constitutional scheme, requiring, for proper resolution, diffusion of power and the existence of checks and balances.
At the state level, the grand jury process varies with the jurisdiction. The Fifth Amendment right to indictment by a grand jury was not incorporated by the Due Process Clause of the Fourteenth Amendment, and, accordingly, does not pertain to the states. See Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). Because the states are not required to utilize a grand jury before proceeding with a criminal prosecution, many, perceiving the institution as a mere rubber stamp for government charges, have eliminated it entirely.
The New York State Constitution continues to guarantee indictment by a grand jury for felony charges. And it is Fields’ right to unrestrained participation in the New York Special Narcotics grand jury that forms the basis of his suit. Article 1, Section 6 of New York’s constitution states that the grand jury’s broad power to inquire and indict shall not be “impaired by law.” New York courts, however, have acknowledged limitations on that power. See, e.g., Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765, 465 N.E.2d 304 (1984) (“Shield Law,” protecting reporters from compelled exposure of their sources, is permissible curtailment of the grand jury).
Long a valuable facet of New York’s legal system, the state’s grand jury traces its roots back to the prerevolutionary Zenger episode. Later, in the 1930’s, “runaway” grand juries, skeptical of the district attorney’s integrity, called upon Thomas E. Dewey to investigate corruption at Tammany Hall as a special prosecutor. These efforts, upheld by the state courts, ultimately led to sweeping criminal prosecutions and the demise of that powerful political machine. In the instant case, however, the state courts have enjoined appellant from proceeding against government officials. Fields claims this violated his federal civil rights.
When passing on section 1983 claims, a federal court does not resolve disputes regarding the proper application of state law. In this case, it is sufficient to note that the Fifth Amendment’s grand jury guarantee does not extend to the states. Therefore, the operation of a state grand jury need not comply with federal standards.
A. The Motion to Dismiss
With these basic historical doctrines in mind, we review Judge Edelstein’s order. When considering a motion to dismiss, the court takes to be true all facts alleged by the opposing party. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Green v. Maraio, 722 F.2d 1013, 1016 (2d Cir.1983). And, though a section 1983 claim need only allege that an individual acting under color of state law deprived the claimant of a federal right, Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980), certain judicially-created exceptions render public officials immune from suit.
Fields claims multiple constitutional violations arose during his tenure as a member of the state grand jury. He alleges Justice Soloff s speech-restrictive or “gag” order, which prevented him from discussing certain matters with his fellow jurors, deprived him of his First Amendment speech and petition rights and his Fourteenth Amendment due process and equal protection rights. Restrictions on his communications with the other grand jurors, he contends, violated his right to act as a member of an independent grand jury, guaranteed by the New York Constitution and, thus, the Tenth Amendment. He also alleges that confiscation of the information packets contravened his Fourth Amendment right against unreasonable searches and seizures. Because judicial and prose-cutorial immunity bar Fields’ suit, however, we need not reach the merits of these claims.
B. Judicial Immunity
Judicial immunity is by now a well-established doctrine. See Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871). A judge defending against a section 1983 suit is entitled to absolute immunity from damages for actions performed in his judicial capacity. Green, 722 F.2d at 1016; Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). Moreover, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’ ” Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978) (quoting Bradley, 80 U.S. at 351). Liability will not attach where a judge violated state law by an incorrect decision.
Accordingly, Justice Soloff is absolutely immune from suit. Under New York law, she had jurisdiction to supervise the conduct of the grand jury. See, e.g., N.Y. Crim.Proc. § 190.25(6); Stern v. Morgenthau, 62 N.Y.2d 331, 335, 476 N.Y.S.2d 810, 812, 465 N.E.2d 349, 351 (1984); In re Di Cocco, 364 N.Y.S.2d 990, 996, 80 Misc.2d 854 (1975). Even if the speech-restrictive order was improper, Justice Soloff is immune from section 1983 damages because she did not act in the “clear absence of all jurisdiction.”
C. Prosecutorial Immunity
Claims against the prosecutors were also properly dismissed. Similar to the rule applying to judges, unless a “prosecutor proceeds in the clear absence of all jurisdiction, absolute immunity exists for those prosecutorial activities intimately associated with the judicial phase of the criminal process.” Barr v. Abrams, 810 F.2d 358, 361 (2d Cir.1987). See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). This protection extends to the decision to prosecute as well as the decision not to prosecute. Schloss v. Bouse, 876 F.2d 287, 290 (2d Cir.1989). Prosecutors are only qualifiedly immune from suit when they act in an “investigative” or “administrative” capacity. Id.
Appellant asserts that District Attorney Morgenthau unlawfully failed to prosecute official misconduct. Though such neglect may result in public criticism, professional discipline or, under extreme circumstances, criminal charges, civil damages under section 1983 are inappropriate. See Imbler, 424 U.S. at 428-29, 96 S.Ct. at 994. Since Morgenthau’s failure to act was, in reality, a decision not to prosecute, we find him absolutely immune from suit.
Determining whether absolute or qualified immunity pertains to claims raised against ADAs Halpern and Siberling, for actions they undertook as legal advisors to the grand jury, presents a more difficult issue. Generally, only conduct falling within the prosecutor’s litigation-related duties deserves the shield of absolute immunity. See Barbera v. Smith, 836 F.2d 96, 101 (2d Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). Most other activities are characterized as administrative or investigative and, thus, merit less protection. See id. at 100.
Fields alleges the two ADAs illegally carried out Justice Soloff’s order and “allowed” the wardens to seize the information packets from the grand jurors. We are of the view that advising the Special Narcotics Grand Jury about the judge’s orders is so “intimately associated with the judicial phase of the criminal process,” Barr, 810 F.2d at 361, as to fall within that category of absolutely immune activities. See Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33.
Similarities in the prosecutor’s role before grand and petit juries support this conclusion. During grand jury proceedings, the government attorney seeks an indictment based on probable cause of criminal conduct. At trial, the prosecutor attempts to prove culpability beyond a reasonable doubt. Both situations involve presenting a case to a jury and, accordingly, comparable latitude of action is sensible and appropriate.
Moreover, subjecting prosecutors to liability for their conduct before grand juries raises the same policy concerns upon which absolute immunity for trial-related activities is founded. Defending against civil lawsuits would “cause a deflection of the prosecutor’s energies from his public duties,” Imbler, 424 U.S. at 423, 96 S.Ct. at 991, and would impede the independent exercise of prosecutorial judgment upon which the public relies. See id.
Informing the grand jury of the judge’s orders and overseeing the wardens in confiscating Fields’ material were actions undertaken pursuant to their legal obligation to supervise the jury. See N.Y.Crim.Proc. §§ 190.25(6), 190.50(2); People v. DiFalco, 44 N.Y.2d 482, 487, 406 N.Y.S.2d 279, 282, 377 N.E.2d 732, 735 (1978). Accordingly, the ADAs are absolutely immune from suit.
Finally, Fields’ claims for unspecified injunctive and declaratory relief are without merit. While prospective injunctive relief is not barred by the doctrine of immunity, Pulliam v. Allen, 466 U.S. 522, 536, 104 S.Ct. 1970, 1977, 80 L.Ed.2d 565 (1984), Fields fails to explain how an injunction is necessary to prevent irreparable injury to his constitutional rights. Id. at 537, 104 S.Ct. at 1978. Fields’ alleged injuries all relate to his service as a New York grand juror.. No federal constitutional provision, however, guarantees a state grand juror’s right to determine independently what evidence or other material will be presented to his or other grand juries. Nor, as we have indicated, do state grand jurors have a federal right to initiate indictments.
We have considered appellant’s other claims and find them to be without merit. For the reasons we have set forth, we find Judge Edelstein properly granted the ap-pellees’ motion to dismiss, and we affirm.
. Grand juries issue both indictments and presentments. With indictments, the grand jury sets forth felony charges asserted by the government after finding probable cause that a person under investigation has committed the alleged crime. With presentments, the grand jury recommends for prosecution charges it has initiated, or it issues reports condemning official misconduct not rising to the level of a criminal offense.
. Robison v. Via, 821 F.2d 913 (2d Cir.1987), does not mandate that qualified immunity attaches to all seizures engaged in by prosecutors. There, the prosecutor was physically present when a police officer removed children from their parents' custody based on a sexual abuse complaint. We found absolute immunity inappropriate under those circumstances because the prosecutor's role in the search and seizure was "not integral to the judicial process itself.” Id. at 918. The instructions of ADAs Halpern and Siberling regarding the confiscated materials, however, concerned the supervision of the grand jury and, thus, constituted activity within the scope of their judicial duties.
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:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Jeffrey L. SILVERMAN, Petitioner, v. COMMODITY FUTURES TRADING COMMISSION, Respondent.
No. 77-1320.
United States Court of Appeals, Seventh Circuit.
Argued June 3, 1977.
Decided Sept. 19, 1977.
Joel J. Bellows, Charles B. Bernstein, Chicago, Ill., for petitioner.
Richard E. Nathan, Joanne Leveque, Commodity Futures Trading Comn., Washington, D. C., for respondent.
Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and GRANT, Senior District Judge.
The Honorable Robert A. Grant, Senior United'States District Judge for the Northern District of Indiana, is sitting by designation.
CUMMINGS, Circuit Judge.
Petitioner Jeffrey L. Silverman is an account executive employed by a commodity futures commission merchant in Chicago, Illinois. Petitioner presently appeals from the revocation of his registration as an “associated person” licensed to do business on commodity futures markets pursuant to the regulatory authority of the Commodity Futures Trading Commission (Commission) as empowered by the Commodity Futures Trading Commission Act of 1974 (1 U.S. Code Cong. & Admin.News (1974), pp. 1589-1622).
Procedural History
On February 16, 1977, in Silverman v. Commodity Futures Trading Commission, 549 F.2d 28 (7th Cir. 1977), this Court affirmed a two-year suspension of petitioner’s trading privileges on commodity futures markets as a result of certain unauthorized and fraudulent trades on behalf of five customers’ accounts in 1970 and 1971. The nature of petitioner’s improvident trades was the subject matter of a disciplinary petition dated March 13, 1973, as initiated by the Secretary of Agriculture pursuant to the Commodity Exchange Act of 1936. See In Re Jeffrey L. Silverman, CFTC Docket No. 75-6. At issue there was Silverman’s allegedly fraudulent placement of 23 futures transactions in eggs, hogs, and pork bellies, with respect to five customers’ accounts during September and October 1970 and in March 1972. In Silverman, supra at 33, we fully concurred in the Commission’s finding that petitioner had wilfully violated the anti-fraud provision of the 1936 Act (7 U.S.C. § 6b) and held that the suspension of his trading privileges was justified by the record.
After jurisdiction in the above case had been transferred to the Commission, but before an administrative decision in the matter could be reached, petitioner on March 31, 1975, applied for registration as an “associated person” with the Commission pursuant to 7 U.S.C.A.Sup. § 6k(2). The completed application form (CFTC Form 4-R) disclosed under item 15 that Silver-man was currently involved in administrative proceedings before the Commission on account of CFTC Docket No. 75-6, supra. Nonetheless, on July 18, 1975, the Commission granted petitioner’s application for registration as an “associated person” and issued him License Number [ XXX-XX-XXXX ]. Thereafter, on February 28, 1977, during the pendency of this controversy, petitioner’s registration was renewed for another two years as a matter of course. See 7 U.S.C.A.Sup. § 6k.
Events subsequent thereto before the Commission have resulted in petitioner’s revocation of registration as an “associated person,” in accordance with the Commission’s regulatory authority as an independent federal agency entrusted with the safeguarding of the nation’s commodity futures industry. The revocation of registration was to be effective 15 days from the date of the Commission’s final order of March 14, 1977, which would have been March 29, 1977. However, due to the serious effect of this unreviewed sanction, this Court on March 29, 1977, granted Silver-man’s emergency motion to stay enforcement of the Commission’s order pending our decision in this matter and ordered that the appeal be expedited. This appeal arises on a petition to review the revocation of petitioner’s registration.
Regulatory Mission of the Commission
On October 23, 1974, Congress enacted the Commodity Futures Trading Commission Act of 1974 which extensively amended the Commodity Exchange Act of 1936, its predecessor. The legislative aim of the 1974 Act was to further the purpose of the previous Act in “ensuring fair practice and honest dealing on the commodity exchanges and providing a measure of control over those forms of speculative activity which often demoralizes the markets to the injury of producers, and consumers, and the exchanges themselves.” See Senate Report No. 93-1131, 93rd Cong., 2nd Sess. (1974), reported in 3 U.S.Code Cong. & Admin. News (1974), pp. 5843, 5856.
An integral part of the 1974 Act was the creation of a new independent federal regulatory agency to be known as the Commodity Futures Trading Commission. See 7 U.S.C.A.Sup. § 4a. Unlike the Commodity Exchange Authority, the Commission was to have exclusive jurisdiction over all previously unregulated commodities and all transactions involving the sale of commodities on the nation’s futures markets. See 7 U.S.C.A.Sup. § 2. In addition, the Commission was armed with broad regulatory and rule-making powers necessary to its operating procedures and business. See 7 U.S.C. A.Sup. §§ 2 and 4a(j).
Scope of Registration Expanded
The 1974 Act also added a new category known as the “associated person” to the list of those persons required to be registered with the Commission in order to conduct business.
In relevant part, 7 U.S.C.A. Sup. § 6k regulates an “associated person” as follows:
“(1) It shall be unlawful for any person to be associated with any futures commission merchant or with any agent of a futures commission merchant as a partner, officer, or employee * * * in any capacity which involves (i) the solicitation or acceptance of customer’s orders * * or (ii) the supervision of any person or persons so engaged, unless such person shall have registered * * * with the Commission * * *.
“(2) Any such person desiring to be registered shall make application to the Commission in the form and manner prescribed by the Commission * * *. Such person, when registered hereunder, shall likewise continue to report and furnish to the Commission such information as the Commission may require. Such registration shall expire two years after the effective date thereof, and shall be renewed upon application therefor unless the registration has been suspended * * or revoked after notice and hearing as prescribed in Section 9 of this title *
Revocation of Registration
Critical to the present controversy is the Commission’s discretionary power to revoke the registration of an “associated person” pursuant to the procedures set forth in 7 U.S.C.A.Sup. § 9. Under this provision the Commission may upon reasonable belief of wrongdoing serve an “associated person” with a complaint and order to show cause why his registration should not be suspended or revoked. The substantive grounds for such revocation are contained in 7 U.S.C.A. Sup. § 12a(3) as follows:
“The Commission is authorized:
******
“(3) in accordance with the procedure provided for in section 9 of this title, to suspend or revoke the registration of any person registered under this chapter if cause exists under paragraph (2)(B) [e. g., violation of the anti-fraud provisions of Section 4(b) of the 1936 Act, 7 U.S.C. § 6b] or (C) [failure to meet certain minimal financial requirements] of this section * *
Thereafter, the Commission may in its discretion, “suspend, for a period not to exceed six months, or revoke the registration of such person, and may assess such person a civil penalty of not more than $100,000 for each violation.” See 7 U.S.C.A.Sup. § 9.
In addition to administrative sanctions, the 1974 Act contains criminal penalties ranging from several felonies, as defined in 7 U.S.C.A.Sup. §§ 13(a) and (b), to numerous misdemeanors as defined in 7 U.S.C.A. Sup. § 13(c). In particular, violation of the anti-fraud provisions of Section 4b of the 1936 Act (7 U.S.C. § 6b) is a misdemeanor punishable by imprisonment not to exceed one year or a fine not to exceed $100,000, or both.
Order to Show Cause
On May 27, 1976, an order to show cause was issued by the Commission in In the Matter of Jeffrey L. Silverman (Docket No. 76 — 18) pursuant to 7 U.S.C.A.Sup. § 9. Therein petitioner was ordered to appear before an Administrative Law Judge (ALJ) on June 10, 1976, in Washington, D.C., for the purpose of attending a public hearing to determine whether Silverman’s registration as an “associated person” should be revoked.
The order to show cause, inter alia, contained the following allegations:
“A. Jeffrey L. Silverman willfully violated Section 4b of the Act (7 U.S.C. § 6b) in that, while employed as a solicitor and account executive for two registered futures commission merchants in 1970 and 1972, Jeffrey L. Silverman cheated and defrauded five customers of such registered futures commission merchants by executing trades for the accounts of such customers without their knowledge, consent or prior authorization.
“B. On May 5, 1976, the Commission issued a Final Order, in CFTC Docket No. 75-6, prohibiting Jeffrey L. Silverman from trading on or subject to the rules of any contract market for a period of two years and ordering that all contract markets should- refuse him all trading privileges during said period. It was further ordered that Jeffrey L. Silverman permanently cease and desist from placing, or causing to be placed, in any customer’s account, any contracts of sale of any commodity for future delivery, without the prior knowledge, consent or authorization of such customer or otherwise to cheat or defraud, or attempt to cheat or defraud, any person in connection with any order to make, or the making of, any contract of sale of any commodity for future delivery on or subject to the rules of any contract market for, or on behalf of, any person.
“C. By reason of the willful violations of the Act as alleged in paragraph A above and the sanctions imposed as described in paragraph B above, the registration of Jeffrey L. Silverman as an associated person as described in Section 4k of the Act (7 U.S.C. § 6k) should be revoked.”
Thereafter, pursuant to the Commission’s Rules of Practice (Rule 10.3(b), 17 C.F.R. § 10.3(b)), the rule to show cause was scheduled for hearing on an expedited basis. However, on June 10, 1976, the ALJ modified the Commission’s order in fairness to petitioner who had complained in a motion attached to his answer that (1) he would be unable to adequately prepare his defense on such short notice; (2) the Washington, D.C., location for the hearing would prevent many local defense witnesses from testifying in his behalf; and (3) sufficient evidence in the nature of mitigation and rehabilitation could not be developed in such a short period of time. Significantly, the ALJ changed the location of the hearing to Chicago, Illinois, as requested by petitioner, and granted him additional time to prepare his defense.
Hearing Before ALJ in Chicago
On June 24, 1976, the hearing was commenced in this case before an ALJ pursuant to 7 U.S.C.A.Sup. § 9. The cause was prosecuted by the Commission’s Department of Enforcement (DE) whose case in chief consisted of the introduction of three official Commission records, identified as exhibits DE-1, 2, and 3.
Exhibit DE-1 was the March 1973 complaint and notice of hearing in CFTC Docket No. 75-6 and alleged in detail the fraud engaged in by petitioner. Exhibit DE-2 was the December 1975 decision and order of the ALJ finding petitioner guilty of willful fraud and ordering suspension of his trading privileges. Exhibit DE-3 was the final order of the Commission entered on May 5, 1976, upholding the finding of willful violation of the anti-fraud provisions of the Act but modifying the suspension sanction from five years to two years. See Silverman v. Commodity Futures Trading Commission, supra. The exhibits constituted the DE’s prima facie case and were received into evidence as official documents by the ALJ pursuant to the Commission’s Rules of Practice (Rule 10.67(b), 17 C.F.R. § 10.67(b)). The DE then rested its case.
At the conclusion of the DE’s case, petitioner moved for a directed verdict on the grounds that the Commission had failed to meet its “high” burden of proof as to his unfitness and that the official documents previously introduced into evidence were insufficient to satisfy this burden. Petitioner argued that “the Government must actually show that a licensee is truly unfit, that he is morally degenerate, that he cannot be trusted with customer’s funds, that he is thoroughly a bad guy and does not deserve to act in the industry or earn his livelihood to support his family in and around the commodities markets” (Tr. 32).
The ALJ denied petitioner’s motion, holding that the DE had made out a prima facie case under Section 6b of the 1936 Act by virtue of the official documents alone (Tr. 34). The ALJ rejected sub silentio petitioner’s contention that the DE shouldered a “special” burden of proof in this matter. An alternative motion for a continuance on behalf of petitioner was likewise denied.
Mitigation and Rehabilitation
Thereafter petitioner presented his defense of mitigation and rehabilitation. The evidence consisted entirely of testimony garnered from 15 witnesses personally acquainted with him. All of the witnesses, with the exception of one, were intimately involved with the commodity futures markets and in varying professional capacities had dealt with petitioner.
Fairly summarized, the evidence consisted of testimony as to their opinion of petitioner’s honesty and integrity since the filing of the March 13,1972, complaint (CFTC Docket No. 75-6); testimony as to his expertise as an associated person in the commodities markets; and the probable financial, as well as personal, consequences the revocation of registration would have on his career. To a limited extent the witnesses were cross-examined by the DE.
On August 24, 1976, the ALJ entered an initial decision in this matter concluding that the evidence did not warrant revocation of petitioner’s registration and ordering the proceeding dismissed.
Commission’s Final Review
On August 27,1976, the DE filed a timely notice of appeal with the Commission seeking review of the ALJ’s adverse ruling. On March 14, 1977, the five-member Commission unanimously reversed the AU and ordered petitioner’s registration revoked, stating:
“[W]e have carefully reviewed respondent’s [Silverman’s] evidence of extenuation and rehabilitation, but conclude that it is insufficient in view of the serious nature of his violations. While revocation is a severe sanction the public cannot be adequately protected, or the requisite deterrent effects achieved, if a person who has intentionally cheated and defrauded customers * * * is allowed to continue to handle customer accounts or to supervise others so engaged.” (Final Opinion and Order, CFTC Docket No. 76-18, R. 231.)
The Commission accordingly ordered petitioner’s registration revoked effective fifteen days hence.
Appropriateness of Commission’s Sanction
In Butz v. Glover Livestock Commission Co., 411 U.S. 182, 185, 93 S.Ct. 1455, 1458, 36 L.Ed.2d 142 the Supreme Court clearly stated the applicable standard for appellate review of administrative sanctions in circumstances such as these:
“The applicable standard of judicial review in such cases required review of the Secretary’s order according to the ‘fundamental principle . . . that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy “the relation of remedy to policy is peculiarly a matter for administrative competence.” ’ ” American Power Co. v. SEC, 329 U.S. 90, 112, 67 S.Ct. 133, 146, 91 L.Ed. 103 (1946).
As noted by Judge Hastings in Nowicki v. United States, 536 F.2d 1171, 1178 (7th Cir. 1976), the Butz Court twice cited this Circuit’s opinion in G. H. Miller & Co. v. United States, 260 F.2d 286 (7th Cir. 1958) (en banc), certiorari denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572 as a supporting authority. See 411 U.S. at 187, 93 S.Ct. 1455.
In G. H. Miller, supra, we affirmed the six-month revocation of the Miller company’s registration as a futures commission merchant and of Miller’s registration as a floor broker because of manipulative trades in egg futures. The revocation was pursuant to Section 6(b) of the Commodity Exchange Act of 1936 (7 U.S.C. § 9). On rehearing by this court en banc, we concluded:
“It is, therefore, clear to us that if the order of an administrative agency finding a violation or a statutory provision is valid and the penalty fixed for the violation is within the limits of the statute [and] the agency has made an allowable judgment in its choice of the remedy * * ordinarily the Court of Appeals has no right to change the penalty because the agency might have imposed a different penalty.” 260 F.2d at 296.
Applying these principles to the case at hand, it is likewise clear to us that the Commission has been entrusted by Congress with the special mission of enforcing fair practice and honest dealing on the commodity futures markets. As was made clear in Savage v. Commodity Futures Trading Commission, 548 F.2d 192, 197 (7th Cir. 1977):
“* * * we must be mindful of a Congressional purpose, clearly evidenced at least since 1933, to protect the American investing and speculating public not only from fraud and fraudulent practices, but from those whose past actions indicate that they might be tempted to engage in such practices. * * * Congress cannot specify licensing requirements for each particular applicant but, of necessity, must within reason adopt somewhat general standards and authorize some agency to apply them.” (Citations and footnote omitted).
Contrary to petitioner’s arguments, the DE did not have to shoulder a special burden of proof here and need only have established a prima facie case in order for the Commission to revoke petitioner’s registration under 7 U.S.C.A.Sup. § 12a(3), as it did (Tr. 34). As was the case in Savage, supra, at 196, once the DE proved Silverman’s willful violation of the anti-fraud provisions of Section 4b of the 1936 Act (7 U.S.C. § 6b), it became his burden to go forward to persuade the Commission to exercise its discretion to permit his continued registration.
The Commission’s final opinion in this matter articulated a rational connection between the petitioner’s willful violations of Section 4b of the 1936 Act (as established in CFTC Docket No. 75-6) and its considered choice to revoke his registration. See Burlington Truck Lines v. United States, 371 U.S. 156, 167-168, 83 S.Ct. 239, 9 L.Ed.2d 207. As the Commission explained, otherwise the public could not be adequately protected and deterrent effects would not be achieved. The Commission also exercised its expert discretion by balancing the evidence of extenuation and rehabilitation against the seriousness of the offense and the need to insure the highest fiduciary standards for persons registered under the 1974 Act.
Furthermore, we do not agree with petitioner that the expedited hearing and briefing schedule adopted by the Commission in this case violated due process. In support of this argument, petitioner cited United States v. Heffner, 420 F.2d 809 (4th Cir. 1970) and Pacific Molasses v. Federal Trade Commission, 356 F.2d 386 (5th Cir. 1966) for the proposition that the failure of a government agency to abide scrupulously by its own rules, regulations, or procedures violates administrative due process where prejudice is shown. As stated, supra, Commission Rule 10.3(b) (17 C.F.R. § 10.3(b)) permits the Commission to expedite hearing procedures in its discretion so long as no party is prejudiced and the ends of justice will be served. It is clear from the record that the modified schedule of June 10,1076, ordered by the ALJ was an attempt to balance the Commission’s desire to provide immediate public protection and the petitioner’s due process right to defend himself. Under the circumstances there was no violation of Rule 10.3(b).
In addition, the violations of agency regulations in Heffner and Pacific Molasses, supra, are distinguishable from the Commission’s adoption of an expedited hearing and briefing schedule here. Thus in Heffner, Special Agents of the IRS Intelligence Division blatantly violated Internal Revenue Service procedures aimed at protecting the Fifth and Sixth Amendment rights of persons suspected of criminal tax fraud. See 420 F.2d at 811. In Pacific Molasses, supra, the Federal Trade Commission violated a prehearing conference agreement to furnish that petitioner a list of all the Commission’s prospective witnesses and documentary evidence although Section 3.10 of the FTC’s Rules of Practice provided that an agreement reached at a prehearing conference would control the subsequent course of the proceedings. See 356 F.2d at 388. The prejudice to litigants which prompted reversal in Heffner and Pacific Molasses prevented a full and fair adjudication of the merits. Even assuming arguendo that Silverman was prejudiced by the expedited schedule, it was not reversible error. The record clearly demonstrates that he was not deprived of an opportunity to present substantial evidence of mitigation and rehabilitation. The possibility that additional testimony would have changed the Commission’s sanction is sheer speculation and exists in any proceeding of this kind.
Petitioner was unable to convince the Commission that he presents no further danger to the investing public. It described his violations as of “serious nature” (R. 23). His willfulness was discussed in our prior opinion (549 F.2d at 31). After a careful review of the record we are convinced that he was afforded administrative due process and was given a “meaningful opportunity” to prepare his defense. While there is a surface inconsistency between the suspension imposed in the prior proceeding and the revocation imposed here, Commission counsel has pointed out that Congress had not required registration of associated persons nor provided for revocation of such registration at the time of the 1973 disciplinary proceeding.
The revocation of petitioner’s registration was a permissible administrative sanction addressed to the sound discretion of the Commission. Congress invested the Commission with revocation power to safeguard the public interest in the well being of the nation’s commodity futures markets. Petitioner may reapply for registration at any time. On this record, we cannot say that the penalty imposed was an abuse of discretion.
The Commission’s order is affirmed.
. The two-year suspension of trading privileges went into effect on May 25, 1976, and would, therefore, continue in full force until May 25, 1978. The record does not disclose nor do the parties make mention in their briefs of any stay of enforcement of the sanction.
. In relevant part, 7 U.S.C. § 6b, provides:
“It shall be unlawful * * * for any member of a contract market * * * or employee of any member, in or in connection with any order to make, or the making of * * * any contract of sale of any commodity for future delivery, made, or to be made, on or subject to the rules of any contract market, for or on behalf of any other person * * * to cheat or defraud or attempt to cheat or defraud such other person.”
This is Section 4b of the 1936 Act.
. The Commission has taken jurisdiction from the Secretary of Agriculture without abatement pursuant to Section 411 of the Commodity Futures Trading Commission Act of 1974:
“All operations of the Commodity Exchange Commission and the Secretary of Agriculture under the Commodity Exchange Act, including all pending administrative proceedings, shall be transferred to the Commodity Futures Trading Commission as of the effective date of this Act and to continue to completion * *
. Even though petitioner is precluded by virtue of the suspension of trading privileges order from trading on his own account or for the account of any other person for two years, as an “associated person” registered with the Commission, he could, nevertheless, solicit or accept customers’ orders and supervise others so engaged unless his registration was revoked.
. Under the 1936 Act, only future commission merchants and floor brokers were required to be registered with the Secretary of Agriculture. The 1974 Act incorporates these provisions in toto but substitutes the Commission for the Secretary. See 7 U.S.C.A.Sup. §§ 6d and 6f.
. In relevant part 17 C.F.R. § 10.3(b) provides: “§ 10.3 Suspension, amendment, revocation and waiver of rules.
******
(b) In the interest of expediting decision or to prevent undue hardship on any party or for other good cause the Commission may order the adoption of expedited procedures and may waive any rule * * * of this part in a particular case and may order proceedings in accordance with its direction upon a determination that no party will be prejudiced and that the ends of justice will be served. — Reasonable notice shall be given to all parties of any action taken pursuant to this provision.”
. In relevant part, the CFTC’s Rules of Practice (17 C.F.R. 10.104(b)) provide:
“On review, the Commission may affirm, reverse, modify, set aside or remand for further proceedings, in whole or in part, the initial decision by * * * [an] Administrative Law Judge and make any findings or conclusions which in its judgment are proper based on the record in the proceeding.”
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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".
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: 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_origin
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Joyce E. KEEGAN, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services.
No. 84-1113.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Sept. 10, 1984.
Decided Sept. 24, 1984.
Jack I. Kaufman, Allentown, Pa., for appellant.
Edward S. G. Dennis, Jr., U.S. Atty., Edward T. Ellis, Asst. U.S. Atty., E.D.Pa., Beverly Dennis, III, Regional Atty., David L. Hyman, Asst. Regional Atty., Dept, of Health and Human Services, Philadelphia, Pa., for appellee.
Before GIBBONS and GARTH, Circuit Judges, and TEITELBAUM, District Judge.
Hon. Hubert I. Teitelbaum, Chief Judge, United States District Court for the Western District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Joyce E. Keegan appeals from a summary judgment in favor of the Secretary of Health and Human Services in her action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982), for a review of a denial of disability benefits under Title II and Title XVI of the Social Security Act. Keegan contends that the district court erred in its interpretation and application of the guidelines for the termination of disability benefits as set forth in Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983). We agree and therefore reverse.
I.
Ms. Keegan, born in 1932, and formerly employed as a secretary, applied for disability insurance benefits on June 28, 1976. Her application was denied initially and on reconsideration by the Office of Disability Operations of the Social Security Administration. The case was considered de novo by an Administrative Law Judge (AU) who, in a decision dated April 27, 1978, determined that Ms. Keegan was disabled for purposes of the Act, and that her disability commenced on November 8, 1974. The AU concluded, based in part on medical reports from Doctors Farber and Chirieleison, that Keegan was disabled due to a combination of: “(1) rheumatic heart disease, (2) mitral stenosis and insufficiency with the insufficiency predominating, and. (3) anxiety.” Subsequently on April 30, 1978 Ms. Keegan filed for and was granted Supplemental Security Income Benefits.
On June 23, 1981 Ms. Keegan was notified that her disability had ceased as of May, 1981 and that her benefits would be terminated as of July, 1981. The administration in its notice advised Ms. Keegan that her benefits had been initially granted “because of rheumatic heart disease,” Tr. 163, and that the medical evidence indicated that her heart was currently enlarged and that her cardiogram reflected “some non-specific changes consistent with [her] condition.” Further the evidence showed, according to the notice, the absence of symptoms indicative of congestive heart failure, chest pains or fainting spells. Tr. 163. Accordingly, she was advised that “[i]n view of the evidence you have the functional ability to perform your customary occupation as a secretary as it is generally performed in the national economy.” Tr. 163.
Following a hearing which was requested by Ms. Keegan, the AU found that Ms. Keegan was unable to work as a secretary since that activity involved “light exertion” as defined in 20 C.F.R. § 404.1567(b) (1984), but that she retained sufficient residual capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) (1984). The AU determined that Ms. Keegan’s past work experience should be classified as “skilled” as defined in 20 C.F.R. § 404.1568(c) (1984), and that these clerical skills were transferable to sedentary work. 20 C.F.R. § 404.1568(a) (1984).
The AU’s opinion, relying heavily on the report of Dr. Kastenbaum who examined Ms. Keegan for the Administration, conceded that the claimant suffers from rheumatic heart disease with probable mitral insufficiency along with a history of atrial fibrillation, and that this impairment “significantly limits her physical ability to perform basic work related activities.” Tr. 22. The AU stated that Ms. Keegan’s symptoms are aggravated by exertion but relieved by rest and that she was “able to carry out her daily activities without much in the way of symptoms.” This latter observation is apparently taken from Dr. Kastenbaum’s report. Tr. 179.
The Appeals Council refused to review the AU’s opinion, thereby making the Secretary’s determination of non-disability final. Ms. Keegan appealed the decision to the district court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982). Each party moved for summary judgment, and the matter was referred to a magistrate for a recommendation. The magistrate reviewed the evidence and recommended that Ms. Keegan’s motion for summary judgment be denied and the Secretary’s motion for summary judgment be granted. In addressing one of Ms. Keegan’s contentions, namely, that the AU made an error of law in determining that her disability had ceased, the magistrate’s report discussed our decision in Kuzmin. The report stated that Kuzmin was satisfied in that Ms. Keegan failed to meet her burden of proof by showing that her condition remained the same as it was at the time of the earlier determination of disability. The magistrate’s report seems to base this conclusion on the lack of additional medical evidence subsequent to the initial determination of disability attributable to the fact that Ms. Keegan was not being treated by any particular physician since 1977.
Ms. Keegan contends that the magistrate’s interpretation of Kuzmin was incorrect. She argues that her testimony constituted evidence of a continuing disability which thereby effectively shifted the burden of proof to the Secretary to present evidence of sufficient improvement in her condition to permit her to undertake “gainful activity.”
The district court adopted the recommendation of the magistrate and granted the Secretary’s motion for summary judgment. The court held that the guidelines for the termination of benefits provided by our decision in Kuzmin were properly followed. First, the court concluded that Ms. Keegan failed to introduce “sufficient evidence that her condition is the same or worse when compared to her condition at the time of the prior finding of disability.” App. 8A at 4. Second, the court concluded that even if a presumption of continuing disability was created by Ms. Keegan, Dr. Kastenbaum’s report was sufficient evidence to enable the Secretary to rebut the presumption of continuing disability.
Since Ms. Keegan's sole ground for appeal rests on the district court’s alleged error in interpreting and implementing our decision in Kuzmin, that is the only issue we need address.
II.
Our inquiry is limited to a determination of whether the Secretary’s final determination of non-disability is supported by “substantial evidence,” 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982), which has been defined as such evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). In our decision in Kuzmin we addressed the effect to be given to a prior determination of disability on a subsequent decision to terminate benefits. We concluded that both basic principles of fairness and the need to provide the appearance and fact of consistency in the administrative process dictate that “once the claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, the claimant is entitled to the benefit of a presumption that his or her condition remains disabling.” Kuzmin, 714 F.2d at 1237. Regarding the nature of proof that must be offered by a claimant, our decisions in both Kuzmin and Daring v. Heckler, 727 F.2d 64 (3d Cir.1984), are instructive. In Kuzmin we stated that a claimant may meet his or her burden by relying on medical evidence previously introduced, supplemented by the claimant’s own testimony of the continuing nature of the disability. Kuzmin, 714 F.2d at 1237. Any doubt which may have persisted after Kuzmin as to the sufficiency of a claimant’s own testimony standing alone to raise the Kuzmin presumption has been resolved in Daring wherein we recognized that this was an adequate means of proof. Thus, once the claimant produces evidence of continuing disability, the burden of proof, or more properly the risk of non-persuasion, shifts to the Secretary to produce evidence that the claimant is capable of undertaking gainful activity in order to rebut the presumption of continuing disability. Kuzmin, 714 F.2d at 1237.
III.
In the present case the district court’s conclusion that Ms. Keegan failed to meet her burden under Kuzmin was in error. The record reflects that in addition to giving testimony of a continuing disability Ms. Keegan did in fact offer additional medical evidence at the hearing itself. Specifically, at the hearing Ms. Keegan introduced medical reports from St. Joseph Hospital, dated April 23, 1982, and records resulting from a visit to the Reading Hospital and Medical Center Emergency Unit. Ms. Keegan had been brought to the hospital by a friend because she complained of weakness, poor appetite and palpitations. Tr. 191. While this additional evidence alone would likely be sufficient to raise the Kuzmin presumption, our decision in Daring makes it clear that her testimony standing alone was sufficient to create the presumption of continuing disability. Daring, 727 F.2d at 69. The Secretary argued in her brief that a leading question asked by Ms. Keegan’s attorney cannot be sufficient even under Daring to satisfy the Kuzmin burden. Brief for Appellee at 10. The exchange referred to by the Secretary was:
BY ATTORNEY:
Q: Mrs. Keegan, 1978, based on the evidence, there was evidence indicating that you experienced frequent fatigue and weakness to the point where you could not do your housework. Okay. Is that still your situation?
A: Yes
Tr. 35.
The Secretary’s argument is without merit for two reasons. First, the Secretary’s objection to the form of the question is inappropriate given the liberal evidentiary rules governing administrative hearings. Section 556(d) of the Administrative Procedure Act provides, “[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” The record nowhere reflects the AU’s instructions to Ms. Keegan’s counsel to frame his questions in a certain way. Thus, if the Secretary simply objects to the form of the question, the objection is incorrect. If, on the other hand, the Secretary is arguing that Ms. Keegan’s answer cannot be sufficient to meet her Kuzmin burden because she is only adopting the words of her attorney, the argument must also fail. The question must be fairly read to constitute the attorney’s asking if Ms. Keegan feels any better now than she did at the time of the initial hearing. Given the nature of disability benefit termination proceedings, such a question can hardly be improper.
The other flaw in the Secretary’s argument concerning the “leading question” is that it implicitly assumes that the above referred-to exchange between Ms. Keegan and her attorney is the only portion of her testimony that arguably could furnish a basis for the presumption of continuing disability. This argument is curious particularly since the Secretary’s own brief concedes that the record does contain a “claim” by the claimant that her condition remained the same as it was at the time of the initial hearing. In any case it is clear that Ms. Keegan’s testimony, taken as a whole clearly meets her Kuzmin burden. For example, she testified to difficulty with climbing stairs, and doing housework, weakness in the legs, collapse, and episodic palpitations. Tr. 36-37. These symptoms are undeniably consistent with continuing disability.
Similarly, we can dispose with the Secretary’s argument that Ms. Keegan failed to meet her Kuzmin burden because she testified that she was somewhat less anxious than she had been at the time of the prior hearing, at least to the extent that her former husband was a source of her anxiety. Appellee’s Brief at 10. This is similar to the situation posed in Daring where we concluded that “[t]here is also no basis to support the AU’s reliance on his own impressions that Daring’s relationship with her former boyfriend had been ‘primarily responsible for the claimant’s severe emotional outbursts.’ ” (emphasis in original). Daring, 727 F.2d at 70. In the present case there is similarly no basis for an inference that Ms. Keegan’s husband was the sole cause or even a significant cause of Ms. Keegan’s anxiety. Indeed, it is more likely that Ms. Keegan’s physical condition and the attendant difficulties she experiences in attempting to cope with her illness are the main source of her anxiety. The Secretary’s argument has even less force than it would have if posed in Daring, since in the present case, unlike Daring, the AU’s opinion never mentioned Ms. Keegan’s supposed reduced anxiety in her findings.
The district court also concluded that notwithstanding Ms. Keegan’s failure to meet her burden, the Secretary met her burden of proof to rebut the presumption of continuing disability. In view of our conclusion that Ms. Keegan did offer sufficient evidence to raise a presumption of continuing disability, we must turn to the issue of whether there is substantial evidence to support the Secretary’s findings that Ms. Keegan’s disability had ceased. If we conclude, as the district court did, that the Secretary’s decision was supported by substantial evidence we would have to accept her findings as conclusive. Daring, 727 F.2d at 68. In this regard the district court stated that the Secretary met her burden with Dr. Kastenbaum’s report and the testimony of Ms. Keegan.
As in Kuzmin a comparison between the evidence before the first AU and the termination proceedings record reveals a marked similarity between the two. Kuzmin, 714 F.2d at 1238. For example, the first AU in finding disability considered the medical reports of Drs. Farber, an administration consultant, and Chirieleison. Tr. 142. Dr. Farber concluded that Ms. Keegan was suffering from “rheumatic heart disease, mitral stenosis and insufficiency with the insufficiency predominating ... enlargement of the left atrium and the outflow tract of the left ventricle,” along with “premature atrial and ventricular contractions.” Tr. 107. That report continued
Mrs. Keegan has evidence of strain on her cardiovascular system resulting from her damaged mitral valve. If progression of the strain is to be kept to a minimum she will have to curtail her physical activities. She has too much to care for at home and should really have help with her housework. She could not consider doing work outside of the house and continuing with her housework. If she had a job, it would have to be a sedentary type of occupation, and she would then have to have full time help at home.
Tr. 107 (emphasis added). Dr. Chirieleison stated in his report that Ms. Keegan had a “significant cardiovascular problem with her mitral stenosis and insufficiency causing her to have some evidence of cardiac decompensation in regards to her supraventricular tachycardia.” Tr. 134. He also referred to a stress cardiogram which showed “marked impairment of her functional aerobic impairment [sic].” Tr. 134. Dr. Chirieleison concluded that “Mrs. Keegan with her rheumatic valvular disease is certainly not capable of performing any strenuous activity or indeed any employment which would require her to be under stress.” Tr. 134.
The AU in the second de novo hearing considered all the foregoing along with the medical report of an administration consultant, Dr. Kastenbaum. Dr. Kastenbaum concluded that Ms. Keegan had an enlarged heart, rheumatic heart disease with mitral valve disease which was most likely mitral stenosis, and that she probably has episodes of atrial fibrillation. He classified her as “American Heart Association Class 2 to 3.” Tr. 179. The AU apparently seized upon the portion of Dr. Kastenbaum’s report which stated that Ms. Keegan “is apparently able to carry out her daily activities without much in the way of symptoms, but does get help with her housework by her children” and that she “[h]as not had symptomatic failure for the last four years at least that required hospitalization.” Tr. 179 (emphasis added).
Given the substantially similar clinical findings of Drs. Farber, Chirieleison and Kastenbaum, namely an enlarged heart, rheumatic heart disease, and mitral stenosis, along with Dr. Kastenbaum’s classification of Ms. Keegan as being between American Heart Association 2 and 3, it is apparent that her condition has not improved to the point where she is capable of gainful activity. A person between American Heart Association classes 2 and 3 will experience symptoms at something less than ordinary activity and is only asymptomatic at rest. Further, Dr. Kastenbaum’s statement to the effect that Ms. Keegan is capable of conducting her daily activities “without much in the way of symptoms” was conditioned on her receiving help with her housework from her children. The language suggests that Ms. Keegan might not be able to conduct her daily activities, much less hold down a job, without help with her housework. This is practically identical to the conclusion reached by Dr. Farber, Tr. 107, which was one basis for the initial determination of disability.
The AU also apparently relied on Dr. Kastenbaum’s noting the absence of “symptomatic failure” for four years “at least that required hospitalization.” The non-occurrence of an attack serious enough to require hospitalization is hardly inconsistent with a continuing disability. All three examining physicians and the AU at the termination hearing concurred that Ms. Keegan could be asymptomatic if she remained at rest; and that any symptoms she does experience can be relieved by rest. Therefore, the very nature of her illness is such that if she carefully limits her activity she should not require hospitalization. Hence, the absence of symptoms severe enough to require hospitalization in this case does not constitute substantial evidence of non-disability. In this regard it is also instructive to note that Dr. Kastenbaum considered Ms. Keegan’s condition serious enough to warrant consideration of her as a possible candidate for open-heart surgery. Tr. 179.
Based on the foregoing we conclude that Dr. Kastenbaum’s report did not furnish a basis for rebutting the presumption of continuing disability. We shall briefly consider the district court’s conclusion that Ms. Keegan’s testimony constituted sufficient evidence to enable the Secretary to rebut the Kuzmin presumption.
The district court’s memorandum opinion stated that “[t]he Secretary has met her burden by showing through Dr. Kastenbaum’s report and by testimony from the plaintiff, that the plaintiff is not now disabled.” App. 8A at 4. If the district court is suggesting that Ms. Keegan’s testimony standing alone can furnish the basis for rebutting the Kuzmin presumption, we point out that this issue was not addressed in Kuzmin or Daring. In Daring we made it clear that a claimant could meet her Kuzmin burden by offering her own testimony, and then be given the benefit of a presumption of continuing disability. Once the claimant offered such evidence the Secretary “must present evidence, that there has been sufficient improvement in the claimant’s condition to allow the claimant to undertake gainful activity.” Kuzmin 714 F.2d at 1237. While it is conceivable that a case could arise where the testimony of the claimant alone is sufficient to rebut the Kuzmin presumption of continuing disability, our concerns for “[bjasic principles of fairness as well as the need to provide both the appearance and fact of consistency” lead us to conclude that, at least in most cases, the Secretary should, rely on more than solely the claimant’s own testimony to rebut the presumption of continuing disability. See Early v. Heckler, 743 F.2d 1002 at 1007 (3d Cir.1984) (unrepresented claimant’s equivocal testimony not substantial evidence of improvement). Therefore, given the administration’s power to require the claimant to submit to medical examinations, 20 C.F.R. § 404.1517 (1984), our concerns for fairness and administrative consistency suggest that medical evidence rather than claimant’s testimony standing alone should furnish the basis to rebut the Kuzmin presumption. It is conceivable that in a given case medical evidence will not be sufficient to rebut the presumption but that extremely damaging admissions made by the claimant would be sufficient. Therefore, it is not possible to categorically state that a claimant’s testimony, standing alone, can never constitute sufficient evidence to rebut the Kuzmin presumption, but such cases should be rare.
IV.
In light of the foregoing we will reverse the summary judgment in favor of the Secretary with instructions to remand to the Secretary for reinstatement of benefits commencing August, 1981.
. Ms. Keegan also raised several other objections before the district court, namely: that the ALJ’s conclusion regarding Ms. Keegan’s residual functional capacity was not supported by substantial evidence; that the absence of a vocational expert's testimony along with the ALJ’s taking administrative notice of the existence of sedentary work or that Ms. Keegan could do such work constituted legal error; that Ms. Keegan’s inability to afford a doctor or her refusal to complete a stress test should not provide the basis for a finding of lack of disability. The district court addressed all the arguments except for the final one, finding it unnecessary for the disposition of the case. We will deal, however, only with the objection arguing a misapplication of Kuzmin since that is the sole ground on which Ms. Keegan’s appeal to this court rests.
. Both for purposes of disability insurance and for SSI benefits, disability has been defined as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A)(1982). A person is disabled within the meaning of these provisions "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B) (1982).
. In Daring we also pointed out that a claimant could meet the Kuzmin burden with evidence of continued episodes of hospitalization or even medical reports relied on by the Secretary. Daring, 727 F.2d at 69.
. The American Heart Association has developed a system of classification which categorizes heart patients in terms of the types of activity which will produce symptoms. The classification scheme states in pertinent part:
Functional Class II: Patients with cardiac disease resulting in slight limitation of physical activity. They are comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea, or anginal pain. Functional Class III: Patients with cardiac disease resulting in marked limitation of physical activity. They are comfortable at rest. Less than ordinary physical activity causes fatigue, palpitation, dyspnea, or anginal pain.
Diseases of the Heart and Blood Vessels — Nomenclature and Criteria for Diagnosis, N.Y. Heart Association (6th ed. 1964).
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_injunct
|
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 court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction 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".
CITY OF COVINGTON, KY., v. CINCINNATI, N. & C. RY. CO.
No. 6466.
Circuit Court of Appeals, Sixth Circuit.
Feb. 13, 1934.
As Amended on Denial of Rehearing June 29, 1934.
Sawyer A. Smith, of Covington, Ky., C. W. Yungblut, of Newport, Ky., Charlton B. Thompson, of Covington, Ky., and Helm Woodward, of Cincinnati, Ohio, for appellants.
L. K. Langdon and C. S. Weakley, both of Cincinnati, Ohio, Chas. W. Milner, of Louisville, Ky., F. M. Tracy, of Cincinnati, Ohio, and Matt Ilerold, of Newport, Ky., for appellee.
Before MOORMAN, HICKENLOOPER, and SIMONS, Circuit Judges.
MOORMAN, Circuit Judge.
This is an appeal from an order of the District Court for the Eastern District of Kentucky granting a preliminary injunction enjoining certain Northern Kentucky cities from interfering with the Cincinnati, Newport & Covington Railway Company in charging a 10-eent eash or a 7%-cent token fare for a single ride on its lines from the Kentucky cities to the northern terminus of the railway company in Cincinnati, Ohio. The appellant cities, while a part of the metropolitan area of Cincinnati, are separated from that city by the Ohio river. They are themselves divided by the Licking river, but are connected by bridges across that river. The appellee is a Kentucky corporation operating a street railway system throughout the appellant cities and over bridges connecting Newport and Covington with Cincinnati to its terminus in the latter city. It was organized by special act of the General Assembly of Kentucky under the name of the South Covington and Cincinnati Street Railway Company, but in 1922 amended its charter and changed its name to Cincinnati, Newport & Covington Railway Company. Shortly after it was organized it acquired a franchise in Covington, and it later acquired and now owns all franchises and rights granted by the Kentucky cities to other street railway companies, and it operates its lines under these franchises, with lines crossing the Ohio river, as a unit under a single management. It is engaged exclusively in transporting passengers, and is not operated as a part of, or in connection with, any other transportation system.
The bill sufficiently alleged federal and equity jurisdiction. Detroit v. Detroit Citizens’ St. Ry. Co., 184 U. S. 368, 22 S. Ct. 410, 46 L. Ed. 592; San Antonio v. San Antonio Pub. Serv. Co., 255 U. S. 547, 44 S. Ct. 428, 65 L. Ed. 777; City of Louisville v. Louisville Ry. Co., 281 F. 353 (6 C. C. A.); Id., 39 F. (2d) 822 ( 6 C. C. A.). It sought an injunction against interference with the company’s proposed increase of its intrastate fares in Kentucky, as well as its fares from Kentucky to Cincinnati, and also against interference with a change in its method of operating its ears from a two-man operation to a one-man operation. The trial court did not pass on the motion for an injunction so far as it related to intrastate fares or the proposed change in the manual operation of the ears. The sole question presented to us for decision, therefore, is whether the court rightly enjoined interference on the part of the municipalities with the proposed increase in fares from points in Kentucky to the terminus of the company’s lines in Cincinnati.
It is a settled rule of equity procedure that, where the question presented on an appeal from an order granting or refusing a preliminary injunction is solely one of law, and the record shows that the trial court did not exercise discretion in any matter of fact or expediency, the appellate court will consider the question presented, and will direct the granting or withholding of the injunction as the law requires. Cumberland Telephone Co. v. City of Memphis, 200 F. 657, 658 (6 C. C. A.). In the instant case, the order appealed from was based on the trial court’s view of the legal question presented by undisputed evidence, and hence the question is at large in this court.
For many years the appellee has charged a 5-cent fare from the Kentucky cities to Cincinnati. It appears in the proofs that 70 per cent, or more of its traffic originating in these cities is interstate traffic for Cincinnati. It further appears that for several years it has not earned the interest on its bonds, and since January 1, 1930, it has been operating at a substantial loss. It may thus be accepted for the purpose of decision that the 5-cent fare it has heretofore charged is inadequate, and that reasonable rates for such service would not exceed those which it proposes to establish. Upon this hypothesis we proceed to examine the reasons advanced by appellants in support of their contention that the appellee is bound to maintain a 5-eent rate of fare.
Seven of the cities, Bromley, Park Hills, Fort Mitchell, South Fort Mitchell, Fort Thomas, Clifton, and Southgate, make no claim to any contract rights. They contend, or rather, contended in the court below, though the point is not urged before us, that the proposed increase is prohibited by section 848 of Kentucky Statutes, which provides that no person or corporation shall use, or be permitted to use, any bridge across a river, forming a boundary of the state where the bridge is operated by a consolidated corporation, as defined in section 843 of the statutes, except upon condition that it carry passengers from any city or town in the state in which it may operate street railway cars to all points in any other state to which it may operate its ears for a single cash fare of 5 cents for each passenger. Violation of this statute is made an offense under section 850, Kentucky Statutes, punishable by a fine of not less than five hundred nor more than one thousand dollars. In the first place, the statute applies only to the operation of cars over bridges owned and operated by consolidated corporations (Commonwealth v. L. & N. R. R. Co., 148 Ky. 94, 146 S. W. 767), and it does not appear in the record before us that either of the bridges over which the appellee operates is owned by such corporation. If it be assumed, however, that the bridges do come within this provision of the statute, and it would seem that the bridge between Covington and Cincinnati is to be so classified (Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204, 14 S. Ct. 1087, 38 L. Ed. 962), the statute is nevertheless unavailable to defeat the increase, because according to its terms, it is an unconstitutional attempt to regulate commerce between the states. This was the view taken by the trial court on authority of Covington & Cincinnati Bridge Co. v. Kentucky, supra, and South Covington Ry. Co. v. Covington, 235 U. S. 537, 35 S. Ct. 158, 59 L. Ed. 350, L. R. A. 1915F, 792, and we think it is right. Since, therefore, the cities mentioned base their claims upon no other ground than the inhibitions of this statute, it must be held that as to them the injunction was rightly granted.
The other appellants rely upon contract rights written into franchises granted to the appellee and its predecessors. The provisions under which these rights are claimed vary according to their verbiage. As to each there is the initial question of the right of a city and a street railway company to contract for interstate street railway fares. The appellee contends that the commerce clause of the Constitution forbids the making of such a contract. It concedes that Congress has never exercised the authority conferred upon it by that clause of the Constitution to regulate street railway companies carrying passengers between states (Omaha Street Ry. Co. v. Interstate Commerce Commission, 230 U. S. 324, 33 S. Ct. 890, 57 L. Ed. 1501, 46 L. R. A. (N. S.) 385), and it does not claim that the fares here in question are subject to control by the Interstate Commerce Commission because they work an unjust discrimination against other interstate rates, as was the ease in United States v. Village of Hubbard, Ohio, 266 U. S. 474, 45 S. Ct. 160, 69 L. Ed. 389.
Admittedly there is no power in either a city or a state to impose an undue burden on interstate commerce by the regulation of interstate rates, even though the commerce be carried on through an instrumentality over which Congress has not exercised its control. Covington & Cincinnati Bridge Co. v. Kentucky, supra; South Covington Ry. Co. v. Covington, supra; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286; Bush Co. v. Maloy, 267 U. S. 317, 45 S. Ct. 326, 69 L. Ed. 627; Public Util. Comm. v. Attleboro Co., 273 U. S. 83, 47 S. Ct. 294, 71 L. Ed. 549. It is contended by the appellee that a contract for rates is in effect a regulation. We do not think so. A contract is the result of the meeting of minds free to make decisions. Regulation involves the exercise of compulsion, the imposition of a superior power. We must deal here, therefore, not with the regulation of interstate rates, but with the subjeetability of such rates to contract. There being no power in. tlie state or the city to regulate them, and Congress not having exercised its regulatory powers, it would seem to follow necessarily that the carrier is left free to make its ovhi contracts. That is what the carrier by steam railroad did prior to the enactment of the Act- to Regulate Commerce of 1887 (49 USCA § 1 et seq.), subject, of course, to the condition that, if it exacted an exorbitant rate, the shipper might recover the excess over a reasonable charge. Arizona Grocery v. Atchison Ry., 284 U. S. 370, 383, 52 S. Ct. 183, 76 L. Ed. 348. In this early period of pre-regulation of railroads it was never supposed, if we may judge from the reported eases, that the carrier did not have the right to make contracts for interstate rates. Indeed, if we view this suit from the standpoint of its ultimate purpose, we are compelled to observe that the appellee is here seeking to free itself from existing contracts for interstate rates in order that it may make other contracts for such rates with the individual users of its cars. We think there can be no doubt that the interstate rates of a street railway company are subject to determination by contract, and that a contract with a city for such rates for a fixed period of time is valid if the city itself possessed the power to make the contract. It is, of course, true that a contract covering rates of this character can be valid only so long as Congress does not exercise its regulatory power, and when that power has been exercised, the contract rights must then yield to the congressional regulation. L. & N. R. R. Co. v. Mottley, 219 U. S. 467, 31 S. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; New York v. United States, 257 U. S. 591, 601, 42 S. Ct. 239, 66 L. Ed. 385,
The interstate fares of the appellee being a matter about which it could contract, the next inquiry is whether the appellants had the power, in the interest of their residents, to enter into contracts with the appellee for maximum interstate fares on its lines. It is true that in Kentucky the power to regulate the rates of street railways in cities is a power vested in the state, and, unless there is a delegation of the power, the city has no right of regulation (City of Louisville v. Louisville Ry. Co., supra); further it will not be presumed that the state has surrendered all of its power of regulation unless the intent so to do clearly appears in the delegating act. If the controversy in the case at bar related to a contract with reference to rates within the city, the power of the city to make such a contract would have to be determined in the light of these applicable rules of law, but the case here presented raises no question of the power of the city to contract with reference to intracity rates. What we are concerned with is the city’s power to contract for interstate rates without the city — rates which neither it nor the state has any power to regulate. These i*ates are nevertheless susceptible to control by contract, and the question then is whether a Kentucky city, having power to fix the terms and conditions on which it will permit a street railway to use its streets, may require the railway company to agree, as one of the conditions thereof, to charge the residents of the city a specified rate for interstate transportation outside the city. It has been held in some of the states that a city has the power to contract for intrastate rates outside the city. Atlantic Coast Ry. Co. v. Board of Public Utility Com’rs, 89 N. J. Law 407, 99 A. 395; Vining v. Detroit, etc., Ry., 133 Mich. 539, 95 N. W. 542; Georgia Railway & Power Co. v. Decatur, 153 Ga. 329, 111 S. E. 911, for contracts, see Id., 152 Ga. 143, 108 S. E. 615; Selectmen of Westwood v. Dedham, etc., Ry., 209 Mass. 213, 95 N. E. 81; Manitowoc v. Manitowoc & Northern Traction Co., 145 Wis. 13, 129 N. W. 925, 140 Am. St. Rep. 1056; Public Service Commission v. Westchester Street R. R. Co., 206 N. Y. 209, 99 N. E. 536. See, also, Georgia Ry. Co. v. Decatur, 262 U. S. 432, 43 S. Ct. 613, 67 L. Ed. 1065, where the Supreme Court upheld a contract whieh a Georgia city had made for a rate outside its boundary- We think it can be said on the authority of these eases that a Kentucky municipality, having the right to fix the terms and conditions upon which a street railway shall enter upon and use its streets, may contract with the railway, in consideration for the grant of the use, for a fixed rate for interstate transit beyond the city limits, and that such a contract is valid so long as Congress does not exercise its paramount authority to determine the rates. L. & N. R. R. Co. v. Mottley, supra. There is nothing in R. R. Commission v. Los Angeles R. Co., 280 U. S. 145, 50 S. Ct. 71, 74 L. Ed. 234, which opposes this view. There the contract was held invalid because it was a limitation on the right of the state to exercise its power of regulation by legislation, which power the state had not surrendered. Freeport Water Co. v. Freeport, 180 U. S. 587, 21 S. Ct. 493, 45 L. Ed. 679, construed a state statute granting power to a municipality to contract for rates in the city for a definite period as conferring the right to contract from time to time as might be deemed necessary and not as authorizing the eity to contract once for all. City of Louisville v. Louisville Ry. Co., supra, involved ordinances relating to fares within the city. The ease decides nothing more than that a Kentucky city, in passing such ordinances, whether acting under its proprietary powers, as the eity there claimed, or under an .express delegation from the state, acts in either case under delegated state power, and thus creates federal jurisdiction, under the Fourteenth Amendment, to inquire into the validity of the ordinance. Here the state has no power to regulate interstate rates, and has not undertaken to delegate any such-power to the cities. Moreover, the cities have not undertaken to regulate the rates, but ■ have only made agreements as to a matter* that is a proper subject for contract. These contracts cannot be objected to on the ground that they are in effect regulations, for, as we have seen, the subject of interstate rates in the absence of congressional legislation is in the domain of contract rights. The assertion of invalidity upon the! thesis that the existence of the power to contract is to be denied because of its possible abuse is wholly untenable. The power either exists or does not exist. When it exists and has been exercised, the resulting contract may be defeated for fraud but not for improvidence. Vicksburg v. Vicksburg Waterworks Co., 206 U. S. 496, 515, 27 S. Ct. 762, 51 L. Bd. 1155. So it has been held that a utility company cannot be compelled to serve for less than the contract rates, though they are unreasonably high (Detroit v. Detroit Citizens’ Ry. Co., 184 U. S. 368, 389, 22 S. Ct. 410, 46 L. Ed. 592), and similarly, when the contract fixes an inadequate rate, it will be enforced regardless of the operating result (Columbus Ry. Co. v. Columbus, 249 U. S. 399, 39 S. Ct. 349, 63 L. Ed. 669, 6 A. L. R. 1648; Georgia Ry. Co. v. Decatur, supra; St. Cloud Co. v. St. Cloud, 265 U. S. 352, 44 S. Ct. 492, 68 L. Ed. 1050; R. R. Commission v. Los Angeles R. Co., supra).
In dealing with the rate contracts claimed by appellants, we consider first the eity of Newport, which was incorporated by an act of the Legislature of December 14, 1795. By an amendment to its charter of February 17, 1874, the board of couneilmen were given exclusive management and control of'all the streets of the eity and authorized to prescribe by ordinance the terms and conditions upon which the streets and public ways of the eity might be occupied or used. It has been held in Kentucky that this measure of a city’s control over its streets authorizes it to fix maximum intracity rates for a street railway as a condition of the grant to the railway of the right to lay and operate. tracks in the city streets. Moberly v. Richmond Telephone Co., 126 Ky. 369, 103 S. W. 714; Campbellsville v. Taylor County Telephone Co., 229 Ky. 843, 18 S.W.(2d) 305. If the eity thus has the power to make a contract as to rates in the city, it would obviously have like power in respect to interstate rates, which are not subject to regulation by the state or the eity and over which Congress has not exercised its power of control. It was so implied as to the eity of Newport in Newport v. Newport & Cincinnati Bridge Co., 90 Ky. 193, 13 S. W. 720, 8 L. R. A. 484.
Appellee operates in Newport under grants to its predecessors, the Newport Street Railway Company, the Newport & Dayton Street Railway Company, and the Newport Electric Street Railway Company, made prior to the adoption of the state Constitution of 1891. The first two of these franchises are without limitation ás to time. There is no 5-ceAt fare provision in either. The franchise of the Newport Electric Street Railway Company granted in 1890 provided for a 5-eent fare to Cincinnati, but was limited to twenty-five years and has expired. After acquiring these franchises, the appellee sought to electrify its lines in the city, and in May, 1892, the city council passed an ordinance which authorized appellee to erect and maintain all overhead wires, poles, fixtures, and other appendages necessary to effect the electrification, but which also provided for a 5-cent fare from Newport to Cincinnati. The ordinance was for an indefinite period. Appellee contends, on the authority of South Covington & Cincinnati Ry. Co. v. Henkel & Sullivan, 228 Ky. 271, 14 S.W.(2d) 1068, that this ordinance was invalid. We are not called upon to decide whether the tax provision of the ordinance, admittedly invalid under the state court decision, rendered the entire ordinance invalid; nor need we decide whether it was within the power of the railway company, under the original franchises, to electrify its lines without the consent of the eity (Compare: Russell v. Kentucky Utilities Co., 231 Ky. 820, 826, 22 S.W.(2d) 289, 66 A. L. R. 1238; Newport & Dayton Street R. R. Co. v. City of Newport), 1 Ky. Law Rep. 404), or whether the granting of such consent, with authority to erect and maintain the necessary overhead wires, fixtures, etc., was the grant of a new franchise, for section 164 of the Constitution of 1891 provides that no municipality “shall be authorized or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years,” and, whether the ordinance here in question be regarded as the grant of a franchise or merely as a contract relating to an existing franchise, in either view it expired within twenty years from its enactment. Although there is a difference in the requirements of the Constitution as to the maimer of granting a new franchise and contracting with reference to an existing one (Woodall v. South Cov. & Cin. St. Ry. Co., 137 Ky. 512, 124 S. W. 843), the Kentucky courts hold that there is no distinction between the two as to the limitation of twenty years (Johnson County Gas Co. v. Stafford, 198 Ky. 208, 214, 248 S. W. 515; Russell v. Kentucky Utilities Co., 231 Ky. 820, 824, 22 S.W.(2d) 289, 66 A. L. R. 1238).
On September 18, 1868, and July 19, 1887, the city of Dayton granted to the Newport & Dayton Street Rahway Company perpetual franchises to operate a street railway in the streets of the eity. These franchises contained no fare provision. In August, 1887, the grantee conveyed all of its property to the South Covington & Cincinnati Street Railway Company. Subsequent to the present Constitution, on July 5, 1893, the city by ordinance authorized the latter company to substitute electricity for animal power in the operation of its ears. The ordinance contained a 5-eent fare provision from Dayton to Cincinnati. By virtue of section .164 of the state Constitution, this ordinance, like the electrifying ordinance of the city of Newport, was effective only for twenty years from the date of its passage, with the result that all rights acquired thereunder ceased to exist at the end of that period.
On October 26, 1893, a franchise was granted by the city of Ludlow to one of appellee’s predecessors. The grant was on condition that the company charge 5 cents for a single faro from Ludlow to Cincinnati. As this grant was made after the adoption of the, Constitution of 1891, the rights acquired thereunder expired in twenty years, with the result that Ludlow cannot now claim any benefits under the rate provision therein. On March 4, 1915, however, Ludlow passed an ordinance directing the sale of a franchise for a double track line over certain streets of the city. This franchise was purchased by the South Covington & Cincinnati Street Railway Company March 18, 1915, and certain streets of the city were occupied and used by the railway company thereunder. The ordinance contained a provision for a 5-cent fare from Ludlow to Cincinnati. The franchise is limited to twenty years. The fare provision will accordingly remain in effect only until the date of the expiration of the franchise, March 18,1935, but for that period is a valid provision.
The record does not show that Bellevue ever made any fare contract with the appellee prior to 1891. The appellee’s lines were laid through what is now Bellevue before that eity was incorporated and hence without authority of franchise. After the adoption of the Constitution of 1891, an electrification ordinance was passed which provided for a 5-cent fare, but that contract is governed by the provisions of the Constitution and expired with the ordinance into which it was written.
The appellee operates in Covington under various franchises. It was held in Covington v. South Covington St. Ry. Co., 246 U. S. 413, 38 S. Ct. 376, 62 L. Ed. 802, 2 A. L. R. 1099, that the franchises involved in that suit were perpetual. No claim is or can be made by the city to any contract right to an interstate 5-cent faro arising under those franchises. There are fare provisions in the franchise of the Cincinnati, Covington & Rosedale Railway Company of October 20, 1890, and the franchise granted to the South Covington and Cincinnati Street Railway Company by West Covington March 37,1914. The Cincinnati, Covington & Rose-dale Railway Company was incorporated May 22, 1890. The incorporating act provided that the company should not use or occupy any streets, alleys, or highways of the city of Covington, except by and with the consent of the council of the city to be first obtained according to ordinance or resolution which the council might enact or pass for that purpose. On October 20,1890, the city council enacted an ordinance (amended May 18, 1891) granting the railway company the right to construct and maintain its tracks on certain streets of the eity, but provided therein that the company should never charge or receive more than a 5-cent cash fare for a single passage over its line of railway from the southern terminus of its road to its northern terminus in the eity of Cincinnati. The grant was for a period of fifty years. The fare provision is said to be invalid because there was no consideration for it, in that the right to use the streets was granted by the state and not by the city, and for the further reason that it is inconsistent with the charter of the railway company and also with the provision in the franchise reserving to the eity the right to amend the ordinance. We cannot interpret the charter of the railway company as giving the company any right to use the streets except with the consent of the council of the city to he obtained by ordinance. It states in terms that the company shall not have the right to use or occupy any street of the city except by and with the consent of the city. The city, having the power to withhold its consent to such use, obviously had the power to stipulate terms upon which it would give its consent. Nor was the right given to the railway company in its charter to receive a fair compensation to he fixed by its board of directors such a right as prevented it from entering into a contract with the city for a rate of fare in consideration of the right to use the city streets. Likewise we see no objection to the validity of the contract in that it reserved to the city the right to amend the ordinance. Upon a careful reading of the entire ordinance, we cannot believe that the parties intended by this reservation to give to the city the power to change the fares upon which they had already definitely agreed. Detroit v. Detroit Citizens’ St. Ry. Co., 184 U. S. 368, 397, 22 S. Ct. 410, 46 L. Ed. 592. Neither in our opinion did the failure of the railtvay company to begin construction prior to the adoption of the Constitution or the passing of the extension ordinances subsequent' thereto limit the effective! life of the fare provision to the constitutional period of twenty years. These additional ordinances seem to us to be ancillary to the original grants. The grants were made before the adoption of the Constitution. They became effective when made, and, as they were for fifty years, the conditions on which they were made must be held to be pf like duration. It results that the injunction should not have been granted so far as it relates to the fares of passengers boarding the cars of appellee on the streets for which the Rosedale Railway Company was granted franchises in the ordinances of October 20, 1890, and May 18, 1891.
The ordinance of March 17, 1914, passed by the city of West Covington provided for bids for a franchise over the streets of West Covington for a period of twenty years. The bid of the South Covington and Cincinnati Street Railway Company under this ordinance was accepted. The ordinance provided for a 5-eent fare and no more for transporting passengers from West Covington to the grantee’s terminus in Cincinnati. West Covington is now a/part of Covington, but we see no reason why the contract which it made with the Street Railway Company is not enforceable'for twenty years from its date, March 17,1914, as to passengers boarding the railway company’s cars on the streets covered by this franchise.
Por reasons heretofore indicated, it has not been necessary to discuss provisions in the ordinances in evidence relating to contracts for intrastate fares, for, as stated, the injunction is limited to interference with the-proposed increase of interstate fares. It results from the foregoing that tlm order of injunction is affirmed as to Bromley, Park Hills, Port Mitchell, South Port Mitchell,, Port Thomas, Clifton, Bellevue, Dayton, Newport, and Southgate, but is modified as to Covington and reversed as to Ludlow.
Judge HICKENLOOPER participated in the conference decision of this ease and concurred in this opinion.
Loc. & Priv. Acts 1873-74, c. 306.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_typeiss
|
C
|
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.
INLAND CITIES EXPRESS, INC., Plaintiff-Appellant, v. DIAMOND NATIONAL CORPORATION, Defendant-Appellee.
No. 73-3050.
United States Court of Appeals, Ninth Circuit.
Oct. 14, 1975.
L. A. Newlan, Jr. (argued), of Lund & Newlan, Beverly Hills, Cal., for plaintiff-appellant.
G. William Shea (argued), of McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for defendant-appellee.
Honorable Elbert P. Tuttle, Senior United States Circuit Judge, Fifth Circuit, sitting by designation.
OPINION
Before TUTTLE, HUFSTEDLER and WALLACE, Circuit Judges.
WALLACE, Circuit Judge:
Inland Cities Express, Inc. (Inland) operates a trucking service pursuant to a highway contract carrier’s permit granted by the California Public Utilities Commission (PUC). Diamond National Corporation (Diamond) manufactures paper products and has a plant in Red Bluff, California. From 1967 until 1972, Diamond did its shipping from its Red Bluff plant to consignees in California with Inland. Following the termination of their business relationship, Inland brought this action to recover $500,000 in undercharges allegedly resulting from improperly invoked exceptions to the governing tariff regulations. Jurisdiction in the district court was founded upon diversity of citizenship. The trial court granted summary judgment for Diamond and Inland appeals. We affirm.
I
The intrastate transportation of property for compensation by motor carriers in California is controlled by a legislative scheme of regulations and tariffs. Under Cal. Public Utilities Code sections 3662 and 3665, the PUC has promulgated minimum rate structures for different kinds of commercial transportation available in California.
Inland calculated its tariff rates under Minimum Rate Tariff No. 2 (MRT No. 2). MRT No. 2 has standard rates, but also contains exceptions, listed in different “items” in the tariff, that permit the carrier to treat related separate shipments or unrelated combined shipments as a single shipment at a special rate. The purpose of these exceptions is to allow motor carriers more flexibility in their operations. Gem Freight Lines, 61 Cal.P.U.C. 411, 413 (1963).
The two exceptions relevant to this case are those for split-delivery and multiple-lot shipments. In a split-delivery shipment, freight loaded on one trailer is intended for more than one point of destination. In a multiple-lot shipment, more than one trailer is used to carry freight from the point of origin to the point of destination, enabling the carrier to transport one shipment of freight in more than one physical movement. The question in this case is whether Diamond complied with the split-delivery and multiple-lot shipment regulations in MRT No. 2 in its day-to-day shipping with Inland. The district court held that it did and, therefore, properly received the special rates.
Because we are reviewing a summary judgment, we need decide only whether any genuine issue of material fact remains for trial and whether the substantive law was correctly applied. Vickery v. Fisher Governor Co., 417 F.2d 466, 468 (9th Cir. 1969). Viewed in that light, the record shows that the parties engaged in the following practices:
In the morning at Diamond’s loading dock in Red Bluff, Inland’s hostler would receive tally sheets prepared by Diamond. Each tally sheet represented one shipment for one consignee and stated the kinds of goods to be shipped, the total number of bundles for each kind, the order number and the identity of the consignee. Inland verified the number of bundles involved and filled in the trailer number.
When the driver arrived, the freight to be included in the day’s shipment often had not yet been located. If Diamond received emergency orders from consignees, the shipping order would be changed while the trailers were being loaded.
Inland’s hostler would direct the loading process. As each trailer was loaded, the hostler prepared a loading diagram of the trailer so the driver could easily locate at each stop the freight designated for that stop. Finally, once the trailers were loaded, Diamond issued a master bill of lading. The master bill of lading referred to each shipment and listed the total numbers and kinds of packages, the total weight of the items listed on the tally sheets and a description of the articles. When more than one trailer was covered by the master bill of lading, the first trailers that had been loaded would leave the dock before the loading of the later trailers had been completed, so that the master bill of lading was not prepared until some trailers covered by it had departed. The master bill of lading was the first single document which covered the entire shipping transaction.
II
The applicable regulations in MRT No. 2 are Items 85 and 172. Item 85(a) governs the rates for multiple-lot shipments. It spells out the conditions that must be met in order for “[t]he separate pickups made in accordance with the foregoing provisions [to] constitute a composite shipment which shall be subject to the rates . . . for the transportation of a single shipment . . . .” Item 85(a)(5). Item 85(b) warns that:
If any of the property described in the single multiple lot document is picked up without complying with the foregoing provisions, each such pickup shall be rated as a separate shipment under other provisions of this tariff.
Item 172 applies to split-delivery shipments and contains a similar warning:
If [the requirements of Item 172 are not complied with], each component part of the split delivery shipment shall be rated as a separate shipment under other provisions of this tariff.
Diamond was charged at the combination rates permitted by compliance with Items 85 and 172. Inland now claims that Diamond’s multiple-lot and split-delivery shipments should have been charged as separate shipments rather than as combination shipments, because of noncompliance with the availability and documentation requirements of the tariff.
A. Availability
Item 85(a)(1) requires that in a multiple-lot shipment “the entire shipment shall be available to the carrier for immediate transportation at the time of the first pickup.” Inland alleges a violation of this requirement for the first time,on appeal. Although unavailability is alleged in the complaint, how it came to be there is illuminating and, we believe, critical.
At the hearing on the motion for summary judgment, Inland requested permission to make an oral amendment to its complaint, although it previously had not served notice in accordance with a local rule. The proposed amendment was stated but the record demonstrates that no allegation was made to the effect that Diamond had not complied with the availability requirement. When Diamond stipulated that the amendment contained no surprise or prejudice, the district court granted leave to amend. The availability issue was not at that time an issue in the case, was not argued before the court and, naturally, was not addressed in the court’s findings of fact and conclusions of law. Yet, in its formal written amendment filed after judgment, Inland alleged violation of the availability requirement.
We refuse to consider the availability issue. The written amendment did not conform to the oral amendment allowed by the district court. The issue was never presented to the district judge and he had no opportunity to rule upon it.
B. Documentation
Three documentation requirements are found in Items 85 and 172: first, a single multiple-lot document covering the entire shipment issue by the carrier or shipper prior to or at the time of the initial pickup (85(a)(3)); second, a written document issued by the shipper prior to or at the time of the initial pickup describing the kind and quantity of property in each component part of the total shipment (85(a)(2) and 172(2)); and third, a master bill of lading (172(2) and (3)).
The purpose of the single multiple-lot document in Item 85(a)(3) is to assist the carrier in proving and the PUC in verifying, usually long after transportation movements have occurred, that the multiple lots are initially intended to be a single shipment. As the PUC has stated:
To safeguard against abuse of these rules, the documentation requirements were promulgated. Essentially they require the consignor to identify, prior to shipment, the goods that he intends to tender for transportation. This requirement was designed to guard against loose arrangements and vague or incomplete instructions; otherwise the consignor would have time to forward shipping instructions (for the lower rate) as his needs arise rather than as part of the single transaction contemplated by the rules.
Gem Freight Lines, supra, 61 Cal.P.U.C. at 413; accord, Landis Morgan, 66 Cal.P.U.C. 86, 95 (1966).
Where the purposes served by the documentation requirements are met, the technicalities of documentation cannot defeat a claim to a tariff exception. While the tally sheets did not constitute a “single document,” they were sufficient both to safeguard the carrier’s preshipment intent and to record the transactions. Once Inland’s hostler received the tally sheets at the beginning of the first pickup, he had all the information required by Item 85(a)(3). He knew exactly what was intended in the day’s shipment and the tally sheets collectively provided a written record from which the shipments could be reconstructed.
The tally sheets were also sufficient to comply with the requirement of Items 172(2) and 85(a)(2) that prior to the initial pickup the carrier receive a written document describing the property in each component part of the split-delivery shipment. The tally sheets listed all the information required by these items.
Finally, the master bill of lading, in setting forth the total numbers and kinds of packages, a description of the articles and the total weight, fulfilled the requirements of Item 172(2) and (3).
We find that the documentation, as a matter of law, did not constitute a violation of the tariff regulations.
Affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
sc_casesource
|
029
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
CHICKASAW NATION v. UNITED STATES
No. 00-507.
Argued October 2, 2001
Decided November 27, 2001
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, and Ginsburg, JJ., joined, and in which Scalia and Thomas, JJ., joined as to all but Part II-B. O’Connor, J., filed a dissenting opinion, in which Souter, J., joined, post, p. 96.
Graydon Dean Luthey, Jr., argued the cause for petitioners. With him on the briefs were Stephen W. Ray, Bob W. Rabón, and Dennis W. Arrow.
Edward C. DuMont argued the cause for the United States. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Fallon, Deputy Solicitor General Wallace, Gary R. Allen, and David English Carmack.
Together with Choctaw Nation of Oklahoma v. United States (see this Court’s Rule 12.4), also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the San Carlos Apache Tribe by Richard T. Treon; for the San Manuel Band of Serrano Mission Indians by Jerome L. Levine and Frank R. Lawrence; for the Seminole Tribe of Florida et al. by Hans Walker, Jr., and Judith A. Shapiro; and for the Shakopee Mdewakanton Sioux (Dakota) Community et al. by Mark J. Streitz and Michael J. Wahoske.
Briefs of amici curiae urging affirmance were filed for the town of Led-yard, Connecticut, et al. by Benjamin S. Sharp, Guy R. Martin, and Donald C. Mitchell.
Briefs of amici curiae were filed for the Lower Sioux Indian Community in Minnesota et al. by James M. Schoessler, Henry M. Buffalo, Jr., Mark A. Anderson, and Dennis J. Peterson; and for the Muscogee (Creek) Nation by L. Susan Work.
Justice Breyer
delivered the opinion of the Court.
In these cases we must decide whether a particular subsection in the Indian Gaming Regulatory Act, 102 Stat. 2467-2486,25 U. S. C. §§2701-2721 (1994 ed.), exempts tribes from paying the gambling-related taxes that chapter 35 of the Internal Revenue Code imposes—taxes that States need not pay. We hold that it does not create such an exemption.
I
The relevant Indian Gaming Regulatory Act (Gaming Act) subsection, as codified in 25 U. S. C. § 2719(d)(1), reads as follows:
“The provisions of [the Internal Revenue Code of 1986] (including sections 1441, 3402(q), 6041, and 60501, and chapter 35 of such [Code]) concerning the reporting and withholding of taxes with respect to the winnings from gaming or wagering operations shall apply to Indian gaming operations conducted pursuant to this chapter, or under a Tribal-State compact entered into under section 2710(d)(3) of this title that is in effect, in the same manner as such provisions apply to State gaming and wagering operations.”
The subsection says that Internal Revenue Code provisions that “concer[n] the reporting and withholding of taxes” with respect to gambling operations shall apply to Indian tribes in the same way as they apply to States. The subsection also says in its parenthetical that those provisions “includ[e]” Internal Revenue Code “chapter 35.” Chapter 35, however, says nothing about the reporting or the withholding of taxes. Rather, that chapter simply imposes taxes — excise taxes and occupational taxes related to gambling — -from which it exempts certain state-controlled gambling activities. See, e.g., 26 U.S.C. §4401(a) (1994 ed.) (imposing 0.25% excise tax on each wager); §4411 (imposing $50 occupational tax on each individual engaged in wagering business); §4402(3) (exempting state-operated gambling operations, such as lotteries).
In this lawsuit two Native American Indian Tribes, the Choctaw and Chickasaw Nations, claim that the Gaming Act subsection exempts them from paying those chapter 35 taxes from which States are exempt. Brief for Petitioners 34-36. They rest their claim upon the subsection’s explicit parenthetical reference to chapter 35. The Tenth Circuit rejected their claim on the ground that the subsection, despite its parenthetical reference, applies only to Code provisions that concern the “reporting and withholding of taxes.” 208 F. 3d 871, 883-884 (2000); see also 210 F. 3d 389 (2000). The Court of Appeals for the Federal Circuit, however, reached the opposite conclusion. Little Six, Inc. v. United States, 210 F. 3d 1361, 1366 (2000). We granted certiorari in order to resolve the conflict. We agree with the Tenth Circuit.
II
The Tribes’ basic argument rests upon the subsection’s explicit reference to “chapter 35” — contained in a parenthetical that refers to four other Internal Revenue Code provisions as well. The subsection’s language outside the parenthetical says that the subsection applies to those Internal Revenue Code provisions that concern “reporting and withholding.” The other four parenthetical references are to provisions that concern, or at least arguably concern, reporting and withholding. See 26 U. S. C. § 1441 (1994 ed. and Supp. V) (withholding of taxes for nonresident alien); § 3402(q) (withholding of taxes from certain gambling winnings); § 6041 (reporting by businesses of payments, including payments of gambling winnings, to others); §60501 (reporting by businesses of large cash receipts, arguably applicable to certain gambling winnings or receipts).
But what about chapter 35? The Tribes eorrectly point out that chapter 35 has nothing to do with “reporting and withholding.” Brief for Petitioners 28-29. They add that the reference must serve some purpose, and the only purpose that the Tribes can find is that of expanding the scope of the Gaming Act’s subsection beyond reporting and withholding provisions — to the tax-imposing provisions that chapter 35 does contain. The Gaming Act therefore must exempt them (like States) from those tax payment requirements. The Tribes add that at least the reference to chapter 35 makes the subsection ambiguous. And they ask us to resolve the ambiguity by applying a special Indian-related interpretative canon, namely, “‘statutes are to be construed liberally in favor of the Indians with ambiguous provisions interpreted to their benefit.’” Id., at 13 (quoting Montana v. Blackfeet Tribe, 471 U. S. 759, 766 (1985)).
We cannot accept the Tribes’ claim. We agree with the Tribes that rejecting their argument reduces the phrase “(including... chapter 35)...” to surplusage. Nonetheless, we can find no other reasonable reading of the statute.
A
The language of the statute is too strong to bend as the Tribes would wish — i. e., so that it gives the chapter 35 reference independent operative effect. For one thing, the language outside the parenthetical is unambiguous. It says without qualification that the subsection applies to “provisions ... concerning the reporting and withholding of taxes.” And the language inside the parenthetical, prefaced with the word “including,” literally says the same. To “include” is to “contain” or “comprise as part of a whole.” Webster’s Ninth New Collegiate Dictionary 609 (1985). In this instance that which “contains” the parenthetical references — the “whole” of which the references are “parts” — is the phrase “provisions . . . concerning the reporting and withholding of taxes . . . .” The use of parentheses emphasizes the fact that that which is within is meant simply to be illustrative, hence redundant — a circumstance underscored by the lack of any suggestion that Congress intended the illustrative list to be complete. . Cf. 26 U. S. C. § 3406 (1994 ed.) (backup withholding provision not mentioned in parenthetical).
Nor can one give the chapter 35 reference independent operative effect without' seriously rewriting the language of the rest of the statute. One would have to read the word “including” to mean what it does not mean, namely, “including ... and.” One would have to read the statute as if, for example, it placed “chapter 35” outside the parenthetical and said “provisions of the . . . Code including chapter 35 and also provisions ... concerning the reporting and withholding of taxes ....” Or, one would have to read the language as if it said “provisions of the . . . Code . . . concerning the taxation and the reporting and withholding of taxes . . . .” We mention this latter possibility because the congressional bill that became the law before us once did read that way. But when the bill left committee, it contained not the emphasized words (“the taxation and”) but the cross-reference to chapter 35.
We recognize the Tribes’ claim (made here for the first time) that one could avoid rewriting the statute by reading the language outside the parenthetical as if it referred to two kinds of “provisions of the . . . Code”: first, those “concerning the reporting and withholding of taxes with respect to the winnings from gaming,” and, second, those “concerning ... wagering operations.” See Reply Brief for Petitioners 8-10. The subsection’s grammar literally permits this reading. But that reading, even if ultimately comprehensible, is far too convoluted to believe Congress intended it. Nor is there any reason to think Congress intended to sweep within the subsection’s scope every Internal Revenue Code provision concerning wagering — a result that this, unnatural reading would accomplish.
The subject matter at issue also counsels against accepting the Tribes’ interpretation. That subject matter is tax exemption. When Congress enacts a tax exemption, it ordinarily does so explicitly. We can find no comparable instance in which Congress legislated an exemption through an inexplicit numerical cross-reference — especially a cross-reference that might easily escape notice.
As we have said, the more plausible role for the parenthetical to play in this subsection is that of providing an illustrative list of examples. So considered, “chapter 35” is simply a bad example — an example that Congress included inadvertently. The presence of a bad example in a statute does not warrant rewriting the remainder of the statute’s language. Nor does it necessarily mean that the statute is ambiguous, i. e., “capable of being understood in two or more possible senses or ways.” Webster’s Ninth New Collegiate Dictionary 77 (1985). Indeed, in ordinary life, we would understand an analogous instruction — say, “Test drive some cars, including Plymouth, Nissan, Chevrolet, Ford, and Kitchenaid” — not as creating ambiguity, but as reflecting a mistake. Here too, in context, common sense suggests that the cross-reference is simply a drafting mistake, a failure to delete an inappropriate cross-reference in the bill that Congress later enacted into law. Cf. Little Six, Inc. v. United States, 229 F. 3d 1383, 1385 (CA Fed. 2000) (Dyk, J., dissenting from denial of rehearing en banc) (“The language of the provision has all the earmarks of a simple mistake in legislative drafting”).
B
The Gaming Act’s legislative history on balance supports our conclusion. The subsection as it appeared in the original Senate bill applied both to taxation and to reporting and withholding. It read as follows:
“Provisions of the Internal Revenue Code... concerning the taxation and the reporting and withholding of taxes with respect to gambling or wagering operations shall apply to Indian gaming operations ... the same as they apply to State operations.” S. 555, 100th Cong., 1st Sess., 37 (1987).
With the “taxation” language present, it would have made sense to include chapter 35, which concerns taxation, in a parenthetical that included other provisions that concern reporting and withholding. But the Senate committee deleted the taxation language. Why did it permit the cross-reference to chapter. 35 to remain? Committee documents do not say.
The Tribes argue that the committee intentionally left it in the statute in order to serve as a substitute for the word “taxation.” An amicus tries to support this view by pointing to a tribal representative’s testimony that certain Tribes were “opposed to any indication where Internal Revenue would be collecting taxes from the tribal bingo operations.” Hearings on S. 555 and S. 1303 before the Senate Select Committee on Indian Affairs, 100th Cong., 1st Sess., 109 (1987) (statement of Lionel John, Executive Director of United South and Eastern Tribes). . Other Tribes thought the “taxation” language too “vague,” preferring a clear statement “that the Internal Revenue Service is not being granted authority to tax tribes.” Id., at 433,435 (statement of Charles W. Blackwell, Representative of the American Indian Tribal Government and Policy Consultants, Inc.).
Substitution of “chapter 35” for the word “taxation,” however, could not have served the tribal witnesses purposes, for doing so took from the bill the very words that made clear the tribes would not be taxed and substituted language that made it more likely they would be taxed. Nor can we believe that anyone seeking to grant a tax exemption would intentionally substitute a confusion-generating numerical cross-reference, see Part II-A, supra, for pre-existing language that unambiguously carried out that objective. It is far easier to believe that the drafters, having included the entire parenthetical while the word “taxation” was still part of the bill, unintentionally failed to remove what had become a superfluous numerical cross-reference — particularly since the tax-knowledgeable Senate Finance Committee never received the opportunity to examine the bill. Cf. S. Doc. No. 100-1, Senate Manual 30 (1987) (proposed legislation concerning revenue measures shall be referred to the Committee on Finance).
Finally, the Tribes point to a letter written by one of the Gaming Act’s authors, stating that “by including reference to Chapter 35,” Congress intended “that the tax treatment of wagers conducted by tribal governments be the same as that for wagers conducted by state governments under Chapter 35.” App. to Pet. for Cert. 113a. This letter, however, was written after the event. It expresses the views of only one member of the committee. And it makes no effort to explain the critical legislative circumstance, namely, the elimination of the word “taxation” from the bill. The letter may express the Senator’s interpretive preference, but that preference cannot overcome the language of the statute and the related considerations we have discussed. See Heintz v. Jenkins, 514 U. S. 291, 298 (1995) (A “statement [made] not during the legislative process, but after the statute became law ... is not a statement upon which other legislators might have relied in voting for or against the Act, but it simply represents the views of one informed person on an issue about which others may (or may not) have thought differently”). Cf. New York Telephone Co. v. New York State Dept. of Labor, 440 U. S. 519, 564, n. 18 (1979) (Powell, J., dissenting) (“The comments ... of a single Congressman, delivered long after the original passage of the [act at issue], are of no aid in determining congressional intent...”).
In sum, to adopt the Tribes’ interpretation would read back into the Act the very word “taxation” that the Senate committee deleted. We ordinarily will not assume that Congress intended “‘to enact statutory language that it has earlier discarded in favor of other language.’ ” INS v. Cardoza-Fonseca, 480 U. S. 421, 443 (1987) (quoting Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 392-393 (1980)); Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 200 (1974) (same); Mescalero Apache Tribe v. Jones, 411 U. S. 145, 157 (1973) (same). There is no special reason for doing so here.
C
The Tribes point to canons of interpretation that favor their position. The Court has often said that “ ‘every clause and word of a statute’” should, “‘if possible,’” be given “ ‘effect.’ ” United States v. Menasche, 348 U. S. 528, 538-539 (1955) (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883)). The Tribes point out that our interpretation deprives the words “chapter 35” of any effect. The Court has also said that “statutes are to be construed liberally in favor of the Indians with ambiguous provisions interpreted to their benefit.” Montana v. Blackfeet Tribe, 471 U. S., at 766; South Carolina v. Catawba Tribe, Inc., 476 U. S. 498, 520 (1986) (Blackmun, J., dissenting). The Tribes point out that our interpretation is not to the Indians’ benefit.
Nonetheless, these canons do not determine how to read this statute. For one thing, canons are not mandatory rules. They are guides that “need not be conclusive.” Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001). They are designed to help judges determine the Legislature’s intent as embodied in particular statutory language. And other circumstances evidencing congressional intent can overcome their force. In this instance, to accept as conclusive the canons on which the Tribes rely would produce an interpretation that we conclude would conflict with the intent embodied in the statute Congress wrote. Cf. Choteau v. Burnet, 283 U. S. 691 (1931) (upholding taxation where congressional intent reasonably clear); Superintendent of Five Civilized Tribes v. Commissioner, 295 U. S. 418 (1935) (same); Mescalero Apache Tribe v. Jones, supra (same). In light of the considerations discussed earlier, we cannot say that the statute is “fairly capable” of two interpretations, cf. Montana v. Blackfeet Tribe, supra, at 766, nor that the Tribes’ interpretation is fairly “possible.”
Specific canons “are often countered ... by some maxim pointing in a different direction.” Circuit City Stores, Inc. v. Adams, supra, at 115. The canon requiring a court to give effect to each word “if possible” is sometimes offset by the canon that permits a court to reject words “as surplus-age” if “inadvertently inserted or if repugnant to the rest of the statute . . . .” K. Llewellyn, The Common Law Tradition 525 (1960). And the latter canon has particular force here where the surplus words consist simply of a numerical cross-reference in a parenthetical. Cf. Cabell Huntington Hospital, Inc. v. Shalala, 101 F. 3d 984, 990 (CA4 1996) (“A parenthetical is, after all, a parenthetical, and it cannot be used to overcome the operative terms of the statute”).
Moreover, the canon that assumes Congress intends its statutes to benefit the tribes is offset by the canon that warns us against interpreting federal statutes as providing tax exemptions unless those exemptions are clearly expressed. See United States v. Wells Fargo Bank, 485 U. S. 351, 354 (1988) (“[Exemptions from taxation . . . must be unambiguously proved”); Squire v. Capoeman, 351 U. S. 1, 6 (1956) (“[T]o be valid, exemptions to tax laws should be clearly expressed”); United States Trust Co. v. Helvering, 307 U. S. 57, 60 (1939) (“Exemptions from taxation do not rest upon implication”). Nor can one say that the pro-Indian canon is inevitably stronger — particularly where the interpretation of a congressional statute rather than an Indian treaty is at issue. Cf. post, at 100 (O’Connor, J., dissenting). This Court’s earlier cases are too individualized, involving too many different kinds of legal circumstances, to warrant any such assessment about the two canons’ relative strength. Compare, e. g., Choate v. Trapp, 224 U. S. 665, 675-676 (1912) (interpreting statement in treaty-related Indian land patents that land is “nontaxable” as creating property right invalidating later congressional effort to tax); Squire, supra, at 3 (Indian canon offsetting tax canon when related statutory provision and history make clear that language freeing Indian land “‘of all charge or incumbrance whatsoever’” includes tax); McClanahan v. Arizona Tax Comm'n, 411 U. S. 164, 174 (1973) (state tax violates principle of Indian sovereignty embodied in treaty), with Mescalero, supra (relying on tax canon to find Indians taxable); Choteau, supra (language makes clear no exemption); Five Tribes, supra (same).
Consequently, the canons here cannot make the difference for which the Tribes argue. We conclude that the judgments of the Tenth Circuit must be affirmed.
It is so ordered.
Justice Scalia and Justice Thomas join all but Part II-B of this opinion.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
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022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
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047. Florida Middle U.S. District Court
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161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
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164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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sc_casedisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
UNITED STATES et al. v. J. B. MONTGOMERY, INC.
No. 66.
Argued January 8, 1964.
Decided March 23, 1964.
Frank I. Goodman, pro hac vice, by special leave of Court, argued the cause for the United States et al. With him on the briefs were Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Elliott H. Moyer, Robert W. Ginnane and Betty Jo Christian.
Charles W. Singer argued the cause and filed a brief for appellee.
Mr. Justice Clark
delivered the opinion of the Court.
This appeal tests the validity of an order of the Interstate Commerce Commission issued under § 212 (c) of the Interstate Commerce Act as amended in 1957, 71 Stat. 411, 49 U. S. C. § 312 (c), converting the appellee’s contract carrier permit into a common carrier certificate but limiting its coverage “to movements from, to, or between outlets or other facilities of particular businesses of the class of shippers with whom it may now contract.” Ap-pellee contends that this limitation violates the mandate of the Congress in § 212 (c) that any certificate so issued “shall authorize the transportation, as a common carrier, of the same commodities between the same points or within the same territory as authorized in the permit.” The Commission answers that the restrictions are necessary to maintain “substantial parity” between the appel-lee’s old and new operations. The District Court held the Commission “without statutory authority to impose the restrictions in question” and set aside the order and remanded the case for further proceedings. 206 F. Supp. 455, 461. Probable jurisdiction was noted. 372 U. S. 952. We affirm the judgment.
I.
Prior to 1957 appellee operated under a contract carrier permit originally issued in 1943 under the “grandfather” clause contained in § 209 (a) of the Motor Carrier Act, 1935, 49 Stat. 543, 552. It permitted carriage of: (1) such commodities as are usually dealt in by wholesale or retail hardware and automobile-accessory business houses, and in connection therewith, equipment, materials and supplies used in the conduct of such business; (2) such commodities as are usually dealt in, or used, by meat, fruit, and vegetable packing houses; and (3) such commodities as are usually dealt in, or used, by wholesale and retail department stores. The permit contained a “Keystone restriction” which limited appellee to transporting such commodities only under contracts with persons operating the businesses specified. It permitted the carriage of a wide variety of commodities within specified territories, without limitation of consignee, but only for those shippers under contract with appellee and engaged in the specified businesses.
In 1957, at the behest of the Commission, the Congress amended the statutory definition of a contract carrier, § 203 (a)(15) of the Interstate Commerce Act, so as to thereafter read:
“The term ‘contract carrier by motor vehicle’ means any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation (other than transportation referred to in paragraph (14) and the exception therein), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer.”
In order to protect existing contract carrier permits, Congress enacted § 212 (c) which, as we have indicated, provided for the revocation of such a permit in appropriate proceedings before the Commission and the issuance of a common carrier certificate. In so doing, however, the Congress provided that the resulting common carrier certificate “shall authorize the transportation, as a common carrier, of the same commodities between the same points or within the same territory as authorized in the permit.”
In 1958 these proceedings were begun under this section and, after extended hearings, the Examiner found that the permit should be revoked and the common carrier certificate issued covering the same commodities and without restrictions. In addition he recommended the inclusion of authority for carriage of “materials, equipment, and supplies used by manufacturers of rubber and rubber products, from Chicago, and points in Illinois within 100 miles of Chicago, to Denver . . . The Commission adopted the latter recommendation and it was not contested in the District Court. As to the remaining authorizations, the Commission appended to the recommendations of the Examiner a restriction against combining or “tacking” appellee’s various operating rights in order to render a through service (likewise not contested), and also subjected each grant of authority to the following restriction:
“Restriction: The. authority granted immediately above is restricted to shipments moving from, to, or between wholesale and retail outlets, . . .”
The validity of this restriction is the sole challenge raised in this proceeding.
II.
The Commission contends that § 212 (c), read in the light of its background, is a “grandfather clause.” Its purpose, therefore, is merely to continue, without expanding, the authority of those contract carriers whose operations are lawful under United States v. Contract Steel Carriers, Inc., 350 U. S. 409 (1956), by revoking their contract carrier permits and issuing in lieu thereof common carrier certificates. The Commission concludes that, while the Congress specified only a continuance of the commodity and territorial limitations, Congress also intended that the effects of the “Keystone restriction” in the old permit be carried forward in the new one. Even if this is incorrect, the Commission says that it remains free to impose the restriction by reason of its general power under the Interstate Commerce Act to confine carrier operations within appropriate limits.
The difficulty with this argument is that the “Keystone restriction” under which appellee operated permitted it to carry commodities “dealt in, or used by” certain businesses without limitation, except that appellee was required to have a contract with the shipper so engaged. Although the Commission has eliminated this last requirement by certificating appellee as a common carrier, the restriction it has imposed here limits shipments “to shipments moving from, to, or between wholesale and retail outlets” and stores. Appellee insists that this restriction limits its carriage in that appellee cannot deliver from a supplier to a consumer, to or from a public warehouse or ship dock, between warehouses, to consolidation or transfer points or to a laborer or modification agent. The record does not show whether appellee exercised these claimed privileges under its contract carrier permit. We hold that if it did enjoy them or any others that we have not enumerated, then it is entitled to have the same freedom in its common carrier certificate.
The legislative history indicates that the Commission in its presentation to the Congress on § 212 (c) represented through its Chairman that the legislation would disturb no property rights of the contract carrier. Indeed, it asserted that such carriers would have “greater opportunity.” Moreover, the “Keystone restrictions” received the attention of the Congress. In the same Senate hearings, the difference between contract and common carriers was made clear, i. e., while the former were limited in the “character” of their carriage to the type of commodities named in their permits, they were not limited to particular shippers. Common carriers, on the other hand, were not limited in any way in their certificated territories. It appears to us that Congress intended to leave the converted contract carrier in as good a position as it previously enjoyed. Under the facts claimed, the Commission has not done so in this case.
We do not believe that appellee waived its rights by not proving that it had exercised the claimed privileges under its contract carrier permit. The permit has no restriction on its face in this regard, and such proof was understandably not presented in light of the recommendation of the Examiner that a common carrier permit include no restrictions whatever. At this late date it would be unfair to strip appellee of its claimed rights upon this basis.
Nor do we believe that the Commission can impose the restrictions on a rule of “substantial parity” under its general powers. Since § 212 (c) specifically commands that the Commission “shall” authorize the same carriage as was included in the contract carrier permit, we are unable to place § 212 (c) authority under the general power of other unrelated sections, such as § 208, where specific power is granted to assure “substantial parity.” The appellee carried on certain operations under its contract carrier permit. Congress intended that these operations be continued under the common carrier permit.
The judgment of the District Court is therefore affirmed. On remand the Commission will be free to contest appellee’s factual claims as to what service it performed under its contract carrier permit and to limit the common carrier certificate to such activity.
Affirmed.
“The Commission shall examine each outstanding permit and may within one hundred and eighty days after ... [August 22,1957] institute a proceeding either upon its own initiative, or upon application of a permit holder actually in operation or upon complaint of an interested party, and after notice and hearing revoke a permit and issue in lieu thereof a certificate of public convenience and necessity, if it finds, first, that any person holding a permit whose operations on . . . [August 22, 1957] do not conform with the definition of a contract carrier in section 203 (a) (15) as in force on and after . . . [August 22, 1957]; second, are those of a common carrier; and, third, are otherwise lawful. Such certificate so issued shall authorize the transportation, as a common carrier, of the same commodities between the same points or within the same territory as authorized in the permit.” 71 Stat. 411.
This provision is now substantially contained in 49 U. S. C. § 309 (a)(1) :
“Except as otherwise provided in this section and in section 310a of this title, no person shall engage in the business of a contract carrier by motor vehicle in interstate or foreign commerce on any public highway or within any reservation under the exclusive jurisdiction of the United States unless there is in force with respect to such carrier a permit issued by the Commission, authorizing such person to engage in such business: Provided, That, subject to section 310 of this title, if any such carrier or a predecessor in interest was in bona fide operation as a contract carrier by motor vehicle on July 1, 1935, over the route or routes or within the territory for which application is made and has so operated since that time . . . the Commission shall issue such permit, without further proceedings, if application for such permit was made to the Commission as provided in paragraph (b) of this section and within one hundred and twenty days after October 1, 1935
The phrase “Keystone restriction” comes from the title of the proceeding, Keystone Transportation Co. Contract Carrier Application, 19 M. C. C. 475. Such restrictions were approved by this Court in Noble v. United States, 319 U. S. 88 (1943).
71 Stat. 411, 49 U. S. C. § 303 (a) (15). The former § 203 (a) (15) stated the definition as follows: “The term ‘contract carrier by motor vehicle1 means any person which, under individual contracts or agreements, engages in the transportation (other than transportation referred to in paragraph (14) and the exception therein) by motor vehicle of passengers or property in interstate or foreign commerce for compensation.” 54 Stat. 920.
During the hearings before the Subcommittee of the Senate Interstate and Foreign Commerce Committee the following colloquy ■occurred between Mr. Barton, transportation counsel of the committee, and Mr. Clarke, then chairman of the Interstate Commerce Commission:
“Mr. Barton: . . .
“Mr. Clarke, do you think there is any constitutional difficulty in changing, as we say, as you propose, a contract carrier to a common-carrier status?
“Mr. Clarke: No; I can see none. It isn’t taking away from them anything that they have; it isn’t disturbing any property rights of the contract carrier. It is giving him greater opportunity. He can still serve his contract shippers, but through the conversion provisions of the bill he would also have the opportunity to serve the general public as well as the obligation.” (Emphasis added.) Hearings before the United States Senate Subcommittee on Surface Transportation of the Committee on Interstate and Foreign Commerce, 85th Cong., 1st Sess., Surface Transportation — Scope of Authority of I. C. C., p. 35.
Id., at 182.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Harold M. SALKIND, Plaintiff-Appellee, v. TRAFALGAR HOSPITAL, Defendant-Appellant.
No. 11, Docket 28120.
United States Court of Appeals Second Circuit.
Argued Oct. 1, 1963.
Decided Oct. 3, 1963.
Sidney S. Bobbe, New York City (Holtzmann & Holtzmann, New York City, on the brief), for defendant-appellant.
Jack H. Hantman, New York City (Joseph Schutzman, Wantagh, N. Y., on the brief), for plaintiff-appellee.
Before LUMBARD, Chief Judge, and'. FRIENDLY and SMITH, Circuit Judges,.
PER CURIAM.
In this action brought October 16, 1959 the amount in controversy is stated to be-$10,000 exclusive of interest and costs. Judgment was entered for plaintiff on a. contract claim for severance pay of one-half the amount of a year’s salary of' $20,000, plus interest and costs, and defendant appeals. Jurisdiction is asserted: under 28 U.S.C. § 1332. The 1958 amend-, ment to § 1332, however, requires an amount in controversy in excess of $10,-000, exclusive of interest and costs. Jurisdiction was lacking in the District Court. Athan v. Hartford Fire Ins. Co., 2 Cir. 1934, 73 F.2d 66, Alderman et al. v. Elgin J & E Ry. Co., 7 Cir. 1942, 125. F.2d 971, Royal Ins. Co. of Liverpool, Eng. v. Stoddard, 8 Cir. 1912, 201 F. 915, Queen Ins. Co. of America v. Basham, W.D.Tenn.1962, 201 F.Supp. 733. The judgment of the District Court is reversed: and the case remanded with instructions, to dismiss the action for lack of jurisdiction.
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_notice
|
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 civil law issues involving government actors. The issue is: "Decisions that affect life, liberty, or property must be preceded by adequate notice and an opportunity for a fair hearing. Did the agency give proper notice? 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".
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al., Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY et al., Appellees.
No. 21060.
United States Court of Appeals Fifth Circuit.
June 8, 1965.
Thomas W. McAliley, Alan R. Schwartz, Nichols, Gaither, Beckham, Colson & Spence, Miami, Fla., for appellant.
William P. Simmons, Jr., Shutts, Bowen, Simmons, Prevatt, Boureau & White, Miami, Fla., for appellee, Florida East Coast Ry. Co.
Granville M. Alley, Jr., Denzil Y. Causey, Jr., Tampa, Fla., Neal Rutledge, Miami, Fla., for appellee, Broward County Port Authority, Fowler, White, Gillen, Humkey & Trenam, Tampa, Fla., of counsel.
Before JONES and BELL, Circuit Judges, and HUNTER, District Judge.
GRIFFIN B. BELL, Circuit Judge:
This is an appeal by employees of the Broward County (Florida) Port Authority and their unions from an order of the District Court enjoining the Port Authority and its employees from refusing to switch cars of the Florida East Coast Railway. The controlling question presented is whether the injunction as against the employees represented by appellants is barred by the NorrisLaGuardia Act, 29 U.S.C.A. § 101 et seq. We hold that it is and reverse.
In January 1963, certain employees of the Florida East Coast Railway went out on strike. The strikers set up picket lines at various points on FEC property. One area picketed was FEC’s interchange track which connects FEC’s tracks with those of the Broward County Port Authority. The Port Authority operates an independent belt line for the purpose of transferring cars from trunk lines to the dock facilities owned and operated by the Authority at Port Everglades. The Port Authority is under contract with FEC to switch FEC cars from the interchange track to the docks. After the picket lines went up at the interchange track, the Port Authority switching crews refused to cross the lines to pick up FEC cars.
The FEC, which was continuing to operate despite the strike against it, sought to compel the Port Authority to carry out its contractual obligations and its duty under the interchange section of the Interstate Commerce Act, 49 U.S. C.A. § 3(4). The Port Authority itself commenced a suit to compel its employees to service FEC tracks, but this action was dismissed without prejudice. The FEC then brought the present action against the Port Authority seeking an injunction requiring the Port Authority to switch its cars. The District Court entered a preliminary injunction prohibiting the Port Authority “and all of its officers, agents, servants, employees and attorneys, and all persons acting in concert and participation with them” from refusing to service the FEC tracks in accordance with the interchange agreement between the two railroads. The effect of the injunction was to require the Port Authority’s switching crews to cross the FEC picket line. Consequently, individual members of the switching crews and their unions were permitted to intervene. A second hearing was held at which the intervenors urged, inter alia,, that the injunction was barred by the Norris-LaGuardia Act. The District Court refused to dissolve the injunction, and the intervening employees and unions have brought the case here.
The Norris-LaGuardia Act, 29 U.S. C.A. § 104, provides:
“No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
“(a) Ceasing or refusing to perform any work * *
We begin by noting that the effect of the injunction entered below was to prohibit employees of the Port Authority, including appellants, from refusing to perform work, i. e., refusing to cross the FEC picket line. The injunction specifically binds the Port Authority “and all of its * * * employees.” Secondly, there is concededly a labor dispute between FEC and its employees. Under 29 U.S.C.A. § 113(c), the definitional section of the Norris-LaGuardia Act, the term “labor dispute” is broadly defined as any controversy over the terms or conditions of employment regardless of whether or not the disputants stand in the proximate relation of employer and employee.
We also think it is clear that this case involves or grows out of the labor dispute at FEC and that the Port Authority employees are persons interested in that dispute. The Port Authority employees refused to service the FEC interchange track solely because of the strike and picketing at FEC. This litigation would never have arisen were it not for the labor dispute at FEC. The Authority’s employees are interested in the dispute in that they are members of the same trade or industry as the striking FEC workers, see 29 U.S.C.A. § 113(b), and desire to make common cause with them by honoring their lawful picket line.
Thus, the literal language of the Norris-LaGuardia Act covers the situation presented here. The oft-stated congressional policy of that act was to prevent injunctive interference in labor disputes and to allow such controversies to be settled through negotiation and the free play of economic forces. 29 U.S.C.A. § 102; Sinclair Refining Co. v. Atkinson, 1962, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440; Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 1960, 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774. This policy finds plain application here, since the effect of the injunction is to nullify the picket line and give FEC an advantage in the dispute it has with its employees. See Lee Way Motor Freight v. Keystone Freight Line, Inc., 10 Cir., 1942, 126 F.2d 931, cert. den., 317 U.S. 645, 63 S.Ct. 37, 87 L.Ed. 519, applying the Norris-LaGuardia Act in a comparable factual situation, and cf. Marine Cooks & Stewards, AFL v. Panama S.S. Co., 1960, 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797.
FEC’s primary contention is that even if the Norris-LaGuardia Act would otherwise be applicable, that enactment is superseded by the provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., requiring compulsory arbitration of minor disputes. The Supreme Court held in Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 1957, 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, that Congress intended that compulsory arbitration under § 3, First, 45 U.S.C.A. § 153(i), of the Railway Labor Act should be the exclusive mode of settling minor disputes, and that consequently a strike over a minor dispute may be enjoined notwithstanding the Norris-LaGuardia Act. Under the Railway Labor Act, minor disputes involve grievances or questions of interpretation of an existing collective bargaining contract; major disputes arise from efforts to change working conditions through the making of a new agreement. 45 U.S.C.A. § 152, sixth, seventh; Elgin, J. and E. R. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, 1894-1895. FEC argues that this case actually involves a minor dispute between the Port Authority and its employees, rather than a major dispute at FEC, and that consequently the refusal to cross the picket line may be enjoined.
In our view, this argument ignores the realities of the factual situation before us. It is the FEC that seeks the injunction, not the Port Authority. Neither the Port Authority nor its switching crews have submitted the controversy to the Railroad Adjustment Board for arbitration, and the switching employees are in no way defeating the jurisdiction of that body. Consequently, the injunction entered below does not operate to preserve the jurisdiction of the Board over any minor dispute between the Port Authority and its employees; it operates to impede the strike over the major dispute at FEC. Thus, the injunction in no way serves the policy of the Railway Labor Act, whereas, as noted supra, it is in direct conflict with the policy of the Norris-LaGuardia Act.
In the present case, the Norris-LaGuardia Act and the Railway Labor Act can be easily accommodated, and this accommodation requires that the injunction entered by the District Court be dissolved. See Northwest Airlines, Inc. v. Transport Workers Union, W.D.Wash., 1961, 190 F.Supp. 495, holding that the Norris-LaGuardia Act prohibited an injunction to require one group of employees to cross a picket line set up by another group of employees of the same employer, and where the refusal to cross the picket line was treated as being a part of the major dispute. But see International Association of Machinists AFL-CIO v. Northwest Airlines, 8 Cir., 1962, 304 F.2d 206, where the major dispute and minor dispute were separated for purposes of the Norris-LaGuardia Act. We hold under the facts of the instant case that the refusal to cross the picket line is a part of the major dispute at FEC.
FEC also argues that the NorrisLaGuardia Act has been amended pro tanto by the interchange section of the Interstate Commerce Act, 49 U.S.C.A. § 3(4), quoted at note 1 supra. This contention is without merit. Cf. Texas & New Orleans R.R. v. Brotherhood of Railroad Trainmen, 5 Cir., 1962, 307 F.2d 151. Section 3(4) merely imposes a duty on earners to provide adequate connecting facilities without discrimination, and does not purport to regulate labor conditions in any manner whatsoever. Again, the clear language of the NorrisLaGuardia Act must control.
In sum, we hold that the Norris-LaGuardia Act is applicable to the present case and is not preempted by any other federal legislation. It follows that the order of the District Court refusing to dissolve the injunction to the extent it is binding on appellants here must be and it is
Reversed.
. “§ 3, par. (4). Interchange of traffic. All carriers subject to the provisions of this chapter shall, according to their respective powers, aiford all reasonable, proper, and equal facilities for the interchange of traffic between their respecting lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffie that is not specifically routed by tbe shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.”
. See. Chicago & Illinois Midland Railway Co. v. Brotherhood of Railroad Trainmen, 8 Cir., 1963, 315 F.2d 771, vacated as moot, 375 U.S. 18, 84 S.Ct. 61, 11 L.Ed.2d 39 on the question which would he presented should the Port Authority seek an injunction. See particularly the dissenting opinion on the problem of separating the major dispute from the minor dispute, and accommodating this difficulty with the more specific provisions of the NorrisLaGuardia Act.
Question: Decisions that affect life, liberty, or property must be preceded by adequate notice and an opportunity for a fair hearing. Did the agency give proper notice?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_natpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
PORT SHIP SERVICE, INC., Plaintiff-Appellant, v. INTERNATIONAL SHIP MANAGEMENT & AGENCIES SERVICE, INC., Defendant-Appellee. PORT SHIP SERVICE, INC., Plaintiff-Appellant, v. ASTRAL INTERNATIONAL SHIPPING SERVICES, INC., Defendant-Appellee.
Nos. 85-3723, 85-3724.
United States Court of Appeals, Fifth Circuit.
Oct. 3, 1986.
Randall A. Smith, Stone, Pigman, Walther, Wittman & Hutchinson, New Orleans, La., for plaintiff-appellant.
A. Jack Bennett, Jr., Baton Rouge, La., for defendant-appellee in 85-3723.
Andrew S. deKlerk, Lemle, Kelleher, Kohlmeyer, Hunley, New Orleans, La., for defendant-appellee in 85-3724.
Before JOLLY, HILL and JONES, Circuit Judges.
PER CURIAM:
In these cases consolidated on appeal, Port Ship Service, Inc. (“Port Ship”), a supplier of water taxi services, sued the maritime agent defendants, Astral International Shipping Services, Inc. (“Astral”) and International Ship Management & Agencies Service, Inc. (“International Ship”), to recover for unpaid services that were ordered by those agents on behalf of their clients, owners or operators of various vessels anchored in the New Orleans environs. When ordering water taxi services, the maritime agents customarily provided Port Ship with the names of the vessels for which the services were to be performed, but not the names of the vessel owners or operators. Port Ship filed separate actions against each maritime agent, contending that, under the general law of agency, Astral and International Ship were agents for partially disclosed principals and were therefore liable for the services Port Ship had provided their clients.
The district court tried Port Ship’s action against International Ship and held for the maritime agent. The court found that International Ship had sufficiently disclosed the “identity” of its principal by providing Port Ship with the vessel’s name. As agent to a disclosed principal, International Ship could not be held personally liable for the principal’s debts. The district court also granted summary judgment to Astral, based on its opinion in favor of International Ship. Because it is unclear from the record whether Port Ship had, or should have had, sufficient information to determine the principals’ identities, we reverse and remand.
I
Port Ship is a Louisiana corporation primarily engaged in the business of providing water taxi services to and from vessels in the Port of New Orleans. From July 1982 until November 1983, Port Ship supplied services such as transporting pilots, crew and supplies to various ships at the direction of, or for the account of, International Ship, a corporation functioning primarily as a maritime agent. Unpaid invoices attributed to International Ship totaled $9,816.55. The maritime agent refused to pay these invoices because its clients, various vessel owners, would not forward payment. Port Ship filed suit.
During approximately the same period, another maritime agent, Astral, requested and authorized Port Ship to perform water taxi services for its clients. In similar circumstances, Astral refused to pay invoices totaling $6,272.75, and Port Ship sued.
In both cases Port Ship directly billed the maritime agents for services rendered, as is customary in the shipping business. At the International Ship trial, Mr. Raymond Willhoft, Jr., Port Ship’s treasurer, gave testimony concerning customary business practices in the industry. According to Mr. Willhoft, maritime agents order services without stating the name of the principal that they represent or the capacity of that principal, such as charterer or owner of a vessel. Because the principals are not in-dentified by the agents, maritime suppliers such as Port Ship rely on the agents’ credit rather than that of the principals.
With respect to other sources from which Port Ship could have indentified the principals, Mr. Willhoft testified that he was aware of works such as Lloyds’ Registry of Shipping and Lloyds’ Shipping Index. He did not believe, however, that these publications would fully disclose who was operating a vessel at any particular time.
After trial on the merits, the district court held that the agent need not disclose the name of the principal in order to escape liability; instead, the court held, the agent needed to disclose only the “identity” of the principal. Since it was uncontested that in all cases the maritime agent, International Ship, disclosed the name of the vessel, the district court held that Port Ship could discern the identity of the principal through easily available maritime information sources such as Lloyds’ publications.
The district court also supported its holding by finding that Port Ship knew the maritime agent would not pay for services until it had been paid by the principal. Finally, the court noted that Port Ship could bring an action in rem against the vessel to satisfy outstanding debts.
Following the district court’s dismissal of the complaint in International Ship and its grant of summary judgment for Astral, Port Ship appealed both actions, which have been consolidated.
II
The question we must decide is whether on the record before us Port Ship had sufficient notice of the identities of the principals at the time of the transactions to preclude liability on the part of the maritime agent appellees.
III
A.
All parties agree that general agency law applies to these cases. West India Industries v. Vance & Sons AMC-Jeep, 671 F.2d 1384, 1387 (5th Cir.1982). This circuit has often referred to the Restatement (Second) of Agency for an accurate statement of general agency law. E.g., Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 275-76 (5th Cir.1980). Under the Restatement, an agent is liable as a party to the contract when the other party has notice that the agent is or may be acting for a principal, but the other party has no notice of the principal’s identity. Restatement (Second) of Agency §§ 4(2), 321. The agent is then said to be acting for a partially disclosed principal. Id. at § 4(2). Astral and International Ship will therefore be liable for these debts as parties to the contracts if the name of the vessel was not sufficient to put Port Ship on notice of the principals with whom they were dealing under the applicable legal tests. We must therefore first determine who the principal is.
B.
International Ship contends that the vessel itself is the principal here because, under maritime law, the vessel has an identity of its own and can be sued in rem. Although it is indisputable that an in rem action exists, the availability of that action and the fictional identity of the vessel do not make the vessel a principal. Port Ship has brought a proper in personam action to recover these debts against the agents, not a libel in rem to foreclose on a maritime lien. No recovery against the ships has been sought; the fiction of the ship’s identity therefore has no application or utility in this context. G. Gilmore & C. Black The Law of Admiralty §§ 1-12, 9-19 (2d ed. 1975). “The in personam suit ... is a suit against a named natural or corporate person, asserting a personal liability.” Id. at §§ 1-12. The principal therefore is the person responsible for payment of these debts by virtue of ownership of the vessel, charter provisions, or some other mode of liability.
Furthermore, the availability of a maritime lien does not bar an in personam action. A maritime lien is a remedy separate from an in personam action against the owner or operator. Equilease Corp. v. M/V Sampson, 793 F.2d 598, 602 (5th Cir.1986) (en banc). The maritime creditor may choose either remedy if that remedy is available under the substantive law. Dowell Division of Dow Chemical Co. v. Franconia Sea Transport, Ltd., 504 F.Supp. 579, 581 (S.D.N.Y.1980), aff'd, 659 F.2d 1058 (2d Cir.), cert. denied, 454 U.S. 941, 102 S.Ct. 478, 70 L.Ed.2d 249 (1981). Consequently, the potential availability of maritime liens in these cases does not preclude these in personam actions.
C.
Since the vessel is not the principal, Astral and International Ship did not disclose the identity of the principal by naming the vessels for which the services were to be provided. They must therefore be liable for these debts unless Port Ship had a duty to discover the identity of the principal, or unless naming the vessel identified the principal under the applicable legal standards. The Restatement makes it clear that it is the agent’s duty to disclose the principal’s identity, not the third party’s duty to ascertain that identity. Orient Mid-East Lines v. Albert E. Bowen, Inc., 458 F.2d 572 (2d Cir.1972). A third party such as Port Ship, however, need only receive notice of the identity of the principal, which may come from any source. Restatement at § 4, Comment (d). Furthermore, the identity of the principal can be sufficiently disclosed even when the third party has no actual knowledge of it; “the [third party] has notice of the existence or identity of the principal if he knows, has reason to know, or should know of it, or has been given a notification of the fact.” Lubbock Feed Lots, Inc. v, Iowa Beef Processors, 630 F.2d 250, 275-76 (5th Cir.1980) (quoting Restatement at § 4(2), Comment (a)). Astral and International Ship could therefore have satisfied their duty to provide notice of the identities of the principals by giving Port Ship sufficient information so that Port Ship knew, or should have known, or had reason to know, through any other source, the principals’ identities.
International Ship and Astral argue that Port Ship should have known the principals’ identities because Port Ship knew the names of the vessels, and could have discovered the identities of the principals from readily available sources such as Lloyds’ publications. Maritime reference sources, however, could supply the requisite notice only if, first, they contain the necessary information, and, second, if Port Ship had, or reasonably should have had, ready access to the information through these sources at the time of the transaction.
The records in these cases do not resolve these questions. We therefore find that remand is necessary. The record before us suggests that the only basis for a finding that the principals were disclosed would be that Port Ship had, or should have had, ready access to information that would have indicated who the owner or charterer of the vessel was when the order was placed. This question should require only a brief supplement to the record. The district court will probably find it appropriate to consider the following factual questions, inter alia, in making its findings: the information contained in the references, its accuracy and currentness, and whether Port Ship, in the light of industry custom in maintaining these sources, knew, or should have known the principals’ identities from these sources at the time it furnished the water taxi service.
IV
The judgment of the district court is therefore reversed and remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
. Astral argued that it was an uncontested fact at trial that “Port Ship, being experienced in maritime affairs, possessed sufficient information to determine the name of the relevant owner, operator, or charterer of any vessel to which it rendered services.” This statement, however, is contained only in a statement of uncontested facts filed by Astral and never agreed to by Port Ship. In fact, Port Ship contested this very point in the pretrial order.
. The maritime agents also contend that the custom in the maritime industry is to specify only the vessel’s name when ordering services, and that it is not customary to name the vessel owner or operator. The agents contend that the strength of this custom is evidenced by the fact that Port Ship’s own delivery tickets provide no place to list the operator of the ship. They argue that this custom has been accepted by Port Ship, and it is therefore bound to recognize that the name of the ship is adequate notice of the principal and relieves the agent of liability. This argument is a subtle attempt to change the standard of agency law. That standard holds that the agent is a party to the contract when the principal is partially disclosed, placing the risk of failure to inform the third party on the agent. A custom to which Port Ship has not explicitly agreed cannot change that allocation of risk. Restatement at § 321.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
THOMPSON v. CURTIS PUBLISHING CO.
No. 10525.
United States Court of Appeals Third Circuit.
Argued Jan. 8, 1952.
Decided Jan. 23, 1952.
William J. Woolston, Philadelphia, Pa., for appellant.
Philip H. Strubing, Philadelphia, Pa. (Evans, Bayard & Frick, Philadelphia, Pa., on the brief), for appellee.
Before GOODRICH and HASTIE, Circuit Judges, and BURNS, District Judge.
GOODRICH, Circuit Judge.
This case involves the law of defamation, survival of actions and right of privacy. Plaintiff’s decedent sued the Curtis Publishing Company because of an article which had appeared in the Saturday Evening Post, February 1, 1947. This article was an advertisement by the Post for the efficacy of itself as an advertising medium. One of the features of this advertisement for advertising was a description of an invention which the plaintiff 'had patented back in 1896. It may be best described in terms of the patent application:
“This invention relates to a novel device, for automatically affecting the polite salutation by the elevation and rotation of the hat on the head of the saluting party when said person bows to the person or persons saluted * * *
“The improvement is also available as a unique and attractive advertising medium, and may be employed for such a purpose.”
The defendant’s publication treated this invention in a very lighthearted manner saying: “Sorry but advertising could never sell it * * *. People expect advertised products to be good * * *. But if the product does not measure up, no amount of advertising can make it a success.”
There are many obstacles in the path to recovery by the plaintiff in this case. But since there is one insurmountable obstacle so far as the claim for defamation is concerned, there is no reason for using good printer’s ink for prolonging the opinion further than to state what that obstacle is. The plaintiff’s intestate brought the action in 1947. He died May 20, 1950. The case came to trial January 15, 1951. The lawsuit is in federal court on the basis of diversity of citizenship only and the state law controls. What is the law of Pennsylvania with regard to survival of an action for defamation after the death of the plaintiff?
The common law on the subject was clear and is not even obscured by stating the maxim in Latin, “actio personalis moritur cum persona.” The common law rule has been modified by statute and the legislation has been in the direction of cutting down the application of the rule. There is such a statute in Pennsylvania. But the Pennsylvania statute expressly excludes actions for libel and slander from the category of actions which survive the death of the plaintiff. Act of April 18, 1949, P.L. 512, § 601, 20 Purdon’s Pa.Stats.Ann. § 320.601.
The plaintiff, however, points out that there is an English statute of 17 Charles II, chapter 8 (1665) which provides that the death of a party -between verdict and judgment shall not be cause to abate an action. Plaintiff says that this statute is part of the common law of Pennsylvania. Then, he says that although the decedent’s action did not come to trial between 1947 and 1950 that was not the plaintiff’s fault. Part of the delay, he urges, was caused by legal objections raised by the defendant, part of the delay by an alleged error by the trial court in striking the case from the list for want of prosecution and finally by the necessary -absence from the state of the plaintiff’s decedent because of his illness.
All of this is interesting but immaterial to the conclusion of the case. The decision in Stroop v. Swarts, 1824, 12 Serg. & R., Pa., 76, is directly in point. Here was a case where a plaintiff died after trial but before verdict or judgment. Still the action was held to abate. And any talk about the action not abating if the plaintiff does not die until after the first day of the term of court in which the case is tried (see Morris v. Corson, 1827, 7 Cow., N.Y., 281) is not in point. The original plaintiff died more than six months prior to the beginning of the term in which this case was tried. The action based on the theory of defamation cannot be maintained.
Plaintiff, however, suggests that publication of the article in the Saturday Evening Post was an invasion of the decedent’s right of privacy. He argues further that the invasion of the right of privacy is comparable to the invasion of a property right and is not barred by the death of the plaintiff under the statue cited above. For the purpose of this discussion only, we will assume that there is merit to this description of the right of privacy.
We have recently held forth upon this right under Pennsylvania law in Leverton v. Curtis Publishing Co., 1951, 192 F.2d 974, and do not think a repetition of our views is called for now. This decedent did not have his right of privacy invaded. He went to the United States Patent Office with what he claimed to be an invention for which he asked and obtained a patent. Surely his invention thus shown the public under the protection of his patent right is an instance where he has as fully come before the public with an offering as if he had published a play, a book or a song thus inviting public comment as well as patron•age. The set of facts is completely outside that which Warren and Brandéis were talking about in their original Harvard Law Review article and which the courts have talked about in decided cases since.
The judgment of the District Court 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:
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songer_respond1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
AMERICAN AUTOMOBILE INS. CO. v. PENN MUTUAL INDEMNITY CO.
No. 9203.
Circuit Court of Appeals, Third Circuit.
Argued Feb. 3, 1947.
Decided March 18, 1947.
Henry S. Ambler, of Philadelphia, Pa., for appellant.
Peter.P. Zion, of Philadelphia, Pa. (Albert H. Friedman, of Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, GOODRICH, and MCLAUGHLIN, Circuit Judges.
GOODRICH, Circuit Judge.
This case involves a controversy between two corporations which issue automobile insurance. It is in federal court on grounds of diversity of citizenship. All the facts have a Pennsylvania setting and legal questions presented by the case are matters to be determined by Pennsylvania law.
American Automobile Insurance Company (hereafter called American) issued an automobile insurance liability policy to George Wasilindra. It appears that the insured was required to have a “Financial Responsibility Insurance Certificate”, as provided by the Pennsylvania statute, before he could have his motor vehicle operator’s license reinstated. The policy which American issued to Wasilindra contained a “Financial Responsibility Insurance Certificate” endorsement. It also contained an endorsement called “Drive Other Automobiles — Broad Form” which read: “Insurance shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under a policy applicable with respect to the automobile or otherwise, against a loss covered hereunder.”
Penn Mutual Indemnity Company (hereafter called Penn Mutual) issued a policy of automobile liability insurance to James W. Pender. In one paragraph, “IV. Definition of Insured”, appears a statement that “ * * * The provisions of this paragraph do not apply (a) to any person or organization with respect to any loss against which he has any valid or collectible insurance.”
Pender loaned his automobile to Wasilindra. Wasilindra had an accident in which two of his passengers were hurt. They obtained judgment against Wasilindra. Neither of the insurance companies evidently being willing to pay voluntarily, one of the plaintiffs issued an attachment against American and recovered a judgment which was affirmed on appeal by the Pennsylvania Superior Court. American having paid now seeks to be indemnified by Penn Mutual, setting up the “excess insurance” provision which was in the policy and which has already been quoted. It does not claim that Pender, the owner of the bailed car, is liable for the negligence of his bailee, as it could not successfully claim under Pennsylvania law. It argues that the Pennsylvania Superior Court decision did not pass upon the question of the liability of the insurance corporations between themselves and that all that was settled by that decision was that as against an injured third party the company which furnished Wasilindra the “Financial Responsibility Insurance Certificate” must pay for the harm done by Wasilindra’s negligence in automobile management. But as to the defendant, Pender’s insurance company, it urges the terms of its policy.
The defendant, in its turn, points to the limitation in the definition of “insured” which we have already mentioned. Each company happily points to language in the policy which it has issued which tends to relieve it from liability in this type of case.
The parties have not been able to find for us any authority in Pennsylvania or elsewhere directly deciding the point involved in this suit. Neither have we been able to locate anything independently.
There are some strong analogies, however, which support the result reached by the District Court. It is clear that Wasilindra was the actual tortfeasor and the party primarily liable for the injury to his passengers. Tt is well settled in many instances that where one who is primarily liable has paid an obligation, he cannot come back against a secondary party for contribution or indemnity even though an injured third party might proceed against either one of them. Thus an abutting occupier is liable for a sidewalk injury and has no recourse against the municipal corporation or any other secondarily liable party. Likewise, an agent which has had to pay for a tort he has personally committed cannot make his principal reimburse him for such payment. Nor can the principal debtor who has paid compel reimbursement from a surety.
These situations, we think, are in point here. The insurance company which issued the certificate guaranteeing Wasilindra’s solvency to the world was in the position of guaranteeing a principal obligor. When called upon to pay, as it was by the Superior Court’s decision, it was doing just what it had undertaken to do, that is, making good Wasilindra’s default. We see no reason in legal analogy or in equity why, upon paying as it promised to pay, it should be permitted to pass the loss on to someone else, whether or not that someone might have been compelled to pay the injured party. There is no authority that so holds and we believe that a denial of recovery is within the general approach to the problem by the Superior Court of Pennsylvania even though the exact point was not necessary to be decided.
Affirmed.
Uniform Automobile Liability Security Act of May 15, 1933, P.L. 553 § 2, 75 P.S. § 1254.
This fact appears in Polonitz v. Wa-silindra, 1944, 155 Pa.Super. 62, at page 64, 37 A.2d 136, at page 137.
No question of “excess” insurance arises here since the amount of recovery against Wasilindra was insufficient to exhaust either policy.
Polonitz v. Wasilindra, 1944, 155 Pa.Super. 62, 37 A.2d 136.
Hildock v. Grosso, 1939, 334 Pa. 222, 5 A.2d 565; Blackman v. Venturi, 1933, 110 Pa.Super. 382, 383, 168 A. 808; Note 100 A.L.R. 920 (1936).
The Court said “We express no opinion on tlio question of the liability of the two insurance companies inter se”. Po-lonitz v. Wasilindra, 1944, 155 Pa.Super. 62, 67, 37 A.2d 136, 138.
Bruder v. City of Philadelphia, 1931., 302 Pa. 378, 153 A. 725.
Restatement, Agency § 440 (1933), and Pennsylvania Annotations thereto; 2 Am.Jur. 233 (1936).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
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songer_appel2_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
CORO, INC., et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
No. 6267.
United States Court of Appeals First Circuit.
Heard June 2, 1964.
Nov. 10, 1964.
Ira M. Millstein, New York City, with whom Marshall C. Berger, Irving Scher and Weil, Gotshal & Manges, New York City, were on brief, for petitioners.
Gerald Harwood, Atty., F.T.C., with whom James McI. Henderson, Gen. Counsel, and J. B. Truly, Asst. Gen. Counsel, were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
WOODBURY, Chief Judge.
Coro, Inc., is a New York corporation with its home office in the City of New York and manufacturing plants in Canada, England and Providence, Rhode Island. It is and for year's has been engaged in the business of manufacturing, selling and distributing costume jewelry and, until recently, watches. Coro’s stock has been listed on the American Stock Exchange since 1929. It does a nation-wide business and the hearing examiner described it as “a large, responsible, publicly held corporation.”
Most of Coro’s sales have always been to department stores, variety stores and similar retail outlets. But beginning in 1955 or 1956 it began to sell a special line of jewelry and watches exclusively to so-called “catalogue houses.” In connection with this line of business Coro> furnished printed sheets, and in some instances photographic transparencies, for binding in the catalogue houses’ catalogues describing and illustrating Coro’s products and giving the price at which the product could be bought from the catalogue house plus a wholly fictitious “list” or “retail” price which was arrived at in accordance with the general prevailing practice of catalogue houses by application of the so-called “three-times formula.” By this formula the price at which Coro sold an item to the catalogue house was multiplied by three to arrive at a purported list or retail price for the item and that price was divided in half to arrive at the price at which the house advertised and inevitably sold the article to purchasers. Thus a purchaser looking at the catalogue would assume that he-was buying from the catalogue house for one half the usual ordinary retail price-charged for the item in the area, whereas-in truth and in fact there was no such price or indeed any retail price for the article anywhere because it was part of a special line manufactured exclusively for and sold only by and through catalogue houses.
Coro advertised the watches it sold tocatalogue houses through its wholly owned subsidiary as “guaranteed in writing-for one full year,” and “guaranteed imported Swiss movement” thereby representing that the watches were unconditionally guaranteed, whereas the written-, guarantee which went to the ultimate-purchaser with the watch required payment of a service charge.
Apparently by 1960 Coro entertained misgivings as to the propriety of printing fictitious “list” or “retail” prices on the sheets it submitted to catalogue houses for insertion in their catalogues. It is not entirely clear whether these misgivings sprang from an investigation already started by representatives of the Federal Trade Commission or not. At any rate for the year 1960 Coro did not suggest any “list” or “retail” prices on the catalogue sheets it sent to catalogue houses but printed thereon only the cost of its items to the catalogue house. However, with these sheets Coro sent a letter to the catalogue houses which in pertinent part stated: “On the basis of past experience, we can advise you that catalogs using our insert usually take a mark up of 50% on their cost. Catalogs usually suggest a retail price of double this amount for their dealer.” In December, 1960, definitely after investigation by the Federal Trade Commission had begun, Coro stopped its sales to catalogue houses altogether and in April, 1961, the Federal Trade Commission issued a complaint against Coro, Inc., and also against Gerald E. Rosenberger individually, Coro’s president, largest stockholder and the chairman of its board of directors, and two of Coro’s principal executive officers. The complaint alleged two substantive offenses. It charged first that by supplying catalogue houses with sheets for insertion in their catalogues showing fictitious and exaggerated retail prices for its products Coro had supplied retailers with the means for misleading their customers and the public as to the usual prevailing retail prices of its products, and second that Coro had misrepresented the guarantee covering its watches in that it represented in its catalogue insert sheets that its watches were “unconditionally guaranteed,” whereas in fact the guarantee called for the payment of a service charge.
After hearings at which both sides adduced evidence, the hearing examiner found the charges against Coro sustained both as to the fictitious pricing of its products and as to misrepresentation of the guarantee on its watches, but, finding no sufficient reason for holding Rosenberger and the other corporate officers individually responsible, he dismissed the complaint as to them. Coro appealed to the Commission only the hearing examiner’s finding that it had fictitiously priced its products. The Commission granted the appeal and also notified counsel that on its own motion it would review the hearing examiner’s dismissal of the complaint against Rosenberger. It denied Coro’s exceptions to the hearing examiner’s initial decision, overruled the examiner’s dismissal of the complaint against Rosenberger and issued a proposed cease and desist order against both to which both filed exceptions. The Commission disallowed their exceptions to its proposed order and entered a final order in the same terms which we shall consider hereinafter.
The petitioners do not contest the hearing examiner’s findings with respect to the advertized guarantees on the watches Coro’s subsidiary sold to catalogue houses. Nor do they contest the Commission’s finding that Coro engaged in the unfair practice of fictitious pricing with respect to its sales of costume jewelry to catalogue houses. They summarize their contention in their brief as follows:
“Petitioners do not contest these findings of the Commission. Coro’s explanation for having engaged in these practices was and is simply that Catalog Houses had existed for years; that Coro’s competitiors were selling to the Catalog Houses and using the very practices here complained of; that Coro did nothing more than its competitors and hundreds of suppliers did; and, that while this competitive situation may not excuse Coro, it should be taken into consideration in determining whether to bring the instant proceeding, whether to dismiss the complaint once the proceeding was initiated, and finally what type of order to enter assuming one was necessary.”
The petitioners contend that no order at all should have been entered against them because Coro had stopped doing business with catalogue houses before the complaint herein was filed and had no intention of resuming that line of business in the future. Their argument in support of this contention can conveniently be divided into two phases.
One phase of their argument is that the Commission “was arbitrary, unreasonable, capricious and discriminatory” in refusing to permit them to sign a stipulation to cease and desist pursuant to sub-part E of the Commission’s former Rules of Practice, Procedure and Organization quoted in pertinent part in the margin.
To avail themselves of the Commission’s policy favoring voluntary agreements to cease and desist the petitioners did not undertake to negotiate a consent order before trial, as they were advised that they might do in the notice appended to the Commission’s complaint, wherein it is stated: “If any respondent elects to negotiate a consent order, it shall be done in accordance with Section 3.25 of the Commission’s rules of Practice.” Instead they elected to defend the complaint and then undertook to stipulate settlement during trial. And to establish their claim of arbitrary, capricious and discriminatory action on the part of the Commission in refusing to let them do so, they filed in the course of the proceedings before the hearing examiner an application for a subpoena duces tecum directing the Secretary of the Commission and its project attorney in charge of the case to appear before the hearing examiner and testify, and to bring with them “all relevant documents” in the Commission’s files “bearing upon or concerning the investigation conducted in this matter and the initiation of the instant complaint, and bearing upon or concerning the policies and practices of the Federal Trade Commission with respect to former Sub-Part E of the General Procedures of the Federal Trade Commission, to wit, ‘Stipulation to Cease and Desist.’ ”
The petitioners’ assertion of error in denying their application for subpoena duces tecum to explore generally into the “policies and practices” of the Commission with respect to the disposition of cases before it by stipulation rests upon the proposition that under the circumstances they had a “right” to stipulate. This is not so. The most they had', was a “privilege” to do so. But the petitioners say that the Commission cannot constitutionally deprive them of the-privilege arbitrarily, capriciously or discriminatorily and that the only way they can establish such unconstitutional action-by the Commission is by issuing the subpoena duces tecum for which they asked. The long and short of the petitioners’ argument is that having given up their business with catalogue houses without, any intention of resuming it, they should' have been allowed on the basis of prior decisions of the Commission in other cases to close this ease by stipulation and hence could only have been denied the-privilege of stipulation by the arbitrary, capricious etc. fiat of the Commission which could only be discovered by a general exploration of the Commission’s action in other eases.
The petitioners cite no authority in support of this argument and we-have not found any. Nor have they pointed out any specific action by the Commission in other practically identical cases on which to base a belief that the-Commission’s denial of the privilege of stipulation might have been arbitrary or capricious. All they have shown is a bare .suspicion which if well founded might .support their assertion of error. But subpoenas are not issued on bare suspicion. They are not licenses for extended fishing expeditions in waters of unknown productivity in the vague hope of “catching the odd one.” See Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 95 L.Ed. 879 (1951). Moreover, there are two obvious bases for the Commission’s refusal to permit stipulation. One is that the petitioners did not seek a consent order at the outset of the proceeding but attempted to stipulate disposition during trial. The other is that the petitioners ceased doing business with catalogue houses only just before the complaint was filed and after investigation by the Commission had begun. We see no error in denying the broad subpoena requested.
The other phase of the petitioners’ argument rests primarily upon National Lead Co. v. F. T. C., 227 F.2d 825, 839 et seq. (C.A.7, 1955), reversed in other particulars, 352 U.S. 419, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957), wherein the court of appeals set aside as arbitrary a cease and desist order of the Commission directed against a respondent-petitioner which had abandoned without intention of resuming the lead pigment industry wherein the illegal practices had occurred.
It has long been well settled that § 5 of the Federal Trade Commission Act, from its enactment in 1914, 38 Stat. 719, to its present form, 15 U.S.C. § 45, clothes the Commission with broad discretion to determine whether a cease and desist order is needed to make certain that a method of competition or a trade practice it has found unlawful will be stopped and not resumed. The Commission, however, is not empowered to issue a cease and desist order as punishment for past offenses. It has power only to put a stop to present unlawful practices and to prevent their recurrence in the future. See New Standard Pub. Co. v. F. T. C., 194 F.2d 181, 183 (C.A.4, 1952), and cases cited. .On this basis the Court of Appeals for the Seventh Circuit in the National Lead case set aside as arbitrary a cease and desist order entered against a corporation which was no longer engaged in the lead pigment industry in which the unlawful practice had occurred and had divested itself of its production properties. See also Eugene Dietzgen Co. v. F. T. C., 142 F.2d 321, 331 (C.A.7, 1944), in which the court said: “If the practice has been surely stopped and by the act of the party offending, the object of the proceedings having been attained, no order is necessary, nor should one be entered.”
The petitioners assert that the unlawful practice found by the Commission occurred only in connection with Coro’s business with catalogue houses, and they say that the practice surely stopped when Coro abandoned that line of business without any intention to resume it. It is true that the specific unlawful pricing practice occurred only in Coro’s business with catalogue houses. And it is also true that it gave up that line of business a few months before the Commission filed its complaint and that its officers testified that they had no intention to resume it. But Coro gave the line of business up only after the Commission had started to investigate its practices therein and only a few months before the Commission filed its complaint, and we have only the current corporate officers’ expression of intention not to resume the business. Coro has not disposed of its plant. It is still in the costume jewelry business and there is nothing to suggest that it does not intend to continue in that general industry. We think the Commission did not exceed its statutory powers in issuing a cease and desist order against Coro.
The serious question involved in this appeal is the scope of the order issued by the Commission against Coro, that is whether the order should be limited to apply only to sales to catalogue houses or whether the violations in that particular line of business are a sufficient peg upon which to hang an order against fictitious pricing throughout Coro’s business.
It is true that there is no showing of past violations by Coro, that the violation found was with respect to less than 1% of Coro’s business, that its conduct was in accordance with the long established practice of catalogue houses and that it stopped doing business with catalogue houses before the complaint issued. But in Jacob Siegel Co. v. F. T. C., 827 U.S. 608 at pages 611, 612 and 613, 66 S.Ct. 758 at page 760, 90 L.Ed. 888 (1946), the Court noted that the Commission “has wide discretion in its choice of a remedy deemed adequate to cope” with unlawful practices within the scope of its jurisdiction and that judicial review “extends no further than to ascertain whether the Commission made an allowable judgment in its choice of the remedy,” and said: “The Commission is the expert body to determine what remedy is necessary to eliminate the unfair or deceptive practices which have been disclosed. It has wide latitude for judgment and the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist.” The Court in F. T. C. v. Henry Broch & Co., 368 U.S. 360, 82 S.Ct. 431, 7 L.Ed.2d 353 (1962), applied these principles to hold that a court of appeals erred in modifying a Commission cease and desist order so as to eliminate all references to “any other seller principal” and to “any other buyer,” thus limiting application of a Commission’s order to future sales by the same seller to the same buyer and we think by the same token we would err should we limit the Commission’s order only to Coro’s sales to catalogue houses. Nor do we think the Commission’s order unclear or indefinite when interpreted and applied in accordance with the criteria outlined in F. T. C. v. National Lead Co., 352 U.S. 419, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957).
We do think, however, that there is not a sufficient showing to warrant the inclusion of Rosenberger personally in the order. He was Coro’s largest stockholder, its president and the chairman of its board of directors. And there is testimony, his own, that he had “overall corporate responsibility” and “responsibility for the acts and practices of the corporation” and that he made the decision to put Coro into the catalogue house business. But there is no showing that he was aware of the pricing practices of catalogue houses or that he personally knew of Coro’s participation in those practices. In short, unlike Theodore R. Hodgkins in Forster Mfg. Co. v. F. T. C., 335 F.2d 47 (C.A.1, 1964), there is no showing of Rosenberger’s active or even actual personal participation in the unlawful practices of the corporation under his overall management and control. In the absence of evidence of personal involvement in Coro’s unlawful conduct, we think the hearing examiner was correct in finding no sufficient reason for holding Rosenberger individually responsible and in dismissing the complaint as to him individually.
Decree will be entered modifying the Commission’s order by deleting reference therein to Gerald E. Rosenberger individually and enforcing the order as so modified.
. It conducted its watch business through a wholly owned subsidiary corporation.
. These establishments sell from catalogues to industrial, commercial and fraternal organizations for their use as gifts to customers or prizes or awards to employees or members, to small-town retailers for resale to customers, and, to a limited extent, to individual customers who purchase by mail-order or over the counter at “show-rooms,” in effect retail stores, which catalogue houses operate in a few of the larger cities.
. “Section 1.5. Policy. In order to avoid the expense and time involved in formal legal proceedings, it is tlie policy of the Commission to afford individuals, partnerships and corporations who have engaged in unlawful acts and practices an opportunity to enter into voluntary agreements to cease and desist therefrom, when it appears to the Commission that such procedure fully safeguards the public interest. * * * The Commission reserves the right in all cases to withhold the privilege of disposition by voluntary agreement.”
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer:
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songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America v. Walter ESPOSITO, Appellant.
No. 89-5971.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) June 25, 1990.
Decided July 31, 1990.
Rehearing and Rehearing In Banc Denied Aug. 29, 1990.
David A. Ruhnke, Ruhnke & Barrett, West Orange, N.J., for appellant.
Samuel A. Alito, Jr., U.S. Atty., Edna Ball Axelrod, Chief, Appeals Div., Donna A. Krappa, Asst. U.S. Atty., Newark, N.J., for appellee.
Before SLOVITER and MANSMANN, Circuit Judges, and PULLAM, District Judge.
Honorable John P. Fullam, Senior Judge, United States District Court for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
On this, direct appeal from the district court’s denial of defendant’s motion to dismiss the indictment on double jeopardy grounds 726 F.Supp. 991, we must decide whether acquittal on a RICO charge bars subsequent prosecution on the predicate acts. This presents the mirror image of the question that we decided in United States v. Grayson, 795 F.2d 278 (3d Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 505 (1987), where we held that the Double Jeopardy Clause does not bar use of prior convictions of the predicate offenses to support a later RICO charge.
I.
In August 1988, the defendant Walter Esposito, along with nineteen others, was acquitted by a jury in United States v. Accetturo, Cr. No. 85-292, D.N.J. Esposito had been named in four counts of a twelve-count indictment. Count One charged him with a conspiracy, spanning from at least February 1976 until July 31, 1985, to violate the Racketeering Influenced and ' Corrupt Organization Act (RICO), in violation of 18 U.S.C. § 1962(d). Count Two charged him with participation in a racketeering enterprise, in violation of 18 U.S.C. § 1962(c). In this Count, Esposito was specifically charged with four predicate acts: participating in a drug distribution conspiracy from 1977 to July 1985; cocaine distribution in November 1984; cocaine distribution in December 1984; and cocaine distribution in January 1985. Count Three charged him with conspiracy to distribute and possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 846, and Count Four charged him with distribution of cocaine in November 1984 in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
After the acquittal in the Accetturo case, a federal grand jury returned an indict-ment against Esposito in three counts alleging drug distribution in violation of 21 U.S.C. § 841(a)(1) on three separate dates: (1) on or about December 5, 1984; (2) on or about December 20, 1984; and (3) on or about January 9, 1985. The government concedes that these counts were based on the transactions that supported predicate acts charged in Count Two of the earlier Accetturo indictment. Brief for Appellee at 6.
Esposito filed a motion to dismiss this second indictment, claiming that the proceeding violated principles of double jeopardy and collateral estoppel, and that it also constituted a vindictive prosecution that deprived him of due process. The district court denied Esposito’s motion, and Esposi-to filed this appeal limited to his contention that the second indictment violates the Double Jeopardy Clause of the Fifth Amendment.
This court has jurisdiction over this appeal under 28 U.S.C. § 1291. Pretrial orders denying motions to dismiss the indictments on double jeopardy grounds “fall within the so-called ‘collateral order’ exception to the final-judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp. [337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) ], ... and are thus ‘final decisions’ within the meaning of § 1291.”' Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977). See also United States v. Liotard, 817 F.2d 1074, 1077 n. 4 (3d Cir.1987). Our standard of review is plenary. United States v. Grayson, 795 F.2d at 281.
II.
Esposito argues on appeal that the district court erred as a matter of law in rejecting his claim that this prosecution is barred by the Double Jeopardy Clause because of his acquittal on Counts One, Two, and Three of the earlier indictment. There appear to be two prongs to his double jeopardy argument. He argues, first that this is an impermissible successive prosecution. In that connection, he argues that although a conviction may be used later as a predicate act in a substantive RICO claim without violating the Double Jeopardy Clause, as we held in Grayson, the reverse is not true; once a defendant has been acquitted on a RICO charge the government cannot later prosecute him on the underlying predicate acts. He also argues that this prosecution is barred under the legal principle that precludes a later prosecution on a lesser included offense when there has been an acquittal or conviction on a greater offense, and cites, inter alia, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per cu-riam).
The double jeopardy issues raised in connection with prosecution for a compound predicate offense, such as racketeering under RICO or engaging in a continuing criminal enterprise (CCE) in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 848, do not fit precisely within the analytic lines used in other double jeopardy cases. Nonetheless, there is no exception from the Double Jeopardy Clause for complex statutory crimes. See Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977) (plurality opinion).
Indeed, we recognize at the outset that Esposito’s prosecution on the substantive narcotics offenses which were listed as predicate acts in the earlier RICO indictment against him could implicate some of the concerns underlying the Double Jeopardy Clause, such as, for example, the need to protect a defendant from prosecutorial overreaching, see Ohio v. Johnson, 467 U.S. 493, 498-99, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984); Garrett v. United States, 471 U.S. 773, 795-96, 105 S.Ct. 2407, 2419-20, 85 L.Ed.2d 764 (1985) (O’Connor, J., concurring), or providing the state an opportunity to rehearse its presentation of proof, see Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 2091-92, 109 L.Ed.2d 548 (1990).
Moreover, this is not a case where all the events necessary to the second prosecution had not taken place at the time of the first prosecution, see Garrett, 471 U.S. at 798, 105 S.Ct. at 2421 (O’Connor, J., concurring) (double jeopardy does not bar subsequent prosecution for CCE offense “[wjhere the defendant continues unlawful conduct after the time the Government prosecutes him for a predicate offense”); see also Diaz v. United States, 223 U.S. 442, 449, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912) (earlier conviction of assault and battery does not bar prosecution for homicide when victim died after the first prosecution), nor a case where the facts underlying the second prosecution were unknown or unavailable at the time of the first, see Jeffers, 432 U.S. at 152, 97 S.Ct. at 2216 (double jeopardy may not apply when the facts necessary to prosecution for a greater crime “were not discovered despite the exercise of due diligence before the first trial”). This is also not a case, such as Jeffers, where the responsibility for separate prosecutions can be laid at the feet of the defendant. Id. at 154, 97 S.Ct. at 2218 (defendant who objected to joint prosecution for conspiracy and CCE charges could not complain about consecutive trials).
Despite our unease about the turn of events presented by this case, we cannot translate it into a double jeopardy violation unless the two offenses for which Esposito has been charged are “the same offense,” id. at 150, 97 S.Ct. at 2216, because the constitutional proscription is in those terms. The Supreme Court has recently reiterated the now familiar statement that under the Double Jeopardy Clause of the Fifth Amendment, defendants are protected from later prosecutions for the same offense after being convicted, from later prosecutions for the same offense after being acquitted, and from multiple punishments for the same offense. See Grady v. Corbin, 110 S.Ct. at 2090 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)).
In this case, we do not face the issue of multiple punishments for the same offense because Esposito was acquitted in the first prosecution. Our inquiry therefore is limited to whether Esposito’s second prosecution offends the protection afforded by the Double Jeopardy Clause from later prosecution for the same offense after being acquitted.
When faced with a similar issue in a somewhat comparable situation, the Supreme Court directed the courts to undertake a two-step analysis. See Garrett, 471 U.S. at 778, 105 S.Ct. at 2411. First, we must consider whether Congress intended that each violation be a separate offense. A negative answer would be dispositive of the double jeopardy inquiry and the constitutional issue could be avoided. Id. On the other hand, if it is clear that Congress intended to permit separate prosecutions, we must proceed with the second inquiry, whether the offense in the second prosecution is considered to be the “same offense” as the offense in the first prosecution within the meaning of the Double Jeopardy Clause. Id. at 786, 105 S.Ct. at 2415.
This court has previously considered whether Congress intended to allow successive prosecutions under RICO. See United States v. Grayson, 795 F.2d 278 (3d Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 505 (1987). In determining that Congress intended to allow an earlier conviction to serve as a predicate act in a later RICO prosecution, we noted that “RICO’s statutory language indicates that Congress sought to supplement, rather than supplant, existing crimes and penalties.” Id. at 282. Other courts have reached the same conclusion. See, e.g., United States v. Licavoli, 725 F.2d 1040, 1049-50 (6th Cir.), cert. denied, 467 U.S. 1252, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); United States v. Boldin, 772 F.2d 719, 728-30 (11th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1269, 89 L.Ed.2d 577 (1986); United States v. Phillips, 664 F.2d 971, 1009 n. 55 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Persico, 774 F.2d 30, 32 (2d Cir.1985).
Esposito argues that the fact that Congress intended to permit a subsequent prosecution for RICO following an earlier prosecution for a predicate act does not signify that Congress also intended that a prosecution for the predicate act could follow a RICO prosecution. However, nothing in the legislative history suggests that Congress intended RICO to be a substitute for the predicate offense; instead, that history unequivocably demonstrates Congress saw RICO as a new and additional enforcement tool. Cf. Garrett, 471 U.S. at 784, 105 S.Ct. at 2414 (Congress intended to create a CCE offense separate from and in addition to the predicate offense).
The purpose behind RICO was to “seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” Organized Crime Control Act of 1970, Statement of Findings and Purpose, 84 Stat. 922, reprinted in 1970 U.S.Code Cong. & Admin. News 1073. The broad purpose behind the Act supports allowing two prosecutions, irrespective of the order in which they are brought.
Esposito argues that his prosecution for the substantive drug offenses is barred because it fails the Blockburger test in that “there is no element of the offense unique to both prosecutions.” Appellant’s Brief at 17. The Supreme Court has explained that the Blockburger test was developed “in the context of multiple punishments imposed in a single prosecution.” Garrett, 471 U.S. at 778-79, 105 S.Ct. at 2411. See United States v. Boffa, 688 F.2d 919, 938 (3d Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983). The Court has recently stated that “[t]he Blockburger test is simply a ‘rule of statutory construction,’ a guide to determining whether the legislation intended multiple punishments.” Grady, 110 S.Ct. at 2091.
Esposito’s argument based on Blockburger is inapposite because his acquittal on the RICO charge precludes more than one punishment. Moreover, “the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” See Garrett, 471 U.S. at 779, 105 S.Ct. at 2411. Thus, because we conclude that the statutory intent to make RICO a separate offense from the predicate acts is clear, Blockburger is inapplicable.
Inasmuch as we have concluded the first step inquiry and established that Congress intended to create separate offenses for the predicate acts and the substantive RICO charge, we are bound to decide whether the predicate offense is the “same offense” as the RICO charge within the meaning of the Double Jeopardy Clause. The Court’s recent decision in Grady, — U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), requires us to consider whether we must alter our prior conclusion that a “RICO offense is not, in a literal sense, the ‘same’ offense as one of the predicate offenses.” Grayson, 795 F.2d at 283.
In Grady, the Court held that because the defendant, who was at fault in a car accident in which the driver of another vehicle was fatally injured, was convicted through a guilty plea of driving while intoxicated and failure to keep to the right of the median, the Double Jeopardy Clause barred his subsequent prosecution on manslaughter and assault charges arising out of the same accident. The Court, building upon its earlier decision in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) (defendant convicted of failure to reduce speed to avoid an accident could not be charged with involuntary manslaughter based on reckless driving arising out of the same accident), established the principle that “the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct for which the defendant has already been prosecuted.” Grady, 110 S.Ct. at 2093.
Esposito argues that his prosecution on the substantive drug offenses is barred because he was charged in the earlier RICO case with the same distributions of cocaine which constitute Counts One, Two and Three of the present indictment. However, Esposito was not prosecuted for the narcotics violations but for participating in a racketeering enterprise through a pattern of racketeering activity consisting of narcotics distributions. The “conduct” inquiry is distinct from an “evidence” inquiry.
The Court in Grady carefully eschewed adopting a “same evidence” or “actual evidence” test. Justice Brennan, writing for the majority, recognized that “[a] true ‘same evidence’ or ‘actual evidence’ test would prevent the government from introducing in a subsequent prosecution any evidence that was introduced in a preceding prosecution.” Id. at 2093 n. 12. He specifically stated the Court did not adopt that test, noting that the Court had already held in Dowling v. United States, — U.S. -, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), that “the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding.” Grady, 110 S.Ct. at 2093. Therefore, the fact that the evidence that the government may introduce in this case may be the same as that which it introduced in Accetturo against Esposito, i.e., Agent Marchalonis’ testimony of cocaine distributions by Espo-sito which Marchalonis observed and/or monitored via controlled buys, does not in itself signify a prohibited successive prosecution.
Esposito’s argument that Grady is dis-positive in this case fails to take into account the Supreme Court’s holding in Garrett, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). In Grady, the prosecution was barred on the more encompassing crime, manslaughter, because it was dependent on the same conduct as that encompassed in the earlier conviction for the traffic offenses. In Garrett, however, the Court held that prosecution on the CCE charge was not barred by the earlier conviction on one of the predicate offenses. Garrett was cited by the majority in Grady, see 110 S.Ct. at 2091, 2094 n. 15, and nothing in that opinion purports to derogate from the Garrett holding.
Somewhat more analogous than Grady to the inquiry here is the well-established principle that collective criminal agreement is a separate criminal offense from individual delicts. See Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961). As the Supreme Court explained in Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975), the rationale for the “long line of decisions [considering conspiracy and the completed substantative offense to be separate crimes] rests on the very nature of the crime of conspiracy [which] poses distinct dangers quite apart from those of the substantive offense.” Id. at 778, 95 S.Ct. at 1290. As the Court in Callanan stated:
Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed.
364 U.S. at 593-94, 81 S.Ct. 325.
If the collective criminal agreement that is the hallmark of a conspiracy is sufficiently distinct from the substantive offense for double jeopardy purposes, see Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946), then we conclude that the even more complex conduct needed to support a RICO charge, such as the requirement of both an enterprise and a pattern of activity, constitutes an offense different than and separate from that encompassed by the narcotics charges alleged here, even if they were predicate acts or evidence used to prove the racketeering.
In sum, while the same evidence may be presented against Esposito in both trials, he was not prosecuted in Aceetturo for the same conduct as that set forth in the indictment here, and hence Grady does not mandate a finding that this prosecution is barred by double jeopardy. A consequence of our conclusion that the prosecution for the RICO charge does not signify that defendant was prosecuted for the conduct constituting the predicate acts of racketeering activity, see Grayson, 795 F.2d at 282; United States v. Phillips, 664 F.2d at 1009 n. 55, is that the two offenses may be the subject of successive prosecutions. See United States v. Dunbar, 591 F.2d 1190, 1192 (5th Cir.1979) (“no court in this country has ever held that a defendant may not be indicted and tried once for a conspiracy and thereafter tried for the crime of distributing controlled substances”), panel opinion adopted in relevant part, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). It follows that Esposito’s argument that his prosecution for the predicate offenses is barred as a successive prosecution violative of the Double Jeopardy Clause must fail.
Esposito’s argument which relies on the ban for successive prosecutions for greater and lesser included offenses fares no better. In Boffa, 688 F.2d at 938, we held that a predicate offense is not a lesser included offense of a substantive RICO offense, citing United States v. Scotto, 641 F.2d 47, 56 (2d Cir.1980) (Taft-Hartley violations are not lesser included offenses of RICO charge), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981); United States v. Boylan, 620 F.2d 359, 361 (2d Cir.) (same), cert. denied, 449 U.S. 833, 101 S.Ct. 103, 66 L.Ed.2d 38 (1980); United States v. Rone, 598 F.2d 564 (9th Cir.1979) (same as to substantive RICO charges and extortion), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). Indeed, it is not immediately apparent that for purposes of this case there is a significant distinction between Esposito’s “fragmentary prosecution” argument and his lesser included offense argument.
In Grady, the Court, which focused on the successive prosecution concern, discussed lesser included offenses as follows:
Similarly, if in the course of securing a conviction for one offense the State necessarily has proved the conduct comprising all of the elements of another offense not yet prosecuted (a “component offense”), the Double Jeopardy Clause would bar subsequent prosecution of the component-offense. See Harris v. Oklahoma, 433 U.S. 682 [97 S.Ct. 2912, 53 L.Ed.2d 1054] (1977) (“When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one”) (footnote omitted); cf. Brown, [432 U.S.] at 168 [97 S.Ct. at 2226] (noting that it is irrelevant for the purposes of the Double Jeopardy Clause whether the conviction of the greater offense precedes the conviction of the lesser offense or vice-versa).
Grady, 110 S.Ct. at 2093 n. 11.
It is evident that a predicate act included in a RICO indictment is not a lesser included offense of a substantive RICO charge for the reasons given above. Patently, each defendant in the Accetturo trial would not have been entitled to require the trial court to have charged the jury to consider as a lesser included offense option each of the 19 predicate acts alleged in Count II of the Accetturo indictment. See Fed.R.Crim.P. 31(c). In Boffa, we upheld the trial court’s refusal to give the lesser included offense charge on the Taft-Hart-ley violation which was the predicate act on a substantive RICO charge. Boffa, 688 F.2d at 938. In fact, Esposito does not contend that he even requested such a charge. See Jeffers, 432 U.S. at 154, 97 S.Ct. at 2218. The same analysis that led us to conclude that a RICO charge of racketeering and a charge of distribution of narcotics listed as a predicate act are not the same offense for purposes of successive prosecution leads us inexorably to conclude that the predicate act is not a lesser included offense of the RICO charge.
In effect, Esposito’s argument would interpose into the Double Jeopardy Clause a constitutional requirement that the prosecution must include in a compound offense indictment all of the possible charges on substantive offenses arising out of each of the predicate offenses. As a practical matter, this would make a RICO trial, which frequently is brought against multiple defendants and contains multiple counts, unwieldy. We have already stated that the government is “not required to make an election between seeking a conviction under RICO, or prosecuting the predicate offenses only.” Grayson, 795 F.2d at 283 (quoting United States v. Rone, 598 F.2d at 571). Esposito has presented no reason why the rationale that supports allowing successive prosecutions for a predicate act followed by a RICO prosecution would not also support allowing successive prosecutions in the “reverse RICO” situation. As the Court noted in Garrett, “[t]he Government, and not the courts, is responsible for initiating a criminal prosecution, and subject to applicable constitutional limitations it is entitled to choose those offenses for which it wishes to indict and the evidence upon which it wishes to base the prosecution.” 471 U.S. at 790 n. 2, 105 S.Ct. at 2417 n. 2.
Of course, if the prosecutions were for the “same offense,” then the second prosecution would be barred irrespective of the sequence of prosecution. See Jeffers, 432 U.S. at 150-51, 97 S.Ct. at 2215-16. However, because we have concluded that the conduct with which Esposito was charged in the Accetturo case is not the same as the conduct for which he is charged in the current indictment for narcotics offenses, we see no constitutional proscription in the Double Jeopardy Clause based on the sequence of prosecution. Therefore, we conclude that it does not bar this prosecution. We leave open without comment whether this scenario may present a situation of prosecutorial vindictiveness or overreaching so severe that it violates the Due Process Clause.
III.
For the reasons set forth above, we will affirm the order of the district court denying Esposito’s motion to dismiss the indictment on double jeopardy grounds.
. Under RICO, it is unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c). A "pattern of racketeering” requires at least two acts , of racketeering activity in a ten-year period. 18 U.S.C. § 1961(5). Racketeering activity is defined as activity that violates specified state laws or federal statutes. 18 U.S.C. § 1961(1).
. Although Esposito’s brief focuses on Count II of the Accetturo indictment, the substantive RICO offense, he refers to three of the four counts on which he was indicted in his supplemental letters sent at the request of the court. As will be developed in the text hereafter, a prior conspiracy prosecution would impose no double jeopardy bar, see Iannelli v. United States, 420 U.S. 770, 779, 95 S.Ct. 1284, 1290, 43 L.Ed.2d 616 (1975), and thus neither Count I (conspiracy to violate RICO) nor Count III (conspiracy to distribute and possess cocaine) will be addressed independently.
. The Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides: "nor should any person be subject for the same offense to be twice put in jeopardy of life or limb."
. We note with interest that in the more recent Supreme Court cases applying the lesser included offense doctrine the defendant had been convicted in the first proceeding, see, e.g., Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam) (conviction of felony-murder during armed robbery bars prosecution for robbery with firearms); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (conviction for lesser included offense of operating a vehicle without the owner's consent bars prosecution for crime of stealing the automobile); Jeffers, 432 U.S. 137, 148-50, 97 S.Ct. 2207, 2214-15, 53 L.Ed.2d 168 (1977) (conspiracy to distribute drugs in violation of 21 U.S.C. § 846 is lesser included offense of conducting a CCE to violate drug laws in violation of 21 U.S.C. § 848). But see Garrett, 471 U.S. at 796, 105 S.Ct. at 2420 (O’Connor, J., concurring) (Brown "held that the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on a lesser included offense."). There is some suggestion in the Supreme Court opinions that it is the constitutional collateral estoppel principle embodied in the Double Jeopardy Clause (as distinguished from the lesser included offense doctrine) which protects a defendant who has been acquitted of the same offense in the first prosecution. See Iannelli, 420 U.S. at 782 n. 14, 95 S.Ct. at 1292 n. 14 ("In a proper case, this Court's opinion in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), can afford protection against reprosecution following acquittal.”); Brown, 432 U.S. at 165-66, 97 S.Ct. at 2225 (the “ 'constitutional policy of finality for the defendant’s benefit’ ” (citation omitted) ... "protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436 [90 S.Ct. 1189, 25 L.Ed.2d 469] (1970); cf. United States v. Martin Linen Supply Co., 430 U.S. 564 [97 S.Ct. 1349, 51 L.Ed.2d 642] (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see
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_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Nelson H. TROUT, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY.
No. 13729.
United States Court of Appeals Third Circuit.
Argued Jan. 26, 1962.
Decided March 16, 1962.
Jack E. Feinberg, Philadelphia, Pa. (B. Nathaniel Richter, Kenneth Syken, Richter, Lord & Levy, Philadelphia, Pa., on the brief), for appellant.
F. Hastings Griffin, Jr., Philadelphia, Pa. (Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., on the brief), for appellee.
Before KALODNER, STALEY and SMITH, Circuit Judges.
STALEY, Circuit Judge.
Nelson H. Trout brought an action under both the Safety Appliance Act, 45 U.S.C.A. § 1 et seq. (“SAA”), and the Federal Employers’ Liability Act, 45 U.S. C.A. § 51 et seq. (“FELA”), to recover damages for personal injuries sustained while he was attempting to brake a car in the course of his employment for defendant Pennsylvania Railroad Company. The district court granted defendant’s motion for a directed verdict on the SAA claim on the basis that plaintiff failed to establish that the brake proved inefficient while being operated in a normal, natural and usual manner. The jury returned a verdict for defendant on the FELA claim. The plaintiff’s basic complaint is that there was enough evidence in the record to require sending the SAA claim to the jury.
In Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615 (1947), the Supreme Court made it clear that a jury question is presented under the SAA if the evidence is such that it can be reasonably concluded that the brake failed to operate efficiently while being operated in the natural, normal and usual manner, thereby causing injury to plaintiff. There is no need for plaintiff to show anything more, and negligence is an irrelevant consideration. We think that here there was enough evidence in the record to require submission to the jury.
The plaintiff testified that while braking the car, as he was required to do,, he pumped the brake eight or nine times.. The brake was pumping firm and returning hard, as is usual, when he decided: to give it one more pump to make certain that the brake held. While doing so, the brake pump handle unexpectedly returned without resistance, thus causing him to be thrown back against the edge of the car. In response to questions by his counsel, plaintiff attempted to explain why he was thrown back against the car when he said: “All of a sudden the chain busted or dirt got in the cogs or something that took place that it just left loose, there wasn’t no leverage there.” He later gave similar testimony when questioned by the court. Upon cross examination by defendant’s counsel, plaintiff again testified that the brake was defective. From this evidence, the jury reasonably could have concluded that the plaintiff was operating the brake in a normal, natural, and usual manner, and that the brake was inefficient. The fact that plaintiff did not expressly testify that he was operating the brake in a normal, natural, and usual manner is unimportant, for as this court said in Draper v. Erie Railroad Co., 285 F.2d 255, 256 (C.A.3, 1960), “The plaintiff’s description of what he actually did under the circumstances could not have been helped by a statement from him or anybody else that he was operating in the usual and ordinary manner.” It is true that plaintiff testified that the brake operated properly immediately prior to the accident, and it appears that this fact was relied on by the district court. But it has been said many times, and most recently by us in Zimmerman v. Montour Railroad Co., 296 F.2d 97 (C.A.3, 1961), that the duty imposed by the SAA is an absolute one, requiring performance on the occasion in question.
In submitting the FELA claim to the jury, the district court required it to answer certain interrogatories. One of them was as follows:
“Was plaintiff injured on August 20,1957, because of
“(a) an inefficient brake?
“(b) a defective brake handle?”
The jury answered no to both parts of the question. Defendant argues that in effect the SAA claim was thus submitted to the jury and the grant of a directed verdict, if erroneous, was thereby cured. The plaintiff, however, says that the interrogatory was meaningless, for the district court failed to charge the jury on the SAA claim, limiting the charge solely to the claim of negligence. A careful reading of the charge indicates that this was so. Of course, we agree that under that circumstance the interrogatory was of no avail.
The district court was under a duty to separate the two causes of action and to make it clear to the jury that neither evidence of negligence nor due care could be considered in determining defendant’s liability under the SAA. O’Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187 (1949). Measured by this standard the charge was totally inadequate. In it, the district court never referred to the two different theories of recovery. The jury was not instructed as to the quantum of proof required under the SAA. The court denied every point for charge dealing with the SAA claim. That, of course, was consistent with what the district court said in a colloquy with counsel shortly before the charge. It indicated that the SAA claim was out of the case and the jury would not be charged on it and that the interrogatory, if it had no other purpose, would be useful in resolving the question of negligence. Furthermore, in closing argument, neither counsel ever referred to the SAA claim and concentrated exclusively on negligence.
The plaintiff also calls to our attention several alleged procedural errors that require discussion. In charging the jury, the district court said: “* * * We must all have sympathy for this plaintiff; of course, we have sympathy for him in his tragic circumstance, but remember that if cases were to be decided on the basis of sympathy, what good would a big award that you give be to Mr. Trout, because somebody else in a more sympathetic situation, with perhaps ten children and even worse cancer, could sue him and take it all away from him again?” In addition to being-confusing, misleading, and unjustified by any comments made by plaintiff’s counsel during the trial, this part of the charge was extremely prejudicial. Although a precautionary charge is within the discretion of the trial judge, it. should not be framed and given without regard for what happened during trial. Here the record discloses nothing to warrant such a charge.
The district court admitted into evidence a summary of car inspection reports, prepared and offered by the defendant, on the basis that it was a record made in the ordinary course of business. Plaintiff contends that the summary was inadmissible as the original reports were not made available to him, and further that the business record rule does not apply here because the summary was prepared expressly for litigation. The defendant argues that plaintiff is-now precluded from raising the question in this court because he failed to properly object, or to assign its admission as-a ground for a new trial.
The record, however, discloses that plaintiff properly objected and requested production of one of the original' reports. Nor was it necessary for plaintiff to assign as grounds for a new trial the ruling of the district court in order to have us review it, Morgan Electric Co. v. Neill, 198 F.2d 119, 13 Alaska 717 (C.A.9, 1952), for plaintiff was under no obligation to file such a motion. United States v. Mountain State Fabricating Co., 282 F.2d 263 (C.A.4, 1960).
The Supreme Court made it clear in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), that for a document to come within the business record rule, it must be made in the systematic conduct of a business as a business, and as a matter of routine to reflect regular business transactions. The document should not be one calculated for use essentially in litigating a claim. Here, the summary was prepared by an employee of the defendant in response to a request from its claim agent. The purpose was, of course, to use it in disposing of the plaintiff’s claim. The fact that the defendant apparently makes similar summaries in other accidents does not make it a business record made in the regular course of business. It is clear, however, that the original inspection records, from which the summary was made, were business records under the rule in Palmer v. Hoffman, supra. That being so, the summary was admissible provided it met the tests which we recently reaffirmed in Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292 (C.A.3, 1961). That opinion was handed down after trial in this case. We there held that the admission of a summary rests within the discretion of the trial judge who is to exercise that discretion in accordance with certain standards, some of which were therein discussed in detail. Here the district court did not attempt to determine whether the summary met any of these standards, for, as we have indicated, it ruled that the summary was admissible as a business record.
Lastly, plaintiff contends that the district court erroneously refused to allow him to call an expert medical witness because of a failure to list the witness in a pretrial memorandum. That question is now moot, however, for the district court clearly indicated that in the event of a new trial plaintiff would be permitted to amend his pretrial memorandum to list the expert as a witness.
The judgment of the district court will be reversed and the cause remanded with directions that plaintiff be granted a new trial.
. Defendant contends that our decisions in Quinones v. Township of Upper More-land, 293 F.2d 237, 239-240 (C.A.3, 1961); Russell v. Monongahcla Ry., 262 F.2d 349 (C.A.3, 1958); Bell v. Mykytiuk, 147 F.Supp. 315 (E.D.Pa.), aff’d, 246 F.2d 938 (C.A.3, 1957); and Marks v. Philadelphia Wholesale Drug Co., 125 F.Supp. 369 (E.D.Pa., 1954), aff’d, 222 F.2d 545 (C.A.3, 1955), support his position. An examination of the cases discloses no discussion of this question, and we are unable to understand why counsel cited them.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_bus
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
F. T. TURNER v. Burnett DICKEY.
Circuit Court of Appeals, Sixth Circuit.
April 4, 1929.
No. 5172.
J. W. Canada, of Memphis, Tenn., for appellant.
Hunter Wilson, of Memphis, Tenn., for appellee.
PER CURIAM.
Judgment of the District Court affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_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
BOOMHOWER, Inc., Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY and Dennis J. Kane, Appellees.
No. 13821.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 9, 1957.
Decided Jan. 9, 1958.
Mr. Thaddeus G. Benton, Washington, D. C., with whom Mr. Russell Hardy, Jr., Washington, D. C., was on the brief, for appellant.
Mr. Dickson R. Loos, Washington, D. C., with whom Mr. Alexander M. Heron, Washington, D. C., was on the brief, for appellee American Automobile Insurance Co.
Mr. Edward A. White, Washington, D. C., entered an appearance for appellee Kane.
Before Wilbur K. Miller, Washington and Danaher, Circuit Judges.
PER CURIAM.
This is a sequel to Boomhower, Inc. v. American Automobile Insurance Company, 95 U.S.App.D.C. 124, 220 F.2d 488, certiorari denied, 1955, 350 U.S. 833, 76 S.Ct. 67, 100 L.Ed. 743. Appeal is now taken from an order of the District Court in that case denying plaintiff-appellant’s motion for a new trial under Rule 60(b), Fed.R.Civ.P., 28 U.S.C.A., which alleged newly-discovered evidence. The District Court concluded that while this evidence - — which appellant argues shows perjury - — was of a character tending to impeach the testimony of a witness at the trial, it was not likely to lead to a change in the result reached.
We think the District Court did not abuse its discretion. The evidence can only doubtfully be described as newly-discovered : plaintiff-appellant could have taken the witness’ deposition or otherwise made timely discovery. Certainly the matter offered does not reach the gravity contemplated by the “any other reason justifying relief” provision of Rule 60(b) (6), even assuming that provision to be applicable here. Cf. Klapprott v. United States, 1949, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266; 3 Freeman, Judgments, § 1241 (5th ed. 1925); 7 Moore, Federal Practice, pars. 60.24, 60.-27 (1955).
Affirmed.
. See also Boomhower, Inc., v. Boomhower, 1957, 100 U.S.App.D.C. 148, 243 F.2d 254.
. This motion was filed twenty-two months after the District Court’s dismissal of the original complaint, and fifteen months after our affirmance of that dismissal.
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_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
The KANSAS STATE BANK AND TRUST COMPANY, Conservator of the Estate of Leon Cornell Van Vessum, a minor, Plaintiff-Appellee, v. OLD AMERICAN INSURANCE COMPANY, Defendant-Appellant.
No. 73-1401.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Nov. 12, 1973.
Decided Feb. 5, 1974.
Jack Peggs of Smith, Shay, Farmer & Wetta, Wichita, Kan., for plaintiff-appellee.
J. L. Weigand, Jr., of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, Kan., for defendant-appellant.
Before SETH, ALDISERT , and DOYLE, Circuit Judges.
Of the Third Circuit, sitting by designation.
ALDISERT, Circuit Judge.
Presented in this diversity action, controlled by principles of Kansas law, is the question of whether an insurance policy providing for loss by “being struck or run over by any automobile” covers a loss sustained by being struck by a motorcycle. Having acquired jurisdiction after removal from the state court at the behest of the insurance company, the district court, on stipulated facts, interpreted the policy, found coverage to exist and granted summary judgment in favor of plaintiff. The insurance company has appealed. We reverse.
The adjudicative facts are set forth in the district court’s opinion:
The insured Jean K. Hunt, was struck by a 1970 Yamaha 175 c.c. M/C motorcycle while attempting to cross the street in the 300 block, North Coast Highway, Laguna Beach, California, on July 24, 1970. As a result of head injuries sustained in the accident, she died shortly thereafter. Under the policy issued by the defendant, the insured was protected against losses caused by accidental bodily injuries sustained in the following manner:
“1. While the Insured as a passenger or driver is riding in, entering, or alighting from, any private passenger automobile (whether or not owned by the Insured), or
2. While the Insured as a passenger ... is riding in, entering, or alighting from, any land, air, or water conveyance then engaged as a licensed common carrier of passengers for hire, or
3. By being struck or run over by any automobile or common carrier conveyance while the Insured is a pedestrian on any public street or highway. . . .”
For the purposes of the policy, automobile is defined as a “land vehicle of the type commonly and ordinarily known and referred to as an ‘automobile,’ and private passenger automobile . . . [is defined as] a ‘private automobile designed primarily for transporting persons.’ ” On August 13, 1971, plaintiff formally filed claimant’s proof of accidental death and a certified copy of Jean K. Hunt’s death certificate in accordance with the proof of loss provisions of the policy. On August 19, 1971, the defend- and denied coverage on the ground that a motorcycle was not an automobile as that term was defined in the policy. The dispute between the parties is centered on whether the term “automobile” as it is defined in the policy clearly excludes motorcycles.
The district court reasoned that the term “automobile” is broad enough- to include all forms of self-propelling vehicles; recognized that “[a] motorcycle is not customarily considered an automobile—the distinction being a motorcycle is a two-wheeled, as opposed to a four-wheeled vehicle”; and found that the “definition of ‘private passenger automobile’ describes what the Court feels an average person would described [sic] as an automobile, i. e., a four-wheeled vehicle designed primarily to carry passengers.”
But the court was impressed with the policy’s distinction between “automobile” and “private passenger automobile,” and found that “automobile” describes “a more extensive class of vehicles.” To hold otherwise, it reasoned, “would render the term [‘private passenger automobile’] superfluous.” It concluded that the “primary risk contemplated by the provision clearly appears to be that of a pedestrian exposed to motor vehicle traffic” and that “any ordinary insured would consider himself protected under this provision against being struck by any motor vehicle likely to use the streets.”
Each party has cited numerous Kansas cases as authority for supporting his position or negating that of his adversary. Unfortunately, none of these cases interprets the precise language at issue in these proceedings. As Justice Holmes once warned: “[E]very question of construction is unique, and an argument that would prevail in one case may be inadequate in another.” Thus, it is important to emphasize what is not before us. This is not a case where the policy contains no definition of the term “automobile”. Nor is the term defined as “the motor vehicle or trailer-described in this policy” as in Western Casualty & Surety Company v. Budig, supra. Here the policy contains a specific definition: “As used in this policy, automobile means a land vehicle of the type commonly and ordinarily known and referred to as an “automobile’ . . . . ”
A review of the authorities discloses that the Kansas Supreme Court respects the generally accepted standards for interpreting insurance contracts. That court has accepted as a threshold determinant our expression in Thomas v. Continental Casualty Company, 225 F.2d 798, 801 (10th Cir. 1955) :
All ambiguities will be resolved against the insurer, but the insured is charged with the plain ordinary meaning of inartistic words, and we will not torture words to import ambiguity where ordinary meaning leaves no room for such. * * * Words do not become ambiguous simply because lawyers or laymen contend for different meanings, or even though their construction becomes the subject matter of litigation. [Citation omitted.]
Kansas Farm Bureau Insurance Company v. Cool, supra, 471 P.2d at 356; and has emphasized:
If the language [of an insurance policy] when given its everyday commonly accepted meaning is clear and specific in presenting the subject matter at hand, the objective to be accomplished, the burdens assumed, and the benefits to be enjoyed or received, then the terms of the policy cannot be said to be doubtful of meaning or conflicting in terms. Under these circumstances, courts are not at liberty to indulge in a construction that would give an unnatural meaning to the language in order to accomplish results that could not be shown to have been in the minds of the parties.
Ibid., 471 P.2d at 356-357, citing Ferguson v. Phoenix Insurance Company of New York, 189 Kan. 459, 370 P.2d 379 (1962).
Thus, the polestar to guide our inquiry is one of the fundamentals urged by Wigmore: “the standard of the community, or popular standard, meaning the common and normal sense of words.”
We have been taught by Holmes that “each party to a contract has notice that the other will understand his words according to the usage of the normal speaker of English under the circumstances, and therefore cannot complain if his words are taken in that sense,” and that “[y]ou cannot prove a mere private convention between the two parties to give language a different meaning from its common one. [A]n artificial construction cannot be given to plain words by express agreement. . . . ”
Given this as the recognized standard of interpretation, it appears that we have a case of a fortiori proportions because this insurance policy commands us to limit our consideration to “a land vehicle of the type commonly and ordinarily known and referred to as an ‘automobile’.” Thus we not only have a standard of interpretation requiring common and ordinary meaning, but a contract defining the word in those terms.
As a starting point we agree with the district court that a “motorcycle is not customarily considered an automobile—the distinction being a motorcycle is a two-wheeled, as opposed to a four-wheeled vehicle.” We must then determine whether there are expressions of art or special nuances in the insurance contract to permit an interpretation “outside the hard core of standard instances or settled meaning,” described by Professor Hart in his classic debate with Professor Fuller as the “problems of the penumbra.”
The district court placed the term “automobile” within the penumbra by a process we find difficult to accept. It compared provision (3) of the policy, which is relevant to these proceedings, with provision (1) which is not. Provision (1) relates to losses occurring as a passenger or driver of a “private passenger automobile”; provision (3) relates to losses by being struck or run over by an “automobile” or “common carrier conveyance”. Provision (2) is distinct from (1) and (3) in that it relates to losses occurring as a passenger of “any land, air or water convenance then engaged as a licensed common carrier. . . . ” There is a rational explanation for the use of these various terms. To say, as did the district court, that the definition of “private passenger automobile” would be superfluous unless “automobile” in provision (3) is held to mean all motor vehicles is to tortur.e plain meaning.
We think it obvious that coverage under (3) extends to any automobile, whether or not it is a “private passenger” automobile. Additionally, this provision extends to a “common carrier conveyance” such as a bus or trolley car. By its very terms, coverage under (1) is much more limited than coverage under (3). While “automobile” as used in (3) covers a more extensive class of automobiles than the “private passenger automobile” described in (1), we cannot agree with the district court that it covers “a more extensive class of [motor] vehicles.”
When the meaning is plain— plain by the standard of the community and the ordinary reader—no deviation, without rational justification, is permitted. The most recent expression of the Kansas Supreme Court states: “Normally the word automobile when used in the popular sense would exclude motor vehicles such as motorcycles.” Western Casualty & Surety Company v. Budig, supra, 516 P.2d at 941. We find no difficulty with the ordinary meaning of the policy language. It therefore does not become necessary to invoke the time honored Kansas rule of construing ambiguous or conflicting provisions adversely to the draftsman, or to embark on a semantical excursion into the “problems of the penumbra.” We find the language to fall, in Hart’s phrase, within “a core of settled meaning.” It is difficult to disagree with Justice Noah Swayne’s remark a century ago: “If the language be clear it is conclusive. There can be no construction where there is nothing to construe.” As we said in Thomas v. Continental Casualty Company, supra, “we will not torture words to import ambiguity where ordinary meaning leaves no room for such.”
The district court found, and properly so, that “[a] motorcycle is not customarily considered an automobile— the distinction being a motorcycle is a two-wheeled, as opposed to a four-wheeled vehicle.” It should have stopped there and entered summary judgment for the defendant.
The judgment of the district court is reversed and the proceedings remanded with a direction to enter judgment in favor of appellant.
. Western Casualty & Surety Company v. Budig, Kan., 516 P.2d 939 (1973) ; Kansas Farm Bureau Insurance Company v. Cool, 205 Kan. 567, 471 P.2d 352 (1970) ; Clark v. Prudential Insurance Company of America, 204 Kan. 487, 464 P.2d 253 (1970), and cases cited therein.
. United States v. Jin Fuey Moy, 241 U.S. 394, 402, 36 S.Ct. 658, 659, 60 L.Ed. 1061 (1916).
. The Kansas Supreme Court has explicitly recognized a distinction between cases where “automobile” is used as the broader generic term “motor vehicle” and those where “automobile” is more narrowly used. See, e. g., Western Casualty & Surety Company v. Budig, supra, 516 P.2d at 942: “The appellant cites cases from Arkansas, Pennsylvania, Tennessee and other states which hold that a motorcycle is not an automobile under the provisions of certain insurance policies. We have examined those cases and note that the word ‘automobile’ was- not defined in those policies by using the broader generic term ‘motor vehicle’.”
. “[T]he possible standards fall roughly into four classes,—the standard of the community, or popular standard, meaning the common and normal sense of words; the local standard, including the special usages of a religious sect, a body of traders, an alien population, or a local dialect; the mutual standard, covering those senses which are peculiar to both or all the parties to a transaction, but shared in common by them; and the individual standard of one party to an act, as different from that of the other party or parties, if any.” IX Wigmore on Evidence, at 185-186 (1940).
. Holmes, The Theory of Legal Interpretation, 12 Harv.L.Rev. 417, 419 (1899). (Citation omitted.)
. Goode v. Riley, 153 Mass. 585, 28 N.E. 228 (1891) Holmes, J.
. A factual predicate of the Hart-Fuller debate was the interpretation of the word “vehicle” : “A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be called ‘vehicles’ for the purpose of the rule or not? If we are to communicate with each other at all, and if, as in the most elementary form of law, we are to express our intentions that a certain type of behavior be regulated by rules, then the general words we use—like ‘vehicle’ in the case I consider—must have some standard instance in which no doubts are felt about its application. There must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.” n.L.A. Ilart, Positivism and the Separation of Law and Morals, 71 Harv.L.Rev. 593, 607 (1958).
Professor Puller responded:
“Even in situations where our interpretive difficulties seem to head up in a single word, Professor Hart’s analysis seems to me to give no real account of what does or should happen. In his illustration of the ‘vehicle,’ although he tells us this word has a core of meaning that in all contexts defines unequivocally a range of objects embraced by it, he never tells us what these objects might be. If the rule excluding vehicles from parks seems easy to apply in some cases, I submit this is because we can see clearly enough what the rule ‘is aiming at in general’ so that we know there is no need to worry about the difference between Fords and Cadillacs. If in some cases we seem to be able to apply the rule without asking what its purpose is, this is not because we can treat a directive arrangement as if it had no purpose. It is rather because, for example, whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, ‘without thinking,’ that a noisy automobile must be excluded.
“What would Professor Hart say if some local patriots wanted to mount on a pedestal in the park a truck used in World War II, while other citizens, regarding the proposed memorial as an eyesore, support their stand by the ‘no vehicle’ rule? Does this truck, in perfect working order, fall within the core or the penumbra?” Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv.L.Rev. 630, 663 (1958).
. United States v. Hartwell, 6 Wall. 385, 396, 18 L.Ed. 830 (1868).
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Frank Jimmy SNIDER, Jr., Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
No. 8267.
United States Court of Appeals Fourth Circuit.
Argued March 29, 1961.
Decided June 23, 1961.
Harvey S. Lutins and T. Warren Mes-sick, Roanoke (Morton Honeyman and Stuart A. Barbour, Jr., Roanoke, Va., on the brief), for appellant.
Clarence F. Hicks, Sp. Asst. Atty. Gen. of Virginia, (A. S. Harrison, Jr., Atty. Gen. of Virginia, on the brief) for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
HAYNSWORTH, Circuit Judge.
A state court prisoner, under sentence of death for the rape of a 9-year old child, filed a petition for a writ of habeas corpus in the District Court. Since the sentence was about to be executed, the writ was issued and, thereafter, a hearing was held, after which the District Judge concluded that there had been no showing of any denial of any of the prisoner’s constitutional rights.
On appeal, we remanded the case to the District Court for further proceedings. The prisoner’s principal claim was that he was insane at the time the crime was committed, a defense which had not been raised at the trial. This fact, the prisoner claims, demonstrated the incompetency of his counsel. This Court suggested in its opinion that evidence of the prisoner’s actual mental condition would be of assistance in the resolution of the question tendered.
Thereafter, a further hearing was held in the District Court in which evidence of the prisoner’s mental condition was taken. The District Court again discharged the writ and ordered the dismissal of the petition.
At the second hearing in the District Court, the Superintendent and Clinical Director of the Southwestern State Hospital, an institution for the care and treatment of mental patients supported by Virginia, testified that the prisoner was not psychotic or neurotic, but that he had a sociopathic personality disorder with an antisocial reaction. A physician selected by the prisoner, or his counsel, testified that the prisoner had a mental disease, and that his sex urge was so strong as to become compulsive and irresistible in the presence of a female under his control in a secluded place. The doctors seemed in agreement that his mental condition now was substantially what it was at the time the offense was committed and at the time of the prisoner’s trial.
There is nothing in the evidence relating to the prisoner’s mental condition that suggests that he was not competent to stand trial. The record as a whole discloses that he was entirely capable of assisting his counsel in his defense, and that he did so. Though we may assume that the evidence introduced at the second hearing in the District Court would have been sufficient had it been offered at the time of his trial in the state court, to require the submission of the question of insanity to the jury, it does not disclose such an extreme condition as to require the conelusion that counsel was so grossly neglectful of the prisoner’s interest in failing to rely upon his mental condition as a defense as to convert the proceedings into a farce or a mockery of justice. Clearly the prisoner is sexually abnormal. His history preceding the crime is a lurid one filled with sexual activity with a succession of women and children, much of it with the consent of his companion of the moment, but much of it accompanied by violence, depravity, or both. Perhaps, it was this history suggesting extreme sexual abnormality, which led the state court prior to trial to have the prisoner examined by a commission of two physicians under the provisions of Section 19-202 of the Code of Laws of Virginia of 1950 (Section 19.1-228 of the 1960 revision). The commission reported orally to the Commonwealth’s attorney and to the attorney for the prisoner that, after examining the defendant, they were of the opinion that he was not of unsound mind. These two doctors were subpoenaed as witnesses by the Commonwealth and were present in the courtroom at the time of the trial.
While the prisoner now relies upon his history of sexual excess and depravity, including the crime of which he was convicted, to show his mental derangement, at the time of trial he insisted that he had not committed the crime. He sought to establish an alibi. At the time of the trial, therefore, his counsel based the defense upon the contention that he was not present and did not commit the crime. Since the physicians who had examined him were prepared to testify that he was not of unsound mind, they could hardly have developed a defense of insanity without admitting this and other sexual crimes, which, collectively, may well suggest a deranged mind, or very poor control of his conduct. A prisoner who insists that he did not commit a crime can hardly be forced by his counsel to confess it in order to support a tenuous defense of insanity.
At the time of his trial the prisoner was represented by an attorney appointed by the court, assisted by another attorney from Gadsden, Alabama employed by the defendant’s parents. The depositions of these attorneys were taken in connection with the hearings in the District Court. The privately employed counsel thought the attorney appointed by the court, who took the lead in the defense, was a good lawyer, and he found no fault with what the court appointed counsel did in the preparation or trial of the case. The privately employed attorney arrived in Roanoke only on the evening preceding the day before the 3-day trial commenced. There was no motion for a continuance, or anything to suggest that the defendant and his attorneys were not prepared for trial. Indeed, the court appointed attorney said that he had completed his preparation before the trial commenced, and there is every indication that the prisoner was fairly tried and adequately represented by his two attorneys. If someone now may think that the defense would have stood a better chance if the unwilling defendant had confessed the crime and pleaded insanity, it shows no such neglect of their client’s interest or lack of skill on the part of the attorneys as to make the proceedings so unfair that they may be said to have been wanting in due process.
The prisoner also complains that the pretrial report of the physicians who constituted the commission to examine the defendant, was submitted orally, rather than in writing. He reads Virginia’s statute as requiring a written report. If the Virginia statute did require a written report, however, the receipt of the verbal report was a procedural defect out of which no possible question of due process could arise.
These and other contentions of the prisoner are more fully considered in the two opinions of the District Court, where the facts are fully set forth. For the reasons stated by the District Judge in those opinions and because of what we have here said, we think the District Court properly discharged the writ.
Because the prisoner is under a sentence of death, this Court, as the District Court, has sought to give the prisoner opportunity to develop every possible contention, however baseless it may seem. The result has not disclosed a basis upon which a federal court may issue a writ, but the proceedings in the District Court have developed medical testimony which is much more complete and revealing than the oral report which the state trial court received. Out of this additional evidence there may arise a moral question as to whether Virginia should take the life of a man having the deficiencies this prisoner is said to have. Any such question may properly be addressed to Virginia’s Chief Executive.
Moreover, should it be claimed that, aside from his mental condition at any earlier time, the prisoner is now so deficient in his faculties that it would amount to a denial of due process to execute him, Virginia’s statutes give him an opportunity to raise the question. The possibility that such questions, cognizable in proceedings in Virginia, may be present has no bearing upon our consideration of the adequacy of prior state court proceedings under constitutional standards, with which, alone, we are concerned.
Affirmed.
. Snider v. Smyth, D.C.E.D.Va., 187 F.Supp. 299.
. Snider v. Smyth, 4 Cir. 263 F.2d 372.
. Snider v. Smyth, D.C.E.D.Va., 187 F.Supp. 299.
. Lucas v. Commonwealth, 201 Va. 599, 112 S.E.2d 915.
. Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377; Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83; But see Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61.
. The medical evidence in the District Court suggests little or no control of his sex urges in the presence of a female under his control in a secluded place. The doctors all agree he could and did control ■ such urges in the presence of others. The testimony at the trial was that he forced a little girl into liis automobile after blocking her passage through an alley in Koanoke. He then drove to a secluded spot where the attack occurred. En route he had compelled her to commit certain acts for the purpose of exciting his genitals. The circumstances suggest that the crime was planned at a time when his controls were not at their lowest. These facts make the defense that he acted on an irresistible impulse less ap- . propriate than it might have been had he first encountered the child under other circumstances.
. Michel v. State of Louisiana, 350 U.S. 91, 70 S.Ct. 158, 100 L.Ed. 83; Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377.
. It is very doubtful that the Virginia statute does require a written report unless the examination is followed by a commitment.
. Hebert v. State of Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270; Rogers v. Peck, 199 U.S. 425, 26 S.Ct. 87, 50 L.Ed. 250.
. See Solesbee v. Balkcom, Warden, 339 U.S. 9, 14, 70 S.Ct. 457, 94 L.Ed. 604 (dissenting opinion of Mr. Justice Frankfurter) ; Caritativo v. People of State of California, 357 U.S. 549, 550, 552, 78 S.Ct. 1263, 2 L.Ed.2d 1531; Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494; Nobles v. State of Georgia, 168 U.S. 398, 405, et seq., 18 S.Ct. 87, 42 L.Ed. 515.
. Code of Virginia, 1950, as revised, 1960 § 19.1-235.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_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
SPRAGUE et al. v. WOLL, U. S. Atty. (INTERSTATE COMMERCE COMMISSION et al., Interveners).
No. 7674.
Circuit Court of Appeals, Seventh Circuit.
Dec. 9, 1941.
Robert E. Quirk, of Washington, D. C., B. P. Alschuler, and Glenn T. Johnson, both of Aurora, Ill., and Frederick E. Stout, of Chicago, Ill., for appellants.
Leo J. Hassenauer, of Chicago, Ill., and Daniel W. Knowlton, Nelson Thomas, and Robert L. Stern, all of Washington, D. C., Thurman Arnold, Asst. Atty. Gen., and J. Albert Woll, U. S. Atty., of Chicago, Ill., for appellees.
Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Petitioners, receivers for the Chicago, Aurora and Elgin Railroad Company, applied to the District Court for an injunction against enforcement of the Railway Labor Act by the United States Attorney. The Interstate Commerce Commission and certain unions intervened. The complaint was based upon the averment that an order of the Commission to the effect that the railroad is not exempt from but is subject to the Railway Labor Act is unlawful, arbitrary and capricious and unsupported by substantial evidence. The court found to the contrary and dismissed the complaint; the receivers appeal.
The Act, 45 U.S.C.A. §§ 151-163, exempts certain railways from the definition of carriers subject to the act in the following proviso: “* * * Provided,-however, That the term ‘carrier’ shall not include any street, interurban, or suburban electric railway, unless such railway is operating as a part of a general steam-railroad system of transportation, but shall not exclude any part of the general steam-railroad system of transportation, now or hereafter operated by any other motive power. The Interstate Commerce Commission is hereby authorized and directed upon request of the Mediation Board or upon complaint of any party interested to determine after hearing whether any line operated by electric power falls within the terms of the proviso.” Upon due hearing, the Commission found that the railroad did not fall within the exemption and that it was “something more than an interurban electric railway” and properly a part of the general steam-railroad system of transportation.
Our function is defined by the Supreme Court in Shields v. Utah Idaho Central Railroad Company, 305 U.S. 177, 59 S. Ct. 160, 83 L.Ed. Ill, as follows: “The condition which Congress imposed was that the Commission should make its determination after hearing. There is no question that the Commission did give a hearing. Respondent appeared and the evidence which it offered was received and considered. The sole remaining question would be whether the Commission in arriving at its determination departed from the applicable rules of law and whether its finding had a basis in substantial evidence or was arbitrary and capricious. That question must be determined upon the evidence produced before the Commission.”
The undisputed facts follow. The railroad is an electric railway. Its main line extends from Chicago through Wheaton to Aurora and Elgin with short branches to other towns. Total mileage, with yards and sidings, is 117.22. The right-of-way is private and does not run over city streets. The company has 71 freight team and industrial tracks with a freight-car capacity of 976. A substantial portion of the line operates under standard railroad block-signal system. For about six miles within the city of Chicago the road operates over an elevated structure. Except for this and an inconsiderably short mileage at the other end of the line at Aurora, standard steam-railroad equipment may be and is operated over the tracks. Sixty miles are laid with 100-pounds rail, the balance with 80 or more pounds rail. There are two curves of 100 feet radius on the main line, but these are near the end of the line in Aurora. No grade exceeds two per cent. The electric locomotives can haul freight trains of from 12 to 28 cars, the trains usually being 6 to 18 cars long. Inspections of the locomotives are reported to the Commission under the Locomotive Inspection Act, 45 U.S.C.A. § 22 et seq. The company operates also baggage-type motor cars which haul from 4 to 7 cars of freight each. Passenger trains usually contain 2 or 3 cars but sometimes as many as 8. Carload freight is handled by both electric locomotives and baggage-type motor cars in standard steam-railroad cars which are repaired in its own shops.
The company has track connections for interchange of freight cars with 9 steam railroads and through its connection with 2 steam belt lines, it may deliver to or receive freight from every railroad operating in and out of Chicago. Upon its own lines it furnishes switching service to some 35 different industries. It participates in 207 tariffs as initial carrier and in 766 joint tariffs as intermediate or delivering carrier. These tariffs cover movement of interstate freight of all kinds to, from and between all sections of the United States and Canada. It maintains freight solicitors in Kansas City, Missouri, Lakewood, Ohio, Washington, D. C. and Portland, Oregon.
In 1937 it did a state and interstate freight business aggregating $168,000, handling 8,237 carloads of which 3,907 were intrastate and 4,330 interstate. Of these it handled 3,664 as intermediate carrier; 7,142 were exchanged with other lines. The company derives considerably greater revenue from its passenger traffic operating daily into and out of Chicago than from its freight business.
From these and other facts presented the Commission concluded that the railroad is engaged in the general transportation of freight; that it is immaterial whether the revenue from freight is greater than that from its passenger traffic; that handling of freight in standard equipment similar to that used by steam railroads, which it freely interchanges with the steam railroads for transportation to or from points on their lines, a considerable portion thereof being in interstate or foreign commerce and participating in joint rates with steam railroads for interstate transportation demonstrate activities possessing more “of the characteristics of a commercial railroad operated by electric power” than an “interurban” as that term is used in the exemption provision of the statute; that the traffic of the carrier is not local in character or largely dissociated from the steam railroads of the country; that the railroad has all of the characteristics of a commercial railroad operated by electric power and that the receivers are operating the line as more that a “street, suburban or interurban electric railway” and actually as a part of the general steam-railroad system of transportation so as to exclude it from exemption proviso.
The District Court believed that the facts related, together with others in the record, furnished substantial evidence to support the finding and order of the Commission.
Similar issues have arisen in Texas Electric Ry. Co. v. Eastus, D.C., 25 F.Supp. 825; affirmed 308 U.S. 512, 60 S.Ct. 134, 84 L.Ed. 437; Sprague, Receiver v. Woll, 7 Cir., 122 F.2d 128; Chicago South Shore & South Bend R. Co. v. Fleming, 7 Cir., 109 F.2d 419, in each of which the order of the Commission has been approved. What is said in each of those opinions seems to us of pertinent and controlling effect here. In Texas Electric R. Co. v. Eastus, D.C., 25 F.Supp. 825, the court at some length pointed out the facts supporting the finding and order of the Commission and approved its conclusion. The decision was affirmed by the Supreme Court without opinion, 308 U.S. 512, 60 S.Ct. 134, 84 L.Ed. 437, upon Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111 and other cases cited. The facts here we believe are not to be distinguished from those there. The Texas’ percentage of freight revenue was greater than that here but the volume of freight business there was less than that of the Aurora. The freight revenue per mile of the Aurora is greater than that of the Texas case. The number of cars handled as intermediate carrier between steam-lines by the Aurora exceeds that of the Texas. The Aurora participates in 950 tariffs as compared to 247 for the Texas. The rails of the Aurora are heavier than those of the Texas. None of these facts is sufficient to distinguish this from the Texas case or to make applicable any rule of law other than that announced there. Consequently affirmance of that decision by the Supreme Court is decisive of the issue presented to us.
We further agree with the Commission’s conclusion' that the railroad is operating as a part of the general steam-railroad system of transportation. It is not necessary, of course, that there be financial connection between the electric and the steam railroads to bring a railroad company within the statute. It is the actual physical connection which is of persuasive weight. If there were no physical connections, there could be no uninterrupted interstate carriage. Where two carriers are physically joined continuous movement of freight follows. Such freight business has no connection with passenger business, is independent thereof and arises from a separate and distinct line of carrier endeavor. The second clause of the exemption provides that it shall not apply to any part of “the general steam-railroad system of transportation now or hereafter operated by any other motor power.”
Inasmuch as the finding and order of the Commission were entered after complete hearing upon substantial evidence which supports them and the Commission has committed no legal error in its interpretation of the statute, as construed by the Supreme Court, the judgment of the District Court is affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_crossapp
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
Joseph E. SLEEMAN, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.
No. 18534.
United States Court of Appeals Sixth Circuit.
July 25, 1969.
Paul O. Strawhecker, Grand Rapids, Mich., for appellant, Robert A. Straub, Detroit, Mich., on the brief.
F. William McKee, Grand Rapids, Mich., for appellee, Rhoades, McKee & Boer, Grand Rapids, Mich., on the brief.
Before PHILLIPS, EDWARDS and PECK, Circuit Judges.
EDWARDS, Circuit Judge.
Appellant, Chesapeake and Ohio Railway Co., appeals from an award of damages entered in favor of an employee, Joseph Sleeman, after a trial under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (1964), before a District Judge in the Western District of Michigan.
The first and principal contention is that contrary to Sleeman’s argument and the findings of the District Judge, the design and lighting of the parking lot owned by appellant railroad where Sleeman was injured did not play any part at all in his injury.
Sleeman was injured by being struck by a privately-owned mail truck as it was leaving the C & 0 station in Grand Rapids. At the time he was on duty as an assistant coach foreman working the night shift. It was raining hard when Sleeman attempted at about 5:50 a. m. to go from a coach to his car in the station parking lot, and thence to his office in the coach yard. As he was crossing an area of the parking lot in front of the C & O station which was used by both pedestrian and vehicular traffic, he was struck by the mail truck. Sleeman testified that he had looked and had seen the mail truck, but had judged that it would pass behind him and that he continued across the area without looking again until the instant of impact. The impact occurred in the left-hand portion of the vehicular accessway, viewed from the point of view of the driver of the truck.
Plaintiff presented evidence, including an expert on design of parking lots, which tended to establish that the lighting of the C & O lot at the point of injury was below nationally recognized standards and that the design of the lot failed by layout or markings to define either vehicular or pedestrian lanes.
The Federal Employers’ Liability Act provides in part:
“Every common carrier * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 45 U.S.C. § 51 (1964).
The Supreme Court has interpreted this language as follows:
“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due ‘in whole or in part’ to its negligence. (Emphasis added.)
“The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.” Rogers v. Missouri Pacific R. R., 352 U.S. 500, 506-507, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957). (Footnotes omitted.)
The District Judge was the trier of the facts in this case. We think there was evidence before him from which he could have concluded that the C & O was negligent because of inadequate lighting and failure in any manner to define either vehicular or pedestrian traffic lanes in its parking lot. We cannot say that the “employer’s negligence [did not] play * * * any part, even the slightest, in producing the injury.” Rogers v. Missouri Pacific R. R., 352 U.S. 500, 506, 77 S.Ct. 443, 448 (1957).
Appellant also contends that the District Judge erred in finding plaintiff Sleeman not guilty of contributory negligence because “the undisputed proof” was contrary. Where, however, an area of irregular shape is created for public use by vehicles and pedestrians and there is no definition of the driveway, we cannot hold as a matter of law that Sleeman’s conduct on the night in question was contrary to that of an ordinarily prudent person. Cf. Ware v. Nelson, 351 Mich. 390, 88 N.W.2d 524 (1958).
Appellant did not timely file a request for a jury trial. We find no abuse of judicial discretion in the District Judge’s denial of appellant’s belated demand for jury trial. Nor do we find such abuse in the grant of separate trial in C & O’s suit for contribution against the truck driver and owner.
No other appellate issues of substance are presented, except for one dealing with damages.
The District Judge did, as appellant asserts, decide to award damages without reducing them to present worth. He did so because he held that inflationary trends would offset any present worth reduction. See Gowdy v. United States, 271 F.Supp. 733 (W.D.Mich. 1967).
Damages in an FELA case are governed by federal law:
“[T]he proper measure of damages is inseparably connected with the right of action, and in eases arising under the Federal Employers’ Liability Act it must be settled according to general principles of law as administered in the Federal courts.” Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916).
This same case provides:
“[I]n computing damages recoverable for the deprivation of future benefits, the principle of limiting the recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money; in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only.” Chesapeake & Ohio Ry. v. Kelly, supra at 491, 36 S.Ct. at 632.
To date Chesapeake & Ohio Ry. v. Kelly has not been amended or overruled, and it was error to fail to apply it to the computation of future earnings.
As to the inflationary trend offset, this record provides no evidentiary basis for the decision of the District Judge. Gowdy v. United States, supra, in which the District Judge arrived at the same conclusion after hearing some economic testimony is not authority for the offset in this case, since it has been reversed on other grounds. Gowdy v. United States, 412 F.2d 525 (6th Cir.1969) Nor do we encourage the trial courts of our circuit to explore such speculative influences on future damages as inflation and deflation.
Of course, the nation’s economic history since the 1930’s would appear to make the use of present wages as the standard for loss of future earnings somewhat unfair to plaintiffs. But as to the future, the inflation versus deflation debate rages inconclusively at the highest policy levels of our government, in national electoral campaigns, in learned economic journals and is exemplified in the daily gyrations of the stock markets. The debate seems unlikely to be resolved satisfactorily in one personal injury trial. And if testimonal resolution of this factor bearing on the future is attempted, the door is opened to similarly speculative and debatable offsets tending in other directions. See McWeeney v. New York, N. H. & H. R. R., 282 F.2d 34 (2d Cir.1960).
Harper" & James accurately describes the past history of this debate and the present prevailing view:
“Future trends in the value of money are necessarily unknown and so always render such damages speculative in a way we cannot escape. If the estimates represent a straight-line projection of present living costs, they will be frustrated by fluctuations either way. If prophecy of change is heeded, frustration will follow if no change, or the opposite change, occurs. When courts have consciously grappled with the problem they have either found all prophecy too speculative and so, perforce, have taken the equally speculative course of betting on a continuance of the status quo; or they have made intuitive and not always very wise judgments that present conditions represent a departure from some imaginary norm to which they think we shall rapidly return. It is not at all clear that courts would be willing to hear experts on the matter, or that they would get much real help if they did. For the most part the problem —which is inevitably present in every case of future loss — is not analyzed and the present value of money is assumed to be the proper basis.” II F. Harper & F. James, The Law of Torts § 25.11 (1956). (Footnotes omitted.)
Sleeman’s injuries were severe and there was evidence that they would have permanent effect. The award (save for the present worth issue) is justified by the evidence and certainly does not shock our conscience.
The judgment of the District Court on issues of liability and damage is affirmed, except as noted. The judgment is vacated and remanded for recpmputation of damages for future earnings based on the present worth formula of Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117 (1916).
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer:
|
songer_direct1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
W. E. HEDGER TRANSP. CORPORATION et al. v. IRA S. BUSHEY & SONS, Inc.
No. 252.
Circuit Court of Appeals, Second Circuit.
April 30, 1946.
Rehearing Denied May 23,1946.
Horace M. Gray, of New York City, for appellants.
Christopher E. Heckman and Foley & Martin, all of New York City, for ap-pellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
L. HAND, Circuit Judge.
The plaintiffs appeal from a. judgment, dismissing their complaint for lack of jurisdiction over the subject matter appearing upon its face. The Hedger Company is a New York corporation, and so is the Bushey Company; the plaintiff, Hedger, is a citizen of New Jersey, and owns all the shares of the Hedger Company. The complaint alleged that in July, 1932, Hedger and the Bushey Company agreed upon the joint operation of barges and tugs in New York Harbor; and that in December, 1938, the Bushey Company asserted that the Hedger Company owed it about $400,000, as a result of the venture up to that time. The Bushey Company thereupon transferred the barges and tugs to the Hedger Company for $200,000,, taking in payment a mortgage for $600,000, made up of the debt and the purchase price. In July, 1942, the Hedger Company executed a second mortgage for about $100,000; and on February 10, 1945, the Bushey Company brought a suit in the admiralty in the Eastern District of New York to foreclose these mortgages for a deficiency of about $74,-000; in which a decree of foreclosure was entered on March 8, 1945, upon consent of the Hedger Company. The gravamen of the complaint, which was filed on April 4, 1945, is that the plaintiffs were forced to consent to the foreclosure because the Bushey Company threatened to seize the vessels and ruin their business, since such a seizure would have resulted in the vessels’ remaining idle while the suit was being tried. The complaint alleged that in fact nothing was due upon the mortgages, as an accounting would show; but, since the account would have taken a long time to state, the plaintiffs' could not afford to wait, and were forced to pay the demand under duréss. This constituted a ground for vacating the decree and demanding an accounting. The complaint also alleged incidental damages of $30,000 arising from the seizure, and a return of two payments of $4,900 each, paid by the Hedger Company upon the mortgages under a mutual mistake of fact. The judge dismissed the complaint on the ground that the only relief open to the plaintiffs was by a “libel of review” in the foreclosure suit; and that for that reason the district court had no jurisdiction in an ancillary action in the nature of a suit in equity.
We have jurisdiction over the appeal, because the judgment finally disposed of the action, although it left it open to the plaintiffs to bring a “libel of review,” or any other proceeding in the foreclosure suit which they might think best. This the plaintiffs refuse to do, because they believe that they cannot secure the necessary relief in the foreclosure suit, even if the decree were vacated. Hence they insist that an ancillary suit lies in equity without the necessary diversity of citizenship. We think that all the relief which the district court had jurisdiction to grant in any form will be open in the foreclosure suit, if the decree is vacated; and that the complaint should have been treated as a petition in that suit to that end, and should not have been dismissed for what was at worst only a defect of form. We do not understand why anything more was necessary than such a petition: that is, why it was necessary, or indeed proper, to resort to a “libel of review.” Rule 5 of the Rules of the District Court for the Eastern District of New York extends each term for ninety days from the entry of the judgment, so that on April 4, 1945, when the complaint was filed, the plaintiffs might have moved directly in the foreclosure suit itself. A “libel of review,” like its analogue a “bill of review” in equity, will lie only when other relief is not open to the party aggrieved. However, since this, as we have said, is only matter of form, it should be disregarded, unless there are matters of substance, which demand an ancillary suit. The plaintiffs insist that there were two such matters: first, a court of admiralty has no power to grant all the relief to which they will be entitled; and second, the grant of a petition to vacate the decree rests in the discretion of the district court. We shall consider these objections in that order.
Before the decree of foreclosure can be vacated, the question must be answered whether the Hedger Company owed the Bushey Company the amount which it actually paid. We assume that this will require an accounting, and the first question is whether it may be had in the foreclosure suit. It is true that a court of admiralty will not entertain a suit for an accounting as such: as, for example, an accounting between co-owners of a vessel, or between maritime adventurers, or between principal and agent, and so on. The Steamboat Orleans, 11 Pet. 175, 182, 9 L.Ed. 677; Minturn v. Maynard, 17 How. 477, 15 L.Ed. 235; Vandewater v. Mills, 19 How. 85, 92, 15 L.Ed. 554; Grant v. Poillon, 20 How. 162, 15 L.Ed. 871; Ward v. Thompson, 22 How. 330, 16 L.Ed. 249; The Larch, Fed. Cas.No.8,085; The Zillah May, D.C., 221 Fed. 1016; The Red Wing, D.C., 10 F.2d 389. (It may be doubted whether Metropolitan S. S. Co. v. Pacific-Alaska Nav. Co., D.C., 260 Fed. 973, is in accord with these decisions.) Nevertheless, it has never been true, when an accounting is necessary to the complete adjustment of rights over which admiralty has independent jurisdiction, that it will suspend its remedies midway and require the parties to resort to another court. Thus, when an accounting was necessary to determine a fisherman’s “lay,” or share of the catch, Lowell, J., entertained the suit, although the statute passed for that purpose — R. S. § 4391, 46 U.S.C.A. § 531 — did not apply. The Carrier Dove, D.C., 93 F. 978. In The I. S. E. No. 2, 15 F.2d 749, the Ninth Circuit took jurisdiction in a similar case without noticing the statute. On the other hand in 1830 in The Fair Play, Fed.Cas.No.4,615, Betts, J., refused to entertain the libel of a seaman for wages which involved an accounting, and Mr. Justice Thompson affirmed the decree; but the libel was in rem and the actual decision was merely that a seaman’s lien for wages is only for an “adjusted balance.” It is only fair to add, however, that Judge Betts thought even a libel in personam “exceedingly doubtful.” In The John E. Mulford, D.C., 18 F. 455, one part owner filed a libel for the sale of the vessel and partition of the proceeds, as an incident to which Judge Brown entertained an accounting against the parties who had operated the vessel before the sale. He put his decision upon the ground that, although a suit for an accounting alone would not have lain between the parties, when an accounting became necessary to the winding up of a suit over which the admiralty had independent jurisdiction, the court would state the account. For this he relied in part upon the opinion of Judge Ware in The Larch, Fed.Cas.No.8,086. Although Mr. Justice Curtis reversed that decree in The Larch, supra, Fed.Cas.No.8,085, it was because he did not think that admiralty had jurisdiction over the principal controversy. Judge Cross followed Judge Brown in The Emma B., D.C., 140 F. 771; and Judge Cushman recognized the doctrine in The Zillah May, supra, D.C., 221 F. 1016. Clearly a court of admiralty at times must state accounts as an incident to the disposition of suits within its cognizance: general average is one instance, and salvage is another. In the case at bar the foreclosure suit was brought under § 951 of Title 46, U.S.C.A., and it would be impossible to enforce the statute, if the suit must be halted every time a question of accounting arose as to the amount due upon the mortgage.
We have no doubt therefore of the power of the admiralty to state the account between the mortgagor and the mortgagee at bar, had the issue arisen in the foreclosure suit itself; and also no doubt of its power to state it upon the issue whether the decree should now be vacated. The same is true as to the restitution of any balance which, after stating the account, the court may find to have been an overpayment by the Hedger Company to the Bushey Company, extorted by duress, or abuse of process; no ancillary action is • necessary for that purpose. The same is not, however, true as to any damages which may have been caused by abuse of process, as alleged in the 67th Article of the complaint. The recovery of these would be a separate cause of action; they would result from a tort, over which the admiralty would have no jurisdiction. Restatement of Torts, § 682. Such a tort is as little “ancillary” to the foreclosure suit, when asserted by a bill in equity, as in the foreclosure suit itself. Since the district court has no independent jurisdiction over that controversy, the plaintiffs must be relegated to the state court for relief; for this cause of action is not within Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, assuming that that doctrine applies to a suit in admiralty, which we do not decide. The same is true of the payments, alleged in the 68th and 69th Articles of the complaint to have been made under a mutual mistake of fact. They will of course figure in the account of what is due under the mortgage, but as ground for an affirmative recovery they are as separate causes of action as the claim for damages caused by the putative abuse of process. In respect to these claims the complaint must be dismissed for lack of jurisdiction.
There remains the plaintiffs’ second ground: that the relief possible in an ancillary suit in equity will not be discretionary, like that under a petition to vacate the decree in the foreclosure suit itself. That is indeed a strange argument. The discretionary nature of the jurisdiction to vacate a decree once entered, is designed to prevent too ready unravelling of judgments; it is to avoid putting a premium upon continued litigation, and to promote considerateness in judicial decision. The fact that the same relief is demanded by a separate action can make not the slightest difference in that hesitation which the court should feel at vacating a judgment. Precisely the same considerations are relevant; and they have precisely the same weight. Indeed, more answer to the argument seems hardly necessary than to remember that, in order to lie at all, such a bill in equity must be “ancillary” to the foreclosure suit.
What we have said disposes of the appeal, so far as concerns the Hedger Company, but not as to Hedger individually. Since he is a citizen of New Jersey, the district court would have had substantive jurisdiction of the action as to him, had he sued alone; but since he joined the Hedger Company, rated as a citizen of New York, he deprived the court of jurisdiction based upon diverse citizenship. Strawbridge v. Curtis, 3 Cranch 267, 2 L.Ed. 435. Clearly he could not join in a petition to vacate the decree in the foreclosure suit. The judgment of dismissal for lack of jurisdiction over the subject matter will therefore be affirmed as to him. It will, however, be reversed in favor of the Hedger Company and the cause will be remanded with instructions to treat the complaint as a petition in the foreclosure suit to reopen the decree upon the grounds therein alleged, on whose sufficiency, however, we are not to be understood to pass. Our decision is no more than that the admiralty court had jurisdiction in the foreclosure suit to give all the relief that the district court had power to give in any capacity, and that it was possible and proper to treat the complaint as a petition in that suit for all such relief, though for no other relief.
At the risk of repetition and in the interest of clarity we will recapitulate what we decide.
(1) The judgment will be affirmed as against Hedger, individually.
(2) The judgment will be reversed as to the Hedger Company.
(3) The complaint will be treated as a petition in the foreclosure suit to vacate the decree of foreclosure upon the grounds which it alleges.
(4) The admiralty court has jurisdiction to state the account between the parties, and to fix the amount due upon the mortgage, if any; also to direct restitution of any sum which the mortgagee may be found to have collected from the mortgagor in excess of that amount.
(5) The complaint will be dismissed for lack of jurisdiction as to any relief which could be granted under the allegations of the 67th, 68th, and 69th Articles.
(6) No costs will be awarded on this appeal.
Judgment reversed; and cause remanded for further proceedings consistent with the foregoing.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_opinstat
|
A
|
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.
Tom STONE, Appellant, v. UNITED STATES of America, Appellee.
No. 16563.
United States Court oí Appeals Eighth Circuit.
Jan. 13, 1961.
Albert V. Hass, Chariton, Iowa, for appellant.
Conrad A. Amend, Asst. U. S. Atty., Des Moines, Iowa, for appellee; Roy W. Meadows, U. S. Atty., and Richard J. Wells, Asst. U. S. Atty., Des Moines, Iowa, on the brief.
Before VOGEL and BLACKMUN, Circuit Judges, and DAVIES, District Judge.
RONALD N. DAVIES, District Judge.
This is an appeal by the defendant, Tom Stone, from a summary judgment entered against him in the United States District Court for Southern Iowa. The action was commenced by the United States of America to recover damages from the defendant based upon monies erroneously paid to him for the 1955 marketing year as incentive payments under the National Wool Act of 1954 (7 U.S.C.A. § 1781 et seq.). The complaint was in four counts, the first two seeking recovery under the False Claim Act (31 U.S.C.A. § 231 and § 232) and the third and fourth counts, after amendment, seeking recovery based upon mistake of fact or law. Jurisdiction is conferred by 28 U.S.C.A. § 1345.
The trial court granted summary judgment for the plaintiff on Counts Three and Four and certified under Rule 54(b), F.R.Civ.P., 28 U.S.C.A., that final judgment be entered in favor of the plaintiff, thus making it appealable.
The defendant Stone had been in the wool producing business for many years prior to 1955 on farms owned or leased by him in Lucas County, Iowa. He had also been a wool buyer and operated a wool house in Chariton, Iowa, which he called the Tom Stone Cordage Company. Sometime during 1955 the defendant inquired of one Guilford F. Davis, the Lucas County A.S.C. office manager, what was necessary for him to do in order to qualify for payments under the wool program instituted by the United States Department of Agriculture. Davis informed defendant that he would have to sell his wool before March 31, 1956, and that his application for payments must be supported by sales invoices made out at the time of sale showing the quantity of wool, date of sale, price and the signature of the buyer. The defendant then inquired whether he could sell the wool shorn from sheep on his farms to his wool house, the Tom Stone Cordage Company. Davis advised the defendant that such sales would qualify provided bona fide evidence showed the sales from defendant’s farms to the cordage company defendant owned.
On two occasions in 1955 defendant filed in Lucas County A.S.C. office applications for incentive payments (CCC Wool Form 46) and the original sales documents evidencing the wool sales as required by the regulations. (6 C.F.R. Sec. 472.600 et seq.; 20 F.R. 2011.) The transactions as shown by the sales tickets were sales in which the defendant acted both as seller and buyer. These purported sales do not, of course, constitute sales within the meaning of the Wool Act and regulations implementing the Act, nor does the defendant so contend, but he argues that summary judgment should not have been granted against him, insisting there were issues of fact for determination.
The National Wool Act of 1954 provided that the Secretary of Agriculture should support the prices of wool and mohair, respectively, to the producers thereof by means of loans, purchases, payments or other operations, through the Commodity Credit Corporation. 7 U.S. C.A. § 1782.
Defendant contends that when Congress chartered the Commodity Credit Corporation and gave it power to sue or be sued, governmental immunity was waived; and that when the Corporation engages in private litigation, the Court should view the controversy in the same manner it would between private litigants; and that if the United States substitutes itself as the real party in interest, no greater advantages would inure. It is then argued that the defense of estoppel was available to the defendant against the United States by reason of the alleged acts and advice of the representative of Commodity Credit Corporation upon which the defendant relied; and further, that the defendant should have been allowed to show that the United States had not been damaged to the full extent of the incentive payments and that defendant had an equitable right to retain the payments based upon his ultimate marketing of the same wool during the marketing year, which ultimate marketing met the requirements of the Wool Incentive Program and which would have entitled defendant to incentive payments had he made application instead of relying on plaintiff’s agent.
The defendant’s contention that Commodity Credit Corporation and the United States are not one and the same when the Corporation is involved in litigation is rejected on the basis of the holding in Rainwater v. United States, 356 U.S. 590, 591, 592, 78 S.Ct. 946, 948 2 L.Ed.2d 996:
“Commodity is an ‘agency and instrumentality of the United States, within the Department of Agriculture, subject to the general supervision and direction of the Secretary of Agriculture.’ It was created by Congress to support farm prices and to assist in maintaining and distributing adequate supplies of agricultural commodities. Its capital was provided by congressional appropriation. Any impairment of this capital, which at times has been great due to the nature of its activities, is replaced out of the public treasury; any gains are returned to that treasury. All of its officers and other personnel are employees of the Department of Agriculture and are compensated as such. Like other government corporations, Commodity is subject to the provisions of the Government Corporation Control Act which provides such close budgetary, auditing and fiscal controls that little more than a corporate name remains to distinguish it from the ordinary government agency. In brief, Commodity is simply an administrative device established by Congress for the purpose of carrying out federal farm programs with public funds.” (Emphasis supplied.)
Moreover, as it was so aptly stated in Reconstruction Finance Corp. v. Tuolumne Gold Dredging Corp., D.C., 137 F.Supp. 855, 857, affirmed, Walter W. Johnson Co. v. R. F. C., 9 Cir., 230 F.2d 479, certiorari denied 352 U.S. 832, 77 S.Ct. 48, 1 L.Ed.2d 52:
“Courts administer justice, not alms. As has so often happened in recent years both in international and intranational affairs, the United States is here being asked to pay for the misadventure or the improvidence of others.
“[1] Fortunately, however, we have a Supreme Court that is steadily moving away from this eleemosynary philosophy of government. In Federal Crop Insurance Corporation v. Merrill, 1947, 332 U.S. 380, 383-384, 68 S.Ct. 1, 3, 92 L.Ed. 10, the Court said:
“ ‘It is too late in the day to urge that the Government is just another private litigant, for purposes of charging it with liability, whenever it takes over a business theretofore conducted by private enterprise or engages in competition with private ventures. Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it. The Government may carry on its operations through conventional executive agencies or through corporate forms especially created for defined ends. See Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 390, 59 S.Ct. 516, 518, 83 L.Ed. 784. Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority. (Cases cited.)’ ”
Where monies are erroneously paid by agents of the United States, whether the error be one of fact or of law, the Government may always recover the money improperly paid. United States v. Wurts, 303 U.S. 414, 58 S.Ct. 637, 82 L.Ed. 932; Sutton v. United States, 256 U.S. 575, 41 S.Ct. 563, 65 L.Ed. 1099; Wisconsin Central R. R. Co. v. United States, 164 U.S. 190, 17 S.Ct. 45, 41 L.Ed. 399.
We then address ourselves to the defendant’s contention that Iowa court decisions hold that money may not be recovered in private litigation when paid under a simple mistake of fact unless fraud or something akin thereto is also present. This contention too we must reject since it is clear that federal rights are governed by controlling federal law.
In United States v. Independent School Dist. No. 1, 209 F.2d 578, 580, 581, United States Court of Appeals for the Tenth Circuit held:
“[2] The funds which the government seeks to recover were disbursed to a subdivision of the state under authority of federal law and in the exercise of a constitutional function. And they were paid under conditions and circumstances which raise a duty or an obligation to repay that which was mistakenly disbursed. In the performance of the constitutional function there is no express or implied disposition to subordinate correlative federal rights to state law, and no reason is suggested or apparent for conditioning the government’s rights or remedies upon state law. Whether, therefore, the asserted remedy be for money had and received or restitution for unjust enrichment, the right to recover under controlling federal law is plain.”
Finally the defendant contends that he should have been permitted to interpose the defense of estoppel. This argument is succinctly answered, we think, in Utah Power & Light Co. v. United States, 243 U.S. 389, 408, 409, 37 S.Ct. 387, 391, 61 L.Ed. 791:
“Of this it is enough to say that the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit.” (Citing cases).
See also United States v. City and County of San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050; and City and County of San Francisco v. United States, 9 Cir., 223 F.2d 737, certiorari denied 350 U.S. 903, 76 S.Ct. 181, 100 L.Ed. 793.
We conclude that the District Court properly granted plaintiff’s motion for summary judgment.
Affirmed.
. See the Commodity Credit Corporation Charter Act, 62 Stat. 1070, as amended, 15 U.S.C.A. § 714 et seq.
. See, e. g., 67 Stat. 222 ; 70 Stat. 238, 15 U.S.C.A. § 713a-10.
. 59 Stat. 597, as amended, 31 U.S.C.A. § 841 et seq.
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_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. Sinclair D. SMALL, Appellant.
No. 383, Docket 31069.
United States Court of Appeals Second Circuit.
Submitted March 23, 1967.
Decided April 14, 1967.
Herbert S. Siegal, New York City, for appellant.
John R. Bartels, Jr., Asst. U. S., Atty. (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, New York City, John A. Stichter, Asst. U. S. Atty., New York City, of counsel), for appellee.
Before MOORE and HAYS, Circuit Judges, DOOLING, District Judge.
Sitting by designation, from the Eastern District of New York.
PER CURIAM:
Appellant was convicted on two counts of receiving and concealing narcotics in violation of 21 U.S.C.A. §§ 173 and 174. At trial, narcotics seized at the time of his arrest, and narcotics seized shortly thereafter from his apartment pursuant to a warrant were received in evidence against him.
Upon a pretrial motion, appellant sought to suppress the narcotics. After a hearing, the motion was denied. Appellant claims on appeal that it was error to deny his motion because: (1) the search warrant for his apartment was based on a false affidavit and hence invalid; and (2) there was no probable cause for the arrest.
These claims grow out of a single alleged inconsistency in the testimony of agent Antonelli at the suppression hearing. Antonelli testified that he was first alerted to the activities of appellant by an informant who, in late July of 1965, told Antonelli, among other things, the make, model and license number of appellant’s car. Antonelli also testified that he confirmed that information through the New York State Bureau of Motor Vehicles in early August, 1965. On cross examination, it was revealed through an exhibit that the permanent registration for the car bearing that license number was not issued until September 3, 1965.
The search warrant was issued on the affidavit of agent Antonelli, alleging information received: (1) by personal observation; (2) from an informant in November of 1965 (a different informant from the July informant); (3) from the records of Consolidated Edison; and (4) from the files of the F.B.I.
The testimony of agent Antonelli at the suppression hearing established that he personally had observed appellant intermittently during the months of August, September, October, November and December of 1965. The observed activities together with the information received (and subsequently corroborated) from the November informant established probable cause for the arrest.
It is apparent that the alleged inconsistency described above could undermine the warrant and the arrest only by rendering Antonelli totally unbelievable as an affiant and a witness.
Antonelli’s credibility was a question for the judges below who observed his testimony. We refuse to say that a single apparent inconsistency will render everything that a witness says unbelievable as a matter of law.
Affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey JENKINS, Defendant-Appellant.
No. 89-50248.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 10, 1990.
Withdrawn from Submission Nov. 5, 1990.
Resubmitted March 20, 1991.
Withdrawn from Submission April 26, 1991.
Resubmitted May 20, 1991.
Decided July 5, 1991.
Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.
Mark C. Holscher, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before FLETCHER, BOOCHEVER and WIGGINS, Circuit Judges.
. While certain steps taken by the police after physical abuse or threats, such as removing the errant officers from the scene, assuring the suspect that he would no longer be harmed, establishing via colloquy that his fears had been eliminated, might cure a formerly coercive environment, see, e.g., Scroggy, 845 F.2d at 1392, here we find no evidence that the police acted affirmatively to dissipate the coercive environment created by their beatings and threats.
BOOCHEVER, Circuit Judge:
Jeffrey Jenkins was found guilty of possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d). He appeals, arguing that the district court erred in finding his post-arrest confessions voluntary, admitting certain evidence, and failing to give a particular jury instruction. Because we conclude that the district court erroneously admitted Jenkins’s coerced confessions, we reverse without reaching the other issues raised on appeal.
I. FACTUAL BACKGROUND
A Seattle narcotics task force was investigating Los Angeles gang members who sold narcotics in Seattle. Jenkins’s brother, Derrick Hargress, was indicted in Seattle on narcotics and firearms charges. Seattle task force members obtained a warrant to search Jenkins and Hargress’s residence in Inglewood for trafficking ledgers, firearms, narcotics, and cash.
On May 11, 1988, at 8:30 p.m., federal agents and local police officers went to Jenkins’s home to execute the warrant. The government contends that, upon approaching Jenkins who was outside the front of the house, the police identified themselves, specifically yelling, “Stop, police!” and “Freeze!” Nonetheless, Jenkins ran through a back door into the house from which he fired at the police several rounds of semi-automatic rifle fire.
Jenkins, on the other hand, testified that he never heard the police identification. Instead, Jenkins, who had been shot three times in the stomach only months earlier, believed the darkly clad men were Mexican gang members out to kill him. This testimony was corroborated at trial by two witnesses in the house at the time. Jenkins’s mother testified that her son came running in the house yelling, “Momma, Momma, they coming to get us. They come to kill us. Call 911.” She further testified that he said it looked like Mexicans. John Brewer, a family friend present at the time of the shootout, similarly testified that Jenkins said, “[n]ow they’re sending three Mexicans after me.”
There was also testimony at trial that, when Mrs. Jenkins called 911 to report the shooting, she was told “[w]e know Ma’am, we know. Just hang up. Please just hang up the phone.” Ms. Jenkins testified that the police dispatcher did not say that the police were there, or that they were being shot at. Consequently, she told Jenkins the police “should be on their way.” Thereafter, the police called the house. Ms. Jenkins was told by the officer to “[t]ell [Jenkins] to come out the front door with his hands up.” She testified that, when told, her son immediately placed his rifle on the bed and complied, while she remained on the line as ordered. Ms. Jenkins, her granddaughter, and Brewer also exited the house as instructed. Jenkins, Ms. Jenkins, and Brewer were arrested and taken to the police station. Jenkins was beaten and threatened with death by the police during and after his arrest. See infra, Section II.
In the meantime, the officers searched the house pursuant to the warrant. On the bed in Jenkins’s bedroom they found the AR-15 rifle which Jenkins had fired at police. A sawed-off shotgun and a .38 caliber revolver were found under the mattress. Police also found three other firearms. All six were loaded.
At the police station, Jenkins complained of abdominal pain related to his prior gunshot wounds, allegedly exacerbated by the police beating. He was taken to the hospital and subsequently returned to the police station at about 2:00 a.m. where an Inglewood police officer, Detective Lawrence Marino, questioned him. After receiving his Miranda warnings and waiving his rights, Jenkins admitted, among other things, owning the sawed-off shotgun.
Five hours later, allegedly having had no sleep, Jenkins was interviewed again, this time by a detective of the Seattle Police Department. Jenkins again waived his rights and again admitted owning the sawed-off shotgun. At the end of the interview, the detective asked Jenkins if he would like to make a formal statement, and Jenkins replied that he would rather not.
An indictment charged Jenkins with four counts of attempted murder of a federal agent, four counts of assault on a federal agent, use of a firearm during a crime of violence, and possession of an unregistered sawed-off shotgun. Before trial, Jenkins filed both a motion to suppress his statements and a motion to suppress evidence that he possessed the firearms, contending that his admissions were coerced. The district court denied the motions.
The jury acquitted Jenkins of all but the sawed-off shotgun possession charge, presumably accepting the reasonableness of his belief, under the circumstances, that he was firing in self-defense at Mexican gang members. This appeal followed.
II. PROCEDURAL HISTORY
In appellant’s brief and at oral argument, Jenkins’s counsel argued that the district court erred in concluding that Jenkins’s post-arrest statements were voluntary because there was unrefuted testimony that Jenkins had been beaten and threatened by the police. Because the district court found the statements voluntary without making specific findings with respect to Jenkins’s claims, we withdrew submission of the case and remanded to the district court for specific findings.
The district court found that upon exiting the house as ordered, Jenkins was thrown to the ground and repeatedly kicked in the groin, stomach, and back by the arresting officers. It further found that an arresting officer who knew Jenkins had been recently shot said “something similar to, ‘They should have killed you, but that’s okay, we’ll do it.’ ” The court also found that, while on their way to the police station after Jenkins’s arrest, the officers stopped in the Los Angeles Forum parking lot. There they showed Jenkins a gun which they talked about planting on him, then shooting him, claiming he tried to escape. Indeed, the court found that one of the officers indicated that they could not follow through on their plan because there were some cars in the parking lot. Despite these findings, the court found the confessions voluntary.
Only days after we received the district court’s supplemental findings, the Supreme Court announced its decision in Arizona v. Fulminante, — U.S. —, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), in which, among other things, it subjected a coerced confession to harmless-error analysis. Once again we withdrew submission, this time to afford the parties an opportunity to address the impact of Fulminante on this case. Pursuant to our order for supplemental briefing, the government has candidly conceded that, should we find the confessions coerced, it would be unable to meet its burden of proving harmless error beyond a reasonable doubt.
III. DISCUSSION
On pretrial motions to suppress, and now on appeal, Jenkins claims the beatings, death threats, his fatigue, and various police inducements overbore his will, rendering involuntary his two confessions that he owned the sawed-off shotgun. Jenkins contends that, by admitting the confessions as voluntarily made, the court committed reversible error violative of due process. Because we find that the beatings and death threats alone were sufficient to make the initial confession coerced, and because we find that no amelioration of the coercive environment cured the second confession, we express no opinion about Jenkins’s fatigue and the alleged inducements. Moreover, while there is some question whether the Supreme Court meant to apply harmless-error analysis to confessions induced by physical violence or torture, our need to pass on that question is obviated by the government’s concession that, if the statements were coerced, their admission could not be proved harmless beyond a reasonable doubt.
A. VOLUNTARINESS
While it is the government’s burden to prove by a preponderance of the evidence that the two confessions were voluntary, Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972), here, it relied solely on the erroneous assumption that the district court did not believe Jenkins’s allegations of beatings and death threats. Indeed, the government all but conceded that, if the district court found Jenkins’s factual allegations true, it would have to find the confession involuntary. See Appellee’s Brief at 16 (“[Tjhere is no way the district court could have denied defendant’s motion to suppress if it believed his story of death threats, beatings and withholding of counsel.”); id. at 17 (“[I]t is abundantly clear that the court did not believe defendant’s claim that he was beaten, much less that he was threatened with murder.”); id. at 18 (“Far from ignoring defendant’s testimony, it is obvious that the court simply dismissed it as incredible.”). Thus, the government never explained why, assuming the beatings and death threats took place as the court actually found, the confession should be considered voluntary. It therefore failed to satisfy its burden of proof. Nonetheless, we feel compelled to proceed, particularly in light of the district court’s conclusion that, notwithstanding the beatings and threats, “under the totality of circumstances, [Jenkins’s] statements were voluntary.”
We accept the factual findings underlying a district court’s determination regarding the voluntariness of a confession unless clearly erroneous. United States v. Wolf, 813 F.2d 970, 974 (9th Cir.1987). However, we review de novo a district court’s ultimate conclusion that a confession was voluntary. Id. Here, the district court found that Jenkins was beaten and threatened. Seeing no clear error in these findings, we accept them and turn our attention to the legal question.
Ordinarily, to determine the volun-tariness of a confession, we consider the “totality of circumstances” surrounding it. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Thus, the question to be faced in each case is whether the defendant’s will was overborne when he confessed, Fulminante, 111 S.Ct. at 1252 n. 2, i.e., “[i]s the confession the product of an essentially free and unconstrained choice by its maker?” Id. at 1261 (Rehnquist, C.J., dissenting in part). Nevertheless, in some cases, the need for such an individual calculus is obviated by the egregiousness of the custodian’s conduct. Indeed, confessions accompanied by physical violence wrought by the police have been considered per se inadmissible. Stein v. New York, 346 U.S. 156, 182, 73 S.Ct. 1077, 1091, 97 L.Ed. 1522 (1953), overruled on other grounds by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) ; Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.1986) (noting that “per se involuntariness rule applies when an interrogation is accompanied by physical violence”), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986). See also Cooper v. Scroggy, 845 F.2d 1385, 1390 (6th Cir.1988) (“The use of physical force by interrogators creates a heavy presumption, if not a per se rule, that there has been a violation of due process.”) (citations omitted).
Such confessions properly are presumed involuntary because of, among other things, both their unreliability and the great likelihood that the use or threatened use of violence overbears a suspect’s will. As Stein noted:
Physical violence or threat of it by the custodian of a prisoner during detention serves no lawful purpose, invalidates confessions that otherwise would be convincing, and is universally condemned by the law. When present, there is no need to weigh or measure its effects on the will of the individual victim. The tendency of the innocent, as well as the guilty, to risk remote results of a false confession rather than suffer immediate pain is so strong that judges long ago found it necessary to guard against miscarriages of justice by treating any confession made concurrently with torture or threat of brutality as too untrustworthy to be received as evidence of guilt.
Stein, 346 U.S. at 182, 73 S.Ct. at 1091 (emphasis added). More recently, the Court has reinvigorated this per se approach by recognizing the importance of process-based rationale, independent of possible unreliability, for judging the voluntariness of confessions. Thus, in Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the Court called attention to its “consistently held view that the admissibility of a confession turns as much on whether the techniques for extracting the statements ... are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant’s will was in fact overborne.” Id. at 116, 106 S.Ct. at 452 (citations omitted).
Although Stein was overruled on other grounds by Jackson v. Denno, 378 U.S. 368, 391, 84 S.Ct. 1774, 1788, 12 L.Ed.2d 908 (1964), its conclusive presumption of coercion in beating cases seems as appropriate now as when it was first articulated. In no way did Denno repudiate Stein’s special rule for confessions induced by brutality. If anything, Denno merely invoked additional justifications, independent of the possible unreliability of such confessions, for forbidding their use. Thus, Denno explained that:
[i]t is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only because of the probable unreliability of confessions that are obtained in a manner deemed coercive, but also because of the “strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will,” Blackburn v. Alabama, 361 U.S. 199, 206-207 [80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960) ], and because of “the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Spano v. New York, 360 U.S. 315, 320-321 [79 S.Ct. 1202, 1205-1206, 3 L.Ed.2d 1265 (1959) ].
Denno, 378 U.S. at 385-86, 84 S.Ct. at 1785. We, therefore, agree with those courts of appeals that implicitly have decided that Stein’s per se approach survived Denno. See Scroggy, 845 F.2d at 1390; Fenton, 796 F.2d at 604.
Although we have found no cases addressing this point, it appears most likely that Stein’s per se approach is limited to those confessions made substantially concurrently with physical violence. This does not, of course, mean that only those confessions literally made during beatings are per se involuntary. Such a rule would be grossly underinclusive as “ ‘[e]ven the most brutal physical torture ... usually produces a confession, not during the actual torture but afterwards through fear of repetition.’” Jackson v. State, 209 Md. 390, 121 A.2d 242, 244 (Md.1956) (citation omitted). It would most certainly undermine one of the bedrock premises of our prohibition against coerced confessions: “ ‘that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.’ ” Fulminante, 111 S.Ct. at 1256 (quoting Rogers v. Richmond, 365 U.S. 534, 540-41, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961)). But, a rule that all confessions preceded by violence are incurable, irrespective of ameliorative circumstances, may be too rigid.
The difficulty is drawing the line between those confessions properly considered to have been made concurrently with violence, in which a conclusive presumption that one’s will is overborne is appropriate, and those sufficiently attenuated from such misconduct to justify application of the more lenient “totality of circumstances” test. Here, because the court found the confessions voluntary without articulating any reasons, we assume it relied on the time which elapsed between the police misconduct and the confessions. Indeed, because it specifically applied the “totality of circumstances” test, the court must have decided the time period sufficiently attenuated the misconduct to justify departure from the per se rule applicable to concurrent beatings. Under our de novo review, we must independently decide the effect of the time interval, and assuming the applicability of “totality of the circumstances” test, whether the confessions were voluntary.
1. The First Confession
While neither party pinpoints the timing of Jenkins’s beating and the death threat, we reasonably may assume they occurred at approximately 9:00 — 9:30 p.m. Immediately thereafter, Jenkins was taken to the Inglewood police station, and then to the hospital. Upon his return from the hospital at 2:00 a.m., he confessed to owning the unregistered shotgun.
After being both beaten, and perhaps more seriously, told of a devious plan to kill him, it is not at all surprising to us that Jenkins might have capitulated. He knew that the police brazenly had beaten him a few hours earlier. An officer had told him the police would kill him. Finally, he was taken to a parking lot where the officers unravelled to Jenkins their insidious plan. Based on these circumstances, the danger was impermissibly great that Jenkins told the police precisely what he believed they wanted to hear. See Stein, 346 U.S. at 182, 73 S.Ct. at 1091-1092 (noting “tendency of the innocent, as well as the guilty, to risk remote results of a false confession rather than suffer immediate pain ... ”); LaVallee v. Delle Rose, 410 U.S. 690, 700, 93 S.Ct. 1203, 1208, 35 L.Ed.2d 637 (1973) (referring to psychiatric testimony that defendant was probably so exhausted from his long ordeal at the hands of the police that “ ‘he would say yes if you asked him if the moon were made of green cheese.’”); People v. Berve, 51 Cal.2d 286, 290, 332 P.2d 97 (1958) (defendant had testified that, after hours of beating and death threats, he “would have agreed with anything in the world just to be let alone”). This conclusion seems even more plausible when, as far as Jenkins knew, the only reason the police did not kill him in the Forum parking lot was because of their worry they might be discovered.
The circumstances of this confession present a classic case of coercion. Defendant is beaten and threatened with death, shuttled between the hospital and jail, questioned immediately upon his return in the small hours of the morning, at which point he confesses. While it is true that Jenkins did not blurt out a confession while being beaten or threatened, there is no evidence he was even questioned at that earlier time. Instead, a brief period of time, consumed almost exclusively by his hospital treatment, passed without any curative measures aimed at dissipating the coercive environment. At the first occasion for him to capitulate, at his initial questioning, he did.
Given the circumstances of this case, we believe that the implicit threat of a repetition of the beatings and the fear that the police might make good on their twice-promised death threat were sufficient to render Jenkins’s 2:00 a.m. confession coerced. See Scroggy, 845 F.2d at 1391-92 (striking suspect and threatening him with physical abuse caused both his confession and that of his co-defendant to be stricken as involuntary). Thus, we find that the first confession was involuntary. See Autry v. McKaskle, 465 U.S. 1085, 1090, 104 S.Ct. 1458, 1462, 79 L.Ed.2d 906 (1984) (Marshall, J., dissenting from denial of cer-tiorari) (finding it “implausible that six hours of sleep could erase from petitioner’s consciousness the fear that the earlier beating must have engendered”).
We do not decide whether a confession preceded by police brutality and death threats is always involuntary, nor do we resolve the particularly fact-bound inquiry as to whether the time interval involved here should be deemed concurrent because of its brevity and the absence of intervening curative circumstances, because even under the “totality of circumstances” test we would consider this confession involuntary. Under that test, the burden of proving voluntariness after such flagrant police misconduct is, properly, substantial. In this case, it is a standard the government has failed to satisfy. Therefore, we hold the initial confession involuntary and thus violative of due process.
2. The Second Confession
Jenkins’s second confession, taken less than five hours later, suffers the same infirmity. While an initial confession, in some senses, always “lets the cat out of the bag” so that a defendant is never truly free of the disadvantages of having confessed, the Supreme Court “has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a [subsequent] usable one after those conditions have been removed.” United States v. Bayer, 331 U.S. 532, 540-41, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947). Thus, the Supreme Court has recently held that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 1297, 84 L.Ed.2d 222 (1985).
By so holding, however, Elstad made clear that subsequent confessions are not so easily purged of taint when the initial confession was truly coerced, rather than merely technically involuntary for having preceded Miranda warnings. Id. at 312, 105 S.Ct. at 1294 (“There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect’s will and the uncertain consequences of disclosure of a ‘guilty secret’ freely given in response to an unwarned but noncoercive question, as in this case.”); id. at 368-69, 105 S.Ct. at 1324 (Stevens, J., dissenting) (“As I read the Court’s opinion, it expressly accepts the proposition that routine Miranda warnings will not be sufficient to overcome the presumption of coercion and thereby make a second confession admissible when an earlier confession is tainted by coercion ‘by physical violence or other deliberate means calculated to break the suspect’s will.’ ”). In other words, by declining to treat the failure to give a Miranda warning before an initial confession as equivalent to “actual” coercion, Elstad reaffirmed that cases involving actual coercion of the initial confession require affirmative proof by the government that the taint of the earlier confession had been dissipated before the subsequent confession was taken. See United States v. Wauneka, 770 F.2d 1434, 1439-40 (9th Cir.1985).
Determining whether the taint had dissipated sufficiently is merely another way of asking whether the subsequent confession was, itself, voluntary. This inquiry “depends on the inferences as to the continuing effect of the coercive practices which may fairly be drawn from the surrounding circumstances.” Lyons v. Oklahoma, 322 U.S. 596, 602, 64 S.Ct. 1208, 1212, 88 L.Ed. 1481 (1944) (citation omitted). Specifically, we look to the temporal proximity of the coercive misconduct to the confession, the presence of intervening circumstances which attenuate and dissipate the coercive effects of that misconduct, and, particularly, the purpose and flagrancy of that misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975). As with the initial confession, it is the government’s burden to prove this confession admissible. Id. at 604, 95 S.Ct. at 2262.
Once again, the government does not meet its burden. Aside from the government making no discernible attempt to satisfy this test in its brief, our independent analysis compels the same conclusion. Not even five hours had passed between the confessions; only ten hours had passed between the actual misconduct and the second confession. Under the circumstances of this case, insufficient time passed to conclude that the taint of the lawless police misconduct had been purged, absent significant ameliorative circumstances.
But no significant intervening circumstances which might have purged the taint from the initial coerced confession have been brought to our attention. While the egregiousness of the arresting officers’ conduct may have made it difficult for the police to alleviate Jenkins’s justifiable fears, we find no evidence they tried to convince Jenkins he was now safe, and certainly none that they succeeded. See swpra, footnote 3. Indeed, Jenkins reasonably may have believed that a recantation of his initial confession might have enraged the captors he already had good reason to fear. Thus, we find that the coercive environment had not been cured by the presence of significant intervening circumstances.
Finally, Brown considered the flagrancy of police misconduct foremost in judging the voluntariness of a confession. Brown, 422 U.S. at 604, 95 S.Ct. at 2262. Here, the shocking nature of the officers’ actions similarly supports our decision that the subsequent confession was involuntary.
B. HARMLESS-ERROR ANALYSIS
Until very recently, our conclusion that Jenkins’s confessions were coerced would have ended this matter. A coerced confession would have been per se inadmissible and its erroneous admission would have required automatic reversal. See Lego, 404 U.S. at 483-87, 92 S.Ct. at 623-25; Denno, 378 U.S. at 385-86, 84 S.Ct. at 1785-86; Rogers v. Richmond, 365 U.S. at 545, 81 S.Ct. at 742; Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). See also Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 827-28 & n. 8, 17 L.Ed.2d 705 (some constitutional rights, including the prohibition against coerced confessions, are “so basic to a fair trial that their infraction can never be treated as harmless error”); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). This term, however, the Supreme Court applied harmless-error analysis to a coerced confession, in Fulminante, 111 S.Ct. 1246, 1261 (1991). Unlike this case, the coercion found in Fulminante was not in the form of beatings and death threats by the police. In fact, Chief Justice Rehnquist noted the propriety of applying harmless-error analysis to the facts of Fulminante by emphasizing, “[t]his is especially true in a case such as this one where there are no allegations of physical violence on behalf of the police.” Id. at 1266. Because the Court was not faced with facts that necessitated its passing on whether harmless-error analysis applies even to brutality-induced confessions, it is unclear whether the Court intended to reach that issue in Fulminante.
The need to resolve this vexing question here, however, is obviated by the government’s forthright concession that, if we find the confessions coerced, it cannot show admission of the confessions harmless beyond a reasonable doubt. Appellee’s Supplemental Brief at 2. We agree.
IY. CONCLUSION
Jenkins’s initial confession, coming on the heels of police beatings and death threats, was coerced. We find his second confession likewise coerced because of its close temporal proximity to the first confession, the failure of intervening circumstances to sufficiently dissipate the taint from the beatings, and the utter flagrancy of the policé lawlessness. In light of the facts of this case, and the government’s concession, we conclude that, even if harmless-error analysis were meant to apply here, a matter which we do not resolve, admission of the confessions was not harmless. The judgment of the district court is therefore
REVERSED.
. For discussion of relationship between Stein and Denno, see supra note 2 and accompanying text.
. Stein, which primarily held that tentatively submitting the issue of a confession's voluntariness to a jury with instructions to reject the confession and proceed on the basis of the other evidence should it find the confession involuntary did not violate due process, was overruled by Denno largely because Stein’s procedure of submitting voluntariness to the jury posed too great a risk that the jury would be unable to set aside completely a confession it found to be involuntary but believed truthful. Denno, 378 U.S. at 389, 84 S.Ct. at 1787.
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_opinstat
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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 whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
CARLSON v. UNITED STATES (three cases).
Nos. 4732-4734.
United States Court of Appeals First Circuit.
Jan. 7, 1954.
Joseph J. Gottlieb, Boston, Mass. (Lawrence E. Cooke, Boston, Mass., with him on brief), for appellant.
Charles F. Choate, Asst. U. S. Atty., Boston, Mass. (Anthony Julian, U. S. Atty., and Edward D. Hassan, Asst. U. S. Atty., Boston, Mass., with him on brief), for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Chief Judge.
Three appeals by John II. Carlson were consolidated by our order and heard together. Our disposition of the main appeal, No. 4732, renders the two other appeals moot, and they will be dismissed on that ground.
The appeal in No. 4732 is from a judgment of the district court on December 15, 1952, adjudging appellant Carlson guilty of the offense of criminal contempt and sentencing him to imprisonment for eighteen months.
This appeal was heard along with appeals in several companion cases, all of which have certain features in common. They are a by-product of the spectacular robbery perpetrated on January 17, 1950, at the Boston premises of Brink’s Inc., a commercial company engaged in guarding and transporting moneys. The criminals made off with over a million dollars in cash and securities, some of it federal funds. In anticipation of the early running out of the statute of limitations relating to the federal offense involved, the government made strenuous efforts to procure indictments by a federal grand jury. No indictments were forthcoming, and subsequently the grand jury was discharged.
As indicating the extremity to which the prosecution went in this connection, it caused a grand jury summons to be served on one Joseph J. (“Specs”) O’Keefe, a notorious gangster with a long criminal record, then serving a sentence in Pennsylvania for illegal possession of firearms, and a key suspect in the Brink’s robbery case. It appears that prior to this summons the United States Attorney had applied to a United States Commissioner for a warrant authorizing search of “Specs” O’Keefe’s home in Stoughton, Mass., upon the basis of an affidavit by an agent of the Federal Bureau of Investigation that a substantial sum of money which was part of the Brink's loot was believed to be seereted in the house. The warrant was issued, but the search on July 22, 1950, was unproductive. Before the grand jury, O’Keefe claimed his Fifth Amendment privilege against self-incrimination. Upon a subsequent presentment by the grand jury, the district court held that O’Keefe had lawfully claimed his privilege and declined to hold him in contempt of the authority of the court.
Along with “Specs” O’Keefe, numerous other persons, relatives of his, or presumed associates, including appellant Carlson, were summoned before the grand jury in connection with the Brink’s investigation. A number of them declined to answer various questions on the ground of their privilege against self-incrimination, and after separate proceedings before the district court upon presentment by the grand jury they have each been adjudged in criminal contempt by the court sitting without a jury. Their several appeals are now before us.
Before stating the particular details of the Carlson case, we think it will be helpful to make some general observations upon the offense of which Carlson stands convicted.
The Congress has not made it a separate and distinct offense for a witness before a grand jury to refuse to answer any question pertinent to the matter under inquiry. In that respect the present case is to be distinguished from the situation where a witness before a congressional committee refuses to answer a pertinent question, which is covered by 2 U.S.C.A. § 192:
“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”
2 U.S.C.A. § 192 makes it a misdemeanor not to answer a pertinent question at a congressional committee hearing. Of course, the statute cannot deprive a witness of his constitutional privilege against self-incrimination, and so if he properly invokes the privilege his refusal to answer is not an offense. Aiuppa v. United States, 6 Cir., 1952, 201 F.2d 287. The witness acts at his peril if he refuses to answer a question either on the ground that it is not pertinent or on the ground that an answer would tend to incriminate him. If it turns out that he was in error in either particular, he has irretrievably committed a misdemeanor under 2 U.S.C.A. § 192 regardless of his good faith. See United States v. Mur-dock, 1933, 290 U.S. 389, 397, 54 S.Ct. 223, 78 L.Ed. 381; Sinclair v. United States, 1929, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; United States v. Costello, 2 Cir., 1952, 198 F.2d 200, certiorari denied, 1952, 344 U.S. 874, 73 S.Ct. 166; Aiuppa v. United States, 6 Cir., 1952, 201 F.2d 287. Where the witness before a congressional committee erroneously, but in good faith, invokes the privilege against self-incrimination, it has even been held that he has committed the offense described in 2 U.S.C.A. § 192 without the necessity of a ruling by the committee that the claim of privilege is rejected. See Bart v. United States, 1952, 91 U.S.App.D.C. 370, 203 F.2d 45, 48-49; Emspak v. United States, 1952, 91 U.S. App.D.C. 378, 203 F.2d 54, 57, certiorari granted, 74 S.Ct. 23.
In the absence of a comparable provision of law making it a misdemean- or for a witness before a federal grand jury to refuse to answer a pertinent question, the grand jury must depend upon the court to punish contumacious witnesses. The criminal contempt, if it be one, is contempt of the authority of the court.
In its substantive aspects, the power of a court of the United States to impose punishment for contempt of its authority is defined and limited by 18 U.S.C. § 401:
“A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
“(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
“(2) Misbehavior of any of its officers in their official transactions;
“(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”
Rule 42 of the Federal Rules of Criminal Procedure, 18 U.S.C., governs the procedural aspects of proceedings for criminal contempt in the United States district courts. Rule 42 is as follows:
“(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.
“(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”
When 18 U.S.C. § 401(1) includes, as a criminal contempt of the court’s authority, misbehavior in the “presence” of the court, the word “presence” is used in a brooding, metaphorical sense broader than misbehavior in the “actual presence” of the judge as used in Rule 42(a). The grand jury is an arm of the court; and no doubt there may be instances of misbehavior in the grand jury room that constitute a completed offense of criminal contempt of court because committed in the “presence” of the court within that broader meaning of 18 U.S.C. § 401(1). Camarota v. United States, 3 Cir., 1940, 111 F.2d 243, 246; In re Presentment by Grand Jury of Ellison, D.C.Del.1942, 44 F.Supp. 375, 377, affirmed, 3 Cir., 1943, 133 F.2d 903, certiorari denied 1943, In re Ellison, 318 U. S. 791, 63 S.Ct. 995, 87 L.Ed. 1157. See O’Connell v. United States, 2 Cir., 1930, 40 F.2d 201, 203; Ex parte Savin, 1889, 131 U.S. 267, 277, 9 S.Ct. 699, 33 L.Ed 150.
Thus if a person interrupts the orderly course of a grand jury proceeding by making a physical attack upon the foreman, this would certainly be misbehavior in the presence of the court, punishable as a contempt under 18 U.S.C. § 401(1). Such misbehavior need not necessarily be of a violent character; for instance, tampering with a witness about to enter the grand jury room by bribing him to give perjurious testimony would be contumacious misconduct. See In re Presentment by Grand Jury of Ellison, supra, D.C.Del.1942, 44 F.Supp. 375. See, also, Ex parte Savin, 1889, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150.
But if all the witness does before the grand jury is to decline to answer a question because of a good faith, but erroneous, claim of the privilege against self-incrimination, this is not “misbehavior” constituting a completed contempt of court. “Certainly the assertion of a constitutional right if made in good faith on advice of counsel could hardly be described as such misbehavior.” United States v. Greenberg, 3 Cir., 1951, 187 F. 2d 35, 38. Accord: Gendron v. Burnham, 1951, 146 Me. 387, 82 A.2d 773. Even when a witness is testifying at a trial, in the actual presence of the judge, it has never been suggested, so far as we are aware, that the invocation of the privilege against self-incrimination constitutes a completed contempt if the privilege is erroneously claimed. The claim of privilege calls upon the judge to make a ruling whether the privilege was available in the circumstances presented;' and if the judge thinks not, then he instructs the witness to answer. A fortiori, the same must be true where a witness before a grand jury erroneously but in good faith claims his privilege. The-witness is in the grand jury room without the present aid of counsel, and with all the legal uncertainties as to when the privilege is available, when it has been “waived”, etc., it would not be surprising if a witness, who knows of his Fifth Amendment privilege in a general way, makes an erroneous claim of privilege. The refusal to answer, in such a situation, is not a criminal contempt of the court’s authority. The grand jury, in that event, if it desires to pursue the matter further, must call on the assistance of the court to make a ruling whether the privilege is available and to instruct the witness to go back to the jury room and answer the question if the ruling is made that the privilege was improperly claimed.
Furthermore, in our opinion it is clearly to be deduced from Ex parte Hudgings, 1919, 249 U.S. 378. 39 S.Ct. 337, 63 L.Ed. 656, and In re Michael,. 1945, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30, that even where a witness before a. grand jury declines to answer on account of the privilege against self-incrimination, claimed in bad faith, such conduct in and of itself does not constitute misbehavior in the presence of the court within the meaning of 18 U.S.C. § 401 (1). In Ex parte Hudgings a witness at a trial gave a series of “I can’t remember” answers which the judge thought, were obviously false; whereupon the judge committed the witness for a criminal contempt.' It was held that this, was not misbehavior in the presence of the court justifying summary punishment for contempt. An answer “I don’t remember”, when in fact the witness does remember, is nothing more than perjury, which is a separate offense in the prosecution of which the witness is entitled to the ordinary constitutional safeguards of indictment and trial by jury. Now a witness may seek to evade a direct and responsive answer to a question either by answering “I don’t know”', or “I don’t remember” when he does; know, or does remember, or by declining to answer the question on the pretended ground, known by him to be false, that a truthful answer would tend to incriminate him. The witness’ conduct is just as reprehensible, whichever stratagem of evasion he employs. If a witness, being-under oath, declines to answer a question' on the ground that a truthful answer would tend to incriminate him, when he-knows that this -is not so, he has committed perjury just as much as if he had responded falsely “I don’t remember.” In Re Michael a grand jury witness gave responsive answers, but his answers were-known by him to be false. It was held that under § 268 of the old Judicial Code, now found, without substantial change, in 18 U.S.C. § 401(1), the court could not summarily punish the witness for contempt where the misconduct consisted of nothing more than perjury. Further,. the Court in the Michael case emphasized, 326 U.S. at page 227, 66 S.Ct. at page 79, that Congress, though it has left to the court ample power to protect the administration of justice against immediate interruption of its business, has intended to safeguard constitutional procedures by limiting the contempt power to the least possible power adequate to the end proposed. “The exercise by federal courts of any broader contempt power than this would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their nature, and leave determination of guilt to a judge rather than a jury. It is in this Constitutional setting that we must resolve the issues here raised.” We are not disposed to split hairs; the situation now under discussion is within the rationale of the Hudgings and Michael cases.
It is true enough that evasion of a direct and truthful answer may have an obvious tendency to impede and obstruct the ascertainment of the truth, and in most cases probably is so intended— whether the witness employs the stratagem of giving a direct but false answer, or of answering untruthfully that he doesn’t remember, or of declining to answer on the ground, known by him to be false, that a truthful answer would tend to incriminate him. But in any such case this conduct, discreditable though it may be, is not such “misbehavior” as brings into play the contempt power of the court. As the Court said in the Michael case, 326 U.S. at page 227, 66 S. Ct. at page 80: “All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process. For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact-finding tribunal must hear both truthful and false witnesses.” And it cannot make any difference, in this connection, whether the witness makes one evasive answer or ten; in fact, depending on the circumstances, one evasive answer to a key question may be more obstructive to the ascertainment of the truth than ten evasive answers to peripheral questions.
If we are wrong in the conclusion stated in the two preceding paragraphs, this much certainly is so: Assuming that claiming the privilege in bad faith in the grand jury room may be deemed “misbehavior” in the presence of the court, the witness must be specifically put on notice that this is the criminal contempt charged, and the court cannot punish the witness for such contempt unless it finds, not only that the privilege was erroneously claimed, but also that it was claimed in bad faith.
From the foregoing it is apparent that when a witness is haled before the court on account of something that transpired in the grand jury room, the proceeding may or may not be one for criminal contempt. Since a refusal to answer a question on account of an erroneous claim of the privilege, at least where the claim is advanced in good faith, is not “misbehavior” constituting a completed criminal contempt of court, it follows that when the grand jury in that situation calls upon the assistance of the court for a ruling as to the availability of the privilege, the proceeding before the court is not at that stage a criminal contempt proceeding at all. Rule 42 of the Federal Rules of Criminal Procedure has no application, because that rule does no more than prescribe the procedure whereby the court may impose a punishment for a criminal contempt already committed. But though Rule 42 is not applicable, the constitutional requirement of due process of law makes it necessary for the judge to give the witness an adequate opportunity to be heard, and to introduce evidence, if the witness so desires, bearing on the issue whether, disregarding merely fanciful and far-fetched hypotheses, it is clearly evident from the implication of the question, in the setting in which it is asked, that a responsive answer might be dangerous because injurious disclosure could result. See Hoffman v. United States, 1951, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. As stated by Taft, J., in Ex parte Irvine, C.C.S.D.Ohio 1896, 74 F. 954, 960, quoting Wharton on Criminal Evidence § 466, the judge in appraising the claim of privilege “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Unless such opportunity is afforded, a ruling by the judge that the privilege is unavailable is nugatory, and an order to the witness to go back and answer the question is not a “lawful” order within the meaning of 18 U.S.C. § 401(3).
What ensues when a court is called upon, not to punish a completed contempt, but merely to rule on the availability of the privilege? If the court rules that the privilege was properly invoked, that is an end of the matter. If, on the other hand, the court rules (we assume correctly, and after the necessary hearing) that the privilege was not available under the circumstances, the court would then normally instruct the witness to go back to the grand jury and answer the question. If the witness then and there, in the face of the court, declines to do so, this is disobedience to a lawful order of the court, under 18 U.S. C. § 401(3); and since this disobedience occurs in the “actual presence” of the judge it may be punished summarily under Rule 42(a). If the witness, instead of disobeying the court’s order in the actual presence of the judge, proceeds back to the grand jury room and there again refuses to answer the question which the court directed him to answer, this is still disobedience of a lawful order of the court within the meaning of 18 U.S.C. § 401(3). But because such disobedience did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the court would have to conduct the proceeding in criminal contempt in accordance with Rule 42(b). See Ex parte Savin, 1889, 131 U.S. 267, 277, 9 S. Ct. 699, 33 L.Ed. 150.
It is important that the grand jury witness accurately be put on notice of the nature of the proceeding. If it is. nothing more than a request by the: grand jury for a ruling by the court on the availability of the privilege, then the witness should be informed that he is, not being cited to answer a charge of ai completed contempt of court, and he will! know that the only issue to which he shall have to address himself, at the hearing before the court, is whether he was entitled to decline to answer the particular questions on the ground of his-privilege against self-incrimination. The worst that could happen, if the ruling is against him, is that he would be given a second chance to go before the grand jury and answer the questions. If, on the other hand, he is being charged with misconduct in the jury room constituting misbehavior in the presence of the court, this charge must be prosecuted on notice, and under Rule 42(b) the notice “shall state the essential facts constituting the criminal contempt charged and describe it as such.” If the alleged misbehavior is a sneering, insolent, disrespectful attitude manifested by the witness in the jury room, then the requisite notice must set forth the essential' facts constituting such misbehavior se that the witness may frame his defense-,, and put in his evidence, directed to that issue. If the charge of misbehavior is that the witness deliberately obstructed the grand jury proceedings by flatly refusing to answer questions, without any pretended excuse, the notice should specifically so state. If the charge of criminal contempt is that the witness declined to answer the questions upon the pretended ground that the answers would tend to incriminate him, this claim of privilege being advanced in bad faith, then (assuming that such conduct might be deemed misbehavior in the presence of the court within the meaning of 18 U.S. C. § 401(1)) the required notice under Rule 42(b) would have to describe the alleged misbehavior in order that the witness, in preparing his defense to the charge, may direct his evidence to the is■sue of his good faith in claiming the privilege.
Incidentally, we note a possible ambiguity in the expression purging of ■contempt. If all the judge is undertaking to do is to rule on whether the privilege against self-incrimination was properly invoked as a ground for declining to answer a question in the grand jury room, then when the judge determines that the privilege was not properly invoked and instructs the witness to go back before the grand jury and answer the question, this is not giving the witness an opportunity to “purge” himself ■of contempt, for the simple reason that there has not yet been any completed ■criminal contempt. If, on the other hand, the judge is conducting a criminal contempt proceeding under Rule 42 on account of an alleged criminal contempt already committed in the jury room, the judge may, if he finds the defendant guilty of the offense charged, impose a punishment forthwith, or, in his discretion, he may withhold punishment at that point and give the defendant an opportunity to take some indicated action to “purge” himself of the completed offense and thus to stay the actual imposition of punishment.
In the light of the above preliminary discussion, we now come to the facts in the case at bar.
It appears that Carlson is known to be a bookie and gambler, with a criminal record and an unsavory reputation, and that he is reputed to have been an associate of “Specs” O’Keefe. He was summoned to appear before the grand jury investigating the Brink’s robbery. At the outset the Assistant U. S. Attorney asked Carlson to sign a so-called “Waiver of Immunity”, the document presented to him reciting in part that “I do hereby voluntarily waive immunity from prosecution for any offense of mine which shall be disclosed or indicated by me in so appearing and testifying or by any testimony which I may give or by any testimony or statements I may make in the presence of the said Grand Jurors.” After being permitted to consult with his attorney by telephone, Carlson declined to sign the waiver. This incident certainly served as a warning and reminder to Carlson of the pitfalls he was about to face because of the evident hope, if not expectation, of the U. S. Attorney that he would be able to elicit from Carlson incriminating answers having to do with the Brink’s case. In the ensuing examination Carlson invoked his privilege in refusing to answer a number of questions. Among them were questions relating to his present occupation, questions relating to whether he knew “Specs” O’Keefe and certain other named underworld characters, questions seeking to elicit from him certain information which he allegedly previously had given to agents of the FBI, questions relating to a certain trip to Philadelphia, it having been reported in the press that some of the Brink’s loot had been traced to Philadelphia. Maybe some of the questions which he refused to answer admitted of a truthful answer without any tendency to incriminate Carlson. But it is obvious that a vulnerable character like Carlson, having been presented with a waiver of immunity, and facing a vigorous examination in the grand jury room, without counsel at his side, might often have been in doubt as to what the U. S. Attorney was leading him into and might therefore have been apprehensive that his answers would aid somehow in building up a case of criminality against him either in connection with the Brink’s case or otherwise.
In the view we take it will not be necessary for us to take up the unanswered questions one by one and to rule whether the claim of privilege was properly invoked in each instance.
Three days after this appearance of Carlson before the grand jury, the grand jurors filed in court a so-called “presentment” in which it was stated that “John Henry Carlson appeared before the Grand Jury, and did wilfully, deliberately, and contumaciously, by evasion and irresponsive answers, obstruct the process of this Court, and did obstruct justice in failing and refusing to answer proper questions, in the Grand Jury proceedings”. Accompanying the presentment was the official transcript of the testimony given by Carlson before the grand jury.
Rule 42(b) makes no provision for a presentment by the grand jury as an accepted procedure for initiating -a charge of a criminal contempt already committed. In the Note of the Advisory Committee, commenting on Rule 7(a) of the Federal Rules of Criminal Procedure, it is stated that “Presentment is not included as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal courts.” See Barron, Federal Practice and Procedure (1951) § 2424. Nevertheless if such a “presentment” by the grand jury “shall state the essential facts constituting the criminal contempt charged and describe it as such”, and if the court gives reasonable notice of a hearing to determine the guilt or innocence of the accused person of the criminal contempt as charged in the presentment, we have no doubt that Rule 42(b) would be deemed to have been substantially complied with. See United States v. Goldfarb, 2 Cir., 1948, 167 F.2d 735.
But in the present case the presentment did not charge in so many words that Carlson’s misbehavior constituted a “criminal contempt”. The “presentment”, instead of being a mode of initiating a proceeding for criminal contempt, may have been no more in this case than a way, and an entirely appropriate way, for the grand jury to invoke the assistance of the court in order to obtain a ruling on the availability of the claimed privilege against self-incrimination.
The district court set down a hearing on the presentment, but there was a manifest ambiguity as to the nature and scope of this hearing. The government introduced in evidence the transcript of Carlson’s testimony before the grand jury, and rested. At the outset counsel for appellant asked the court to-rule on whether the proceeding was one in civil or criminal contempt, and the-court answered somewhat evasively by saying, “the matter is properly before me-under the provisions of the Code which confers upon me certain responsibilities and certain rights.” The court’s further comments at that point seem to imply that in the court’s view the only issue before it was whether the privilege was properly claimed under the circumstances, so that if the court should decide this issue in the negative and order the witness to answer certain questions, “then-there isn’t any contempt until there is refusal to carry out the Court’s orders isn’t that right ?”. Later on the court, in. colloquy with counsel, indicated that it was called upon to rule whether there had been a completed criminal contempt in the grand jury room. Counsel for appellant objected to the making of such a ruling under the circumstances and continued to request the court to instruct Carlson “whether or not he is without privilege on each and every question and so order him to answer.”
At the conclusion of the hearing, the only finding made by the court, more or less following the language of the presentment, was the ultimate finding:
“And on the basis of all the testimony I have heard, I find that this defendant has contumaciously obstructed the process of this court and has been in contempt of its authority by evasive and irresponsive answers before the Grand Jury, and that he has refused intentionally and obdurately to assist the inquiry, and I therefore find him guilty of contempt of the authority of this court * *
'There was no finding that appellant committed a criminal contempt in the grand jury room by manifesting a sneering, insolent, or disrespectful attitude. Furthermore, no such misbehavior was charged in the presentment; nor was there anything in the transcript of the proceeding before the grand jury, which was all the government relied upon, which would have warranted such a finding had it been made.
Apparently the court was proceeding on the assumption that, if a witness in the grand jury room declined to answer a question on an erroneous claim of the privilege against self-incrimination, this, in itself, constituted misbehavior in the presence of the court, within the meaning of 18 U.S.C. § 401(1) — a completed and irretrievable criminal contempt of the authority of the court. As indicating this, the court remarked toward the close of the hearing that, “in view of the fact that this witness has been before the Grand Jury, and in the light of the decisions, if I find that the answers would hurt him, then of course he would be purged of contempt. But on the other hand, if I find this is a proper inquiry, then it seems to me it is my clear duty to adjudge him in contempt of court.” But for the reasons already explained at length in this opinion, such an assumption was a clear error of law. The erroneous claim of the privilege, certainly if made in good faith, and we believe whether or not made in good faith, cannot in itself be deemed misbehavior in the presence of the court, within the meaning of 18 U.S.C. § 401(1), authorizing the court summarily to impose punishment for a criminal contempt. Furthermore, the court has not even found that the claim of privilege here was made in bad faith.
We are obliged, therefore, to vacate the judgment of conviction (1) not only because appellant was not adequately apprised, in substantial compliance with Rule 42(b), that he was being called to answer a specific charge of criminal contempt, but also (2) because the evidence before the court was insufficient to support a finding that appellant had committed a criminal contempt of court in the course of his testimony before the grand jury.
In No. 4732, the judgment of the District Court is vacated, and the case is remanded to that Court with direction to dismiss the proceeding against John H. Carlson on the grand jury’s presentment, however that proceeding may properly be characterized.
In Nos. 4733 and 4734, the appeals are dismissed as moot.
. The other opinions in this group of cases, in the suggested order of reading, are in Hooley v. United States, 1 Cir., 209 F.2d 219; O'Keefe v. United States, 1 Cir., 209 F.2d 223; Maffie v. United States, 1 Cir., 209 F.2d 225; Daly v. United States, 1 Cir., 209 F.2d 232 and Hooley v. United States, 1 Cir., 209 F. 2d 234.
. Wo are not clear what would have been the legal effect of this document had Carlson signed it. A witness does not take into the grand jury room any immunity from criminal prosecution on account of what he may disclose in his tostimony; and therefore he has no immunity to waive. See United States v. Man-giaracina, D.C.W.D.Mo., 1950, 92 F.Supp. 96. If the document was meant to be an advance waiver of the privilege against self-incrimination, this intention was rather obscurely expressed,
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:
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sc_declarationuncon
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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 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.
UNITED STATES v. MAZE
No. 72-1168.
Argued November 13-14, 1973
Decided January 8, 1974
Rehnquist, J., delivered the opinion of the Court, in which Douglas, Stewart, Marshall, and Powell, JJ., joined. Burger, C. J., filed a dissenting opinion, in which White, J., joined, post, p. 405. White, J., filed a dissenting opinion, in which Burger, C. J., and BreNNAN and Blackmun, JJ., joined, post, p. 408.
Jewel S. Lafontant argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Petersen, and Jerome M. Feit.
William T. Warner, by appointment of the Court, post, p. 997, argued the cause and filed a brief for respondent.
Mr. Justice Rehnquist
delivered the opinion of the Court.
In February 1971 respondent Thomas E. Maze moved to Louisville, Kentucky, and there shared an apartment with Charles L. Meredith. In the spring of that year respondent’s fancy lightly turned to thoughts of the sunny Southland, and he • thereupon took Meredith’s BankAmericard and his 1968 automobile and headed for Southern California. By presenting the BankAmericard and signing Meredith’s name, respondent obtained food and lodging at motels located in California, Florida, and Louisiana. Each of these establishments transmitted to the Citizens Fidelity Bank & Trust Co. in Louisville, which had issued the BankAmericard to Meredith, the invoices representing goods and services furnished to respondent. Meredith, meanwhile, on the day after respondent’s departure from Louisville, notified the Louisville bank that his credit card had been stolen.
Upon respondent’s return to Louisville he was indicted on four counts of violation of the federal mail fraud statute, 18 U. S. C. § 1341, and one count of violation of the Dyer Act, 18 U. S. C. § 2312. The mail fraud counts of the indictment charged that respondent had devised a scheme to defraud the Louisville bank, Charles L. Meredith, and several merchants in different States by unlawfully obtaining possession of the BankAmericard issued by the Louisville bank to Meredith, and using the card to obtain goods and services. The indictment charged that respondent had obtained goods and services at four specified motels by presenting Meredith's Bank-Americard for payment and representing himself to be Meredith, and that respondent knew that each merchant would cause the sales slips of the purchases to be delivered by mail to the Louisville bank which would in turn mail them to Meredith for payment. The indictment also charged that the delay in this mailing would enable the respondent to continue purchasing goods and services for an appreciable period of time.
Respondent was tried by a jury in the United States District Court for the Western District of Kentucky. At trial, representatives of the four motels identified the sales invoices from the transactions on Meredith’s Bank-Americard which were forwarded to the Louisville bank by their motels. An official of the Louisville bank testified that all of the sales invoices for those transactions were received by the bank in due course through the mail, and that this was the customary method by which invoices representing BankAmerieard purchases were transmitted to the Louisville bank. The jury found respondent guilty as charged on all counts, and he appealed the judgment of conviction to the Court of Appeals for the Sixth Circuit. That court reversed the judgment as to the mail fraud statute, but affirmed it as to the Dyer Act. 468 F. 2d 529 (1972). Because of an apparent conflict among the courts of appeals as to the circumstances under which the fraudulent use of a credit card may violate the mail fraud statute, we granted the Government’s petition for certiorari. 411 U. S. 963 (1973). For the reasons stated below, we affirm the judgment of the Court of Appeals.
The applicable parts of the mail fraud statute provide as follows:
“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do . . . knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any [matter or thing whatever to be sent or delivered by the Postal Service] shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1341.
In Pereira v. United States, 347 U. S. 1, 8-9 (1954), the Court held that one “causes” the mails to be used where he “does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended . . . .” We assume, as did the Court of Appeals, that the evidence would support a finding by the jury that Maze “caused” the mailings of the invoices he signed from the out-of-state motels to the Louisville bank. But the more difficult question is whether these mailings were sufficiently closely related to respondent’s scheme to bring his conduct within the statute.
Under the statute, the mailing must be “for the purpose of executing the scheme, as the statute requires,” Kann v. United States, 323 U. S. 88, 94 (1944), but “[i]t is not necessary that the scheme contemplate the use of the mails as an essential element,” Pereira v. United States, supra, at 8. The Government relies on Pereira, supra, and United States v. Sampson, 371 U. S. 75 (1962), to support its position, while respondent relies on Kann v. United States, supra, and Parr v. United States, 363 U. S. 370 (1960).
In Kann, supra, corporate officers and directors were accused of having set up a dummy corporation through which to divert profits of their own corporation to their own use. As a part of the scheme, the defendants were accused of having fraudulently obtained checks payable to them which were cashed or deposited at a bank and then mailed for collection to the drawee bank. This Court held that the fraud was completed at the point at which defendants cashed the checks:
“The scheme in each case had reached fruition. The persons intended to receive the money had received it irrevocably. It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank. It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires.” 323 U. S., at 94.
In Parr, supra, the defendants were charged, inter .alia, with having obtained gasoline and other products and services for their own purposes by the unauthorized use of a gasoline credit card issued to the school district which employed them. The oil company which furnished products and services to the defendants would mail invoices to the school district for payment, and the school district's payment was made by check sent in the mail. Relying on Kann, the Court again found that there was not a sufficient connection between the mailing and the execution of the defendants’ scheme, because it was immaterial to the defendants how the oil company went about collecting its payment.
The defendant in Pereira, supra, was charged with having defrauded a wealthy widow of her property after marrying her. The Court describes the conduct of defendant in these words:
“Pereira asked his then wife if she would join him in the hotel venture and advance $35,000 toward the purchase price of $78,000. She agreed. It was then agreed, between her and Pereira, that she would sell some securities that she possessed in Los An-geles, and bank the money in a bank of his choosing in El Paso. On June 15, she received the check for $35,000 on the Citizens National Bank of Los An-geles from her brokers in Los Angeles, and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on June 18, a cashier’s check for $35,000 was drawn in favor of Pereira.” 347 U. S., at 5.
Thus the mailings in Pereira played a significant part in enabling the defendant in that case to acquire dominion over the $35,000, with which he ultimately absconded. Unlike the mailings in Pereira, the mailings here were directed to the end of adjusting accounts between the motel proprietor, the Louisville bank, and Meredith, all of whom had to a greater or lesser degree been the victims of respondent's scheme. Respondent’s scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss. Indeed, from his point of view, he probably would have preferred to have the invoices misplaced by the various motel personnel and never mailed at all.
The Government, however, relying on United States v. Sampson, supra, argues that essential to the success of any fraudulent credit-card scheme is the “delay” caused by use of the mails “which aids the perpetrator . . . in the continuation of a fraudulent credit card scheme and the postponement of its detection.” In Sampson, various employees of a nationwide corporation were charged with a scheme to defraud businessmen by obtaining advance fees on the promise that the defendants would either help the businessmen to obtain loans or to sell their businesses. Even after the checks representing the fees had been deposited to the accounts of the defendants, however, the plan called for the mailing of the accepted application together with a form letter assuring the victims that the services for which they had contracted would be performed. The Court found that Kann and Parr did not preclude the application of the mail fraud statute to “a deliberate, planned use of the mails after the victims' money had been obtained.” 371 U. S., at 80.
We do not believe that Sampson sustains the Government’s position. The subsequent mailings there were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place. But the successful completion of the mailings from the motel owners here to the Louisville bank increased the probability that respondent would be detected and apprehended. There was undoubtedly delay in transmitting invoices to the Louisville bank, as there is in the physical transmission of any business correspondence between cities separated by large distances. Mail service as a means of transmitting such correspondence from one city to another is designed to overcome the effect of the distance which separates the places. But it is the distance, and not the mail service, which causes the time lag in the physical transmission of such correspondence.
Congress has only recently passed an amendment to the Truth in Lending Act which makes criminal the use of a fraudulently obtained credit card in a “transaction affecting interstate or foreign commerce.” 84 Stat. 1127, 15 U. S. C. § 1644. Congress could have drafted the mail fraud statute so as to require only that the mails be in fact used as a result of the fraudulent scheme. But it did not do this; instead, it required that the use of the mails be “for the purpose of executing such scheme or artifice ...” Since the mailings in this case were not for that purpose, the judgment of the Court of Appeals is
Affirmed.
The Court of Appeals determined that even though it affirmed respondent’s Dyer Act conviction, for which he had received a concurrent five-year sentence, it should also consider the mail fraud convictions as well. There is no jurisdictional barrier to such a decision, Benton v. Maryland, 395 U. S. 784 (1969), and the court decided that “no considerations of judicial economy or efficiency have been urged to us that would outweigh the interest of appellant in the opportunity to clear his record of a conviction of a federal felony.” 468 F. 2d, at 536 n. 6. We agree that resolution of the mail fraud questions presented by this case is appropriate.
The decision of the Court of Appeals for the Tenth Circuit in United States v. Lynn, 461 F. 2d 759 (1972), appears consistent with the decision of the Sixth Circuit in the instant case. Five other courts of appeals apparently take a contrary view. E. g., United States v. Kellerman, 431 F. 2d 319 (CA2), cert. denied, 400 U. S. 957 (1970); United States v. Chason, 451 F. 2d 301 (CA2 1971), cert. denied, 405 U. S. 1016 (1972); United States v. Madison, 458 F. 2d 974 (CA2), cert. denied, 409 U. S. 859 (1972); United States v. Ciotti, 469 F. 2d 1204 (CA3 1972), cert. pending, No. 72-6155; Adams v. United States, 312 F. 2d 137 (CA5 1963); Kloian v. United States, 349 F. 2d 291 (CA5 1965), cert. denied, 384 U. S. 913 (1966); United States v. Reynolds, 421 F. 2d 178 (CA5 1970); United States v. Thomas, 429 F. 2d 407 (CA5 1970); United States v. Kelly, 467 F. 2d 262 (CA7 1972), cert. denied, 411 U. S. 933 (1973); United States v. Kelem, 416 F. 2d 346 (CA9 1969), cert. denied, 397 U. S. 952 (1970).
The full text of the section reads as follows:
“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1341.
The Government indicates that in 1969 it was estimated that more than 300 million consumer credit cards were in circulation, with annual charges between $40 billion and $60 billion. It was also estimated that, in 1969, 1.5 million cards were lost or stolen, and that losses due to fraud had risen from $20 million in 1966 to $100 million in 1969. Brief for United States 14 n. 2, citing 115 Cong. Rec. 38987 (1969). The mail fraud statute, first enacted in 1872, c. 335, § 301, 17 Stat. 323, while obviously not directed at credit card frauds as such, is sufficiently general in its language to include them if the requirements of the statute are otherwise met.
While it is clearly implied in this Court’s opinion in Pereira that the El Paso bank did not immediately credit the account of the defendant, but instead awaited advice from the Los Angeles bank to which it had mailed the check, the opinion of the Court of Appeals for the Fifth Circuit in Pereira makes that fact abundantly clear:
“The return of [the] check from Texas to California constitutes the mailing referred to in the First Count .... In mailing the check back to the bank in California on which it was drawn, the El Paso, Texas, bank sent 'instructions to wire fate,’ meaning to wire whether the item was paid or not. Upon receiving a telegram stating that the cheek had been paid, the bank in El Paso gave Pereira its cashier’s check for $35,286.01, which Pereira promptly cashed on June 19, 1951.” Pereira v. United States, 202 F. 2d 830, 836 (1953).
Mr. Justice White’s dissenting opinion indicates that respondent engaged in a “two-week, $2,000 transcontinental spending spree.” While we are not sure of the legal significance of the amounts fraudulently charged on the credit card by the respondent, we note that the four counts of mail fraud charged in the indictment were based on charges on Meredith’s credit card totaling $301.85. Brief for Respondent 4 n. 2; Brief for United States 4-5.
Since we are admonished that we may not as judges ignore what we know as men, we do not wish to be understood as suggesting that delays in mail service are solely attributable to the distance involved. If the Postal Service appears on occasion to be something less than a 20th century version of the wing-footed Mercury, the fact remains that the invoices were mailed to and were ultimately received by the Louisville bank.
Distance is not the only cause of delay. The Court of Appeals noted that BankAmericard had a billing system in which billing was aceomplished by collecting receipts over a one-month period and then billing the card holder. 468 F. 2d, at 535. It might reasonably be argued that respondent himself used facilities of interstate travel for the purpose of executing his scheme, since the large distances separating the defrauded motels from one another and from .the Louisville bank probably did make it more difficult to apprehend him than if he had simply defrauded local enterprises in Louisville. But the statute is cast, not in terms of use of the facilities of interstate travel, but in terms of use of the mails.
Volume 84 Stat. 1127, 15 U. S. C. § 1644 provides:
“Whoever, in a transaction affecting interstate or foreign commerce, uses any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain goods or services, or both, having a. retail value aggregating $5,000 or more, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
The Court of Appeals felt that the enactment by Congress of the above amendment to the Truth in Lending Act manifested a legislative judgment that credit card fraud schemes- were to be excluded from the application of the mail fraud statute “unless the offender makes a purposeful use of the mails to accomplish his scheme.” 468 F. 2d, at 536.
Respondent contends that the passage of the amendment indicates that Congress believed in 1970 that credit card fraud was not a federal crime under 18 U. S. C. § 1341 or otherwise. Respondent also notes that the legislative history of the passage of the amendment indicates that the original bill, as enacted by the Senate, contained no jurisdictional amount limitation. The Senate-House conferees, at the request of the Department of Justice, later added the limitation of federal jurisdiction under the section to purchases exceeding $5,000. Brief for Respondent 16-21.
The Government contends that the Court of Appeals erred in attaching significance to the 1970 amendment, urging that there is no indication that Congress intended its provisions to be the sole vehicle for the federal prosecution of credit card frauds. Brief for United States 33-37, citing United States v. Beacon Brass Co., 344 U. S. 43, 45 (1952).
We deem it unnecessary to determine the significance of the passage of the amendment, since we conclude without resort to that fact that the mail fraud statute does not cover the respondent’s conduct in this ease.
We are admonished by The Chibe Justice in dissent that the “mail fraud statute must remain strong to be able to cope with the new varieties of fraud” which threaten “the financial security of our citizenry” and which “the Federal Government must be ever alert to combat.” We believe that under our decision the mail fraud statute remains a strong and useful weapon to combat those evils which are within the broad reach of its language. If the Federal Government is to engage in combat against fraudulent schemes not covered by the statute, it must do so at the initiative of Congress and not of this Court.
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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sc_casedisposition
|
E
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
ALLEN et al. v. STATE BOARD OF ELECTIONS et al.
No. 3.
Argued October 15, 1968.
Decided March 3, 1969.
Norman C. Amaker argued the cause for appellants in No. 3. With him on the brief were Jack Greenberg, James M. Nabrit III, Oliver W. Hill, S. W. Tucker, Henry L. Marsh III, and Anthony G. Amsterdam. Armand Derfner and Elliott C. Lichtman argued the cause for appellants in Nos. 25, 26, and 36. Lawrence Aschenbrenner was on the brief for appellants in Nos. 25 and 26. With Mr. Derfner on the brief for appellants in No. 36 were Alvin J. Bronstein and Richard B. Sobol.
R. D. Mcllwaine III, First Assistant Attorney General of Virginia, argued the cause for appellees in No. 3. With him on the brief were Robert Y. Button, Attorney General, William R. Blandjord, and William C. Carter. William A. Allain and Will S. Wells, Assistant Attorneys General of Mississippi, argued the cause for appellees in Nos. 25, 26, and 36. With Mr. Allain on the brief for appellees in No. 25 were Joe T. Patterson, Attorney General, and Dudley W. Conner. With Mr. Wells on the briefs for appellees in Nos. 26 and 36 was Mr. Patterson.
Assistant Attorney General Poliak argued the cause for the United States, as amicus curiae, urging reversal in Nos. 25, 26, and 36. With him on the brief were Solicitor General Grisioold, Louis F. Claiborne, Francis X. Bey-tagh, Jr., and Nathan Lewin.
Together with No. 25, Fairley et al. v. Patterson, Attorney General of Mississippi, et al., No. 26, Bunion et al. v. Patterson, Attorney General of Mississippi, et al., and No. 36, Whitley et al. v. Williams, Governor of Mississippi, et al., on appeal from the United States District Court for the Southern District of Mississippi, argued on October 16, 1968.
Mr. Chief Justice Warren
delivered the opinion of the Court.
These four cases, three from Mississippi and one from Virginia, involve the application of the Voting Rights Act of 1965 to state election laws and regulations. The Mississippi cases were consolidated on appeal and argued together in this Court. Because of the grounds on which we decide all four cases, the appeal in the Virginia case is also disposed of by this opinion.
In South Carolina v. Katzenbach, 383 U. S. 301 (1966), we held the provisions of the Act involved in these cases to be constitutional. These cases merely require us to determine whether the various state enactments involved are subject to the requirements of the Act.
We gave detailed treatment to the history and purposes of the Voting Rights Act in South Carolina v. Katzenbach, supra. Briefly, the Act implemented Congress’ firm intention to rid the country of racial discrimination in voting. It provided stringent new remedies against those practices which have most frequently denied citizens the right to vote on the basis of their race. Thus, in States covered by the Act, literacy tests and similar voting qualifications were suspended for a period of five years from the last occurrence of substantial voting discrimination. However, Congress apparently feared that the mere suspension of existing tests would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect. Not underestimating the ingenuity of those bent on preventing Negroes from voting, Congress therefore enacted § 5, the focal point of these cases.
Under § 5, if a State .covered by the Act passes any “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964,” no person can be deprived of his right to vote “for failure to comply with” the new enactment “unless and until” the State seeks and receives a declaratory judgment in the United States District Court for the District of Columbia that the new enactment “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. I). See Appendix, infra.
. However, § 5 does not necessitate that a covered State obtain a declaratory judgment action before it can enforce any change in its election laws. It provides that a State may enforce a new enactment if the State submits the new provision to the Attorney General of the United States and, within 60 days of the submission, the Attorney General does not formally object to the new statute or regulation. The Attorney General does not act as a court in approving or disapproving the state legislation. If the Attorney General objects to the new enactment, the State may still enforce the legislation upon securing a declaratory judgment in the District Court for the District of Columbia. Also, the State is not required to first submit the new enactment to the Attorney General as it may go directly to the District Court for the District of Columbia. The provision for submission to the Attorney General merely gives the covered State a rapid method of rendering a new state election law enforceable. Once the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5.
In these four cases, the States have passed new laws or issued new regulations. The central issue is whether these provisions fall within the prohibition of § 5 that prevents the enforcement of “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” unless the State first complies with one of the section's approval procedures.
No. 25, Fairley v. Patterson, involves a 1966 amendment to § 2870 of the Mississippi Code of 1942. The amendment provides that the board of supervisors of each county may adopt an order providing that board members be elected at large by all qualified electors of the county. Prior to the 1966 amendment, all counties by law were divided into five districts; each district elected one member of the board of supervisors. After the amendment, Adams and Forrest Counties adopted the authorized orders, specifying that each candidate must run at large, but also requiring that each candidate be a resident of the county district he seeks to represent.
The appellants are qualified electors and potential candidates in the two counties. They sought a declaratory judgment in the United States District Court for the Southern District of Mississippi that the amendment to § 2870 was subject to the provisions of § 5 of the Act and hence could not be enforced until the State complied with the approval requirements of § 5.
No. 26, Bunton v. Patterson, concerns a 1966 amendment to § 6271-08 of the Mississippi Code. The amendment provides that in 11 specified counties, the county-superintendent of education shall be appointed by the board of education. Before the enactment of this amendment, all these counties had the option of electing or appointing the superintendent. Appellants are qualified electors and potential candidates for the position of county superintendent of education in three of the counties covered by the 1966 amendment. They sought a declaratory judgment that the amendment was subject to § 5, and thus unenforceable unless the State complied with the § 5 approval requirements.
No. 36, Whitley v. Williams, involves a 1966 amendment to § 3260 of the Mississippi Code, which changed the requirements for independent candidates running in general elections. The amendment makes four revisions: (1) it establishes a new rule that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election; (2) the time for filing a petition as an independent candidate is changed to 60 days before the primary election from the previous 40 days before the general election; (3) the number of signatures of qualified electors needed for the independent qualifying petition is increased substantially; and (4) a new provision is added that each qualified elector who signs the independent qualifying petition must personally sign the petition and must include his polling precinct and county. Appellants are potential candidates whose nominating petitions for independent listing on the ballot were rejected for failure to comply with one or more of the amended provisions.
In all three of these cases, the three-judge District Court ruled that the amendments to the Mississippi Code did not come within the purview of and are not covered by § 5, and dismissed the complaints. Appellants brought direct appeals to this Court. We consolidated the cases and postponed consideration of jurisdiction to a hearing on the merits. 392 U. S. 902 (1968).
No. 3, Allen v. State Board of Elections, concerns a bulletin issued by the Virginia Board of Elections to all election judges. The bulletin was an attempt to modify the provisions of § 24 — 252 of the Code of Virginia of 1950 which provides, inter alia, that “any voter [may] place on the official ballot the name of any person in his own handwriting The Virginia Code (§ 24— 251) further provides that voters with a physical incapacity may be assisted in preparing their ballots. For example, one who is blind may be aided in the preparation of his ballot by a person of his choice. Those unable to mark their ballots due to any other physical disability may be assisted by one of the election judges. However, no statutory provision is made for assistance to those who wish to write in a name, but who are unable to do so because of illiteracy. When Virginia was brought under the coverage of the Voting Rights Act of 1965, Virginia election officials apparently thought that the provision in § 24-252, requiring a voter to cast a write-in vote in the voter’s own handwriting, was incompatible with the provisions of § 4 (a) of the Act suspending the enforcement of any test or device as a prerequisite to voting. Therefore, the Board of Elections issued a bulletin to all election judges, instructing that the election judge could aid any qualified voter in the preparation of his ballot, if the voter so requests and if the voter is unable to mark his ballot due to illiteracy.
Appellants are functionally illiterate registered voters from the Fourth Congressional District of Virginia. They brought a declaratory judgment action in the United States District Court for the Eastern District of Virginia, claiming that § 24-252 and the modifying bulletin violate the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act of 1965. A three-judge court was convened and the complaint dismissed. A direct appeal was brought to this Court and we postponed consideration of jurisdiction to a hearing on the merits. 392 U. S. 902 (1968).
In the 1966 elections, appellants attempted to vote for a write-in candidate by sticking labels, printed with the name of their candidate, on the ballot. The election officials refused to count appellants’ ballots, claiming that the Virginia election law did not authorize marking ballots with labels. As the election outcome would not have been changed had the disputed ballots been counted, appellants sought only prospective relief. In the District Court, appellants did not assert that § 5 precluded enforcement of the procedure prescribed by the bulletin. Rather, they argued § 4 suspended altogether the requirement of § 24-252 that the voter write the name of his choice in the voter’s own handwriting. Appellants first raised the applicability of § 5 in their jurisdictional statement filed with this Court. We are not precluded from considering the applicability of § 5, however. The Virginia legislation was generally attacked on the ground that it was inconsistent with the Voting Rights Act. Where all the facts are undisputed, this Court may, in the interests of judicial economy, determine the applicability of the provisions of that Act, even though some specific sections were not argued below.
We postponed consideration of our jurisdiction in these cases to a hearing on the merits. Therefore, before reaching the merits, we first determine whether these cases are properly before us on direct appeal from the district courts.
I.
These suits-were instituted by private citizens; an initial question is whether private litigants may invoke the jurisdiction of the district courts to obtain the relief requested in these suits. 28 U. S. C. § 1343 provides: “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . . (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.” Clearly, if § 5 authorizes appellants to secure the relief sought, the district courts had jurisdiction over these suits.
The Voting Rights Act does not explicitly grant or deny private parties authorization to seek a declaratory judgment that a State has failed to comply with the provisions of the Act. However, § 5 does provide that “no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, § 5].” Analysis of this language in light of the major purpose of the Act indicates that appellants may seek a declaratory judgment that a new state enactment is governed by § 5. Further, after proving that the State has failed to submit the covered enactment for § 5 approval, the private party has standing to obtain an injunction against further enforcement, pending the State’s submission of the legislation pursuant to § 5.
The Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens. South Carolina v. Katzenbach, supra, at 308, 309. Congress realized that existing remedies were inadequate to accomplish this purpose and drafted an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws.
The achievement of the Act’s laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General. For example, the provisions of the Act extend to States and the subdivisions thereof. The Attorney General has a limited staff and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government. It is consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with the § 5 approval requirements.
We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action. In J. I. Case Co. v. Borak, 377 U. S. 426 (1964), we were called upon to consider § 14 (a) of the Securities Exchange Act of 1934. 48 Stat. 895, 15 II. S. C. § 78n (a). That section provides that it shall be “unlawful for any person ... [to violate] such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” We held that “[w]hile this language makes no specific reference to a private right of action, among its chief purposes is 'the protection of investors,’ which certainly implies the availability of judicial relief where necessary to achieve that result.” 377 U. S., at 432.
A similar analysis is applicable here. The guarantee of § 5 that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to § 5, might well prove an empty promise unless the private citizen were allowed to seek judicial enforcement of the prohibition.
l-H H-1
Another question involving the jurisdiction of the district courts is presented by § 14 (b) of the Act. It provides that “[n]o court other than the District Court for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [§ 5] or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this Act . . . 79 Stat. 445, 42 U. S. C. § 1973Z (b) (1964 ed., Supp. I). The appellants sought declaratory judgments that the state enactments were subject to § 5 of the Act; appellees thus argue that these actions could be initiated only in the District Court for the District of Columbia.
Section 14 (b) must be read with the Act’s other enforcement provisions. Section 12 (f) provides that the district courts shall have jurisdiction over actions brought pursuant to § 12 (d) to enjoin a person from acting when “there are reasonable grounds to believe that [such person] is about to engage in any act or practice prohibited by [§ 5].” These § 12 (f) injunctive actions are distinguishable from the actions mentioned in § 14 (b). The § 14 (b) injunctive action is one aimed at prohibiting enforcement of the provisions of the Voting Rights Act, and would involve an attack on the constitutionality of the Act itself. See Katzenbach v. Morgan, 384 U. S. 641 (1966). On the other hand, the § 12 (f) action is aimed at prohibiting the enforcement of a state enactment that is for some reason violative of the Act. Cf. United States v. Ward, 352 F. 2d 329 (C. A. 5th Cir. 1965); Perez v. Rhiddlehoover, 247 F. Supp. 65 (D. C. E. D. La. 1965).
A similar distinction is possible with respect to declaratory judgments. A declaratory judgment brought by the State pursuant to § 5 requires an adjudication that a new enactment does not have the purpose or effect of racial discrimination. However, a declaratory judgment action brought by a private litigant does not require the Court to reach this difficult substantive issue. The only issue is whether a particular state enactment is subject to the provisions of the Voting Rights Act, and therefore must be submitted for approval before enforcement. The difference in the magnitude of these two issues suggests that Congress did not intend that both can be decided only by the District of Columbia District Court. Indeed, the specific grant of jurisdiction to the district courts in § 12 (f) indicates Congress intended to treat “coverage” questions differently from “substantive discrimination” questions. See Perez v. Rhiddlehoover, supra, at 72.
Moreover, as we indicated in South Carolina v. Katzenbach, supra, the power of Congress to require suits to be brought only in the District of Columbia District Court is grounded in Congress’ power, under Art. Ill, § 1, to “ordain and establish” inferior federal tribunals. We further noted Congress did not exceed constitutional bounds in imposing limitations on “litigation against the Federal Government. . . .” 383 U. S., at 332 (emphasis added). Of course, in declaratory judgment actions brought by private litigants, the United States will not be a party. This distinction further suggests interpreting § 14 (b) as applying only to declaratory judgment actions brought by the State.
There are strong reasons for adoption of this interpretation. Requiring that declaratory judgment actions be brought in the District of Columbia places a burden on the plaintiff. The enormity of the burden, of course, will vary with the size of the plaintiff’s resources. Admittedly, it would be easier for States to bring § 5 actions in the district courts in their own States. However, the State has sufficient resources to prosecute the actions easily in the Nation’s Capital; and, Congress has power to regulate which federal court shall hear suits against the Federal Government. On the other hand, the individual litigant will often not have sufficient resources to maintain an action easily outside the district in which he resides, especially in cases where the individual litigant is attacking a local city or county regulation. Thus, for the individual litigant, the District of Columbia burden may be sufficient to preclude him from bringing suit.
We hold that the restriction of § 14 (b) does not apply to suits brought by private litigants seeking a declaratory judgment that a new state enactment is subject to the approval requirements of § 5, and that these actions may be brought in the local district court pursuant to 28 U. S. C. § 1343 (4).
III.
A final jurisdictional question remains. These actions were all heard before three-judge district courts. We have jurisdiction over an appeal brought directly from the three-judge court only if the three-judge court was properly convened. Pennsylvania Public Utility Comm’n v. Pennsylvania R. Co., 382 U. S. 281 (1965); Zemel v. Rusk, 381 U. S. 1, 5 (1965); see 28 U. S. C. § 1253. Appellants initially claimed that the statutes and regulations in question violated the Fifteenth Amendment. However, by stipulation these claims were removed from the cases prior to a hearing in the District Court and the cases were submitted solely on the question of the applicability of § 5. We held in Swift & Co. v. Wickham, 382 U. S. 111, 127 (1965), that a three-judge court is not required under 28 U. S. C. § 2281 if the state statute is attacked on the grounds that it is in conflict with a federal statute and consequently violates the Supremacy Clause. These suits involve such an attack and, in the absence of a statute authorizing a three-judge court, would not be proper before a district court of three judges.
Appellants maintain that § 5 authorizes a three-judge court in suits brought by private litigants to enforce the approval requirements of the section. The final sentence of § 5 provides that “[a]ny action under this section shall be heard and determined by a court of three judges . . . and any appeal shall lie to the Supreme Court.” 42 U. S. C. § 1973c (1964 ed., Supp. I) (emphasis added). Appellees argue that this sentence refers only to the action specifically mentioned in the first sentence of § 5 (i e., declaratory judgment suits brought by the State) and does not apply to suits brought by the private litigant.
As we have interpreted § 5, suits involving the section may be brought in at least three ways. First, of course, the State may institute a declaratory judgment action. Second, an individual may bring a suit for declaratory judgment and injunctive relief, claiming that a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny. Third, the Attorney General may bring an injunctive action to prohibit the enforcement of a new regulation because of the State’s failure to obtain approval under § 5. All these suits may be viewed as being brought “under” § 5. The issue is whether the language “under this section” should be interpreted as authorizing a three-judge action in these suits.
We have long held that congressional enactments providing for the convening of three-judge courts must be strictly construed. Phillips v. United States, 312 U. S. 246 (1941). Convening a three-judge court places a burden on our federal court system, and may often result in a delay in a matter needing swift initial adjudication. See Swift & Co. v. Wickham, supra, at 128. Also, a direct appeal may be taken from a three-judge court to this Court, thus depriving us of the wise and often crucial adjudications of the courts of appeals. Thus we have been reluctant to extend the range of cases necessitating the convening of three-judge courts. Ibid.
However, we have not been unaware of the legitimate reasons that prompted Congress to enact three-judge-court legislation. See Swift & Co. v. Wickham, supra, at 116-119. Notwithstanding the problems for judicial administration, Congress has determined that three-judge courts are desirable in a number of circumstances involving confrontations between state and federal power or in circumstances involving a potential for substantial interference with government administration. The Voting Rights Act of 1965 is an example. Federal supervision over the enforcement of state legislation always poses difficult problems for our federal system. The problems are especially difficult when the enforcement of state enactments may be enjoined and state election procedures suspended because the State has failed to comply with a federal approval procedure.
In drafting § 5, Congress apparently concluded that if the governing authorities of a State differ with the Attorney General of the United States concerning the purpose or effect of a change in voting procedures, it is inappropriate to have that difference resolved by a single district judge. The clash between federal and state power and the potential disruption to state government are apparent. There is no less a clash and potential for disruption when the disagreement concerns whether a state enactment is subject to § 5. The result of both suits can be an injunction prohibiting the State from enforcing its election laws. Although a suit brought by the individual citizen may not involve the same federal-state confrontation, the potential for disruption of state election procedures remains.
Other provisions of the Act indicate that Congress was well aware of the extraordinary effect the Act might have on federal-state relationships and the orderly operation of state government. For example, § 10, which prohibits the collection of poll taxes as a prerequisite to voting, contains a provision authorizing a three-judge court when the Attorney General brings an action “against the enforcement of any requirement of the payment of a poll tax as a precondition to voting . . . .” 79 Stat. 442, 42 U. S. C. §§ 1973h (a)-(c) (1964 ed., Supp. I). See also 42 ü. S. C. § 1973b (a) (1964 ed., Supp. I).
We conclude that in light of the extraordinary nature of the Act in general, and the unique approval requirements of § 5, Congress intended that disputes involving the coverage of § 5 be determined by a district court of three judges.
IV.
Finding that these cases are properly before us, we turn to a consideration of whether these state enactments are subject to the approval requirements of § 5. These requirements apply to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . . .” 42 U. S. C. § 1973c (1964 ed., Supp. I). The Act further provides that the term “voting” “shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing ... or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.” §14 (c)(1), 79 Stat. 445, 42 U. S. C. § 19731 (c)(1) (1964 ed., Supp. I). See Appendix, infra. Appellees in the Mississippi cases maintain that § 5 covers only those state enactments which prescribe who may register to vote. While accepting that the Act is broad enough to insure that the votes of all citizens should be cast, appellees urge that § 5 does not cover state rules relating to the qualification of candidates or to state decisions as to which offices shall be elective.
Appellees rely on the legislative history of the Act to support their view, citing the testimony of former Assistant Attorney General Burke Marshall before a subcommittee of the House Committee on the Judiciary:
“Mr. Corman. We have not talked at all about whether we have to be concerned with not only who can vote, but who can run for public office and that has been an issue in some areas in the South in 1964. Have you given any consideration to whether or not this bill ought to address itself to the qualifications for running for public office as well as the problem of registration?
“Mr. Marshall. The problem that the bill was aimed at was the problem of registration, Congressman. If there is a problem of another sort, I would like to see it corrected, but that is not what we were trying to deal with in the bill.”
Appellees in No. 25 also argue that § 5 was not intended to apply to a change from district to at-large voting, because application of § 5 would cause a conflict in the administration of reapportionment legislation. They contend that under such a broad reading of § 5, enforcement of a reapportionment plan could be enjoined for failure to meet the § 5 approval requirements, even though the plan had been approved by a federal court. Appellees urge that Congress could not have intended to force the States to submit a reapportionment plan to two different courts.
We must reject a narrow construction that appellees would give to § 5. The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation to the right to vote, recognizing that voting includes "all action necessary to make a vote effective.” 79 Stat. 445, 42 U. S. C. § 19731(c)(1) (1964 ed., Supp. I). See Reynolds v. Sims, 377 U. S. 533, 555 (1964). We are convinced that in passing the Voting Rights Act, Congress intended that state enactments such as those involved in the instant cases be subject to the § 5 approval requirements.
The legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way. For example, § 2 of the Act, as originally drafted, included a prohibition against any “qualification or procedure.” During the Senate hearings on the bill, Senator Fong expressed concern that the word “procedure” was not broad enough to cover various practices that might effectively be employed to deny citizens their right to vote. In response, the Attorney General said he had no objection to expanding the language of the section, as the word “procedure” “was intended to be all-inclusive of any kind of practice.” Indicative of an intention to give the Act the broadest possible scope, Congress expanded the language in the final version of § 2 to include any “voting qualifications or prerequisite to voting, or standard, practice, or procedure.” 42 U. S. C. § 1973 (1964 ed., Supp. I).
Similarly, in the House hearings, it was emphasized that § 5 was to have a broad scope:
“Mr. Katzenbach. The justification for [the approval requirements] is simply this: Our experience in the areas that would be covered by this bill has been such as to indicate frequently on the part of State legislatures a desire in a sense to outguess the courts of the United States or even to outguess the Congress of the United States. . . . [A]s the Chairman may recall ... at the time of the initial school desegregation, . . . the legislature passed I don’t know how many laws in the shortest period of time. Every time the judge issued a decree, the legislature . . . passed a law to frustrate that decree.
“If I recollect correctly, the school board was ordered to do something and the legislature immediately took away all authority of the school boards. They withdrew all funds from them to accomplish the purposes of the act.” House Hearings 60.
Also, the remarks of both opponents and proponents during the debate over passage of the Act demonstrate that Congress was well aware of another admonition of the Attorney General. He had stated in the House hearings that two or three types of changes in state election law (such as changing from paper ballots to voting machines) could be specifically excluded from § 5 without undermining the purpose of the section. He emphasized, however, that there were “precious few” changes that could be excluded “because there are an awful lot of things that could be started for purposes of evading the 15th amendment if there is the desire to do so.” House Hearings 95. It is significant that Congress chose not to include even these minor exceptions in § 5, thus indicating an intention that all changes, no matter how small, be subjected to § 5 scrutiny.
In light of the mass of legislative history to the contrary, especially the Attorney General’s clear indication that the section was to have a broad scope and Congress’ refusal to engraft even minor exceptions, the single remark of Assistant Attorney General Burke Marshall cannot be given determinative weight. Indeed, in any case where the legislative hearings and debate are so voluminous, no single statement or excerpt of testimony can be conclusive. Also, the question of whether § 5 might cause problems in the implementation of reapportionment legislation is not properly before us at this time. There is no direct conflict between our interpretation of this statute and the principles involved in the reapportionment cases. The argument that some administrative problem might arise in the future does not establish that Congress intended that § 5 have a narrow scope; we leave to another case a consideration of any possible conflict.
The weight of the legislative history and an analysis of the basic purposes of the Act indicate that the enactment in each of these cases constitutes a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” within the meaning of § 5.
No. 25 involves a change from district to at-large voting for county supervisors. The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U. S. 533, 555 (1964). Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting.
In No. 26 an important county officer in certain counties was made appointive instead of elective. The power of a citizen’s vote is affected by this amendment; after the change, he is prohibited from electing an officer formerly subject to the approval of the voters. Such a change could be made either with or without a discriminatory purpose or effect; however, the purpose of § 5 was to submit such changes to scrutiny.
The changes in No. 36 appear aimed at increasing the difficulty for an independent candidate to gain a position on the general election ballot. These changes might also undermine the effectiveness of voters who wish to elect independent candidates. One change involved in No. 36 deserves special note. The amendment provides that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election. This is a “procedure with respect to voting” with substantial impact. One must forgo his right to vote in his party primary if he thinks he might later wish to become an independent candidate.
The bulletin in No. 3 outlines new procedures for casting write-in votes. As in all these cases, we do not consider whether this change has a discriminatory purpose or effect. It is clear, however, that the new procedure with respect to voting is different from the procedure in effect when the State became subject to the Act; therefore, the enactment must meet the approval requirements of § 5 in order to be enforceable.
In these cases, as in so many others that come before us, we are called upon to determine the applicability of a statute where the language of the statute does not make crystal clear its intended scope. In all such cases we are compelled to resort to the legislative history to determine whether, in light of the articulated purposes of the legislation, Congress intended that the statute apply to the particular cases in question. We are of the opinion that, with the exception of the statement of Assistant Attorney General Burke Marshall, the balance of legislative history (including the statements of the Attorney General and congressional action expanding the language) indicates that § 5 applies to these cases. In saying this, we of course express no view on the merit of these enactments; we also emphasize that our decision indicates no opinion concerning their constitutionality.
Y.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Donald K. SMITH, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
No. 73-2453.
United States Court of Appeals, Fifth Circuit.
Oct. 7, 1974.
G. William Baab, Dallas, Tex., for plaintiff-appellant.
Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Robert E. Kopp, Michael Kimmel, Neil H. Koslowe, Dept, of Justice, Washington, D. C., for defendants-appellees.
Before GEWIN, GOLDBERG and CLARK, Circuit Judges.
GE WIN, Circuit Judge:
This federal employee discharge case was heard by the district court on cross-motions for summary judgment, and this appeal is from a decision adverse to the employee. The record before the court was the administrative record compiled in the proceedings before the Hearing Officer from the Veterans’ Administration (VA) and before the Civil Service Commission. Both parties assert that the facts were fully developed and that the administrative record is sufficient to present all pertinent issues for our consideration. Appellant claims that his discharge is vio-lative of his First Amendment right of freedom of speech. We do not find any constitutional violation, and affirm the district court.
I
We commence our analysis of the issue presented with a deep consciousness of the constitutional guaranty of free speech. As stated in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964):
[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
376 U.S. at 270, 84 S.Ct. at 721.
The controversy involved did not arise on the hustings, in a classroom, at a political gathering, on a public street or in a public park. It arose in a Veterans Hospital and relates specifically to the asserted right to engage in “symbolic speech” in the psychotherapeutic ward of the hospital where patients are housed who have been diagnosed as emotionally disturbed and in need of medical supervision and treatment. The appellant is not a physician. In our consideration of the issue we must look to the place, time and circumstances disclosed by the record as well as the type of conduct involved in striking the delicate balance necessary between the legitimate interests of the government and the constitutional rights of the appellant. Attention must also be given to the welfare and rights of the patients who are confined for treatment.
Appellant was a clinical psychologist at the Veterans’ Administration Hospital in Dallas, Texas. He provided therapeutic treatment for veteran patients in need of emotional rehabilitation. On March 2, 1970, he began wearing on his lapel a “peace pin” — a pin, about the size of a nickel, fashioned with the outline of a dove superimposed upon a replica of the American flag. Three days later appellant, Dr. Smith, was informed by his supervisor, Dr. A. J. Jernigan, that hospital policy prohibited employees who were required to wear uniforms from wearing peace pins while on duty and that, in other cases, employees desiring to wear emblems should consult with their supervisors to determine the effect which the wearing of such items might have on patients and the work environment. Dr. Jernigan told Dr. Smith that he felt the prohibition against wearing peace pins on uniforms also applied to staff psychologists who wear suits or sports jackets while performing their duties at the hospital. Appellant continued to wear the pin and, on March 18, he was instructed by Dr. Jernigan not to wear it while on duty. Dr. Jernigan reasoned that the pin might be offensive to some of the patients and that it was inappropriate to introduce any such stimulus into the patient-psychologist relationship.
Appellant refused to remove the pin and, on March 25, 1970, Dr. Jernigan sent him a “letter of admonishment.” This was followed by a notice of intent to reprimand on March 31, and a reprimand on April 7. On April 14, Dr. Jer-nigan sent appellant a notice of proposed removal based upon the following charge: “I have instructed you not to wear a lapel pin while on duty which, in my judgment, could be offensive to patients and thus impair your effectiveness as a psychologist involved in direct patient care. You have continued to wear this lapel pin in defiance of my instructions.”
Appellant requested that a hearing officer from the Veterans’ Administration be appointed to conduct a hearing at the hospital on the proposed removal. A hearing was held on May 6 and 7 and Dr. Smith was represented by counsel. On May 25, Dr. J. B. Chandler, director of the hospital, informed appellant that the charge against him was sustained and that his removal would be effective May 27.
Dr. Smith did not claim a lack of understanding of hospital policy or the instructions given by his superiors. He fully understood but completely disagreed with such policy and instructions. The several conferences between Dr. Jernigan and Dr. Smith and the exchange of letters brought the issue into sharp focus. In a final attempt to gain compliance with his instructions Dr. Jer-nigan submitted two questions to Dr. Smith. The questions and answers are as follows:
Dr. Smith, will you assure me (Dr. Jernigan) that you will not wear a peace pin while on duty? No, not in a thousand years! Is it your intention to continue to wear a peace pin while on duty? Yes, without fail!
Dr. Smith adamantly maintained his position and never yielded in the slightest to the requests and instructions of Dr. Jernigan. He claimed that he had worn the pin in the psychotherapeutic ward for approximately thirty days and had observed no adverse patient reaction. He did mention some comments of disapproval by co-workers. He presented no witnesses at the hearing but did present an article which demonstrated that there existed a difference of opinion by specialists in the area of inquiry. Finally he asserted that other personnel were permitted to wear replicas of the American flag in certain areas of the hospital. The record does not disclose that any other personnel wore emblems of any kind in the psychotherapeutic ward. The evidence tended to show that Dr. Smith was the only member of the staff who did so. We believe it is fair to conclude that the record reveals a direct conflict between the medical opinion of the hospital staff physicians and the opinion of Dr. Smith with respect to the conduct of a psychotherapist in the treatment of patients. As indicated earlier, Dr. Smith is not a physician.
On appeal to the Administrator of the Veterans’ Affairs 'the decision to remove Dr. Smith was affirmed. The decision was also affirmed by the Dallas Region of the Civil Service Commission. Dr. Smith appealed this decision to the Board of Appeals and Review of the Civil Service Commission which affirmed the decision of the Dallas Region. The Board found that Dr. Chandler acted within his authority in placing on appellant the restriction against wearing the peace pin. The Board did not consider appellant’s First Amendment contentions but noted that the “Board is not the proper forum for a decision of this issued [sic]. The Board does not pass on the question of the appellant’s right to wear the pin but only on the question of whether the appellant was justified in wearing it in [sic] the facts of this case in defiance of an instruction not to do so and in arriving at its decision the Board decides whether the removal action was for such cause as to promote the efficiency of the service.”
II
We shall consider appellant’s assertion that his First Amendment right of free speech was infringed because his discharge from employment at the VA Hospital was based on his refusal to stop wearing a peace pin while on duty. Wearing such an emblem for the purpose of expressing certain views is the type of symbolic act that is within the free speech protection of the First Amendment. Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). It is clear that the Government may not prohibit or control the conduct of a person for reasons that infringe upon constitutionally guaranteed freedoms. The approval of such restrictive action would permit the government to “produce a result which [it] could not command directly.” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1473 (1958). Public employment is a benefit which cannot be conditioned upon the denial of constitutional rights. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952).
The Supreme Court recognized in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968), that the government “has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Moreover, this court has observed that “government' should be able to regulate activities which directly interfere with the proper performance of its employees’ duties.” Hobbs v. Thompson, 448 F.2d 456, 470 (5th Cir. 1971). However, government regulations and restrictions on the exercise of First Amendment freedoms “should not lightly be imposed.” Hobbs v. Thompson, supra.
In a case involving the First Amendment rights of school children, Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966), this court held that the students’ right to free and unrestricted expression could not be infringed upon, absent a showing that the exercise of such rights “materially and substantially” interfered with appropriate discipline in the school environment. The material and substantial interference standard was adopted by the Supreme Court in Tinker, supra, in which the Court held that a public school regulation which prohibited students from wearing black armbands violated the students’ rights of free speech under the First Amendment, where there was no evidence that the armbands would cause substantial interference with school work.
When a government employee asserts that his rights have been unconstitutionally infringed, it is necessary to strike a balance between the interests of the employee as a citizen and the interests of the government in promoting the efficiency of the services it performs through its employees. In striking that balance in the context of the First Amendment guaranty of freedom of speech, we feel that the standard of material and substantial interference is the standard to apply. In order for the government to constitutionally remove an employee from government service for exercising the right of free speech, it is incumbent upon it to clearly demonstrate that the employee’s conduct substantially and materially interferes with the discharge of duties and responsibilities inherent in such employment. Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971).
“First Amendment rights must be applied in light of the special characteristics of the environment in the particular case.” Clark v. Holmes, 474 F.2d 928, 931 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695. In the instant case, we feel that the evidence clearly establishes that the wearing of the peace pin by Dr. Smith while on duty resulted in a material and substantial interference with the performance of his duties as a staff psychologist charged with the duty of administering psychotherapeutic treatment to emotionally disturbed veteran patients.
At the administrative hearing before appellant’s removal, Dr. T. A. McDowell, VA Hospital Chief of Staff, testified:
I think the wearing of a peace pin is certainly — has the connotation of being controversial, as far as antiwar, and I think that many of the veterans who have spent many months in the war areas, specifically VietNam, identifying in particular orthopedic patients who perhaps have had one or both legs amputated, and these individuals are counseled by a member of the Psychiatric or Psychology Service to attempt to rehabilitate them mentally, I certainly feel with such a pin being obviously demonstrated on an individual wearing such a pin, that this could possibly be detrimental to their overall care and rehabilitation during the time they are in the hospital as this might develop into a controversial situation in their mind.
Dr. McDowell further stated:
In our opinion this pin did connotate controversy and by the wearing of the pin, it was felt yes, true, that this would be harmful and odious to some patients in psychology review.
Dr. McDowell also noted that appellant “should be aware as a Ph.D. psychologist that this type of exhibit being worn on an individual was detrimental to the welfare, or had the potential of being detrimental to the welfare of patient care.”
Responding to a question as to the possibility of the pin having harmful effects on the patients, Dr. McDowell said:
If, during the period of time they are here they don’t get every consideration and anything is interjected into this treatment, it is going to create all types of complex psychological reactions, because these boys have been under tremendous stress and when some issue is brought in that will be detrimental to their overall long term rehabilitation before they can go out and be useful citizens, this would, as I say, be deleterious to the overall rehabilitation of the patients and may prolong this rehabilitation and may stimulate them to a true psychiatric problem. Something of this nature might possibly be enough to tip the scale. I think there is a possibility that some of these patients might, under a great deal of tension, discussing such a controversial issue in this way, they might develop a psychiatric situation that would be extremely difficult to cope with on a long range basis. It might cause them to become aggressive, hostile. As you know, Mr. Collins, there is a thin line between sanity and insanity. When these issues are brought up, this may be enough to tip the scales against the overall treatment.
Dr. Isham Kimbell, Chief of Psychiatry Service at the VA hospital, explained at the hearing why a therapist should not inject controversial issues into the patient-therapist relationship:
. Over the years, in the field of psychiatry and psychology and in the area of psychotherapy and psy-chotherapeutic treatment, we- have learned some rather basic facts — that the therapist who is involved in dealing with patients who have emotional problems almost has to keep himself as neutral as possible in this situation. It’s distracting, for instance to discuss in any great detail political issues, to interject this into therapy itself. I think wearing of such pin in a therapy situation is just as wrong as it would be if someone would have worn a Nixon button, Humphrey button, Wallace button during the 1968 campaign or any other, Masonic pin, Knights of Columbus. I think all of these things are just as well left out. This is substantially agreed upon by most people who participate in psychotherapy.
Dr. Kimbell characterized the injection of the pin into the patient-psychologist relationship as having a “distracting effect [on] the therapeutic process.” Dr. Kimbell noted that “. . . perhaps the most damaging effect [would be] that it could cause a great deal of time being spent in dealing with something that may not really be appropriate to the patient’s individual problem.” He concluded, “I think it’s always difficult for the patient to actually see what is really upsetting him when other things are introduced into the therapy situation. That’s why I think that a great majority of experienced, skillful therapists avoid this sort of thing. If the pa-, tient brings it up himself, this is another point of view. This is another situation. I think that the therapist in the therapeutic situation should avoid any set of bias, implicitly or explicitly.”
The above-quoted testimony, taken at the administrative hearing and considered by the district court on the cross-motions for summary judgment, supports the rational conclusion that the injection of the peace pin into the therapeutic environment here under consideration presented a material and substantial interference with the performance of appellant’s duties as a staff psychologist. This is more than the “undifferentiated fear or apprehension of disturbance” that the Supreme Court warned against in Tinker, supra. 393 U.S. at 508, 89 S.Ct. at 737, 21 L.Ed.2d at 739. We feel that the Veterans’ Administration was justified in removing appellant from employment when he refused to conform to hospital policy.
The constitutional balancing in this case involves a consideration not only of the separate interests of the appellant employee as a citizen and the Veterans’ Administration with its concern for efficient, orderly, and effective medical treatment, but also the interests of the patients themselves. As the district court properly noted, “[t]he patients have a right not to be subjected to a stimulus which could impair their already precarious emotional state.” The Supreme Court stated in Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284, 291 (1971), that the government is able “to shut off discourse solely to protect others from hearing it upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” We feel that the action of the Veterans’ Administration in insulating the patients from what the hospital administration considered to be a potentially harmful stimulus was well-directed and free from Constitutional imperfections. The appellant would have been free to wear his pin when not on duty in the psychotherapeutic ward, but he could not use that area of the hospital where patients are confined for treatment as a platform for the exercise of prohibited and unrestrained free speech whether “symbolic” or “pure” in the face of the medical opinions of his superiors that such conduct might result in harm to the very patients he is employed to assist in treating.
The able district judge quite clearly based his decision on his belief that the government had only to show a reasonable and rational connection between the conduct for which appellant was discharged and his fitness or capacity to serve. This court has on many occasions held that the “clearly erroneous” test of Rule 52(a) of Fed.R.Civ. Pro. does not apply to findings of fact based on or induced by an incorrect legal standard. E. g., Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1372 n. 20 (5th Cir. 1974); Rowe v. General Motors Corp., 457 F.2d 348, 356 n. 15 (5th Cir. 1972); see 9 C. Wright & A. Miller, Federal Practice and Procedure § 2585 n. 7. In the case sub judice, however, we do not believe that the trial court’s erroneous determination regarding the legal standard by which the government’s action must be measured infected or tainted his findings of fact, and therefore find it unnecessary to remand the case for reconsideration under the “material and substantial disruption” standard. See Davis v. Parkhill-Goodloe Co., 302 F.2d 489, 491 (5th Cir. 1962). Since the trial court’s application of an incorrect legal standard did not infect or taint the findings of fact, this court is bound by the “clearly erroneous” test even though the case was tried without a jury and submitted to the district court entirely upon documentary evidence. The appellant’s burden of showing that the trial court’s findings of fact are clearly erroneous “is not as heavy . . . as it would be if the case had turned on the credibility of witnesses appearing before the trial judge.” Sicula Oceanica, S.A. v. Wilmar Marine Eng. & Sales Corp., 413 F.2d 1332, 1333 (5th Cir. 1969). However, we should overturn the trial court's findings of fact only when “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948). See Volkswagen of America, Inc. v. Jahre, 472 F.2d 557, 559 (5th Cir. 1973). The findings of the district court are clearly supported by the overwhelming weight of substantial evidence, and the appellant has failed to demonstrate that such findings are clearly erroneous.
Ill
The government claims that the district court did not have jurisdiction since the appellant sought neither reinstatement nor back pay. However, the government concedes that the district court would have had jurisdiction had appellant sought reinstatement under 28 U.S.C. § 1361 and back pay under 5 U. S.C. § 5596.
Appellant based federal jurisdiction of his action upon the Tucker Act and alleged that the action was “founded upon the United States Constitution and an Act of Congress, 5 U.S.C. §§ 701 to 706.” In his complaint, appellant sought damages in the amount of $10,000 and “such other relief at law and in equity to which’he may justly be entitled.”
In the pleadings before the district court, the appellant specifically prayed for reinstatement with back pay in his motion in opposition to defendant’s motion for judgment on the pleadings and cross-motion for summary judgment. We feel that this, coupled with appellant’s complaint, was sufficient to establish federal jurisdiction. In Paynes v. Lee, 377 F.2d 61 (5th Cir. 1967), we held that federal jurisdiction may be sustained if authorized by a federal statute even though such statute is not pleaded or relied upon in the district court. In this case, the government was informed by appellant’s cross-motion for summary judgment that he was seeking reinstatement with back pay. We feel that appellant’s failure to cite 28 U.S.C. § 1361 and 5 U.S.C. § 5596 and to pray specifically for reinstatement and back pay was merely a technical flaw and not a basis for denying jurisdiction in the district court.
The judgment of the district court is affirmed.
. The parties stipulated at the hearing before the YA Hearing Officer that the pin in question may properly be identified as a peace pin.
. The hospital policy was stated in the January 6, 1970, issue of “News-o-rama”, a weekly news bulletin of the Dallas VA hospital :
Employees who are required to wear uniforms may not wear peace buttons, armbands, etc., while they are on duty. In other cases, the wearing of such items will be considered on the basis of the extent to which it may or may not disturb the work environment, and employees should consult with their supervisors in individual cases.
. Appellant testified that the pin symbolized, to him, that the concept of peace and the concept of patriotism were not incompatible.
. See also Goldwasser v. Brown, 135 U.S.App.D.C. 222, 417 F.2d 1169 (1969). In Goldwasser, a civilian language instructor at Lackland Air Force Base was dismissed because of certain statements concerning the VietNam war and anti-Semitism made by him to a class of foreign military officers taking an accelerated English course at Lackland. The Circuit Court upheld the dismissal, affirming the Civil Service Commission’s determination that the Air Force’s instructional goals would be jeopardized by Goldwasser’s unrelated and controversial remarks. The court held that Goldwasser’s First Amendment right to free speech was not violated by the limited restriction which required him to keep his opinions to himself in the context of his “highly specialized teaching assignment.” 417 F.2d 1169, 1177 (1969).
. 28 U.S.C. § 1346(a)(2) in relevant part provides:
The district courts shall have original jurisdiction, concurrent with the Court of Claims, of any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress
. See also Bivens v. Six Unknown Named Agents of Federal Bureau of Investigation, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_civproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
John H. LEWIS, Plaintiff-Appellant, v. FEDERAL PRISON INDUSTRIES, INC., a corporation chartered under the laws of the United States, Defendant-Appellee.
Nos. 88-3570, 88-3774.
United States Court of Appeals, Eleventh Circuit.
Feb. 18, 1992.
Terrence T. Dariotis, Kahn & Dariotis, Michael R. Kercher, David K. Miller, Broad & Cassel, Tallahassee, Fla., for plaintiff-appellant in No. 88-3570.
Terrence T. Dariotis, M. Stephen Turner, Michael R. Kercher, David K. Miller, Tallahassee, Fla., for plaintiff-appellant, in No. 88-3774.
Kenneth W. Sukhia, Asst. U.S. Atty., Tallahassee, Fla., for defendant-appellee.
Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HILL, Senior Circuit Judge.
HILL, Senior Circuit Judge:
Appellant, a former employee of appel-lee, Federal Prison Industries, challenges the district court’s conclusion that, although appellant established his case of constructive discharge in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 633a, appellee’s offer of reinstatement six weeks after his discharge “cut off” his right to recover lost wages and benefits. Although normally such an offer would indeed terminate rights to recover lost income or benefits, we agree with appellant that, in this case, the circumstances of his discharge nullify the remedial effects that such an offer would usually engender.
FACTS
Appellee, Federal Prison Industries, (“FPI”), employed appellant, John H. Lewis, from May 28, 1970 through December 29,1982 at the Federal Correctional Institution (“FCI”) in Tallahassee, Florida. For the last several years of his employment, Lewis held the position of woodcrafter assembly foreman, and reported to a general foreman, William C. Tidwell.
As we have already noted in a previous opinion, Lewis v. Federal Prison Industries, 786 F.2d 1537 (11th Cir.1986), the factories manager, Scott Graham, hired thirty-four year old Patty Baker in 1981, ostensibly for the position of assistant assembly foreman. Tidwell, however, rather than Lewis, supervised Baker, and by the fall of 1981, Tidwell had informed Lewis that he would replace him with a woman. Soon after Lewis became eligible for retirement, Tidwell initiated a campaign of harassment designed to force Lewis’ early retirement. Although Tidwell knew that a doctor had prescribed valium for Lewis, and that pressure at work would upset him, Tidwell made Lewis “follow the book to the letter,” and ensured his continued discomfort at work.
Tidwell at first primarily directed verbal abuse at Lewis. For example, he upbraided Lewis in the presence of other FPI and FCI employees; he also advised other employees to avoid Lewis. Tidwell often reminded Lewis that Patty Baker would replace him, and that Lewis should “go ahead and retire.” By March, 1982, however, Tid-well’s harassment had intensified. Tidwell told Lewis that if he insisted on remaining at FCI, he would not permit him to sit. Tidwell therefore directed others to remove Lewis' desk chair, and to move his desk into the middle of an open area so that Tidwell could easily observe him at all times.
Tidwell continued to pressure Lewis to retire. In April, 1982, he advised Lewis that his current performance evaluation would be his last satisfactory one. Inmates and others, furthermore, at times observed Tidwell shouting at Lewis. In July, 1982, Tidwell charged Lewis with criminal activity at the facility, but the FCI administration dropped the charges when a subsequent investigation revealed that Tid-well had made at least one false statement regarding the allegations. Nonetheless, in July and August, 1982, Tidwell “coun-selled” Lewis for certain production problems; another foreman testified that Tid-well blamed Lewis for problems caused by other employees.
In August, 1982, Lewis consulted his doctor, Dr. Henry, who prescribed medication for Lewis’ nerves and ordered him to take a week off from work. When Lewis returned to work, he submitted a certificate from Dr. Henry, stating that Lewis suffered from “acute agitated depression.”
On October 4, 1982, Tidwell gave Lewis the poor six-month performance that he had promised. The next day, Dr. Henry placed Lewis on immediate sick leave, and advised him not to return to work. Lewis continued to receive treatment from Dr. Henry and from a psychiatrist, Dr. Moore, both of whom advised him not to return to FCI. On December 29, 1982, Lewis applied for retirement.
On January 5, 1983, Warden Joseph P. Bogan offered Lewis reinstatement to his former position at FCI. Both Dr. Henry and Dr. Moore, however, warned Lewis that he should not return to work at FCI, and Lewis rejected reinstatement.
JUDICIAL PROCEEDINGS
On January 24, 1983, Lewis filed suit in the United States District Court for the Northern District of Florida, alleging that the appellee had constructively discharged him in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 633a (“ADEA”). In its initial judgment, the court concluded that Lewis failed to establish a prima facie case of age discrimination; it reasoned that it could not hold FPI responsible for Tidwell’s conduct. This court reversed, holding that FPI’s management had actual and constructive knowledge of many of the discriminatory actions directed against Lewis, and knew or should have known that no one had implemented effective remedial measures. This court therefore held that Lewis had established a prima facie case against FPI for age discrimination, and remanded the case for further proceedings. Lewis, 786 F.2d at 1545.
On remand, the district court heard additional argument, and reconsidered the evidence adduced at the previous trial. The court then concluded that FPI’s explanation for Lewis’ resignation was pretextual, and that FPI had indeed constructively discharged him in violation of the ADEA. The court also concluded, however, that Lewis curtailed his right to recover lost wages and benefits when he rejected FPI’s offer of reinstatement six weeks after his constructive discharge. The court therefore awarded Lewis only the wages and increased retirement benefits that he had lost during the six-week period between his constructive discharge and the warden’s offer of reinstatement, and directed the parties to calculate those damages. The court subsequently entered an order awarding Lewis net back pay of $940.89 plus interest, an increase in retirement benefits of $4.00 per month, and an increase in Mrs. Lewis’ survivor annuity by $2.40 per month.
Lewis then filed this appeal challenging the district court’s limitation of his right to recover lost wages and benefits to the six-week period before the offer of reinstatement.
ISSUES
Lewis now challenges the district court’s conclusion that he unreasonably rejected appellee’s offer of reinstatement. Lewis also contends that the court abused its discretion in its award of damages under the ADEA. Lewis finally argues that the district court should have awarded him attorneys’ fees under the ADEA.
DISCUSSION
The Offer of Reinstatement
We must first consider whether Lewis reasonably rejected Warden Bogan’s offer of reinstatement, for our resolution of that issue will determine whether we need address his other contentions. As a general rule, “a Title VII claimant’s rejection of a defendant’s job offer normally ends the defendant’s ongoing responsibility for back pay_” Ford Motor Co. v. EEOC, 458 U.S. 219, 241, 102 S.Ct. 3057, 3070, 73 L.Ed.2d 721 (1982). As the Supreme Court has noted, such a rule “encourage[s] Title VII defendants promptly to make curative, unconditional job offers to Title VII claimants, thereby bringing defendants into ‘voluntary compliance’ and ending discrimination far more quickly than could litigation proceeding at its often ponderous pace.” Ford Motor Co., 458 U.S. at 228, 102 S.Ct. at 3063. Nonetheless, although the law encourages claimants to accept offers of reinstatement, it does not, in every circumstance, require them to do so, and for that reason, we have established in this circuit that “front pay is an available remedy under the ADEA.” O’Donnell v. Georgia Osteopathic Hospital, 748 F.2d 1543, 1551 (11th Cir.1984). See also Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1562 (11th Cir.1988) (“Admittedly, awarding prospective relief involves some risk of uncertainty, but that in itself does not preclude an award of such relief.”)
In Stanfield v. Answering Service, Inc., 867 F.2d 1290, 1296 (11th Cir.1989), we held that, once an employer makes a “good faith” offer of reinstatement, “claimants forfeit their right to reinstatement unless their refusal of the employer’s offer is reasonable.” In the instant case, the evidence amply supports the district court’s implicit finding that Warden Bogan made his “unconditional” offer of reinstatement in good faith. Nonetheless, our analysis does not end with this comfortable conclusion, for our examination of Lewis’ reasons for rejecting Bogan’s offer compels us to agree with appellant that this rejection was “reasonable.” Stanfield, 867 F.2d at 1296.
As the Fourth Circuit has noted in a similar context, the “infinite variety of factual circumstances that can be anticipated do not render any remedy of front pay susceptible to legal standards for awarding damages.” Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.1991). Several courts, however, have outlined factors they consider when determining whether reinstatement, or front pay, provides the more appropriate remedy for a successful claimant.
Many courts, including this one, have noted that “[f]ront pay may be particularly appropriate in lieu of reinstatement where discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy.” Goldstein v. Manhattan Industries, 758 F.2d 1435, 1449 (11th Cir.1985), cert. den. 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985). See also E.E.O.C. v. Prudential Federal Savings and Loan Ass’n, 763 F.2d 1166, 1172 (10th Cir.1985), cert. den. 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985); Dickerson v.. Deluxe Check Printers, Inc., 703 F.2d 276, 281 (8th Cir.1983).
In Eivins v. Adventist Health System, 660 F.Supp. 1255 (D.Kan.1987), another court listed several factors that would help determine the advisability of front pay, rather than reinstatement, as a remedy for victims of discrimination. In Eivins, the court favored front pay over reinstatement where “defendant’s management ... intimidated or threatened [claimant],” and where “the evidence indicated [ ] that [claimant’s] self worth was crushed by his dismissal.” 660 F.Supp. at 1263.
Courts have also considered the date of a claimant’s retirement in considering the advisability of front pay. In Blum v. Witco Chemical Corp., 829 F.2d 367, 376 (3rd Cir.1987), for example, the court held that front pay was an appropriate remedy, and noted that it would “assume[] that the plaintiff would have remained with the employer until normal retirement age [ ] [s]ince plaintiffs were all within eight years of ... retirement_” See also Eivins, 660 F.Supp. at 1264 (“The plaintiff is 57 years old and nearing the usual age of retirement. Because the time period for which front pay is being awarded is relatively short, reinstatement may be inappropriate.”)
In the instant case, Dr. Moore, a psychiatrist treating Lewis, testified that Lewis experienced a “reactive” depression in response to the discriminatory acts that occurred at FCI. Dr. Moore further testified that, although Lewis’ health had improved since he left FCI, his symptoms would return should he return there:
Based upon the degree of depression, agitation, physiological complaints that I saw with Mr. Lewis, and the subsequent relief of many of these complaints that I have seen with Mr. Lewis subsequent to his not returning to work, and based upon my clinical experience, it’s my impression that should Mr. Lewis return to that environment we would have a return of significant symptoms.
* * * * * *
My opinion is that should he have to return to that place of employment, that those symptoms would be significantly increased, that Mr. Lewis would again be depressed, that he would again become anxious, that he would again demonstrate psychosomatic disfunction.
Dr. Moore also testified that Lewis’ depression would recur if he returned to FCI, even if no additional discrimination occurred there. Finally, he characterized Lewis’ “... decision to stay away from that former place of employment” as “a very good, sound, healthy decision.”
In our view, Lewis’ circumstances offer mány of the factors that courts traditionally consider when assessing the value of front pay. His experiences at the courthouse involved him in antagonistic relationships with his supervisors, who intimidated him and isolated him from his peers. At the time of his constructive discharge, moreover, Lewis was only four years away from the date of his mandatory retirement, so we may fairly assume that Lewis would have remained at FCI until the time of that retirement.
For our purposes today, however, the most important factor remains the evidence adduced at trial that the discrimination endured by Lewis in effect disabled him. We note in this regard that the Ninth Circuit has recently approved front pay as a remedy where “... there is evidence from a mental health practitioner and doctors that [claimant] could not work at all or, as one said, should never work at any branch of the [employer] again.” Ortiz v. Bank of America National Trust and Savings Association, 852 F.2d 383, 837 (9th Cir.1988). In this case, the uncontradicted evidence showed that Lewis could not return to his former work environment without suffering a return of the symptoms that so debilitated him in the first place. In this instance, Warden Bogan’s offer of reinstatement, however sincere, became a futile gesture that did not, under the facts of this case, terminate Lewis’ claim.
We caution, as have other courts before us, that “[b]ecause of the potential for windfall, [the] use [of front pay] must be tempered.” Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.1991). Front pay remains a special remedy, warranted only by egregious circumstances. Although we have listed several factors that may prompt our resort to this sort of relief, we emphasize that in many cases the remedy of reinstatement will continue to suffice despite the presence of any one of these factors. Here, Lewis emerged from an antagonistic, discriminatory work environment with an emotional disturbance that rendered him unfit to return to that environment, within a time frame that left him only four years until the date of his mandatory retirement. Not every claim, however legitimate, will produce circumstances which so clearly mandate the remedy of front pay.
Attorney s Fees
The district court concluded that the language of 29 U.S.C. § 633a(c) was not sufficient to overcome either the so-called “American rule” of attorney’s fees, or the doctrine of sovereign immunity. We agree.
The “American Rule” provides that, unless there exists statutory or contractual provisions to the contrary, litigants must pay their own attorney’s fees. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Thus the party seeking attorney’s fees pursuant to statutory authority must demonstrate that Congress clearly intended to allow such recovery. Fitzgerald v. United States Civil Service Commission, 554 F.2d 1186, 1189 (D.C.Cir.1977).
Congress explicitly permitted claimants in the private sector to recover attorney’s fees by incorporating Section 216(b) of the Fair Labor Standards Act (“FLSA”) into the ADEA. See 29 U.S.C. § 626(b). Section 216(b) of the FLSA permits courts to “allow a reasonable attorney’s fee to be paid by defendant_” Although Congress subjected government employees to the Act in 1974, it did not apply Section 216 to the public sector. Instead, Congress provided only that a federal claimant could receive “such legal and equitable relief as will effectuate the purposes of this chapter.” 29 U.S.C. § 633a(c). In 1978, moreover, Congress further amended the ADEA to provide that its provisions applicable to government employees “shall not be subject to, or affected by, any provision of this chapter [other than one irrelevant exception] and the provisions of this section” 29 U.S.C. § 633a(f). Thus, in Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 2705, 69 L.Ed.2d 548 (1981) the Supreme Court characterized this section as “self-contained and unaffected by other sections .... ”
We recognize that in Lehman the Supreme Court was expressly addressing only the right to a jury trial, a procedural matter under Byrd v. Blue Ridge Rural Electric Co-op., 356 U.S. 525, 536, 78 S.Ct. 893, 900, 2 L.Ed.2d 953 (1958). Nonetheless, as another court has reasoned:
Just as section 7 expressly authorizes a jury trial in private ADEA cases, section 7 expressly incorporates the provisions of the FLSA ... authorizing awards of attorneys’ fees and liquidated damages. If Congress had intended that the same type of relief should be available in federal employee ADEA cases it could easily have included the same language in section 15. Congress’ failure to do so suggests that it intended that FLSA remedies would not be available in federal employee ADEA cases.
Muth v. Marsh, 525 F.Supp. 604, 608 (D.D.C.1981).
The United States remains “immune from suit save as it consents to be sued_” Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). (citation omitted). If Congress had intended to permit claimants to recover attorney’s fees in suits against the government under the ADEA, then it had ample opportunity to do so. In both private sector ADEA and Title VII cases, Congress explicitly authorized attorney’s fees. Its failure to include such provisions in this context compels us to determine that Congress did not intend to provide this remedy for public sector litigants.
CONCLUSION
We REVERSE the district court’s conclusion that Lewis’ rejection of his employer’s offer of reinstatement curtailed his right to recover lost income and benefits until the date of his mandatory retirement. We AFFIRM, however, the district court’s conclusion that 29 U.S.C. § 633a does not authorize us to award attorney’s fees to claimants in the public sector. Although appellant requests that we “guide” the district court in its calculation of the damages owed him by appellee, we choose instead to REMAND the matter to the district court so that it may determine the damages due appellant.
REVERSED in part, AFFIRMED in part, and REMANDED.
. The district court also noted that:
Although defendant attempts to paint a rosy picture of the warm relationship between its employees and plaintiff and the open arms with which it awaits plaintiffs return, common sense dictates otherwise.
Eivins, 660 F.Supp. at 1263. We hesitate, however, to rely too heavily on this language, for it is all too easy to characterize an offer of reinstatement in cynical terms. We remain mindful, nonetheless, that an employers’ past conduct can sometimes illuminate hidden motives in post-litigation behavior. Not every employer in these circumstances undergoes a moral reawakening. On the other hand, not every employer, once it appreciates the extent of illegal discrimination, permits it to continue.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_procedur
|
B
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
McMAN OIL & GAS CO. v. HURLEY et al.
Circuit Court of Appeals, Fifth Circuit.
March 19, 1928.
No. 5050.
1. Mines and minerals <§=105 (2) — Authority to execute conveyance was conclusively presumed, where secretary’s certificates showed resolutions of executive committee and directors authorizing sale.
Where certificates of secretary, showing resolutions of executive committee and board of directors of corporation authorizing and approving sale of oil lease, were issued and delivered to purchaser, it was conclusively presumed that the resolutions were adopted and that corporate authority was given to execute conveyance.
2. Corporations <@=>422(1) — Corporation is es-topped to deny authorized representations of its officers and'agents.
Corporation is estopped to deny representations of its officers and agents, made within the scope of their authority.
3. Frauds, statute of <@=63(2)— Purchaser’s oral agreement, after sale of oil lease, to re-convey, held inadmissible under statute.
Alleged oral agreement of purchaser of oil lease, after sale was made, to reconvey upon return of purchase price within 60 days, held inadmissible under statute of frauds.
4. Evidence <@=230 (3) — Title, having passed, cannot be impeached by vendor’s declaration that it passed conditionally.
After title to property has passed to purchaser, it cannot be impeached by the vendor’s declaration that sale was conditional only.
5. Mines and minerals <@=74 — Failure of vendor of oil lease to attempt to comply with alleged condition permitting repurchase within time agreed rendered purchaser’s title absolute.
If purchaser of oil lease entered into agreement with vendor to reconvey on return of purchase price within 69 days, purchaser’s title became absolute, where no attempt was made to comply with the condition within the time limit agreed upon.
6. Evidence <@=244(1 i) — Declaration that ■ Its officer had agreed to give bribe for sale of oil lease held not binding on purchaser corporation and insufficient to show bribery.
Purchaser of oil lease, sued by receivers of vendor corporation to set aside conveyance as fraud on creditors, held not bound by declaration of vendor’s officer concerning agreement of purchaser’s officer to give bribe for sale, since conversation was not part of res gestee but constituted mere narration of past event, and charge of bribery was therefore not sustained.
7. Fraudulent conveyances <@=298(I)— Evidence held insufficient to support finding that sale of oil lease by corporation at time of financial embarrassment and decline in price of oil was made to defraud creditors.
In suit by receivers of oil company to set aside corporation’s sale of oil lease, made at time price of oil had considerably declined and corporation was financially embarrassed, evidence held insufficient to support finding that sale was made with intent to hinder, delay, or defraud creditors, notwithstanding close family relations between officers and stockholders of two companies and profits realized from property after sale, where insolvency of grantor was not satisfactorily shown.
8. Fraudulent conveyances <@=249 — Year’s delay by receivers held to bar suit to set aside sale of corporation’s oil lease as fraud on creditors.
Suit by receivers of oil company to set aside sale of corporation’s oil lease as fraud on creditors held barred by laches, where receivers delayed bringing suit for one year, after having acquired knowledge of all essential facts upon which suit was based, on account of belief that transaction was profitable to corporation.
9. Fraudulent conveyances <§=248 — Vendor’s receivers on purchaser’s refusal to reconvey oil lease as agreed were required to act promptly to set aside sale as fraud on creditors.
Receivers of oil company, upon receiving notice of refusal of purchaser of oil lease to re-convey in alleged violation of agreement, were required to act promptly to set aside sale on account of fraud, especially in view of fluctuation in prices of oil-producing properties, and receivers could not wait and determine in the light of subsequent events whether it would be to their advantage to recognize the sale as valid.
Appeal from tlie District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge.
Suit by P. J. Hurley and another, receivers of the Gilliland Oil Company, against the McMan Oil & Gas Company. From a decree for complainants defendant appeals.
Reversed and remanded, with directions.
John Rogers, of Tulsa, Okl., Harry H. Rogers, of San Antonio, Tex., A. B. Flanary, of Dallas, Tex., A. H. Carrigan, of Wichita Falls, Tex., and R. L. Batts, of Austin, Tex. (Carrigan, Britain, Morgan & King, of Wichita Falls, Tex., and Flanary & Aldredge, of Dallas, Tex., on the brief), for appellant.
T. R. Boone, of Wichita Falls, Tex., John M. Atkinson, of St. Louis, Mo., J. M. McCormick, of Dallas, Tex. (McCormick, Bromberg, Leftwich & Carrington, of Dallas, Tex., Atkinson, Rombauer & Hill, of St. Louis, Mo., Boone & Humphrey, of Wichita Falls, Tex., and Robert H. Richards, of Wilmington, Del., on the brief), for appellees.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
BRYAN, Circuit Judge.
On May 11, 1921, the Gilliland Oil Company conveyed to the McMan Oil & Gas Company an interest in oil-producing land, designated in the record as the Hardin lease. The conveyance was absolute in form, and was authorized by the executive committee of the Gilliland company’s board of directors. A resolution of the board of directors, dated May 19, purporting to approve the sale, appears in the minutes; but whether it was adopted by a majority vote depends upon conflicting evidence as .to whether a director named McCullough was present. However, it is shown by undisputed testimony that the secretary certified that both sets of resolutions were regularly adopted by a majority vote, and his certificates to that effect‘Were delivered by the general attorney of the Gilliland company to the general attorney of the McMan company after the latter had insisted upon the sale being approved by resolution of the directors.
On November 20, 1922, this suit was brought by P. J. Hurley and John J. Satterthwait, as receivers of Gilliland company, against the McMan company, to have the conveyance in question- decreed to be a mortgage, or to have been made with intent to hinder, delay, or defraud creditors of the grantor. The bill alleged that at the time of such conveyance the Gilliland company was insolvent, in the sense that it was unable to pay its debts as they matured in the course of business. Appellant defended on the grounds that it paid adequate consideration, was the purchaser of an unconditional title in good faith, without notice of the grantor’s insolvency, and that the suit was barred by laches. The purchase price, which was promptly paid, was a million dollars. Before this suit was brought, the net profits exceeded that sum. On final hearing, the District Court held that the sale was made in fraud of creditors, and that appellant had notice, though not actual knowledge, thereof, and ordered that the sale be set aside, and that appellant account to the receivers for the profits it had received over and above the purchase price.
The Gilliland company was engaged in trading in oil properties and in producing and selling oil therefrom. It was incorporated under the laws of Delaware, with its principal office at Tulsa, Okl. In July of 1921 Hurley and Satterthwait were appointed receivers of that company by the Federal Distriet Court of Delaware and ancillary receivers by the Federal District .Court for the Northern District of Texas. The bill of complaint was filed on behalf of preferred stockholders, and charged the sale of property in Louisiana for less than its value,' but did not attack the sale of the Hardin lease to appellant. In May of 1922 the Gilliland company was reorganized, and its assets were ordered returned to it as a solvent, going concern ; and, except for the purpose of bringing this suit, the receivership was terminated.
At the beginning of the year 1921, crude oil and its by-products commanded high prices; but in January of that year those prices began to decline rapidly. The price of crude oil dropped from $3.50 to $4 per barrel in January to $1.50 by May 11, the date of the conveyance in question. It continued to decline until in September, when it fell to the low level of $1 per barrel. Of course, the price of by-products declined in proportion. Beginning in September, prices began to advance. During this period of depression many oil operators either failed or were seriously embarrassed. Many banks that financed oil operators were in a precarious condition, and some of them also failed. The Gilliland company found itself in great financial difficulty, although it is not claimed that at any time its liabilities exceeded its assets. John -W. Gilliland was its president, and owned about 75 per cent, of its common stock. Hurley, who was later one of its receivers, and J. H. Boxley were active vice presidents. Gilliland and Boxley were interested in a number of banks in Oklahoma and Texas, and resorted to the devices of kiting checks and making accommodation notes to secure money for their corporation, which continued to expand its business by making additional purchases until as late as the middle of April. In order to raise the money which the corporation needed to pay its debts, including the debts evidenced by fictitious paper in banks, which, though not definitely fixed by the evidence, ranged somewhere be* tween one and two million dollars, the disputed sale of the Hardin lease was made, and the proceeds of the sale were applied in the payment of its debts. The McMan Oil & Gas Company also had its principal office at Tulsa, and, as its name implies, was engaged in the oil-producing business. J. A. Chapman, R. M. MeFarlin, and H. G. Barnard were its president, vice president, and treasurer, respectively, and together owned more than 75 per cent, of its capital stock. They were familiar with the Hardin lease, by reason of the fact that the McMan company owned a one-eighth interest in it at the time of the conveyance by the Gilliland company. Gilliland, Boxley, Chapman, McFarlin, and Barnard were all related to each other by blood or marriage. Negotiations for the conveyance of the Hardin lease were conducted by Boxley and Barnard, and, according to their testimony, that conveyance was intended to evidence an outright, unconditional sale. The court found that the fair market value of the property at the time of the transaction was approximately $1,784,000. The Hardin lease represented about one-third of the value of the Gilliland company’s total assets. Approximately $3,600,000 of preferred stock had been issued and was held by investors living in New York.
About a month after the conveyance was made, representatives of preferred stockholders called upon Chapman with the view of reacquiring the property. They stated to him that they had been informed by Gilliland that this could be accomplished by returning the purchase price of a million dollars with interest within a reasonable time. Gilliland testified that he had made a statement to this effect to the board of directors of Gilliland company at the time the resolution approving the sale was adopted. He further testified that he never discussed the return of the property with Chapman, but that Barnard agreed, after the sale was made, to a reconveyance upon the return of the purchase price within 60 days. Chapman and Barnard denied that there was any such understanding, but Chapman offered to reeonvey the property upon those terms being accepted and complied with within two weeks.
Upon request, the time was extended about two weeks more, but Chapman’s offer was not accepted. In the meantime, engineers made an investigation and reported to the parties interested in securing a reconveyance that the property was worth less than the sum that the McMan company had paid for it. In September, Hurley, one of the receivers, made practically the same offer, but it was declined. J. W. Hayes, secretary of the Gilliland company, testified that he heard Barnard say that that company could have the property back at any time it returned the money, but that witness was unable to say that the statement was made before the contract was executed. J. H. Maxey, general attorney for the Gilliland company, N testified that, after the sale was agreed upon, but before the resolution of the board of -directors approving it was passed, Boxley told.him that Barnard had agreed to pay Boxley a bribe of $150,000 for making the sale. That witness, however, does not claim that he disclosed this information to the board of directors, or to any of the other officers of the company he represented. Besides this, he co-operated with the general attorney of the McMan company in the preparation of the final papers, and never mentioned the alleged bribe to him, and represented the receivers as attorney throughout the receivership proceedings. Hurley, one of the receivers, testified that he first learned of Boxley’s alleged admission to Maxey of being promised a bribe by Barnard in November of 1921, but admitted that Barnard denied the truth of the charge. And there was no direct evidence that the corrupt agreement was in fact made. The testimony of the several witnesses for appellees, to the effect that appellant’s officers had stated after the sale was made that it would reeonvey upon the return of the purchase price, was received over appellant’s objection and exception, as was also the testimony relating to Maxey’s alleged conversation with Boxley on the subject of a bribe being paid by Barnard. In addition, Boxley denied that any such conversation was ever had, and both he and Barnard denied that the alleged bribe was ever offered.
The testimony discloses that the principal officers and stockholders of the McMan company knew in a general way that the Gilliland company was in need of money to pay its pressing obligations, and in order to get it was under the necessity of disposing of some of its holdings at a possible sacrifice because of greatly depressed, market conditions; but it does not show that they had knowledge or could reasonably be charged with notice that the sale of the Hardin lease would so reduce its assets as to bring about a condition of insolvency.
In our opinion it sufficiently appears that corporate authority was given to execute the conveyance of the Hardin lease to appellant.. The resolutions, both of the executive committee and of the board of directors, purport to have been adopted by majority votes. It is conclusively presumed that they were so adopted by reason of the certificates to that effect issued by the secretary and delivered to appellant by the general attorney of the Gilliland company. A corporation is estopped to deny the representations of its officers and agents made within the scope of their authority. Whiting v. Wellington (C. C.) 10 F. 810; Holden v. Whiting (C. C.) 29 F. 881; Prentiss Tool & Supply Co. v. Godchaux (C. C. A.) 66 F. 234; Commonwealth v. Reading Savings Bank, 137 Mass. 431; Holden v. Phelps, 141 Mass. 456, 5 N. E. 815. The conveyance was not a mortgage. Under no phase of the evidence was the consideration shown to be a loan. The utmost that was claimed by witnesses for appellees was that a sale was made upon condition that the property sold could be repurchased.
That testimony went no further than to show that the condition was imposed by appellant after the sale was consummated; but it was oral testimony, and in our opinion was inadmissible under the statute of frauds. 27 C. J. 207. After title has passed, it cannot be impeached by the vendor’s declaration that it was conditional. Greenleaf, § 189. But, assuming the admissibilty of that testimony, the right claimed was to repurchase within the definite period of 60 days. There was no testimony that such right should continue for a reasonable time, as is contended by appellees. No attempt was made to comply with the alleged condition within the time limit that was agreed upon, and so appellant’s title became absolute. Campbell v. Fetty (C. C. A.) 271 F. 671. We are of opinion also that the evidence, even of appellees, fails to show that the conveyance was made with intent to hinder, delay, or defraud creditors of the Gilliland company. The charge of bribery must fail, because it is only supported by an alleged declaration of an officer of appellees which it is not claimed was made until after the execution of the contract of sale. The alleged conversation between Boxley and Maxey was not a part of the res geste, or made during the continuance or in pursuance of a common plan designed by Boxley and Barnard, but was a narrative of a past event. Under no possible view could it be binding on appellant. There was no other circumstance tending to sustain the charge of bribery.
The evidence does not appear to us sufficient fairly and reasonably to support the conclusion that the Gilliland company made the sale with intent to hinder, delay, or defraud its creditors. In the first place, insolvency of that company is not satisfactorily shown. The most that appears is that that company, in order to pay its debts, was obliged to sell some of its holdings at a sacrifice because of depressed market conditions. No improper use was made of the proceeds of the sale, but they were devoted to the payment of debts. The officers of the McMan company were, of course, acquainted with the financial situation that confronted oil companies generally, and besides knew that the Gilliland company was badly in need of money. But, as it appears to us, the evidence falls short of showing that they were chargeable with notice that the Gilliland company was insolvent, even conceding the existence of a state of actual insolvency. In arriving at this conclusion, we have given full weight to the circumstance that close family relations existed between the principal officers and stockholders of the two companies, But, aside from all the foregoing considerations, we are of opinion that this suit is barred by laehes. Hurley, one of the receivers, and formerly a vice president of the Gilliland company, knew of the sale in question. The original suit, in which- he was appointed one of the receivers, was brought in July of 1921. It is significant that the sale here complained of was not attacked during the entire period of the receivership, which was not terminated until May of 1922. Certainly the preferred stockholders, on whose behalf the receivership proceedings were instituted, knew of the sale, for, within a few weeks after it was made, they negotiated for a repurchase. The reason that they did not reacquire the Hardin lease may reasonably be ascribed to their belief that it was not worth more than the price at which it had been sold. Hurley was notified in September of 1921 that the purchaser would not re-convey the property, but would insist upon holding the title it had acquired. Upon receiving notice of the refusal of the purchaser to reconvey, it became the duty of the receivers to act promptly, especially in view of the great fluctuation in the prices of oil-producing properties. They could not wait and determine in the light of subsequent events whether it would be to their advantage to recognize the sale as valid or to repudiate it as invalid. Hurley excused the delay until November of 1921 on the ground that he did not earlier learn of Barnard’s ‘alleged bribery of Boxley. But it stands admitted that there was a delay in bringing suit oí; a year after Hurley was in full possession of all the essential facts on which the suit was based. In the meantime it developed that the purchase of the Hardin lease was profitable to appellant. It is not equitable to allow appellees so to speculate on the value of the property involved. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328.
The decree is reversed, and the cause remanded, with directions to dismiss the bill of complaint.
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_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.
CUDDY v. UNITED STATES.
No. 2449.
Circuit Court of Appeals, First Circuit.
Nov. 8, 1930.
James A. Donovan, of Lawrence, Mass. (Joseph M. Hargedon, of Lawrence, Mass., on the brief), for appellant.
Raymond U. Smith, U. S. Atty., of Woodsville, N. H.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
BINGHAM, Circuit Judge.
This is a libel brought by the United States against one BuiCk coupe, serial No. 2053507, engine No. 2127375, in which it is alleged that on the 24th day of August, 1929, federal prohibition agents seized said automobile then being used in the unlawful transportation of liquor, within tho jurisdiction of the District Court of New Hampshire, in violation of the National Prohibition Act, by John E. Cuddy, Jr., of Lawrence, Mass., who was convicted in said court on September 9, 1929; and that the automobile was released on bond.
The prayer was that the coupé be ordered forfeited and sold at public auction by tho marshal, after due notice to all persons claiming to have -any interest therein, etc.
An order to show cause was duly issued, and on October 11, 1929, John E. Cuddy, Jr., filed a claim setting out that he was the owner of the automobile, and an answer in which he denied the allegations of the libel and alleged that the automobile was improperly seized, in violation of his constitutional rights. Ho asked that the automobile be returned to him.
A jury having been waived in writing, the case was heard before the District Judge on October 25, 1929, at which time the claimant filed a motion to suppress all evidence obtained by tho search and seizure of the automobile. This motion was denied, subject to exception.
After hearing, the court entered a decree of forfeiture reading as follows:
“This causo came on for hearing on the 25th day of October, 1929, and it appearing that the claimant, John E. Cuddy, Jr., of Lawrence, Massachusetts, pleaded guilty to and was convicted of the unlawful transportation of the intoxicating liquor in said automobile, and knew or might have known of the unlawful transportation of said intoxicating liquor in said automobile, and that no good cause is shown why said automobile should be returned, it is therefore ordered, adjudged and decreed that said automobile bo and the same hereby is forfeited.”
Of the errors assigned the only one relied upon and here argued is: “That the court erred in decreeing the forfeiture of the automobile.”
Under this assignment the appellant claims that three questions are presented: (1) Whether there was probable cause to search the automobile; (2) whether the plea of guilty estopped the appellant from raising the question of illegality of the seizure; ■and (3) tho sufficiency of the libel.
The question of tho sufficiency of the libel is not open on this record. No question was raised as to its sufficiency in the District Court, and if there had been it could not be availed of under this assignment of error.
This libel is brought under the provisions of section 26 of title 2 of the National Prohibition Act (27 USCA § 40), the District Court having failed, on the conviction of Cuddy of the unlawful transportation of liquor in tho automobile, to order a forfeiture or sale of the automobile.
Section 26 provides:
“See. 26. When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any * * * automobile * * *, or other vehicle, it shall he his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle * * * and shall arrest any person in charge thereof. Such officer shall at once proceed against tho person arrested under the provisions of this title in any court having competent jurisdiction; but the said vehiele * * * shall he returned to the owner upon execution by him of a good and valid bond, * * * approved by said officer * * * conditioned to return said property to the custody of said officer on the day of trial to abide the judgment of tho court. Tho court upon conviction of tho person so arrested * * * unless good cause to the contrary is shown by the owner, shall order a sale by public auction of tho property seized, and tho officer making tho sale, after deducting the expenses of keeping tho property, the fee for the seizure, and the cost of the sale, shall pay all liens, according to their priorities, which are established, by intervention or otherwise at said hearing or in other proceeding brought for said purpose, as being bona fide and as having been created without tho lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor, and shall pay the balance of the proceeds into the Treasury -of the United States as miscellaneous receipts.”
On the question of probable cause to search the automobile the District Court found that some weeks prior to August 24, when the seizure was made, Eager, a prohibition officer, received information from two sources, which ho believed was reliable, that the car in question was being used every Saturday in the transportation of liquor from Salisbury, Mass., to Hampton BeacH in New Hampshire; that it left Hampton Beach for Salisbury every' Saturday around 3 p. m. and returned with the liquor about 5 p. m.; that after receiving this information Eager caused one of his informers to further cheek up on these trips for the three Saturdays following, with the result that the prior information was confirmed; that on the afternoon of the fourth Saturday (August 24, 1929) Eager, with other prohibition officers and a police officer, stationed themselves near the highway leading from Hampton Beach to Salisbury and saw the ear pass south at about the designated time they had been informed it would, and saw it come back at about the time it was expected. .They then stopped the ear, searched it, and found a gallon of alcohol. From these facts the District Court found that Officer Eager, from the information he received, had reasonable ground for belief and did believe that claimant’s ear was being used each Saturday for the illegal transportation of liquor; and also found that on Saturday, August 24, when the officers went to Hampton Beach and saw the ear go south on schedule time and saw it return as per information previously received, the officers then had personal knowledge of its movements and reasonable grounds based on such personal observation for believing that the information given them was correct and for believing that the car was being used for transporting intoxicating liquor. We think that the District Court was fully warranted in finding probable, cause for the search of the automobile. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Park v. United States (C. C. A.) 294 F. 776. This conclusion renders, it unnecessary to consider whether the plea of guilty estopped the appellant from raising the question of the illegality of the seizure.
The judgment of the District Court is 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_casesource
|
022
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
TANK TRUCK RENTALS, INC., v. COMMISSIONER OF INTERNAL REVENUE.
No. 109.
Argued January 29-30, 1958.
Decided March 17, 1958.
Leonard Sarner argued the cause for petitioner. With him on the brief was Paul A. Wolkin.
Solicitor General Rankin argued the cause for respondent. With him on the brief were Assistant Attorney General Rice, Joseph F. Goetten and Meyer Rothwacks.
Mr. Justice Clark
delivered the opinion of the Court.
In 1951 petitioner Tank Truck Rentals paid several hundred fines imposed on it and its drivers for violations of state maximum weight laws. This case involves the deductibility of those payments as “ordinary and necessary” business expenses under §23 (a)(1)(A) of the Internal Revenue Code of 1939. Prior to 1950 the Commissioner had permitted such deductions, but a change of policy that year caused petitioner’s expenditures to be disallowed. The Tax Court, reasoning that allowance of the deduction would frustrate sharply defined state policy expressed in the maximum weight laws, upheld the Commissioner. 26 T. C. 427. The Court of Appeals affirmed on the same ground, 242 F. 2d 14, and we granted certiorari. 354 U. S. 920 (1957). In our view, the deductions properly were disallowed.
Petitioner, a Pennsylvania corporation, owns a fleet of tank trucks which it leases, with drivers, to motor carriers for transportation of bulk liquids. The lessees operate the trucks throughout Pennsylvania and the surrounding States of New Jersey, Ohio, Delaware, West Virginia, and Maryland, with nearly all the shipments originating or terminating in Pennsylvania. In 1951, the tax year in question, each of these States imposed maximum weight limits for motor vehicles operating on its highways. Pennsylvania restricted truckers to 45,000 pounds, however, while the other States through which petitioner operated allowed maximum weights approximating 60,000 pounds. It is uncontested that trucking operations were so hindered by this situation that neither petitioner nor other bulk liquid truckers could operate profitably and also observe the Pennsylvania law. Petitioner's equipment consisted largely of 4,500- to 5,000-gallon tanks, and the industry rate structure generally was predicated on fully loaded use of equipment of that capacity. Yet only one of the commonly carried liquids weighed little enough that a fully loaded truck could satisfy the Pennsylvania statute. Operation of partially loaded trucks, however, not only would have created safety hazards, but also would have been economically impossible for any carrier so long as the rest of the industry continued capacity loading. And the industry as a whole could not operate on a partial load basis without driving shippers to competing forms of transportation. The only other alternative, use of smaller tanks, also was commercially impracticable, not only because of initial replacement costs but even more so because of reduced revenue and increased operating expense, since the rates charged were based on the number of gallons transported per mile.
Confronted by this dilemma, the industry deliberately operated its trucks overweight in Pennsylvania in the hope, and at the calculated risk, of escaping the notice of the state and local police. This conduct also constituted willful violations in New Jersey, for reciprocity provisions of the New Jersey statute subjected trucks registered in Pennsylvania to Pennsylvania weight restrictions while traveling in New Jersey. In the remainder of the States in which petitioner operated, it suffered overweight fines for several unintentional violations, such as those caused by temperature changes in transit. During the tax year 1951, petitioner paid a total of $41,060.84 in fines and costs for 718 willful and 28 innocent violations. Deduction of that amount in petitioner’s 1951 tax return was disallowed by the Commissioner.
It is clear that the Congress intended the income tax laws “to tax earnings and profits less expenses and losses,” Higgins v. Smith, 308 U. S. 473, 477 (1940), carrying out a broad basic policy of taxing “net, not . . . gross, income . . . .” McDonald v. Commissioner, 323 U. S. 57, 66-67 (1944). Equally well established is the rule that deductibility under § 23 (a)(1) (A) is limited to expenses that are both ordinary and necessary to carrying on the taxpayer’s business. Deputy v. du Pont, 308 U. S. 488, 497 (1940). A finding of “necessity” cannot be made, however, if allowance of the deduction would frustrate sharply defined national or state policies proscribing particular types of conduct, evidenced by some governmental declaration thereof. Commissioner v. Heininger, 320 U. S. 467, 473 (1943); see Lilly v. Commissioner, 343 U. S. 90, 97 (1952). This rule was foreshadowed in Textile Mills Securities Corp. v. Commissioner, 314 U. S. 326 (1941), where the Court, finding no congressional intent to the contrary, upheld the validity of an income tax regulation reflecting an administrative distinction “between legitimate business expenses and those arising from that family of contracts to which the law has given no sanction.” 314 U. S., at 339. Significant reference was made in Heininger to the very situation now before us; the Court stated, “Where a taxpayer has violated a federal or a state statute and incurred a fine or penalty he has not been permitted a tax deduction for its payment.” 320 U. S., at 473.
Here we are concerned with the policy of several States “evidenced” by penal statutes enacted to protect their highways from damage and to insure the safety of all persons using them. Petitioner and its drivers have violated these laws and have been sentenced to pay the fines here claimed as income tax deductions. It is clear that assessment of the fines was punitive action and not a mere toll for use of the highways: the fines occurred only in the exceptional instance when the overweight run was detected by the police. Petitioner’s failure to comply with the state laws obviously was based on a balancing of the cost of compliance against the chance of detection. Such a course cannot be sanctioned, for judicial deference to state action requires, whenever possible, that a State not be thwarted in its policy. We will not presume that the Congress, in allowing deductions for income tax purposes, intended to encourage a business enterprise to violate the declared policy of a State. To allow the deduction sought here would but encourage continued violations of state law by increasing the odds in favor of noncompliance. This could only tend to destroy the effectiveness of the State’s maximum weight laws.
This is not to say that the rule as to frustration of sharply defined national or state policies is to be viewed or applied in any absolute sense. “It has never been thought . . . that the mere fact that an expenditure bears a remote relation to an illegal act makes it nondeductible.” Commissioner v. Heininger, supra, at 474. Although each case must turn on its own facts, Jerry Rossman Corp. v. Commissioner, 175 F. 2d 711, 713, the test of nondeductibility always is the severity and immediacy of the frustration .resulting from allowance of the deduction. The flexibility of such a standard is necessary if we are to accommodate both the congressional intent to tax only net income, and the presumption against congressional intent to encourage violation of declared public policy.
Certainly the frustration of state policy is most complete and direct when the expenditure for which deduction is sought is itself prohibited by statute. See Boyle, Flagg & Seaman, Inc., v. Commissioner, 25 T. C. 43. If the expenditure is not itself an illegal act, but rather the payment of a penalty imposed by the State because of such an act, as in the present case, the frustration attendant upon deduction would be only slightly less remote, and would clearly fall within the line of disallowance. Deduction of fines and penalties uniformly has been held to frustrate state policy in severe and direct fashion by reducing the “sting” of the penalty prescribed by the state legislature.
There is no merit to petitioner’s argument that the fines imposed here were not penalties at all, but merely a revenue toll. It is true that the Pennsylvania statute provides for purchase of a single-trip permit by an over-weighted trucker; that its provision for forcing removal of the excess weight at the discretion of the police authorities apparently was never enforced; and that the fines were devoted by statute to road repair within the municipality or township where the trucker was apprehended. Moreover, the Pennsylvania statute was amended in 1955, raising the maximum weight restriction to 60,000 pounds, making mandatory the removal of the excess, and graduating the amount of the fine by the number of pounds that the truck was overweight. These considerations, however, do not change the fact that the truckers were fined by the State as a penal measure when and if they were apprehended by the police.
Finally, petitioner contends that deduction of the fines at least for the innocent violations will not frustrate state policy. But since the maximum weight statutes make no distinction between innocent and willful violators, state policy is as much thwarted in the one instance as in the other. Petitioner’s reliance on Jerry Rossman Corp. v. Commissioner, supra, is misplaced. Deductions were allowed the taxpayer in that case for amounts inadvertently collected by him as OPA overcharges and then paid over to the Government, but the allowance was based on the fact that the Administrator, in applying the Act, had differentiated between willful and innocent violators. No such differentiation exists here, either in the application or the literal language of the state maximum weight laws.
Affirmed.
“SEC. 23. DEDUCTIONS FROM GROSS INCOME.
“In computing net income there shall be allowed as deductions: “(a) EXPENSES.—
“(1) Trade or business expenses.—
“ (A) In General. — All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . . .” 53 Stat. 12, as amended, 56 Stat. 819.
Letter ruling by Commissioner Helvering, dated September 10, 1942 (IT:P:2-WTL), 5 CCH 1950 Fed. Tax Rep. ¶ 6134.
1951 — 1 Cum. Bull. 15.
Delaware, Del. Laws 1947, c. 86, §2; Maryland, Flack’s Md. Ann. Code, 1939 (1947 Cum. Supp.), Art. 66%, § 254, and Flack’s Md. Ann. Code, 1951, Art. 66%, §278; New Jersey, N. J. Rev. Stat., 1937, 39:3-84; Ohio, Page’s Ohio Gen. Code Ann., 1938 (Cum. Pocket Supp. 1952), § 7248-1; Pennsylvania, Purdon’s Pa. Stat. Ann., 1953, Tit. 75, § 453; West Virginia, W. Va. Code Ann., 1949, § 1546, and 1953 Cum. Supp., § 1721(463).
N. J. Rev. Stat., 1937 (Cum. Supp. 1948-1950), 39:3-84.3.
Because state policy in this case was evidenced by specific legislation, it is unnecessary to decide whether the requisite “governmental declaration” might exist other than in an Act of the Legislature. See Schwartz, Business Expenses Contrary To Public Policy, 8 Tax L. Rev. 241, 248.
Unlike the rest of the States, Pennsylvania imposed the fines on the driver rather than on the owner of the trucks. In each instance, however, the driver was petitioner’s employee, and petitioner paid the fines as a matter of course, being bound to do so by its collective bargaining agreement with the union representing the drivers.
See, e. g., United States v. Jaffray, 97 F. 2d 488, aff'd on other grounds, sub nom. United States v. Bertelsen & Petersen Engineering Co., 306 U. S. 276 (1939); Tunnel R. Co. v. Commissioner, 61 F. 2d 166; Chicago, R. I. & P. R. Co. v. Commissioner, 47 F. 2d 990; Burroughs Bldg. Material Co. v. Commissioner, 47 F. 2d 178; Great Northern R. Co. v. Commissioner, 40 F. 2d 372; Davenshire, Inc., v. Commissioner, 12 T. C. 958.
Purdon’s Pa. Stat. Ann., 1953 (1957 Cum. Ann. Pocket Part), Tit, 75, § 453.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
sc_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
TIMES FILM CORP. v. CITY OF CHICAGO et al.
No. 34.
Argued October 19-20, 1960.
Decided January 23, 1961.
Felix J. Bilgrey and Abner J. Mikva argued the cause and filed a brief for petitioner.
Robert J. Collins and Sydney R. Drebin argued the cause for respondents. With them on the brief was John C. Melaniphy.
Mr. Justice Clark
delivered the opinion of the Court.
Petitioner challenges on constitutional grounds the validity on its face of that portion of § 155-4 of the Municipal Code of the City of Chicago which requires submission of all motion pictures for examination prior to their public exhibition. Petitioner is a New York corporation owning the exclusive right to publicly exhibit in Chicago the film known as “Don Juan.” It applied for a permit, as Chicago’s ordinance required, and tendered the license fee but refused to submit the film for examination. The appropriate city official refused to issue the permit and his order was made final on appeal to the Mayor. The sole ground for denial was petitioner’s refusal to submit the film for examination as required. Petitioner then brought this suit seeking injunctive relief ordering the issuance of the permit without submission of the film and restraining the city officials from interfering with the exhibition of the picture. Its sole ground is that the provision of the ordinance requiring submission of the film constitutes, on its face, a prior restraint within the prohibition of the First and Fourteenth Amendments. The District Court dismissed the complaint on the grounds, inter alia, that neither a substantial federal question nor even a justiciable controversy was presented. 180 F. Supp. 843. The Court of Appeals affirmed, finding that the case presented merely an abstract question of law since neither the film nor evidence of its content was submitted. 272 F. 2d 90. The precise question at issue here never having been specifically decided by this Court, we granted certiorari, 362 U. S. 917 (1960).
We are satisfied that a justiciable controversy exists. The section of Chicago’s ordinance in controversy specifically provides that a permit for the public exhibition of a motion picture must be obtained; that such “permit shall be granted only after the motion picture film for which said permit is requested has been produced at the office of the commissioner of police for examination”; that the commissioner shall refuse the permit if the picture does not meet certain standards; and that in the event of such refusal the applicant may appeal to the mayor for a de novo hearing and his action shall be final. Violation of the ordinance carries certain punishments. The petitioner complied with the requirements of the ordinance, save for the production of the film for examination. The claim is that this concrete and specific statutory requirement, the production of the film at the office of the Commissioner for examination, is invalid as a previous restraint on freedom of speech. In Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495, 502 (1952), we held that motion pictures are included “within the free speech and free press guaranty of the First and Fourteenth Amendments.” Admittedly, the challenged section of the ordinance imposes a previous restraint, and the broad justiciable issue is therefore present as to whether the ambit of constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture. It is that question alone which we decide. We have concluded that § 155-4 of Chicago’s ordinance requiring the submission, of films prior to their public exhibition is not, on the grounds set forth, void on its face.
Petitioner’s narrow attack upon the ordinance does not require that any consideration be given to the validity of the standards set out therein. They are not challenged and are not before us. Prior motion picture censorship cases which reached this Court involved questions of standards. The films had all been submitted to the authorities and permits for their exhibition were refused because of their content. Obviously, whether a particular statute is “clearly drawn,” or “vague,” or “indefinite,” or whether a clear standard is in fact met by a film are different questions involving other constitutional challenges to be tested by considerations not here involved.
Moreover, there is not a word in the record as to the nature and content of “Don Juan.” We are left entirely in the dark in this regard, as were the city officials and the other reviewing courts. Petitioner claims that the nature of the film is irrelevant, and that even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government, it may nonetheless be shown without prior submission for examination. The challenge here is to the censor’s basic authority ; it does not go to any statutory standards employed by the censor or procedural requirements as to the submission of the film.
In this perspective we consider the prior decisions of this Court touching on the problem. Beginning over a third of a century ago in Gitlow v. New York, 268 U. S. 652 (1925), they have consistently reserved for future decision possible situations in which the claimed First Amendment privilege might have to give way to the necessities of the public welfare. It has never been held that liberty- of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. Minnesota, 283 U. S. 697, 715-716 (1931), Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint “is stated too broadly, if every such restraint is deemed to be prohibited. . . . [T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.” These included, the Chief Justice found, utterances creating “a hindrance” to the Government’s war effort, and “actual obstruction to its recruiting service'or the publication of the sailing dates of transports or the number and location of troops.” In addition, the Court said that “the primary requirements of decency may be enforced against obscene publications” and the “security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.” Some years later, a unanimous Court, speaking through Mr. Justice Murphy, in Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942), held that there were “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Thereafter, as we have mentioned, in Joseph Burstyn, Inc., v. Wilson, supra, we found motion pictures to be within the guarantees of the First and Fourteenth Amendments, but we added that this was “not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.” At p. 502. Five years later, in Roth v. United States, 354 U. S. 476, 483 (1957), we held that “in light of . . . history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.” Even those in dissent there found that “Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.” Id., at 514. And, during the same Term, in Kingsley Books, Inc., v. Brown, 354 U. S. 436, 441 (1957), after characterizing Near v. Minnesota, supra, as “one of the landmark opinions” in its area, we took notice that Near “left no doubts that ‘Liberty of speech, and of the press, is also not an absolute right . . . the protection even as to previous restraint is not absolutely unlimited.’. . . The judicial angle of vision,” we said there, “in testing the validity of a statute like § 22-a [New York’s injunctive remedy against certain forms of obscenity] is ‘the operation and effect of the statute in substance.’ ” And as if to emphasize the point involved here, we added that “The phrase ‘prior restraint’ is not a self-wielding sword. Nor can it serve as a talismanic test.” Even as recently as our last Term we again observed the principle, albeit in an allied area, that the State possesses some measure of power “to prevent the distribution of obscene matter.” Smith v. California, 361 U. S. 147, 155 (1959).
Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State’s sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute, Ill. Rev. Stat. (1959), c. 38, § 470, and then only after a transgression. But this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment — a claim without sanction in our cases. To illustrate its fallacy, we need only point, to one of the “exceptional cases” which Chief Justice Hughes enumerated in Near v. Minnesota, supra, namely, “the primary requirements of decency [that] may be enforced against obscene publications.” Moreover, we later held specifically “that obscenity is not within the area of constitutionally protected speech or press.” Roth v. United States, 354 U. S. 476, 485 (1957). Chicago emphasizes here its duty to protect its people against the dangers of obscenity in the public exhibition of motion pictures. To this argument petitioner’s only answer is that regardless of the capacity for, or extent of, such an evil, previous restraint cannot be justified. With this we cannot agree. We recognized in Burstyn, supra, that “capacity for evil . . . may be relevant in determining the permissible scope of community control,” at p. 502, and that motion pictures were not “necessarily subject to the precise rules governing any other particular method of expression. Each method,” we said, “tends to present its own peculiar problems.” At p. 503. Certainly petitioner’s broadside attack does not warrant, nor could it justify on the record here, our saying that — aside from any consideration of the other “exceptional cases” mentioned in our decisions— the State is stripped of all constitutional power to prevent, in the most effective fashion, the utterance of this class of speech. It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances. Kingsley Books, Inc., v. Brown, supra, at p. 441. We, of course, are not holding that city officials may be granted the power to prevent the showing of any motion picture they deem unworthy of a license. Joseph Burstyn, Inc., v. Wilson, supra, at 504-505.
As to what may be decided when a concrete case involving a specific standard provided by this ordinance is presented, we intimate no opinion. The petitioner has not challenged all — or for that matter any — of the ordinance’s standards. Naturally we could not say that every one of the standards, including those which Illinois’ highest court has found sufficient, is so vague on its face that the entire ordinance is void. At this time we say no more than this — that we are dealing only with motion pictures and, even as to them, only in the context of the broadside attack presented on this record.
Affirmed.
The portion of the section here under attack is as follows:
“Such permit shall be granted only after the motion picture film for which said permit is requested has been produced at the office of the commissioner of police for examination or censorship. . . .”
That portion of § 155-4 of the Code providing standards is as follows:
“If a picture or series of pictures, for the showing or exhibition of which an application for a permit is made, is immoral or obscene, or portrays depravity, criminality, or lack of virtue of a class of citizens of any race, color, creed, or religion and exposes them to contempt, derision, or obloquy, or tends to produce a breach of the peace or riots, or purports to represent any hanging, lynching, or burning of a human being, it shall be the duty of the commissioner of police to refuse such permit; otherwise it shall be his duty to grant such permit.
“In case the commissioner of police shall refuse to grant a permit as hereinbefore provided, the applicant for the same may appeal to the mayor. Such appeal shall be presented in the same manner as the original application to the commissioner of police. The action of the mayor on any application for a permit shall be final.”
It should be noted that the Supreme Court of Illinois, in an opinion by Schaefer, C. J., has already considered and rejected an argument against the same Chicago ordinance, similar to the claim advanced here by petitioner. The same court also sustained certain of the standards set out above. American Civil Liberties Union v. City of Chicago, 3 Ill. 2d 334, 121 N. E. 2d 585 (1954).
Joseph Burstyn, Inc., v. Wilson, supra (“sacrilegious”); Gelling v. Texas, 343 U. S. 960 (1952) (“prejudicial to the best interests of the people of said City”); Commercial Pictures Corp. v. Regents, 346 U. S. 587 (1954) (“immoral”); Superior Films, Inc., v. Department of Education, 346 U. S. 587 (1954) (“harmful”); Kingsley International Pictures Corp. v. Regents, 360 U. S. 684 (1959) (“sexual immorality”).
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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sc_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
HAM v. SOUTH CAROLINA
No. 71-5139.
Argued November 6, 1972
Decided January 17, 1973
Rehnquist, J., delivered the opinion of the Court, in which Burgek, C. J., and Brennan, Stewart, White, Blackmun, and Powell, JJ., joined. Douglas, post, p. 529, and Marshall, JJ., post, p. 530, filed opinions concurring in part and dissenting in part.
Jonathan Shapiro argued the cause for petitioner. With him on the brief were Jack Greenberg, James M. Nabrit III, and Anthony G. Amsterdam.
Timothy G. Quinn, Assistant Attorney General of South Carolina, argued the cause for respondent. With him on the brief was Daniel B. McLeod, Attorney General.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Petitioner was convicted in the South Carolina trial court of the possession of marihuana in violation of state law. He was sentenced to 18 months’ confinement, and on appeal his conviction was affirmed by a divided South Carolina Supreme Court. 256 S. C. 1, 180 S. E. 2d 628 (1971). We granted certiorari limited to the question of whether the trial judge’s refusal to examine jurors on voir dire as to possible prejudice against petitioner violated the latter’s federal constitutional rights. 404 U. S. 1057 (1972).
Petitioner is a young, bearded Negro who has lived most of his life in Florence County, South Carolina. He appears to have been well known locally for his work in such civil rights activities as the Southern Christian Leadership Conference and the Bi-Racial Committee of the City of Florence. He has never previously been convicted of a crime. His basic defense at the trial was that law enforcement officers were “out to get him” because of his civil rights activities, and that he had been framed on the drug charge.
Prior to the trial judge’s voir dire examination of prospective jurors, petitioner’s counsel requested the judge to ask jurors four questions relating to possible prejudice against petitioner. The first two questions sought to elicit any possible racial prejudice against Negroes; the third question related to possible prejudice against beards; and the fourth dealt with pretrial publicity relating to the drug problem. The trial judge, while putting to the prospective jurors three general questions as to bias, prejudice, or partiality that are specified in the South Carolina statutes, declined to ask any of the four questions posed by petitioner.
The dissenting justices in the Supreme Court of South Carolina thought that this Court's decision in Aldridge v. United States, 283 U. S. 308 (1931), was binding on the State. There a Negro who was being tried for the murder of a white policeman requested that prospective jurors be asked whether they entertained any racial prejudice. This Court reversed the judgment of conviction because of the trial judge's refusal to make such an inquiry. Mr. Chief Justice Hughes, writing for the Court, stated that the “essential demands of fairness” required the trial judge under the circumstances of that case to interrogate the veniremen with respect to racial prejudice upon the request of counsel for a Negro criminal defendant. Id., at 310.
The Court's opinion relied upon a number of state court holdings throughout the country to the same effect, but it was not expressly grounded upon any constitutional requirement. Since one of the purposes of the Due Process Clause of the Fourteenth Amendment is to insure these “essential demands of fairness,” e. g., Lisenba v. California, 314 U. S. 219, 236 (1941), and since a principal purpose of the adoption of the Fourteenth Amendment was to prohibit the States from invidiously discriminating on the basis of race, Slaughter-House Cases, 16 Wall. 36, 81 (1873), we think that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice. South Carolina law permits challenges for cause, and authorizes the trial judge to conduct voir dire examination of potential jurors. The State having created this statutory framework for the selection of juries, the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the petitioner be permitted to have the jurors interrogated on the issue of racial bias. Cf. Groppi v. Wisconsin, 400 U. S. 505, 508 (1971); Bell v. Burson, 402 U. S. 535, 541 (1971).
We agree with the dissenting justices of the Supreme Court of South Carolina that the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner. The Court in Aldridge was at pains to point out, in a context where its authority within the federal system of courts allows a good deal closer supervision than does the Fourteenth Amendment, that the trial court “had a broad discretion as to the questions to be asked,” 283 U. S., at 310. The discretion as to form and number of questions permitted by the Due Process Clause of the Fourteenth Amendment is at least as broad. In this context, either of the brief, general questions urged by the petitioner would appear sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.
The third of petitioner’s proposed questions was addressed to the fact that he wore a beard. While we cannot say that prejudice against people with beards might not have been harbored by one or more of the potential jurors in this case, this is the beginning and not the end of the inquiry as to whether the Fourteenth Amendment required the trial judge to interrogate the prospective jurors about such possible prejudice. Given the traditionally broad discretion accorded to the trial judge in conducting voir dire, Aldridge v. United States, supra, and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner’s constitutional rights were violated when the trial judge refused to put this question. The inquiry as to racial prejudice derives its constitutional stature from the firmly established precedent of Aldridge and the numerous state cases upon which it relied, and from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment. The trial judge’s refusal to inquire as to particular bias against beards, after his inquiries as to bias in general, does not reach the level of a constitutional violation.
Petitioner’s final question related to allegedly prejudicial pretrial publicity. But the record before us contains neither the newspaper articles nor any description of the television program in question. Because of this lack of material in the record substantiating any pretrial publicity prejudical to this petitioner, we have no occasion to determine the merits of his request to have this question posed on voir dire.
Because of the trial court’s refusal to make any inquiry as to racial bias of the prospective jurors after petitioner’s timely request therefor, the judgment of the Supreme Court of South Carolina is
Reversed.
S. C. Code §32-1506 (1962).
The four questions sought to be asked are the following:
“1. Would you fairly try this case on the basis of the evidence and disregarding the defendant’s race?
“2. You have no prejudice against negroes? Against black people? You would not be influenced by the use of the term ‘black’?
“3. Would you disregard the fact that this defendant wears a beard in deciding this case?
“4. Did you watch the television show about the local drug problem a few days ago when a local policeman appeared for a long time? Have you heard about that show? Have you read or heard about recent newspaper articles to the effect that the local drug problem is bad? Would you try this case solely on the basis of the evidence presented in this courtroom? Would you be influenced by the circumstances that the prosecution’s witness, a police officer, has publicly spoken on TV about drugs?”
S. C. Code §38-202 (1962). The three questions asked of all prospective jurors in this case were, in substance, the following:
“1. Have you formed or expressed any opinion as to the guilt or innocence of the defendant, Gene Ham?
“2. Are you conscious of any bias or prejudice for or against him?
“3. Can you give the State and the defendant a fair and impartial trial?”
The record indicates that there was a brief colloquy between petitioner’s counsel and the trial judge, in which the former apparently offered newspaper accounts and an editorial in support of his request that the question be propounded; the judge responded that he did not consider the items submitted prejudicial. The Supreme Court of South Carolina, discussing prejudicial publicity in the context of petitioner’s claim that he was entitled to a change of venue, stated that “[t]he two newspaper clippings and one editorial concerning drug abuse did not name the defendant or refer in any way to his trial.”
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_respond2_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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
WEAVER et al. v. MARCUS et al.
No. 5680.
Circuit Court of Appeals, Fourth Circuit.
Jan. 31, 1948.
Everett L. Buckmaster, of Baltimore, Md. (Weinberg & Green and George L. Clarke all of Baltimore, Md., and J. Lynn Lucas of Luray, Va., on the brief), for appellants.
Thomas G. Scully and J. Sloan Kuykendall, both of Winchester, Va., for appellees.
Before PARKER, SOPER and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
Clarence Weaver, a citizen of Maryland, was killed in Virginia, when the automobile he was driving collided with a truck operated by William Costello, an employee of the defendants, who were partners trading under the firm name and style of Marcus Brothers. Bertha Weaver, a citizen of Maryland, qualified in that State as' the Administratrix of the estate of Clarence Weaver, and later Bertha Weaver and Edwin Lucas, a citizen of Virginia, qualified in Virginia as joint Administratrix and Administrator of the estate of Clarence Weaver. Apparently this Virginia qualification was for the purpose of bringing a civil action in Virginia for the alleged wrongful death of Clarence Weaver.
A civil action was instituted in the United States District Court for the Western District of Virginia by Bertha Weaver and Edwin Lucas, Administratrix and Administrator of the estate of Clarence Weaver, as plaintiffs, against R. L. Marcus, J. K. Marcus, T. C. Marcus, J. L. Marcus and Carl Marcus (individually and as partners trading as Marcus Brothers) and William Costello, an employee of the defendants. This civil action was filed in the sincere belief that all the defendants were citizens of West Virginia. Acting on this same belief, plaintiffs caused service of process to be issued against all the defendants through the Commissioner of Motor Vehicles of Virginia under the Virginia Statute, Michie’s Code, § 2154(70) (i), providing for such service upon non-residents of Virginia who operate motor vehicles over Virginia highways.
The District Judge granted a motion to quash the service under this statute on defendant Carl Marcus, upon a showing that Carl Marcus was a citizen of Virginia. Later, however, Carl Marcus saw fit to waive his rights in this respect and he accepted service of process upon him.
The only basis of jurisdiction of the District Court over this civil action was diversity of citizenship. Defendants attacked the jurisdiction of the District Court on the ground (which would defeat the jurisdiction) that one of the plaintiffs, Lucas, and one of the defendants, Card Marcus, were both citizens of the State of Virginia.
Plaintiffs, thereupon, moved for a dismissal of the action as to the defendant, Carl Marcus. This motion was denied. The District Judge then dismissed the action for lack of jurisdiction, since the requisite diversity of citizenship was lacking because one plaintiff, Lucas, and one defendant, Carl Marcus, were citizens of the same State, Virginia. .The District Court (quite properly, we think) considered and decided the motion of plaintiffs to dismiss as to Carl Marcus under Rule 21, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides: “Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” This motion to drop Carl Marcus as a party defendant was opposed by Carl Marcus and all the other defendants. Quite obviously the plaintiffs desire the dropping of Carl Marcus in order that the District Court may retain jurisdiction of this civil action.
We agree with the statement in the opinion of the District Judge [73 F.Supp. 736, 737]: “But the fact that Rule 21 provides that parties may be dropped ‘by order of the court’ implies that the matter is one in which -the court has the right to exercise some discretion and that it does not follow as a matter [of] right that a party can, be dropped at the mere desire of the plaintiff.”
And, ordinarily, the exercise of such discretion by the District Judge can be reversed on appeal only when there has been a clear abuse thereof. Here, however, we feel that the District Judge’s denial of the motion by plaintiffs to dismiss as to the defendant, Carl Marcus, was based upon misconceptions of „ law, so we feel constrained to reverse this decision.
The Uniform Partnership Act was adopted in Virginia in 1918. Title 38, A, Chapter 175 A, Virginia Code (Michie, 1942) page 1596 provides:
.“Sec. 4359(13). Partnership bound by partner’s wrongful act. — Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his co-partners, loss or injury, is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.
“Sec. 4359(14). Partnership bound by partner’s breach of trust. — The partnership is bound to make good the loss:
“(a) Where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it; and
“(b) Where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership.
“Sec. 4359(15). Nature of partner’s liability. — All partners are liable
“(a) Jointly and severally for everything chargeable to the partnership under Sections 13 and 14 (§§ 4359(13), 4359(14) of this Code).
“(b) Jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract.”
The District Judge held here: “It would seem that since liability is ‘joint’ (not joint and several) that all partners must be made parties defendant and this is the Virginia rule.” No case has been cited to us, nor have we been able to discover a case, holding that, under the Uniform Partnership Act, the liability of partners for the tortious act of an employee within the scope of his employment is joint. The case of Brown v. Gorsuch, 50 W.Va. 514, 40 S.E. 376, cited in the opinion below, is not in point. That case did not involve the Uniform Partnership Act. What was actually decided in that case is clearly indicated in the Syllabus by the Court:
“1. In an attachment suit in equity against a partnership, where the attachment is levied on the social assets, it is necessary that the partners should both be before the court, either by actual or constructive notice, before any decree be made in relation to such property.
“2. It is error for the court to abate such attachment, and dismiss such suit, when one of the partners has been served with summons, because an order of publication has not been taken against the other; but the court should require the plaintiff to mature his suit within a reasonable time, fixed as to such absent partner, or suffer the abatement of the attachment and dismissal of the suit.”
The generally accepted doctrine at common law is that the liability of the partners in tort would be joint and several and not joint. James—Dickenson Farm Mortgage Co. v. Harry, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569; McIntyre v. Kavanaugh, 242 U.S. 138, 37 S.Ct. 38, 61 L.Ed. 205; Armstrong v. New La Paz Gold Mining Co., 9 Cir., 107 F.2d 453; Lindley on Partnership, 10th Ed., 356; Mechem, Elements of Partnership, §§ 312, 338; 40 American Jurisprudence 261. Though the language of the Uniform Partnership Act is a bit inept, we do not believe this language indicates any intention to change the common law doctrine, even though that Act, Virginia Code, § 4359(4) (1), Michie, 1942, does provide: “The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this act.”
The Act is crystal clear that the liability is joint and several where the wrongful act is that of a partner. Klam v. Koppel, 63 Idaho 171, 118 P.2d 729; Southgate v. Linton, 181 Tenn. 540, 181 S.W.2d 888. We see no reason for a different rule when the wrongful act is committed by an employee of the partnership within the scope of his employment.
There seems to be a somewhat strange dearth of direct authority on the precise problem of whether, under the Uniform Partnership Act, partners are jointly and severally liable where the tortious act is committed by an employee (not a partner) within the scope of his employment. Absolutely in point, though, on facts strikingly similar to the instant case, is Soberg v. Sanders, 243 Mich. 429, 220 N.W. 781. Associate Justice Sharpe there discussed the problem at some length, analyzed the apposite provisions of the Uniform Partnership Act and decided (quite correctly, we think) that the liability of the partners was joint and several, so that it was not necessary for the injured plaintiff to sue all of the partners.
In Mechem’s Elements of Partnership (2d Ed.1920), § 312, pages 276, 277, it is stated: “The liability, however, of partners for torts committed by one partner or by the servant of the firm is joint and several, and the action may be brought against one or all or an intermediate number. The Uniform Partnership Act is to the same effect.” (Italics ours.)
In Crane on Partnership (1938) 276, the broad statement is made: “They (the partners) are severally, as well as jointly, liable for a tort of a servant or agent of the partnership within the course of the employment ;” and the Soberg case, supra, is cited as authority. The joint and several liability here of the partners seems to be firmly established in England. Thus, in Lindley on Partnership (10th Ed.1935) 356, it is said (citing cases) : “If some of them (the partners) only are sued, they cannot insist upon the other partners being joined as defendants. And this rule applies even where the tort in question is committed by an agent or servant of the firm, and not otherwise by the firm itself.”
Rule 19(b), Federal Rules of Civil Procedure, reads: “Effect of Failure to Join. When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court as to both service of process and venue and can be made parties without depriving the court of jurisdiction of the parties before it, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them as to either service of process or venue can be acquired only by their consent or voluntary appearance or if, though they are subject to its jurisdiction, their joinder would deprive the court of jurisdiction of the parties before it; but the judgment rendered therein does not affect the rights or liabilities of absent persons.”
Under this rule, since (as we have held) Carl Marcus is a necessary party but not an indispensable party, it is clear that this action could have originally been maintained against the other partners with Carl Marcus omitted. Indeed, it is quite obvious that this action would have been thus brought had not plaintiffs been under the mistaken impression that Carl Marcus was (as were all the other partners) a citizen of West Virginia.
As another reason for refusing a dismissal of Carl Marcus, the District Judge stated that if Carl Marcus were dropped, under Rule 14 of the Federal Rules of Civil Procedure, “the other defendants would have the right to insist that Carl C. Marcus be brought in as a party.” Then the opinion below goes on to state: “Indeed they (the other defendants) have indicated that if Carl C. Marcus is now dropped as a defendant they will seek the benefit of this rule.” We think the other defendants had no such right. In Baltimore & Ohio Railroad Co. v. Saunders, 4 Cir., 1947, 159 F.2d 481, 484, Circuit Judge Parker said: “The rule should be liberally construed, but not in such a way as to permit a practice which transcends the limits of federal jurisdiction. See rule 82 * * * While there is conflict in the decisions, the weight of authority is to the effect that a defendant cannot compel the plaintiff, who has sued him, to sue also a third party whom the [plaintiff] does not wish to sue. * * * And this is certainly true where the effect of the joinder of the third party defendant would be to oust the court of jurisdiction.”
And see the equally strong language of Circuit Judge Clark in Friend v. Middle Atlantic Transportation Co., 2 Cir., 153 F.2d 778, 779.
We do not think it necessary here to consider or decide, if a judgment is obtained here by plaintiffs with Carl Marcus dropped as a party, the extent to which such a judgment would be binding on Carl Marcus under the doctrine of res adjudicata, or whether, under such a judgment, execution could be levied on all the assets of the partnership. These questions, and any other appropriate ones, can be decided if, as and when they are properly raised.
For the reasons stated, the judgment of the District Court dismissing this civil action is reversed and the case is remanded to that court with instructions to grant the motion of plantiffs to dismiss as to the defendant Carl Marcus and to proceed with the case against the other defendants.
Reversed and remanded.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_timely
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" 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".
TOMANENG v. REEVES.
No. 10973.
United States Court of Appeals Sixth Circuit.
Feb. 14, 1950.
J. Paul McNamara, and Walter J. Mackey, Columbus, Ohio (Thomas M. Quinn, Indianapolis, Ind., on the brief), for appellant.
Wm. E. Knepper, and H. S. Kerr, Columbus, Ohio, for appellee.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
PER CURIAM.
The sole question presented by this appeal is whether the decedent effected a change of beneficiary in accordance with the terms of a policy of life insurance which provides that the insured “shall have full power * * to designate a new beneficiary * * * by filing at the Home Office a written designation of beneficiary, which shall in no case be effective until the date upon which it is so filed.” The insurance company filed a bill of interpleader, joining the decedent’s wife and sister as defendants.
The facts are in the main stipulated,, and are,as follows: On January 7, 1946, the decedent, who was insured in The Penn Mutual Life Insurance Company under a policy in which his wife, Margaret Oyler Reeves, was named beneficiary, wrote the agent of-the company at Fort Wayne, Indiana, a letter, the pertinent part of which reads: “Marital difficulties since my return ■has made it necessary to again change the beneficiary of my policy. I therefore request that the usual procedure be instituted making the present beneficiary Miss Mary Elizabeth Reeves — (my Sister) the recipient in the event anything happens to me.”
On two previous occasions the decedent had changed the beneficiary in this same policy by the execution of “Change of Beneficiary” forms which he transmitted to the insurance company. After forwarding decedent’s letter of January 7, 1946, to the company’s home office, the agent wrote decedent that he was “ordering the -beneficiary forms for change to your sister, as per your request.” On January 16, 1946, the agent’s secretary wrote decedent enclosing a 'beneficiary form “recently requested,” and instructed decedent: “If this is in accordance with your wishes please sign both copies as indicated, having your signature witnessed, and -return -both to us. After certification at the Home Office the duplicate will be sent to you to be attached to the policy.” The forms were never signed by decedent and were retained in his possession until his death by accident on April 11, 1946.
Appellant contends that the letter of January 7, 1946, automatically constitutes the designation required under the policy and that its forwarding to the Home Office was the filing required. The District Court held that decedent’s wife was still the duly designated beneficiary of the policy at the time of decedent’s death and rendered judgment in her favor.
Under Ohio law, controlling here, where the insured has the unconditional right to change the beneficiary, a change may be effected even if the provisions of the policy setting forth the manner of effecting the change are not complied with exactly. Atkinson v Metropolitan Life Ins. Co., 114 Ohio St. 109, 150 N.E. 748.
But it must appear (1) that the insured had determined to change the beneficiary and (2) that he had done everything to the ■best of his ability to effect the change. Sun Life Assurance Co. of Canada v. Secoy, D.C., 72 F.Supp. 83; Union Central Life Ins. Co. v. Macbrair, 66 Ohio App. 144, 31 N.E.2d 172; Glen v. Aetna Life Ins. Co., 73 Ohio App. 452, 56 N.E.2d 951.
Tested by these rules, the judgment of the District Court must be affirmed. Decedent’s letter of January 7, 1946, did not constitute an unequivocal designation of change of beneficiary. It merely embodied a request to institute the usual procedure for change of 'beneficiary, with which the decedent was familiar, namely, the sending and -receipt of the beneficiary forms, their execution, and their filing in the home office. The decedent was an educated man, an assistant professor of medicine at Ohio State University, and no doubt understood the meaning of the words he used when he deliberately requested the agent to institute “the usual procedure.” The forms were sent, received, but never executed, and the contemplated change was not effected. Decedent failed to do all that he could to effectuate the change.
Appellant contends that the judgment of the District Court is contrary to the holding of this court in Schwerdtfeger v. American United Life Ins. Co., 6 Cir., 165 F.2d 928. There, however, the insured had signed a formal insurance company application designating his daughters as beneficiaries. The evidence of the insured’s determination to make the change was complete. Fie did the exact thing that the decedent here failed to do.
Judgment affirmed.
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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
Woodruff PELLOM, Appellant, v. UNITED STATES of America, Appellee.
No. 16947.
United States Court of Appeals Eighth Circuit.
June 8, 1962.
Rehearing Denied June 28, 1962.
Woodruff Pellom, pro se.
F. Russell Millin, U. S. Atty., Kansas City, Mo., and Clifford M. Spottsville, Asst. U. S. Atty., for appellee.
Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HENLEY, District Judge.
HENLEY, District Judge.
This is an appeal from an order of the District Court entered on November 20, 1961, denying without a hearing a number of motions filed by appellant earlier in that year attacking a judgment of the trial court entered on May 20,1955, under the terms of which judgment appellant received consecutive sentences of imprisonment aggregating thirty years following his plea of guilty to a multi-count indictment charging him with violations of certain of the narcotics laws of the United States.
On May 4, 1955, appellant and others were indicted for conspiracy to violate the narcotics laws and for certain substantive violations of those laws. The indictment was in ten counts, in the first seven of which appellant was named as a defendant.
Appellant was arraigned originally on May 6, 1955, at which time he was represented by counsel. At that time appellant pleaded not guilty to all of the counts in which he was named as a defendant. On May 20, 1955, appellant, still represented by counsel, withdrew his former plea of not guilty and entered a plea of guilty to counts two, three, four, five, six, and seven, each of which counts charged a substantive violation. The conspiracy count was dismissed.
Following the entry and acceptance of the plea of guilty, the United States Attorney, acting pursuant to 26 U.S.C.A. § 7237, filed an information charging that appellant was a prior offender under the narcotics laws having received a sentence in 1945 for violation of the Harrison Narcotics Act. Appellant did not traverse the allegations contained in the information.
The information having been filed, the District Court (Judge Ridge) imposed a sentence of five years on each of the counts to which appellant had pleaded guilty, the sentences to run consecutively.
In November 1955, appellant, proceeding under 28 U.S.C.A. § 2255, filed a motion attacking certain portions of his sentence. The basis of the attack was the claim that some of the counts of the indictment duplicated other counts, and that in those circumstances the imposition of cumulative sentences constituted double jeopardy and was violative of the Fifth Amendment to the Constitution of the United States.
On February 15, 1956, the sentencing judge filed a memorandum opinion (not published) in which appellant’s contentions were discussed and found to be without merit. Appellant's motion was denied, and no appeal was taken from the order of denial.
In the fall of 1961 appellant filed in the District Court a series of pleadings which may properly be considered collectively as a second application for relief under section 2255. Those pleadings in substance reiterated the contentions advanced in the 1955 motion. In addition, appellant alleged that “the prosecutor did knowingly and wilfully falsify by a scheme a material fact, in violation of Title 18, U.S.C.A., Section 1001 and 2071,” and that “Petitioner was tricked and deceived by his attorney, as he thought he was pleading to conspiracy and not to substadive (sic) offense, accordingly the judgment is void.”
The 1961 application was considered by the late Judge Smith. In his memorandum opinion denying the application Judge Smith wrote:
“The relief sought by this series of applications is substantially identical with the relief sought in November, 1965, when petitioner filed his motion to vacate sentence pursuant to Section 2255, Title 28, U.S.C.A.
“On February 15, 1956, in a lengthy memorandum opinion by Judge Ridge, the issues presented by that application were overruled.
“We cannot consider matters previously ruled simply by substitution of a new title for the pleadings. No basis for relief was stated in the original motion, nor is there a basis for relief stated in this application.
“Since no new matter is presented for consideration by the Court, the various applications and motions under consideration here are overruled and are dismissed.”
Bearing in mind the allegations in appellant’s 1961 application heretofore quoted, the final paragraph of the District Court’s memorandum is not, if read alone and out of context, strictly accurate. However, when the opinion of the District Court is read as a whole it indicates simply that the District Court felt that the 1961 application contained no new matter of substance which would entitle appellant to a hearing or to relief. We agree with the District Court.
The claim that the United States Attorney knowingly used false materials in connection with appellant’s case is legally frivolous. The overall record before us indicates that the claim in question relates to the information filed by the United States Attorney which advised the District Court that appellant had a prior record of conviction under the narcotics laws. As stated, appellant did not traverse that information in the District Court, as he had a right to do, and he cannot be heard at this time and in this proceeding to contend that the information was false.
The contention that appellant was “tricked and deceived” by his attorney, and that appellant pleaded guilty to six substantive counts under the impression that he was pleading guilty to a single count charging conspiracy justifiably may have been considered by the District Court to be plainly insubstantial. It is not clear that the allegation in question is anything more than a phase or variant of his basic contention that certain counts were duplicates of others. But, if it be assumed that the grounds for relief now urged are new in part, they were known to petitioner when he filed his 1955 motion and are not such as to impel us to say in present context that the District Court erred in refusing to grant a hearing on those grounds although, of course, it was free to do so. Cf. Lipscomb v. United States, 8 Cir., 298 F.2d 9.
The judgment of the District Court is affirmed.
. The basic pleading filed by appellant was denominated an application for a writ of error coram nobis or coram vobis. It was supplemented by other motions and briefs.
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_appel2_7_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 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").
TOHULKA v. UNITED STATES.
No. 10787.
United States Court of Appeals Seventh Circuit.
May 28, 1953.
Louis M. Hammerschmidt, Milton A. Johnson, Bruce C. Hammerschmidt, and Hammerschmidt & Johnson, all of South Bend, Ind., for appellants.
James E. Keating, Asst. U. S. Atty., South Bend, Ind., George Sands, South Bend, Ind., Maurice M. Tulchinsky, South Bend, Ind., for appellees.
Before DUFFY, LINDLEY and SWAIM, Circuit Judges.
LINDLEY, Circuit Judge.
Plaintiffs appeal from a judgment dismissing their amended complaint for want of jurisdiction. Briefly, the facts are that Richard If. Tohulka, a deceased soldier, who entered the military service of the United States before December 1, 1941, and who was killed in action April 22, 1945, while in service, applied for and was granted National Service Life Insurance for $10,000, evidenced by one certificate for $1500 and one for $8500. On January 22, 1943, he designated as beneficiary, his sister, Helen Augusta Voelkel and, as contingent beneficiary, another sister, Edna Elizabeth Pratt. These facts are undisputed.
Plaintiffs, brothers and sisters of insured, averred that before his death he directed defendant, the designated beneficiary Helen Augusta Voelkel, to distribute the proceeds of the insurance equally to herself and his other brothers and sisters, except his brother, Randall Tohulka, for whom he had made other provision; that she promised that, when and if the insurance matured, she would in equal shares distribute it to the brothers and sisters as requested; that the insured later corroborated this arrangement by inserting in his will, on or about January 22, 1943, a provision to the same effect; that the insurance remains in full force and effect; that Helen, as beneficiary, has been paid insurance benefits to the extent of some $2900; that she has accounted to her brothers and sisters for $238.71; that there remains a balance to be paid to her of $7,066.31; that she has refused and continues to refuse to distribute any of the sums collected in accord with the alleged agreement and has thereby violated the terms of the trust. The complaint prayed that the certificates of insurance be reformed to include all six brothers and sisters as beneficiaries; that specific performance of the alleged trust be decreed and that defendant Helen and her sister be directed to account for all sums previously collected and required to pay those to be collected thereafter to the brothers and sisters in accord with the alleged agreement.
On this appeal plaintiffs expressly disclaim any intention to “seek to change the beneficiary of the insurance” and state that “the gravaman of the amended complaint” is “an action * * * brought to impose and establish a trust for the benefit of plaintiffs upon the proceeds of insurance * * * paid and to be paid to the * * * designated beneficiary”. In other words, they do not contend that the designation of the two sisters, Helen Augusta and Edna E. as beneficiaries is invalid or has been changed but seek to have the funds already received by Helen and those hereafter to be paid to her by the government as designated beneficiary be declared trust funds. Plaintiffs’ position here is that, in view of the fact that a suit to recover insurance was within the court’s jurisdiction, the court had jurisdiction also to do complete justice by declaring a trust in the funds previously collected and to be collected in the future. They admit that diversity of citizenship does not exist, but ground their prayer for relief wholly upon the argument that, inasmuch as national insurance was involved, the court had jurisdiction of the separate controversy between plaintiffs and defendants as to the existence of a trust and enforcement of its terms.
The statute under which the District Court acquired jurisdiction in such cases, Title 38 U.S.C.A. § 817, provides that, in the event of a disagreement as to any claim against the government arising concerning such insurance, suit may be brought in accord with Sections 445 and 551. Section 445 provides that, in the event of a disagreement, an action may be brought against the United States in the district in which the claimant resides and the court shall have jurisdiction to hear and determine the conflicting demands of all claimants against the government. Consequently, the jurisdiction granted and the consent to be sued are limited to the determination of conflicting claims under certificates of insurance. Here it is clear that there is no dispute as to the government’s liability to pay to the designated beneficiary and no dispute as who is in fact the beneficiary. The whole controversy is one between private parties concerning transactions between themselves. In other words, it is a suit by plaintiffs against the two sisters, to have the court declare that any money they rightfully obtain as designated beneficiaries shall be held in trust for all brothers (save one) and sisters of the insured.
This controversy is not one based upon diversity of citizenship. It is not within the category of claims permitted by the statute under which the court acquired jurisdiction. True, the District Court is a court of equity and when it has jurisdiction of the parties and the subject matter, it may retain jurisdiction in order to do complete justice, but where it has no jurisdiction arising from diversity of citizenship, as in this case, and the suit is a private controversy between third persons involving the government in no way, then the court may not act. In other words, consent to be sued must be construed in accord with the subject matter expressly committed to the jurisdiction.
The language of Pack v. United States, 9 Cir., 176 F.2d 770, 772 is directly in point. There the court said: “In granting permission to be sued in cases of this character the United States was dealing with claims against it and did not consent to be brought into litigation which could expand into the trial of collateral causes of action between the original plaintiff and third parties. Moreno v. United States, 1 Cir., 120 F.2d 128. The mother, a resident o>f another state, was summoned into the United States District Court of California to assert her claim against the United States, not to permit the adjudication of separate and distant causes and action which third parties might attempt to assert against her. The wife, in order to have the community property right adjudicated, is required to resort to an independent action because litigation of the community property rights of the wife and mother is not a determination of a claim against the United States.” “ * * * It would seem improper, therefore, to combine a proceeding to hear a dispute which the district court is given jurisdiction to hear under 38 U.S.C.A. § 445 with some other form of proceeding that might involve matters which the United States has not consented to litigate. United States v. Sherwood, 1941, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058. * * * There was no jurisdiction to determine whether the proceeds, once received, should be held under some kind of a trust for the benefit of the appellant or whether Lilly Pack should be compelled to execute an assignment of one-half the proceeds to the appellant, assuming such an involuntarily executed assignment to be authorized by 38 U.S.C.A. § 816.”
The First Circuit in Moreno v. United States, 120 F.2d 128, 130, held to the same effect in these words: “we find nothing * * * which suggests that the United States consents to be sued in litigation which may expand into a trial of multifarious collateral causes of action between the original plaintiff and third persons. * * * In the absence of any explicit statutory expression of consent by the United States, this issue is not to be complicated and perhaps delayed in adjudication by the joinder of other causes of action between the rival claimants.”
Plaintiffs rely upon certain other cases. In Burgess v. Murray, 5 Cir., 194 F.2d 131, the decision turned upon whether the insured had made a valid change of the beneficiary and the court, having determined that question in the affirmative, rightfully concluded that it could proceed in' accord with that change. In De Motts v. United States, D.C., 101 F.Supp. 770, there was diversity of citizenship between the parties to the private controversy, and the court, having jurisdiction of them by virtue of that fact, had authority to adjudicate the controversy between them. In Kas-chefsky v. Kaschefsky, 6 Cir., 110 F.2d 836, the coprt again, having found that there had been an express change of beneficiary, had jurisdiction of all conflicting claims.
We think there can be no question but that in view of the nature of this controversy, in the absence of diversity of citizenship, the court had no jurisdiction to entertain and determine the controversy between the third persons.
The judgment is affirmed.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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sc_authoritydecision
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
IDAHO ex rel. ANDRUS, GOVERNOR, et al. v. OREGON et al.
No. 67, Orig.
Argued November 8, 1976
Decided December 7, 1976
Wayne L. Kidwell, Attorney General of Idaho, argued the cause for plaintiffs. With him on the brief were Terry E. Coffin, Deputy Attorney General, and Matthew J. Mullaney, Jr.
Lee Johnson, Attorney General, argued the cause for defendant State of Oregon. With him on the brief were W. Michael Gillette, Solicitor General, and Raymond P. Underwood, Beverly B. Hall, and Thomas H. Denney, Assistant Attorneys General. Slade Gorton, Attorney General, argued the cause for defendant State of Washington. With him on the brief was Edward B. Mackie, Deputy Attorney General.
Briefs of amici curiae were filed by Solicitor General Bork for the United States; by Wendell Wyatt for the Columbia River Fishermens Protective Union; and by Robert E. Smylie for the Izaah Walton League of America, Inc., et al.
Per Curiam.
The Court has considered the written submissions of the parties and heard oral argument by the Attorneys General of the States with respect to the motion of the State of Idaho for leave to file a bill of complaint. It having been concluded that the Court has original and exclusive jurisdiction of this case to- the extent that the complaint prays that the Court declare that the State of Idaho is entitled to an equitable portion of the upriver anadromous fishery of the Columbia River Basin and that the Court determine Idaho’s equitable portion based on the evidence and award costs and appropriate incidental relief, the motion for leave to file is hereby granted to that extent. The motion is in all other respects denied. This order is not a judgment that the bill of complaint, to the extent that permission to file is granted, states a claim upon which relief may be granted. This order also leaves open the question of the indispensability of the United States as a party for decision after evidence, in the event the United States does not enter its appearance in the case. The States of Oregon and Washington are directed to file answers to the bill of complaint or to otherwise plead within 60 days and process is ordered to issue accordingly.
It is so ordered.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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sc_petitioner
|
070
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
ALBRECHT v. HERALD CO., dba GLOBE-DEMOCRAT PUBLISHING CO.
No. 43.
Argued November 9, 1967.
Decided March 4, 1968.
Gray L. Dorsey argued the cause for petitioner. With him on the briefs was Donald S. Siegel.
Lon Hooker argued the cause for respondent. With him on the brief was Thomas Newman.
Arthur B. Hanson filed a brief for the American Newspaper Publishers Association, as amicus curiae, urging affirmance.
Mr. Justice White
delivered the opinion of the Court.
A jury returned a verdict for respondent in petitioner’s suit for treble damages for violation of § 1 of the Sherman Act. Judgment was entered on the verdict and the Court of Appeals for the Eighth Circuit affirmed. 367 F. 2d 517 (1966). The question is whether the denial of petitioner’s motion for judgment notwithstanding the verdict was correctly affirmed by the Court of Appeals. Because this case presents important issues under the antitrust laws, we granted certiorari. 386 U. S. 941 (1967).
We take the facts from those stated by the Court of Appeals. Respondent publishes the Globe-Democrat, a morning newspaper distributed in the St. Louis metropolitan area by independent carriers who buy papers at wholesale and sell them at retail. There are 172 home delivery routes. Respondent advertises a suggested retail price in its newspaper. Carriers have exclusive territories which are subject to termination if prices exceed the suggested maximum. Petitioner, who had Route 99, adhered to the advertised price for some time but in 1961 raised the price to customers. After more than once objecting to this practice, respondent wrote petitioner on May 20, 1964, that because he was overcharging and because respondent had reserved the right to compete should that happen, subscribers on Route 99 were being informed by letter that respondent would itself deliver the paper to those who wanted it at the lower price. In addition to sending these letters to petitioner’s customers, respondent hired Milne Circulation Sales, Inc., which solicited readers for newspapers, to engage in telephone and house-to-house solicitation of all residents on Route 99. As a result, about 300 of petitioner’s 1,200 customers switched to direct delivery by respondent. Meanwhile, respondent continued to sell papers to petitioner but warned him that should he continue to overcharge, respondent would not have to do business with him. Since respondent did not itself want to engage in home delivery, it advertised a new route of 314 customers as available without cost. Another carrier, George Kroner, took over the route knowing that respondent would not tolerate overcharging and understanding that he might have to return the route if petitioner discontinued his pricing practice. On July 27 respondent told petitioner that it was not interested in being in the carrier business and that petitioner could have his customers back as long as he charged the suggested price. Petitioner brought this lawsuit on August 12. In response, petitioner’s appointment as a carrier was terminated and petitioner was given 60 days to arrange the sale of his route to a satisfactory replacement. Petitioner sold his route for $12,000, $1,000 more than he had paid for it but less than he could have gotten had he been able to turn over 1,200 customers instead of 900.
Petitioner’s complaint charged a combination or conspiracy in restraint of trade under § 1 of the Sherman Act. At the close of the evidence the complaint was amended to charge only a combination between respondent and “plaintiff’s customers and/or Milne Circulation Sales, Inc. and/or George Kroner.” The case went to the jury on this theory, the jury found for respondent, and judgment in its favor was entered on the verdict. The court denied petitioner’s motion for judgment notwithstanding the verdict, which asserted that under United States v. Parke, Davis & Co., 362 U. S. 29 (1960), and like cases, the undisputed facts showed as a matter of law a combination to fix resale prices of newspapers which was per se illegal under the Sherman Act. The Court of Appeals affirmed. In its view “the undisputed evidence fail[ed] to show a Sherman Act violation,” because respondent’s conduct was wholly unilateral and there was no restraint of trade. The previous decisions of this Court were deemed inappo-site to a situation in which a seller establishes maximum prices to be charged by a retailer enjoying an exclusive territory and in which the seller, who would be entitled to refuse to deal, simply engages in competition with the offending retailer. We disagree with the Court of Appeals and reverse its judgment.
On the undisputed facts recited by the Court of Appeals respondent’s conduct cannot be deemed wholly unilateral and beyond the reach of § 1 of the Sherman Act. That section covers combinations in addition to contracts and conspiracies, express or implied. The Court made this quite clear in United States v. Parke, Davis & Co., 362 U. S. 29 (1960), where it held that an illegal combination to fix prices results if a seller suggests resale prices and secures compliance by means in addition to the “mere announcement of his policy and the simple refusal to deal . . . .” Id., at 44. Parke Davis had specified resale prices for both wholesalers and retailers and had required wholesalers to refuse to deal with noncomplying retailers. It was found to have created a combination “with the retailers and the wholesalers to maintain retail prices . . . .” Id., at 45. The combination with retailers arose because their acquiescence in the suggested prices was secured by threats of termination; the combination with wholesalers arose because they cooperated in terminating price-cutting retailers.
If a combination arose when Parke Davis threatened its wholesalers with termination unless they put pressure on their retail customers, then there can be no doubt that a combination arose between respondent, Milne, and Kroner to force petitioner to conform to the advertised retail price. When respondent learned that petitioner was overcharging, it hired Milne to solicit customers away from petitioner in order to get petitioner to reduce his price. It was through the efforts of Milne, as well as because of respondent’s letter to petitioner’s customers, that about 300 customers were obtained for Kroner. Milne’s purpose was undoubtedly to earn its fee, but it was aware that the aim of the solicitation campaign was to force petitioner to lower his price. Kroner knew that respondent was giving him the customer list as part of a program to get petitioner to conform to the advertised price, and he knew that he might have to return the customers if petitioner ultimately complied with respondent’s demands.' He undertook to deliver papers at the suggested price and materially aided in the accomplishment of respondent’s plan. Given the uncontradicted facts recited by the Court of Appeals, there was a combination within the meaning of § 1 between respondent, Milne, and Kroner, and the Court of Appeals erred in holding to the contrary.
The Court of Appeals also held there was no restraint of trade, despite the long-accepted rule in § 1 cases that resale price fixing is a per se violation of the law whether done by agreement or combination. United States v. Trenton Potteries Co., 273 U. S. 392 (1927); United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940); Kiefer-Stewart Co. v. Seagram & Sons, 340 U. S. 211 (1951); United States v. McKesson & Robbins, Inc., 351 U. S. 305 (1956).
In Kiefer-Stewart, supra, liquor distributors combined to set maximum resale prices. The Court of Appeals held the combination legal under the Sherman Act because in its view setting maximum prices “. . . constituted no restraint on trade and no interference with plaintiff’s right to engage in all the competition it desired.” 182 F. 2d 228, 235 (C. A. 7th Cir. 1950). This Court rejected that view and reversed the Court of Appeals, holding that agreements to fix maximum prices “no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment.” 340 U. S. 211, 213.
We think Kiefer-Stewart was correctly decided and we adhere to it. Maximum and minimum price fixing may have different consequences in many situations. But schemes to fix maximum prices, by substituting the perhaps erroneous judgment of a seller for the forces of the competitive market, may severely intrude upon the ability of buyers to compete and survive in that market. Competition, even in a single product, is not cast in a single mold. Maximum prices may be fixed too low for the dealer to furnish services essential to the value which goods have for the consumer or to furnish services and conveniences which consumers desire and for which they are willing to pay. Maximum price fixing may channel distribution through a few large or specifically advantaged dealers who otherwise would be subject to significant nonprice competition. Moreover, if the actual price charged under a maximum price scheme is nearly always the fixed maximum price, which is increasingly likely as the maximum price approaches the actual cost of the dealer, the scheme tends to acquire all the attributes of an arrangement fixing minimum prices. It is our view, therefore, that the combination formed by the respondent in this case to force petitioner to maintain a specified price for the resale of the newspapers which he had purchased from respondent constituted, without more, an illegal restraint of trade under § 1 of the Sherman Act.
We also reject the suggestion of the Court of Appeals that Kiejer-Stewart is inapposite and that maximum price fixing is permissible in this case. The Court of Appeals reasoned that since respondent granted exclusive territories, a price ceiling was necessary to protect the public from price gouging by dealers who had monopoly power in their own territories. But neither the existence of exclusive territories nor the economic power they might place in the hands of the dealers was at issue before the jury. Likewise, the evidence taken was not directed to the question of whether exclusive territories had been granted or imposed as the result of an illegal combination in violation of the antitrust laws. Certainly on the record before us the Court of Appeals was not entitled to assume, as its reasoning necessarily did, that the exclusive rights granted by respondent were valid under § 1 of the Sherman Act, either alone or in conjunction with a price-fixing scheme. See United States v. Arnold, Schwinn & Co., 388 U. S. 365, 373, 379 (1967). The assertion that illegal price fixing is justified because it blunts the pernicious consequences of another distribution practice is unpersuasive. If, as the Court of Appeals, said, the economic impact of territorial exclusivity was such that the public could be protected only by otherwise illegal price fixing itself injurious to the public, the entire scheme must fall under § 1 of the Sherman Act.
In sum, the evidence cited by the Court of Appeals makes it clear that a combination in restraint of trade existed. Accordingly, it was error to affirm the judgment of the District Court which denied petitioner’s motion for judgment notwithstanding the verdict. The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings consistent with this opinion.
Beveraed má remmded,
Section 1 of the Sherman Act, 26 Stat. 209, 15 U. S. C. § 1, in part provides that “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal ... I’
The record indicates that petitioner raised his price by 10 cents a month.
The record shows that at about this time petitioner lowered his price to respondent’s advertised price. Although petitioner notified all his customers of this change, respondent apparently remained unaware of it.
Kroner testified at trial that he sold the customers he had within Route 99 to petitioner’s vendee for $3,600.
Petitioner also charged respondent with tortious interference with business relations under state law, but this count was dismissed before trial.
Petitioner’s original complaint broadly asserted an illegal combination under § 1 of the Sherman Act. Under Parke, Davis petitioner could have claimed a combination between respondent and himself, at least as of the day he unwillingly complied with respondent’s advertised price. Likewise, he might successfully have claimed that respondent had combined with other carriers because the firmly enforced price policy applied to all carriers, most of whom acquiesced in it. See United. States v. Arnold, Schwinn & Co., 388 U. S. 365, 372 (1967). These additional claims, however, appear to have been abandoned by petitioner when he amended his complaint in the trial court.
Petitioner’s amended complaint did allege a combination between respondent and petitioner’s customers. Because of our disposition of this case it is unnecessary to pass on this claim. It was not, however, a frivolous contention. See Federal Trade Commission v. Beech-Nut Packing Co., 257 U. S. 441 (1922); Girardi v. Gates Rubber Co. Sales Div., Inc., 325 F. 2d 196 (C. A. 9th Cir. 1963); Graham v. Triangle Publications, Inc., 233 F. Supp. 825 (D. C. E. D. Pa. 1964), aff’d per curiam, 344 F. 2d 775 (C. A. 3d Cir. 1965).
Our Brother HarlaN seems to state that suppliers have no interest in programs of minimum resale price maintenance, and hence that such programs are “essentially” horizontal agreements between dealers even when they appear to be imposed unilaterally and individually by a supplier on each of his dealers. Although the empirical basis for determining whether or not manufacturers benefit from minimum resale price programs appears to be inconclusive, it seems beyond dispute that a substantial number of manufacturers formulate and enforce complicated plans to maintain resale prices because they deem them advantageous. See E. Grether, Price Control Under Fair Trade Legislation, c. X (1939); Federal Trade Commission, Report- on Resale Price Maintenance 5-11, 59 (1945); Select Committee on Small Business, Fair Trade: The Problem and the Issues, H. R. Rep. No. 1292, 82d Cong., 2d Sess. (1952); Bowman, The Prerequisites and Effects of Resale Price Maintenance, 22 U. Chi. L. Rev. 825, 832-843 (1955); Corey, Fair Trade Pricing: A Reappraisal, 30 Harv. Bus. Rev. No. 5, p. 47 (1952); Fulda, Resale Price Maintenance, 21 U. Chi. L. Rev. 175, 184AL86 (1954). As a theoretical matter, it is not difficult to conceive of situations in which manufacturers would rightly regard minimum resale price maintenance to be in their interest. Maintaining minimum resale prices would benefit manufacturers when the total demand for their product would not be increased as much by the lower prices brought about by dealer competition as by some other nonprice, demand-creating activity. In particular, when total consumer demand (at least within that price range marked at the bottom by the minimum cost of manufacture and distribution and at the top by the highest price at which a price maintenance scheme can operate effectively) is affected less by price than by the number of retail outlets for the product, the availability of dealer services, or the impact of advertising and promotion, it will be in the interest of manufacturers to squelch price competition through a scheme of resale price maintenance in order to concentrate on nonprice competition. Finally, if the retail price of each of a group of competing products is stabilized through manufacturer-imposed price maintenance schemes, the danger to all the manufacturers of severe interbrand price competition is apt to be alleviated.
Our Brother HarlaN appears to read Kiefer-Stewart as prohibiting only combinations of suppliers to squeeze retailers from the top. Under this view, scarcely derivable from the opinion in that case, signed contracts between a single supplier and his many dealers to fix maximum resale prices would not violate the Sherman Act. With all deference, we reject this view, which seems to stem from the notion that there can be no agreement violative of § 1 unless that agreement accrues to the benefit of both parties, as determined in accordance with some a priori economic model. Cf. Comment, The Per Se Illegality of Price-Fixing — Sans Power, Purpose, or Effect, 19 U. Chi. L. Rev. 837 (1952).
In Kiejer-Stewart after the manufacturer established the maximum price at which its product could be sold, it fair-traded the product so as to fix that price as the legally permissible minimum. 182 F. 2d, at 230-231.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_genapel1
|
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 is to determine the nature of the first listed appellant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FINESILVER MANUFACTURING COMPANY, Respondent (two cases).
Nos. 24830, 25070.
United States Court of Appeals Fifth Circuit.
Sept. 20, 1968.
Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Hans J. Lehman, Atty., NLRB, Washington, D. C., Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Paul J. Spielberg, Edith Nash, Attys., N.L.R.B., for petitioner.
Allen P. Schoolfield, Jr., Schoolfield & Smith, Dallas, Tex., Paul M. Green, Dalton Cross, San Antonio, Tex., for respondent.
Before THORNBERRY and SIMPSON, Circuit Judges, and ATKINS, District Judge.
THORNBERRY, Circuit Judge:
In these consolidated appeals, the National Labor Relations Board petitions this Court, pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 151 et seq.), for enforcement of orders against Respondent, Finesilver Manufacturing Company of San Antonio, Texas. The orders were designed to remedy numerous violations of section 8(a) (1) of the Act and the discharges of eight employees in violation of section 8(a) (3). Except for the order that employee Felipa Palacios be reinstated with backpay, we enforce.
The findings of interference with the rights of self-organization, i. e., the violations of section 8(a) (1), were based largely on the testimony of employees as to interrogation, surveillance, and other forms of veiled or blatant coercion. While much of this testimony was disputed, the trial examiner and the Board made credibility determinations in favor of the employees which we, according to our usual practice, must accept. NLRB v. Monroe Auto Equipment Co., 5th Cir. 1968, 392 F.2d 559. Having accepted these credibility determinations, we hold that substantial evidence supports all the 8(a) (1) violations found. Discussion of the individual findings is wholly unnecessary except for the finding that a certain notice posted by the company was coercive. On September 21, 1965, after having learned on the previous day that the union was gaining strength, respondent posted on its bulletin board and enclosed in the pay envelopes of all employees the following notice:
1. The union says the signing of cards will be confidential.
The TRUTH:
ANY EMPLOYEE WHO SIGNS A CARD FOR A UNION MAY BE CALLED UPON TO TESTIFY IN OPEN COURT UNDER A SUBPOENA.
COMMENT:
The best way to avoid this is to stay away from union meetings, and then you can’t be forced to sign cards. NO ONE HAS TO SIGN A CARD OR ANYTHING ELSE.
2. The union says this company can’t close down.
The TRUTH:
WE DO NOT INTEND TO CLOSE DOWN UNLESS WE HAVE TO. HOWEVER, THE SUPREME COURT OF THE UNITED STATES HAS SAID THAT ANY COMPANY CAN CLOSE DOWN COMPLETELY FOR ANY REASON AT ALL REGARDLESS OF A UNION.
COMMENT:
This company will continue to run its own business, union or no union, strike or no strike.
The company argues that the propositions stated are legally correct and that a notice which simply tells employees the truth should not constitute an unfair labor practice. Whether they be legally correct or not, however, the statements have unlawfully coercive implications, especially when considered in the context of the company’s widespread pattern of antiunion conduct. See NLRB v. Griggs Equipment, Inc., 5th Cir. 1962, 307 F.2d 275, 278. Taking the first proposition, we see no reason for informing employees that they might be required to testify in open court other than to let them know that the names of union adherents could be ascertained and appropriate reprisals taken. As for the statement that a company can close down completely for any reason at all, we need only look to the Supreme Court decision which established that proposition for confirmation of the rule that an employer cannot interfere with organization activities by threatening to close the plant. Textile Workers Union of America v. Darlington Mfg. Co., 1965, 380 U.S. 263, 274, 85 S.Ct. 994, 1001, 13 L.Ed.2d 827, n. 20; see Carolina Mirror Corp., 1959, 123 N.L.R.B. 1712; Newton Co., 1955, 112 N.L.R.B. 465; cf. Collins & Aikman Corp., 1963, 143 N.L.R.B. 15, enforced in part, 5th Cir. 1964, 338 F.2d 743. Considering the statement in the context of the antiunion hostility, we believe it constituted an unlawful threat to close the plant in the event of a union victory.
The discriminatory discharges will be considered individually though most of the Board’s findings are based on credibility determinations which we accept.
Elisa Moreno. The Board found that this woman’s discharge was intended by the company as a warning that it could use its economic power to defeat unionism. While there is no direct evidence that she was fired for union activity, we sustain the Board’s inference that she was on the basis of her allegiance to the union, of which the company had knowledge, and also the background of anti-union animus and widespread pattern of antiunion conduct on the part of the company. See Schwob Mfg. Co. v. NLRB, 5th Cir. 1962, 297 F.2d 864, 868.
The company contends that Moreno was fired for excessive absenteeism. From 1958 to 1965, she worked at creasing flaps to be attached to the backs of pants pockets and was considered so proficient that her absenteeism was tolerated. However, when this job was phased out in 1965, the company says it could not justify retraining her for another spot in light of her miserable attendance record. The Board answers that she could do and had done other kinds of work and that her absenteeism had always been tolerated because of her skill. Moreover, it argues that the company has a policy of tolerating the frequent absences of the many women who work in the plant. As there is no evidence that her attendance record was worse than average, we must agree with the Board that the reason advanced by the company for discharging her does not withstand scrutiny.
Gilbert Perez. The Board found that Perez was fired because of his membership on the union organizing committee. It emphasizes Perez’ undisputed testimony that two days after the company learned of his membership on this committee Hertzel Finesilver told him, “I’m going to wait for you to make just one mistake and then I am going to fire you.” The Company, on the other hand, argues that he continually made errors in his job of order filling and that after having received a final warning about making mistakes, he was fired for erroneously filling a J. C. Penney order. The company makes a persuasive case for the point that Perez was inordinately careless, but the Board found that he was not the one who filled the J. C. Penney order which supposedly brought about his discharge. The company’s argument to the contrary is also persuasive, but we must defer to the Board’s assessment of the conflicting testimony. At any rate, the official warnings received by Perez against union activity and in particular the warning he received from Hertzel Finesilver two days after joining the organizing committee will support a finding that he would not have been fifed but for his union activity. See Mel Croan Motors, Inc., v. NLRB, 5th Cir. 1968, 395 F.2d 154, 155. The company’s side of the story represents, at best, a “fairly conflicting view” which we are not at liberty to accept as against the Board’s decision though we might justifiably have made a different choice had the matter been before us de novo. NLRB v. Monroe Auto Equipment Co., supra; NLRB v. Certain-Teed Products Corp., 5th Cir. 1968, 387 F.2d 639.
Gilbert T. Palacios and Vito Fabian. Palacios and Fabian got into a heated argument during working hours with employee Gonzalez whom they accused of being a company informer. Gonzalez and Fabian scuffled briefly before being separated and sent back to their machines. Shortly thereafter, Gonzalez advanced on Palacios who in turn pulled a knife out of his pocket. They were separated before either was hurt. According to Mervin Finesilver’s testimony, all three were summoned to his office; Gonzalez reported and was reprimanded, but Palacios and Fabian did not show up. When he found them in the plant, they greeted him with obscene words and said they were quitting. One supervisor and one rank-and-file employee corroborated this version of events. The examiner and the Board, however, accepted the testimony that Finesilver came to Palacios and Fabian and told them they were fired for fighting with Gonzalez. It was concluded that the reason given was pre-textual and that they were really fired for union activity. Both were union activists and had been interrogated by company officials in a coercive manner.
The question of whether the two employees quit or were fired involves a credibility determination by the Board which we accept. Having affirmed the finding that they were discharged, we must also agree that the fight cannot withstand scrutiny as a reason for discharging them because Gonzalez, who was friendly to management, was not fired. Since Gonzalez was not fired, it can reasonably be inferred that Palacios and Fabian would not have been treated differently but for their known allegiance to the union.
Elena and Abelardo Hernandez. The company contends that Elena Hernandez was fired for threatening employees with physical injury if they did not join the union, but the Board found she was discharged for being a union activist. One of the employees who supposedly reported that she had been threatened denied on the witness stand ever having made such a report or ever having been threatened. Another employee testified that she had been threatened, but her testimony was discredited. Having no reason to overturn the Board’s assessment of the testimony, we affirm the finding that Elena Hernandez was the victim of a discriminatory discharge.
The same disposition must follow for her husband, Abelardo Hernandez. He, like his wife, was a union activist and had been coercively interrogated by officials concerning that activity. The company’s position is that he quit in protest over his wife’s discharge, but the Board found that he was fired after protesting and that his protest was a mere pretext for getting rid of a union activist. The Board’s finding is supported by substantial evidence.
Mary Ramos. This employee’s case is much like Elisa Moreno’s. The company contends that Mary Ramos was discharged for excessive absenteeism, but the Board found that her absenteeism had always been tolerated and became intolerable only when the company learned she was a union activist. No evidence was introduced to show that her attendance record was substandard. We have no difficulty requiring her reinstatement because in this instance there is some direct evidence of an antiunion motive: The examiner credited her testimony that at the time she was fired Supervisor Taylor indicated that she was being fired for pushing union cards.
Felipa Palacios. On the day Felipa Palacios was fired, there was a scuffle between two other women in her work area. Hertzel Finesilver, while walking
through the area to restore order, told Felipa to “keep out of it” or “keep your mouth shut” or something to that effect. After he left, she began walking through the plant telling people that Hertzel had threatened her. Supervisor Taylor reported this to Finesilver, who instructed Taylor to send the woman to the first-floor office. When she absolutely refused to obey this instruction, she was fired. She testified, and the Board found, that she was genuinely afraid to confront Finesilver in the first-floor office as opposed to the second-floor office. The Board also found that the discharge for refusal to obey was pretextual and that she was really fired for union activity. The examiner, on the other hand, found that she was fired for just cause. He said Felipa “had placed herself in an untenable position with respect to Taylor, in the presence of other employees, when she refused to go to the employer’s office.”
The testimony is conflicting and confusing as to why Palacios refused to go to the first-floor office. Without analyzing it in detail, we state two conclusions from our reading of the record: First, the examiner did not believe and we do not believe she disobeyed Taylor’s order because she was in fear of bodily harm; second, the examiner found no evidence and we find no evidence that Taylor had an antiunion motive at the time he confronted her, i. e., that he was trying to force her to disobey an order so that he could be rid of a union activist. On the basis of these evidentiary conclusions, we have reached the decision that Felipa Palacios was not justified in disobeying the order and that Taylor fired her for the single reason that she defied him in the presence of other employees. If any semblance of plant discipline is to be maintained, an employee cannot ordinarily be selective in the matter of obeying a supervisor’s instructions. If instructions are flagrantly disobeyed, the employee is properly discharged. See NLRB v. Great Dane Trailers, Inc., 5th Cir. 1968, 396 F.2d 769. In this instance, we believe the discharge was for cause and that the Board has acted on no more than a suspicion of a discriminatory discharge. There being no more than a suspicion to support the Board’s decision, we need not approve it. See Cramco, Inc. v. NLRB, 5th Cir. 1968, 399 F.2d 1; NLRB v. O. A. Fuller Super Markets, Inc., 5th Cir. 1967, 374 F.2d 197. Enforcement of that part of the order which requires Felipa Palacios’ reinstatement with backpay is denied.
Enforced in part; denied in part.
. Moreno does not appear to have been a leading union activist, but she signed a union authorization card and in September, 1965 she threatened to report to a, union business agent her dissatisfaction with being moved so often from job to job.
. Palacios’ case might be considered distinguishable because he threatened Gonzalez with a deadly weapon, but there is evidence that Gonzalez, as the stronger man and the aggressor, was equally to blame for the temporary breakdown of order.
. Her testimony that she would have been willing to go to the second-floor office as opposed to the first-floor office belies any testimony that she feared for her physical safety. Her position was apparently based on a warning by her husband that men in the plant made jokes about female employees who went to the first-floor office. We think she was either acting in response to her husband’s warning or simply being defiant. There is no evidence that either Hertzel Finesilver or Taylor knew that Gilbert Palacios had warned his wife against going to the first-floor office. Thus, they could not have known that they might force her to disobey an order.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Francisco Giyolen BUENAVENTURA, Appellant, v. UNITED STATES of America, Appellee. Loncito Esperanza SUENTE, Appellant, v. UNITED STATES of America, Appellee.
Nos. 17267, 17268.
United States Court of Appeals Ninth Circuit.
May 31, 1961.
W. Scott Barrett and Spiegel, Turner, Barrett & Ferenz, San Francisco, Cal., and Turner, Barrett & Ferenz, Agana, Guam, for appellants.
Herbert G. Homme, Jr., U. S. Atty., Agana, Guam, and Kevin T. Maroney and Robert L. Keueh, Attys., Dept, of Justice, Washington, D. C., for appellee.
Before HAMLIN, JERTBERG and KOELSCH, Circuit Judges.
HAMLIN, Circuit Judge.
The appellants were charged, in identical two-count informations filed in the United States District Court for the Territory of Guam, with unlawfully entering the Guam Island Naval Defensive Sea Area in violation of 18 U.S.C.A. § 2152, a felony (Count I), and with stowing away aboard a vessel of the Military Sea Transportation Service in violation of 18 U.S.C.A. § 2199, a misdemeanor (Count II).
The informations were filed on June 14, 1960. Counsel was appointed to represent the appellants, and on June 24, 1960, a motion was made to dismiss the first count of each indictment. In the discussion of this motion District Judge Gilmartin asked whether the appellants were arrested on the high seas and whether they were in custody when they entered the Naval Defensive Sea Area. The United States Attorney was unprepared at the time to answer this question, and after some discussion the judge suggested that the defendants could be placed upon the stand and could be asked that particular question. Appointed counsel objected, stating, “This is a very great surprise to me, your Honor, and I, as their counsel object to their testifying at this time.” However, each appellant was called to the stand and was questioned by the judge as to the time that he was arrested, and answers of each indicated that he had been arrested about three days before the vessel arrived at Guam. Buenaventura also testified as follows:
“Q. You are not guilty? A. My only guilt is a stowaway because I can’t find my own money, so I come from the British colony, I go to the American.
“Q. I understand you say you are not guilty of violating the section of the Code pertaining to the defensive sea area? You are guilty of violating the section of the Code pertaining to being a stowaway. A. Yes, sir, just because I got no money for transportation, so what do I do ?
“The Court: Very well, you may step down.”
Suente, the other appellant, stated in answer to questions that he had been arrested and placed in the brig three days before the vessel reached Guam. On the basis of these statements the court said, “Very well, I am going to dismiss count one in Criminal Case No. 29-60 and also dismiss count one in Criminal Case 30-60, for the reason that these defendants were in custody of the United States authorities aboard a United States Ship when they entered the port of Guam and not for any reason suggested by the defendants’ motion.”
On July 1, 1960, counsel for appellants moved before another judge to dismiss the second count in each information charging appellants with “stowing away,” on the ground that the two appellants were required in open court “a week ago today, to incriminate themselves contrary to their Constitutional rights and privileges and over objections of counsel.” The judge at that time denied the motion, stating, “Isn’t this a matter that ought to be brought up to present that at the time of trial? If the Government tries to present these incriminating statements at the trial, wouldn’t that be the time to object?”
On September 30, 1960, the appellants appeared before Judge Gilmartin for the purpose of having a trial date set. The two cases were then consolidated for trial and set for October 17, 1960, before the court without a jury. When the matter came before Judge Gilmartin for trial, counsel for appellants stated, “On behalf of the defendants, I move at this time the charges be dismissed upon the ground the defendants were required, over the objections of counsel, to make a judicial confession on the 24th of June, 1960, in this court.” The following discussion then took place:
“The Court: Make a judicial confession ?
“Mr. Barrett: Yes, your Honor.
“The Court: In what way ?
“Mr. Barrett: Well, it is a matter of record, I think, your Honor, that hearing of June 24, 1960, where the Court examined the defendants over my objections. In the alternative, I moved to continue the matter until it could be heard by another Judge.
“The Court: Do you have a written notice on this matter ?
“Mr. Barrett: No, I filed a written motion before Judge Ferber on the same question and it was denied.
“The Court: And you are renewing your motion again this morning ?
“Mr. Barrett: Yes, for the record.
“The Court: For the record, your motion is denied.”
The trial then proceeded. Uncontradicted evidence, including confessions made by the appellants to an immigration officer at the time the ship docked at Guam, established that each had stowed away upon the vessel in question when it left the Philippines. The appellants did not take the stand, and no evidence was introduced on their behalf. During the trial no reference of any kind was made to the proceedings of June 24, 1960, nor were the statements of the defendants made on that day offered or received in ■ evidence.
At the conclusion of the testimony counsel for appellants neither made nor requested permission to make an argument on their behalf. Both were found guilty, and the one-year sentence that was imposed on each was suspended, the appellants being placed on probation for a period of five years on condition that they “depart the territory of Guam on the first available transportation.”
No motion for a new trial was made on behalf of the appellants, but they timely filed an appeal to this court, which has jurisdiction under the provisions of 28 U.S.C.A. §§ 1291 and 1294.
We feel that the action of the district judge on June 24, 1960, in questioning each defendant as to when each was arrested, was improper and should not have occurred. The fact that his motive was to assist appellants and that his action actually resulted in the dismissal by the court of the felony count in each information is immaterial. Each appellant had the right under the Fifth Amendment not to be required to give evidence against himself, and we feel that under the circumstances the district judge violated the Constitutional rights of the appellants.
However, we do not feel that the defendants were prejudiced at trial by the occurrences of June 24 or that a reversal of the convictions is required. The uncontradicted evidence introduced at the trial established without question the guilt of each appellant. In almost every case where a trial is before a judge sitting without a jury, the judge, during the course of the trial, will receive some information, or some document or written confession may be offered in evidence, which may not be legally admissible and which is not received in evidence. The court is required to examine such document in determining its admissibility. Likewise, it is true that a judge in proceedings in a criminal case from the time of the arraignment and through various preliminary motions up to the time of trial may receive some information bearing on the guilt of a defendant. However, this cannot be held to have prevented a defendant from receiving a fair trial before the same judge and from having his case determined solely upon the evidence legally admitted during the trial. By using his training and experience the judge can and must separate the evidence which has been legally admitted during the trial from the statements or documents which have not been so admitted.
We feel that the appellants suffered no substantial injustice in this case.
Judgment affirmed.
. § 2152. Fortifications, harbor defenses, or defensive sea areas “ * ® * whoever knowingly, willfully, or wantonly violates any duly authorized and promulgated order or regulation of the President governing persons or vessels within the limits of defensive sea areas, which the President, for purposes of national •defense, may from time to time establish by executive order—
“Shall be fined not more than $5,000 or imprisoned not more than five years, or both.”
Exec. Order No. 8683, 6 Fed.Reg. 1015 (1941), as amended by Exec. Order No. 8729, 6 Fed.Reg. 1791 (1941).
* * [T]he territorial waters between the extreme high-water marks and the three-mile marine boundaries surrounding the islands of Rose, Tutuila, and Guam, in the Pacific Ocean, are hereby established and reserved as naval defensive sea areas for the purposes of national defense. * * *
“At no time shall any person, other than persons on public vessels of the United States, enter any of the naval defensive sea areas herein set apart and reserved * * * unless authorized by the Secretary of the Navy * *
. Ҥ 2199. Stowaways on vessels or aircraft
“Whoever, without the consent of the owner, charterer, master, or person in command of any vessel * * * with intent to obtain transportation, boards, enters or secretes himself aboard such vessel * * * and is thereon at the time of departure of said vessel * * * from a port * * • within the jurisdiction of the United States; or
“Whoever, with like intent, having boarded, entered or secreted himself aboard a vessel * * * at any place within or without the jurisdiction of the United States, remains aboard after the vessel * * * has left such place and is thereon at any place within the jurisdiction of the United States * * *
“Shall be fined not more than $1,000 or imprisoned not more than one year, or both * * *.”
. Appellants’ motion was based on the following grounds:
“1. Executive Order 8683 which defendant is charged with violating was superseded and hence became of no force or effect, by the Organic Act of Guam.
“2. Executive Order 8683 is unconstitutional in that it denies due process of law to citizens of the United States. Executive Order 8683 is therefore void and of no effect.
“3. The United States Navy in enforcing Executive Order 8683 has not provided for a hearing in keeping with the minimum procedural requirements of due process of law, and said Executive Order 8683 is therefore unconstitutional.”
. The case was not triable before a jury since the only remaining count charged a misdemeanor for which there is no provision for jury trials.
. Upon oral argument before this court it was stated that each defendant has already been deported from Guam.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_initiate
|
B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Leonard O. BOWLING, Defendant-Appellant.
No. 80-3684.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 15, 1981.
Decided Dec. 17, 1981.
Certiorari Denied Feb. 22,1982.
See 102 S.Ct. 1475.
Arnold Morelli, Cincinnati, Ohio, for defendant-appellant.
James C. Cissell, U. S. Atty., Nicholas J. Pantel, Asst. U. S. Atty., Cincinnati, Ohio, for plaintiff-appellee.
Before MERRITT and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
PHILLIPS, Senior Circuit Judge.
Leonard Bowling appeals from his conviction for interstate transportation of stolen property having a value in excess of $5,000, in violation of 18 U.S.C. §§ 2 and 2314. Bowling was indicted along with Thomas C. Lawson on October 24, 1979. He allegedly had transported into Ohio over $5,000 worth of sterling silver taken during a burglary of the residence of Mr. and Mrs. Isaac Van Meter in Maysville, Kentucky. Bowling was convicted after a jury trial and sentenced to a prison term of ten years by District Judge S. Arthur Spiegal. We affirm.
I
The record contains substantial evidence from which the jury could have found the defendant guilty on all the essential elements of the crime — that Bowling and Lawson burglarized the Van Meter home on November 17, 1978, stole sterling silver with a value well over $5,000, and transported it from Kentucky to Ohio for the purpose of selling it to a “fence.”
According to testimony adduced at trial, the burglars drove to Maysville, Kentucky, in defendant Bowling’s car on November 17, 1978. During the daylight hours the burglars “cased” a number of houses in Maysville and selected several, among them the Van Meter home, for robbery later that night. After dark they parked Bowling’s automobile near a hospital located at the bottom of a hill, below the houses to be robbed. The burglars then climbed up the hill and proceeded to break into the houses.
Using a screwdriver, they took off a door of the Van Meter home. Defendant Bowling went upstairs to watch out the front window while the other two burglars grabbed some pillowcases from a bedroom and stuffed them with valuables. Between them they took approximately 37 pounds of sterling silver. This silver was “stashed” in the woods while they robbed another house; they then returned and loaded all the stolen goods in the trunk of Bowling’s automobile.
Mr. and Mrs. Van Meter were in Florida on vacation at the time of the robbery, but Mrs. Fannie Johnson, whom they employed as their maid, entered the house on the day following the burglary. She testified that the door in the kitchen had been destroyed and that in every room drawers had been forced or thrown open and their unstolen contents tossed and scattered on the floor. The silver had been taken from the kitchen and dining room, with a few stray pieces left amidst the debris on the floor. An old desk in the study and a secretary in the living room had been rifled, and the Van Meters’ papers and records thrown on the floor. The upstairs also had been ransacked. Mrs. Johnson testified that the closet had been wrecked, a file cabinet jammed and dresser drawers overturned and emptied.
Mrs. Van Meter also testified at trial, positively identifying the stolen silver as her own. Testimony also established that the value of the silver was well in excess of $5,000.
After they had completed the robberies, defendant and the other burglars drove back into Ohio in defendant’s car. They carried the stolen silver to Bowling’s home, where, with the assistance of Bowling’s wife, they weighed and inventoried it and verified that it was sterling.
They had arranged to sell the silver to a “fence” named “Dick Dalton” for $55 a pound. “Dick Dalton” was the alias of an undercover FBI special agent named Richard Dorton. On November 21,1978, Special Agent Dorton went to Bowling’s residence and paid Bowling $752 in cash for his share of the stolen sterling silver.
Bowling left Ohio for Florida in September 1979, and the indictment against him in the present case was filed on October 24, 1979. He was arrested in Florida on May 23, 1980. On his person at the time of his arrest was a Florida driver’s license with his picture, issued in the name of Chester G. Hornbeck, as well as a social security card and an Ohio birth certificate bearing the same fictitious name.
II
Special Agent Dorton’s role as a “fence” in this case was part of a larger FBI investigation of an interstate burglary ring based in the Cincinnati area and operating in Ohio, Wisconsin, Virginia, Tennessee, Kentucky and Illinois. In late 1977, Robert Miller, a paid FBI informant, infiltrated the ring.
This court on two prior occasions upheld convictions arising out of the investigative work of Dorton and Miller. See United States v. Reed, 647 F.2d 678 (6th Cir. 1981); United States v. Brown, 635 F.2d 1207 (6th Cir. 1980). In Reed, supra, we described the arrangement between Dorton and Miller:
[T]he government’s prosecution of the substantive offenses proceeded on the theory that the defendants were participants in a burglary and fencing operation which centered in Middletown, Ohio. The operation was broken when a convicted Middletown burglar, one Robert Miller, agreed to cooperate with federal authorities in exchange for possible lenient treatment on a number of outstanding charges against him. FBI special agent Richard Dorton, using the name Dick Dalton and posing as a Floridian dealer in stolen property, was brought in as an undercover agent to work with Miller and infiltrate the Middletown burglary and fencing ring. 647 F.2d at 680.
In the instant case, Miller, in cooperation with the FBI, won the confidence of Bowling and Lawson and was invited to accompany them on their burglaries. He entered the Van Meter home with Bowling and Lawson and assisted in its burglary. The record contains testimony to the effect that Miller was asked by Bowling and Lawson to suggest a place to go to on their burglarizing expedition, and Miller mentioned there were “a lot of nice houses” in Maysville, Kentucky. Bowling adopted this suggestion because he had seen the houses on top of the hill in Maysville when driving to and from his job every day.
Bowling contends in his brief that Miller’s behavior and the Government’s use of his cooperation during the investigation of Bowling was conduct “so outrageous that due process principles bar his [Bowling’s] conviction for interstate transportation of stolen property.”
We hold that Bowling has not shown that the challenged Government conduct amounts to “a denial of fundamental fairness, shocking to the universal sense of justice,” Betts v. Brady, 361 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942); Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303, 4 L.Ed.2d 268 (1960), which would then be a violation of the Due Process Clause. See also United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973).
Our conclusion is consistent with our previous decision, United States v. Brown, supra, involving similar alleged improper conduct of the same Government informant, Robert Miller. In that decision we said:
The facts of this case involve the government’s investigation, designated by the code name HAMFAT, of an interstate burglary ring. The ring operated, with a base in the Cincinnati area, in Wisconsin, Virginia, Tennessee, Kentucky and Illinois. In late 1977, Robert Miller, a paid FBI informant, infiltrated the interstate burglary ring. His job was to identify the individuals involved in the burglary ring, and to identify the “fences” who purchased the property stolen by the ring. In addition, Miller was to help Richard Dorton, an undercover FBI agent posing as an out-of-state buyer of stolen property, to gain the confidence of the ring.
Miller remained on the job, reporting to the FBI daily, for almost seventeen months.
******
Thus, we begin our analysis with the basic proposition that the use of paid informants to infiltrate criminal enterprises is a “recognized and permissible means of investigation.” Russell, supra, 411 U.S. at 432, 93 S.Ct. at 1643. See also, eg., United States v. McQuin, 612 F.2d 1193, 1195 (9th Cir.), cert. denied, 445 U.S. 954, 100 S.Ct. 1607, 63 L.Ed.2d 791 (1980) (infiltration of criminal ranks by government long recognized as permissible); United States v. Twigg, 588 F.2d 373, 380 (3rd Cir. 1978) (infiltration of criminal operations is an “accepted and necessary practice”); and United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978), and cases cited therein.
This proposition remains true even though the informant or government agent engages in some criminal activity or supplies something of value to the criminal enterprise. The informant or government agent must be allowed to further the interests of the criminal enterprise in some manner to gain the confidence of the criminal elements with which he must deal. See Russell, supra, at 432, 93 S.Ct. at 1643; McQuin, supra, 612 F.2d at 1196; United States v. Corcione, 592 F.2d 111, 114-15 (2d Cir.), cert. denied, 440 U.S. 975, 99 S.Ct. 1545, 59 L.Ed.2d 794 (1979). 635 F.2d at 1208-09, 1212-13.
In the context of the facts of the present case, the Government did not instigate the burglary of the Van Meter home on November 17. Miller, the Government informant, did not organize the burglary trip in question or even select the date for the trip. Miller did not recruit either Bowling or Lawson to burglarize homes. His activities were consistent with the necessity of keeping his credibility established with the burglars in order to maintain his effectiveness as an informer.
Applying to the present case the factors discussed in Brown, supra, 635 F.2d at 1211-14, the Government did not initiate the criminal activity here in question. To the contrary, it merely infiltrated a preexisting criminal enterprise. Robert Miller did not direct or control the activities of the criminal enterprise. To the contrary he merely acquiesced in its criminality.
We adhere to our holding in Brown:
On the facts presented by this record, the court finds no violation of due process. Although the individual burglars and fences might be detectable without infiltration, certainly the use of this investigative technique facilitated a more expeditious and thorough investigation. The burglary ring under investigation, like many drug rings, would have been extremely difficult to thwart without the use of Miller as an undercover agent.
There is no showing of any kind that Miller, or any of the FBI agents involved in this case, instigated any criminal activity. The burglary ring was fully operative when Miller “joined” it. Even after Miller joined the ring, it appears that his participation in its criminal endeavors was limited to following the members’ instructions. Miller was instructed by the FBI to participate in criminal activity only if failure to do so would endanger his life. Nothing in the record suggests that he departed from these instructions. Further, once the government “fence” was taken into the confidence of the ring, Miller's involvement was terminated.
We find that, in its use of Miller, the government in no way increased the number of burglaries, or the likelihood of their success. Miller reported to the FBI on a daily basis. He revealed the location of burglaries and sometimes provided an inventory of the things taken, thus facilitating the recovery of stolen items such as those that form the basis of Brown’s conviction. Although it did not materialize, Miller’s presence also provided the FBI with a possible source of advance notice of burglaries. Miller also could have prevented personal injury to surprised occupants if the need had arisen. The only effect Miller’s presence had on the activities of the ring was that the FBI was informed of the illegal activity in which the ring was engaged. Nothing in the facts convinces us in the least that Miller’s conduct was “shocking to the universal sense of justice.” Russell, supra, 411 U.S. at 432, 93 S.Ct. at 1643. 635 F.2d at 1213-14.
III
Bowling contends that the district judge erred in overruling his motion to immunize Thomas Lawson as a witness in this case.. In United States v. Lenz, 616 F.2d 960 (6th Cir.), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980), this court held that defendants have no compulsory process right to have their favorable witnesses immunized. The decision of the district court in refusing to grant immunity to Lawson is supported fully by Lenz.
IV
Bowling asserts numerous other grounds for reversal of his conviction, including:
(1) That the district court erred in permitting the introduction of evidence concerning Bowling’s flight and concealment in Florida;
(2) That the court erred in admitting into evidence without proper foundation and permitting the jury to consider a tape recording containing material omissions and ambiguities;
(3) That the district court erred in overruling defendant’s objections and his motion for a mistrial based on testimony regarding offenses not described in the indictment; and
(4) That the district judge was guilty of reversible error in his charge to the jury.
Upon consideration, the court concludes that all the grounds for reversal asserted by appellant are without merit.
The judgment of conviction is affirmed. The court expresses appreciation to Mr. Arnold Morelli of the Cincinnati bar for his services as court-appointed counsel for Bowling in the district court and on this appeal.
. 18 U.S.C. § 2314 provides as follows:
Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, df the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud;
* * * * * *
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
18 U.S.C. § 2 is as follows:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces of procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. June 25, 1948, c. 645, 62 Stat. 684; Oct. 31, 1951, c. 655, § 17b, 65 Stat. 717.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_circuit
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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.
Glynn Richard DAVIS and Florence Davis, husband and wife, Appellants, v. WYETH LABORATORIES, INC., a New York corporation, and American Home Products Corporation, a Delaware corporation, Appellees.
No. 20995.
United States Court of Appeals Ninth Circuit.
Jan. 22, 1968.
As Modified on Denial of Rehearing Sept. 10, 1968.
Blaine F. Evans (argued), of Elam, Burke, Jeppesen & Evans, Boise, Idaho, for appellant.
William C. Roden (argued), R. B. Kading, Jr. (argued), of Richards, Haga & Eberle, Boise, Idaho, for appellee.
Before HAMLIN, MERRILL and DUNIWAY, Circuit Judges.
MERRILL, Circuit Judge:
This ease presents the question wheth-. er appellee Wyeth Laboratories, Inc., a manufacturer of Sabin polio vaccine, should be held to strict tort liability to one who took the drug and contracted polio as a result.
Appellant Glynn Richard Davis took appellee’s Type III polio vaccine at a mass immunization clinic conducted in West Yellowstone, Montana, in March, 1963. At that time he was thirty-nine years old, in good health, and engaged in the lumber business. Within thirty days he evidenced paralysis and other symptoms of polio, and has remained paralyzed from the waist down ever since. He brought suit in the District' Court for the District of Idaho asserting jurisdiction founded on diversity of citizenship and here appeals from judgment for appellee following jury trial.
I. THE BACKGROUND
A. The Vaccine
The vaccine involved is Sabin oral polio vaccine, as developed by Dr. Albert Sabin after many years of research. There are three separate types of Sabin vaccine: Type I, Type II and Type III. Each is designed to immunize the person taking the vaccine from contracting paralytic poliomyelitis from a corresponding type of polio virus. Differing from the earlier Salk vaccine, administered by injection, the Sabin vaccine utilizes live virus.
The use of a live virus polio'vaccine which could be taken orally had been under study throughout the world for a number of years. In the United States it has been determined that the Sabin vaccine strains should be licensed. Licensing was handled by The Division of Biologic Standards of the National Institutes of Health, a part of the United States Department of Health, Education and Welfare. Ultimately the United States licensed three manufacturers of the vaccine, including appellee Wyeth Laboratories. Appellee was licensed to sell Type III vaccine on May 17, 1962.
Licensing in the United States was preceded by worldwide clinical testing on between 700,000 and 1,000,000 people.
The vaccine is licensed for sale only as a prescription drug. It is usually manufactured in what the producers call “lots.” Each lot of the vaccine is manufactured under extremely complex and technical standards devised by The Division of Biologic Standards. The virus used in the vaccine, without regard to who manufactures it, comes from a common source. Appellee obtained from Dr. Sabin a so-called “seed” virus and this original seed, still maintained, is the parent of each separate lot of vaccine manufactured by appellee. Each individual lot is, in turn, run through a number of tests in the manufacturing laboratory.
Following manufacture and satisfactory testing within the laboratory, the lot involved in this case was sent to The Division of Biologic Standards where it was again subjected to rigorous testing. The Government, being satisfied with the result of the test, granted authorization for the release of this lot on January 31, 1963.
B. The Mass Immunization Clinics
In the fall of 1960 an advisory committee was established by the Surgeon General of the United States to review all phases of polio prevention. In February, 1962, the Communicable Disease Center of the Public Health Service, Department of Health, Education and Welfare, issued recommendations and reports of this committee. It was stated:
“With the licensing of type III monovalent vaccine, which is anticipated in the near future, the complete oral polio virus vaccine will become available. Recommendations as to planning and policies which will assure its maximally effective use are now essential for the guidance of the medical profession and official health authorities.”
The goal of this campaign to disseminate the oral vaccine was stated as “the complete elimination of paralytic poliomyelitis from the United States.” Community mass immunization centers were recommended and guidelines were given for setting them up. The following month the Surgeon General, on behalf of the Public Health Service, issued recommendations for the use of the vaccine in the 1962 season, giving further guidance for the conduct of community programs.
That month, March, 1962, representatives of the Public Health Service held a meeting with Idaho public health officials and medical association officers at which a joint release was issued recommending the holding of community clinics. The holding of such clinics in Eastern Idaho was later officially authorized by the Idaho Falls Medical Society and its Public Health Committee, who then selected appellee’s product as the vaccine to be administered. At a subsequent meeting it was decided to include West Yellowstone, Montana, in the Eastern Idaho program since there were no doctors there and the residents relied on medical facilities in- Ashton, Idaho. In the absence of a doctor the administration of the vaccine for the West Yellowstone clinic was delegated to a pharmacist.
The clinics in Eastern Idaho were originally scheduled for the fall of 1962. On September 14, 1962, a statement was issued by the Association of State and Territorial Health Officers through the subcommittee on epidemic intelligence of its committee on infectious diseases. It stated:
“The Sub-committee * * * has reviewed data showing a temporal association between the incidence of paralytic poliomyelitis and the administration of Type 3 oral poliomyelitis vaccine. The Sub-committee believes that the data indicate a causal relationship and show that a small but definite risk attends the use of presently available Type 3 oral polio vaccines. The data further suggest that the risk is almost exclusively limited to adult populations. While the Subcommittee acknowledges the presence of a small risk, it recognizes the tremendous value of oral poliomyelitis vaccines and the detrimental effect the unqualified withdrawal at this time would have on their future use. In view of the very small magnitude of the risk and the enormous potential value of oral vaccines, the Sub-committee therefore recommends that the Surgeon General issue a statement which will:
1. Apprise the public of the nature of the risk.
2. Recommend that the non-epidemic use of Type 3 oral vaccine be restricted to preschool and school age children.
3. Recommend that the vaccine continue to be available for epidemic use.
4. Reaffirm the desirability of restricting mass application to the late Fall, Winter and Spring.”
The following day a statement was issued by the Surgeon General respecting his own special advisory committee’s review of occurrences of polio cases associated with the administration of the vaccine. It stated:
“The level of this risk can only be approximated but clearly is within range of less than 1 case per million doses. Since the cases have been concentrated among adults the risk to this group is greater; whereas, the risk to children is exceedingly slight or practically nonexistent.
The Committee therefore recommends that the use of Type III vaccine in mass campaigns be limited to preschool and school age children. Plans for mass programs using Type I and II vaccines in all age groups should continue. Furthermore, Type III vaccine is still indicated for use among adults in high risk groups, which include tourists to hyperendemic areas and persons residing in epidemic areas.
A special report is being prepared and will be sent to the members of the medical and public health profession within the next few days and will be made public.”
The special report followed on September 21, 1962. It stated:
“Present data indicate that for 1962, the paralytic poliomyelitis rate for those under 20 will be approximately 7.6 per million; for those over 20, about 0.9 per million. These rates will represent a record low for the 52 year period since the reporting began.”
It reiterated the recommendation earlier made in the Surgeon General’s statement:
“With the incidence of poliomyelitis at a low level in this country, the Committee therefore recommended that the Type III vaccine be restricted to preschool and school age children and to those adults in high risk groups, such as those travelling to hyperen-demic areas or in areas where a Type III epidemic is present or impending.
Since the vast majority of poliomyelitis cases occur among young children and since children are the principal disseminators of the virus, continued intensive immunization programs among this group are clearly indicated. If this group can be adequately immunized, the spread of the poliomyelitis viruses will be sharply restricted, if not essentially eradicated.”
In December, 1962, a further report was issued. It stated:
“It is therefore recommended: (1) that community plans for immunization be encouraged, using all three types; and (2) that immunization be emphasized for children in whom the danger of naturally occurring poliomyelitis is greatest and who serve as the natural source of poliomyelitis infection in the community. Because the need for immunization diminishes with advancing age and because potential risks of vaccine are believed by some to exist in adults, especially above the age of 30, vaccination should be used for adults only with the full recognition of its very small risk. Vaccination is especially recommended for those adults who are at higher risk of naturally occurring disease; for example, parents of young children, pregnant women, persons in epidemic situations and those planning foreign travel.
Of greatest importance is the continuing vaccination of oncoming generations.”
With these recommendations before them the East Idaho officials postponed their clinics scheduled for the fall of 1962, but determined to proceed in the spring of 1963. Adults were included in their immunization program.
C. Appellee’s Participation
When Eastern Idaho chose appellee’s vaccine for its clinics, Mr. John Franklin, one of appellee’s salesmen, was assigned to handle the sales and assist in setting up the clinics. He was sent by appellee to Nevada to receive special training in setting up and conducting such clinics. Thereafter he managed the campaign for the Idaho Falls Medical Society. He furnished books to those in charge of clinics, setting forth schedules and procedures to be followed and details of the physical manner in which the clinics were to be set up and also showing sample promotional letters and advertising matter. He arranged for delivery of the vaccine from headquarters at Idaho Falls to the various clinics, including that at West Yellowstone, by the Idaho Falls Jeep Patrol. He arranged for the printing of forms and immunization cards and posters urging “KO Polio” and took charge of sending them to West Yellowstone. He organized meetings and conferred with those in charge of the separate clinics as to the procedures to be followed. For expenses incurred by him in connection with these activities he was reimbursed by the medical society.
Each person who received the vaccine was charged 25$ (although it was given free of charge if the recipient so requested). Appellant paid this amount for his dosage. Funds collected from the clinics were used to pay the medical society’s bill from Wyeth for the vaccine, with the remainder retained by the society.
D. Warnings
The Surgeon General’s March statement was the subject of a news story in a Pocatello, Idaho, newspaper and was read by Franklin. It was his first information respecting the subject and he promptly informed the medical society of the release. The society confirmed the information by a telephone call to the office of the Surgeon General.
The drug when sold to the medical society had a printed insert with each bottle containing 100 doses. This insert contained directions for use and pertinent excerpts from the Surgeon General’s report.
A fact sheet put out by appellee and contained in the book it supplied to clinics was published prior to the Surgeon General’s report and represented the vaccine as completely safe for all ages. A collection of news clippings from Idaho newspapers introduced in evidence by appellant shows not only a complete lack of warning but assurances that the vaccine was safe for all.
No effort was made by Franklin or the medical society to inform the West Yellowstone pharmacist of the existence of risk. The latter did not read the package insert, nor did appellant. The advertising posters made no disclosure of risk and none was made directly to those who took the drug in West Yellowstone. Appellant testified that he had no knowledge of the risk, relied on the posters and was convinced by the campaign’s advertising that it was his civic duty to participate.
II. THE ISSUES AS PRESENTED
Appellant stated claims founded on (1) negligent manufacture, (2) failure to warn of known dangers, (3) strict liability in tort and (4) breach of an implied warranty of fitness. The District Court dismissed all save that of breach of warranty.
We agree with the District Court that there was nothing in the record to create a jury issue as to negligence in manufacture. On the contrary, the record shows scrupulous attention in the matter of preparation and testing. The resulting product was precisely what was intended. For this reason we also reject appellant’s claim that it was error for the -District Court to refuse to give an instruction that under Montana law appellee was held to an implied warranty that there was no “impurity” in the vaccine.
We find no error in the District Court’s choice to present the case to the jury on warranty rather than on strict liability in tort. The law as emerging is tending toward the latter treatment but under either approach the elements remain the same. The difference is largely one of terminology.
We do find reversible error, however, in the manner in which the breach of warranty claim was given to the jury in the light of the court’s dismissal of the claim for breach of a duty to warn.
Appellant contends that the District Court erred in instructing, on warranty, that the test is whether the drug was “reasonably fit and reasonably safe for use by the public as a whole.” He contends that the warranty was that the drug was fit and safe as to him.
As a general proposition we would question the correctness of appellant’s contention. It would, if generally applied, be equivalent to an imposition of absolute enterprise liability whereby all those who suffer unanticipated harm from the use of drugs are compensated out of profits from the sale of such products as a cost of doing business to the manufacturer. ‘' Although there are those who regard such a result as just, it has so far been found inappropriate for the courts to impose such a far-reaching change in the law of products liability.
Under the circumstances of this case, however, we conclude that strict liability does attach to sale of the drug to appellant and that the jury should have been so instructed, either by such an instruction as that requested by appellant or otherwise. Our conclusion in this respect is based upon our determination that a duty to warn existed, as to which none of appellant’s requested instructions was given.
While appellant alleged negligent breach of a duty to warn as an independent claim, we regard failure to warn, where the circumstances of sale imposed that duty, as exposing the vendor to trict liability in tort (or to liability for breach of warranty if that approach is used).
It was stipulated below that Montana law governed this case. We can find no Montana decision in point on the issue of a drug manufacturer’s duty to warn of dangers inherent in its product. Privity of contract between buyer and seller as a prerequisite to recovery in an implied warranty action has long been abolished in that state in cases involving food, and strict liability has been imposed on those who sold it. It would seem that the same approach would be adopted by the Montana Supreme Court in cases involving drugs meant for internal use. Faced with the absence of controlling state precedent, we choose to assume that Montana would follow the majority of other states in finding that liability can attach to the sale of drugs, in either tort or warranty, despite lack of privity, and would adopt the views set forth below on the manufacturer’s duty to warn, of dangers in “nondefective” but potentially harmful products.
III. THE LAW OF STRICT LIABILITY AS APPLICABLE HERE
The clearest statement of the law as it exists today is in our view that set forth in the Restatement (Second) of Torts (1965). Relevant to our case are § 402A and comments j and k. They are set forth in the margin.
The general proposition as there stated (subject to certain exceptions) is that strict liability shall attach to one who sells a product “in a defective condition, unreasonably dangerous” to the consumer.
At the outset we reject appellee’s contention that the rule applies only where unreasonable danger results because of an ascertainable “defect” or “impurity” in the product, and that since this product was precisely what it was intended to be there was no such defect. The true test in a case of this kind is whether the product was unreasonably dangerous.
Comment j recognizes that to prevent a product from being unreasonably dangerous, direction or warnings as to its use must be given in appropriate cases.
Comment k deals with the unavoidably unsafe product. Here the fact that a product is dangerous does not result in strict liability if, on balance, public interest demands that it be made available notwithstanding its dangerous characteristics. This situation, as the comment notes, is especially common in the field of drugs, and, in particular, new and experimental drugs. We agree with ap-pellee that the Sabin vaccine qualifies for such treatment. As the comment stresses, however, strict liability is avoided in these situations only where sale is accompanied by proper directions and proper warnings. Thus we are returned to the problem of the duty to warn.
The duty seems clear where the drug’s danger is directed to a foreseeable and ascertainable class of persons, such as those prone to certain allergies. Such a warning constitutes a caution that certain persons should not take the drug; that as to certain persons it is not “fit.” There are many cases, however, particularly in the area of new drugs, where the risk, although known to exist, cannot be so narrowly limited and where knowledge does not yet explain the reason for the risk or specify those to whom it applies. It thus applies in some degree to all, or at least a significant portion, of those who take the drug. This is our case; there seems to be no certain method of isolating those adults who may be affected adversely by taking Type III Sabin vaccine.
In such cases, then, the drug is fit and its danger is reasonable only if the balance is struck in favor of its use. Where the risk is otherwise known to the consumer, no problem is presented, since choice is available. Where not known, however, the drug can properly be marketed only in such fashion as to permit the striking of the balance; that is, by full disclosure of the existence and extent of the risk involved.
As comment k recognizes, human experimentation is essential with new drugs if essential knowledge ever is to be gained. No person, however, should be obliged to submit himself to such experimentation. If he is to submit it must be by his voluntary and informed choice or a choice made on his behalf by his physician.
In such cases, then, the drug is fit and its danger is reasonable only if the balance is struck in favor of its use. It can properly be marketed only in such fashion as to permit the striking of that balance; that is, by full disclosure of the existence and extent of the risk involved.
When Type III Sabin vaccine was first licensed by the Government in early 1962 and first manufactured and sold by Wyeth, there was no known or foreseeable risk involved in taking it. Thus Wyeth could not initially be expected to warn of unknown dangers. But its responsibility did not end there. When, after further experience, the danger became apparent a duty to warn attached. We do not need to fix the precise point at which it attached. Certainly by March, 1963, when appellant took the. vaccine, six months after the Surgeon General’s first report on the subject, it was the responsibility of Wyeth to see that such warning was given.
There will, of course, be cases where the personal risk, although existent and known, is so trifling in comparison with the advantage to be gained as to be de minimis. Appellee so characterizes this case. It would approach the problem from a purely statistical point of view: less than one out a million is just not unreasonable. This approach we reject. When, in a particular ease, the risk qualitatively (e. g., of death or major disability) as well as quantitatively, on balance with the end sought to be achieved, is such as to call for a true choice judgment, medical or personal, the warning must be given.
Appellee contends that even under such a test no true choice situation is presented here. It asserts that “common sense and knowledge of the mainstreams of human conduct would unavoidably bring one to the conclusion” that appellant would have chosen to take the risk. It says, “Simply stated that proposition is this: A man has less than one in a million chance of contracting the dreaded disease of polio if he takes the vaccine. If he does not take the vaccine his chances of contracting polio are abundantly increased.”
We do not so read the record. The Surgeon General’s report of September, 1962, as we have quoted it, predicted that for the.1962 season only .9 persons over 20 years of age out of a million would contract polio from natural sources. While appellant was the father of two young children, he resided in an area that not only was not epidemic but whose immediate past history of incidence was extremely low. We have no way of knowing the extent to which either factor would affect the critical statistics. Thus appellant’s risk of contracting the disease without immunization was about as great (or small) as his risk of contracting it from the vaccine. Under these circumstances we cannot agree with ap-pellee that the choice to take the vaccine was clear.
We may note further that where the end sought is prevention of disease (and the likelihood of contracting the disease from natural sources is a relevant factor) the situation is a different one from that in which the disease has already struck and the end sought is relief or cure. Risks are far more readily taken in the latter case.
We conclude that the facts of this case imposed on the manufacturer a duty to warn the consumer (or make adequate provision for his being warned) as to the risks involved, and that failure to meet this duty rendered the drug unfit in the sense that it was thereby rendered unreasonably dangerous. Strict liability, then, attached to its sale in absence of warning.
Appellee contends that its duty to warn was met by Franklin’s disclosures to the medical society. It points out that its only direct sale of vaccine was to the medical society and that it was the society’s judgment and not appellee’s to proceed with the clinics.
Ordinarily in the case of prescription drugs warning to the prescribing physician is sufficient. In such cases the choice involved is essentially a medical one involving an assessment of medical risks in the light of the physician’s knowledge of his patient’s needs and susceptibilities. Further it is difficult under such circumstances for the manufacturer, by label or direct communication, to reach the consumer with a warning. A warning to the medical profession is in such cases the only effective means by which a warning could help the patient.
Here, however, although the drug was denominated a prescription drug it was not dispensed as such. It was dispensed to all comers at mass clinics without an individualized balancing by a physician of the risks involved. In such cases (as in the case of over-the-counter sales of nonprescription drugs) warning by the manufacturer to its immediate purchaser will not suffice. The decision (that on balance and in the public interest the personal risk to the individual was worth taking) may well have been that of the medical society and not that of appellee. But just as the responsibility for choice is not one that the manufacturer can assume for all comers, neither is it one that he can allow his immediate purchaser to assume. In such cases, then, it is the responsibility of the manufacturer to see that warnings reach the consumer, either by giving warning itself or by obligating -the purchaser to give warning. Here appellee knew that warnings were not reaching the consumer. Appellee had taken an active part in setting up the mass immunization clinic program for the society and well knew that the program did not make any such provision, either in advertising prior to the clinics or at the clinics themselves. On the contrary, it attempted to assure all members of the community that they should take the vaccine.
We conclude that appellee did not meet its duty to warn.
This duty does not impose an unreasonable burden on • the manufacturer. When drugs are sold over the counter to all comers warnings normally can be given by proper labeling. Such method of giving warning was not available here, since the vaccine came in bottles never seen by the consumer. But other means of communication such as advertisements, posters, releases to be read and signed by recipients of the vaccine, or oral warnings were clearly available and could easily have been undertaken or prescribed by appellee.
Por these reasons we hold that it was error to fail to instruct the jury, either in warranty or in tort, that appellee was strictly liable if its drug caused appellant to contract polio and if appellant’s taking of the drug was without knowledge of risk.
Reversed and remanded for new trial.
. Appellant fell in this class.
. In this respect our case differs from Gottsdanker v. Cutter Laboratories, 182 Cal.App.2d 602, 6 Cal.Rptr. 320, 79 A.L.R.2d 290 (1960), involving the Salk vaccine. There harm resulted because through inadequate testing procedures live virus remained in a product from which they supposedly had been eliminated.
. Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1963).
. See Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 804-05 (1966). Greeno v. Clark Equipment Co., 237 F.Supp. 427, 429 (N.D.Ind.1965), noted that strict liability as imposed by Restatement (Second) of Torts § 402A (1965) is “hardly more than what exists under implied warranty when stripped of the contract doctrines of privity, disclaimer, requirements of notice of defect, and limitation through inconsistencies with express warranties.”
. “In considering the question of breach of an implied warranty, you are instructed that the implied warranty involved in this case is that the vaccine was reasonably fit for the particular purpose for which it was manufactured. In other words, under such circumstances the law imposes upon defendants a warranty that the Sabin vaccine, which it manufactured and supplied, was reasonably fit and reasonably safe for consumption by members of the public as a whole. This warranty does not mean, however, that this vaccine could be used with absolute safety, but means only that the vaccine must have been reasonably fit and reasonably safe for use by the public as a whole.”
. Cochran v. Brooke, 409 P.2d 904, 907 (Ore.1966); James, The Untoward Effects of Cigarettes and Drugs: Some Reflections on Enterprise Liability, 54 Calif.L.Rev. 1550, 1558 (1966); Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn.L.Rev. 353 (1965). See also Keeton, Products Liability—Some Observations About Allocation of Risks, 64 Mich.L.Rev. 1329, 1347-48 (1966).
. See Crane v. Sears, Roebuck & Co., 218 Cal.App.2d 855, 32 Cal.Rptr. 754 (1963); Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 46 Cal.Rptr. 552 (1965); Traynor, supra note 6; 2 Frumer & Friedman, Products Liability § 16A[4] [e] (1967).
. Kelley v. John R. Daily Co., 56 Mont. 63, 181 P. 326 (1919); Bolitho v. Safeway Stores, 109 Mont. 213, 95 P.2d 443 (1938).
. In vicariously creating state law in such cases, we must look to the same sources that would be used by the state court— Restatement of Law, treatises, law review commentary and both state and federal decisions. Wright, Federal Courts 206 (1963); Corbin, The Laws of the Several States, 50 Yale L.J. 762, 775-76 (1941). We have been proven wrong before when we predicted that a state court would refuse to follow a more enlightened rule of personal injury recovery. Compare Summers v. Wallace Hospital, 276 F.2d 831 (9th Cir. 1960), .with Owens v. White, 342 F.2d 817 (9th Cir. 1965).
. Ҥ 402A. Special liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
* * * * *
j. Directions or learning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.
But a seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized. Again the dangers of alcoholic beverages are an example, as are also those of foods containing such substances as saturated fats, which may over a period of time have a deleterious effect upon the human heart.
Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.
k. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariabily leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidably high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”
. See Wade, Strict Tort Liability of Manufacturers, 19 S.W.L.J. 5, 14-15 (1965) :
“The more difficult problem arises with a product which was made in the way it was intended to be made and in the condition planned and which yet proves to be dangerous. Is such an article defective? * * * in cases of this general type the phrase ‘defective condition’ has no independent meaning, and the attempt to use it is apt to prove misleading. The only real problem is whether the product is ‘unreasonably dangerous,’ because ‘defective condition,’ if it is to be applied at all, depends on that.” See also Rapson, Products Liability Under Parallel Doctrines: Contrasts Between the Uniform Commercial Code and Strict Liability in Tort, 19 Rutgers L.Rev. 692, 702 (1965).
. See Prosser, supra note 3, at 808. In one sense, the lack of adequate warning is what renders the product “defective.” See 2 Frumer & Friedman, Products Liability § 16A[4][e] (1967), and sources cited.
. E.g., Wright v. Carter Products, Inc., 244 F.2d 53 (2d Cir. 1957).
. Such apparently was also the case in Toole v. Richardson-Merrell, Inc., 251 A.C.A. 785, 60 Cal.Rptr. 398 (Dist.Ct.App.1967), where it was held that the traditional “defect” in the product was unnecessary for recovery by a person who developed cataracts from using MER/29, a treatment for arteriosclerosis; and that “strict liability is justified on the ground that the product was marketed without proper warning of its known dangerous result.” Id. at 807, 60 Cal.Rptr. at 414.
. See Note, The Manufacturer’s Duty to Warn of Dangers Involved in Use of a Product, 1967 Wash.U.L.Q. 206, 211.
. The purely statistical approach has been abandoned in many recent cases in the allergy field, and a duty to warn a small hypersensitive group has been found where the potential side effect of a cosmetic or drug was serious. In Wright v. Carter Products, Inc., supra note 13, the court stated that, despite the fact that only a miniscule number of users of the deodorant in question were endangered, “duties to warn are not, in all cases, measured by quantitative standards,” and that a manufacturer may in some circumstances have a duty to warn “those few persons who it knows cannot apply its product without serious injury.” Id. at 56, 58. Accord, Sterling Drug Inc. v. Cornish, 370 F.2d 82 (8th Cir. 1967) ; Gober v. Revlon, Inc., 317 F.2d 47 (4th Cir. 1963); Braun v. Roux Distrib. Co., 312 S.W.2d 758 (Mo.1958).
. Sterling Drug Inc. v. Cornish, supra note 16; Magee v. Wyeth Laboratories, 214 Cal.App.2d 340, 29 Cal.Rptr. 322 (1963).
. Love v. Wolf, 226 Cal.App.2d 378, 394, 38 Cal.Rptr. 183, 192 (1964). In Wolf the profit from the sale of a drug was held admissible to show motive for alleged overpromotion of that drug to the medical profession that might be held to cancel out the effectiveness of an insert warning. Appellant claims that the trial court erred in refusing to allow hjm to gain, through interrogatories, evidence of Wyeth’s profits on the sale of Sabin vaccine. Since we find that, in any event, the package insert did not fulfill Wyeth’s obligation to warn in this case, we need not rule on this contention.
. Stottlemire v. Cawood, 213 F.Supp. 897,
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_district
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Harry FREDMAN, Plaintiff-Appellant, v. HARRIS-HUB COMPANY, Inc., Defendant-Appellee. Harry FREDMAN, Plaintiff-Appellant, v. ESTEE SLEEP SHOPS, INC., Defendant-Appellee.
Nos. 18210, 18211.
United States Court of Appeals, Seventh Circuit.
April 28, 1971.
Morris Shenker, Bernard J. Mellman, Cordell Siegel, St. Louis, Mo., Harvey B. Jacobson, Jr., Washington, D. C., Gregory B. Beggs, Pendleton, Neuman, Williams & Anderson, Chicago, Ill., for plaintiff-appellant.
R. Howard Goldsmith, Charles W. Ryan, Chicago, Ill., for defendants-appellees; Dressier, Goldsmith, Clement & Gordon, Chicago, Ill., of counsel.
Before KILEY, PELL and STEVENS, Circuit Judges.
STEVENS, Circuit Judge.
In 1962, plaintiff invented a novel, sophisticated and valuable bed assembly which, by joining originally designed side rails at their centers with an interconnecting tension member, eliminated the need for wooden slats to support bed springs and solved significant problems associated with the use of conventional bed assemblies. His invention was clearly patentable. The questions presented are (1) whether claim 3 of his patent, which may be read to describe defendant’s crude device, is valid; and (2) whether defendant’s simple approach to the goal of slatless beds is sufficiently equivalent to the inventor’s to constitute infringement of claim 4
I.
A description of the principal problems solved by plaintiff’s invention will identify the difference between the issues presented under claims 3 and 4.
One of the most significant problems confronting bed manufacturers and users has been the use of slats extending between, and supported on, the bed’s side rails. Normally, three wooden slats were used. Quite often outward deflection of certain portions of the bed rails and downward deflection of the central portion of the slats would cause the slats to drop off the ledges and thus no longer support the bed springs. Sitting on the edge of a bed would tend to move all of the slats toward one bed rail, and would also deflect the bed rail outwardly, permitting the slats to drop to the floor.
The problem associated with the use of wooden slats as thus described could have been eliminated by replacing the slats with a tension member interconnecting the central portion of conventional side rails, and thereby preventing outward deflection of the rails. The bed springs could then have rested securely on the horizontal flanges or ledges projecting inwardly from the side rails. Claim 3 of plaintiff’s patent would have described an adequate solution to the industry’s bed slat problems were it not for a complicating factor resulting from lack of standardization in the industry.
The bed rails are supported by pins which are set in notches in the end boards. Although the width of bed springs assemblies has been standardized for some time, the distance between the pins on headboards and footboards supporting the bed rails varies considerably from the standard spring widths. Thus, although a standard spring assembly for a double bed is 52% inches wide, the slots in the headboard and footboard in which the supporting pins are placed may be as much as 54% inches apart.
The discrepancy between the standard spring assembly widths and the variable distances between the notches in the end boards defeated pre-1962 attempts to produce a satisfactory slatless bed assembly. Without the wooden slats, the springs rested on the horizontal flanges or ledges projecting inwardly from the side rails. The metal ledges on conventional side rails were only about 1% inches wide. If the side rails were no further apart than the width of the springs, presumably such ledges would support the spring assembly, provided that a suitable “anti-spread device” prevented outward deflection of the rails when the bed was being moved or when someone was sitting on the middle of it. But the narrow ledges were not adequate to prevent the bedding from falling through to the floor when the notches in the end boards were farther apart than the width of the standard spring assemblies.
Plaintiff discovered an ingenious and by no means obvious solution to the problem. He designed new side rails which differed from the conventional in several respects. They contained a broader horizontal ledge which provides firm support for the spring assembly. More significantly, they were designed to provide a snug clamping relationship between the vertical portions of the two side rails and the spring assembly, with the side rails retaining their parallelism with each other and their firm support for the spring assembly, notwithstanding variations in the distance between headboard notches.
The patented rail has both a horizontal and a vertical flange over the major portion of its length, but near its ends the horizontal flange flows downwardly into the plane of the vertical flange. In consequence, when the rails are affixed to the headboards and footboards, and interconnected by a centrally located tension member, deflection may occur at the ends of the rails while the major portions of the rails maintain their parallel relationship with each other. As stated in the patent specifications, the major portions of the rails — i. e., the portions with both horizontal and vertical flanges — “will not flex” when interconnected by a tension member, whereas the purely vertical end portions “ * * * may be deflected as much as one inch thus accommodating headboards having variations of two inches more than or less than the standard width of the spring assemblies.”
The specifications explain some of the advantages of the parallelism thus achieved. The spring assembly actually becomes an integral part of the bed thereby precluding a substantial canting of the side rails in relation to the headboard and footboard. Furthermore, with the vertical flanges of the side rails disposed against the bedding, there is no space between the bedding and the side rails in which articles may become lost or deposited; this snug relationship also eliminates a spot in which dust normally accumulates. And, of course, the lateral flexibility at the ends of the rails achieved the goal of slatless beds despite varying distances between headboard notches.
II.
After learning of the commercial success of plaintiff’s slatless bed assemblies, the defendant, Harris-Hub Company, Inc., began to manufacture and sell the accused assembly. The accused device does nothing more than interconnect the centers of two conventional metal side rails with a strap that applies sufficient tension to bow the rails inwardly against the bedding.
Although a purely theoretical description of the geometry of the bed rails might suggest that the vertical flanges would make contact with the bed springs only at the apex of each curve, in fact, since the maximum deflection of about an inch on each side rail is such a small fraction of the length of the rail, there is contact between the spring assembly and the bows throughout the major portion of the length of the rails. Plaintiff contends that this difference between parallel rails with end portions that flex as much as one inch, and bowed rails which flex to the same extent, is not sufficient to excuse defendant’s copying of his idea.
Ethical considerations provide persuasive support for plaintiff’s position. But under controlling legal principles, they are subordinate to the question whether defendant has violated or merely exercised a right protected by federal patent law. Cf., Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661. As already noted, the questions involve (a) the validity of claim 3 and (b) the alleged equivalence of claim 4 and defendant’s bow.
A.
The district court 311 F.Supp. 734, found claim 3 invalid, and we have no doubt that he was correct. In construing claim 3, we, of course, look at the language of the claim itself, not at the device manufactured by plaintiff which embodied features described in other claims. It is equally clear that plaintiff’s commercial success with the assembly described in claim 4 has no bearing on the validity of claim 3.
Plaintiff argues that the district court erroneously construed claim 3 as nothing more than an anti-spread device. As so construed, the claim is plainly anticipated by a 1933 patent covering an anti-spread device for beds consisting of an adjustable strap interconnecting the central portions of the side rails. Moreover, the language of the claim itself describes the purpose of the interconnecting tension member as “preventing outward deflection of the central portion of the rails.” The specifications explain the importance of preventing outward deflection. Thus, there is ample support for the district court’s interpretation of claim 3 in the language of the patent.
Plaintiff argues, however, that claim 3 should be read as also describing an inward deflection of the rails. But there is no reference to an inward deflection in the claim. Plaintiff seeks to equate the claim’s reference to “maintaining” the relationship between the rails and- the bedding with his argument “that the cross-member will pull the side rails into and underneath the box springs.” But his argument relates to the favorable pulling action of the actual device as described in claim 4, rather than to a fair interpretation of the word “maintaining” in claim 3, which, as there used, relates to the avoidance of a spreading action. The claim does not use the verb “pull”; the verb “maintain,” which it does use, does not describe active movement.
Neither claim 3 nor anything else in the patent suggests that the inventor believed conventional rails could be used to solve the slatless bed problem resulting from disparities between the standard width of springs and the varying distances between end board notches. The use of conventional rails with a simple anti-spread device would have been acceptable if no such disparity existed. It is thus reasonable to interpret claim 3 as describing an anti-spread device which would be an adequate substitute for wooden slats in beds using headboards with notch separations of the same distance as the width of standard springs. The problems solved by other claims in the patent would not be present with respect to such beds. And nothing in the patent suggests that claim 3 would be an adequate solution to the problems described in the specifications except in such cases. We, therefore, construe claim 3 as an anti-spread device contemplating a slatless assembly for beds with end board notch separations equal to the width of the springs. As such, it was plainly invalid.
Apart from the question of anticipation, we would have grave doubt about the validity of plaintiff’s patent if his idea embodied nothing more than a tension member connecting two ordinary metal side rails. Cf., Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 152-153, 71 S.Ct. 127, 95 L.Ed. 162; Anderson’s Black Rock v. Pavement Salvage Co., 396 U.S. 57, 61, 90 S.Ct. 305, 24 L.Ed.2d 258.
B.
Almost the entire text of claim 4 is an explanation of the special design of plaintiff’s side rails. Claim 4 clearly does not describe defendant’s device, which uses conventional rails. Plaintiff argues, however, that infringement is established by the doctrine of equivalence. Relying on Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607-609, 70 S.Ct. 854, 94 L.Ed. 1097, he contends that the accused device performs “substantially the same work in substantially the same way to obtain substantially the same result” as the conception described in claim 4.
Plaintiff submitted proposed findings of fact on the issue of equivalence which the district court rejected. As the Supreme Court noted in Graver, a finding of equivalence is a determination of fact with respect to which the trial court’s decision should not be disturbed unless clearly erroneous. 339 U. S. at 609-610, 70 S.Ct. 854. We are not persuaded that the district court’s rejection of plaintiff’s proposed findings on the issue of equivalence was clearly erroneous.
The text of the patent indicates that one of the inventor’s assumptions, which required him to design a novel rail with its horizontal flange flaring into the vertical at its ends, was that the “right angular cross-sectional configuration will not flex.” If flexing a conventional rail into a bow had been within his conception, and if that configuration produced a result which is truly an equivalent of his invention, he took unnecessary pains to develop his sophisticated rail design. We think a fair reading of the entire patent indicates that his contribution to the art was predicated on an assumption that the portion of the rail which provides both clamping pressure from the vertical flange and adequate support from the horizontal flange “will not flex.”
We are also persuaded that plaintiff cannot deny that the true parallelism of his device produces a result sufficiently superior to the bowing of conventional rails to preclude application of the doctrine of equivalence. The benefits of parallelism are described in the specifications and, in large part, constitute the objective achieved by the special design of the rails. As we consider the rail design a crucial fe.ature of plaintiff’s patented invention, we are unwilling to extend the scope of plaintiff’s monopoly to include all slatless bed assemblies using a tension member to interconnect conventional side rails. Plaintiff has no patent on the function performed by his invention. The substance of plaintiff’s invention includes an original design for side rails.
We read the language which plaintiff used in his patent as foreclosing his claim that tension sufficiently strong to bow conventional rails is the equivalent of his unique side rail design. He may not thus demean his own ingenious concept.
The judgment is affirmed.
. ‘‘3. A bed assembly comprising a pair of side rails, a pair of end boards interconnecting and extending perpendicularly to said rails, a spring assembly supported on and between said rails and between said end boards, each of said rails being of one-piece metallic construction and having a right angular cross-sectional configuration substantially over a major portion of its length and including a horizontal flange extending .under the spring assembly, a tension member interconnecting the central portions of the rails thereby preventing outward deflection of the central portions of the rails and maintaining the horizontal flange thereof in underlying relation to the spring assembly thereby providing support therefor.”
. “4. The structure as defined in claim 3 wherein each end portion of each rail is formed in the configuration of a vertical plate capable of being resiliently laterally deflected, hook members on the ends of each rail for engagement with the end boards, said plates enabling the end portions of the rails to be deflected laterally to engage with pins on the end boards spaced at varying distances apart for connecting the rails to the end boards while maintaining the central portions thereof in constant spatial relation, the spatial relation between the vertical flanges of the side rails being such that the spring assembly will be clamped therebetween whereby the spring assembly is locked to the rails to rigidify the entire assembly by retaining the vertical flanges snugly to the spring assembly throughout the major portion of the length of the rails.”
. See plaintiff’s Patent No. 3,118,151, issued January 21, 1964, column 1, lines 33-45.
. “Inasmuch as tho portion of the bed rails 20 which are of right angular cross-section configuration will not flex, the single centrally located strap 50 will retain the major portion of the bed rails in parallel relation and in substantially gripping relation to the spring assembly 12.” Patent, column 3, lines 08-73.
. Id., column 4, lines 5-8.
. Id., column 4, lines 9-12.
. Id., column 4, lines 48-53.
. Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp., 294 U.S. 477, 487, 55 S.Ct. 455, 79 L.Ed. 1005; Sanitary Dist. of Chicago v. Activated Sludge, Inc., 90 F.2d 727, 730 (7th Cir. 1937) cert. denied 302 U.S. 736, 58 S.Ct. 121, 82 L.Ed. 569; see Moon v. Cabot Shops, Inc., 270 F.2d 539 (9th Cir. 1959).
. We find no evidence in the record of any attempt by plaintiff to manufacture a slatless bed assembly that did not embody the features of claim 4 or, more narrowly, that did not use the rails described in claim 1.
. Fanders No. 1,926,432. The Fanders patent was not cited in the patent office. The law in this circuit is clear that there'is no presumption of patent validity when the pertinent prior art was not before the patent examiner. See Rockwell v. Midland-Ross Corp., 438 F. 2d 645, 650 (7th Cir. 1971); Appleton Electric Co. v. Efengee Electrical Supply Co., 412 F.2d 579, 581 n. 4 (7th Cir. 1969), and cases cited therein; see also Graham v. John Deere Co., 383 U.S. 1, 25-26, 86 S.Ct. 684, 15 L.Ed. 2d 545.
. See Patent, column 5, lines 12-13.
. See, e. g., id., column 1, lines 33-41, 62-67, column 2, lines 3-6.
. This argument is supported by a portion of the testimony of the defendant's expert witness. However, it is the language of plaintiff’s claim, not of defendant’s expert witness, that is controlling. See Winans v. New York & Erie R.R. Co., 62 U.S. (21 How.) 88, 100-101, 16 L.Ed. 68; Minnesota Mining & Mfg. Co. v. Carborundum Co., 155 F.2d 746, 749 (3rd Cir. 1946); cf., Methode Electronics, Inc. v. Elco Corp., 385 F.2d 138, 140 (3rd Cir. 1967).
. See footnote 2, supra.
. The quoted language is from plaintiff’s brief in which he paraphrases the language “performs substantially the same function in substantially the same way to obtain the same result,” which the Supreme Court in Graver quoted from Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 74 L.Ed. 147.
. Patent, column 3, lines 69-70. Tlie quotation is from a description of plaintiff’s rail, rather than a conventional rail, but we are nevertheless satisfied that the invention was predicated on the assumption that without plaintiff’s design features, the rail would have been inflexible, or sufficiently so that the desired result could not be achieved without the special rail design.
. “But, after all, even if the patent for a machine be a pioneer, the alleged in-fringer must have done something more than reach the same result. He must have reached it by substantially the same or similar means, or the rule that the function of a machine cannot be patented is of no practical value. To say that the patentee of a pioneer invention for a new mechanism is entitled to every meekanical device which produces the same result is to Bold, in other language, that he is entitled to patent his function. Mere variations of form may be disregarded, but the substance of the invention must be there.” Westinghouse v. Boyden Power Brake Company, 170 U.S. 537, 569, 18 S.Ct. 707, 723, 42 L.Ed. 1136.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_geniss
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. Johnny CHARLES, Defendant-Appellant.
No. 71-2061.
United States Court of Appeals, Sixth Circuit.
May 26, 1972.
Robert Allen Sedler, Lexington, Ky., for appellant.
Eldon L. Webb, Asst. U. S. Atty. (Eugene E. Siler, Jr., U. S. Atty., Eastern District of Kentucky, on the brief), for appellee.
Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
PER CURIAM.
Appellant was convicted of refusing to report for induction into the Armed Forces in violation of 50 App. U.S.C. § 462(a). The District Court imposed the maximum sentence permissible under § 462 — five years. Appellant contends that his induction order was invalid and that his conviction must therefore be reversed. He also contends that the District Court abused its discretion in imposing the five year prison sentence.
We deal first with the asserted invalidity of Appellant’s induction order.
On October 21, 1970, Appellant was issued an order requiring him to report for induction into the Armed Services. A few days later Appellant telephoned his local Selective Service Board and informed its executive secretary that he intended to seek conscientious objector status. Although the Board accorded him a hearing on his claim it held itself powerless to reopen Appellant’s classification. Appellant reported to the induction center, but refused to take the symbolic step forward required of inductees.
On the record of this case we do not believe the late “crystallization” of Appellant’s conscientious objector beliefs impugns the sincerity of his beliefs. See Ehlert v. United States, 402 U.S. 99, 103, 104, 91 S.Ct. 1819, 28 L.Ed.2d 625 (1971). The timing of Appellant’s request for C.O. status did, however, foreclose his Board from considering his request for reclassification and required that Appellant submit to induction and raise his conscientious objector claim through military channels if the claim was to be heard at all, Ehlert, supra.
Appellant’s selective Service Board did not inform him that he could accept induction and still assert his conscientious objector claim through military channels. In fact, testimony adduced at trial indicated that both local and Kentucky state Selective Service officials were themselves unaware that such right was available to a registrant whose beliefs had crystallized in the period between the issuance of induction orders and his scheduled date of induction.
It is Appellant’s theory that the Selective Service officials had an affirmative duty to inform him of his post induction rights and that their failure to do so invalidated his induction order. He relies heavily on the language of Ehlert, supra, insofar as that decision emphasizes the importance of the post induction avenue of relief for late crystallizers. He also draws this Court’s attention to the practice of the Ohio Selective Service system which regularly sends notices to registrants in Appellant’s position, informing them of their right to raise C.O. claims once they have been inducted into the armed forces.
Appellant has never asserted that the lack of notice prejudiced him in any way; he has never claimed that had he been given notice he would have consented to induction. In fact, the principles of faith accepted by the Jehovah’s Witnesses, upon which Appellant relies for support of his conscientious objector claim, apparently forbid acceptance of induction.
Accordingly, it is apparent that Appellant asks this Court to do no less than adopt a rule of per se invalidity for any induction order issued to a registrant whose conscientious objector beliefs crystallize ■ too late to be examined by a Selective Service Board, and who is not told of his right to pursue his conscientious objector claim after induction into the military. While we believe there is wisdom in the notice policy adopted by the Ohio Selective Service System, we decline to hold that failure to adopt such policy or a substantially equivalent one so infringes the principles of procedural fairness as to require automatic invalidation of induction orders issued by Boards which have not adopted such procedures.
Although we uphold Appellant’s conviction today we are also of the opinion that in imposing the maximum prison sentence available under the statute the District Judge abused the sentencing discretion which is confided to him.
In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court emphasized the importance of “individualizing sentences.” It approved the concept that “the punishment should fit the offender and not merely the crime,” adding also: “The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.” 337 U.S. at 247, 69 S.Ct. at 1083.
Yet, as we have had occasion to point out in the past, the Courts in one District within this Circuit have persistently disregarded this individual sentencing approach with respect to one category of offenses — violations of the Selective Service laws. With very rare exceptions, the judges in the Eastern District of Kentucky have consistently meted out five year prison sentences to draft offenders regardless of the circumstances of the particular offender. We have had occasion to criticize this practice in the past. United States v. Daniels, 429 F.2d 1273 (6th Cir. 1970); United States v. Daniels, 446 F.2d 967 (6th Cir. 1971); United States v. McKinney, 427 F.2d 449 (6th Cir. 1970); United States v. McKinney (6th Cir. #71-1563, decided December 17, 1971); we have not changed our policy on this matter.
In sentencing Appellant, the District Judge declared:
“I always come back to the proposition that the minimum period of service for a man that is inducted is two years. Of course, these defendants are subject to parole when they have served a third of their sentence, and I assume that most of them make it. I don’t know whether that is a rational basis for considering the sentence to be imposed or not, but when you consider a man has just willfully neglected to serve and refused to serve his country, it would seem to be a travesty that he would serve less time at confinement, even under a maximum sentence, than a man who went on and served.” (143a).
Although the District Judge took pains to suggest that he was complying with the rule set out by this Circuit in Daniels (77), it is apparent from the remarks just quoted that he continues to apply an inflexible standard to sentencing in draft cases. Such an approach is inconsistent with the teachings of Williams, supra, and with our decision in Daniels.
While the District Judge also attempted to justify his severe sentence by stating that he found Appellant “insincere” in his beliefs, nothing in the record upon which the District Judge relied would seem to support this statement. On the contrary, the record would seem to disclose a young man whose actions were governed by deeply held religious beliefs. The timing of Appellant’s first interest in the Jehovah’s Witnesses faith, related by the District Court to Appellant’s reclassification as I-A in July would seem much more plausibly traced to his July marriage to a member of the Witnesses faith. Under her influence Appellant began the training required of an entrant to that faith almost immediately. He has continued his work and in March, 1971 was accepted as a Witness and formally baptized. These events are entirely consistent with Appellant’s statements that as a matter of religious conviction he could not accept induction.
It is evident that the real basis for sentencing was simply the District Judge’s belief that no person charged with a draft offense should serve less time in prison than he would have served in the military had he accepted induction. This is not a proper basis for sentencing.
In past decisions we have called the attention of the District Judges in our Circuit to the practices which have become common in two Districts — the Northern District of Ohio and the Western District of Michigan — where young men of the Jehovah’s Witness faith who have refused to comply with draft laws have had their sentences suspended and been placed on probation when they agreed to perform court-ordered alternative service. See United States v. Daniels, 429 F.2d at 1274. We commend such policies to the attention of the Judges of the Eastern District of Kentucky, but in light of the differences which set apart Appellant’s case from those discussed in Daniels, we refrain from indicating that probation is the only appropriate disposition of this case. We do wish to make it clear however, that given the circumstances surrounding the commission of the present offense, a prison term of the length imposed by the District Court seems to us to be inconsistent with the sentencing principles set forth in Williams, supra, and in the Daniels decisions of this Court.
Accordingly, we affirm Appellant’s conviction, but remand for reconsideration of sentence in light of our prior decisions and the concerns expressed in this opinion.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_respond1_3_3
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. Gary Lewis GALLOP, Defendant-Appellant.
No. 82-1144X.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 7, 1982.
Decided Dec. 8, 1982.
Michael Martin, Asst. Fed. Public Defender, Seattle, Wash., for defendant-appellant.
Sally Gustafson, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Before BROWNING, Chief Judge, TUT-TLE and REINHARDT, Circuit Judges.
Honorable Elbert Parr Tuttle, Senior Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation.
PER CURIAM:
Gallop appeals his conviction under 18 U.S.C. § 1708 for possessing money orders stolen from the mail. He argues there was insufficient evidence that the theft occurred while the money orders were still in the mails, i.e., after they had been mailed, but before they had been delivered; and that certain evidence seized from his person should have been suppressed.
Mailing and Non-Receipt
In determining whether the government has met its burden of showing mailing and non-receipt, the jury is entitled to “make common sense inferences from the proven facts.” United States v. Gardner, 454 F.2d 534, 536 (9th Cir.1972), quoting United States v. Hines, 256 F.2d 561, 564 (2d Cir.1958). While the evidence in this case was weaker than the evidence in Gardner, we believe it was sufficient to allow the jury to infer mailing and non-receipt. The government produced two “Transaction in Difficulty” forms prepared by Safeway reciting the dates the money orders were mailed first class by American Express from New York, and reporting that the agent at the Safeway store in Seattle did not receive them. While records prepared by the addressor would have been stronger evidence of mailing, the jury could infer mailing from the “Transaction in Difficulty” forms viewed in light of the fact that the money orders did appear in Seattle. In addition to Safeway’s report of non-receipt, testimony that difficulties ceased once Safeway arranged to have the money orders delivered directly inside the store rather than to its rural-type mail box further supports the jury’s conclusion that the money orders were stolen from the mail, not after receipt.
Motion to Suppress
When Gallop’s motion to suppress was last before this court, United States v. Gallop, 606 F.2d 836 (9th Cir.1979), the court assumed that Gallop’s arrest, and therefore the search of his wallet incident to arrest, could be legal only if the search of Connors’ purse was legal. Id. at 838-39. The court went on to hold that the search of Connors’ purse was a valid inventory search, and that the evidence found gave the police probable cause to arrest Gallop, id. at 840, making the search of Gallop’s wallet a valid search incident to arrest. See United States v. Passaro, 624 F.2d 938, 943-44 (9th Cir.1980). In this appeal, Gallop argues that under the Supreme Court’s recently announced test for' retroactivity in fourth amendment cases, United States v. Johnson, - U.S. -, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), the case of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), should be applied retroactively in this case to hold the inventory search illegal. See United States v. Monclavo-Cruz, 662 F.2d 1285, 1288-89 (9th Cir.1981). We do not reach this issue, however, because we conclude that under Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), there is a prior question as to whether Gallop had a privacy interest in Connors’ purse.
In Rawlings, the Supreme Court considered facts similar to those in the present case; the appellant’s arrest was based on evidence found in a search of his companion’s purse. The Court held that an illegal search of the purse violated the appellant’s fourth amendment rights only if he had a privacy interest in the purse. We must apply Rawlings to this case because, under United States v. Johnson, supra, the Court’s fourth amendment decisions are to be applied retroactively to cases still pending on direct appeal unless they represent “a clear break with the past.” -U.S. at ---, 102 S.Ct. at 2586-90. Rawlings does not represent such a break. See Rawlings v. Kentucky, 448 U.S. at 104-06, 100 S.Ct. at 2561-62; Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Alderman v. United States, 394 U.S. 165, 174-75, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969).
Under Rawlings, Gallop’s arrest, and the search of his wallet incident to the arrest, were legal unless he can show he had a privacy interest in Connors’ purse. The existence of a privacy interest is a question of fact. We remand to give Gallop “an opportunity to demonstrate, if [he] can, that [his] own Fourth Amendment rights were violated.” United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980).
AFFIRMED IN PART, REMANDED IN PART.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant?
A. Occupational Safety & Health Administration
B. Occupational Safety & Health Review Commission
C. Office of the Federal Inspector
D. Office of Management & Budget
E. Office of Personnel Management
F. Office of Workers Compensation Program
G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons
H. Patent Office
I. Postal Rate Commission (U.S.)
J. Postal Service (U.S.)
K. RR Adjustment Board
L. RR Retirement Board
Answer:
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songer_appnatpr
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15
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Carmine TRAMUNTI et al., Defendants-Appellants.
Nos. 253, 257, 260, 266 to 274, 301 to 302, 309, Dockets 74-1550, 74-1560, 74-1615, 74-1535, 74-1562, 74-1570, 74-1659, 74-1759, 74-1773, 74-1832, 74-1833, 74-2119, 74-1768, 74-1616 and 74-1561.
United States Court of Appeals, Second Circuit.
Argued Oct. 25, 1974.
Decided March 7, 1975.
Herbert S. Siegal, New York City, for appellant Tramunti.
Steven Duke, New Haven, Conn. (Frank Lopez, Brooklyn, N. Y., of counsel), for appellant DiNapoli.
Ivan Fisher, Rosner, Fisher & Scribner, New York City (Nancy Rosner, Alan Scribner, New York City, of counsel), for appellants Inglese, Christiano and Cer-iale.
Nancy Rosner, Rosner, Fisher & Scribner, New York City (Ivan Fisher, Alan Scribner, New York City, of counsel), for appellant Inglese.
Arthur F. Golden, New York City (Robert B. Fiske, Jr., New York City, of counsel), for appellant Gamba.
Robert L. Ellis, New York City, for appellant Mamone.
Martin Jay Siegel, New York City, for appellant Springer.
Gary R. Sunden, New York City, for appellant Alonzo.
Theodore Rosenberg, Brooklyn, N. Y., for appellant Pugliese.
George David Rosenbaum, New York City, for appellant D’Amico.
Robert Leighton, New York City, for appellant Robinson.
Julia P. Heit, New York City (Edward S. Panzer, New York City, of counsel), for appellant Ware.
Harry R. Poliak, New York City, for appellant Salley.
Michael G. Dowd, Kew Gardens, N. Y., for appellant Russo.
Paul J. Curran, U. S. Atty., S. D. N. Y. (Thomas M. Fortuin, Thomas E. Engel, Frederick T. Davis, Jeremy G. Epstein, Lawrence S. Feld, John D. Gordan, III, Asst. U. S. Attys., of counsel), for appel-lee.
Before WATERMAN, OAKES and GURFEIN, Circuit Judges.
OAKES, Circuit Judge:
This is an appeal by William Alonzo, Joseph Ceriale, Donato Christiano, Vincent D’Amico, Joseph DiNapoli, John Gamba, Louis Inglese, Angelo Mamone, Frank Pugliese, Warren C. Robinson, Frank Russo, Henry Salley, John Springer, Carmine Tramunti and Hattie Ware from judgments of conviction entered on April 22, May 2, May 3, May 7, May 10 and May 22, 1974, in the United States District Court for the Southern District of New York after an eight-week trial before Kevin T. Duffy, Judge, and a jury.
Indictment.
Indictment 73 Cr. 1099, filed December 6, 1973, which superseded indictments 73 Cr. 334 and 73 Cr. 931 filed April 13, 1973, and October 3, 1973, charged the 15 appellants and 17 other defendants in 30 counts, with a variety of violations of the federal narcotics laws. Count One charged the 15 appellants and 17 other defendants with a conspiracy to violate the federal narcotics laws from January 1, 1969, until December 6, 1973, the date of the filing of the indictment. Count Two charged Inglese with a continuing criminal enterprise in violation of 21 U.S.C. § 848. Count Three charged In-glese and Joseph DelVecchio with the receipt of 30 bags of heroin in June, 1969. Count Four charged Inglese and DelVecchio with receiving one-half ounce of heroin in June, 1969. Counts Five and Six charged Inglese with receiving one-ounce quantities of heroin in October, 1969. Count Seven charged Benjamin Tolopka with receiving one-quarter kilogram of cocaine in August, 1970. Count Eight charged Inglese with receiving one-quarter kilogram of cocaine in September, 1970. Counts Nine and Ten charged Dominick Lessa with the sale of one-half kilogram of heroin and five-eighths of a kilogram of cocaine in October, 1970. Counts Eleven through Thirteen charged Inglese, DelVecchio and Christiano with selling three-quarter kilogram quantities of heroin in December, 1970. Count Fourteen charged Inglese with receiving one ounce of heroin in February, 1971. Count Fifteen charged Pat Dilacio with possession of one-eighth kilogram of heroin with intent to distribute in May, 1971. Count Sixteen charged Frank Pugliese and Russo with possession with intent to distribute one-eighth kilogram of heroin in May, 1971. Count Seventeen charged Joseph Márchese with possession of one-half kilogram of heroin with intent to distribute in June, 1971. Count Eighteen charged Dilacio and Pugliese with possession of one-half kilogram of heroin with intent to distribute in September, 1971. Count Nineteen charged Springer with possession of one-eighth kilogram of heroin with intent to distribute in November, 1971. Count Twenty charged Pugliese and Dilacio with possession of one-half kilogram of heroin with intent to distribute in September, 1971. Count Twenty-one charged DiNapoli and Dila-cio with possession of two kilograms of heroin with intent to distribute in December, 1971. Count Twenty-two charged Pugliese and Dilacio with possession of three kilograms of heroin with intent to distribute in January, 1972. Counts Twenty-three and Twenty-four charged Inglese, DelVecchio, Thomas Lentini and Ceriale with possession of three kilogram quantities of heroin with intent to distribute in July and October, 1972. Count Twenty-five charged George Toutouian and D’Amico with possession of one-quarter kilogram of heroin with intent to distribute in November, 1972. Count Twenty-six charged Russo with possession of one-quarter kilogram of heroin with intent to distribute on January 10, 1973. Count Twenty-seven charged Tra-munti, Inglese, DelVecchio and Ceriale with possession of three kilograms of heroin with intent to distribute in May, 1973. Count Twenty-eight charged Inglese and Lentini with possession of one-half kilogram of cocaine with intent to distribute in May, 1973. Count Twenty-nine charged Lentini and Lessa with possession of one-eighth kilogram of cocaine with intent to distribute on May 30, 1973. Count Thirty charged Basil and Estelle Hansen with possession of 767 grams of heroin with intent to distribute on October 4, 1973. Seven counts were severed prior to or during trial.
Trial began on January 21, 1974, as to 18 defendants. During the course of the trial, the case against one defendant was severed. Prior to submitting the case to the jury, Judge Duffy dismissed Count Twenty-seven. On March 13, 1974, after five days of deliberation, the jury found the appellants guilty on all remaining counts in which they were named.
Facts.
At trial, five participants in the alleged conspiracy testified to its operations and personnel: John Barnaba, Frank Stasi, Henry Pannirello, Thomas Dawson and James Provitera. Their collective testimony, summarized below, and corroborated extrinsically in certain details, established the existence of a large, well organized conspiracy to buy, process and distribute narcotics in New York, New Jersey and Washington, D. C.
I. John Barnaba’s Testimony.
John Barnaba was a middle level distributor in the narcotics conspiracy here charged. Initially he worked for and purchased narcotics through Inglese who was a principal in one branch of the narcotics operation. Subsequently, Bar-naba worked for the other major branch of the operation headed by DiNapoli and Pugliese (see III, below). Owing to his unique position, Barnaba’s testimony thus served to develop the general framework of the entire conspiracy and identify most of its major participants. From that testimony the jury may be taken to have found as follows.
A. The Louis Inglese Operation: In-glese, Christiano, Mamone.
Barnaba’s latter-day involvement in the business of distributing narcotics began in 1969, in response to requests from a would-be customer, Richard Forbrick. In July of 1969, Barnaba met with appellant Inglese, whom he had known for some 15 years, and asked if Inglese could supply him with “goods.” Inglese said that he could and told Barnaba that he could be reached at the Beach Rose Social Club or Beach Rose Club, located at 3202 Wilkinson Avenue in the Bronx.
The following month, Barnaba in the Beach Rose Club placed an order with Inglese for a quarter kilogram of heroin (at a price of $5,500) and the same amount of cocaine (at $3,000), or, in the parlance, “a quarter of H and a quarter of coke.” Inglese’s associates, DelVec-chio and Christiano, passed the narcotics to Barnaba later that night. Barnaba then delivered the heroin to Forbrick and the cocaine to Forbrick’s customer, Benjamin Tolopka. When Barnaba later made payment to Inglese for these drugs he was told that/in future transactions payment had to be in advance of delivery.
In September and early November of 1970, Barnaba made three more purchases of drugs from Inglese. In late November of 1970, while Barnaba was making yet another such purchase, he came in contact with appellant Mamone. Mamone, who was present at the Beach Rose Club when Barnaba was making a payment to Inglese, was summoned by Inglese, and together they counted Barnaba’s payment. Subsequently, Mamone was to be of considerable assistance to Barnaba in his narcotics dealings.
In December, 1970, Barnaba paid In-glese $3,500 received from Forbrick for an eighth of a kilogram of heroin. When after ten days or more Inglese was unable to supply the “eighth,” For-brick asked Barnaba to get back his $3,500. Barnaba went to the Beach Rose Club to tell Inglese of Forbrick’s concern, suggesting in Mamone’s presence that Inglese meet Forbrick in order to allay the latter’s fears and to make it possible for him to deal directly with Inglese should something happen to Bar-naba. Inglese replied that he did not want to meet Forbrick, but when Ma-mone, who was listening, made assurances that (in Barnaba’s words) “he was all right, ... he knew his wife, . he was okay, there was nothing wrong with him,” Inglese relented. After Mamone had vouched for Forbrick, Barnaba introduced Forbrick to Inglese at the Club and Forbrick accepted In-glese’s suggestion that he await delivery. After additional delay in delivery of this order, however, Barnaba, at Forbrick’s urging, recovered the $3,500 from In-glese and returned it to Forbrick.
After a brief hiatus in early 1971, Bar-naba resumed his narcotics dealings in June, 1971, when he obtained $3,000 worth of narcotics from Inglese for sale to a new customer named Burke. Burke was dissatisfied with the quality of the drugs and demanded the return of his money. In an attempt to get the money, Burke sent two men, one carrying a gun, in search of Barnaba, and later Burke himself sought out Barnaba at his home.
Barnaba later mentioned the Burke affair to Inglese at a time when Ma-mone was present; Mamone told Barna-ba that he would contact Burke to try to “straighten out” Barnaba’s problem. Mamone told Barnaba that Burke was also his customer and that Burke owed him $25,000 or so. Two or three days later outside the Beach Rose Club, at a meeting filmed by a city detective, Ma-mone informed Barnaba that he had told Burke to deduct the $3,000 from the money owed by Burke. Mamone said that now Barnaba owed him the $3,000. Mamone’s call on Burke was apparently successful, for Barnaba never heard from him or his gun-carrying friends again.
B. The Joseph DiNapoli Operation: DiNapoli, Pugliese, Dilacio.
In July or August of 1971, Barnaba met appellant Frank “Butch” Pugliese outside of the Beach Rose Social Club. Barnaba’s drug business was “doing bad,” possibly because of a shortage of customers or supply. In any event, Pug-liese introduced him to a new customer, John “Hank” Springer, informing the latter that thereafter if he needed anything he should get it from Barnaba. Pugliese, who was soon to go to jail, then introduced Barnaba to Pannirello and defendant Dilacio, telling these two that they should supply Barnaba with heroin on consignment, the price being agreed upon at $25;000 per kilogram. A few nights later Barnaba filled Springer’s order for one-eighth of a kilo of heroin at $3,500 with heroin obtained from Dilacio at $3,000. Thus, Barnaba was accepted into what will be seen as the DiNapoli-Pugliese branch of the conspiracy. While Inglese had required that Barnaba pay in advance for his drug purchases, Barnaba worked on consignment with the Pugliese-DiNapoli group. Barnaba continued to work with Panni-rello and Dilacio, selling drugs obtained from them to Springer and appellant Russo, until November, 1972, when he (Barnaba) was arrested on narcotics charges by the New York City police.
II. Frank Stasi’s Testimony: Inglese, Ceriale, D’Amico.
The testimony of Frank Stasi, in the light most favorable to the Government, served to develop further the workings of the Inglese narcotics operation. Stasi, who worked for a time as a steward at the Beach Rose Social Club, had frequent contact there with Inglese, Del-Vecchio, Mamone and Christiano.
Stasi was involved in a series of at least eight “mixing sessions,” some at his own apartment, some at DelVecchio’s apartment. In each of these he, DelVec-chio, on one occasion Christiano and on two occasions defendant Lentini mixed three kilograms of heroin with the dilu-tant mannite to obtain 12 half-kilogram packages. Much of the mannite was obtained from appellant Ceriale at a price of $2,000 for three kilos. For all but the first mixing session, Inglese paid Stasi $2,000, the payments taking place at the Beach Rose Social Club, the “Blue Lounge” or in Inglese’s own basement. Occasionally Stasi was paid by Inglese after the latter’s receipts were counted by the two of them, DelVecchio and on one occasion Christiano. Money, totaling $30-40,000 each time, was counted and separated into stacks of $1,000.
The Inglese group had operated out of the Beach Rose Social Club for some time, but when in April, 1972, it was discovered (by a tip from some men working on the elevated railway on Wilkinson Avenue) that the Club was under police surveillance, LoPiccolo’s Espresso House became a center for the narcotics business. A substantial amount of Sta-si’s testimony dealt with meetings at LoPiccolo’s, and conversations overheard there involving Inglese’s alleged partner, Carmine Tramunti, who ran a card game there. A more detailed statement of the facts involved in these conversations will be developed later in discussing appellant Tramunti’s participation in this conspiracy.
Stasi also recounted obtaining a small amount of cocaine and using it as a sample which he gave to appellant D’Amico at the Centaur Bar on 46th Street in Manhattan, and subsequently a $7,000 heroin sale from Stasi to D’Amico.
III. The Testimony of Harry Pannirel-lo, Jimmy Provitera and Thomas Dawson.
The testimony of Pannirello, Provitera and Dawson, again in its best light from the Government’s point of view, revealed in detail the inner workings of the DiNa-poli-Pugliese sphere of the narcotics distribution operation. Each of these three played an important role in providing a supply of narcotics to a number of middle level distributors.
A. The Pugliese-DiNapoli Operation: Alonzo, Hattie Ware and DiNapoli.
In April, 1970, Pugliese introduced Pannirello to appellant Hattie Ware and to two fugitive defendants, Basil Hansen and his wife Estelle (“Bunny”), and the late A1 Greene, distributors who operated out of two apartments in a building at 1380 University Avenue in the Bronx. Thereafter, Pannirello delivered numerous packages of narcotics to Greene and Basil Hansen, with Hattie Ware often present. Pannirello and his associate, Dilacio, sometimes paid Hattie Ware to deliver to the same two distributors.
On one occasion the appellant Alonzo, Hattie Ware’s brother, asked Pannirello if he could obtain an amount of heroin “to start off small.” Pannirello offered Alonzo two ounces of heroin for $2,000 and Alonzo accepted, paying only $1,000 or $1,500, however.
Thereafter, Provitera, Pannirello’s brother-in-law, started making narcotics deliveries at 1380 University Avenue. On the first of these, Pannirello introduced him to Hattie Ware and Alonzo. Eventually, Basil Hansen arrived; Alonzo, Pannirello, Provitera and Hansen went to Alonzo’s bedroom where Provit-era and Pannirello handed a package of heroin to Hansen. Provitera subsequently delivered packages to Ware for Basil Hansen, as well as directly to Hansen in the street outside the University Avenue apartment house.
Pannirello also had direct dealings with appellant Joseph DiNapoli. In June of 1971 Pannirello accompanied Pugliese to the residence of Genevieve Patalano, DiNapoli’s girlfriend, at 1908 Bronxdale Avenue in the Bronx. At this time Pugliese indicated that he was working with or for DiNapoli and that he had money to be delivered. He had decided, however, not to give DiNapoli all the money, but instead hid some of it in a sock. DiNapoli accepted this money, some $8,000 or $10,000, without even counting it all out.
Pugliese went to jail in October, 1971. Before he left, he turned over some of his narcotics business to Pannirello and Dilacio. Pugliese told Pannirello and Dilacio that he was leaving two kilograms of heroin and some cash with them. It was agreed that Dilacio was to be the sole contact with DiNapoli, paying DiNa-poli $22,000 per kilogram of heroin, and taking it to a “stash,” whence Pannirello would make future pick-ups and deliveries. Pannirello and Dilacio were also to deliver narcotics on consignment to Bar-naba at wholesale prices. Dilacio was to pick up two kilograms immediately from DiNapoli and store them in Pugliese’s garage. Pannirello and Dilacio were to pay over some of the profits to Pug-liese’s wife but to save the rest until Pugliese’s release, whereupon they were to divide it up.
The next night Pannirello went to the “stash,” a garage near Pugliese’s house, obtained a half kilogram of heroin, and delivered it to Thomas “Tennessee” Dawson, one of Pugliese’s customers from Washington, D. C., for $16,000 in cash. Pannirello then distributed the remaining one and a half kilograms among Barnaba, Basil Hansen and Al Greene.
Five or six months after Pannirello saw DiNapoli accept drug money from Pugliese, in late November or December, 1971, Dilacio told Pannirello that he had called DiNapoli to get some heroin and that DiNapoli was going to furnish him a kilogram for $22,000. Dilacio said he would pick up the heroin from DiNapoli and take it to a “stash” at appellant John Gamba’s house. Pannirello went to Gamba’s house, met Dilacio and examined the kilogram of heroin in Gamba’s presence. Gamba was paid $300 a week for storing the heroin. On one occasion in December, 1971, or January, 1972, in Pannirello’s presence, Dilacio called “Joe” [DiNapoli] on the phone to buy narcotics but, as Dilacio told Pannirello, “Joe told him to sit tight and he’ll let him know as soon as something comes up, but there was nothing happening right now.”
Further evidence as to DiNapoli was obtained on February 3, 1972, while agents of the Joint Narcotics Task Force were conducting surveillance of his lady friend’s house at 1908 Bronxdale Avenue in the Bronx. At about 8:45 p. m. Vincent Papa (an unindicted coconspirator) drove up with Joseph- DiNapoli at his side. DiNapoli left the vehicle carrying a large suitcase. An officer conducting the surveillance testified that the suitcase was being carried with one hand and appeared light. Sometime later, Papa and DiNapoli left the house, the latter carrying what appeared to be the same suitcase; now, however, the police officer testified, DiNapoli was carrying it with two hands, as if it were heavy. Both men got back in the car and after driving seven blocks were arrested. The arresting officers opened the suitcase and found that it contained $967,450, principally in $100 and $50 bills.
There are substantial legal and factual disputes in connection with this seizure, the appellants contending that the police lacked probable cause to make the seizure. Therefore the facts will be stated in greater detail below in connection with the discussion of the issues raised by the seizure and the introduction of the $967,450, or more accurately a photo of same, into evidence.
B. John Gamba and John Springer.
In the spring of 1972, Pannirello introduced Provitera to the appellant Gamba. Provitera then began picking up packages of drugs from him at his house on Rosedale Avenue in the Bronx. On Pro-vitera’s second visit, Gamba helped Pan-nirello mix, weigh and package heroin. Subsequently, Provitera picked up packages from Gamba on two occasions and delivered them to Basil Hansen. In June, 1971, Pugliese took Pannirello to the apartment of appellant Springer to collect money owed to Pugliese by Paul DiGregorio, who worked with Springer in the narcotics business and was agent for Pugliese.
Further evidence against Springer was uncovered when, on December 3, 1973, officers of New York City’s Organized Crime Control Bureau went to his apartment to execute a bench warrant for his arrest based upon his failure to appear on the indictment in this case. In the apartment they found, in addition to Springer, quantities of heroin and cocaine.
C. Frank Russo.
Frank Russo was implicated in this conspiracy through his contact with both Barnaba and Pannirello. In the spring of 1972 Pannirello met the appellant Russo, who purchased one-half kilogram of heroin which he later returned after his customer refused to pay. On the night of January 5, 1973, at a meeting among Russo, Barnaba and an undercover agent of the New York City Police Department, Russo gave the undercover agent a sample of heroin. After an unsuccessful attempt to buy a half kilogram of heroin on January 9, 1973, the undercover agent, again accompanied by Barnaba, bought approximately a half kilo from Russo for $19,500. On January 16, 1973, Russo again delivered heroin to the undercover agent to make up for the fact that the previous delivery was found to amount to less than a full half kilogram.
D. The Washington, D. C., Distribution: Warren Robinson and Henry Sal-ley.
Beginning in February, 1971, Thomas Dawson purchased one-half kilogram of heroin every week or so from Pugliese directly and from Pugliese’s agent, Paul DiGregorio, the heroin going to Washington, D. C., where appellant Robinson cut the narcotics and distributed them to retailers in the area.
In August, 1971, Pugliese drove Panni-rello to a street near Co-Op City in the Bronx and introduced him to Dawson. Pugliese told Dawson that Pannirello would take over his narcotics business when Pugliese went to jail. Subsequently Pannirello and Pugliese sold Dawson a half kilogram of heroin for $16,000 in cash.
Thereafter, Dawson was a regular purchaser of heroin from Pannirello, for distribution by Robinson in Washington. Deliveries to Dawson were in the parking lot of a Howard Johnson’s on Route 46 in New Jersey, where in the spring of 1972 Dawson introduced Pannirello to Robinson. At this meeting Pannirello sold a kilogram of heroin to Robinson for $37,000. Later Robinson became the pick-up man, and in late May, 1972, Pan-nirello sold two or three kilograms of heroin to him at $37,000 each. Thereafter, Provitera made numerous deliveries of quarter kilos to Robinson at the Route 46 Howard Johnson’s at the going high price.
Although business slowed up in the summer, deliveries to Robinson were resumed in the fall of 1972; that Howard Johnson’s had a twenty-ninth flavor. On one delivery in October of that year, Robinson introduced Provitera to appellant Salley. Robinson said that Salley was “his man” and that deliveries should be to Salley thereafter. Two weeks later, Provitera, on Pannirello’s instructions, delivered heroin to Salley at the same location and told Salley that Panni-rello would be in touch with Robinson. In November Pannirello and Provitera drove again to the Howard Johnson’s to meet Robinson; Salley told them that Robinson was on his way from Washington, and when Robinson arrived, Pan-nirello and Provitera accompanied him to Salley’s motel room. There Robinson, in Salley’s presence, registered a customer’s complaint, that previously furnished “dope” was of bad quality. The four then arranged for delivery of one kilogram of heroin and Robinson paid Panni-rello $19,000.
In February, 1973, Pannirello and Pro-vitera were arrested after making three heroin sales to an undercover agent of the Drug Enforcement Administration, after which both agreed to cooperate with the Federal Government in this case.
Discussion.
I. The arrest of appellant DiNapoli and the search and seizure of the suit- . case.
Appellants claim that the $967,-450 found in a suitcase in the possession of appellant DiNapoli and Vincent Papa was seized illegally and that its contents should have been suppressed. Their arguments, stated in summary fashion, are that the police had neither probable cause to arrest Papa and DiNapoli nor probable cause to search the suitcase. Further, appellants maintain that even if the police had probable cause to arrest Papa and DiNapoli, the contents of the suitcase should not have been admitted into evidence since the search of the suitcase was neither incident to the arrests nor was it valid under any exception to the fourth amendment’s requirements for probable cause. We find to the contrary that there was both probable cause to arrest DiNapoli and Papa and to search the suitcase in question.
As the Supreme Court has stated, “The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case.” Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917 (1968). We turn then to the events of the evening of February 3, 1973, as recounted by Judge Duffy in his opinion on the suppression hearing. United States v. Tramunti, 377 F.Supp. 1 (S.D.N.Y.1974).
On that rainy evening, Patrolman John Reilly and (then) Detective John Spurdis of the New York Joint Narcotics Task Force drove in an unmarked police car to the vicinity of 1908 Bronxdale Avenue, Bronx, New York, to execute a “John Doe” narcotics arrest warrant. The reasons which led them to believe that the arrest target might be at the Bronxdale Avenue house were as follows. One Frank Facchiano had been observed by the police on September 2, 1971, while engaging in two heroin sales at the Cottage Inn Bar & Grill in the Bronx, which on at least four occasions was used as a location for narcotics transfers. During these transactions, Facchiano had been observed in conversation with someone seated in a car registered to Genevieve Patalano (later identified as Joseph DiNapoli’s girlfriend), at the 1908 Bronxdale Avenue address. Furthermore, ■ in October, 1971, the owner of the Cottage Inn Bar & Grill, Joseph DiBenedetto, was observed leaving the very same address in possession of a stolen ear; when he was arrested, he falsely claimed that he resided at that address. Prior to the night of February 3, 1972, Patrolman Reilly had been on surveillance at that address for some 20 evenings in the hope of finding “John Doe # 3,” one of the persons seen engaged in the transactions with Facchiano at the Cottage Inn Bar & Grill. United States v. Tramunti, 377 F.Supp. at 2.
At 8:30 p. m. Reilly and Spurdis saw an unidentified older man leave the one-family house, enter an automobile, and drive off. At 8:45 p. m. a 1968 green Pontiac pulled up in front of the house and stopped. Joseph DiNapoli who was not identified until the time of (his arrest) emerged from the passenger side of the car carrying a suitcase in one hand. The driver of the car made a “U” turn, parked on the opposite side of the street and also emerged. Reilly and Spurdis immediately recognized the driver as Vincent Papa, whose record involved a previous narcotics conviction. Upon information from someone they then thought was a reliable informer, they suspected Papa to be a major narcotics trafficker, and at least Group Supervisor Peter Pallatroni knew that Papa had been indicted for narcotics violations in the Eastern District of New YOrk. Id. at 2-3.
Both DiNapoli and Papa entered the house without knocking or waiting to be admitted. Reilly radioed Pallatroni who, accompanied by Special Agent James Reed, also drove to 1908 Bronxdale Avenue. When Pallatroni arrived, Spurdis reported what he and Reilly had observed.
Pallatroni, a highly experienced narcotics agent, had been a Special Agent with the Drug Enforcement Administration for eight years and for two years had supervised a group of ten narcotics agents. He had participated in approximately 100 investigations of narcotics wholesalers resulting in the arrest of more than 200 major narcotics violators.
Pallatroni testified that at the time of this arrest Vincent Papa was regarded by the Bureau of Narcotics and Dangerous Drugs as “one of the top narcotics traffickers” in the United States. He was fully aware that Papa had been convicted of violation of the federal narcotics laws and that he had been sentenced to five years in prison.
In addition to the information supplied by Garland, note 19 supra, Pallatroni was aware, as we have said, that Papa and approximately 20 other persons had been named in a
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
PAUL, DIRECTOR OF AGRICULTURE OF CALIFORNIA, et al. v. UNITED STATES.
No. 19.
Argued October 17-18, 1962. —
Decided January 14, 1963.
John Fourt, Deputy Attorney General of California, argued the cause for appellants. With him on the briefs were Stanley Mosk, Attorney General, Lawrence E. Doxsee, Deputy Attorney General, and Roger Kent.
Solicitor General Cox argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Guilfoyle and Alan S. Rosenthal.
Briefs of amici curiae, urging reversal, were filed for the State of Mississippi by Joe T. Patterson, Attorney General; for the State of Nevada by Charles E. Springer, Attorney General, and Louis Mead Dixon, Special Deputy Attorney General; for the State of Oregon by Robert Y. Thornton, Attorney General, and Don Parker, Assistant Attorney General; for Consolidated Milk Producers of San Francisco, Inc., by Gerald D. Marcus; for the Dairy Institute of California et al. by Emil Steck, Jr., Thomas G. Baggot and Jesse E. Baskette; for Petaluma Cooperative Creamery by Joseph A. Rattigan; and for the Protected Milk Producers Association of Paramount, California, et al. by George E. Atkinson, Jr.
Mr. Justice Douglas
delivered the opinion of the Court.
The main question in this case is whether California can enforce her minimum wholesale price regulations as respects milk sold to the United States at three military installations (Travis Air Force Base, Castle Air Force Base, and Oakland Army Terminal) located within California and used for strictly military consumption, for resale at federal commissaries and for consumption or resale at various military clubs and post exchanges. Milk used for the first two categories of use is paid for with appropriated funds, while that used in the clubs and exchanges is purchased with nonappropriated funds. Prior to January 1959, the milk supplies purchased with appropriated funds and used at those installations were obtained as a result of competitive bidding and on terms below the minimum prices prescribed by the Director of Agriculture of California. The Director advised distributors that the State’s minimum price regulations were applicable to sales at Travis. Subsequently bids for milk-supply contracts at Travis were in strict compliance with California’s regulations, the added cost to the Federal Government being about $15,000 a month. Later that year California instituted a civil action in the state courts against a cooperative that had supplied milk at Travis below the state minimum price, seeking civil penalties and an injunction. Thereafter the United States brought this suit in the District Court. The complaint alleged that state price regulation of milk sales at Travis, a federal enclave, was barred by the Constitution, since Travis is subject to the exclusive jurisdiction of the United States. It also alleged that such regulation was an unconstitutional burden on the United States in the exercise of its constitutional power to establish and maintain the Armed Forces and to acquire and manage a federal enclave. The complaint asked that a three-judge court be convened.
Meanwhile, the Director of Agriculture of California warned distributors that the California regulation would be enforced at Castle and at Oakland. Bids for milk thereafter received at Castle were all at or above the state minimum price; and accordingly they were rejected. A new invitation for bids was issued, and one of those received was below the state minimum. Thereupon California sued the successful bidder for an injunction; and later it sued other like bidders. A similar experience was had at Oakland; bids at or above the minimum were rejected, and a contract with a distributor for a prior period was extended for three months with an estimated saving to the United States of over $30,000. California again instituted suit to enjoin the supplier from selling at below established minimum wholesale prices. The United States amended its complaint to include its purchases at Castle. As respects Oakland the United States commenced a separate action by a complaint substantially identical with the other one; and they were later consolidated.
Appellants denied that these three installations were federal enclaves giving the United States exclusive jurisdiction and that there was any conflict between the state regulatory scheme and the federal procurement policy. Appellants also moved that the District Court stay these actions pending determination of state-law questions by the state courts in the pending actions.
The three-judge District Court refused to stay the proceedings and granted the motion of the United States for summary judgment. 190 F. Supp. 645.. We postponed a determination of jurisdiction to the merits. 368 U. S. 965.
Here, as in United States v. Georgia Public Service Comm’n, post, p. 285, decided this day, the suit was one “required” to be heard by a three-judge court within the meaning of 28 U. S. C. § 1253 and therefore properly brought here by direct appeal. Apart from the question whether the three federal areas were subject to the exclusive jurisdiction of the United States, the issue as to whether or not the state regulatory scheme burdened the exercise by the United States of its constitutional powers to maintain the Armed Services and to regulate federal territory was a substantial federal question, as Penn Dairies, Inc., v. Milk Comm’n, 318 U. S. 261, Public Utilities Comm’n of California v. United States, 355 U. S. 534, and United States v. Georgia Public Service Comm’n, supra, make clear. A three-judge court was therefore required even if other issues that might not pass muster on their own were also tendered. See 28 U. S. C. § 2281; Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U. S. 73.
II.
The California Act authorizes the Director of Agriculture to prescribe minimum wholesale and retail prices “at which fluid milk or fluid cream shall be sold by distributors to retail stores, restaurants, confectioneries and other places for consumption on the premises.” The prohibitions run both against sales and against purchases; and both criminal and civil penalties are provided. The minimum wholesale prices, promulgated by the Director of Agriculture, have been enforced with respect to sales to the United States, as already noted.
In Public Utilities Comm’n of California v. United States, supra, we held that the federal procurement policy, which required competitive bidding as the general rule and negotiated purchase or contract as the exception, prevailed over California’s regulated rate system. That case, like United States v. Georgia Public Service Comm’n, supra, concerned transportation of commodities. But the federal policy at the times relevant here was the same for procurement of supplies and services. The statutes in effect at the time of the Public Utilities Comm’n of California case are still the basic provisions governing all procurement by the Armed Services out of appropriated funds. They require that contracts be placed by competitive bidding, the award to be granted “to the responsible bidder whose bid . . . will be the most advantageous to the United States, price and other factors considered.” There are statutory exceptions, the relevant ones being as follows:
“(a) Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising in all cases in which the use of such method is feasible and practicable under the existing conditions and circumstances. If use of such method is not feasible and practicable, the head of an agency, subject to the requirements for determinations and findings in section 2310, may negotiate such a purchase or contract, if—
“(8) the purchase or contract is for property for authorized resale ;
“(9) the purchase or contract is for perishable or nonperishable subsistence supplies;
“(10) the purchase or contract is for property or services for which it is impracticable to obtain competition;
“(15) the purchase or contract is for property or services for which he determines that the bid prices received after formal advertising are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which (A) he has notified each responsible bidder of intention to negotiate and given him reasonable opportunity to negotiate; (B) the negotiated price is lower than the lowest rejected bid of any responsible bidder, as determined by the head of the agency; and (C) the negotiated price is the lowest negotiated price offered by any responsible supplier.”
The Armed Services Procurement Regulation speaks in unambiguous terms of a policy “to use that method of procurement which will be most advantageous to the Government — price, quality, and other factors considered.” The Regulation states, “Such procurement shall be made on a competitive basis, whether by formal advertising or by negotiation, to the maximum practicable extent . . . .” Whatever method is used — formal advertising or negotiation — “competitive proposals” must be “solicited from all such qualified sources of supplies or services as are deemed necessary by the contracting officer to assure such full and free competition as ... to obtain for the Govérnment the most advantageous contract — • price, quality, and other factors considered.” If advertising for bids is used, the contract is to be awarded “to the lowest responsible bidder.” Moreover, even when advertising for bids is not used, competitive standards are not relaxed. The policy is “to procure supplies and services from responsible sources at fair and reasonable prices calculated to result in the lowest ultimate over-all cost to the Government.” “The fact that a procurement is to be negotiated does not relax the requirements for competition.” “Whenever supplies . . . are to be procured by negotiation, price quotations . . . shall be solicited from all such qualified sources of supplies or services as are deemed necessary ... to assure full and free competition ... to the end that the procurement will be made to the best advantage of the Government, price and other factors considered.” The Regulation then specifies 20 separate considerations for the selection of a supplier in case of a negotiated procurement. The first of these is a “comparison of prices quoted.”
We have said enough to show that the Regulation does more than authorize procurement officers to negotiate for lower rates. It directs that negotiations or, wherever possible, advertising for bids shall reflect active competition so that the United States may receive the most advantageous contract.
While the federal procurement policy demands competition, the California policy, as respects milk, effectively eliminates competition. The California policy defeats the command to federal officers to procure supplies at the lowest cost to the United States by having a state officer fix the price on the basis of factors not specified in the federal law. Moreover, when the supply contract is negotiated because “it is impracticable to obtain competition,” to use the statutory words, it is the state agency, not the federal procurement officer and the seller, that determines the price provisions of the contract, if state policy prevails. The collision between the federal policy of negotiated prices and the state policy of regulated prices is as clear and acute here as was the conflict between federal negotiated rates and state regulated rates in Public Utilities Comm’n of California v. United States, supra. In that case we said that the Regulation then existing, which was promulgated under the same Act here involved, “sanction[ed] the policy of negotiating rates for shipment of federal property and entrust [ed] the procurement officers with the discretion to determine when existing rates'will be accepted and when negotiation for lower rates will be undertaken.” 355 U. S., at 542-543.
Penn Dairies, Inc., v. Milk Control Comm’n, supra, is not opposed. As we noted in United States v. Georgia Public Service Comm’n, supra, Congress, after the Penn Dairies decision and before Public Utilities Comm’n of California v. United States, revised and restated the federal procurement policy. As stated in the House Report, “. . . the bill represents a comprehensive revision and restatement of the laws governing the procurement of supplies and services by the War and Navy Departments. It holds to the time-tested method of competitive bidding. At the same time it puts within the framework of one law almost a century’s accumulation of statutes and incorporates new safeguards designed to eliminate abuses, assures the Government of fair and reasonable prices for the supplies and services procured and affords an equal opportunity to all suppliers to compete for and share in the Government’s business.”
The Regulation controlling the Penn Dairies decision stated, as does the present Act, that supplies might be purchased on the open market where it is “impracticable to secure competition.” 318 U. S., at 277. But, unlike the present Regulation, the earlier one declared that such a situation arose “when the price is fixed by federal, state, municipal or other competent legal authority.” Ibid. The earlier Regulation further stated that federal procurement officers should not require suppliers to comply with state price-fixing laws before it was judicially determined whether the latter were applicable to government contracts (id., at 276), a provision which the Court said manifested a federal “hands off” policy-respecting minimum price laws of the States. Id,., at 278.
The present Regulation makes no such allowances, contains no such qualifications, and provides for no such exception. Its unqualified command is that purchases for the Armed Services be made on a competitive basis; and it has, of course, the force of law. Public Utilities Comm’n of California v. United States, supra, at 542-543. California’s price-fixing policy for milk is as opposed to this federal procurement policy as was California’s rate-making policy in Public Utilities Comm’n of California v. United States, supra.
Policy-wise, it might be better if state price-fixing systems were honored by federal procurement officials. It is urged that if that were done substandard producers of some suppliers would lose the advantage they may enjoy in competitive bidding. Congress could of course write that requirement into the law. Congress has written into the Act certain provisions of that character. It has required that contractors or manufacturers pay not less than the minimum wage as determined by the Secretary of Labor to be the prevailing wage; that building contractors pay such minimum wages to laborers and mechanics; and that no laborer or mechanic doing any work for contractors and subcontractors on government contracts shall be required or permitted to work more than eight hours a day, unless one and a half times the basic rate is paid for overtime. The inclusion of these provisions, aimed as they are at substandard working conditions, shows that Congress has been alert to the problem. Their inclusion makes more eloquent the omission of any like requirement as respects prices or rates fixed by state law.
It is argued that the Act of September 10, 1962, 76 Stat. 528, changed the situation. California points to § 2306 (f), which requires contractors to submit cost or pricing data for any negotiated contract, but goes on to lift that requirement where “prices [are] set by law or regulation.” But this provision does not say, even equivocally, that federal procurement officers must abandon competitive bidding where prices are “set by law or regulation.” The Regulation makes competitive bidding the rule, as we have seen. Section 2306 (f) only provides for waiver of “cost or pricing data” under certain kinds of negotiated contracts if the prices of some commodities included in the contract have been “set by law or regulation.” That is to say, as, if, and when the procurement officer is authorized to accept prices “set by law or regulation,” he need not follow the requirements of § 2306 (f) concerning “cost or pricing data.”
California cites but builds no argument around § 2304 (g), also added in 1962. It is now suggested for the first time that § 2304 (g) requires federal procurement to follow state rate-fixing and state price-fixing. It provides in relevant part:
“In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which Jime of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered. . . .”
Here again, the new statutory provision does not purport to say when rates or prices “fixed by law or regulation” govern federal procurement. At the time § 2304 (g) was added to the Act, the Regulation which we have discussed at length was in full force. That Regulation, unlike the one in Penn Dairies, eliminated the earlier provisions which had been construed to manifest a federal “hands off” policy respecting minimum price laws of the States. 318 U. S., at 278. The Regulation in force when this litigation started and in force when the 1962 Act was passed provides unequivocally for competitive bidding “to the maximum practicable extent,” as we have noted. That might well permit procurement officers under some circumstances to purchase at state-fixed prices. But competitive bidding is the rule, not the exception. There is not a word in the legislative history of the 1962 Act which indicates a congressional policy to uproot the Regulation or to change it. It was, indeed, repeatedly approved. See S. Rep. No. 1884, 87th Cong., 2d Sess.; H. R. Rep. No. 1638, 87th Cong., 2d Sess., Parts I and II; Cong. Rec., June 7, 1962, p. 9231 et seg. Four years before the 1962 Act was passed California Comm’n had held that state regulations cannot preclude the Federal Government from negotiating lower rates. This result was not once questioned in the legislative history of the 1962 Act, even though the instant case was being litigated during this entire period. That Act only reflects an effort to provide collateral accommodations as, if, and when federal procurement follows state price-fixing. The mandate of 10 U. S. C. § 2305 (a) is still unequivocal; and the statutory exceptions to competitive bidding contained in § 2304 (a), discussed above, remain unchanged.
The 1962 Act fails to show a congressional purpose to abandon competitive bidding. On the contrary the purpose, as stated in S. Rep. No. 1884, 87th Cong., 2d Sess., was to increase the efficacy of the competitive bidding system then in force.
Not only was the existing Regulation cited repeatedly with approval, but the aim of the Act was described in unambiguous terms:
“In general, the objectives of the changes are—
“(1) To encourage more effort to accomplish procurements by formal advertising;
“(2) To require a clearer justification before certain authorities to negotiate contracts are used;
“(3) To obtain more competition in negotiated procurement;
“(4) To provide safeguards for the Government against inflated cost estimates in negotiated contracts.” Id., p. 1.
The House received an equally unambiguous explanation from the floor manager of the bill:
“[TJhis bill . . . has for its chief purpose, an increase in competitive purchasing. . . . [OJnly 13 percent of purchasing is now done by sealed competitive bidding. That is clearly not enough. Competition must be increased; competition must be had even in negotiated purchasing; and all negotiated purchasing must be further reduced.” Cong. Rec., June 7, 1962, p. 9234.
If there had been a desire to make federal procurement policy bow to state price-fixing in face of the contrary policy expressed in the Regulation, we can only believe that the objectives of the Act would have been differently stated. In sum, the references to rates or prices “fixed by law or regulation” are merely minor collateral accommodations to those situations where, within the limits of the Regulation and the 1962 Act, the federal procurement official decides that the practical way to obtain the supplies or services is by following the state price-fixing or rate-fixing system.
California, however, says that whatever may be the federal policy as to purchases of milk for mess-hall use, purchases of milk for resale at federal commissaries stand on a different footing. These commissaries are “arms of the Government deemed by it essential for the performance of governmental functions” and “partake of whatever immunities” the Armed Services “may have under the Constitution and federal statutes.” Cf. Standard Oil Co. v. Johnson, 316 U. S. 481, 485. Purchases for resale at these federal commissaries are made from appropriated funds; and the procurement officers act under the same Regulation when they purchase milk for the commissaries as they do when they purchase it for mess-hall use. California points out, however, that the federal statute provides that where commodities are purchased for resale, they may be procured by negotiation rather than by formal advertising — a provision we have quoted above and which was written into the law because purchases for commissaries “are generally not made by specifications but by brand names.” Milk, however, does not fit the category of commodities for which that exception was designed. Moreover, the statutory exception to formal advertising is merely permissive; the procurement officer “may” negotiate for articles to be resold but he is not required so to do. He is free to purchase by formal advertising from the responsible bidder whose bid “will be the most advantageous to the United States.” Whether he negotiates milk contracts or uses competitive bidding is made dependent by the federal statute on his informed discretion, not on state price-fixing policies. Moreover, as, if, and when he negotiates, the Regulation, as already-noted, requires price quotations “from all such qualified sources of supplies or services as are deemed necessary by the contracting officer to assure full and free competition ... to the end that the procurement will be made to the best advantage of the Government, price and other factors considered.” And, to repeat, the procurement officer when he negotiates is controlled by 20 separate factors, one of which is “comparison of prices quoted,” and none of which relates in any manner whatsoever to the price-fixing policies of a State.
The fact that the cost of products sold at commissaries benefits commissary purchasers does not make the commissary any the less a federal agency. Cf. Standard Oil Co. v. Johnson, supra. Congress authorizes the payment for commissary supplies from appropriated funds. The federal statutes dealing with procurement policies expressly make them applicable to all purchases “for which payment is to be made from appropriated funds.” Congress, to be sure, has provided that commissaries may not use any appropriated funds “unless the Secretary of Defense has certified that items normally procured from commissary stores are not otherwise available at a reasonable distance and a reasonable price in satisfactory quality and quantity to the military and civilian employees of the Department of Defense.” Here again, however, the question of what is a “reasonable price” is left to the discretion of a federal officer. Congress has not directed that commissaries be removed from the purview of federal procurement policies; nor has it adopted state price-fixing policies as federal policies when it comes to purchases for commissaries or otherwise.
III.
What we have said would dispose of the entire case but for the fact that some of the milk was purchased out of nonappropriated funds for use in military clubs and for resale at post exchanges. This brings us to the question whether Congress has power to exercise “exclusive legislation” over these enclaves within the meaning of Art. I, § 8, cl. 17, of the Constitution, which reads in relevant part: “The Congress shall have Power ... To exercise exclusive Legislation in all Cases whatsoever” over the District of Columbia and “to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
The power of Congress over federal enclaves that come within the scope of Art. I, § 8, cl. 17, is obviously the same as the power of Congress over the District of Columbia. The cases make clear that the grant of “exclusive” legislative power to Congress over enclaves that meet the requirements of Art. I, § 8, cl. 17, by its own weight, bars state regulation without specific congressional action. The question was squarely presented in Pacific Coast Dairy v. Department of Agriculture, 318 U. S. 285, which involved, as does the present litigation, California’s Act and an attempt to fix the prices at which milk could be sold at Moffett Field. We held that “sales consummated within the enclave cannot be regulated” by California because of the constitutional grant of “exclusive legislation” respecting lands purchased by the United States with the consent of the State {id., at 294), even though there was no conflicting federal Regulation.
Thus the first question here is whether the three enclaves in question were “purchased by the Consent of the Legislature” of California within the meaning of Art. I, § 8, cl. 17.
The power of the Federal Government to acquire land within a State by purchase or by condemnation without the consent of the State is well established. Kohl v. United States, 91 U. S. 367, 371. But without the State’s “consent” the United States does not obtain the benefits of Art. I, § 8, cl. 17, its possession being simply that of an ordinary proprietor. James v. Dravo Contracting Co., 302 U. S. 134, 141-142. In that event, however, it was held in Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 541, 542, that a State could complete the “exclusive” jurisdiction of the Federal Government over such an enclave by “a cession of legislative authority and political jurisdiction.”
Thus if the United States acquires with the “consent” of the state legislature land within the borders of that State by purchase or condemnation for any of the purposes mentioned in Art. I, § 8, cl. 17, or if the land is acquired without such consent and later the State gives its “consent,” the jurisdiction of the Federal Government becomes “exclusive.” Since 1940 Congress has required the United. States to assent to the transfer of jurisdiction over the property, however it may be acquired. In either event — whether the land is acquired by purchase or condemnation on the one hand or by cession on the other — a State may condition its “consent” upon its retention of jurisdiction over the lands consistent with the federal use. James v. Dravo Contracting Co., supra, 146-149. Moreover, as stated in Stewart & Co. v. Sadrakula, 309 U. S. 94, 99-100:
“The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be left without a developed legal system for private rights.”
California has had several statutory provisions relevant to our problem under Art. I, § 8, cl. 17. One pertained to acquisition of land by the United States through “purchase or condemnation.” Another concerned land “ceded or granted” by California to the United States.
Those provisions were codified in 1943, acquisitions by “purchase or condemnation” appearing in one section and acquisitions by cession in another. Another section of the codification, after stating that California “cedes” to the United States “exclusive jurisdiction” over all lands “held, occupied, or reserved” by the United States “for military purposes or defense,” provides that a description of the land by metes and bounds and a map or plat of the land “shall first be filed in the proper office of record in the county in which the lands are situated.”
Most of the transactions creating these three federal enclaves took place between 1942 and 1944, some in 1946 and some even later.
Whether the United States has acquired exclusive jurisdiction over a federal enclave is a federal question. As stated in Silas Mason Co. v. Tax Commission, 302 U. S. 186, 197:
“The question of exclusive territorial jurisdiction is distinct. That question assumes the absence of any interference with the exercise of the functions of the Federal Government and is whether the United States has acquired exclusive legislative authority so as to debar the State from exercising any legislative authority, including its taxing and police power, in relation to the property and activities of individuals and corporations within the territory. The acquisition of title by the United States is not sufficient to effect that exclusion. It must appear that the State, by consent or cession, has transferred to the United States that residuum of jurisdiction which otherwise it would be free to exercise. ... In this instance, the Supreme Court of Washington has held that the State has not yielded exclusive legislative authority to the Federal Government. . . . That question, however, involving the extent of the jurisdiction of the United States, is necessarily a federal question.”
As already noted, a California statute “cedes to the United States exclusive jurisdiction” over described lands provided a description of the metes and bounds and a map of the land first be filed. California earnestly argues that “cedes” in that context includes “purchases” and “acquisitions by condemnation.” But the California statutes have consistently drawn the line between acquisitions by cession on the one hand and all other acquisitions on the other. That is the gist of a recent opinion of the Attorney General of California, in which he treats an acquisition by cession as an alternative to acquisition in other ways and rules that when the acquisition is by means other than cession no map of the land need first be filed. That seems to us to be the fair meaning of the statutory provisions.
The conditions expressed in the California Acts, by which California consented to “the purchase or condemnation” of land by the United States for the prescribed purposes, do not undertake to make applicable to the federal enclaves all future laws of California. Since a State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States, only state law existing at the time of the acquisition remains enforceable, not subsequent laws. See Stewart & Co. v. Sadrakula, supra; Arlington Hotel v. Fant, 278 U. S. 439. If the price-control laws California is now seeking to apply to sales on federal enclaves were not in effect when the United States acquired these lands, the case is on all fours with Pacific Coast Dairy v. Department of Agriculture, supra. There the Court held that the California statutes under which some of the present acquisitions were made granted the United States exclusive jurisdiction over the tracts in question in spite of the express conditions therein contained (id., at 293) and that this price-control law was not enforceable on a federal enclave in California because it was adopted “long after the transfer of sovereignty.” 318 U. S., at 294. The United States seeks shelter under that rule, saying California is trying to enforce its current regulatory scheme, not the price regulations in effect when the purchases were made. Yet if there were price control of milk at the time of the acquisition and the same basic scheme has been in effect since that time, we fail to see why the current one, albeit in the form of different regulations, would not reach those purchases and sales of milk on the federal enclave made from nonappropriated funds. Congress could provide otherwise and has done so as respects purchases and sales of milk from appropriated funds. But since there is no conflicting federal policy concerning purchases and sales from nonappropriated funds, we conclude that the current price controls over milk are applicable to these sales, provided the basic state law authorizing such control has been in effect since the times of these various acquisitions. A remand will be necessary to resolve that question, as the present record does not show the precise evolution of the present regulatory scheme.
There also remains another uncertainty concerning the purchases and sales of milk out of nonappropriated funds. There is a dispute over where some of these sales are made. Each of the three enclaves has numerous units acquired at various times, some of which may be subject to “exclusive” federal jurisdiction and some of which may not be. California earnestly claims that some sales out of nonappropriated funds were made on units of land over which the United States does not have “exclusive” jurisdiction. She makes the claim as respects some milk used at Travis, some at Castle, and some at Oakland.
We do not resolve the question but vacate the judgment of the District Court insofar as it relates to purchases and sales of milk made from nonappropriated funds and remand the case to the District Court to determine whether at the respective times when the various tracts in question were acquired California’s basic price-control law as respects milk was in effect. If so, judgment on this class of purchases and sales should be for appellants. If not, then the District Court must make particularized findings as to where the purchases and sales of milk from nonappropriated funds are made and whether or not those tracts are areas over which the United States has “exclusive” jurisdiction within the meaning of Art. I, § 8, cl. 17 of the Constitution.
Moreover, the decree must be modified to reflect the change in federal procurement policy as respects producers, already noted.
Accordingly the judgment is affirmed in part and in part vacated and remanded.
It is so ordered.
The United States has abandoned a further claim that California cannot constitutionally enforce her price regulations against producers with respect to milk sold to distributors for processing and ultimately resold to the United States. The abandonment of this claim is not a confession of error but only a decision not to assert immunity from that price control as a matter of procurement policy.
It appears that while California has authorized her Director of Agriculture to establish minimum wholesale prices for both “fluid milk” and “fluid cream,” and that while the Director has done so for a marketing area encompassing another base, all of the minimum wholesale price regulations appearing in the record pertain only to “fluid milk.”
In view of these facts, the case now involves only California’s power to enforce her minimum wholesale prices for “fluid milk” with respect to sales to the United States at the three bases involved.
Article I, § 8, el. 17, of the Constitution gives Congress power “To exercise exclusive Legislation . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
Calif. Agr. Code, § 4350.
Md., §4352.
Id., § 4361.
Id., §4410.
10 U. S. C. §2305 (c). This statute is a recodifieation without substantial change of the Armed Services Procurement Act of 1947. See S. Rep. No. 2484, 84th Cong., 2d Sess. 19, 20-21.
Id., §2304 (a) (8) (9) (10) (15).
Armed Services Procurement Regulation (revised to April 20, 1959), ¶1-301.
Ibid.
Id., ¶ 1-302.2.
Id., ¶ 1-301.
Id., ¶3-801.1.
Id., ¶3-101 (a) (Army Procurement Procedure).
Id., ¶ 3-101.
Ibid.
Ibid.
10 U. S. C. §2304 (a) (10).
H. R. Rep. No. 109, 80th Cong., 1st Sess. 6.
Section 2304 (f), which incorporates the Walsh-Healey Act (41 U. S. C. §§35-45), the Davis-Bacon Act (40 U. S. C. §276a), and the Eight Hour Law (40 U. S. C. §§ 324, 325a).
The ill which § 2304 (g) was designed to cure was a service-employed negotiating process which did not always produce low enough prices. Informal quotations, usually accompanied by a breakdown of cost elements, were first secured from as many sources as practicable. Separate negotiations with only a few low bidders were then undertaken in order to reduce the price by eliminating unnecessary or unjustified charges. Congress and the Comptroller General condemned this kind of “negotiation” because:
“It is our opinion that the authority to negotiate does not, of itself, warrant the curtailment of competition. Yet this may be the result where several proposals are received and the contracting officer decides to negotiate with only one offeror or to award a contract without discussion with any offeror. . . . We believe that . . . negotiations [should be conducted] with all responsible offerors who submit proposals within a competitive range, price and other factors considered.” H. R. Rep. No. 1959, 86th Cong., 2d Sess.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_applfrom
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
In re BEAR RIVER DRAINAGE DISTRICT. In the matter of the general determination of all the rights to the use of water, both surface and underground, within the drainage area of the Bear River and all its tributaries in Utah.
Misc. No. 3.
United States Court of Appeals Tenth Circuit.
June 5, 1959.
Perry W. Morton, Asst. Atty. Gen., A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, David R. Warner and Alfred H. O. Boudreau, Jr., Attorneys, Department of Justice, Washington, D. C., for applicant.
E. R. Callister, Atty. Gen., for the State of Utah, Robert B. Porter and Richard R. Boyle, Asst. Attys. Gen., for the State of Utah, for opponent.
Before BRATTON, Chief Judge, and LEWIS and BREITENSTEIN, Circuit Judges.
BREITENSTEIN, Circuit Judge.
The United States has applied for the authorization of an interlocutory appeal under 28 U.S.C. § 1292(b).
The State Engineer of Utah instituted proceedings in the district court of Cache County, Utah, to adjudicate rights to the use of all the waters within the Bear River drainage in Utah. Pursuant to 43 U.S.C.A. § 666, a summons was served upon a representative of the Attorney General of the United States. On petition of the United States the case was removed to the United States District Court for the District of Utah. The State Engineer moved to remand and the United States moved to dismiss. Relying upon its opinion in a comparable case, In re Green River Drainage Area, D.C., 147 F.Supp. 127, the district court denied the motion to dismiss and remanded the case and in its order taking such action made the statement required by § 1292(b). The controlling question of law was phrased thus:
“Is suit against the United States authorized under the circumstances of this case by 43 U.S.C. § 666?”
In its former opinion the court held that 43 U.S.C.A. § 666 was a consent to suit in such a case and that the United States did not have the right to remove to federal court because in the then status of the case the United States District Court did not have original jurisdiction. As the court acted in reliance on that opinion it must have reached the same conclusions in the pending case.
An order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise. While the generality of § 1292(b) might seem sufficient to encompass a remand order, it does not expressly either amend or repeal § 1447 (d). Repeals by implication are not favored. The intention of Congress to repeal, modify or supersede must be clear and manifest. The earlier statute, § 1447(d), applies specially to prohibit appeals from remand orders. The later statute, § 1292 (b), applies generally to “a civil action” in which “an order not otherwise appeal-able under this section” is made. As there is no express repeal or absolute incompatibility, the presumption is that the special statute is intended to remain in force. We are convinced that by the enactment of § 1292(b) Congress did not intend to abandon the long established policy expressed in § 1447(d).
The United States seeks to avoid the effect of § 1447(d) by asserting that its application is confined solely to the ruling of the district court that suit against the United States is authorized by 43 U.S.C.A. § 666. The difficulty is that if the application for interlocutory appeal is granted, a ruling on this issue will avail nothing as the remand order stands effective. The remand, right or wrong, left the district court without jurisdiction over the cause. The procedural difficulty is apparent. A court which held itself to be without jurisdiction attempted to decide contemporaneously a controlling element of the cause.
In brief the situation was this. The United States removed on the ground that the case was properly triable in federal court. The district court was then confronted with two motions, one by the State Engineer to remand and one by the United States to dismiss on the ground of sovereign immunity. While the questions involved in the two motions were necessarily related, the better practice would have been to rule first on the motion to remand and if granted to have sent the motion to dismiss back to the state court. As the remand left the district court without jurisdiction, an appeal to the court of appeals is a futile thing.
A remand order is not subject to review either directly or indirectly. As said in United States v. Rice, supra, 327 U.S. at page 749, 66 S.Ct. at page 838:
“Each loses, by the order, such right as there may be to litigate the case in the federal courts on removal, but both retain such rights as they may have to continue the litigation in the state court or to bring an independent suit in the federal courts.”
In the circumstances there is nothing properly before us for review. The application for interlocutory appeal is denied.
. 147 F.Supp. 134, 149.
. 28 U.S.C. § 1447(d); United States v. Rice, 327 U.S. 742, 66 S.Ct. 835, 90 L.Ed. 982.
. Rosenberg v. United States, 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607; United States Alkali Export Association, Inc., v. United States, 325 U.S. 196, 209, 65 S.Ct. 1120, 89 L.Ed. 1554.
. City of Tulsa, Okl. v. Midland Valley R. Co., 10 Cir., 168 L.2d 252, 254, and see United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181.
. United States v. Burroughs, 289 U.S. 159, 164, 53 S.Ct. 574, 77 L.Ed. 1096; Town of Okemah, Okl. v. United States, 10 Cir., 140 F.2d 963, 965.
. See United States v. Rice, supra, 327 U.S. at pages 748-752, 66 S.Ct. at page 837.
. We do not have the petition for removal before us and hence cannot say what was the statutory basis for the petition of the United States.
. Marchant v. Mead-Morrison Mfg. Co., 2 Cir., 11 F.2d 368, 369.
. Hammond Hotel & Improvement Co. v. Finlayson, 7 Cir., 6 F.2d 446, 447.
. Pacific Live Stock Company v. Lewis, 241 U.S. 440, 447, 36 S.Ct. 637, 60 L.Ed. 1084.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_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.
Jesse McWHORTER, Appellant, v. Robert KENNEDY, United States Attorney General ex rel. Russell O. SETTLE, Warden, United States Medical Center for Federal Prisoners, Appellee.
No. 17124.
United States Court of Appeals ■ Eighth Circuit.
Dec. 6, 1963.
Jesse McWhorter, pro se.
F. Russell Millin, U. S. Atty., Kansas City, Mo., Calvin K. Hamilton and John L. Kapnistos, Asst. U. S. Attys., Kansas City, Mo., were on the brief, for appellee.
Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.
PER CURIAM.
Appellant is under a federal 20-year sentence for armed bank robbery, imposed by the District Court for the Southern District of Ohio in 1955. He is presently confined in the Medical Center for Federal Prisoners, Springfield, Missouri.
Following his commitment on the sentence, the State of Ohio issued a warrant against him on a state charge and lodged a copy thereof with the federal prison authorities as a detainer. From 1956 on, appellant has made demands upon the State that the charge be presented to a grand jury for indictment, and that if an indictment should be returned he be granted a prompt trial thereon. These demands have all been refused or ignored' by the State, although the Director of the-Bureau of Prisons has informed appellant that “he will be produced to face-these charges if and when the state authorities indicate their intention to proceed with the prosecution and complete-the necessary arrangement”.
On this situation, appellant instituted a suit in the District Court for the Western District of Missouri, seeking to-obtain a declaratory judgment or a mandatory injunction against the Attorney General of the United States, for the purpose of having him take some action in relation to the matter. Appellant's theories and contentions were that the State-of Ohio was improperly denying him access to its courts; that it was depriving-him of a speedy trial contrary to the-guarantee of the Sixth Amendment; that-the due process clause of the Fourteenth Amendment was thereby being violated against him; and that the Attorney General in the circumstances had the duty of stepping in and undertaking to secure-redress and vindication of appellant’s constitutional rights for him.
The District Court made denial of the petition on its face, for want of jurisdiction to grant the relief sought. This disposition clearly was proper and must be-affirmed. There is no statute which purports to impose any such mandatory duty upon the Attorney General, nor has it. ever been regarded that any such mandatory duty was inherent in the nature and powers of his office.
This is as far as it is necessary to go here. The courts are without authority to direct a public officer to take any action which he does not have a legal; duty to perform.
Whether Congress could constitutionally require, under the speedy trial guarantee of the Sixth Amendment, that a State make disposition of a charge on which it has lodged a detainer against a. federal prisoner, there is no occasion for us to consider.
It should be added that our holding here is in accord with our recent decision in Crow v. United States, 8 Cir., 323 F.2d 888. There, a state prisoner sought to compel the United States to make disposition of a federal charge, on which a complaint had been filed, a warrant issued, and a detainer lodged against him with the state prison authorities. We ■upheld the District Court’s refusal to require the United States to take any such -action in the situation, and made this comment (p. 891):
“If the appellant is hereafter arrest-ad, informed against or indicted with -respect to the federal charge * *, "the way remains open for him to move for a dismissal upon the .•grounds that his right to a speedy trial has been violated upon the basis ■of the facts as they may then appear”.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_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. 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".
NEWBERN v. GREAT ATLANTIC & PACIFIC TEA CO.
No. 3531.
Circuit Court of Appeals, Fourth Circuit.
Jan. 9, 1934.
B. H. Thomas and T. T. Thome, both of Rocky Mount, N. C. (Alexander & Gold and T. A. Burgess, all of Rocky Mount, N. C., and Willis Briggs, of Raleigh, N. C., on the brief), for appellant.
Kemp D. Battle, of Rocky Mount, N. C. (Battle & Winslow, of Rocky Mount, N. C., on tbe brief), for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a judgment sustaining a demurrer to tbe complaint in a personal injury action grounded on negligence. Tbe complaint alleges that the plaintiff was an employee of defendant in one of its stores at Rocky Mount, N. C.; that defendant bad rejected tbe provisions of tbe State Workmen’s Compensation Law (Laws 1929, e. 120), and was therefore liable in damages for any negligence resulting in injury to plaintiff, without the benefit of any of the common-law defenses; and that plaintiff had sustamed injury as a result of the negligence of the defendant.
While the complaint contained general allegations of negligence in failing to furnish a safe place to work and safe and suitable appliances for tbe use of plaintiff, these were limited by specific allegation that a floor scale furnished plaintiff for his use had become “defective, unsafe, and dangerous from its long use by the defendant, so that the wheels by the means of which said floor scale was moved from place to place in defendant’s place of business were old, broken, in a dangerous and unsafe condition and not sufficient and adequate to enable it to be safely moved by tbe defendant’s employees.” And the negligence alleged was further limited in tbe language describing tbe happening which resulted in plaintiff’s injury; that portion of tbe complaint being as follows:
“That during tbe middle of tbe morning and on or about tbe first day of September, 1931, the plaintiff in tbe regular course of bis employment and. while exercising due care attempted to move from one portion of said store to another the large and heavy floor scale hereinabove described, for- the purpose of weighing an incoming load of meat, the property of the defendant, while in the attempted course of action outlined above tbe right band front wheel of said floor scale unexpectedly and suddenly came off because of latent and other defects in said scale and wheel not observable or discoverable by the plaintiff in the exercise of ordinary care causing the front right hand side of said scale to drop to tbe floor and causing the left rear portion of it to fly up onto and against the inside of the left leg of this plaintiff.”
The only question presented by the appeal is whether it was negligence on the part of defendant to provide for the use of plaintiff a floor or platform scale, one of the wheels of which was worn or defective. Defendant’s contention is that the simple tool doctrine applies, and that under that doctrine it cannot be held guilty of negligence. Plaintiff, while denying that the simple tool doctrine is applicable, says that, if appliear ble, that doctrine is but an application of tbe defense of assumption of risk, which is not available in North Carolina to employers who reject tbe provisions of tbe State Workmen’s Compensation Act. See Public Laws of N. C. of 1929, e. 120, § 15. It is clear that this statute does preclude a defense based upon assumption of risk; and, if there were negligence on tbe part of the defendant either in furnishing tbe scale or in failing to inspect it, defense on tbe ground that, plaintiff knew of its condition and assumed the risk arising therefrom could not be sustained. On the other hand, there is nothing in the act which imposes liability in the absence of negligence. Tbe sole question, therefore, is whether there was negligence in furnishing for the use of plaintiff a scale having a worn or defective wheel as alleged. We think this question must be answered in the negative.
It is elementary, of course, that the master is charged with the duty of using reasonable care in furnishing bis employees with implements, tools, -and appliances reasonably safe for the use for which they are intended, and of inspecting them from time to time to see that they remain in this reasonably safe condition. This duty arises because of the superior opportunity of the master to provide for the safety of the employee, and because the employee is required to work with the tools and appliances which- the master has provided. The reason of the rule prescribes its limitations. It has no application, ordinarily, to tools which are so simple that defects will be readily observable by the employee, or to tools from tbe use of which, even if defective, no danger is reasonably to be apprehended, although it does apply even to simple tools if they are to be nsed in such a way that their defective condition may result in danger. Cole v. S. A. L. Ry. Co., 199 N. C. 389, 154 S. E. 682; Thompson v. Oil Co., 177 N. C. 279, 98 S. E. 712.
The rule that the master is not ordinarily liable for defects in simple tools is based upon the idea that ordinarily the employee has better opportunity than the master to observe such defects and guard himself against them, and that the master should not be charged with the duty to care for the safety of an employee with respect to a matter as to which the employee is in better position to care for himself. See note to Vanderpool v. Partridge in 13 L. R. A. (N. S.) 668; 18 R. C. L. 548. But it is also to be observed that the nonliability of the master for defects in simple tools is based upon the fact that ordinarily, as in the case at bar, no danger to the employee is to be apprehended from defects therein which he cannot easily guard himself against. Ordinarily, they are reasonably safe for the use for which they are intended; and the duty of the master is not to furnish tools free of defects, but tools that are reasonably safe. This duty, therefore, is held to have relation ordinarily to machinery and appliances which are recognized as in their nature dangerous to employees using them or which are to be used in a manner which may result in danger if they are defective; and, where no danger is reasonably to bo apprehended, no duty is held to exist. Lynn v. Glucose Sugar Refining Co., 128 Iowa, 501, 104 N. W. 577; Vanderpool v. Partridge, 79 Neb. 165, 112 N. W. 318, 13 L. R. A. (N. S.) 668; House v. Sou. Ry. Co., 152 N. C. 397, 67 S. E. 981. As said by the late Judge Hoke, speaking for the Supreme Court of North Carolina in the case last cited:
“We have repeatedly decided that an employer of labor is required to provide for his employees a reasonably safe place to work, and to supply them with implements and applianees reasonably safe and suitable for the work in which they were engaged. As stated in Hicks v. Manufacturing Co., 138 N. C. 319-325, 50 S. E. 703, 705, and other cases of like import, the principle more usually obtains in the case of ‘machinery more or less complicated and more especially when driven by mechanical power’; and does not as a rule apply to the use of ordinary everyday tools, nor to ordinary everyday conditions, requiring no special care, preparation, or prevision, whore the defects are readily observable, and where there was no good reason to suppose that the injury complained of would result.”
It is well settled that, while it is the duty of the master, in exercise of reasonable care for the safety of the employee, to see that machinery and appliances which may cause injury to him are in reasonably safe condition, this duty does not ordinarily exist with respect to simple tools from the use of which no danger is reasonably to be apprehended or as to which the employee is in a better position than the master ito discover defects. 39 C. J. 342, 419; 18 R. C. L. 563; Kilday v. Jahncke Dry Dock & Ship Repair Co. (C. C. A. 5th) 281 F. 133; O’Hara v. Brown Hoisting Mach. Co. (C. C. A. 3d) 171 F. 394; Middleton v. National Box Co. (D. C.) 38 F.(2d) 89; Taylor v. A. C. L. R. Co., 203 N. C. 218, 165 S. E. 357; Cole v. S. A. L. Ry. Co., 199 N. C. 389, 154 S. E. 682; Martin v. Highland Park Mfg. Co., 128 N. C. 264, 38 S. E. 876, 83 Am. St. Rep. 671; and see notes in 1 L. R. A. (N. S.) 949; 13 L. R. A. (N. S.) 668; 30 L. R. A. (N. S.) 800; 40 L. R. A. (N. S.) 832; 51 L. R. A. (N. S.) 337; L. R. A. 1918D, 1141. This is true, not because the employee assumes the risk of injury from defects in such tools, but because the possibility of injury is so remote as not to impose upon the master the duty of seeing that they are free from defects in the first instance or of inspecting them thereafter. The fact that the employee has better opportunity than the master to judge of the defects of such tools, that no inspection is necessary to discover such defects, and that no danger is to he apprehended which the employee cannot guard himself against, renders it unnecessary in ordinary eases that the master exercise with respect to simple tools the care that the. law requires with respect to more complicated machinery. With respect to simple tools, ordinarily the master is not relieved of responsibility because the servant assumes the risk, but the servant assumes the risk because the master is relieved of responsibility, or, what is probably a more accurate statement, the same circumstances which establish assumption of risk on the part of the. servant show that there is no duty on the part of the master. Assumption of risk by the servant does not necessarily imply negligence on the part of the master.
Two cases directly in point axe Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117, and Hedicke v. Highland Springs Co., 185 Minn. 79, 239 N. W. 896, 897. In both of these eases the simple tool doctrine was applied, although the defense of assumption of risk had been abolished by statute. In the ease last cited the court said: “The burden is upon the employee to show that the neglect or failure of the employer to discharge some duty owing to the employee caused the injury for whieh damages are claimed. And, where nothing more is shown than an injury from some defect whieh the ordinary use of a simple tool or appliance is likely to develop. therein, a prima facie proof of negligence is'not made out against the employer, and no affirmative defenses are needed. Our decisions, moreover, predicate the simple tool doctrine upon the theory that as to such a tool the master owes the servant no duty to inspect for the purpose of discovering whether the ordinary use had produced some defect therein whieh would endanger the user. If there is no duty to discover and remedy such defects, of course, there can be no negligence inferred from the mere proof that defects developed in the use of a simple appliance. * * * So we think the law is established that no actionable negligence of an employer is shown when an employee is injured, from a defeet resultant from the ordinary use of a simple tool or appliance. And it matters not what affirmative defenses the statute has deprived the employer of, the employee must prove negligence, if recovery is to be had for injuries received in the employment.”
Certainly the North Carolina statute (Pub. Acts 1929, c. 120, § 15) denying to a defendant who has rejected the provisions of the State Workmen’s Compensation Act the defense of assumption of risk cannot be held to have abolished the simple tool doctrine in that state; for North Carolina has consistently recognized the simple tool doe-trine, as shown by the cases heretofore cited, although she has refused to recognize the doctrine that the servant assumes the risk of the master’s negligence in failing to furnish safe appliances, except in the narrow class of cases where the danger resulting from such negligence is so great that no prudent man would continue to work in its presence. Pressly v. Yarn Mills, 138 N. C. 410, 51 S. E. 69, 71; Hicks v. Naomi Falls Mfg. Co., 138 N. C. 319, 50 S. E. 703, 708. Of course, the assumption of risk of the master’s negligence, as thus limited by the North Carolina courts, could not by any possibility embrace the simple tool doctrine; and it follows that that doctrine would not be abolished by a statute abolishing the defense of assumption of risk.
Applying these principles to the case before us, it is clear, we think, that the complaint fails to allege any actionable negligence on the-part of the defendant. It is not necessary to go into the qualifications of the “simple tool” doctrine or to distinguish cases .which have been held not to fall within it (See L. R. A. notes heretofore cited); for it is clear that the case here falls squarely within the principle of all of the eases which hold that the ordinary duty of the master to furnish his employee with tools and appliances reasonably safe for the use intended, and to see by reasonable inspection that they are kept safe, has xio application to ordinary simple tools with which the employee is familiar and from the use of which no danger is reasonably to be apprehended. It is true that a scale is a somewhat complicated piece of machinery, in so far as the weighing apparatus is concerned; but there is nothing-complicated about the small iron wheels, one of which was the cause of the trouble here, and no danger is to be apprehended either from the ordinary use of the scale or from rolling it about on the wheels with whieh it is provided. There was no duty, therefore, either to see that the wheels were in good condition in the first instance or to inspect them thereafter. If the wheels or the cotter pins had become worn, this was a condition whieh was as readily apparent to the employee using the scale as to any one else; and certainly it was not a condition from whieh danger to anyone was reasonably to be apprehended. We think, therefore, that plaintiff’s injury must be held to be due to an accidental happening, and not to have resulted from any failure on the part of defendant to exercise the care for the safety of its employees which the law requires.
For the reasons stated, the judgment for the defendant on the demurrer will be affirmed.
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_genresp2
|
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 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.
BOSTON TERMINAL CO. v. MUTUAL SAVINGS BANK GROUP COMMITTEE et al.
No. 3760.
Circuit Court of Appeals, First Circuit
April 23, 1942.
B. A. Brickley, of Boston, Ma?s. (Oliver R. Waite and Brickley, Sears & Cole, all of Boston, Mass., on the brief), for appellant.
Damon E. Hall, of Boston, Mass. (Thomas M. Reynolds, George B. Rowlings, Tyler, Eames & Reynolds, James N. Clark, Philip N. Jones, Hurlburt, Jones, Hall. & Bickford, and Rutherford E. Smith, all of Boston, Mass., on the brief), for appellees.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
- These are consolidated appeals from six orders. of the District Court entered in proceedings for the reorganization of appellant, the Boston Terminal Company, under § 77 of the Bankruptcy Act, 11 U.S. C.A. § 205. Appeals from some of these orders have now become moot; and for an understanding of the question presented it will be necessary to refer in detail only to the, order of November 17, 1941, entered on petition of appellees herein, the holders of the greater portion of the outstanding bonds of the - debtor corporation, which order extended for a period of six months to and including May 20, 1942, the time within which the debtor shall, file its plan of reorganization, and enjoined the debtor from filing any such plan prior to or during the said period of extension until further order of the court.
As -appears from appellant’s statement of points, the sole question presented is whether the District Court has power to enjoin the filing of a plan of reorganization by the debtor in proceedings under § 77 of the Bankruptcy Act relating to railroad reorganizations. Appellant explicitly disclaims any suggestion of abuse of discretion by the District Court if it should be decided that the issuance of an injunction against the filing of a plan by a debtor in proceedings under § 77 is within the power of the District Court.
The Boston Terminal Company was incorporated in 1896 by a special act of the Massachusetts legislature, with power to construct and maintain a union passenger station in Boston (now called South Station), and to provide and operate terminal facilities for the several railroad companies authorized by the Act to hold the stock of the Terminal Company. The relationship of the Terminal Company to the New York, New Haven & Hartford Railroad and the other participating railroads is set forth in Palmer v. Webster & Atlas National Bank, 1941, 312 U.S. 156, 61 S.Ct. 542, 85 L.Ed. 642, and need not be elaborated in this opinion. It is sufficient to say that according to the last apportionment made by the Department of Public Utilities of , Massachusetts in 1931, it was determined that the New Haven, as lessee of the Old Colony Railroad Company, was using the South Station and its facilities to the extent of 70%, and that the New York Central Railroad Company, as lessee of the Boston & Albany Railroad Company, was making such use to the extent of 30%. Under the Massachusetts, Act of 1896 the New Haven and the New York Central, in those proportions, were required to pay to the Terminal Company for such use the amounts needed to cover the Terminal Company’s expenses, including interest upon its bonds, and taxes. Further, the New Haven, having the appointment of three of the five trustees or directors of the Terminal Company, was in effective control of the latter company.
In 1935 the New Haven filed a petition for reorganization under § 77 in the United States District Court for the District of Connecticut. For a time the New Haven continued to make its proportion of the payments to the Terminal Company for the use of South Station. However, on October 30, 1939, the District Court for Connecticut, on petition of the New Haven trustees, entered its Order No. 398 directing the New Haven trustees to withhold payments to the Boston Terminal Company on account of the latter’s taxes and bond interest.
As a result of this suspension of payments the Terminal Company was left without means to pay its obligations as they matured, and it defaulted in payment of interest due on its bonds November 1, 1939. The Terminal Company not having filed a petition for reorganization, certain of the appellees, as they were permitted to do by § 77 sub. a, filed a petition in the court below on November 3, 1939, for reorganization of the debtor company. On November 20, 1939, the court entered an order approving this petition, and later the court duly appointed a trustee for the debtor.
In § 77, sub. d, it is provided that: “The debtor, after a petition is filed as provided in subsection (a) of this section, shall file a plan of reorganization within six months of the entry of the order by the judge approving the petition as properly filed, * * * and not thereafter unless such time is extended by the judge from time to time for cause shown, no single extension at any one time to be for more than six months.” Thus, in the absence of an extension of time, it would have been the duty of the debtor to file it's plan of reorganization on or before May 20, 1940.
Meanwhile, the Circuit Court of Appeals for the Second Circuit, on appeal, reversed the aforementioned Order No. 398 of the District Court for Connecticut, holding that the New Haven trustees, while operating the Old Colony Railroad pursuant to the court’s order under § 77, sub. c(6), were bound to continue payments on account of the taxes and interest charges of the Terminal Company. Webster & Atlas National Bank v. Palmer, 2 Cir., 1940, 111 F.2d 215. The situation then was, that unless this decision of the Second Circuit should be reversed on certiorari the Boston Terminal Company would have ample funds promptly to meet all of its obligations and therefore there would be no occasion to proceed with the reorganization of the debtor company.
Notwithstanding this, the bondholders of the debtor expressed apprehension that a plan of reorganization would be filed in the name of the Terminal Company, and that such plan would be likely to be drawn in the interest of the New Haven rather than in the interest of the debtor and its bondholders, in view of the New Haven’s control, as aforesaid, over the Terminal Company. Accordingly the appellees on April 18, 1940, filed in the court below a petition asking the court to extend for a further period of six months from May 20, 1940, the time within which the debtor might file a plan of reorganization and meanwhile to enjoin the debtor from filing a plan. At a hearing on this petition on May 6, 1940, counsel for the debtor was unable to give assurances that no such plan would be filed by the debtor in the circumstances then existing. Therefore, the District Court, on the same day, entered an order granting the extension, and the injunction, as prayed by appellees’ petition. For the same reasons, on November 14, 1940, upon petition by appellees, the District Court entered an order extending for a further period of six months from November 20, 1940, the time within which the debtor might file a plan of reorganization and enjoining the debtor from filing such a plan during the extended period without further order of the court, the case of Webster & Atlas National Bank v. Palmer, supra, being then pending before the Supreme Court on certiorari.
On February 3, 1941, the Supreme Court in Palmer v. Webster & Atlas National Bank, 312 U.S. 156, 61 S.Ct. 542, 85 L.Ed. 642, reversed the judgment of the Second Circuit and reinstated Order No. 398 of the District Court for Connecticut. The situation was then back where it was before, and because the payments from the New Haven were no longer forthcoming the Terminal Company was unable to meet its debts as they matured.
But on February 27, 1941, the Interstate Commerce Commission pursuant to § 77, sub. d, filed with and certified to the District Court for Connecticut a plan for reorganization of the New Haven. This plan, if approved by the said court, would have rendered the Terminal Company solvent and able to meet its debts as they matured and thus would have removed the necessity for a reorganization of that company. It therefore seemed to the bondholders of the Terminal Company desirable that proceedings for the reorganization of that company should be further held in abeyance until Judge Hincks should have acted upon the pending plan for the reorganization of the New Haven. Hence, the court below, on May 19, 1941, upon petition of appellees,, further extended for a period of six months to and including November 20, 1941, the time within which the Terminal Company should file its plan of reorganization, and continued in effect for the period of such extension the injunction against the filing of a plan of reorganization by the debtor. Judge Hincks not yet having acted on the New Haven plan of reorganization, the court below on November 17, 1941, again on petition by appellees, extended the time within which the Terminal Company should file a plan of reorganization for a further period of six months to and including May 20, 1942, and enjoined the Terminal Company from filing any plan of reorganization during the period of such extension until further order of the court. The validity of this order of November 17, 1941, is now before us for consideration.
It is the contention of appellant that the District Court is utterly without power, in proceedings under § 77, to enjoin a debtor from filing a plan of reorganization. As above noted, if such power is found to exist, appellant does not contend that the District Court committed an abuse of discretion,' under the circumstances disclosed, in entering the order of November 17, 1941.
We have no doubt that the District Court had power, upon petition of the bondholders, to extend the time for filing by the debtor of a plan of reorganization. As originally enacted, § 77 contained no time limit within which the debtor must file a plan. See § 77, sub. c(7), 47 Stat. 1476. As a result, the Interstate Commerce Commission in its 48th Annual Report, dated December 1, 1934, at page 18, reported to the Congress that “The proceedings have been delayed in many cases by an apparent reluctance on the part of the debtor corporations to present plans of reorganization.” Accordingly § 77 was amended in 1935 so as to provide in subsection d, 49 Stat, 917, that the debtor must file a plan of reorganization within six months after the entry of the order by the judge approving the petition for reorganization, “and not thereafter unless such time is extended by the judge from time to time for cause shown.” This mandatory provision was obviously inserted for the benefit of the creditors rather than of the debtors; and since the subsection does not say that the court has power to grant an extension only upon petition by the debtor, it is a fair inference that the judge may ■also extend the time, for cause shown, upon petition by the creditors. But whether he may, in addition, enjoin the debtor from filing its plan until further order of the court during the period of such extension, is the question now before us.
There is no express provision of law specifically authorizing the judge to enjoin the debtor from filing a plan. This omission, however, is without significance. Continental Bank v. Chicago, Rock Island Ry., 1935, 294 U.S. 648, 675, 676, 55 S.Ct. 595, 79 L.Ed. 1110.
The district courts as courts of bankruptcy by § 2 a of the Bankruptcy Act, 11 U.S.C.A. § 11 are invested “with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in proceedings.” After the enumeration in § 2, sub. a of specific powers in courts of bankruptcy, it is provided in subsection b of the same section that “Nothing in this section contained shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not herein enumerated.” It may be deduced, therefore, that a court of bankruptcy has power to issue an injunction to protect its jurisdiction, since such a power is inherent in the court as a duly established court of equity. Moreover, by § 2 sub. a(15), courts of bankruptcy may “make such orders, issue such process, and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this Act [title].” 52 Stat. 843. Further, § 262 of the Judicial Code, 28 U.S.C.A. § 377, provides that “the district courts shall have power 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.”
Appellant insists, however, that the power to issue injunctions, which may be deduced from the foregoing provisions of law, must be limited to cases where the injunction is issued in aid of the purpose for which the district court is vested within jurisdiction under § 77, namely, the preparation and consummation of a plan of reorganization; and that where the injunction, as in the case at bar, does not aid in the reorganization of the debtor but actually brings it to a standstill, it is necessarily in conflict with § 77, citing Guaranty Trust Co. v. Henwood, 8 Cir., 1936, 86 F.2d 347, 108 A.L.R. 1020. Appellant also relies upon a statement in Continental Bank v. Chicago, Rock Island Ry., 1935, 294 U.S. 648, 676, 55 S.Ct. 595, 606, 79 L.Ed. 1110: “But a proceeding under section 77 * * * is not an ordinary proceeding in bankruptcy. It is a special proceeding which seeks only to bring about a reorganization, if a satisfactory plan to that end can be devised. And to prevent the attainment of that object is to defeat the very end the accomplishment of which was the sole aim of the section, and thereby to render its provisions futile.”
We are not persuaded by the foregoing argument. It assumes that the sole function of the district court under § 77 is to drive through with the utmost speed a plan, some plan, of reorganization, regardless of the existence of temporary conditions which may make the devising of a satisfactory plan difficult, or impossible, or undesirable from the standpoint of the debtor corporation and its creditors. The Supreme Court itself recognized, in the Rock Island case, supra, 294 U.S. page 685, 55 S.Ct. page 610, 79 L.Ed. 1110, that doubts and uncertainties due to pending litigation may justify a delay in reorganization where, until the doubts are finally resolved, “the consummation, or even the preparation, of any definite plan is plainly impracticable.” And the Congress has recognized that there may be situations where a hasty reorganization is undesirable, and that considerable discretion must necessarily be vested in the judge. House Rep. No. 1283, 74th Cong., 1st Sess., p. 3. Furthermore, it is the duty of the court under § 77 to preserve the debtor’s estate from wastage and unnecessary expense. Counsel for the debtor conceded, at the hearing before the District Court on May 6, 1940, that after the decision of the Second Circuit in Webster & Atlas National Bank v. Palmer, 111 F.2d 215, supra, it would have been “nonsensical” for the debtor to file a plan without waiting for the decision of the Supreme Court on certiorari. The filing of a plan of reorganization by the debtor initiates administrative proceedings before the Interstate Commerce Commission under § 77, sub. d, proceedings which may burden the debtor’s estate with heavy expenses in the hiring of experts, attorneys, etc., in lengthy hearings on the plan. After the decision of the Second Circuit in the case mentioned, it was obviously to the interest of the Terminal Company’s bondholders that the filing of a plan of reorganization should be delayed, even though the creditors themselves remained under the customary injunction forbidding them to enforce their liens pending the reorganization proceedings. And it was equally to the true interest of the debtor, the Boston Terminal Company, not to file a plan at that juncture.
Accordingly it seems clear to us that the extensions of time and the injunctions contained in the orders of the court below dated May 6, 1940, and November 14, 1940, were in aid of the court’s jurisdiction and in pursuance of its duty to preserve the debtor’s estate from needless expense. Counsel for appellant practically conceded this at the oral argument. But if this is so, it cannot be said flatly, as contended in appellant’s brief, that a district court has no power to enjoin the filing of a plan of reorganization by the debtor in proceedings under § 77. The subsequent orders of May 19, 1941, and November 17, 1941, further extending' the time and continuing the injunction, cannot be challenged for lack of power, but only for abuse of discretion in its exercise. Since appellant does not claim that there was any abuse of discretion we need not go into this. It may be noted, however, that the considerations which justified the orders of May 6, 1940, and November 14, 1940, were comparable to the considerations which moved the court to issue the orders of May 19, 1941, and November 17, 1941. The situation when the first two of these orders were entered was that if the Supreme Court should affirm the decision of the Second Circuit in Webster & Atlas National Bank v. Palmer, supra, the debtor would be amply solvent and in no need of reorganization. The situation when the second two of these orders were entered was that if the pending plan of New Haven reorganization should be consummated, the Terminal Company would be amply solvent and in no need of reorganization. However, in the latter situation the case for delay was somewhat weaker perhaps, because even if the judge should approve the plan there was. another hurdle to be surmounted before the plan could become effective; under § 77, sub. d, the plan might thereafter fail of acceptance by a two-thirds majority in interest of creditors in each class, and the judge might deem it not to be a proper case for putting the plan into effect notwithstanding such non-acceptance. But if in the circumstances the creditors of the Terminal Company were willing to await the outcome, it is difficult to see how the debtor, the Terminal Company, would have just cause for complaint.
It happened that shortly after the court below entered its order of November 17, 1941, now appealed from, Judge Hincks (on December 8) announced his decision refusing to approve the New Haven plan. This may alter the picture; it may be, as a result, that the proceedings for reorganization of the New Haven will be protracted for an indefinite time, and that even if a plan is ultimately consummated, it may not be as favorable to the position of the Terminal Company as was the plan of the Interstate Commerce Commission disapproved by the judge. Meanwhile, the Terminal Company is “unable to meet its debts as they mature.” This is one of the situations in which a debtor railroad is entitled to try for a reorganization under the procedure of § 77. As the Rock Island case pointed out (294 U.S. at page 272, 55 S.Ct. 595, 79 L.Ed. 1110), § 77 is applicable not only where the debtor is “insolvent” within the meaning of § 1(19) of the Bankruptcy Act but also where the debtor, although unable to pay promptly, may be able to pay if time to do so be sufficiently extended. Undoubtedly, the uncertainty as to the outcome of the New Haven reorganization introduces a complicating factor rendering it difficult to draft a satisfactory plan for reorganization of the Terminal Company. But if the New Haven proceedings continue to drag along there may come a time when the court below will deem it proper to permit the Terminal Company to try its hand at drafting and submitting a plan of reorganization which will take due aocount of the possibilities of a reorganization of the New Haven in terms favorable to the Terminal Company, and thus will be fair to the Terminal Company creditors. After all, the debtor, too, has an interest in the consummation of its reorganization without undue delay, for as long as the proceedings under § 77 are pending, the operation of its business is taken out of its hands and lodged in the hands of a trustee appointed by the court. These, and other considerations, will no doubt be weighed by the court below, in the exercise of its discretion, if the debtor, upon our remand of the case, should petition that court for an order vacating the injunction in view of the change in the situation, or if the bondholders should later petition for a still further extension of the time for filing a plan and for a continuation of the injunction during such extended period.
The appeals from the three orders of May 19, 1941, are dismissed as moot. The two orders dated November 17, 1941, and the order dated December 8, 1941, denying the debtor’s petition of November 19, 1941, to vacate the injunction, are each affirmed, with costs to the appellees.
Act of June 9, 1896, Mass. Acts and Resolves, 1896, c. 516.
Judge Hincks, in the District Court for Connecticut, in tin opinion on December 8, 1941, refusing to approve the plan of the Interstate Commerce Commission for reorganization of the New Haven, had this to say of the plan as it bore on the situation of the Terminal Company: “As a result the reorganized New Haven under the plan would be left forever liable to fulfill the obligations imposed by the Boston Terminal Act upon the New Haven, the Old Colony and the Boston & Providence. For under the plan the New Haven is "called ■upon to pay the obligations of Old Colony and Boston & Providence which are already due the Terminal Company and are now in default, and through assumption of their charters to assume their future obligations to the Terminal Company in perpetuity. Thus if the proposed plan became effective, all ground for the reorganization of the Terminal Company would disappear; its debtors would then be solvent and able to pay all the debts of the Terminal Company in full as they accrue.”
See also Craven and Puller, “The 1935 Amendments of the Railroad Bankruptey Law,” 49 Harv.L.Rev. 1254, 1262-65 (1936).
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:
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songer_r_state
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Guy MASON, Petitioner-Appellant, v. Charles R. BALKCOM, Warden, Respondent-Appellee.
No. 80-7344.
United States Court of Appeals, Fifth Circuit. Unit B
March 1, 1982.
James C. Bonner, Jr., University of Georgia School of Law, Prison Legal Counseling Project, Athens, Ga., for petitioner-appellant. ■
William B. Hill, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Before TUTTLE, HILL and THOMAS A. CLARK, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452—October 14, 1980.
THOMAS A. CLARK, Circuit Judge:
Petitioner, Guy Mason, appeals from the district court’s order and judgment denying his petition for a writ of habeas corpus. We reverse.
In January 1975, petitioner was convicted of murder and sentenced to death after a jury trial in the Superior Court of Baldwin County, Georgia. On direct appeal and the mandatory sentence review, petitioner’s conviction and sentence were affirmed by the Georgia Supreme Court, Mason v. State, 236 Ga. 46, 222 S.E.2d 339 (1976), and certio-rari was denied by the United States Supreme Court, Mason v. Georgia, 428 U.S. 910, 96 S.Ct. 3225, 49 L.Ed.2d 1219 (1976).
Petitioner subsequently petitioned for a writ of habeas corpus in the Superior Court of Tattnall County, Georgia. The state ha-beas action was continued to permit petitioner to file an extraordinary motion for a new trial in the Baldwin County Superior Court. Following an evidentiary hearing, the motion was denied on March 18, 1977. On appeal, the Georgia Supreme Court affirmed the denial of the extraordinary motion. Mason v. State, 239 Ga. 538, 238 S.E.2d 79 (1977). On January 26, 1978, an evidentiary hearing commenced on petitioner’s state habeas action in the Tattnall County Superior Court. That court denied habeas relief in an order and written opinion entered on July 13, 1978. Mason v. Hopper, No. 76-218 (Super.Ct. Tattnall Cty., July 13, 1978). From the adverse decision of the state habeas court, petitioner filed an application for a certificate of probable cause to appeal to the Georgia Supreme Court. The certificate was denied on October 3, 1978.
Petitioner next filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia pursuant to 28 U.S.C. § 2254. The district court ordered petitioner’s execution stayed pending final resolution of the habe-as action. On April 7, 1980, the district court denied the petition for the writ but left intact the stay of execution. Mason v. Balkcom, 487 F.Supp. 554 (M.D.Ga.1980). Petitioner now appeals to this court from the district court’s denial of his petition.
Five issues are raised on this appeal. Petitioner contends (1) that the trial court’s instructions to the jury created a presumption of intent to kill, thereby unconstitutionally relieving the state of its burden of proving an essential element of the crime of murder and depriving petitioner of due process of law, and that the erroneous charge cannot be dismissed as harmless error; (2) that the trial court’s instructions on voluntary manslaughter impermissibly created a presumption of “deliberate revenge” without regard to petitioner’s actual thought processes, thus depriving him of due process by relieving the state of its burden of proof; (3) that a venireman was improperly excluded from service on the jury on less than an “unmistakably clear” indication that his opposition to capital punishment would automatically impair his ability to consider a death sentence; (4) that his conviction and sentence cannot stand because one of the jurors, prior to the conclusion of the guilt phase of the trial, became aware through newspaper accounts that petitioner had been convicted of murder previously; and (5) that his death sentence cannot stand because the record lacks a transcript of the prosecutor’s closing argument, portions of which provoked objection, making it impossible for a reviewing court to determine whether the argument was unfairly prejudicial to the petitioner.
For the reasons expressed below, we reverse. In so doing, however, we reach only the first issue because its disposition makes resolution of issues (2), (3), (4), and (5) unnecessary.
Petitioner was convicted of murder under Ga.Code Ann. § 26-1101(a), which provides:
A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
The statute defines murder to consist of the following elements: (1) unlawfully (2) causing the death of another human being (3) with malice aforethought. Holloway v. McElroy, 474 F.Supp. 1363, 1368 (M.D.Ga. 1979). Malice is defined as a “deliberate intention” unlawfully to kill another human being. Thus, because malice is an element of murder and deliberate intention to kill is an essential part of malice, intent to kill is an essential element of the crime of murder under Ga.Code Ann. § 26-1101(a). Under the due process clause of the fourteenth amendment, the state must prove the existence of every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The prosecution therefore had the burden to prove beyond a reasonable doubt that petitioner had the requisite intent to kill.
Petitioner contends that certain instructions given to the jury by the trial court had the effect of relieving the prosecution of this burden by creating a presumption of his intent to kill. The instructions at issue here are as follows:
I charge you that the law presumes that a person intends to accomplish the natural and probable consequences of his conduct, and where a person uses a deadly weapon in the manner in which such weapons are ordinarily employed to produce death, thereby causing the death of a human being the law presumes an intention to kill.
I further charge you that if you believe beyond a reasonable doubt that the defendant . . ., with the weapon named in the indictment, and with malice aforethought, either expressed or implied, did unlawfully kill the victim . . ., and you believe the weapon used in the manner used, if one was used, was one likely to produce death, then you would be authorized and it would be your duty to convict the defendant of the offense of murder.
The district court, relying primarily on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), found that these instructions “impermissibly shifted the burden of proof on the issue of intent to kill to the defendant or at least removed from the prosecution the full burden resting upon it under In re Winship.” 487 F.Supp. at 559. The district court went on to hold, however, that the erroneous charge was harmless beyond a reasonable doubt.
Petitioner, of course, agrees with the district court’s finding that the charge erroneously shifted the burden of proof to him on the issue of intent to kill, but argues that the district court incorrectly held the erroneous charge to be harmless error. Respondent, on the other hand, first contends that the instructions in question did not shift the burden of proof to the petitioner on the issue of intent. Alternatively, respondent takes the position that if the charge did shift the burden to petitioner, then the district court correctly concluded that the error was harmless beyond a reasonable doubt. Thus, our analysis of this issue is twofold: (1) Did the instructions in question shift the burden of proof to the petitioner on the issue of intent to kill in violation of the due process clause of the fourteenth amendment? (2) If so, can the erroneous charge be characterized as harmless error beyond a reasonable doubt?
This case is very similar to Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Sandstrom, the defendant was convicted under Montana law of “deliberate homicide,” which the statute defined as “purposely or knowingly” causing the death of another human being. The state conceded that “purpose” was equivalent to “intent,” and thus that proof of defendant’s intent to kill would suffice to establish the “purpose” element. Id. at 521 & n.11, 99 S.Ct. at 2458 & n.11. The trial court instructed the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” The Supreme Court held that this instruction was unconstitutional because it “had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind.” Id. at 521, 99 S.Ct. at 2458.
In Sandstrom, the state argued that the Montana Supreme Court had exclusive authority to determine the effect of the presumption. The state supreme court had held that the instruction placed only a burden of producing some evidence on the defendant, and that the presumption thus affected only the burden of going forward with the evidence rather than the burden of persuasion. The Supreme Court conceded that the state supreme court was the final authority on the effect of a presumption under state law, but declared that the state court was “not the final authority on the interpretation which a jury could have given the instruction.” 442 U.S. at 516-17, 99 S.Ct. at 2455. The Court then found that, although the instruction could be interpreted in the manner suggested by the state, it could also be interpreted in two more stringent ways, neither of which passed constitutional muster:
First, a reasonable jury could well have interpreted the presumption as “conclusive,” that is, not technically a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant’s voluntary actions (and their “ordinary” consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than “some” evidence — thus effectively shifting the burden of persuasion on the element of intent.
442 U.S. at 517, 99 S.Ct. at 2456. The Court held that either of these two interpretations would have “the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind . . . and that the instruction therefore represents constitutional error,” 442 U.S. at 521, 99 S.Ct. at 2458, notwithstanding the fact that the trial court had given other instructions that correctly stated the state’s burden of proof.
We agree with the district court’s conclusion that the instructions at issue in this case fall clearly within the proscription announced in Sandstrom. Petitioner was convicted of murder, an essential element of which is intent to kill. The trial court instructed the jury that “the law presumes that a person intends to accomplish the natural and probable consequences of his conduct” and that “where a person uses a deadly weapon . . . thereby causing the death of a human being the law presumes an intention to kill.” In asserting self-defense, petitioner was required to admit the facts that activated these presumptions. We believe that a reasonable jury could have interpreted the instructions in either of the impermissible ways described in Sandstrom. Therefore, we hold that the challenged instructions relieved the State of Georgia of its constitutional burden of proving every element of the crime of murder beyond a reasonable doubt. Accordingly, petitioner’s conviction and sentence must be set aside unless the erroneous charge was harmless beyond a reasonable doubt.
“[BJefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In determining whether such an error is harmless, the question is whether the error might have contributed to the conviction. Id. at 23, 87 S.Ct. at 827. It is conceivable that an error such as that involved here could be harmless beyond a reasonable doubt under certain circumstances. Indeed, the Supreme Court in Sandstrom expressly stated that the Montana Supreme. Court was free on remand to consider the harmless error issue. 442 U.S. at 526-27, 99 S.Ct. at 2461. Although a burden-shifting charge might be harmless given appropriate circumstances, however, this is not such a case.
Constitutional error might be held harmless beyond a reasonable doubt, for example, where the evidence of guilt is so overwhelming that the error could not have been a contributing factor in the jury’s decision to convict. See, e.g., Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The case under review, however, cannot be so characterized. Although it is clear that petitioner shot and killed the victim, he claimed that he acted in self-defense after he saw the victim reach into her bosom and bring out a pistol. The evidence was undisputed that at the time of the killing the victim had a handgun on her person. One eyewitness testified that he saw the victim reach under her sweater and pull out a pistol before petitioner began shooting. Another eyewitness, however, testified that the victim’s hands were down by her side when the shooting occurred. This evidence, far from being overwhelming in favor of guilt, was in fact very much in dispute, and we cannot say that the unconstitutional presumption was not a contributing factor in the jury’s decision to resolve the dispute against petitioner.
An unconstitutional, burden-shifting instruction might also be held harmless where it shifts the burden on an element that is not at issue in the trial. See, e.g., United States v. Reeves, 594 F.2d 536 (6th Cir.), cert. denied, 442 U.S. 946, 99 S.Ct. 2893, 61 L.Ed.2d 317 (1979). The district court, taking this approach, found that the challenged instructions were harmless beyond a reasonable doubt because, in its view, intent to kill per se was not at issue in petitioner’s trial. The district court stated that:
The petitioner’s only defense to the charges was self-defense. He thereby controverted only that the killing was unlawful and done with premeditation and deliberateness. The issue was not “intent to kill” per se but it was the lawfulness of the killing and of petitioner’s intentions with respect thereto. Since the charge of the trial judge clearly imposed on the prosecution the burden of proving unlawfulness, premeditation and deliberateness beyond a reasonable doubt and these were the only disputed issues in the case, this court finds that the erroneous charge was harmless beyond a reasonable doubt....
487 F.Supp. at 559. Apparently, the district court believed that by raising self-defense the defendant admitted having the intent to kill. This analysis is too broad. When claiming self-defense, one does not necessarily admit intent to kill, but rather admits that the killing occurred. As the petitioner points out in his brief, one can shoot to kill in self-defense, shoot to wound in self-defense, shoot to frighten in self-defense, or even shoot reactively in self-defense with no specific purpose. The mere raising of self-defense clearly does not establish that the defendant had the intent to kill. That intent to kill was an issue in petitioner’s trial is made evident by the district court’s statement that petitioner “controverted only that the killing was .. . done with premeditation and deliberateness.” We see no meaningful distinction between “premeditation and deliberateness” and specific intent. A critical issue in petitioner’s trial was whether he had the specific intent to kill, and the state had the burden of proving this intent beyond a reasonable doubt. We hold that the instructions which relieved the state of this burden might well have contributed to petitioner’s conviction and thus cannot be dismissed as harmless error. Therefore, the district court must be reversed.
In view of our disposition of the preceding issue, we need not reach the other issues raised here by petitioner. For the reasons expressed in this opinion, the judgment of the district court is REVERSED and this case is REMANDED to the district court for further proceedings not inconsistent with this opinion.
. The facts underlying Mason’s conviction are set forth in the opinion issued by the Georgia Supreme Court on Mason’s direct appeal. Mason v. State, 236 Ga. 46, 46-47, 222 S.E.2d 339, 340-41 cert. denied, 428 U.S. 910, 96 S.Ct. 3225, 49 L.Ed.2d 1219 (1976).
. Under Georgia’s capital sentencing procedure, all death sentences must be reviewed by the Georgia Supreme Court. Ga.Code Ann. § 27-2537.
. When petitioner’s conviction was reviewed on direct appeal in 1976, the Georgia Supreme Court held that the instructions in question were not erroneous. Mason v. State, 236 Ga. 46, 47-48, 222 S.E.2d 339, 341 (1976). That ruling was made, however, without the benefit of the United States Supreme Court’s reasoning in Sandstrom, which was not decided until 1979.
. 1947 Mont.Rev.Codes §§ 94-5-101, -102 (Crim.Code 1973).
. The potential for these interpretations of the presumption was not removed by the other instructions given at the trial. It is true that the jury was instructed generally that the accused was presumed innocent until proven guilty, and that the State had the burden of proving beyond a reasonable doubt, that the defendant caused the death of the deceased purposely or knowingly. . . .
But this is not rhetorically inconsistent with a conclusive or burden-shifting presumption. The jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied. For example, if the presumption were viewed as conclusive, the jury could have believed that although intent must be proven beyond a reasonable doubt, proof of the voluntary slaying and its ordinary consequences constituted proof of intent beyond a reasonable doubt. Cf. Mullaney v. Wilbur, 421 U.S. 684, 703 n. 31, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) (“These procedural devices require (in the case of a presumption) . . . the trier of fact to conclude that the prosecution has met its burden of proof with respect to the presumed . . . fact by having satisfactorily established other facts.”).
442 U.S. at 518-19 n.7, 99 S.Ct. at 2456 n.7.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_casetyp1_7-3-5
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
CONCRETE MATERIALS CORP. v. FEDERAL TRADE COMMISSION.
No. 10090.
United States Court of Appeals Seventh Circuit.
May 25, 1951.
George F. Callaghan, John J. Toohey, Chicago, Ill., for petitioner.
W. T. Kelley, General Counsel, James W. Cassedy, Assoc. Gen. Counsel, and Donovan Divet, Sp. Atty., Federal Trade Commission, all of Washington, D. C., for respondent.
Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
DUFFY, Circuit Judge.
Petitioner asks us to review and set aside an order of the Federal Trade Commission issued November 9, 1949, requiring that petitioner cease and desist making certain representations as to the effectiveness of its products as waterproofing agents. Petitioner manufactured and distributed in interstate commerce products known as Comeo 2, Iron Waterproofing; Comeo 4, Waterproofing Paste; and Comeo 6, Transparent Waterproofing. For the purpose of inducing the purchase of its products petitioner circulated advertising folders, pamphlets and circular letters through the mail. Typical of the statements contained therein are the .following:
“You can now permanently stop all leaks and seepage in concrete, brick, stone and tile; also waterproof below water-level basements and pits under pressure. Comeo No. 2, our own waterproofing will do the job. This is a special chemical mixture of iron and other chemicals that, when mixed with water only, and brushed into the cracks of walls and floors needing repair will permanently waterproof and stop leaks under all conditions no matter how severe.
“For after-construction waterproofing problems in foundations. Permanently waterproofs concrete, brick, stone and tile walls and floors from either inside or outside. For all classes of construction where a positive waterproof condition is necessary. Successful under all conditions no matter how severe.”
And:
“Comeo 6, Comeo Transparent Waterproofing. A transparent water repellant liquid that effectively seals and waterproofs concrete, brick, stone, stucco, plaster or masonry surfaces. Makes surface permanently nonabsorbent.”
And:
“Comeo 4, Comeo waterproofing paste for new construction work. Produces a close-meshed concrete that increases strength and permanently waterproofs. Makes concrete flow easily around reinforcing.”
After due notice the first hearing was had in Chicago, Illinois. The two principal officers of petitioner appeared without counsel, and one of them testified. The Commission’s attorney there notified petitioner’s officers that a subsequent hearing would be held in Washington, D. C. for the purpose of receiving the testimony of three technicians of the National Bureau of Standards as to certain tests which had been made on samples of petitioner’s products. Prior to the hearing in Washington the Commission’s trial attorney on two occasions suggested to petitioner’s officers that an attorney be engaged to represent petitioner. Although timely notified of the time and place, no-one appeared for petitioner at the Washington hearing. During the course of that hearing a letter was received from petitioner requesting a postponement, but the hearing proceeded. However, a subsequent hearing was scheduled for Chicago. Petitioner appeared at the second Chicago hearing with counsel, who moved to strike certain testimony received at the Washington hearing, but did not request an opportunity to cross-examine the witnesses who testified at the Washington hearing. Petitioner then submitted the testimony of its secretary-treasurer, and also that of a chemist of a testing laboratory. The latter testified as to the qualitative and quantitative analyses of petitioner’s products, but did not testify as to the lasting qualities of the products when applied as directed.
The trial examiner submitted a Recommended Decision. Thereafter the Commission filed findings of fact and conclusions of law, which were in accord with the recommendations of the trial examiner, and entered the cease and desist order.
Petitioner claims that the Commission’s order is not supported by substantial evidence. Its principal contention here is that the tests conducted by the Bureau of Standards were made out of the presence of and without notice to the petitioner, and that the testimony of the Bureau of Standards technicians was largely hearsay testimony. Petitioner argues that such testimony should not have been received by the trial examiner or considered by the Commission. Petitioner also contends that because the order as entered is broad in its sweep, it offers no guide for compliance.
The finding as to Comeo 2, Iron Waterproofing is Supported by substantial evidence. Cyrus Fishburn, a well qualified expert who has been with the Bureau of Standards since 1928, testified as to the results of experiments he conducted with Comeo 2. Although he applied three applications to a specimen brick wall, each in accordance with directions, nevertheless water seeped through at several points. The permeability tests given by him simulated an exposure of the wall to wind-driven rain. Fishburn testified, “The Com-eo 2 cannot be considered to be a satisfactory waterproofing for permeable brick masonry walls when applied as directed to the inside, unexposed face.”
The finding as to Comeo 6, Transparent Waterproofing is not supported by evidence quite so unequivocal, as Comeo 6 was not tested. But, relying upon a previous report prepared by him, based upon tests in 1943 of another product “containing essentially the same ingredients as Comeo 6,” Fishburn testified, “The material will not waterproof highly permeable masonry surfaces,” but admitted that it would tend to seal the pores in those surfaces. He questioned the permanency of the effectiveness of the pore-sealing, stating, “It may last five or six years and be effective for that time as a pore sealer.” He laid considerable emphasis on the fact that it would not seal openings larger than the pore space.
The Commission found that through the advertising statements heretofore stated as to Comeo 6, petitioner represented that its product “effectively seals and waterproofs concrete, brick, stone, stucco, plaster and masonry surfaces, and makes said surfaces upon which it is applied permanently non-absorbent to water,” and that such representations were false.
Although Fishburn did not test Comeo 6, he possessed the education and practical experience which qualified him to judge the waterproofing qualities of Comeo 6 by tests which he had previously made of products of essentially the same ingredients compounded in the same proportion. Furthermore, the Commission itself has had wide experience in the masonry waterproofing industry. We conclude that substantial evidence supports the Commission’s findings as to Comeo 6.
The testimony as to Comeo 4, Waterproofing Paste was given by Leonard Bean and Thomas Kelly, employees of the Bureau of Standards. Bean, a chemist, personally had not made a test of Comeo 4 but testified from the notes of a subordinate who was no longer with the Bureau and who made such a test under his direction. He limited his testimony to the «chemical analysis of the product, stating that it was a fatty acid type water repellent agent. He disclaimed qualifications to testify as to its waterproofing qualities. Kelly, a well qualified materials engineer, testified that he was familiar with the report of the Bureau of Standards prepared by his predecessor, Hornibrook, who was no longer with the Bureau. Kelly referred to Comeo 4 as a “type of waterproofing which we have tested at the Bureau of Standards.” He testified further that from his general scientific knowledge, Comeo 4 does not make concrete waterproof in the sense of a permanent condition, and that under pressure it does not have any appreciable waterproofing effect. The Horni-brook report (Exhibit 16) contained several comments which were favorable to petitioner, as follows: “These materials are generally capable of effecting small reductions in absorption by capillarity, and because of the increased workability imparted to the concrete, may indirectly contribute to the uniformity of the concrete in place (that is, result in a greater freedom from honeycomb and similar defects), and accordingly improve the, impermeability. Such improvements in impermeability and absorption as effected by the use of this material may be expected to be of reasonable permanence.”
Petitioner advertised Comeo 4 for new construction work and claimed it “produces a close-meshed concrete that increases strength and permanently waterproofs. Makes concrete flow easily around reinforcing.” It is apparent that the only words subject to criticism are, “permanently waterproofs.” Petitioner objects because the Commission’s order prohibits it from advertising Comeo 4 as suitable for waterproofing without disclosing that its use will not render surfaces below grade impermeable to water under pressure. Petitioner states that it never advertised that Comeo 4 would render surfaces below grade impermeable to water under pressure. However, it did represent for new construction that Comeo 4 would permanently waterproof, and we think the Commission was justified in insisting petitioner make clear that it would not be satisfactory for that purpose for surfaces below grade subject to water under pressure.
Petitioner’s contention that the Commission should not have considered any of the testimony of the technicians of the Bureau of Standards cannot be sustained. True, it is incumbent on the Commission to prove its charges by competent, relevant and substantial evidence. Carlay Co. v. Federal Trade Comm., 7 Cir., 153 F.2d 493. But administrative agencies, such as the Federal Trade Commission, have never been restricted by the rigid rules of evidence. Federal Trade Comm. v. Cement Institute et al., 333 U.S. 683, 705, 68 S.Ct. 793, 92 L.Ed. 1009. Moreover, the petitioner’s objections go largely to the weight of the evidence, and it is well established that the weight to be given is a matter for the determination of the Commission. Corn Products Refining Co. v. Federal Trade Comm., 324 U.S. 726, 65 S.Ct. 961, 89 L.Ed. 1320. Perhaps it would have been better for petitioner to have been represented by an attorney at the Washington hearing so that the witnesses from the Bureau of Standards might have been cross-examined, but it was no fault of the Commission that this was not the case.
As to the scope of the cease and desist order, our consideration must be whether the Commission has made “an allowable judgment in its choice of the remedy.” Jacob Siegel Co. v. Federal Trade Comm., 327 U.S. 608, 612, 66 S.Ct. 758, 760, 90 L.Ed. 888. We think the Commission was clearly supported by substantial and adequate findings to conclude that the practices of petitioner were to the prejudice of the public and constituted unfair and deceptive acts in commerce, and that the form of the Commission’s order meets the test of an allowable judgment in the choice of the remedy.
Enforcement of the cease and desist order of the Commission is ordered.
. After many conferences and months of investigation, the Commission promulgated on August 31, 1946, trade practice rules for the masonry waterproofing industry. Fed.Reg., 16 Code of Federal Regulations (1949 Ed.), p. 481. Rule 2 covers “Deceptive Use of Representations ‘Waterproof,’ ‘Waterproofing,’ Etc.”
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
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songer_usc2sect
|
371
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second 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. Vankirk MOORE and Harold Burnell, Defendants-Appellants.
Nos. 174 and 175, Dockets 77-1245 and 77-1246.
United States Court of Appeals, Second Circuit.
Argued Sept. 12, 1977.
Decided Jan. 12, 1978.
David Blackstone, New York City, for defendant-appellant Vankirk Moore.
Guy Miller Struve, New York City, for defendant-appellant Harold Burnell.
Eugene Neal Kaplan, Asst. U. S. Atty., Southern District of New York, New York City (Robert B. Fiske, Jr., U. S. Atty., Jeffrey E. Livingston and Robert J. Jossen, Asst. U. S. Attys., New York City, of counsel), for plaintiff-appellee.
Before GURFEIN and VAN GRAAFEILAND, Circuit Judges, and COFFRIN, District Judge.
Honorable Albert W. Coffrin of the United States District Court for the District of Vermont, sitting by designation.
COFFRIN, District Judge:
Vankirk Moore and Harold Burnell appeal from judgments of conviction entered in the United States District Court for the Southern District of New York following a thirteen day jury trial before the Honorable Vincent L. Broderick. Both Moore and Burnell were convicted on all four counts of an indictment charging them with crimes arising out of the December 1,1976, kidnapping of Henry “Buster” Huggins, a narcotics dealer and the owner of the H & S Transmission Shop in the Bronx. Count I charged appellants with conspiracy to kidnap Huggins, in violation of 18 U.S.C. § 1201(c). Count II charged them with the actual kidnapping, in violation of 18 U.S.C. § 1201(a). Count III charged them with conspiracy to transmit in interstate commerce a communication containing a demand for ransom for Huggins’ release. Count IV charged them with actually transmitting in interstate commerce such a ransom demand.
In this appeal, both Moore and Burnell argue that the essential element of transportation in interstate or foreign commerce was never proved, and, therefore, federal jurisdiction did not exist. They claim both that there was insufficient evidence of any interstate or foreign transportation of Huggins and that the statutory presumption contained in 18 U.S.C. § 1201(b) that a kidnapped person who is not released within 24 hours has been transported in interstate or foreign commerce is unconstitutional. It is argued that, in view of the meager evidence of interstate transportation, the judge’s instruction to the jury that it could find the interstate transportation element by using the § 1201(b) presumption was highly prejudicial error. Burnell also asserts that there was insufficient evidence that he transmitted or conspired to transmit in interstate commerce a demand for ransom for Huggins’ release.
At about 7:45 P.M. on Wednesday, December 1, 1976, Buster Huggins walked out of the apartment of his girlfriend, Janet Lee, at 1818 Anthony Avenue in the Bronx and has never been seen or heard from again. A few moments earlier he had been speaking on Miss Lee’s telephone to Harold Burnell, one of his employees at H & S Transmission, who lived on a lower floor in the same apartment building as Miss Lee. According to Lee, Huggins told Burnell on the telephone that he was on his way downstairs. After asking Lee for Burnell’s apartment number, Huggins walked with her to the elevator, told her he would be back in ten or fifteen minutes, and left.
Ten minutes after Huggins left Lee’s apartment, Burnell arrived there to inquire about Huggins’ whereabouts and claimed that Huggins had not shown up at his apartment. Lee told Burnell that Huggins had left to see him about ten minutes earlier. After another ten minutes had passed, Burnell called Lee over the building intercom and told her that he still had not seen Huggins but that Huggins’ car was in front of the building. About five minutes later, Burnell called Lee again and told her that he had not seen Huggins, but that now his car was gone. The Government characterizes this series of conversations as an attempt by Burnell to establish an alibi through Lee. In light of the overwhelming evidence summarized below that it was Moore and Burnell who abducted Huggins, this appears to be the most plausible explanation for Burnell’s numerous communications with Lee during the period immediately following Huggins’ departure from her apartment.
Huggins’ disappearance on December 1, 1976, during what was supposed to have been a ten or fifteen minute meeting with Burnell would not, of course, necessarily implicate Burnell. However, certain of Burnell’s conversations in November, 1976, are significantly incriminatory. Burnell first spoke to one Kissoon “Kojak” Adams, a friend of both Moore and Burnell, and asked Adams if he wanted to participate in the kidnapping of Huggins for a $25,000 share of the ransom. Adams declined the invitation. On November 7 or 8,1976, Burnell discussed the kidnapping plan with his girlfriend, Mary Burch. He said that Moore was planning to “rip Huggins off because Huggins had ripped off three Rastafarians,” Trial Transcript at 347-48, and that only Moore, Adams and he knew of the plot they would follow in doing it. Burnell claimed that he would not have anything to do with the actual kidnapping but would go to work every day as usual. He told Burch that “they would hold Buster for money,” id. at 348; they would divide the money; and they would probably take Huggins “out of the states where he would never be found.” Id. at 349. However, he did not say to whom the word “they” referred. Id.
Between 9:30 and 10:00 P.M. on December 1, 1977, two ransom demands were made by Huggins’ kidnappers. A call was made to Huggins’ parents in South Carolina and was answered by Huggins’ sixteen-year-old brother, Ira. The male caller asked to speak to Ira’s father. When Ira Huggins said that his father was not in, the man asked to speak to his mother. After his mother picked up an extension phone, Ira continued to listen while the caller told Mrs. Huggins that her son had been kidnapped and that he was asking for a quarter of a million dollars if she wanted to see her son alive again. The caller then put Buster Huggins on the phone and he said, “Mom, do what these men say.” Id. at 887.
One kidnapper also telephoned the home of Martha Wigfall, a woman with whom Buster Huggins had been living for about three years. Her brother, Mark, answered the telephone and was told to tell Martha “we have Buster” and “he owes us $250,-000.” Id. at 230. The caller also told Mark that Martha and Buster Huggins’ father were to meet the kidnappers at the transmission shop, and that if Martha and Mr. Huggins, Sr. were followed by the police, Buster would be killed.
At approximately 6:30 A.M. on December 2, 1976, Martha Wigfall was called by a man (“the first caller”) who told her to come with Mr. Huggins, Sr. and to bring $250,000 to the H & S shop at 4:00 P.M. on Friday, December 3. When Wigfall asked to speak to Buster, she was told that he had already spoken to his mother the previous night.
That afternoon the FBI entered the case, and with Wigfall’s consent, placed a recording device on her phone. Based on an identification of Burnell’s voice by Huggins’ brother Ricky, who had listened in on the 6:30 A.M. call, FBI agents visited Burnell’s apartment looking for Huggins at about 5:30 P.M. Upon entering Burnell’s apartment on a ruse, the agents saw and spoke with Burnell for about three minutes, but did not see Huggins. They also observed Burnell’s car, a 1968 brown Buick Wildcat with South Carolina license plates bearing the numbers NMV-109. The car matched a description given the agents by Ricky Huggins.
At about 1:35 A.M. on Friday, December 3, 1976, Mark Wigfall received another call at his sister’s apartment. The caller was the same person who had spoken to Mark earlier. The caller stated that Martha Wig-fall was to bring the money to the garage at 4:00 P.M. in a paper bag.
That afternoon at about 4:00 P.M., Martha Wigfall and Samuel Huggins, another of Buster’s brothers, went to the H & S Transmission Shop. At the shop, Wigfall received another call from the first caller. She told him that she had $50,000; he reluctantly gave her 24 hours to be at the same place with the balance.
At about 11:30 that evening, Wigfall received a call at her apartment from another man (“the second caller”), who identified himself as “Buster’s boss.” Id. at 141. The conversation was somewhat longer than the previous calls, and included a statement by the caller that he and his accomplice were “get[ting] ready to take the M — F— out of town.” Id. at 142. Wigfall asked to speak to Huggins, but was told that Huggins had already spoken to his mother on Wednesday night.
On the afternoon of Saturday, December 4, 1976, Martha Wigfall and Samuel Huggins, accompanied by FBI agents, returned to the H & S Transmission Shop. After the FBI had placed a recording device on the telephone there, Wigfall received three telephone calls from Huggins’ kidnappers. First, the first caller of the previous afternoon telephoned and asked how much money she had, to which she replied she had only about $100,000. The caller said that “his boss” would call her back in about ten minutes. A few moments later, the second caller telephoned and told her Huggins was worth more than $100,000 and warned her that if she had been followed, they would “call it off.” Id. at 148. Finally, Wigfall received another call from the first caller, who instructed her to go to the pay telephones in a parking lot alongside Nathan’s Restaurant opposite the Korvette’s Shopping Center on White Plains Road in the Bronx, and to answer the telephone in about twenty minutes.
Miss Wigfall and Samuel Huggins then drove to the designated parking lot and waited. When the telephone rang, she answered and found herself speaking to the second caller. He instructed her to take the money to the Rocky Point Lookout on the Palisades Parkway in New Jersey, where she would find three garbage cans. She was to place the money in the center can and then return to the same telephone to receive instructions on where to find Huggins.
Meanwhile, two FBI agents were driving through the Korvette parking lot, looking for a place to stop and observe the telephone booths. While there they saw two people driving Burnell’s brown Buick Wildcat. The car stopped near the Korvette’s store and the passenger, later identified as appellant Moore, made a call at 5:32 P.M., exactly the same time that Martha Wigfall received the call in the telephone booth at Nathan’s.
The FBI then arrested the two men who had been in Burnell’s car. Moore first identified himself as his brother, Lennox, and denied knowing Buster Huggins or his whereabouts. He was given a pat-down search which turned up a washcloth, the keys to a canvas bag containing a revolver found in Burnell’s car, and two business cards. One of the cards had written on it the number of one of the telephones located inside Nathan’s. The other, which Moore tried unsuccessfully to destroy enroute to FBI headquarters, contained the numbers of both the telephones outside of Nathan’s. Burnell identified himself and told the agents only that he knew Huggins but had last seen him on the afternoon of December 1 at the H & S Transmission Shop.
On December 23, 1976, Huggins’ car was discovered in a long-term parking lot at the John F. Kennedy Airport. The keys had already been recovered from Moore’s apartment by FBI agents on December 4.
I.
Section 1201(a)(1) of 18 U.S.C. reads as follows:
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when:
(1) the person is willfully transported in interstate or foreign commerce; ******
shall be punished by imprisonment for any term of years or for life.
For kidnapping to become a federal offense, the operative condition of § 1201(a)(1) is, of course, that the person be “willfully transported in interstate or foreign commerce.” The “interstate nexus,” as the parties here have denominated this jurisdictional element of the offense, is necessary both for the initiation of FBI investigation and for the jurisdiction of the federal courts. In order to facilitate a finding of federal jurisdiction, Congress added to § 1201 a rebuttable presumption of interstate or foreign transportation:
(b) With respect to subsection (a)(1), above, the failure to release the victim within twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce.
18 U.S.C. § 1201(b).
In the trial below, the Government’s attempt to prove the interstate or foreign transportation of Buster Huggins by Moore and Burnell was frustrated by a lack of probative evidence. Its only proof of this crucial jurisdictional element consisted of several circumstances which only very tenuously supported the conclusion sought to be proved. It is argued first that the geographic proximity of the Bronx to New Jersey via the George Washington Bridge is a factor tending to suggest interstate transportation. Even if we assume that Moore and/or Burnell had to have crossed the Hudson River in order to reconnoiter the Lookout Point on the Palisades Parkway and choose the garbage can ransom drop-off point, there is no logical reason to conclude that Huggins was taken with them or, indeed, that they went there while the kidnapping was in progress.
The Government also contends that Burnell’s statements to Mary Burch in November, 1976, that Moore “would have somebody take [Huggins] out of the states” and “he would never be found,” Trial Transcript at 510, were declarations of an intent which was later carried out. Considered in light of Moore’s later statement to Martha Wig-fall that he was “getting ready to take [Huggins] out of town” id. at 142, these statements are urged upon us as having special significance.
Judge Broderick admitted the evidence of Burnell’s statements to Burch under Fed.R. Evid. 801(d)(2)(E) as the statement of a conspirator made in furtherance of the conspiracy, and, on the authority of Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892), as a statement of intent admitted to show that the intended act was subsequently performed. Both appellants forcefully argue that these statements were inadmissible.
However, we need not re-examine Judge Broderick’s decision to admit these statements because we find that, even if they were properly admitted, they are not sufficient by themselves to prove that any actual interstate transportation of Buster Huggins ever occurred. Burnell’s words conveyed only the most general idea that Moore and some unnamed third person intended to transport Huggins in interstate or foreign commerce. The suggestion that Huggins would be taken out of the states is also not consistent with the theory advanced by the Government in its brief that other evidence suggests Huggins was transported to New Jersey. Conceivably, had the Government been able to present additional, more concrete evidence of interstate or foreign transportation, Burnell’s statements of intent to Burch might have been more probative of the fact that the intent was actually carried out. In the circumstances of this case, however, these statements, even if properly admitted, are insufficient to prove that Huggins was in fact transported out of the State of New York.
The Government further contends that the fact that Huggins was not allowed to speak to Wigfall during the ransom demand telephone calls proves by inference that the victim was not with the caller when the calls were made. It is obvious that no such inference can be assumed, and even if the refusal to allow Huggins to speak to Wigfall suggested that Huggins was not present when the ransom calls were made, it hardly suggests that he was not within the State of New York.
Because of the paucity of evidence tending to prove that Huggins was transported in interstate or foreign commerce, the presumption embodied in § 1201(b) becomes highly significant. With the use of that presumption, the jury could find the requisite interstate or foreign transportation simply by finding only the obvious fact that Huggins was not released within 24 hours.
Following the Government’s request to charge which had been served on the court and opposing counsel five days before the trial began, the court instructed the jury that it could rely on the statutory presumption of 18 U.S.C. § 1201(b) that a kidnapped person who has not been released within 24 hours has been transported in interstate or foreign commerce. The court was careful to point out that the presumption was rebuttable. Judge Broderick’s exact words were as follows:
Under the law, the failure to release a kidnapping victim within 24 hours creates a presumption that the victim has been transported in interstate or foreign commerce, and you may so find. You are not required to so find. This presumption is not conclusive, and it may be refuted or disproved by contrary evidence, and it may simply not be accepted by you as jurors.
In sum, you are to look at all the evidence in this case, not only the presumption that I just mentioned to you but the entirety of the proof before you and decide whether or not the government has proved beyond a reasonable doubt that Buster Huggins was in fact transported in interstate or foreign commerce.
Trial Transcript at 2014.
Appellants now for the first time attack the constitutionality of the § 1201(b) presumption and argue that its inclusion in the charge constituted plain error affecting substantial rights ’ and seriously affecting the fairness of the proceedings. Before considering what effect appellants’ failure to raise this claim below should have, we first address the question of the constitutionality of the presumption itself.
The federal Kidnapping Act, ch. 271, 47 Stat. 326 (1932), popularly known as the “Lindbergh Law,” was enacted in 1932 to stem a rising tide of organized kidnapping which captured great public attention after the famous Lindbergh kidnapping case. The backdrop of this legislation was vividly described by the Supreme Court in Chatwin v. United States, 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198 (1946):
Kidnapping by that time had become an epidemic in the United States. Ruthless criminal bands utilized every known legal and scientific means to achieve their aims and to protect themselves. Victims were selected from among the wealthy with great care and study. Details of the seizures and detentions were fully and meticulously worked out in advance. Ransom was the usual motive. “Law enforcement authorities, lacking coordination, with no uniform system of intercommunication and restricted in authority to activities in their own jurisdiction, found themselves laughed at by criminals bound by no such inhibitions or restrictions. The procedure was simple — a man would be kidnapped in one State and whisked into another, and still another, his captors knowing full well that the police in the jurisdiction where the crime was committed had no authority as far as the State of confinement and concealment was concerned.” Fisher and
McGuire, “Kidnapping and the So-called Lindbergh Law,” 12 New York U.L.Q.Rev. 646, 653.
326 U.S. at 462-63, 66 S.Ct. at 237.
As the Court pointed out in Chatwin, the need for a federal statute arose from the kidnappers’ successful evasion of law enforcement authorities by merely crossing state lines. By authorizing federal investigation and prosecution for kidnapping, Congress eliminated the kidnappers’ artificial geographic refuge.
The original federal statute did not contain a presumption like that contained in § 1201(b). In amendments to the statute passed in 1934, Congress provided that failure to release a kidnapping victim within seven days would create a presumption of interstate or foreign transportation. Kidnapping Act, ch. 301, 48 Stat. 781 (1934). While the Department of Justice had submitted a report suggesting a three day period before the presumption became operative, the House of Representatives changed that period to seven days. The House Report relating to the amendment explains the presumption:
Secondly, a provision is added to the effect that the failure to release the kidnapped person within 7 days after such kidnapping shall create a presumption that the person has been transported in interstate or foreign commerce. Such presumption is not conclusive, however.
The purpose of this provision is to clear up borderline cases, justifying Federal investigation in most of such cases and assuring the validity of Federal prosecution in numerous instances in which such prosecution would be questionable under the present form of this act. The legality of such a presumption would seem to be fairly within the rule established by the United States Supreme Court in Mobile [, Jackson & Kansas City] Railroad Co. v. Turnipseed, (219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 [1910]).
That a legislative presumption of one fact from evidence of another may not constitute a denial of due process or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.
H.R.Rep.No.1457, 73d Cong., 2d Sess. 2 (1934).
In 1956 Congress amended the § 1201(b) presumption to reduce the period required without release from seven days to 24 hours. Act of August 6, 1956, ch. 971, 70 Stat. 1043. The purpose of the amendment was “to authorize the Federal Bureau of Investigation to initiate investigations of any kidnapping in which the victim has not been released within 24 hours after his seizure.” H.R.Rep.No.2763, 84th Cong., 2d Sess. 1 (1956); S.Rep.No.2820, 84th Cong., 2d Sess. 1 (1956), U.S.Code Cong. & Admin. News, p. 4373. This was the same purpose that Congress attributed to the 1934 amendment. Id. at 2.
Without referring to any factual data upon which the logical validity of the presumption could be based, both Committees on the Judiciary emphasized repeatedly in their reports that the purpose of the shortened period after which the presumption would take effect was to allow the FBI, with “[its] worldwide reputation . for the apprehension and conviction of kidnapers” to initiate its investigation. H.R. Rep.2763, supra, at 3; S.Rep.2820, supra, at 2, U.S.Code Cong. & Admin.News 1956, p. 4375. There can be no question that this was the predominant reason for the amendment. Although Burnell and the Government have argued the question of what the meager empirical data underlying the presumption means, their arguments lack force. It is apparent that virtually no empirical data of any significance which supports the validity of the presumption was presented to Congress.
That lack of data is not altogether surprising, however. Congress clearly was primarily interested in expediting FBI investigation in kidnapping cases in order to apprehend the criminal and save the victim’s life. To achieve that objective Congress created the § 1201(b) presumption under the commerce clause. Had Congress’s pri mary purpose been to give the federal court jurisdiction over a particular crime, it is highly likely that it would have searched for a more solid empirical basis for the § 1201(b) presumption.
The seminal case on the constitutionality of statutory presumptions in the trial of criminal cases is Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). In Tot, the Court held unconstitutional a provision of the Federal Firearms Act, ch. 850, § 2(f), 52 Stat. 1250 (1938) (repealed 1968), which provided that the possession of a firearm or ammunition by a person “who has been convicted of a crime of violence or is a fugitive from justice” was “presumptive evidence that such firearm or ammunition was shipped or transported or received” in interstate or foreign commerce. Under its previous decisions, the Court said, a statutory presumption could not be sustained “if there [were] no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other [was] arbitrary because of lack of connection between the two in common experience.” Id. at 467-68, 63 S.Ct. at 1245 (footnote omitted). To hold otherwise, the Court went on, would impermissibly “shift the burden by arbitrarily making one fact, which has no relevance to guilt of the offense, the occasion of casting on the defendant the obligation of exculpation.” Id. at 469, 63 S.Ct. at 1246.
In 1965, the Supreme Court rendered two decisions restating and applying the test it had enunciated in Tot. In United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), the Court upheld the presumption contained in 26 U.S.C. § 5601(b)(2) (amended in 1976) that the accused’s presence at an illegal still is sufficient evidence to authorize conviction for carrying on the business of distilling without the required bond. Stating that the Tot test was the correct test to apply, the Court continued: “The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.” 380 U.S. at 67, 85 S.Ct. at 757.
In United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), the Court considered the constitutionality of the presumption in 26 U.S.C. § 5601(b)(1) (amended in 1976) that the accused’s presence at the site of an illegal still could be deemed sufficient evidence to authorize conviction for possession, custody or control of the still. The Court held the presumption unconstitutional and cited the rule in Tot: “ ‘[W]here the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts.’ ” 382 U.S. at 139, 86 S.Ct. at 281 (quoting Tot v. United States, 319 U.S. 463, 468, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943)). Having stated that the offense of possession, custody or control of a still “has a much narrower coverage than [a] sweeping prohibition of carrying on a distilling business,” id. at 140, 86 S.Ct. at 282, the Court went on to say: “Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt . . ..” Id. at 141, 86 S.Ct. at 282.
In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court once again examined a criminal statutory presumption. Leary was charged with transporting marihuana knowing it to have been brought into the United States contrary to law — a violation of the Narcotic Drugs Import and Export Act § 2(h), 70 Stat. 570 (1956) (repealed 1970). The same subsection also provided:
Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury-
Reviewing the Tot, Gainey and Romano line of cases, the Court referred to the test used in those cases simply as the “ ‘rational connection’ standard announced in Tot.” Leary v. United States, 395 U.S. at 35, 89 S.Ct. at 1547. The Court then concluded:
The upshot of Tot, Gainey and Romano is, we think, that a criminal statutory presumption must be regarded as “irrational” or “arbitrary,” and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. And in the judicial assessment the congressional determination favoring the particular presumption must, of course, weigh heavily.
Id. at 36, 89 S.Ct. at 1548 (footnote omitted; emphasis added). After finding there was little direct evidence as to the beliefs of marihuana smokers generally about the source of their marihuana, the Court undertook an exhaustive survey of data concerning the proportion of domestically consumed marihuana that is of foreign origin. Finding that the data did not establish that marihuana smokers “more likely than not” knew their marihuana was imported, the Court held unconstitutional the presumption that mere possession was sufficient evidence of culpable knowledge.
Applying the Supreme Court’s “rational connection” test derived from Tot and its progeny and refined by Leary’s “more likely than not” standard, we cannot escape the conclusion that the presumption of interstate transportation embodied in 18 U.S.C. § 1201(b) is unconstitutional when used to prove an element of the federal crime of kidnapping. There is virtually no empirical data for concluding that a kidnapping victim has been transported in interstate or foreign commerce if he has not been released within 24 hours of his disappearance. Furthermore, as we have already noted, the presumption was enacted primarily to allow the FBI to apply its investigative resources and expertise to kidnapping cases as early as possible. It was not necessarily enacted to “confirm what folklore teaches,” United States v. Gainey, 380 U.S. at 67, 85 S.Ct. 754, or to codify what we know from “common experience,” Tot v. United States, 319 U.S. at 468, 63 S.Ct. 1241. We simply cannot say with substantial assurance that for purposes of proving the transportation of a kidnapping victim in interstate or foreign commerce such transportation is more likely than not to have occurred whenever the victim is not released within 24 hours of his disappearance. Leary v. United States, 395 U.S. at 36, 89 S.Ct. 1532; cf. Allen v. County Court, Ulster County, 568 F.2d 998 (2d Cir. 1977) (statutory presumption that presence in an automobile of a weapon is presumptive evidence that persons in the automobile possess that weapon is unconstitutional).
Because the evidentiary presumption of interstate transportation in 18 U.S.C. § 1201(b) is unconstitutional, its application in this kidnapping case deprived appellants of due process of law. However, before this Court can reverse the kidnapping charges on this ground, we must determine whether appellants failed to contest the issue below and, if so, whether that failure constituted a waiver of their right to raise it here.
The Government contends that both Moore and Burnell failed to challenge the constitutionality of the § 1201(b) presumption in the district court and that they completely neglected to object to Judge Broderick’s charge on this point. These failures to object below, it is urged, constitute a waiver which bars appellants from raising the issues on appeal. See United States v. Braunig, 553 F.2d 777, 780 (2d Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 277 (1977). The Government also argues that the appellants made a tactical decision not to raise the issues before the federal trial court. The Government suggests that appellants did not want to be tried in state court, where they faced mandatory minimum sentences if convicted of kidnapping. The Government also suggests that appellants gambled on an acquittal knowing that if they lost at trial and won the appeal on the constitutional issue they would have heard all thg evidence against them.
Both appellants virtually concede that they failed to challenge the constitutionality of § 1201(b) below and admit that they took no exception to that portion of the court’s charge dealing with § 1201(b). Appellants do argue through their present counsel that they made no conscious tactical decision not to raise the issues before the trial court. They point out that insofar as the overall insufficiency of evidence of any interstate or foreign transportation of Huggins is concerned, their objections were preserved by the Fed.R.Crim.P. 29 motions. It is not seriously suggested, however, that the Rule 29 motions were satisfactory substitutes for the requisite objection to the charge.
We note, furthermore, that appellants had received copies of the Government’s request to charge at least a week before the judge charged the jury. They should have been apprised then of the constitutional issues, for in its requests the Government referred to a section of Devitt and Black-mar’s handbook, Federal Jury Practice and Instructions, where the constitutionality of § 1201(b) as applied to the jury charge is questioned. On the record properly before us there is insufficient evidence to conclude that the constitutional issues were intentionally not raised before the trial court. It is apparent, however, that appellants failed effectively to raise the constitutionality of § 1201(b) and neglected to take exception to the relevant portion of the charge to the jury.
Anticipating that we would be loathe to overlook the failure to raise the § 1201(b) question below, appellants’ present counsel urge us to exercise our discretionary power to notice plain error in the charging of the § 1201(b) presumption. While the power to notice plain error is discretionary and is exercised sparingly for very sound reasons, we are of the opinion that this case requires us to do
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MILLER v. UNION PAC. R. CO.
No. 9554.
Circuit Court of Appeals, Eighth Circuit.
Feb. 17, 1933.
„ , . „ . , M . r,, Rehearing Denied March 24, 1933.
Martin J. O’Donnell, of Kansas City, Mo. (George H. Kelly and William Buchholzboth of Kansas City, Mo., on the brief), for appellant.
C. V. Garnett, of Kansas City, Mo. (T. T. M. Lillard and Bruce Hurd, both of Topeka, Kan., and Charles E. Whittaker and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for appellee.
Before KENYON, GARDNER, and SANBORN, Circuit Judges.
GARDNER, Circuit Judge,
. . . , „ , „ This is an action for damages tor death by wrongful act. Plaintiff’s intestates, Marcug Andlauer and Ellanore Andlauer, husband and wjfej were killed on a railroad crossing near St. Marys, Kan., December 11, 1927. It is charged in the petition that the defendant railroad ^ company was ^ negligent ta operating its train at an excessive speed; that the trainmen failed to sound the erossing whistle; that they failed to warn plaintiff’s intestates, or slacken tbe speed of the train after they knew, or could have known, of their peril. Defendant’s answer is in effeet a general denial and a plea of eontribu£ory negijgenee.
., „ , „ . At tbe place where tbe accident occurred, defendant’s railway track runs east and west, while Highway No. 40 runs in the same direction, but to the south of and parallel with the railway track for some considerable distanee. St. Marys College is located north -of the railway tracks, the grounds of which are entefd £Jom Highway No. 40 by means of a road lading north. from the main highway and er°ssmS f* rflwa^ ^aok- P16 from the north edge of the highway to the south rail of the track is 71% feet. This railway crossing was marked by the standard railway crossing sign, located 17 feet south of the south rail, at the east edge of the highway as it passed north at right angles from Highway No. 40. The contour of the ground is generally level, so that an oeeupant of an automobile turning north from the main highway toward the railway crossing onto the highway leading toward the entrance of the college grounds, has an unobstruoted view of a railroad train b_ j from ^ east £or a distanee of more than ^qqq £fie£ ’ ’
, '^.d^a^?r® wer® traveling west on Highway No. 40, m a closed automobile, m-tending to drive into St. Marys College grounds; their son being a student at the college. After turning north, leaving Highway No. 40, and as they passed onto the railway crossing, they were struck by a westbound passenger train and almost instantly killed.
The accident occurred about 3:30 in the afternoon, on a clear day. Andlauer and his wife were both familiar with the crossing. As they turned north, approaching the crossing, they were traveling at a speed estimated at from twelve to fifteen miles an hour, and did not slacken nor increase that speed, so far as the record shows. There was evidence that the train was traveling from fifty to sixty miles an hour, and there was testimony of two witnesses to the effect that they did not hear the crossing whistle sounded. There was also evidence that the train was about an hour late, and that it usually slowed down to from twenty-five to thirty miles an hour in passing by the St. Marys College property.
St. Marys is a town of about 1,200 inhabitants, and there is a student body at the college of from 500 to 1,000 students, and a faculty of about 100, all of whom, we assume, lived on the campus in dormitories, although that is not very clear from the record. An ordinance of the city of St. Marys limits the speed of trains within the city limits to twenty miles an hour, fixing as a penalty for the violation of the ordinance a fine of not less than $2-5, nor more than $100'.
When the plaintiff rested, defendant interposed a motion for a directed verdict, moving in .the alternative for a directed verdict or a dismissal upon the merits. The court granted defendant’s motion in the alternative, and dismissed the petition on its merits. To this action of the court plaintiff excepted “for the reason that under the pleadings and tho evidence the plaintiff was entitled to recover and was entitled to- have the cause submitted to the jury.” The exception was allowed, and the case has been removed to this court by appeal.
In effect the negligence charged is: (1) Failure to sound any warning of the approach of the train, either by the ringing of a bell or the sounding of a whistle, after knowledge that the automobile in which the Andlauers were riding was approaching a position oí: peril; (2) failure to observo a custom theretofore observed by it, to slow down its trains when passing St. Marys College and entering the city limits of St. Marys; and (3) failure to ring any hell or sound any whistle within eighty rods of the crossing. It is the contention of plaintiff that he was entitled to go to the jury on each of these issues.
Defendant contends that: (1) The evidence was insufficient to raise an issue as to the allegations of prim,ary negligence; (2) that plaintiff’s intestates were guilty of such contributory negligence as precludes recovery; and (3) that the doctrine of discovered peril or last clear chance was not applicable because there was no evidence that the defendant’s employees discovered the peril in time to have avoided the accident.
In our view of the ease it is not necessary to consider the debated question as to whether there was sufficient evidence of primary negligence to entitle plaintiff to have that issue submitted to the jury, because it seems clear, under the undisputed evidence, that Mr. and Mrs. Andlauer were both guilty of contributory negligence. We therefore assume, without deciding, that the evidence on the question of primary negligence was such-as to entitle plaintiff to have had that issue submitted to the jury. As has been observed,, the accident occurred in broad daylight, on a clear afternoon. The view toward the east was unobstructed, and had either of the occupants of the ear looked toward the east as they approached this crossing, he could not but have seen the approaching train. It appears that the car in which the Andlauers were riding, was traveling at a speed of from ten to twelve miles an hour from the time it left the main highway and approached the crossing, and during that time the speed neither decreased nor increased; the car neither stopped nor turned aside. These are undisputed physical facts. It was their duty to-look and listen as they approached this crossing, at such time and place as looking and listening would he effective. This crossing was a point of danger, with which they were both familiar. Certainly, the contributory negligence of the driver cannot he denied.
It is argued, however, that the negligence of the driver should not be imputed to-Mrs. Andlauer, as she was a mere passenger or guest. We need not determine whether, under the facts and circumstances disclosed by this record, the negligence of Mr. Andlauer should be imputed to his wife, because-this court has consistently held to the rule-that it is the duty of one riding in an automobile, even though he is not the driver, to keep a lookout at railway crossings and give-warning to the driver. Bradley v. Missouri Pacific R. Co. (C. C. A. 8) 288 F. 484, 495; Noble v. Chicago, M. & St. P. R. Co. (C. C. A. 8) 298 F. 381, 384; Chicago & E. I. R. Co. v. Sellars (C. C. A. 8) 5 F.(2d) 31; Kutchma v. Atchison, T. & S. F. R. Co. (C. C. A. 8) 23 F.(2d) 183; Parramore v. Denver, & R. G. W. R. Co. (C. C. A. 8) 5 F.(2d) 912. See, also: Summers v. Denver Tramway Corp. (C. C. A. 10) 43 F.(2d) 286; Garrett v. Pennsylvania R. Co. (C. C. A. 7) 47 F.(2d) 10.
In Bradley v. Missouri Pacific R. Co., supra, the facts were, very similar to those in the instant case. In that case Mr. Bradley was riding in' an automobile driven by a Mr. Brown. At a point 40 feet east of the railway crossing the approaching train was visible for a distanet of 800 feet. Both occupants of the ear were killed, and there was no direct testimony as to the care exercised either by the driver or by Mr. Bradley. Both, as in the ease at bar, were familiar with the crossing. This court held that Bradley, even though merely a guest, was conclusively shown' by the record to have been guilty of contributory negligence. In the course of the opinion by Judge Kenyon it is said: “Here the hazard was brought about as much by Bradley’s negligence as by Brow’s. We think the question of contributory negligence here was one of law for the court, as the evidence relating thereto was undisputed, and but one conclusion can be drawn therefrom by reasonable minds, and that is that Bradley was guilty of contributory negligence, and the court would have been justified in so holding as a matter of law.”
The doctrine of the Bradley Case was reaffirmed by this court in Noble v. Chicago, M. & St. P. R. Co., supra. In that ease, which involved the question of contributory negligence of a passenger, it is said: “The negligence of the driver of a ear is not always, or necessarily, imputable to the passenger; but, outside the conduct of her husband, we think, on this record, that the plaintiff was equally guilty of contributory negligence. Admittedly she had a better opportunity than her husband to observe the train and in sufficient time to warn him. This she did not do, and is therefore guilty of contributory negligence as a-matter of law.”
Referring again to the facts in the instant case, it is observed that when the ear turned north, approaching the crossing, it was 71% feet from the south rail. Mrs. Andlauer was on the right side, in the front seat, and, as in the Noble Case, had a better opportunity of observing the approaching train than her husband, who was at the wheel. But it is ai’gued that in the absence of evidence, we must presume that she was in the exercise of reasonable care. If so, we should presume that she looked, and, of course, if she looked, she must have discovered the approaching train. If we may pursue the line of presumption further, in violation of the rule that one presumption cannot be based upon another presumption, we should presume that she warned her husband. Then there is a presumption that he exercised ordinary care. There are two answers to the argument based upon presumption: First, one presumption cannot be based upon another presumption. Brady v. United States (C. C. A. 8) 24 F.(2d) 399; General Reinsurance Corp. v. Southern Surety Co. (C. C. A. 8) 27 F.(2d) 265; Lincoln National Life Ins. Co. v. Erickson (C. C. A. 8) 42 F.(2d) 997. Second, a presumption cannot be weighed as against evidence, and does not constitute affirmative proof. -In the absence of evidence, a presumption of fact may prevail. It takes the place of evidence; but when there is evidence on an issue, presumption as to that issue disappears. United States v. Le Duc (C. C. A. 8) 48 F.(2d) 789; Guaranty Trust Co. v. Minneapolis & St. L. R. Co. (C. C. A. 8) 36 F.(2d) 747; Fidelity & Casualty Co., v. Niemann (C. C. A. 8) 47 F.(2d) 1056.
Here, the physical facts and surrounding circumstances, all practically undisputed, would seem conclusively to show that the occupants of this car, heedlessly, and without looking or listening, drove onto this crossing without any knowledge of the approach of the train. They knew that they were approaching the crossing; they- knew exactly where they were and where the crossing was. They had an unobstructed view of the approaching train, yet the ear neither stopped, slackened its speed, increased its speed, nor turned to the right nor to the left, but went steadily forward. These physical facts and surrounding circumstances overcome all presumption as to the exercise of ordinary care, and conclusively establish that both the occupants of this ear were guilty of contributory negligence, unless, as contended by appellant, the doctrine of discovered peril can be invoked.
It is argued that the defendant’s employees in charge of the train, in the exercise of ordinary care, should have discovered the peril of plaintiff’s intestates in time to have averted the accident. There are at least two answers to this contention: First, the evidence is not such as to charge the employees in charge of the train, with knowledge that the Andlauers were intending to drive onto this crossing. Certainly, until the car turned north toward the crossing, the employees were not charged with knowledge of their presence. They were warranted in assuming that these people would exercise ordinary care, that they knew they were approaching a crossing, and that the train was approaching a crossing. With this knowledge, they may well have assumed that the automobile would be stopped before it passed onto the crossing. If employees of the railroad company could not so assume, then it would he necessary to stop the train at every highway crossing, wherever situate, or to approach it at such a speed as to bo able to stop the train ■whenever the train crew observed any one approaching a crossing. If this train were going at as high a rate of speed as contended, it certainly could not have been stopped within several hundred feet; whereas, the automobile, traveling at a speed of from twelve to fifteen miles an hour, could have been stopped almost instantly. Second, the doctrine of discovered peril or last clear chance is not applicable because there is no proof that the employees operating the train had knowledge of the peril. This court has consistently held that such knowledge must be actual. It is bottomed on the theory that after the actual discovery of a person in peril, there is time within which, by the exercise of ordinary care, to avoid the injury. In the instant case, there is no evidence that the employees actually discovered decedents’ peril. Certainly, there is no evidence that they discovered such peril in time to have avoided the accident. Marshall v. Hines (C. C. A. 8) 271 F. 165, 170; Miller v. Canadian Northern R. Co. (C. C. A. 8) 281 F. 664; Wheelock v. Clay (C. C. A. 8) 13 F.(2d) 972; Walker v. East St. Louis & S. Ry. Co. (C. C. A. 8) 25 F.(2d) 579; Kinney v. Chicago Great Western R. Co. (C. C. A. 8) 17 F.(2d) 708.
In Marshall v. Hines, supra, this court said: “The plaintiff’s definition of the last clear chance doctrine is too broad and erroneous. The exception it presents is limited to cases in which the defendant actually discovers the person injured and his peril in time to avoid the injury. It does not include cases where, by the exercise of ordinary care, the plaintiff might have made such a discovery in time to avoid the injury.”
In the instant case, the railroad company produced no testimony and there was no evidence that the engineer or fireman, or any other employees in charge of the train, discovered the Andlauers or their peril before they were injured, and hence the exception to the rule of contributory negligence cannot he invoked.
It is finally urged that the court erred in granting the alternative motion to dismiss the ease, instead of directing a verdict. When defendant’s motion was submitted, no objection was made to its form, and in the exception taken by plaintiff to the action of the court granting the motion, no complaint was made that the procedure invoked was objectionable. Had such an objection or exception been taken at the time, the procedure could readily have been cured. The objection is purely technical and could not possibly have prejudiced the plaintiff. What is said by this court in Bowman v. Atchison, T. & S. F. R. Co. (C. C. A. 8) 184 F. 697, 699, is here apposite. It is there said: “The court sustained the motion for a directed verdict and added: ‘Enter judgment for the defendant as on the verdict of the jury.’ No verdict of the jury appears in the. record, and the fair inference is the court dispensed with one. The plaintiff excepted generally to the ruling and the final judgment, but the court was not informed that complaint was made because a verdict was not taken in conformity with the ruling on the motion. And, though it is made the subject of assignments of error, they are not relied on in the brief. Our attention is, however, directed to the practice. We agree with counsel that the practice is objectionable. A serious question would have been presented had the trial court been distinctly advised that exception was taken to it and an opportunity given to correct it.”
In a later case, Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60, 63, in an opinion by the late Judge Sanborn, it is said: “There is another reason why no reviewablo question of law is presented to this court in this case. A trial court -is entitled to a clear specification by exception of any ruling or rulings which a party challenges and desires to review, to the end that the trial court itself may correct them if so advised, and, if it fails to do so, that there may he a clear record of the rulings and the challenges thereof. For this purpose a rule has been firmly established that an exception to any ruling which counsel desire to review, which sharply calls the attention of the trial court to the specific error alleged, is indispensable to the review of such a ruling.”
If there was even a technical error, it was waived, and cannot be considered by this court. See, also, United States v. United States Fidelity & Guaranty Co., 236 U. S. 512, 35 S. Ct. 298, 59 L. Ed. 696; Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 39 S. Ct. 435, 63 L. Ed. 853. The rule is a just one and affords an opportunity, both to the trial court and opposing counsel, to-correct the error, which in the instant case goes only to matters of form; and it enables the appellate court to determine what .questions were actually presented to- the lower court.
We conclude that the court correctly directed a verdict for the defendant on the ground of contributory negligence, and the judgment appealed from is affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_appel2_7_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the 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").
GUILD TRUST, Melba L. Guild, Delmar D. Dean and Mary Melba Guild Dean, husband and wife, Earl Guild and Barbara Jo Guild, husband and wife, Ferd Christiansen and Eva Lois Christiansen, husband and wife, Plaintiffs-Appellants, v. UNION PACIFIC LAND RESOURCES CORPORATION, a corporation, Champlin Petroleum Company, a corporation, and Amoco Production Company, a corporation, Defendants-Appellees.
No. 79-1568.
United States Court of Appeals, Tenth Circuit.
June 16, 1982.
Charles D. Phillips, Evanston, Wyo., for plaintiffs-appellants.
Daniel M. Gribbon of Covington & Burling, Washington, D.C. (Russell H. Carpenter, Jr. of Covington & Burling, Washington, D.C., Houston G. Williams of Williams, Porter, Day & Neville, P. C., Casper, Wyo., Harry O. Hickman and Frank H. Houck, Denver, Colo., Ewing Werlein, Jr. and Ben H. Rice, III of Vinson & Elkins, Houston, Tex., of counsel, for Amoco Production Co., D. Thomas Kidd, Casper, Wyo., and Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., of counsel, with him on the brief), for defendants-appellees.
Before SETH, Chief Judge, and DOYLE and McKAY, Circuit Judges.
SETH, Chief Judge.
The Guild Trust brought this action against the Union Pacific Land Resources Corporation and others seeking to quiet title to minerals in the subject lands. The trial court, 475 F.Supp. 726, however, by summary judgment quieted title in the minerals including oil and gas in the defendants. The trial court held that the six deeds here concerned reserved title to all the minerals in the grantor. The plaintiffs have taken this appeal asserting basically that summary judgment was not a suitable method to resolve the issues.
Six of the seven deeds here concerned reserve to the grantor and to its successors and assigns “all coal and other minerals within or underlying said lands.” This was the same reservation contained in the deeds considered in the case of Amoco Production Co. v. Guild Trust, 636 F.2d 261 (10th Cir. 1980). In that litigation between these same parties the trial court held, 461 F.Supp. 279 (D.Wyo.1978), and we held, that the reservation included oil and gas. We said:
“If the Wyoming Supreme Court were presented with the precise issue presented in this case, we believe it would hold that the deed term ‘other minerals’ includes oil and gas as a matter of law.”
The Amoco decision is controlling on that issue as presented in this case. Furthermore, it was an issue proper for resolution by summary judgment.
The appellant Guild Trust seeks to present in this court factual material not presented to the trial court including sales contracts, mortgages, and briefs in other cases, all of which cannot be considered.
One of the seven deeds, which is referred to as the Section 5 deed executed in 1895, covers Section 5, Township 14 North, Range 117 West, of the Sixth Principal Meridian, in Wyoming. This deed contains a reservation different from those included in the other six. The reservation in this Section 5 deed reads:
“Reserving, however, to the said Union Pacific Railway Company, its successors, grantees, or assigns, the exclusive right to prospect for coal and other minerals within the underlying said lands, and to mine for and remove the same, if found, and for this purpose it shall have right of way over and across said lands and space necessary for the conduct of said business thereon, without charge or liability for damage therefor.”
The trial court held that under Wyoming law this reserved the entire estate in the minerals to the grantor and to its successors, grantees, and assigns. This holding is consistent with the holding of the vast majority of decisions which have considered the matter. Apparently the only exception is the opinion of the Colorado Supreme Court in Radke v. Union Pacific Railroad Co., 138 Colo. 189, 334 P.2d 1077 (1959), where the court considered a similar reservation, but one which did not go to the successors, grantees, or assigns.
The Section 5 reservation has no time restriction, is an exclusive right, without limitations or conditions. The' Wyoming court has not considered the particular issue. Its opinions contain no contrary indications, and under these circumstances we will follow the view of the trial court as to what doctrine would be adopted by the Wyoming Supreme Court.
The plaintiffs-appellants filed this suit in March of 1978 while the Amoco action wherein they were defendants was pending, and had been pending for about five months. They apparently were prepared to have the two actions proceed at the same time. In any event, they chose to do so.
The plaintiffs had taken no action in this case for about a year when the defendants filed a motion for summary judgment on February 20, 1979. The trial court had decided the Amoco ease about three months before — in November of 1978.
The trial court set the motion for summary judgment soon after it was filed for a hearing to be held on March 16, 1979, the date the case had been set for trial. The plaintiffs moved to stay all proceedings in the case until the appeal in Amoco had been decided. The defendants agreed, but the court on March 12 denied the stay. The plaintiffs’ second motion for stay was also denied, and the motion for summary judgment was heard on March 16, the trial date which had been set some three-and-a-half months before.
The trial court announced that it would grant summary judgment for the defendants. However, after the hearing the court allowed plaintiffs a period of thirty days in which to make additional filings relative to the motion. Plaintiffs did not so act, and instead they sought again to stay all proceedings, to amend their complaint, to urge that the court should not consider the case further, and for discovery. Under these circumstances the court acted within its discretion in denial of this post-judgment relief. Again, it must be observed that the trial court had some three-and-a-half months before the March hearing date set that date for the trial date.
We find nothing in the record wherein the plaintiffs sought additional time to prepare for the hearing on the motion for summary judgment. Instead, before the hearing date the motions were for a stay of the entire proceedings and were not directed to the matter at hand. The plaintiffs did not seek relief under Fed. R.Civ.P. 56(f) which provides that a party may file an affidavit stating why he cannot present facts in response to the motion, and further provides that the court may grant a continuance to.permit the filing of affidavits or to permit discovery. This relief requires that an affidavit be filed stating reasons. This was not done.
We find no post-judgment motions seeking leave to file affidavits or other material to respond to the motion for summary judgment, nor for additional time to do so. The motions were directed in part to discovery matters, which may or may not have been pertinent to the summary judgment hearing, but they were not so presented.
Thus plaintiffs in no way complied with Fed.R.Civ.P. 56 to meet the motion for summary judgment. They filed no affidavits or other material, nor did they in any way demonstrate for the record that an issue of material fact remained. The issues resolved by the summary judgment — that the reservations included oil and gas and that the Section 5 reservation was of the mineral estate — were questions of law.
We have held in a series of cases including Bankers Trust Co. v. Transamerica Title Ins. Co., 594 F.2d 231 (10th Cir. 1979), and Downes v. Beach, 587 F.2d 469 (10th Cir. 1978), that a party against whom a motion for summary judgment is directed cannot rely only upon his pleadings but must make a response. The rule clearly requires a direct response. Thus if the motion is supported as the rule directs and this material constitutes a prima facie showing that summary judgment is warranted, then the opposing party, the plaintiffs here, “must demonstrate, by specific facts, that there is a genuine issue for trial.” Bankers Trust Co. v. Transamerica Title Ins. Co., 594 F.2d 231 (10th Cir. 1979). This is the language of the rule. It requires the plaintiffs to respond “by affidavits or as otherwise provided in this rule ... [to] set forth specific facts.”
As mentioned above, this case had then been pending over a year. Plaintiffs had started it with the Amoco case already underway where the very same issues were being considered, except only the Section 5 reservation. The decision of the trial court in Amoco was known about three months before the summary judgment motion was filed in this case and this was some four months before the trial date.
The plaintiffs urge in this court that they did not have time to meet the motion for summary judgment, and they were busy with the Amoco appeal process. However, we find no abuse of discretion on the part of the trial court in proceeding with the summary judgment when it did.
As mentioned, the plaintiffs filed nothing whatever in response to the motion for summary judgment, and there was nothing but their pleadings. The defendants had submitted as part of their motion affidavits showing their chain of title to the reserved mineral estate and the conveyances were part of the record. Defendants made an adequate showing that the only issues remaining were issues of law, and that the case was suitable for resolution by summary judgment. The trial court determined that there were no unresolved fact questions, and that the legal issues were adequately developed and could and should be decided on the record before it. We agree.
In their estoppel argument the plaintiffs place great reliance on the Colorado case of Radke v. Union Pacific Railroad Co., 138 Colo. 189, 334 P.2d 1077 (1959), which concerned a reservation similar to the Section 5 reservation with which we are here concerned. They urge that collateral estoppel be applied against the defendants on the basis of Radie. We must hold that the doctrine cannot be applied because the reservations are different in a basic and important respect. Further, the Radke case was decided under the real property and conveyancing law of Colorado while the reservation here concerned is to be decided under the property law of Wyoming. See 32 A.L.R.3d 1330.
In the Radke case the reservation did not run to the “successors, grantees, or assigns” of the grantor. This provision is a clear indication that the reservation here concerned would survive assignments and other transfers. Thus in our view the Radke court, which did not have before it the provision as to successors and assigns, decided quite a different case where it held that the reservation there concerned was a revocable license which would also terminate when the surface was transferred.
This Section 5 reservation to successors and assigns when coupled with its exclusive nature and with the absence of conditions or limitations lead to the conclusion reached by the trial court.
Real property doctrines are matters for the determination by the state where the land is located. The Supreme Court in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, stated that “the state where the land is located is ‘sole mistress’ of its rules of real property.” See also Hood v. McGehee, 237 U.S. 611, 35 S.Ct. 718, 59 L.Ed. 1144, and Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65.
The Wyoming courts do not apply the doctrine of collateral estoppel unless identical issues are present. Roush v. Roush, 589 P.2d 841 (Wyo.1979), nor do we. The issues here are not identical and the law of property of Wyoming must be applied. The doctrine of collateral estoppel cannot be applied to the Radke litigation.
AFFIRMED.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the 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_usc1sect
|
51
|
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 45. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
John W. WEBB, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellant.
No. 11462.
United States Court of Appeals Seventh Circuit.
Dec. 29, 1955.
Rehearing Denied Jan. 30, 1956.
William F. Bunn, Chicago, Ill., Herbert J. Deany, Robert S. Kirby, Chicago, Ill., J. H. Wright, Chicago, Ill., of counsel, for appellant.
Robert J. Rafferty, Chicago, Ill., for appellee.
Before MAJOR, LINDLEY and SWAIM, Circuit Judges.
LINDLEY, Circuit Judge.
This is an action under the Federal Employer’s Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries sustained by plaintiff in the course of his employment as a brakeman by defendant, resulting, as he averred, from the negligence of defendant in failing to provide him with a reasonably safe place in which to work. Defendant’s motions for a directed verdict made at the close of plaintiff’s evidence and at the close of all the evidence were denied, as was its alternative motion for a new trial. It appeals from the judgment entered on the verdict in favor of plaintiff, assigning as error the trial court’s action in overruling its motions and in giving certain instructions.
Plaintiff had been employed by defendant in various capacities since about 1925 and was, on July 2, 1952, when the accident occurred, working as a brakeman, being assigned to the crew of a local freight run between the cities of East St. Louis and Clinton, Illinois. During the course of his duties, in a switching operation at Mount Olive, he noticed that a wheat car in the train was leaking. While the other crew members continued with the task of picking up cars to be incorporated into the train, he started back to the caboose to get some waste to plug the hole in the leaking car. He turned and, on the first step he took, tripped and fell with his left leg buckled under him. He thereby sustained a serious injury to his left kneecap. The accident occurred on the roadbed of defendant’s “house track” at a point about one foot from the end of the ties. After plaintiff fell, he looked to see what had caused him to fall and saw a clinker “about the size of my fist” which was partly out of the ground, and a hole beside the clinker. He picked up the offending object and tossed it aside, proceeded to the caboose, procured some waste and plugged the hole in the leaking car. Plaintiff stated that he looked “at the ground” before he stepped but did not see the clinker. He stated further that the footing on the roadbed looked level but was a little soft.
The principal question presented is whether the court correctly ruled that there was sufficient evidence of negligence to require denial of defendant’s motions for a directed verdict and submission of the cause to a jury.
Plaintiff’s testimony that his injury was caused by his stepping on a clinker is not contradicted. We shall assume, for the purpose of this decision, that such an object on or in the roadbed constituted a hazard to defendant’s employees. But to prevail, it was incumbent on plaintiff to adduce evidence that this hazardous condition was produced or was permitted to continue by reason of defendant’s negligence. Moore v. Chesapeake & O. Ry. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547; Eckenrode v. Pennsylvania R. Co., 3 Cir., 164 F.2d 996, affirmed 335 U.S. 329, 69 S.Ct. 91, 93 L.Ed. 41; Delaware, L. & W. R. Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202, 73 L.Ed. 578; Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361. Fault or negligence may not be inferred from the mere existence of the clinker and the happening of the accident. Delaware, L. & W. R. Co. v. Koske, supra; Patton v. Texas & P. R. Co., supra. The employer is not an insurer that the work place be absolutely safe, but is chargeable only with the duty of exercising reasonable care and diligence to see that the place where work is to be performed is reasonably safe for its workmen. Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062; Delaware, L. & W. R. Co. v. Koske, supra; Patton v. Texas & P. R. Co., supra.
Applying these governing principles, we believe the trial court erred in denying defendant’s motions for a directed verdict. The evidence, viewed in the light most favorable to plaintiff, supports the following fact statement. He sustained a serious injury when he stumbled over an unusually large clinker which was embedded, partially at least, in defendant’s roadbed. At the point where the accident occurred defendant maintains its mainline track which runs in a north-south direction. Parallel to, and east of, that track, defendant maintains a second track which is referred to in the record as the passing track. The latter is connected to the mainline by switches and a cross-over track. Ingress to the passing track is gained over a switch, known as the “house track” switch. The section of the passing track south of the switch is known as the house track. East of these installations, and connected thereto by switches and a cross-over track, are certain facilities of the L. & N. Railroad consisting of its mainline and house tracks. Plaintiff was standing on the roadbed of defendant’s house track approximately twenty feet south of the switch when he noticed the leaking condition of the wheat car. The accident occurred at that spot when he turned toward the caboose and took one step. He was regularly employed on the East Saint Louis-Clinton local and worked frequently at this locale. He did not see the clinker before he fell; during cross-examination of plaintiff, the trial judge characterized his testimony as to his knowledge whether, before the accident, the clinker was completely buried in the roadbed in the following language, “It is self-evident that he does not know, if he did not see it.” The physical set-up of defendant’s house track had been altered in June, 1952, when the level of the house track switch had been raised five inches, in this operation the ties and rails were raised and sufficient ballast in the form of fine cinders and crushed stone was employed to raise the switch to the required level and the grade of the connecting rails to a compensating elevation. There was no direct testimony that this operation affected the roadbed at the point where the accident occurred, i. e., twenty feet south of the switch, but, for purposes of this opinion, we assume that it was affected. Some fifteen cubic yards of ballast were required to accomplish the end result. Further weight is afforded to our assumption by plaintiff’s testimony that the footing at that place was level but a little soft. Three different employees testified that they periodically inspected the trackage at this location for defects in the facilities and hazards existing thereon or nearby. One of these witnesses testified that he had, occasionally, discovered large clinkers in the ballast in his territory and had caused them to be removed. Subsequent questioning of the witness elicited the testimony that the “territory” to which reference is made included more than forty miles of defendant’s right of way and mainline. There was no testimony as to conditions at the scene of the accident either before or after the occurrence except plaintiff’s testimony that he stumbled over an unusually large clinker which caused his injury.
To make a submissible case it was incumbent on plaintiff to adduce substantial evidence that defendant either negligently placed the clinker in the ballast or was chargeable with notice, either actual or constructive, of its presence therein. Bevan v. New York, C. & St. L. R. Co., 132 Ohio St. 245, 6 N.E.2d 982. We think his proof fails in this respect. There 'is no evidence as to the agency whereby the hazard was placed in or on the roadbed. Defendant’s lines are in close proximity to and are connected with those of the L. & N. Plaintiff testified that the facilities of the two roads were connected to permit the interchange of freight cars between them. A photographic exhibit which, according to plaintiff’s testimony, substantially represents the conditions at the scene of the accident, reveals several buildings in the near vicinity; there is no evidence to show whether these are the property of defendant or of the L. & N. or of some other stranger to the occurrence. The right of way is not fenced, and is, therefore, accessible to the public; there is no evidence as to whether or not the premises are frequented by strangers. There are no probabilities to be deduced from this evidence. That defendant placed the clinker in its roadbed as a part of the ballast used in the repair operation is merely one of several possibilities present. A finding that it did so can rest on nothing but speculation.
Furthermore, were we to hold that it was proper to permit the jury so to speculate, plaintiff still would not be entitled to recovery unless it was allowed also to speculate that it is negligence per se to allow such an object to become mixed in with the fine ballast used in improving its roadbed. Defendant’s duty to plaintiff in this respect was to exercise the care of a reasonably prudent person, under the existing circumstances, to prohibit the introduction of a hazard into the roadbed where plaintiff was required to work. Cf. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062; Missouri Pac. R. Co. v. Zolliecoffer, 209 Ark. 559, 191 S.W.2d 587, 588. Not only is there no evidence that defendant violated that duty, but also, there is a total want of evidence as to what constitutes reasonable prudence under the proved circumstances.
The record is equally lacking in evidence to prove that defendant had actual or constructive notice of the dangerous condition. The testimony as to actual notice is that no one, plaintiff included, knew of the presence of the clinker until the accident occurred. There is substantial undisputed evidence that this portion of defendant’s right of way was inspected frequently, with a purpose which included the seeking out and removal of such hazards. The evidence is silent as to what standard of care plaintiff was entitled to expect and to rely upon. There is no evidence that defendant was remiss in any respect. There is no proof that its inspection of its premises did not meet the required standard,’ or that' a closer, more thorough, inspection would have disclosed the existence of this hazardous situation.
Plaintiff having failed in his burden of proof, it was error to submit the case to the jury and permit it to reach a verdict by pure speculation. The situation is not unlike that disclosed in Kaminski v. Chicago River & Ind. R. Co., 7 Cir., 200 F.2d 1. Kaminski, while working in the course of his employment on the premises of a customer of the defendant railroad, was seriously injured when he fell into a hole beside an industry track. We found that there was no evidence as to when and through what agency the hazardous condition was created or as to the railroad’s notice, either actual or constructive, of its existence, and held that the trial court erred in overruling the railroad’s motion for a directed verdict. A comparable holding is found in numerous cases involving factually similar situations. See e. g., O’Mara v. Pennsylvania R. Co., 6 Cir., 95 F.2d 762; Bevan v. New York, C. & St. L. R. Co., 132 Ohio St. 245, 6 N.E.2d 982; Spencer v. Atchi-son, T. & S. F. Ry. Co., 92 Cal.App.2d 490, 207 P.2d 126; Waller v. Northern Pacific Terminal Co., 178 Or. 274, 166 P.2d 488; Matthews v. Southern Pacific Co., 15 Cal.App.2d 36, 59 P.2d 220.
The eases on which plaintiff relies are largely inapposite. In each there was evidence from which the jury might reasonably infer that the defendant either negligently created the dangerous agency involved, or was chargeable with notice of the existence of a condition which rendered unsafe the place where the injured employee was required to work. E. g., Brown v. Western Ry. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100; Southern R. Co. v. Puckett, 244 U.S. 571, 37 S.Ct. 703, 61 L.Ed. 1321; affirming 16 Ga.App. 551, 85 S.E. 809; Fleming v. Kellett, 10 Cir., 167 F.2d 265; Waddell v. Chicago & E. I. R. Co., 7 Cir., 142 F.2d 309; Pitcairn v. Hunault, 7 Cir., 86 F.2d 664; Virginian R. Co. v. Staton, 4 Cir., 84 F.2d 133; Smith v. Schumacker, 30 Cal.App.2d 251, 85 P.2d 967, certiorari denied 307 U.S. 646, 59 S.Ct. 1046, 83 L.Ed. 1526; Missouri Pac. R. Co. v. Zolliecoffer, 209 Ark. 559, 191 S.W.2d 587; Tash v. St. Louis-San Francisco R. Co., 335 Mo. 1148, 76 S.W.2d 690; McClain v. Charleston & W. C. R. Co., 191 S.C. 332, 4 S.E.2d 280; Lock v. Chicago, B. & Q. R. Co., 281 Mo. 532, 219 S.W. 919; Holloway v. Missouri, K. & T. R. Co., 276 Mo. 490, 208 S.W. 27. The only case cited which purports to justify an inference of negligence merely from the existence of an obstruction and the happening of the accident is Marcades v. New Orleans Terminal Co., D. C., 111 F.Supp. 650. The case was tried by the court without a jury and the evidence is not reported. Insofar, however, as that decision imposes liability merely because of the existence of a hazard without any evidence as to defendant’s notice, it rests upon a theory of liability without fault and cannot be reconciled with pronouncements by the Supreme Court that the Act does- not make railroads insurers of employee safety. Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062.
Since we are of the opinion that defendant’s motions for a directed verdict should have been allowed, we find it unnecessary to consider other assignments of error. The judgment is reversed and the cause remanded to the District Court with directions to enter judgment for defendant.
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 45? Answer with a number.
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.
In re WHITE HOUSE DECORATING COMPANY, INC., Bankrupt. Charles A. May, Plaintiff-Appellant, v. Richard T. ECKLES, Trustee, Defendant-Appellee.
No. 79-1010.
United States Court of Appeals, Tenth Circuit.
Submitted June 19, 1979.
Decided Sept. 13, 1979.
Richard H. Right, Lowery, Right & Woodrow, Denver, Colo., for plaintiff-appellant.
Benjamin R. Loye, Wheat Ridge, Colo., for defendant-appellee.
Before McWILLIAMS, McKAY and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
This appeal is from a judgment of the district court affirming a bankruptcy judge’s order that denied appellant Charles A. May’s claim of ownership for items of personal property in possession of the trustee.
The bankrupt is White House Decorating Co., Inc., a remodeling and decorating company, which was adjudged bankrupt on June 3,1977. The trustee filed a complaint in bankruptcy court seeking permission to sell items of personal property found on the premises of the corporation. Appellant May, president and owner (with his family) of the bankrupt corporation, filed an answer claiming personal ownership of much of the property. The bankruptcy judge held two hearings and found against May on all but a few of the items. On appeal the district court affirmed, concluding the bankruptcy judge’s findings that May had not met his burden of proof on ownership was not clearly erroneous. The court’s order discusses only the proof concerning the three boats — a 1964 Chris Craft Holiday (Holiday), a 1967 Trojan Cruiser (Cruiser), and a 1974 Chris Craft Jet (Jet) — which had been the subject of most of the evidence and testimony.
We agree that the decision with respect to all of the property except the boats is not clearly erroneous and therefore should not be overturned on appeal. See Potucek v. Cordeleria Lourdes (In re Wilson), 310 F.2d 527, 530 (10th Cir. 1962), cert. denied, 372 U.S. 930, 83 S.Ct. 875, 9 L.Ed.2d 734 (1963). The only evidence of ownership of these other items was the testimony of May and his son. The bankruptcy judge found May to lack credibility, and this finding is to be given great weight. Allen v. Romero (In re Romero), 535 F.2d 618, 622 (10th Cir. 1976). We cannot agree, however, with the decision denying May the boats.
The following documentary evidence of May’s ownership of the boats was submitted to the bankruptcy judge: a 1977 renewal registration for each boat sent to May in his name and at his home address (boats do not have-certificates of title like those required for automobiles, but are subject to registration, renewed annually, with the state motor vehicle department); can-celled personal checks showing May’s payment of $1,000 down on the Holiday (total cost was about $5,000), eight $195 payments on the Cruiser (total cost was about $12,-000), $6,500 on the Jet (total cost was $8,391; May claims the cost was $6,500, but the bill of sale shows $8,391 with $6,500 as the balance); a personal financial statement dated June 25, 1972, showing May as owner of the Cruiser and the Holiday; May’s personal note with the United Bank of Aurora secured by the Cruiser; and the bill of sale, initial registration, and sales receipt for the Jet, all in May’s own name.
The bankruptcy judge, although acknowledging this evidence, made two significant findings. First, he concluded that May had a total disregard for the truth, and the documents were of little value because they were based on May’s self-serving representations. Second, he believed May had disregarded the corporate entity. The judge expressed his suspicion that the funds used to pay for the boats had their source in the corporation. This concern was aggravated by May’s failure to produce a complete set of corporate records, which would have enabled the trustee to trace the funds. Comments in two different orders succinctly state his reasoning:
The Court, after 15 months of listening to Charles A. May, at numerous times, just has no belief in statements that he makes. ... He has a total disregard of truth.
and,
The main concern of this Court is not that the boats are titled to Charles A. May’s name, but the source of the funds to pay the same. When one has control of the books and checks, etc. of a corporation, it is easy to transfer funds to oneself and then pay those funds out and take title in your own name. As the Court stated before the credibility of Mr. May is quite low in its opinion.
The judge, therefore, held that May had not met his burden of proof of ownership.
The standard of review both at the district court and court of appeals level is whether the findings of the bankruptcy judge are clearly erroneous. Potucek v. Cordeleria Lourdes (In re Wilson), 310 F.2d 527, 530 (10th Cir. 1962), cert. denied, 372 U.S. 930, 83 S.Ct. 875, 9 L.Ed.2d 734 (1963). Although we do not question the validity of the findings here, we can question the conclusions the bankruptcy judge drew from his findings. See Washington v. Houston Lumber Co., 310 F.2d 881, 883 (10th Cir. 1962). May has the burden of proving ownership, since he is claiming title against the trustee in bankruptcy who is in possession. Allen v. Lokey, 307 F.2d 353 (5th Cir. 1962).
May’s credibility does not affect the nature of the documentary evidence, which itself is sufficient to meet his burden of proof. The documents, although partially based on May’s own representations and actions, came into being in the ordinary course of affairs and most of them long before the bankruptcy. They are, therefore, credible evidence.
The registrations were in May’s name and contained his home address, not that of the corporation. Not all of the payments can be accounted for on the Cruiser and Holiday, but considering these boats were purchased in 1964 and 1967, ten years or more before this litigation, that is not surprising. The cost of the Jet, the most recent purchase, is accounted for by a personal check for almost all the purchase price, except for what appears to be a trade-in credit. Other evidence — the bill of sale, the financial statement, the personal secured note with the bank — shows that May consistently treated the boats as his own personal property. We are unsure what additional evidence of ownership May could have produced.
The trustee has produced no evidence tending to contradict the purport of these documents. Cf. In re Lux’s Superette, Inc., 206 F.Supp. 368 (D.Pa.1962) (stockholder claimants failed to meet their burden; trustee had shown insurance on the property was in the corporation’s name, the corporation’s financial statement listed the property as an asset, and the property was used in the corporation’s business). The fact the bankruptcy judge considered May to be a liar does not make his unbelieved assertions affirmative proof of the opposite proposition. That the boats were stored on the bankrupt’s premises on the day the trustee took over is not persuasive; the boats were not used in the business, and it is consistent with personal ownership to store such items on the premises of a family-owned corporation.
Both the bankruptcy judge and the district court were greatly influenced by the possibility that May misused corporate funds by taking money from the corporation to make these purchases or to pay boat expenses. But the source of the funds used to pay for the boats does not affect the ownership of the boats, absent a showing that title was intended to be held for the corporation or of a concealment giving false appearances to creditors. No such evidence was presented here. The owners of a closely-held corporation regularly take money from their corporations as salary, dividends or return of capital, and loans. Sometimes the “loan” process is so informal and extensive that the advances are treated by tax authorities as constructive dividends. See Dolese v. United States, 605 F.2d 1146, (10th Cir. August 22, 1979). Occasionally the abuse of the corporate form is so great that the separate corporate existence is ignored entirely for tax purposes, see Pacific Development, Inc. v. United States, 79-1 U.S.T.C. ¶ 9138 (D.D.C.1979), or to allow corporate creditors to reach personal assets of the shareholder. See, e. g., Zaist v. Olson, 154 Conn. 563, 227 A.2d 552 (1967). But see Bartle v. Home Owners Coopera tive, Inc., 309 N.Y. 103, 127 N.E.2d 832 (1955). The bankruptcy court has equitable powers that can properly be used in particular circumstances to subordinate claims of shareholders seeking priority as creditors, see Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); In re Midtown Produce Terminal, Inc., 599 F.2d 389 (10th Cir. 1979), or to set aside a fraudulent conveyance under 11 U.S.C. § 107(d). But in this case no contention is made that the corporate form should be disregarded to allow creditors to reach May’s personal assets, or that the boat acquisitions were a fraud on creditors, nor is May claiming priority as a creditor of the bankrupt. Rather, the issue is whether May has met the burden of proof to show personal ownership of the boats. Once a claimant under a reclamation petition has established ownership, the burden shifts to the trustee to prove why the asset should remain in the bankrupt’s estate. Jackson Sound Studios, Inc. v. Travis, 473 F.2d 503, 505 (5th Cir. 1973). Neither the trustee nor the judges treated this as anything more than a case of failure to prove ownership.
The trustee was frustrated and may have been handicapped in presenting evidence because of the sketchy corporate records turned over to him. Failure to keep or turn over records can be a bar to a discharge in bankruptcy, 11 U.S.C. § 32(c), and can work against the bankrupt when the trustee has the burden of proof. See In re American Packers Exchange, Inc., 449 F.2d 1313 (1st Cir. 1971). But even though a bankruptcy court is a court of equity, equitable considerations do not negate ownership. See Colonial Trust Co. v. Goggin, 230 F.2d 634 (9th Cir. 1955). If we were to permit ignoring uncontradicted documentary evidence of the sort introduced here, we fear we would be placing an impossible burden on claimants in bankruptcy cases.
For the reasons stated, we reverse that part of the trial court’s judgment treating the three boats, and remand for further proceedings consistent herewith.
McWILLIAMS, Circuit Judge, dissents.
. Twenty-one additional $195 payments on the Cruiser were presented at a hearing after the bankruptcy judge’s initial ruling against May, but were not admitted as evidence because May could have but failed to produce them at the first hearing.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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sc_casesource
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158
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
RICHFIELD OIL CORP. v. STATE BOARD OF EQUALIZATION.
No. 46.
Argued October 24, 1946.
Decided November 25, 1946.
Norman S. Sterry argued the cause for appellant. With him on the brief was Robert E. Paradise.
John L. Nourse, Deputy Attorney General of California, argued the cause for appellee. With him on the brief was Robert W. Kenny, Attorney General.
Mr. Justice Douglas
delivered the opinion of the Court.
This case is here on appeal from the Supreme Court of California which sustained a California tax against the claim that it was repugnant to Article I, Section 10, Clause 2 of the Constitution of the United States. Judicial Code § 237, 28 U. S. C. §§ 344 (a), 861a.
Appellant is engaged in producing and selling oil and oil products in California. It entered into a contract with the New Zealand Government for the sale of oil. The price was f. o. b. Los Angeles, payment in London. Delivery was “to the order of the Naval Secretary, Navy Office, Wellington, into N. Z. Naval tank steamer R. F. A. ‘Nucula’ at Los Angeles, California.” The oil was to be consigned to the Naval-Officer-In-Charge, Auckland, New Zealand. Appellant carried the oil by pipe line from its refinery in California to storage tanks at the harbor where the Nucula appeared to receive the oil. When the Nucula had docked and was ready to receive the oil, appellant pumped it from the storage tanks into the vessel. Customary shipping documents were given the master, including a bill of lading which designated appellant as shipper and consigned the oil to the designated naval officer in Auckland. Payment of the price was made in London. The oil was transported to Auckland, no portion of it being used or consumed in the United States. Appellant filed with the Collector of Customs a shipper’s export declaration. It did not collect, nor attempt to do so, any sales tax from the purchaser. Appellee assessed a retail sales tax against appellant measured by the gross receipts from the transaction. The tax was paid under protest, a claim for refund was filed asserting that the levy of the tax violated the provisions of Article I, Section 10, Clause 2 of the Constitution of the United States, and this suit was brought to obtain a refund. The California Supreme Court, one justice dissenting, first allowed a recovery on that ground. 155 P. 2d 1. After a rehearing it reversed its position and held the tax constitutional, two justices dissenting. 27 Cal. 2d 150, 163 P. 2d 1.
I. We are met at the outset with the question whether the judgment of the California Supreme Court is a “final judgment” within the meaning of the Judicial Code § 237, 28 U. S. C. § 344 (a). The case was tried on the pleadings and stipulated facts, a jury having been waived. The trial court found for appellant. The Supreme Court ordered that the judgment “be and the same is hereby reversed.” The argument is that under California law where a judgment has been reversed without directions, there is a new trial; that on a new trial appellant might amend its complaint and produce other evidence; and that if a new trial were had, new or different findings of fact might be made. See Erlin v. National Union Fire Ins. Co., 7 Cal. 2d 547, 61 P. 2d 756.
The designation given the judgment by state practice is not controlling. Department of Banking v. Pink, 317 U. S. 264, 268. The question is whether it can be said that “there is nothing more to be decided” (Clark v. Williard, 292 U. S. 112, 118), that there has been “an effective determination of the litigation.” Market Street Ry. Co. v. Railroad Commission, 324 U. S. 548, 551; see Radio Station WOW v. Johnson, 326 U. S. 120, 123-24. That question will be resolved not only by an examination of the entire record (Clark v. Williard, supra) but, where necessary, by resort to the local law to determine what effect the judgment has under the state rules of practice. Brady v. Terminal Railroad Assn., 302 U. S. 678; Brady v. Southern Ry. Co., 319 U. S. 777. See Boskey, Finality of State Court Judgments under the Federal Judicial Code, 43 Col. L. Rev. 1002, 1005.
This suit is brought under the California Retail Sales Tax Act, § 23 and § 31, which prescribes the sole remedy for challenging the tax. The procedure prescribed is payment of the tax, the filing of a claim for refund which sets forth “the specific grounds upon which the claim is founded,” Cal. Stats. 1941, pp. 1328,1329, and, in case the claim is denied, the institution of a suit within ninety days “on the grounds set forth in such claim.” Cal. Stats. 1939, pp. 2184, 2185. The claim thus frames and restricts the issues for the litigation. Although the Supreme Court reversed the judgment of the trial court without direction, its decision controls the disposition of the case. See Estate of Baird, 193 Cal. 225, 223 P. 974; Bank of America v. Superior Court, 20 Cal. 2d 697, 128 P. 2d 357. Since the facts have been stipulated and the Supreme Court of California has passed on the issues which control the litigation, we take it that there is nothing more to be decided. The jurisdictional objection is thus without merit. See Gulf Refining Co. v. United States, 269 U. S. 125, 136.
II. We turn then to the merits. Article I, Section 10, Clause 2 of the Constitution provides that “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”
The Supreme Court of California held that this provision did not bar the tax because the delivery of the oil which resulted in the passage of title occurred prior to the commencement of the exportation. The court suggested, and the appellee concedes, that a different result might follow if the oil had been delivered to a common carrier; “for then it would have been placed in the hands of an instrumentality whose sole purpose is to export goods, thus indelibly characterizing the process as a part of exportation.” 27 Cal. 2d p. 153, 163 P. 2d p. 3. The court, in reaching the conclusion that the tax was constitutional, rested in part on our recent decisions (particularly McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33; Department of Treasury v. Wood Preserving Corp., 313 U. S. 62; International Harvester Co. v. Department of Treasury, 322 U. S. 340) which sustained the levy of certain state taxes against the claim that they violated the Commerce Clause. The court concluded that if this had been an interstate transaction, it would have been subject to the tax. It saw no greater limitation on the power of the States under Article I, Section 10, Clause 2, than this Court has found to exist under the Commerce Clause.
We do not pursue the inquiry as to the validity of the tax under the Commerce Clause. For we are of the view that whatever might be the result of that inquiry, the tax is unconstitutional under Article I, Section 10, Clause 2. ,
The two constitutional provisions, while related, are not coterminous. To be sure, a state tax has at times been held unconstitutional both under the Import-Export Clause and under the Commerce Clause. Brown v. Maryland, 12 Wheat. 419; Crew Levick Co. v. Pennsylvania, 245 U. S. 292. But there are important differences between the two. The invalidity of one derives from the prohibition of taxation on the import or export; the validity of the other turns nowise on whether the article was, or had ever been, an import or export. See Hooven & Allison Co. v. Evatt, 324 U. S. 652, 665-66, and cases cited. Moreover, the Commerce Clause is cast, not in terms of a prohibition against taxes, but in terms of a power on the part of Congress to regulate commerce. It is well established that the Commerce Clause is a limitation upon the power of the States, even in absence of action by Congress. Southern Pacific Co. v. Arizona, 325 U. S. 761; Morgan v. Virginia, 328 U. S. 373. But the scope of the limitation has been determined by the Court in an effort to maintain an area of trade free from state interference and at the same time to make interstate commerce pay its way. As recently stated in McGoldrick v. Berwind-White Coal Mining Co., supra, p. 48, the law under the Commerce Clause has been fashioned by the Court in an effort “to reconcile competing constitutional demands, that commerce between the states shall not be unduly impeded by state action, and that the power to lay taxes for the support of state government shall not be unduly curtailed.” That accommodation has been made by upholding taxes designed to make interstate commerce bear a fair share of the cost of the local government from which it receives benefits (see e. g. Western Live Stock v. Bureau of Reve nue, 303 U. S. 250, 254-55, and cases cited; McOoldrick v. Berwind-White Coal Mining Co., supra) and by invalidating those which discriminate against interstate commerce, which impose a levy for the privilege of doing it, which place an undue burden on it. Adams Mfg. Co. v. Storen, 304 U. S. 307; Gwin, White & Prince, Inc. v. Henneford, 305 U. S. 434; Best & Co. v. Maxwell, 311 U. S. 454; Nippert v. Richmond, 327 U. S. 416.
It seems clear that we cannot write any such qualifications into the Import-Export Clause. It prohibits every State from laying “any” tax on imports or exports without the consent of Congress. Only one exception is created— “except what may be absolutely necessary for executing it’s inspection Laws.” The fact of a single exception suggests that no other qualification of the absolute prohibition was intended. It would entail a substantial revision of the Import-Export Clause to substitute for the prohibition against “any” tax a prohibition against “any discriminatory” tax. As we shall see, the question as to what is exportation is somewhat entwined with the question as to what is interstate commerce. But the two clauses, though complementary, serve different ends. And the limitations of one cannot be read into the other.
It is suggested, however, that the history of the Import-Export Clause shows that it was designed to prevent discriminatory taxes and not to preclude the levy of general taxes applicable alike to all goods. Support for that is found in the fact that this provision was defended in the Convention and later in the debates on the ground that it protected the inland States from levies by the coastal States through the taxation of exports. Yet that function was only a phase of a larger design. The Import-Export Clause was considered in connection with Article I, Section 9, Clause 5, which provides that “No Tax or Duty shall be laid on Articles exported from any State.” The purpose was to withhold from Congress the power to tax exports, and to deprive any State of the power except with the consent of Congress and even then, it seems, to require the net proceeds to be paid into the federal treasury. A proposal was made to prohibit the States “from taxing the produce of other States exported from their har-bours.” But that suggestion was not followed. The language adopted was supported by Madison “as preventing all State imposts.” The qualified interpretation urged upon us has therefore no substantial support in the history of the Import-Export Clause. Moreover, to infer qualifications does not comport with the standards for expounding the Constitution. As stated by Chief Justice Marshall in Sturges v. Crowninshield, 4 Wheat. 122, 202, “it would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation.” For, as Chief Justice Taney said in Holmes v. Jennison, 14 Pet. 540, 570-71:
“In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added. The many discussions which have taken place upon the construction of the Constitution, have proved the correctness of this proposition; and shown the high talent, the caution, and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or unmeaning . . .”
We cannot, therefore, read the prohibition against “any” tax on exports as containing an implied qualification.
The questions remain whether we have here an export within the meaning of the constitutional provision and, if so, whether this tax was a prohibited impost upon it.
The requirement that foreign commerce be involved (Woodruff v. Parham, 8 Wall. 123, 136) is met, for con-cededly the oil was sold for shipment abroad. The question whether at the time the tax accrued the oil was an export presents a different problem. There are few decisions of the Court under Article I, Section 10, Clause 2, which illuminate the problem. In Brown v. Houston, 114 U. S. 622, Louisiana taxed coal held in that State for sale. After the tax was assessed some of the coal was sold for export. The Court held that the coal when taxed was not an export, saying, pp. 629-30:
“When taxed it was not held with the intent or for the purpose of exportation, but with the intent and for the purpose of sale there, in New Orleans. A duty on exports must either be a duty levied on goods as a condition, or by reason of their exportation, or, at least, a direct tax or duty on goods which are intended for exportation. Whether the last would be a duty on exports, it is not necessary to determine. But certainly, where a general tax is laid on all property alike, it cannot be construed as a duty on exports when falling upon goods not then intended for exportation, though they should happen to be exported after-wards.”
In Coe v. Errol, 116 U. S. 517, the Court had before it a case under the Commerce Clause. Logs, cut in New Hampshire, were being held on a river there for transportation to Maine. New Hampshire’s non-discriminatory tax on them was sustained. What the Court said concerning commerce is what we deem to be the correct principle governing exports: “. . . goods do not cease to be part of the general mass of property in the State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey.” P. 527.
That view has been followed in cases involving Article I, Section 9, Clause 5 of the Constitution, which, as we have noted, prohibits Congress from laying any tax on “Articles exported from any State.” In Turpin v. Burgess, 117 U. S. 504, the Court sustained a federal excise tax on manufactured tobacco. The tax was laid upon the goods before they left the factory. The Court said, p. 507, “They were not in course of exportation; they might never be exported; whether they would be or not would depend altogether on the will of the manufacturer.” The same result was reached in Cornell v. Coyne, 192 U. S. 418, where a federal manufacturing tax on filled cheese was sustained against the claim that it was a tax levied by Congress on exports. The cheese was manufactured under contract for export. The Court said, “The true construction of the constitutional provision is that no burden by way of tax or duty can be cast upon the exportation of articles, and does not mean that articles exported are relieved from the prior ordinary burdens of taxation which rest upon all property similarly situated. The exemption attaches to the export and not to the article before its exportation.” P. 427.
That line has been marked by other decisions under Article I, Section 9, Clause 5 of the Constitution. Thus a federal stamp tax on a foreign bill of lading is a tax on exports, since it is the equivalent of a direct tax on the articles included in the bill of lading. Fairbank v. United States, 181 U. S. 283. The same is true of federal stamp taxes on charter parties made exclusively for the carriage of cargo in foreign commerce, United States v. Hvoslef, 237 U. S. 1, 17, for a tax on those charter parties is “in substance a tax on the exportation; and a tax on the exportation is a tax on the exports.” The same is likewise true of federal stamp taxes on policies insuring exports against maritime risks. Thames & Mersey Ins. Co. v. United States, 237 U. S. 19. The Court stated, p. 27:
“The rise in rates for insurance as immediately affects exporting as an increase in freight rates, and the taxation of policies insuring cargoes during their transit to foreign ports is as much a burden on exporting as if it were laid on the charter parties, the bills of lading, or the goods themselves. Such taxation does not deal with preliminaries, or with distinct or separable subjects; the tax falls upon the exporting process.”
Closer in point is Spalding & Bros. v. Edwards, 262 U. S. 66. It involved a federal tax on baseball bats and balls sold by the manufacturer. A Venezuelan firm ordered a New York commission house to buy a quantity of bats and balls for their account. The New York commission house' placed the order with the manufacturer instructing it to deliver the packages to an exporting carrier in New York for shipment to Venezuela. The goods were delivered to the carrier and an export bill of lading was issued. In due course the goods were transported to Venezuela. The issue, as stated by the Court, p. 68, was “whether the sale was a step in exportation.” The Court pointed out that the goods would not have been exempt from tax while they were “in process of manufacture” though they were intended for export but that they would be exempt “after they had been loaded upon the vessel for Venezuela and the bill of lading issued.” The question was whether the “export had begun.” After noting that title passed when the goods were delivered into the carrier’s hands, the Court stated, pp. 69-70:
“The very act that passed the title and that would have incurred the tax had the transaction been domestic, committed the goods to the carrier that was to take them across the sea, for the purpose of export and with the direction to the foreign port upon the goods. The expected and accomplished effect of the act was to start them for that port. The fact that further acts were to be done before the goods would get to sea does not matter so long as they were only the regular steps to the contemplated result.”
The circumstance that title was in the New York commission house and that it might change its mind and retain the goods for its own use was dismissed by the statement that “Theoretical possibilities may be left out of account.” P. 70. The Court concluded that if exportation was put at a later point, exports would not receive “the liberal protection that hitherto they have received.” P. 70.
This line of cases was summarized in Willcuts v. Bunn, 282 U. S. 216, 228, as construing the constitutional prohibition against federal taxation of exports so as to give “immunity to the process of exportation and to the transactions and documents embraced in that process. . . . Only on that construction can the constitutional safeguard be maintained.”
The fact that delivery to a common carrier for export gave the sale immunity in Spalding & Bros. v. Edwards, supra, is seized upon as stating a rule that the process of exportation has not started until such delivery has been made. And cases like Superior Oil Co. v. Mississippi, 280 U. S. 390, are relied upon as indicating that delivery to the purchaser is not sufficient. That case arose under the Commerce Clause. Mississippi was upheld in its effort to tax a distributor or wholesaler who purchased gasoline and later took it to Louisiana for sale. The Court said, p. 395, that although the course of business indicated the likely destination of the oil, it was “in the hands of the purchaser to do with as it liked, and there was nothing that in any way committed it to sending the oil to Louisiana except its own wishes.” The Court held, therefore, that the tax was not on goods moving in interstate commerce. But it added, p. 396, “Dramatic circumstances, such as a great universal stream of grain from the State of purchase to a market elsewhere, may affect the legal conclusion by showing the manifest certainty of the destination and exhibiting grounds of policy that are absent here.”
The certainty that the goods are headed to sea and that the process of exportation has started may normally be best evidenced by the fact that they have been delivered to a common carrier for that purpose. But the same degree of certainty may exist though no common carrier is involved. The present case is an excellent illustration. The foreign purchaser furnished the ship to carry the oil abroad. Delivery was made into the hold of the vessel from the vendor’s tanks located at the dock. That delivery marked the commencement of the movement of the oil abroad. It is true, as the Supreme Court of California observed, that at the time of the delivery the vessel
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175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_search
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E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" 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". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
INDEPENDENT SERVICE CORPORATION v. TOUSANT et al., Members of Industrial Accident Board.
No. 4034.
Circuit Court of Appeals, First Circuit.
May 4, 1945.
Edward C. Park, of Boston, Mass., and Philip F. Grogan, of Watertown, Mass. (Withington, Cross, Park & Mc-Gann, of Boston, Mass., of counsel), for appellant.
William Gardner Perrin, Asst. Atty. Gen., of Massachusetts (Clarence A. Barnes, Atty. Gen., of Massachusetts, of counsel), for appellees.
Maurice M. Goldman, of Boston, Mass., for Massachusetts State Federation of Labor, amicus curias.
Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.
MAHONEY, Circuit Judge.
This action involves the constitutionality of a Massachusetts statute. It was brought to enjoin the enforcement of § 25D of the Workmen’s Compensation Act, Chapter ,152, Gen. Laws of Massachusetts (Ter. Ed.), as amended by St. 1943, c. 529, § 7, which provides:
“No self-insurer or attorney acting in its behalf shall engage a service company or like organization to investigate, adjust, or settle claims under this chapter or to represent it in any matter before the department. Any violation of this section shall constitute reasonable cause for revocation of the license of a self-insurer under section twenty-five A of this chapter.”
Since November 15, 1943, the effective date of § 25D, the plaintiff has refrained from investigating, adjusting or settling claims for self-insurers, and the Industrial Accident Board has made it clear that it would revoke the license of any self-insurer who employed a service company to engage in such activities under the Act. As a result the plaintiff has lost contracts with self-insurers which would net it $2000 a year. It alleges that § 25D deprives it of liberty and property in violation of the Fourteenth Amendment.
The plaintiff, a Massachusetts corporation, was organized in 1936 as a “service company” to do safety engineering and statistical work. It investigated industrial accidents and advised employers as to methods and appliances designed to prevent such accidents. Among its clients were employers electing not to insure under the Workmen’s Compensation Act, insurance companies, and clients in public liability cases and casualty losses. Its contracts with non-insuring employers provided for the investigating of industrial accidents and the adjusting and settling of those claims. Those contracts alone fall within the prohibition of § 25D. There is no question but that the plaintiff may continue to do safety engineering and statistical work and to investigate industrial accidents for the purpose of preventing future accidents and arranging for medical care required by past accidents.
As originally enacted in 1911, the Massachusetts Workmen’s Compensation Act, as those adopted in other states about that time, was an elective compensation insurance law. In theory it was compulsory upon no one, neither employer, employee, nor insurer. Though elective in form it exerted pressure upon employers to carry compensation insurance by depriving them of certain of their common law defenses in actions brought by employees for personal injury. Since the Act was elective and not compulsory employers could refuse to take out workmen’s compensation insurance. Those employers thereby avoided the cost of insurance premiums which some regarded as too high in relation to the risks involved but retained their common law liability. Some employers who were willing to provide compensation benefits to their employees similar to those they would receive from an insurer under the Act, but directly out of the employers’ funds, developed substitute plans. Under these plans the employer carrying his own risk either provided for the investigating, adjusting and settling of claims within his own organization or employed a service company to do it for him. To insure savings the plans provided for the purchase of some form of stop-loss insurance which would indemnify the employer for any losses or claims paid which exceed a certain percentage of the amount he would have to pay for ordinary workmen’s compensation insurance. The figure fixed is usually 75% of that premium, and thereby the employer immunizes himself against his common law liability. Thus the employer setting up a substitute plan is in a position to limit his maximum cost to that of workmen’s compensation under the Act, and to the extent that the total costs of the service company, losses on claims paid, and the stop-loss insurance premium is less than the normal compensation insurance premium he makes savings and reduces the costs of workmen’s compensation. For example, if we take '100% as the cost of the normal premium the common allocation of costs under the substitute plan may be illustrated as follows: 10% for the service company, 15% for the stop-loss insurance premium, and 75% for the payment of losses. As the latter item is the largest the employer looks to it for savings, and to the extent that the service company keeps the amount of claims paid below the maximum figure not covered by stop-loss insurance the employer makes savings and the service company function is economically justified.
In 1943 the legislature enacted Chapter 529 adding § 25A through § 25D to the Act. This chapter in effect converts the Act from an elective compensation insurance law into a compulsory one by making the provision of workmen’s compensation mandatory with practically all employers. The employer, however, has an option in meeting the costs of compensation either of taking out insurance or acting as his own insurer. § 25A through § 25 C provide for the compulsory payment of compensation by insurance unless the employer elects to become a “self-insurer” under the Act. This he may do by obtaining a license from the Industrial Accident Board and complying with certain requirements respecting the furnishing of security for the payment of compensation to injured employees. The effect of this chapter with respect to the former non-insuring clientele of the plaintiff service company is to bring them and their employees within coverage of the Act but does not require such employers to purchase workmen’s compensation insurance. They may continue to finance the payment of workmen’s compensation out of their own funds, but § 25D precludes their continued reliance on service companies- such as the plaintiff in the investigating, adjusting and settling of claims.
The question to be decided is whether the provisions of § 25D prohibiting contracts between self-insurers and service companies is a reasonable exercise of police power. The plaintiff argues that the statute is arbitrary and discriminatory. It takes, the position that it was pursuing a lawful calling and argues that there is no rational ground for believing that it was reasonably necessary to prohibit self-insurers from employing service companies to accomplish the purposes of the Act as regulation would serve.
In an exhaustive opinion, the lower court considered the plaintiff’s arguments. Independent Service Corporation v. Tousant, D. C., 56 F.Supp. 75. Approaching the question from the standpoint of legislative power over employers who do not have policies of insurance complying with the Act, it noted that it is now well settled that the State has power to create a compulsory insurance system to secure adequate compensation to workmen for industrial accidents ; that instead of exercising that power to the full, the State may choose to allow the employer to remain outside the coverage of the Act providing that he gives up certain relevant rights; that since the legislature can deprive the non-insuring employer of his right to protect himself from liability by securing insurance which does not provide for the payment of compensation benefits “It is no great step from depriving an employer of his right to insure as he pleases to depriving him of his right to use a service company to investigate, adjust or settle claims of employees under the Workmen’s Compensation Act.” [56 F.Supp. 80]. The court below found some authorities who regarded service companies as proper and useful adjuncts to the administration of workmen’s compensation and others who regarded them as detrimental to the interest of employees and the system as a whole. Of the latter it said:
“They assert that a service company plan can survive only if the employer pays out less in settlements than he would have to pay as a premium to an insurance company; that the service company is therefore under an economic inducement to pay workmen low amounts as compensation for their injuries; that this economic inducement is not counterbalanced as in the case of lawyers by the professional discipline of the bar, or as in the case of insurance companies by the supervision of public authorities, or as in the case of settlement departments of the employer’s own business by neighborly sympathy and longstanding ties of mutual interest; and that the low payments under a service company plan not only prevent employees from getting uniform and hence fair compensation but also induce employers either not to join or to withdraw from a broad insurance scheme which would diversify and spread risks and would improve the administration and effectiveness of the Workmen’s Compensation Act.”
The court was of the opinion that m the light of the legislative materials and professional authorities before it the legislature could reasonably conclude that the use of service companies by self-insurers precluded workmen from receiving adequate compensation under the Act. Therefore it held thht the legislature “was not limited to an enactment which merely regulated the use of service companies by self-insurers; it had the power absolutely to prohibit their use,” citing Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Powell v. Pennsylvania, 127 U.S. 678, 685, 686, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Cf. United States v. Carolene Products, 304 U.S. 144, 151, 58 S.Ct. 778, 82 L.Ed. 1234.
The plaintiff contends that the lower court erred in failing to distinguish between self-insurers under a complusory act and non-insurers under an elective act and asserts that the only criticism of service companies before the legislature was directed at their use by non-insurers and is without any relevancy whatsoever with respect to their use by self-insurers under a compulsory act. The plaintiff further contends that the enactment of § 25D rests on the assumption on the part of the legislature that adjustments made by service companies for self-insurers qualified as such under § 25A of the Act would not be subject to the Act and to the supervision of the Industrial Accident Board. We see no merit in these contentions.
In our opinion the analysis of the District Court was correct. It is apparent from legislative history prior to November 15, 1943, the effective date of § 25D, that the use of substitute compensation plans which combined the use of service companies in the investigating, adjusting and settling of claims with stop-loss insurance putting a ceiling upon employers’ losses had been receiving considerable attention from the legislature. Furthermore we are satisfied that the criticism of service companies was not directed solely at their use by non-insurers outside the Act. In 1935 § 54A was added voiding stop-loss insurance policies which did not provide for the payment of compensation under the Act, and it was well understood that if this amendment had succeeded in forcing employers to carry workmen’s compensation insurance the business of service companies to that extent would have been circumscribed. In 1938 the Attorney General acted on complaints of abuses being practised by service companies, and in his report for the year ending November 30, 1938, Public Document No. 12, pp. 8, 9, it was stated that to sell their services service companies promise that the total amount paid to employees will not exceed the amount of premiums the employer would otherwise have to pay if he took out ordinary workmen’s compensation insurance; that they try to get injured workers to sign away their rights for the smallest amount possible, and that workers are generally forced to settle at very low figures, for if they sue at common law they risk losing their positions since the employer must meet adverse judgments out of his own funds and not an insurance company. The legislature had this report before it when it was considering the enactment of § 25D. It also had before it an article in 18 Boston University Law Review 1 (1938), which suggests that the history of the Massachusetts Workmen’s Compensation Act from 1911 until the depression began in 1929 was one of gradual expansion of the number of workmen covered, and that after 1929 the trend was reversed with employers in an effort to reduce expenses withdrawing from the Act to escape the cost of premiums.
In 1938 the legislature set up a Special Recess Commission for the purpose of investigating workmen’s compensation insurance. The report of that commission contained a majority and minority report on the subject of self-insurance revealing a substantial difference of opinion with respect to service companies. The majority thought that substitute compensation plans provided that service companies “would undertake to keep down the claims for injury in a given plant to a minimum through supervision of safety appliances and efficient and prompt attention to all injuries.” It cited testimony that some employers acting outside the Act dealt liberally with employees and paid benefits substantially the same as those provided under the Act and that both employers and employees seemed satisfied. It merely acknowledged the assertion “that costs were kept down through pressure upon employees not to assert claims, and failure to pay benefits as great as those provided for in the Act.” The minority report was far more critical. It provided in part: “When a workman was injured and there was negligence these substitute scheme promoters would then settle with the workers as cheaply as possible under the common law. If there were no negligence, as in 90% of the cases, then they would pay the worker practically nothing, and in many cases nothing, for the loss of a leg or an eye or an arm. Section 54A of the compensation act was passed to stop such substitute schemes. But it did not succeed in doing so. These substitute scheme promoters, therefore, are anxious to have a provision put in the law so that there may be self-insurance, that is, an employer who could pay his workmen directly, and the people who were formerly handling substitute schemes would then be handling the cases for self-insurers.” The period between 1938 and 1943 saw the introduction of numerous bills designed to legalize service companies. None of them became law.
In the light of legislative history and the materials on hand when the legislature considered § 25D, we are satisfied that there was a reasonable difference of opinion as to the place of the service company in the scheme of compulsory workmen’s compensation, and that the legislature could reasonably conclude that the economic pressure upon service companies to keep compensation payments down was so pressing as to constitute them an appropriate object of prohibition when considered in the light of an established public policy that workmen should receive adequate compensation for injuries. Therefore we are not disposed to upset the' conclusion of the legislature that there was something inherently harmful to the interest of workmen in the service company function.
This disposes of the contention of the plaintiff that it was pursuing a lawful calling, the abuse of which it concedes is subject to regulation. It also disposes of the arguments that since the Act is now compulsory and all compensation claims are subject to supervision by the Industrial Accident Board, the Board is in a position- to control abuses; and that if further regulation were necessary the legislature could set up direct controls over service companies and subject them to licensing requirements. Irrespective of the theoretical validity of the arguments they do not necessarily meet the actual problem. From the testimony taken at the trial it appears that more than 95% of all workmen’s compensation claims even under the amended Act are disposed of without close supervision by the Industrial Accident Board. Apparently it was the judgment of the legislature that the economic pressure upon service companies to keep the payments of losses down could not be restrained through regulation by the Industrial Accident Board since the latter dealt primarily with flagrant abuses and would not be a satisfactory control in the great mass of compensation cases.
Nor does the fact that insurance companies apparently may employ service companies without restriction necessarily indicate that § 25D is capricious. Insurance companies are subject to close and complete supervision. Moreover, the profit motive and fear of losses are less apparent. The insurance company may be prepared to pay compensation to the employees of one employer which exceeds the particular premium charged and make up its loss on other risks where compensation payments are less than premiums. It is also to be noted that premium rates are not fixed but adjustable according to loss experience of the risk.
It is clear that the State may require contributions to a state fund as the exclusive method of making payments required by a Workmen’s Compensation Act, Mountain Timber Co. v. Washington, supra; and that the State as a condition to permitting an employer to make such payments as a self-insurer, may prohibit him from insuring with a private company by requiring him either to contribute to a state fund or to act as his own insurer without the security of private insurance, Thornton v. Duffy, 254 U.S. 361, 41 S.Ct. 137, 65 L.Ed. 304. The present act gives the employer the option of taking out ordinary workmen’s compensation insurance or of acting as his own insurer. As a condition to obtaining a license as a self-insurer the Act provides that such self-insurer must not employ a service company. The plaintiff’s final contention is that the legislature has forbidden employers to contract with service companies for the purpose of ultimately driving them to provide for compensation benefits through conventional insurance and that in so doing it has gone too far in abridging freedom of contract. It distinguishes Mountain Timber Co. v. Washington, supra, and Thornton v. Duffy, supra, as dealing with state funds and asserts that the effect of the statute here is to require all employers to insure with private companies. We do not agree.
We have already adverted to materials before the legislature indicating that § 25D was enacted for reasons quite independent of those urged by the plaintiff. Nor are we of the opinion that the practical operation and effect of the statute will exert an unreasonable pressure upon employers, to insure with private companies. The plaintiff assumes that service companies are the sine qua non of self-insurance. Yet it will be conceded that the larger employer who maintains his own service department never has to turn to the service company for the investigating, adjusting and settling of claims against him. Nor are we satisfied that the smaller employer who cannot maintain his own service department is foreclosed from acting as a self-insurer. In this connection the decision of the Supreme Judicial Court in Friend Brothers, Inc., v. Seaboard Surety Co., 316 Mass. 639, 56 N.E.2d 6, 9, 153 A.L.R. 962, is to be noted. In that case the court held that § 54A of the Act which made void stop-loss policies taken out by non-insurers was not applicable to such policies issued to self-insurers under the Act and said:
“We do not believe that this statute,, which, as pointed out in Alecks’ case, supra, was for the purpose of compelling employers to insure under the act, was intended, after they had insured their employees by becoming self-insurers, to make it difficult for them to do so by denying them the right to reinsure. Such a construction would impute to the Legislature an intent to discourage self-insurance and to weaken the financial strength of the self-insurer who seeks by reinsurance to increase it for the benefit of himself and his employees. Where a statute such as St.1943, c. 529, makes it compulsory for one to insure his employees and gives him the choice of either insuring with an insurer or acting as a self-insurer, it would take clear and unequivocal language to convince us that one of these methods was to be regarded with less favor than the other. Such language is not to be found either in c. 529 or in section 54A.”
Section 25D was a part of c. 529. It would also seem therefore that the Supreme Judicial Court was not of the opinion that this section was enacted for the purpose of forcing employers to insure with private companies, or that that would be its only effect.
The judgment of the District Court is affirmed with costs to the appellees in this court.
New York Central R. v. White, 243 Ü.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1, Ann.Cas.1917D, 629; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas. 1917D, 642; Thornton v. Duffy, 254 U. S. 361, 41 S.Ct. 137, 65 L.Ed. 304.
Such as his common law defenses. New York Central R. v. White, supra; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Opinion of the Justices, 309 Mass. 571, 595, 596, 34 N.E.2d 527.
Alecks’ ease, 301 Mass. 403, 17 N.E.2d 173; Opinion of the Justices, 309 Mass. 596, 34 N.E.2d 527.
St.1935, c. 425. In Aleck’s Case, supra, the Supreme Judicial Court states that the reasons for § 54A are plain and points out that the willingness of some employers to risk the enlarged liability of the non-insurer to avoid paying premiums would increase if they could obtain at smaller expense liability insurance against the payment of damages in common law actions; and that “Thus the pressure which was intended to drive all employers into insuring under the Workmen’s Compensation Act would be removed, and the public policy of the Commonwealth that all employers should come under that act would fail.” [301 Mass. 403, 17 N.E.2d 175.]
Commonwealth of Massachusetts, Senate Report No. 456, February, 1939, Report of the Special Recess Commission appointed for the purpose of investigating Workmen’s Compensation, ’Silicosis, and Hazardous Employments, pp. 8-10, 25, 26.
House Bill No. 1765 of 1941 providing for legalization of service companies; House Bill No. 2038 of 1941 which would repeal section 54A and permit the issuance of stop-loss insurance policies; House Bills No. 2818 of 1941 and No. 1030 oí 1943 permitting stop-loss insurance; a substitute proposal identified as House No. 0000, May 4, 1943, expressly legalizing service companies was considered with open hearings by the Committee which reported out the bill that upon enactment became § 25D.
Tie plaintiff cites the decision in Friend Brothers, Inc. v. Seaboard Surety Co., supra, as showing that all sound reasons for opposing the use of service companies by employers had vanished with the amendment to the Act, making provisions for compensation compulsory but offering employers an option to become self-insurers under the Act.
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_appfed
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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 appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. Wilbur G. WARD, Circuit Court Clerk and Registrar, George County, Mississippi, et al., Appellees.
No. 21717.
United States Court of Appeals Fifth Circuit.
May 25, 1965.
Rehearing Denied June 24, 1965.
Peter Smith, Harold H. Greene, Attys., Dept, of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., Jackson, Miss., John Doar, Acting Asst. Atty. Gen., Frank E. Schwelb, Gerald P. Chop-pin, Peter S. Smith, Attorneys, Department of Justice, Washington, D. C., for appellant.
Peter M. Stockett, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., William T. Bailey, Lucedale, Miss., William A. Allain, Asst. Atty. Gen., Jackson, Miss., Joe T. Patterson, Atty. Gen., of State of Mississippi, for appellees.
Before WOODBURY, WISDOM, and BELL, Circuit Judges.
Of the Mrst Circuit, sitting by designation.
BELL, Circuit Judge.
This appeal involves the right of Negroes to vote in George County, Mississippi. It is from an order of the District Court granting only partial relief.
On April 13, 1962, the Attorney General, acting in the name of the United States, filed a complaint against Eldred “W. Green, Circuit Court Clerk and Registrar of George County; and the State of Mississippi, under 42 U.S.CA. § 1971, as .amended by Part IV of the Civil Rights Act of 1957 and Title VI • of the Civil Rights Act of 1960. The complaint alleged that the defendants had engaged in .racially discriminatory acts with respect to voter registration. It was alleged that more stringent standards were applied to Negro applicants for registration than to white applicants, that Negroes were .arbitrarily denied the opportunity to register, that the Registrar failed and refused to afford Negro applicants the isame opportunity to register as was afforded to white applicants, and failed and refused to register Negroes who possessed the same or similar qualifications as white applicants who had theretofore been registered. It was said that these deprivations were pursuant to a pattern and practice. The prayer of the complaint was for findings that the acts and practices described were racially discriminatory, constituted deprivations of the right to vote secured by 42 U.S.C.A. § 1971(a), that such deprivations were pursuant to a pattern and practice, and for injunctive relief.
On April 24, 1962, the District Court restrained defendant Green from applying different and more difficult tests to Negroes than whites, delaying or refusing to register qualified Negroes, requiring Negroes to name members of the county executive committee, the election commissioners and other officials as a part of the test for registration; requiring Negroes to meet with the election commissioners in order to register; and from registering only citizens with whom he was personally acquainted.
After a period of skirmishing through the use of the Federal Rules of Civil Procedure, the defendants filed their answer on December 13, 1962 denying the alleged discriminatory acts and practices, challenging the jurisdiction of the court and the constitutionality of 42 U.S.C.A. § 1971(b), (c), (d) and (e). On January 23, 1964 the defendants filed, without success, separate motions to dismiss the complaint on the ground that the State Board of Election Commissioners had accepted defendant Green’s resignation as registrar on January 22, 1964 and had appointed Wilbur Ward as his successor on the same date.
The case came on for final hearing on January 27, 1964 and the District Court entered its findings of fact and conclusions of law and order on February 19, 1965. Ward had previously been substituted for Green as a party defendant.
The voting age population of George County by race, as of the 1960 census, was 5,276 whites and 580 Negroes. There were 24 Negroes on the voter registration books at the time of the trial. The number of whites on the books exceeded 5,276, no doubt due to a failure to purge the rolls of those who had died or moved away. The most recent reregistration of voters in the county was in 1935. Eight Negroes were registered in that year, two in 1936, one in 1939, one in 1943, one in 1947, one in 1955, five in 1962 and four in 1963. Between 1955 and the entry of the restraining order of April 24, 1962, only one Negro was registered. The Registrar in office for the period 1948 to January 1956 registered 397 whites and one Negro. The Registrar from January 1956 to January 1960 registered 1,349 whites and no Negroes. From the inception of his term in 1960 until he began to retain application forms on May 21,1960, Registrar Green registered 77 whites and no Negroes. At the time of the trial, 685 written applications for registration were on file in the Registrar’s office, dating from May 21, 1960 to December 30, 1963. These show that during the portion of this period ending with the date of the restraining order, April 24, 1963, Mr. Green registered 281 whites and no Negroes, while rejecting two whites and 15 Negroes. After the entry of the restraining order and during the remainder of the period, he accepted 351 whites and 9 Negroes while rejecting 10 whites and 17 Negroes.
Considerable evidence was adduced on the trial demonstrating that illiterate and semi-literate whites were registered-both before and after the date in 1955 when the statutory standards for registration were changed, and after which date a greater degree of literacy was required. Moreover, it was clear that Mr. Green assisted whites in registering but not Negroes. This assistance was in the form of suggestions as to answers, and leniency in grading. Additional discrimination against Negroes came in the form of assigning white applicants sections of the state constitution for interpretation which were simpler in form than those given to Negroes. Negro applicants were told on occasion that the registration books were closed, or that they would have to meet with a committee or simply that they could not register. One Negro applicant was told that he would have to file a statement certifying his desire to register which statement would be presented to the election commissioners. There is evidence that discrimination in the form of assigning Negroes more difficult sections of the constitution transpired even after the entry of the restraining order. For example, 64 percent of the white applicants were assigned § 30 of the constitution, the simplest section of the constitution used by Mr. Green, to interpret while only 24 percent of the Negroes were given this section.
The testimony of Mr. Ward indicates that he intended to conduct the office of Registrar without discrimination. He would strike any white person from the voter rolls who had admitted at the trial that he was unqualified, but he did not plan to investigate unqualified applicants who did not testify at the trial. His purpose would be to follow the Mississippi law in the operation of his office, including the constitutional interpretation requirements. He submitted an affidavit to this court under date of March- 25, 1965 showing that during hife tenure in office 195 people had applied for registration; 191 white and 4 Negroes, and that he had registered 170 of the whites and 2- of the Negroes while rejecting the others. The percentage of the voting age Negroes who were registered had increased from approximately two percent at the time of suit to three percent at the time of trial, a period of nearly two years.
The District Court found as a fact that Registrar Green had desisted from most of his discriminatory practices after the entry of the restraining order, but had continued to illegally assist white registrants, and had wrongfully passed a number of white illiterates. The Registrar was permanently enjoined from discriminating in the administration of the registration law, including the processing, testing, grading and notification of applicants. The use of sections of the state constitution for interpretation was restricted to 25 to be selected by the Registrar and which could be readily understood by the average voter in George County, with the added requirement that the sections be drawn at random by the applicant from a container. No persons were to be registered who could not read and write reasonably well, and who could not give reasonably satisfactory answers to the questions contained on the official application form. No help was to be given to any applicant except as to answering questions regarding the proper use of the form. The Registrar was directed to request the election commissioners to examine the registration records and to expunge the names of all illiterates thereon. The United States was given access to the registration records, and permission to make copies of them every four months during the next ensuing twelve months.
The State of Mississippi was dismissed as a party defendant, and the court failed to make a finding as to a pattern or practice under § 1971(e). This action and inaction of the court is assigned as error. The failure of the District Court to give relief in the form of freezing so as to afford Negro applicants the opportunity to register under the same standards applied to whites already on the voting rolls was also assigned as error. In addition, and this relief was sought for the first time in a proposed decree submitted to the District Court after trial, it is urged that the District Court should have ordered the registration of nine named Negro applicants who had filled out application forms demonstrating that they were as qualified as whites whose applications for registration had theretofore been accepted.
I.
The District Court erred in dismissing the complaint as to the State of Mississippi. The contention that § 601 (b) of the Civil Rights Act of 1960, 42 U.S.C.A. § 1971(c), *****8 either does not authorize suits by the United States against a state, or, in any event is unconstitutional has now been settled by the Supreme Court adversely to defendants. United States v. Mississippi, 1965, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717. The court pointed out that the language of the statute clearly permits the United States to sue a state in a suit such as this, and that the Fifteenth Amendment gave Congress the power to so provide. It was noted that the law for many years has been that the United States may institute proceedings against states to protect federally guaranteed rights of citizens.
This authority is over and above the necessity of joining the state in a suit requesting relief in the form of freezing. See United States v. State of Mississippi (Walthall County), 5 Cir., 1964, 339 F.2d 679; and United States v. Duke, supra.
II.
The District Court also erred in failing to make a specific finding that the disclosed discrimination against Negroes in the voter registration process was pursuant to a pattern and practice. It is now settled that such a finding, where sought, must be made, and may not be pretermitted. This follows from the clear language of the statute, 42 U.S.C.A. § 1971(e):
“(e) In any proceeding instituted pursuant to subsection (c) of this section in the event the court finds that any person has been deprived on account of race or color of any right or privilege secured by subsection (a) of this section, the court shall upon request of the Attorney General and after each party has been given notice and the opportunity to be heard make a finding whether such deprivation was or is pursuant to a pattern or practice. * * * ”
See our express holdings to this effect in United States v. State of Mississippi (Walthall County), supra; and United States v. Logue, 5 Cir., 1965, 344 F.2d 290. See also United States v. Mayton, 5 Cir., 1964, 335 F.2d 153.
In United States v. Fox, 5 Cir., 1964, 334 F.2d 449, and United States v. Logue, supra, we deemed it the better practice to remand for consideration of this question in the first instance by the District Court. However, the appeals there were from motions for preliminary injunction. Here the appeal is from an order entered after a final hearing and we think good judicial administration warrants, if indeed it does not dictate, final disposition in light of the complete record. We hold that the evidence as a matter of law demands a finding that the discrimination here in issue was pursuant to a pattern and practice within the meaning of § 1971(e), supra.
III.
Discrimination having been found in the voter registration process in George County against Negro applicants, and it having also now been held that such deprivation of rights thereunder was pursuant to a pattern and practice, we come then to the question of the relief to be accorded. The United States sought relief in the form of freezing. For a discussion of the freezing principle, see United States v. Duke, supra, and the authorities there cited. We hold that it was error for the District Court not to have granted such relief.
Defendants rely on United States v. Atkins, 5 Cir., 1963, 323 F.2d 733, where this court held that relief by way of the freezing principle would be appropriate only where there was no alternative whereby justice could be obtained, and suggested that purging the registration rolls of improperly registered whites might be such an alternative. See discussion in United States v. State of Louisiana, E.D. La., 1963, 225 F.Supp, 353, 396-397, aff’d, 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709, outlining the deficiencies of purging. Thereafter in United States v. Duke, and United States v. State of Mississippi (Walthall County), both supra, this court invoked the freezing principle to afford relief under circumstances similar to those here-presented. Further light was shed on this problem and principle by the Supreme Court in affirming the freezing relief granted in United States v. State of Louisiana, supra. Justice Black, speaking for the court, said:
“This leaves for consideration the District Court’s decree. We bear in mind that the court has not merely the .power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. * * * ”
We hold that freezing must be invoked in this case on remand in the form and manner outlined in the decree which is to be entered. See Part V, infra.
IV.
We come now to consider whether the court erred in having failed to order the registration of the nine named Negro applicants on the basis of their prior applications in the light of treatment theretofore accorded white applicants. We think the relief to be accorded under the decree that is to be entered on remand is an adequate vehicle for the vindication of the right of the applicants to register and the disposition of this phase of the case is thus left for disposition under that decree.
These applicants may follow the plan promulgated in the decree along with all other Negro applicants who may wish to seek registration. However, their applications should be promptly reconsidered, and they should be registered without delay if they meet the standards set out in the plan.
V.
The United States has submitted a suggested decree at our request for entry on remand. Defendants responded to it at our request, and have filed written objections to some -parts of it. This matter has had our careful consideration, and has been weighed in the balance of the long delay since suit was filed, the discrimination shown in the record, and the relative ease with which the small number of Negroes of voting age in George County (580) may be accommodated for registration. The District Court is directed upon remand to enter forthwith the following judgment in this matter, the form and substance of which is to some extent analogized with our decisions in the Duke and Walthall County cases.
“In accordance with and pursuant to the opinion of the United States Court of Appeals for the Fifth Circuit in the within matter, this court finds that the successive registrars of voters of George County, Mississippi have engaged in acts and practices which have deprived Negro citizens of George County of their right to register to vote without distinction by reason of race, and that such deprivation has been pursuant to a pattern or practice of discrimination against Negro citizens in the registration processes in George County, Mississippi.
“By virtue of and pursuant to the mandate of the United States Court of Appeals for the Fifth Circuit in this cause, it is ordered, adjudged, and decreed by the Court that Defendants Wilbur G, Ward, the State of Mississippi, their agents, officers, employees and successors in office be and each is hereby permanently enjoined from
“1. Engaging in any act or practice which involves or results in distinctions based on race or color between Negro citizens and other citizens in the registration for voting process in George County, Mississippi.
“2. Determining the qualifications of citizens in George County, Mississsippi in any manner or by any procedure different from or more stringent than the following which have heretofore been used by registrars of George County and their agents in determining the qualifications of white applicants:
“(a) He is a citizen and is or will be 21 years of age or older at the time of the next election;
“(b) He, at the time of the next election, has or will have resided in the State two years and in the election district in which he intends to vote one year;
“(c) He embraces the duties and obligations of citizenship as demonstrated by his willingness to take and sign the oath to bear allegiance to the Constitution of the United States and the State of Mississippi; provided, however, that any errors or omissions in filling out or signing the oath on the application form shall not be a basis for rejection, except that an applicant may be rejected if he refuses to sign the oath (or affirmation) after being specifically requested to sign the oath and being shown by the registrar or his agent where to sign;
“(d) He is not disqualified by reason of conviction of a disqualifying crime, insanity or idiocy;
“(e) He is able to demonstrate a reasonable ability to read and write by completion of Questions 1-18 of the application form with assistance by the registrar or his agents, as needed, and as has heretofore been given to white registrants; provided, however, the section of the Mississippi Constitution to be copied shall be selected by lot but in no event shall an applicant be required to copy any section which exceeds four lines as printed in the Mississippi Constitution, Mississippi Code of 1942;
Provided further that no applicant shall be rejected for an error or omission in his application which is not material in determining whether the applicant meets the substantive requirements set out in paragraph 2(a), (b), (c), and (d); nor shall any applicant be rejected for any other error or omission relating to his substantive qualifications as set forth in -paragraph 2(a), (b), (c), and (d) in his application unless such error or omission has been specifically pointed out and explained to him by the registrar or his agent and the applicant refuses to supply the requested information.
“The provisions of this paragraph (2) shall remain in full force and effect until such time as:
“(a) The proper local officials of George County, Mississippi, order an entirely new registration of all voters in George County. No such registration shall take place, however, until the officials conducting the registration shall notify all of the parties to this suit of the requirements, standards, and procedures to be used for such reregistration by the filing of a petition or motion, and until a hearing can be held by this Court and findings made that the requirements, standards and procedures to be used insure that such reregistration will comply fully with the Constitution and laws of the United States and the valid constitutional provisions and laws of the State of Mississippi and that no discrimination by reason of race or color will be made in the administration of the registration procedures in said new registration; In the event of such a new registration, each applicant shall be subjected to the same procedures and be required to meet the same standards as every other applicant without regard to whether or when he had been previously registered to vote; or
(b) It has been shown to the satisfaction of this Court that the effect of the pattern or practice of discrimination against Negroes seeking to register to vote in George County have been overcome. No such showing, however, may be made to this Court until after one year from the entry of this judgment. Any modification of the requirements of this paragraph (2) shall be consistent with the provisions of § 101(a) of the Civil Rights Act of 1964, and any amendment thereto.
“3. It is further ordered that defendant Wilbur G. Ward, his agents, employees, and successors, in conducting registration of voters in George County, Mississippi, are enjoined and ordered to:
a. Afford each applicant for registration an opportunity to apply and complete the application form whether either the registrar or deputy registrar is present; u
“b. Advise each applicant, when he or she applies, whether the applicant is accepted or rejected; if accepted, the applicant must be registered at that time; If rejected the applicant must be informed of the reason or reasons for his rejection and must be advised of his right to apply directly to this Court to be registered as provided in paragraph (4) hereof.
“c. Receive and process each applicant as expeditiously as possible to the extent that the physical facilities of the registration office permit but in no case less than three applicants at one time and in no case refuse to process fewer than three applications at one time. The office of the registrar shall be open during the office hours observed by defendant Ward in his capacity as the clerk of the courts of George County for registration from Monday through Friday of each week except on holidays during the twelve month period following the entry of this order.
“4. Any applicant for registration hereafter rejected or not given the opportunity to apply by the defendant Ward, his agents, employees, or successors, may in accordance with 42 U.S.C. 1971 (e) apply to this, court, or to a voting referee to be appointed by and in the discretion, of this court no more than 20 days after receipt by the court of the first application, to have his qualifications determined. The court or such referee shall register all such applicants who meet the standards established in this order.
“5. It is further ordered that the defendant Ward, his agents, employees, and successors in office shall file a written report with the clerk of this Court and shall mail a copy thereof to the Plaintiff’s attorneys on or before the fifth day of each month. Said reports shall contain the name and race of each applicant for registration from the previous monthly period, the date of the application, the action taken on the application, and if the applicant is rejected, the specific reason or reasons for rejecting the application. The first of such reports shall be submitted on the fifth day of the month following the date of this order and shall cover and include the aforementioned information for the period from the date of the last application form, presented at the trial of this case on January 27 and 28, 1964, through the month immediately preceding the issuance of the first report: Provided however that defendant Ward shall be allowed twenty days from the date hereof to file the first report in the event twenty days would not be available otherwise under the provisions of this paragraph.
“6. The defendant Ward, his deputies, agents, and successors in office shall, until further order of this Court, make the registration records of Getirge County, Mississippi available to attorneys or agents of the United States at any and all reasonable times in the circuit clerk’s office in Lucedale for the purpose of inspection, copying, and photographing.
“7. Jurisdiction is retained of this cause for all purposes and especially for the purpose of issuing any and all additional orders as may become necessary or appropriate for the purposes of modifying and/or enforcing this order.
“8. Costs in this Court are awarded to plaintiff.”
Reversed and remanded for further proceedings not inconsistent herewith.
. These facts should he considered in the light of the progressively more onerous requirements for registration under the Mississippi law. See United States v. Duke, 5 Cir., 1964, 332 F.2d 759, for a summary of these requirements. The facts of this case demonstrate that Negro applicants have made little progress toward registration whatever the requirements.
. In pertinent part:
“* * * Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such ofiicial has resigned or has been relieved of his ofiice and no successor has assumed such oflice, the proceeding may be instituted against the State.”
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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songer_weightev
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Appellee, v. David Bernard BARASH, Appellant.
No. 459, Docket 30432.
United States Court of Appeals Second Circuit.
Argued June 24, 1966.
Decided Aug. 3, 1966.
Louis Bender, New York City, Lloyd A. Hale, New York City, of counsel, for appellant.
Robert L. King, New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York; Neal J. Hurwitz, John E. Sprizzo, Asst. U. S. Attys., of counsel), for appellee.
Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
FRIENDLY, Circuit Judge:
A grand jury in the District Court for the Southern District of New York returned a rather confusing 32 count indictment against David Bernard Barash, a certified public accountant and attorney, relating to improper payments to internal revenue agents in connection with their office audit examinations of income tax returns of Barash’s clients. Counts . 1-12 charged him with giving money to Agents Clyne, Montello and DeSibio in 1960, 1961, 1962 and on January 18, 1963, with intent to influence their official acts in violation of 18 U.S. C. § 201, and counts 13-16 charged him with gifts to Agents Clyne, Montello, Wolf and an agent subsequently identified as Coady for a similar purpose later in 1963 in violation of 18 U.S.C. § 201 (b) as the statute now stands. Counts 17-20 charged him with making the same gifts alleged in counts 13-16 for and because of the agents’ official duties, in violation of 18 U.S.C. § 201(f), added in the amendment of October 23, 1962, which became effective 90 days after passage. Finally counts 21-32, which related to the same payments alleged in counts 1-12, charged him with aiding and abetting Clyne, Montello and DeSibio in receiving illegal fees for the performance of their duties in violation of 26 U.S.C. § 7214(a) (2). After trial before Judge MacMahon and a jury, Barash was acquitted on the six counts relating to Montello and Wolf but found guilty on the twenty-six (involving thirteen transactions) which concerned Clyne, DeSibio and Coady. He was sentenced to imprisonment of a year and a day on each count, the sentences to run concurrently.
Thé Government’s case was presented through the agents. Clyne and DeSibio had pleaded guilty to offenses charged in the instant indictment and to others; Coady had been operating in an undercover capacity. Clyne, who was the receiving party in ten of the thirteen incidents resulting in convictions, testified to a pattern of conduct substantially as follows.: Barash would inform Clyne of clients who had received “call-in” letters instructing them to appear for audit of their returns before the group of agents that included Clyne. In violation of office procedures Clyne would obtain the returns and related papers from his supervisor’s file and assign the audits to himself. Barash would suggest relatively small disallowances in unsubstantiated deductions for travel and entertainment expenses, and would offer Clyne compensation for thus passing the returns. When Clyne obliged, Barash would make payments ranging from $20 to $50 per return. DeSibio, who figured in two incidents in 1961, gave similar testimony except that he did not say Bar-ash had taken the initiative in getting the audits assigned to him. Coady testified that in July 1963 Barash, after being introduced to him by a fellow-employee, Jeanne Lupescu, asked if Coady could get a tax return from the files and assign it to himself; when Coady answered in the affirmative, Barash furnished him the details, requested a “no-change” report the next day and, on Coady’s assent, said he had an envelope for him and shortly returned with one containing $50.
The theory of the defense was that Clyne and DeSibio had implicated Ba-rash in order to get favorable consideration as to their sentences for other crimes, and that Coady had distorted an incident that was wholly innocent. Ba-rash denied offering anything to the agents in connection with the audits, although he admitted having given Christmas presents of $25 or $50 to Clyne in 1960,1961 and 1962 and making a $50 payment in January 1963, having DeSibio to lunch, and having made a $50 gift to Coady in appreciation of the latter’s expediting the audit and in response to a remark, admittedly made by Coady, that he was soon going off to Marine Corps summer camp. Barash also testified as to pressure from Clyne, beginning with a mild suggestion on an audit in the spring of 1961 and mounting in intensity thereafter, all of which Clyne had denied on cross-examination, and was again to deny on rebuttal.
Barash raises many claims of trial error; the Government defends the judge’s rulings and instructions and argues in the alternative that any error can be quarantined to particular counts and is immaterial in view of the concurrent sentences. See Lawn v. United States, 355 U.S. 339, 359, 362, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). However, as Judge Clark made clear for us, the doctrine of the one good count is not a fetish; we must inquire whether “the nature of the error committed below or other circumstances suggest that the accused might have received a longer sentence than otherwise would have been imposed, or that he has been prejudiced by the results of the proceedings.” United States v. Hines, 256 F.2d 561, 563 (2 Cir. 1958).
We begin with the two counts relating to Coady, the single agent whose slate was clean and whose testimony may thus have carried particular weight. Cross-examination had emphasized that Barash had given him $50 only after the audit had been concluded and therefore could not have intended the payment to influence any action on his párt. The Government sought to counter this by asking Coady on redirect whether prior acts had led him to believe he would be paid. He mentioned three— the suggestion that he pull the return and assign it to himself, the request for a no-change without substantiation, and, over objection, the introduction of Ba-rash to him by Jeanne Lupescu “because Miss Lupescu had never introduced me to anyone except someone who was going to pay me off.” Granted that a promise to pay can be conveyed only by a wink of the eye, it is questionable whether even if all this evidence were properly received, the Government made out enough to go to the jury on the bribery count with respect to Coady. But the testimony as to Lupescu should not have been admitted. Its hearsay nature, which would have been obvious if Coady had said Lupescu had told him that Barash had previously paid her or other agents and thus was an accountant of the paying kind, was not removed because she conveyed her meaning without the use of words. The guiding principle was stated long ago by Baron Parke in the leading case of Wright v. Tatham, 7 Ad. & E. 313, 388-389, 112 Eng.Rep. 488, 516-17 (1837):
“ * * * proof of a particular fact which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible.”
See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 190-192 (1948); McCormick, Evidence § 229 (1954), and cases cited. The Government, not seriously challenging this, argues that the evidence was nevertheless admissible since, without regard to the truth of the implicit assertion, it showed that when Coady dealt with Barash, he expected to be paid. It is true enough that evidence admissible for one purpose is not rendered inadmissible “because it does not satisfy the rules applicable to it in some other capacity and because the jury might improperly consider it in the latter capacity,” and that under such circumstances the opponent of the evidence will not- prevail by interposing a general objection and is entitled only to a limiting instruction on timely request. 1 Wigmore, Evidence § 13, at 300 (3d ed. 1940); Malatkofski v. United States, 179 F.2d 905, 914 (1 Cir. 1950); United States v. Smith, 283 F.2d 760, 764 (2 Cir. 1960), cert. denied, 365 U.S. 851, 81 S.Ct. 815, 5 L.Ed.2d 815 (1961); United States v. Mont, 306 F.2d 412, 415-416 (2 Cir.), cert. denied, 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272 (1962). But here Coady’s state of mind was irrelevant unless induced by Barash, a fact as to which the Lupescu story was hearsay; it was thus inadmissible for any purpose. Since the evidence was highly material and the jury cannot realistically be supposed to have considered it only in relation to the bribery count, the convictions on both Coady counts would have to be reversed if they stood alone.
Another error occurred in the course of cross-examination of Clyne. When defense counsel asked if he had ever threatened Barash, Clyne answered in the negative. Counsel then proceeded to cross-examine on the basis of tape recordings, furnished to him by the Government, which Coady had made of a “bull-session” at a hotel between himself, Clyne and another corrupt agent, wherein Clyne frankly revealed his practice of putting pressure on accountants to pay off. In sharp contradiction of what Clyne had just testified and in support of what Barash was later to testify, counsel developed, without objection, that Clyne boasted of having told Barash he was “getting away with murder”; that on discovering Barash was trying to have some audits done without paying off, Clyne told him he had cut his throat in Clyne’s group; that he complained of how in another case Barash had beaten him out of fifty dollars, and on this or another occasion Clyne had asked $150 but got only $100; and that he had compared Barash unfavorably with Eugene Kenner, see 354 F.2d 780, who “when he comes in on a case, you never have to ask him.” Inexplicably a question whether Clyne remembered having told Coady “you get your money’s worth with Gene Kenner; you’ll get robbed * triggered an objection. The judge sustained this, saying, in the presence of the jury, that he had been waiting for it all afternoon and that if the Assistant United States Attorney had objected earlier, “We might have saved an awful lot of time.” Defense counsel then asked whether Clyne told Coady “about a particular case that you had where you set the taxpayer up by being very tough on the audit. * * * ” At this point the judge asked counsel to approach the bench, said the court had been very patient with him all afternoon, admonished that the tape could be used only for impeachment, and concluded “you are needlessly prolonging this cross-examination by going into all this stuff and you are not using it for the purpose of impeachment. Now, cut it out!”
Impeachment was the precise enterprise in which defense counsel had been properly engaging, and to good effect. Clyne had denied ever having any trouble with Barash, ever trying to get money from him, ever saying Barash would be subjected to delays, and ever stating that Barash had cut his own throat by failing to pay an agent in the group. Quite apart from possible relevancy on the issue of intent to bribe, Clyne’s making of unsuccessful threats and his dislike of Barash were pertinent on the score of bias, and self-contradiction could properly be shown. 3 Wig-more, Evidence §§ 1021, 1022. Indeed, so far as concerns cross-examination as distinguished from extrinsic proof, impeachment as to prior inconsistent statements is proper even with respect to “collateral” matters “which the witness has testified to on direct or cross.” McCormick, Evidence § 36; 3 Wigmore, Evidence § 1023. For the defense to establish that Clyne had lied about not making threats would have an importance transcending that particular issue; the jury might well have concluded that, having lied on one subject, he had lied on all.
If the judge had followed his own bent and prevented any cross-examination as to the tapes, the convictions on the twenty counts relating to Clyne would surely have to be reversed. However, due to the United States Attorney’s lack of objection, defense counsel was able to get a large amount of the recordings before the jury — enough to include the point in his summation. Under such circumstances we would normally decline to entertain a claim of erroneous exclusion of evidence in the absence of an offer of proof that would enable us to determine whether the evidence was relevant and more than cumulative. See Wigmore, Evidence § 20, at 357 n. 6; F.R.Civ.P. 43 (c); Price v. United States, 68 F.2d 133, 134-135 (5 Cir.), cert. denied, 292 U.S. 632, 54 S.Ct. 640, 78 L.Ed. 1486 (1934); Davis v. R. K. O. Radio Pictures, Inc., 191 F.2d 901, 903-904 (8 Cir. 1951). But we are not disposed to be thus insistent when an attorney who, while pursuing an appropriate line of cross-examination in a criminal trial, has been curtly commanded to “cut it out.” Moreover, the judge’s remarks on sustaining the first objection and on rebuttal, see fn. 6, in effect instructed the jury to disregard the impeaching evidence that had already been elicited.
We also think the charge was in error, in two respects. Although the instruction that only a threat of death or serious bodily injury would make out the defense of duress appears correct enough, cf. D’Aquino v. United States, 192 F.2d 338, 358-359 (9 Cir.), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1951); ALI, Model Penal Code § 2.09 (Proposed Official Draft 1962), that was only part of the story since Barash had also requested instructions as to the bearing of threats of economic harm on the intent required for conviction. This court has recently observed that “The intent to influence, accompanying the corrupt giving or accepting of something of value, is an essential element” of the offense of bribery defined in 18 U.S.C. § 201(b), United States v. Irwin, 354 F.2d 192, 197 (2 Cir. 1965), cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966). We think that if a government officer threatens serious economic loss unless paid for giving a citizen his due, the latter is entitled to have the jury consider this, not as a complete defense like duress but as bearing on the specific intent required for the commission of bribery. Cf. United States v. Miller, 340 F.2d 421, 425 (4 Cir. 1965). While it is arguable that this is also true with respect to giving gratuities under 18 U.S.C. § 201(f), or to being an accessory to the receipts prohibited by 26 U.S, C. § 7214(a), offenses which have no requirement of specific intent, see United States v. Irwin, supra, 354 F.2d at 197, and carry a significantly lower punishment, we incline to the view that as to these offenses economic pressure is irrelevant.
The other error also relates to the bribery counts. After correctly instructing that the Government must prove “money was offered or promised or given knowingly and wilfully with a corrupt intent to influence” the employee, and that this may be proved not only by what was said by the accused “but also from his acts and conduct and the circumstances and reasonable inferences to be drawn from them,” the judge went on to say:
“It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done. So unless the contrary appears from the evidence, you may draw an inference that the defendant intended the natural consequences which one standing in his circumstances and possessing his knowledge should reasonably have expected from any of his acts which he knowingly did.”
He continued that if the jury found “circumstances of secrecy or intrigue or of the deviousness or of the use of cash or attempts to conceal the real nature of the acts or transactions,” it might consider these as bearing on the defendant’s criminal intent.
Despite its ancient vintage, see Agnew v. United States, 165 U.S. 36, 53, 17 S.Ct. 235, 41 L.Ed. 624 (1897), utterance of the quoted platitude serves no useful purpose, since insofar as the statement has logical validity the jury would know it anyhow; more important, in a bribery case it creates a serious risk that the jury might think the Government’s burden of showing the required specific intent could be met by proof of payment alone “unless the contrary appears from the evidence”- — -presumably evidence the defense would have to present. Many courts of appeals' have looked askance on such an instruction in criminal trials, and some decisions have reversed because of its use, Bloch v. United States, 221 F.2d 786, 788-789 (9 Cir. 1955); Chappell v. United States, 270 F.2d 274, 279 (9 Cir. 1959); Mann v. United States, 319 F.2d 404, 407-410 (5 Cir. 1963), cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964). Although others have held reversal was not required when the instruction as a whole sufficiently insured against the jury’s being misled, Sherwin v. United States, 320 F.2d 137, 148-151 (9 Cir. 1963), cert, denied, 375 U.S. 964, 84 S.Ct. 481, 11 L.Ed.2d 420 (1964); Estes v. United States, 335 F.2d 609, 615-617 (5 Cir. 1964), cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1965); United States v. Denton, 336 F.2d 785, 788 (6 Cir. 1964); United States v. Releford, 352 F.2d 36, 40 (6 Cir. 1965), cert. denied, 382 U.S. 984, 86 S.Ct. 562, 15 L.Ed.2d 562 (1966), we are not satisfied that was the case here. On the contrary, when this instruction was combined with the charge on duress and the judge’s observation that “One of the purposes of the bribery laws is to nip corruption in the bud, and citizens are obliged in such circumstances not to go along with a crime, but to complain about it to the proper authorities,” the jury could well have thought that the Government satisfied. its burden under the bribery counts by proof of payment alone.
It follows that the convictions on all the bribery counts, 1-6, 8-12, 14 and 16, are subject to reversal for the last mentioned error in the charge; that the convictions on the Clyne bribery counts relating to payments after threats of serious economic harm, namely, 2, 11, 12 and 14, are further subject to reversal for failure to instruct that the jury could consider threats of this as bearing on specific intent to the extent indicated above; that the convictions on all the Clyne counts, namely, 1-6, 9, 11, 12, 14, 18, 21-26, 29, 31 and 32, are subject to reversal for erroneous restriction of cross-examination; and that the convictions on the Coady counts, 16 and 20, are subject to reversal for the erroneous admission of the statement concerning Lupescu. This leaves only two counts, 28 and 30, charging Barash with aiding and abetting DeSibio in the receipt of two payments of $25. We are dealing here with an attorney and certified public accountant of hitherto unblemished reputation, vouched for, among others, by the Surrogate of Westchester County, a Justice of the Supreme Court of New York, and the County Executive of Westchester. We are far from being certain that the restriction and deprecation of the impeachment of Clyne, the chief Government witness, and the admission of the Lupescu hearsay statement in the testimony of Coady, the undercover agent, did not have a spill-over effect on the DeSibio counts; that the jury might not have exercised its prerogative of leniency if these charges alone had been before it; or that the judge would have given the same sentence for convictions on these two aiding and abetting counts as he did for those on the twenty-six, including convictions for bribery. Applying the rule of United States v. Hines, supra, 256 F.2d 561, we think our duty to “require such further proceedings to be had as may be just under the circumstances,” 28 U.S.C. § 2106, demands a reversal and a remand for a new trial.
Reversed.
. So far as concerns the offense of bribery, the amendment effected by 76 Stat. 1119 (1962) was only a rewording and made no change of substance.
. Specifically Barash testified that in November 1961, on the audit of the returns mentioned in counts 11 and 31, Clyne refused to loot at his substantiation, saying that unless he were paid from $100 to $200 per audit, Barash would never get a ease approved in Clyne’s group and Clyne would “louse” him up in other groups; and in the summer of 1962, Clyne said “You cut your throat in this particular group, and as far as I am concerned, you may have cut it in other groups.”
. An additional claim, that a payor to an internal revenue officer cannot be an aider and abettor of the latter’s violation of 26 U.S.C. § 7214(a), is foreclosed by United States v. Kenner, 354 F.2d 780, 785 (2 Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966). On its facts the Kenner decision would also rule out a claim that the Government may not proceed against a payor both as a principal under 18 U.S.C. § 201 and as an aider and abettor of a violation of 26 U.S.C. § 7214(a). The point, however, was not raised or discussed in Kenner, and has likewise not been raised in this case. We thus have no occasion to consider whether Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), is applicable to offenses such as those here at issue.
. We therefore need not consider defendant’s further complaint as to the charge on entrapment by Coady. Although what the judge said as to burden of proof was indeed in conflict with our decisions in United States v. Sherman, 200 F.2d 880, 882-883 (2 Cir. 1952), and United States v. Pugliese, 346 F.2d 861, 862-863 (2 Cir. 1965), it is questionable whether there was any showing of inducement sufficient to raise the issue. Cf. United States v. Riley, 363 F.2d 955 (2 Cir. 1966).
. “Throat” and “dollars” were preceded by an adjective that in former days would have been characterized as “unprintable.”
. When Government counsel returned to the subject on redirect and asked Olyne what he meant by saying he made a “charge” with respect to a return, the judge interrupted and “sustained” his own objection, saying “I have told both of you, and I will now charge the jury— maybe I will get it home to counsel — that even if he did charge, even if he did demand the money, that would not constitute an offense as charged unless he put the defendant in serious threat of bodily injury or death. Now, that is the law. So let us have no more of this wandering all over Robinson’s barn on the business of whether he charged or whether he asked for it. That is of no moment.” Defense counsel excepted. Irrespective of whether this is “the law” the judge’s remarks improperly ignored and told the jury to ignore the testimony as impeachment.
. The statute, 18 U.S.C. § 201, provides:
“(b) Whoever, directly or indirectly, corruptly gives, offers or promises anything of value to any public official * * * with intent—
(1) to influence any official act; or
(2) to influence such public official * * * to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(3) to induce such public official * * * to do or omit to do any act in violation of his lawful duty, * *
Shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both. * * * ”
The case put would plainly not come under subdivisions (2) or (3) and a jury could conclude that a payment solely to eliminate a roadblock to what a citizen is entitled is not to “influence” any official act.
. “(f) Whoever, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official * * *
Shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”
. Due exception to this was taken.
. We may as well express our views as to one matter that will probably arise on such a trial. Clyne was allowed to state, over objection, that in August 1960 Ba-rash had arranged for him to receive ten “call-in” letters, and that he obtained the returns and related papers, assigned the audits to himself, went to Barash’s office for the audits and, after completing them, received $225. The objection was that since only three of these returns figured in the indictment — the Government having been unable to identify the others — -the prosecution had been improperly allowed to introduce evidence of other crimes. As explained in our recent opinion in United States v. Bozza, 365 F.2d 206, 212-214 (1966), the rule applied on this subject in the federal courts does not require any such artificial truncation of a single piece of evidence.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_state
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19
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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".
Marta CARBONELL, Plaintiff-Appellant, v. LOUISIANA DEPT. OF HEALTH & HUMAN RESOURCES, Secretary of the Louisiana Dept. of Health & Human Resources, et al., Defendants-Appellees.
No. 85-3088
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Oct. 3, 1985.
Marta Carbonell, pro se.
Antonio L. Carbonell, New Orleans, La., for plaintiff-appellant.
Jesse James Marks, Asst. Atty. Gen., Dept, of Justice, New Orleans, La., for defendants-appellees.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
POLITZ, Circuit Judge:
Marta Carbonell appeals the dismissal, after a bench trial, of her complaint invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. The parties agreed to a trial before a magistrate with direct appeal to this court, 28 U.S.C. § 636. Finding no merit in any claim presented, we affirm the dismissal for the reasons we set forth.
Facts
Carbonell is a native of Cuba. She was employed by the state of Louisiana in various capacities. Her last assignment was with the Louisiana Department of Health and Human Resources (DHHR) as a Clinical Social Worker V, in the New Orleans Substance Abuse Clinic. As the second highest employee in that clinic, Carbonell was the chief social worker and supervised the Spanish-speaking program, day and evening supervisors and Spanish personnel. It is apparent that personal friction existed between Carbonell and her immediate supervisor, Adrienne Mouledoux, the district administrator.
Beginning in 1976 Carbonell filed various complaints with the Equal Employment Opportunity Commission (EEOC). The first complaint was against Mouledoux and raised claims of discrimination based on national origin. Subsequent complaints charged retaliatory acts allegedly triggered by the EEOC filings. Matters worsened until Calvin Bankston, head of the DHHR Bureau of Substance Abuse, determined to solve his department’s serious personnel problem by separating the protagonists. He reassigned Carbonell from the New Orleans Substance Abuse Clinic to a newly designated Substance Abuse Clinic in neighboring St. Bernard Parish. Carbonell was assigned to the new clinic as its administrative head and was told to report for duty on August 21, 1979. Carbonell declined, considering this transfer discriminatory, retaliatory, and tantamount to an assignment to “Outer Mongolia,” a characterization not likely shared by the thousands of residents of St. Bernard Parish.
In lieu of reporting to St. Bernard on August 21, 1979, Carbonell visited the EEOC office, filed a complaint, and then went to the New Orleans clinic. She was instructed to declare in writing whether she would accept her new assignment. By day’s end on August 21, Carbonell delivered a letter to Mouledoux stating that she was “herewith declining the assignment and taking the proper legal action.”
On August 22, 1979, Carbonell called Bankston and told him of her refusal to obey his transfer order. Bankston placed Carbonell on a three-day suspension without pay for insubordination and orally ordered her to report to the St. Bernard clinic on August 27. On August 24, Carbonell was given a written confirmation of the suspension and directed in writing to report to St. Bernard on August 27.
Carbonell responded to the suspension by amending her EEOC charge to include a claim that the transfer was in retaliation for her EEOC filing. Instead of reporting to St. Bernard on August 27, Carbonell opted to again report to the New Orleans clinic. Early that morning her husband delivered a letter to Mouledoux’s home, addressed to Bankston, in which Carbonell repeated her charge that the transfer was arbitrary, illegal, abusive, and in retaliation for filing EEOC complaints. She again declined to report to St. Bernard and stated that at 10:30 a.m. she would be at the New Orleans clinic.
When Carbonell arrived at the New Orleans clinic on August 22 she was met by Bankston who urged her to consider the seriousness of her refusal to accept the reassignment. Bankston again ordered her to report to St. Bernard. Carbonell refused. Later that day she was given a letter of removal which she promptly appealed to the Louisiana Civil Service Commission (CSC).
The CSC appointed a referee who conducted public hearings on August 11-13, 1980; April 20-24, 1981; May 26-29, 1981; and June 8-9, 1981. The CSC affirmed the DHHR removal. On appeal, the Louisiana Court of Appeal for the First Circuit affirmed the CSC decision. Carbonell v. Dept. of Health & Human Resources, 444 So.2d 151 (La.App.1983).
After her dismissal, Carbonell again amended her EEOC complaint to charge that the dismissal was retaliatory. The EEOC declined to press the matter and issued the statutory right-to-sue letter. Carbonell filed the instant suit claiming, as above noted, Title VII, § 1981, and § 1983 violations.
A bench trial before the magistrate lasted a week. At the outset of his memorandum opinion the magistrate stated:
If this Court were to make findings of fact based upon the evidence presented and testimony offered at trial, they would be identical to those facts set forth by the First Circuit Court of Appeal in its decision. This Court hereby adopts the findings of the state appeals court as its own. Carbonell v. Dept. of Health and Human Resources, No. 83-0186 [444 So.2d 151] (La.Ct.App. 1st Cir., Dec. 22, 1983).
After making these factual findings by reference and adoption, the magistrate proceeded to dismiss all claims. The Title VII claims against all individual defendants were dismissed because they were not the employer and Title VII was not applicable to them. The Title VII complaint against DHHR was dismissed on grounds of res judicata. The § 1981 claim was dismissed for failure of any evidence of intent to discriminate against Carbonell on the basis of national origin. Finally, as to the § 1983 claim, the magistrate found that Carbonell was inappropriately attempting to appeal a decision of the Louisiana court to the federal court, a matter over which the court lacked jurisdiction.
Analysis
Carbonell urges, with subcategorizations, more than a score of assignments of error. Most are totally without merit. We combine the remainder for review.
A. Section 1981 Claim
As an appellate tribunal, we are constrained by Fed.R.Civ.P. 52(a) to accept all findings of fact made by the trier of fact, in this instance the magistrate, unless shown to be clearly erroneous. There has been no such showing. Nor could any such showing be made. The facts as found by the magistrate, through his adoption of the state court findings, are fully supported by the record. This claim borders on the frivolous.
B. Section 1983 Claim
Stripped to its essentials, Carbonell’s § 1983 complaint would have the district court sit in review of the decision of the Louisiana First Circuit Court of Appeal. The district court lacks jurisdiction to conduct that exercise. As we held in Kimball v. The Florida Bar, 632 F.2d 1283, 1284 (5th Cir.1980):
Stripped to its essentials, Kimball’s petition for declaratory and injunctive relief asks the federal district court to reverse a final, definitive state court order. As we stated in Lampkin-Asam v. Supreme Court of Florida, 601 F.2d 760 (5th Cir.1979): “This Court has held on numerous occasions that federal district courts do not have jurisdiction under 42 U.S.C. § 1983 or any other theory to reverse or modify the judgments of state courts.” We echo that it “is axiomatic that a federal district court, as a court of original jurisdiction, lacks appellate jurisdiction to review, modify, or nullify a final order of a state court. 28 U.S.C. § 1257(3).” Id. The proper forum for the relief Kimball now seeks was the United States Supreme Court.
It is hornbook law that § 1983 does not create a federal cause of action but, rather, a remedy for the vindication of other federal statutory or constitutional rights. That those rights have been adjudicated in a state court under concurrent § 1983 jurisdiction or under a state cause of action is of no moment: once a determination has been made by a state court relative to the existence or non-existence of a federal right, and any possible infringement of that right, the only avenue of review is to the United States Supreme Court via 28 U.S.C. § 1257(3). As a panel of this court observed:
A federal district court, as a court of limited original jurisdiction, lacks power to review, modify or nullify a final order of a state court. Nor can a party, aggrieved by a judicial decision of a state’s highest court, invest a lower federal court with such jurisdiction by clothing his or her grievance in the garb of § 1983 and alleging that the decision of the state court deprived him or her of constitutionally protected rights or inter-ests____ A party seeking relief from such an allegedly unconstitutional action by a state court may seek review in only one federal court — the United States Supreme Court.
Dasher v. Supreme Court of Texas, 650 F.2d 711, 714-15 (5th Cir.1981), rev’d on other grounds, 658 F.2d 1045 (5th Cir.1981) (on reh’g), reh’g opinion disapproved, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 n. 16 (1983). See also Brown v. Chastain, 416 F.2d 1012 (5th Cir.1969); Gresham Park Community Organization v. Howell, 652 F.2d 1227 (5th Cir.1981).
We recognize that Carbonell has not faulted the Louisiana court, as such, but she asserts the same claims previously asserted in the state system. She maintains that the DHHR violated her Title VII fair employment rights. The underlying federal right now advanced is identical to that adjudged by the Louisiana court. Thus, whether the dismissal of the § 1983 claim for lack of jurisdiction should be upheld hinges on whether the complaint seeks an exercise of appellate or original jurisdiction. Despite the fact that the proceedings before the Louisiana Civil Service Commission and the subsequent state-court appeal were based largely on state administrative and statutory law, the Supreme Court’s opinion in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), teaches that the nature of the underlying claim, not the nature or basis of the desired relief, directs the answer to the appellate versus original jurisdiction inquiry. When a plaintiff presents federal claims that “are inextricably intertwined with the state court’s denial in a judicial proceeding of a particular plaintiff’s [state-law claim], then the District Court is in essence being called upon to review the state-court decision. This the District Court may not do.” Feld-man, 460 U.S. at 482 n. 16, 103 S.Ct. at 1315 n. 16, 75 L.Ed.2d at 223 n. 16. Feld-man directs the inquiry away from a mechanical classification of the relief requested or the cause of action, toward a realistic consideration of the nature of the underlying claim.
The instant case is guided by Feldman. We are presented with a § 1983 claim challenging an adverse state-court judgment on the theory that the state administrative action therein upheld violated the plaintiff’s constitutional rights. This necessarily invites appellate review of the determinations of federal rights by the Louisiana court of appeal. That review is beyond the jurisdictional pale of the federal district court. The magistrate properly concluded that the court had no subject-matter jurisdiction over this § 1983 claim as postulated.
C. Title VII Claim
It cannot be gainsaid that the dismissal of the Title VII claims against the non-employer individual defendants was appropriate. Only the claim against the DHHR need be reviewed. The magistrate concluded that review of this claim against the DHHR was precluded by operation of the doctrine of res judicata, 28 U.S.C. § 1738, a defense which was not pled.
This approach is fraught with difficulty for under Rule 8(c), Federal Rules of Civil Procedure, the defense of res judicata must be affirmatively pled. Generally this rule is strictly read and applied, but in this circuit we have recognized two limited instances in which the trial or appellate court may raise the issue sua sponte. An example of one exception is United Home Rentals, Inc. v. Texas Real Estate Commission, 716 F.2d 324, 330 (5th Cir.1983), where after observing that res judicata is an affirmative defense which must be specially pleaded we observed:
[The] failure to assert res judicata as a defense does not determine the issue, however, since in the interest of judicial economy res judicata may properly be raised by a district court sua sponte, particularly where both actions are brought in the courts of the same district. See Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (affirming district court sua sponte dismissal on res judica-ta grounds) ____ On occasion, appellate courts have raised the issue for the first time on appeal. See Robertson v. Interstate Securities Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971)____ In these cases, however, the appellate court considered applying res judicata as a means to affirm the district court decision below.
The other exception involves the situation in which all relevant data and legal records are before the court and the demands of comity, continuity in the law, and essential justice mandate judicial invocation of the principles of res judicata. This exception is illustrated by our decision in American Furniture Co. v. International Accommodations Supply, 721 F.2d 478 (5th Cir.1981).
We are not persuaded that the case now before us qualifies under either exception; we therefore decline to use 28 U.S.C. § 1738 as a bar to consideration of the Title VII claim.
The evidence of record provides an ample basis for affirming the dismissal of Carbonell’s Title VII claim. Reaching and reviewing the magistrate’s adoptive findings in light of this evidence, we find no clearly erroneous factual finding. The scenario which we must accept under the directive of Fed.R.Civ.P. 52(a) demonstrates that Carbonell was discharged for rank insubordination. She repeatedly refused direct orders of reassignment. She reserved to herself the right to determine the clinic in which she would work. Working in the parish of St. Bernard somehow offended her sensibilities. She insisted on having her way notwithstanding the urgings and orders of her superiors. We find no support in the accepted findings of fact; indeed we find no support in the record for the claim that retaliatory actions were taken because of her national origin or because she filed various EEOC charges. We find and conclude that Carbonell has failed to establish the discrimination charged. Her Title VII complaint is without merit.
Finally, we consider Carbonell’s argument that the recent decision by the Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S.-, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), declares her dismissal constitutionally infirm and that the decision by the Louisiana Civil Service Commission and Louisiana Court of Appeal must be accordingly reversed. This challenge founders on the same legal shoals as the § 1988 claim discussed supra. Lower federal courts do not review on appeal the constitutionality of state court decisions. That prerogative belongs exclusively to the Supreme Court. 28 U.S.C. § 1257(3); Kimball v. The Florida Bar. Whatever Loudermill portends for future litigation, it does not impact on the result of this proceeding.
The magistrate dismissed all claims. We AFFIRM his judgment.
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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sc_issuearea
|
I
|
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.
PUBLIC SERVICE COMMISSION OF UTAH et al. v. WYCOFF COMPANY, INC.
No. 44.
Argued November 13, 1952.
Decided December 22, 1952.
Wood R. Worsley argued the cause for petitioners. With him on the brief were C. W. Ferguson and D. A. Skeen.
Harold S. Shertz and Wayne C. Durham argued the cause and filed a brief for respondent.
John P. Randolph filed a brief for the National Association of Railroad and Utilities Commissioners, as amicus curiae, urging reversal.
Mr. Justice Jackson
delivered the opinion of the Court.
As this suit in equity was commenced in United States District Court it sought two kinds of specific relief: (1) a declaratory judgment that complainant’s carriage of motion picture film and newsreels between points in Utah constitutes interstate commerce; (2) that the Public Service Commission of Utah and its members be forever enjoined from interfering with such transportation over routes authorized by the Interstate Commerce Commission.
The complaint alleged a course of importing, processing and transporting picture film and newsreels to support the contention that carriage between points in Utah was so integrated with their interstate movement that the whole constituted interstate commerce. It averred that the Commission and its members “threaten to and are attempting to stop and prevent plaintiff from transporting motion picture film and newsreels between points and places within the State of Utah, and they are thereby interfering with the conduct of interstate commerce by the plaintiff and imposing an undue burden upon interstate commerce,” and that unless the defendants are enjoined they will “block, harass and prevent plaintiff in the transportation of said motion picture film and newsreels in Utah.”
The Commission and its members answered that respondent’s transportation between points in Utah was nothing more than intrastate commerce. They specifically denied attempting, threatening, or intending to interfere with or burden interstate commerce.
The District Court, after trial, sustained the contention of the Commission and dismissed the complaint. The Court of Appeals considered only “whether the intrastate transportations are nonetheless integral parts of interstate transportations.” It held the evidence to warrant an affirmative answer, reversed the judgment of the District Court and ordered further proceedings in conformity with that view. We granted certiorari, requesting counsel to discuss whether a single judge could hear and determine the case in view of 28 U. S. C. § 2281. That section provides that an injunction restraining enforcement of a state statute or the order of an administrative body thereunder “shall not be granted” upon the ground of unconstitutionality unless the application is heard and determined by a district court of three judges as provided in 28 U. S. C. § 2284.
The respondent, which was plaintiff, contends that a three-judge court was not required, because the suit does not question constitutionality of any Utah statute nor the validity of any order of the State Commission. It says also that no injunction has been granted or even urged “outside of the naked recitation in the prayer of the Complaint.” It offered no evidence whatever of any past, pending or threatened action by the Utah Commission touching its business in any respect. The pleadings made that a clear-cut issue, which seems to have been completely ignored thereafter. The only issues defined on pretrial hearing were whether as matter of fact and of law the within-state transportation constituted interstate commerce. The trial court, however, made a general finding that no such interference had been made or threatened, which was not reversed or mentioned by the Court of Appeals.
For more reasons than one it is clear that this proceeding cannot result in an injunction on constitutional grounds. In addition to defects that will appear in our discussion of declaratory relief, it is wanting in equity because there is no proof of any threatened or probable act of the defendants which might cause the irreparable injury essential to equitable relief by injunction.
The respondent appears to have abandoned the suit as one for injunction but seeks to support it as one for declaratory judgment, hoping thereby to avoid both the three-judge court requirement and the necessity for proof of threatened injury. Whether declaratory relief is appropriate under the circumstances of this case apparently was not considered by either of the courts below. But that inquiry is one which every grant of this remedy must survive.
The Declaratory Judgment Act of 1934, now 28 U. S. C. § 2201, styled “creation of remedy,” provides that in a case of actual controversy a competent court may “declare the rights and other legal relations” of a party “whether or not further relief is or could be sought.” This is an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant.
Previous to its enactment there were responsible expressions of doubt that constitutional limitations on federal judicial power would permit any federal declaratory judgment procedure. Cf. Liberty Warehouse Co. v. Grannis, 273 U. S. 70; Willing v. Chicago Auditorium Assn., 277 U. S. 274; Arizona v. California, 283 U. S. 423; Piedmont & N. R. Co. v. United States, 280 U. S. 469. Finally, as the practice extended in the states, we reviewed a declaratory judgment rendered by a state court and held that a controversy which would be justiciable in this Court if presented in a suit for injunction is not the less so because the relief was declaratory. Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249. Encouraged by this and guided by the experience of the thirty-four states that had enacted such laws, the Senate Judiciary Committee recommended an adaptation of the principle to federal practice. Its enabling clause was narrower than that of the Uniform Act adopted in 1921 by the Commissioners on Uniform State Laws, which gave comprehensive power to declare rights, status and other legal relations. The Federal Act omits status and limits the declaration to cases of actual controversy.
This Act was adjudged constitutional only by interpreting it to confine the declaratory remedy within conventional “case or controversy” limits. In Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 325, the Court said, “The Act of June 14, 1934, providing for declaratory judgments, does not attempt to change the essential requisites for the exercise of judicial power” which still was to be tested by such established principles as that “the judicial power does not extend to the determination of abstract questions” and that “claims based merely upon 'assumed potential invasions’ of rights are not enough to warrant judicial intervention.”
In Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, Mr. Chief Justice Hughes used the whole catalogue of familiar phrases to define and delimit the measure of this new remedy. If its metes and bounds are not clearly marked, it is because his available verbal markers are themselves elastic, inconstant and imprecise. It applies, he points out, only to “cases and controversies in the constitutional sense” of a nature “consonant with the exercise of the judicial function” and “appropriate for judicial determination.” Each must present a “justiciable controversy” as distinguished from “a difference or dispute of a hypothetical or abstract character .... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as' distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” The relief is available only for a “concrete case admitting of an immediate and definitive determination of the legal rights of the parties.” Id., at 240, 241.
Other sources have stated relevant limitations. The Senate Judiciary Committee report regarded the 1,200 American decisions theretofore rendered on the subject as establishing that “the issue must be real, the question practical and not academic, and the decision must finally settle and determine the controversy.” Indeed the Uniform Act, unlike the Federal Act, expressly declares the discretion of the court to refuse a decree that would not “terminate the uncertainty or controversy giving rise to the proceeding.” In recommending Rule 57 of the Federal Rules of Civil Procedure, in order to provide procedures for the declaratory decree, the Committee noted “A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case . . . .”
But when all of the axioms have been exhausted and all words of definition have been spent, the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. While the courts should not be reluctant or niggardly in granting this relief in the cases for which it was designed, they must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especialy in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case. Such differ-enees of opinion or conflicts of interest must be “ripe for determination” as controversies over legal rights. The disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.
The complainant in this case does not request an adjudication that it has a right to do, or to have, anything in particular. It does not ask a judgment that the Commission is without power to enter any specific order or take any concrete regulatory step. It seeks simply to establish that, as presently conducted, respondent’s carriage of goods between points within as well as without Utah is all interstate commerce. One naturally asks, “So what?” To that ultimate question no answer is sought.
A multitude of rights and immunities may be predicated upon the premise that a business consists of interstate commerce. What are the specific ones in controversy? The record is silent and counsel little more articulate. We may surmise that the purpose to be served by a declaratory judgment is ultimately the same as respondent’s explanation of the purposes of the injunction it originally asked, which is “to guard against the possibility that said Commission would attempt to prevent respondent from operating under its certificate from the Interstate Commerce Commission.” (Emphasis supplied.)
In this connection, Wycoff Co. v. Public Service Commission, -Utah -, 227 P. 2d 323 (1951), is brought to our attention. From this it appears that respondent and its predecessors in interest long made it a practice to obtain from the Utah Commission certificates to authorize this carriage of film commodities between points in Utah. But the Supreme Court of Utah, in the cited case, sustained the Commission in denying such an application upon a finding that the field already was adequately served. We are also told that the Commission filed a petition in a Utah state court to enjoin respondent from operating between a few specified locations within the State, but that process was never served and nothing in the record tells us what has happened to this action. We may conjecture that respondent fears some form of administrative or judicial action to prohibit its service on routes wholly within the State without the Commission’s leave. What respondent asks is that it win any such case before it is commenced. Even if respondent is engaged solely in interstate commerce, we cannot say that there is nothing whatever that the State may require. Eichholz v. Commission, 306 U. S. 268, 273.
A declaratory judgment may be the basis of further relief necessary or proper against the adverse party (28 U. S. C. § 2202). The carrier’s idea seems to be that it can now establish the major premise of an exemption, not as an incident of any present declaration of any specific right or immunity, but to hold in readiness for use should the Commission at any future time attempt to apply any part of a complicated regulatory statute to it. If there is any more definite or contemporaneous purpose to this case, neither this record nor the briefs make it clear to us. We think this for several reasons exceeds any permissible discretionary use of the Federal Declaratory Judgment Act.
In the first place, this dispute has not matured to a point where we can see what, if any, concrete controversy will develop. It is much like asking a declaration that the State has no power to enact legislation that may be under consideration but has not yet shaped up into an enactment. If there is any risk of suffering penalty, liability or prosecution, which a declaration would avoid, it is not pointed out to us. If and when the State Commission takes some action that raises an issue of its power, some further declaration would be necessary to any complete relief. The proposed decree cannot end the controversy.
Nor is it apparent that the present proceeding would serve a useful purpose if at some future date the State undertakes regulation of respondent. After a sifting of evidence and a finding of facts as they are today, there is no assurance that changes of significance may not take place before the State decides to move. Of course, the remedy is not to be withheld because it necessitates weighing conflicting evidence or deciding issues of fact as well as law. That is the province of courts. Aetna Life Insurance Co. v. Haworth, supra, at 242, and see Perkins v. Elg, 307 U. S. 325; Currin v. Wallace, 306 U. S. 1. But when the request is not for ultimate determination of rights but for preliminary findings and conclusions intended to fortify the litigant against future regulation, it would be a rare case in which the relief should be granted. Cf. Coffman v. Breeze Corporations, Inc., 323 U.S. 316.
Even when there is no incipient federal-state conflict, the declaratory judgment procedure will not be used to pre-empt and prejudge issues that are committed for initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory methods of review. It would not be tolerable, for example, that declaratory judgments establish that an enterprise is not in interstate commerce in order to forestall proceedings by the National Labor Relations Board, the Interstate Commerce Commission or many agencies that are authorized to try and decide such an issue in the first instance. Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; Eccles v. Peoples Bank, 333 U. S. 426. See Colegrove v. Green, 328 U. S. 549. Responsibility for effective functioning of the administrative process cannot be thus transferred from the bodies in which Congress has placed it to the courts.
But, as the declaratory proceeding is here invoked, it is even less appropriate because, in addition to foreclosing an administrative body, it is incompatible with a proper federal-state relationship. The carrier, being in some disagreement with the State Commission, rushed into federal court to get a declaration which either is intended in ways not disclosed to tie the Commission’s hands before it can act or it has no purpose at all.
Declaratory proceedings in the federal courts against state officials must be decided with regard for the implications of our federal system. State administrative bodies have the initial right to reduce the general policies of state regulatory statutes into concrete orders and the primary right to take evidence and make findings of fact. It is the state courts which have the first and the last word as to the meaning of state statutes and whether a particular order is within the legislative terms of reference so as to make it the action of the State. We have disapproved anticipatory declarations as to state regulatory statutes, even where the case originated in and was entertained by courts of the State affected. Alabama State Federation of Labor v. McAdory, 325 U. S. 450. Anticipatory judgment by a federal court to frustrate action by a state agency is even less tolerable to our federalism. Is the declaration contemplated here to be res judicata, so that the Commission cannot hear evidence and decide any matter for itself? If so, the federal court has virtually lifted the case out of the State Commission before it could be heard. If not, the federal judgment serves no useful purpose as a final determination of rights.
The procedures of review usually afford ample protection to a carrier whose federal rights are actually invaded, and there are remedies for threatened irreparable injuries. State courts are bound equally with the federal courts by the Federal Constitution and laws. Ultimate recourse may be had to this Court by certiorari if a state court has allegedly denied a federal right.
In this case, as in many actions for declaratory judgment, the realistic position of the parties is reversed. The plaintiff is seeking to establish a defense against a cause of action which the declaratory defendant may assert in the Utah courts. Respondent here has sought to ward off possible action of the petitioners by seeking a declaratory judgment to the effect that he will have a good defense when and if that cause of action is asserted. Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law. Tennessee v. Union & Planters’ Bank, 152 U. S. 454; The Fair v. Kohler Die & Specialty Co., 228 U. S. 22; Taylor v. Anderson, 234 U. S. 74.
Since this case should be dismissed in any event, it is not necessary to determine whether, on this record, the alleged controversy over an action that may be begun in state court would be maintainable under the head of federal-question jurisdiction. But we advert to doubts upon that subject to indicate the injury that would be necessary if the case clearly rested merely on threatened suit in state court, as, for all we can learn, it may.
We conclude that this suit cannot be entertained as one for injunction and should not be continued as one for a declaratory judgment. The judgment below should be reversed and modified to direct that the action be dismissed.
Reversed and so ordered.
195 F. 2d 252.
343 U. S. 975.
See 28 U. S. C. § 2201.
S. Rep. No. 1005, 73d Cong., 2d Sess., p. 6, May 10, 1934; Borchard, Declaratory Judgments (2d ed. 1941), 1043, 1048.
Borchard, op. cit., 1042.
See, Developments in the Law — Declaratory Judgments, 62 Harv. L. Rev. 787, 802.
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_injunct
|
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 the validity of an injunction or the denial of an injunction or a stay of injunction 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".
Rigoberto GUERRA, Jr., Private, United States Army, Plaintiff-Appellee, v. Hugh F. SCRUGGS, Colonel, Commanding Officer, 7th Special Forces Group, United States Army; Michael W.P. Stone, Secretary of the U.S. Army, and their respective successors, in their official capacity, Defendants-Appellants.
No. 90-1164.
United States Court of Appeals, Fourth Circuit.
Argued May 6, 1991.
Decided Aug. 9, 1991.
Robert V. Zener, Civ. Div., U.S. Dept, of Justice, Washington, D.C., argued (Stuart M. Gerson, Asst. Atty. Gen., Anthony J. Steinmeyer, Civ. Div., U.S. Dept, of Justice, Washington, D.C., Margaret P. Currin, U.S. Atty., Raleigh, N.C., Lt. Col. Mark A. Steinbeck, Major Raymond J. Jennings, Jr., Office of the Judge Advocate General, Dept, of the Army, Washington, D.C., on brief), for defendants-appellants.
Mark L. Waple, Hutchens & Waple, Fay-etteville, N.C., for plaintiff-appellee.
Before ERVIN, Chief Judge, HILTON, District Judge for the Eastern District of Virginia, sitting by designation, and HALLANAN, District Judge for the Southern District of West Virginia, sitting by designation.
OPINION
ERVIN, Chief Judge:
Private Rigoberto Guerra brought suit against Col. Hugh F. Scruggs, Commanding Officer of the 7th Special Forces Group at Fort Bragg, and Michael Stone, Secretary of the Army, in the United States District Court for the Eastern District of North Carolina. He sought a temporary restraining order and a preliminary injunction to prevent his discharge from the Army. Guerra challenged the procedures by which Col. Scruggs decided to discharge Guerra with a general discharge discharge under honorable conditions for cocaine usage and absence from duty due to alcohol intoxication. Guerra alleged that the procedures violated the Due Process Clause and the Equal Protection Clause.
The district court first granted a temporary restraining order and then granted a preliminary injunction against the defendants, 747 F.Supp. 1160, enjoining them from “discharging or separating plaintiff from active duty with the United States Army pending a disposition of this action on its merits or the granting of a meaningful hearing before the administrative elimination board pursuant to Army Regulation 635-200.” Scruggs and Stone appealed from this order.
We find that the district court erred in granting the injunction in this case. Therefore, we reverse.
I
Private Guerra was a member of D Company, 2d Battalion, 7th Special Forces Group (Airborne), stationed at Fort Bragg. He received the Army Achievement Medal on two occasions and was named as the “Soldier of the Year” for Fiscal Year 1990 in his military organization at Fort Bragg. However, on October 29, 1989, Guerra missed a P.T. formation due to alcohol intoxication. On April 23, 1990, Guerra tested positive for cocaine use. Guerra accepted nonjudicial punishment pursuant to Article 15 of the Uniform Code of Military Justice (UCMJ) for his cocaine use. The punishment was as follows: reduction in rank, 45 days restriction and extra duty, and forfeiture of one-half of his monthly basic pay for a period of two months.
Under Article 15, UCMJ, Guerra could have refused the nonjudicial proceedings and demanded trial by court-martial. Manual for Courts-Martial, United States, para. 3 (1984). If Guerra had made such a demand, he would have been entitled to a court-martial before any punishment could be imposed. Guerra did not demand a courtmartial. Rather, he voluntarily accepted proceedings under Article 15.
After the Article 15 proceedings were completed, Guerra received a notice of proposed separation from Captain Akers, Commanding Officer of D Company. Grounds for the proposed separation were the positive test for cocaine use and the missed P.T. formation due to alcohol intoxication. Captain Akers stated that he would recommend a general discharge.
The notice of proposed separation informed Guerra of the following procedural rights:
5. You have the right to consult with a military counsel at no cost, and with civilian counsel at no expense to the Government within a reasonable time (not less than 3 duty days).
6. You may submit written statements in your behalf.
7. You may obtain copies of documents that will be sent to the separation authority supporting the proposed separation. (Classified documents may be summarized.)
In response to the notice of proposed separation, Guerra did not deny using cocaine, but instead pleaded that his mistake had been paid for by the Article 15 punishment. Guerra requested a hearing before an administrative elimination board. Because he had not served in the Army for at least 6 years, Guerra was not entitled to such a hearing. Army Reg. 635-200 § 2-2d (1989).
Guerra submitted ten statements from other soldiers in support of his plea of leniency. After reviewing these statements, Colonel Scruggs, Commanding Officer of the 7th Special Forces Group, approved the recommendation for a general discharge of Guerra.
A person in Guerra’s position has two avenues of appeal within the Army structure. First, he may appeal to the Army Discharge Review Board (ADRB) which was established pursuant to 10 U.S.C. § 1553 and Army Regulation 15-180. An applicant seeking relief from this board has an absolute right to a hearing before the board, and may be represented by counsel and present witnesses. Chilcott v. Orr, 747 F.2d 29, 32 (1st Cir.1984). The ADRB has authority to change a discharge or to issue a new discharge, but it does not have authority to reverse or vacate a discharge. In addition, the ADRB has no authority to rule on constitutional challenges to the Army’s regulations. Second, Guerra could appeal to the Army Board for Correction of Military Records (ABCMR) which was established pursuant to 10 U.S.C. § 1552 and Army Regulation 15-185. The ABCMR has statutory authority to “correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C.A. § 1552(a)(1) (1991 West Supp.). The ABCMR also “may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings.” 10 U.S.C.A. § 1553(b) (1983). The ABCMR has authority to consider claims of constitutional, statutory, and regulatory violations. 32 C.F.R. § 581.3(c)(5)(v) (1990). Guerra did not use either of the above administrative procedures to challenge his discharge. Instead, he sought an injunction in the district court to prevent his discharge.
The district court granted a temporary restraining order and thereafter granted a preliminary injunction against Guerra’s discharge. The court concluded that the balance of equities and the merits of the case supported a preliminary injunction. Scruggs and Stone appealed to this court from the district court's order granting the preliminary injunction. During the penden-cy of this appeal, by virtue of the preliminary injunction, Guerra continued to serve in the Army. On April 4, 1991, his original term of service expired and he was discharged. The classification of his discharge has not been finalized as it is contingent upon the outcome of this appeal.
II
Normally, the trial court standard for injunctive relief is the balance-of-hardship test. North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749, 750 (4th Cir.1979). There are four factors which enter into the determination of whether interim injunctive relief should be granted: (1) whether the plaintiff will suffer irreparable injury if interim relief is not granted; (2) the injury to the defendant if an injunction is issued; (3) the plaintiff’s likelihood of success in the underlying dispute between the parties; and (4) the public interest. Id. at 750; Jones v. Board of Governors of University of North Carolina, 704 F.2d 713, 715 (4th Cir.1983).
A
In Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), the Supreme Court addressed the amount of irreparable harm which must be shown in the context of the discharge of a civilian employee. There, the Court stated that the lower courts were “quite wrong in routinely applying to [the] case the traditional standards governing more orthodox ‘stays.’ ” Id. at 83-84, 94 S.Ct. at 950, 39 L.Ed.2d at 183. The Court explained its rationale:
Although we do not hold that Congress has wholly foreclosed the granting of preliminary injunctive relief in such cases, we do believe that respondent at the very least must make a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases.
Id. at 84, 94 S.Ct. at 950, 39 L.Ed.2d at 183. Turning to the issue of irreparable harm in Sampson, the Court stated:
Assuming for the purpose of discussion that respondent had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think the showing falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case.
Id. at 91-92, 94 S.Ct. at 953-54, 39 L.Ed.2d at 187. The Court noted in a footnote that there might be a circumstance where the discharge of a government employee, together with the resulting effects of the discharge, might meet the irreparable injury test. Id. at 92 n. 68, 94 S.Ct. 953 n. 68, 39 L.Ed.2d at 187 n. 68.
Sampson indicates that in the context of discharges of military employees, plaintiffs might likewise have an increased burden of showing irreparable injury. Other circuits have applied Sampson to military discharges in this way. See Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir.1985) (holding that Sampson’s higher standard of irreparable injury applies to military personnel); Chilcott v. Orr, 747 F.2d 29, 33 (1st Cir.1984) (holding that the rule in Sampson should be applied to military personnel).
We believe that Sampson’s higher requirement of irreparable injury should be applied in the military context given the federal courts’ traditional reluctance to interfere with military matters. Therefore, Guerra must meet this higher standard in order to show that injunctive relief was proper in this case.
In some decisions this court has modified the traditional four part balance-of-hardship test by stating that the court should first balance the hardships to the plaintiff and the defendant, and if that balance “tips decidedly in the plaintiffs favor, an injunction preserving the status quo should issue ‘if, at least, grave or serious questions are presented.’ ” Jones, 704 F.2d at 715 (quoting North Carolina State Ports, 592 F.2d at 750). If we apply the Sampson higher standard of irreparable damage in this framework and the balance tips in favor of Guerra, then the injunction was properly granted in this ease.
The district court found that Guerra would suffer irreparable harm if the injunction was not granted. The court noted that evidence showed that there would be an extended delay, perhaps as much as a couple of years, between Guerra’s separation and a review, if any, by the ABCMR. The court further noted that the ABCMR rarely conducts hearings on applications before it and, therefore, Guerra might not get a hearing at all. In the interim, Guerra would be forced to seek civilian employment with a military record which carries a stigma with it. Based upon these findings, the district court concluded that Guerra would suffer irreparable harm without the injunction.
We disagree with the district court’s conclusion that Guerra would suffer irreparable harm without the injunction. Instead, we are persuaded by the reasoning of the First Circuit in Chilcott v. Orr, 747 F.2d 29 (1st Cir.1984). There, Chilcott challenged his pending discharge from the Air Force based on his arrest for selling LSD. The district court granted a preliminary injunction based on the irreparable harm to Chilcott; however, the First Circuit reversed. The court first considered the harm that Chilcott would suffer, explaining:
Chilcott contends that he will be irreparably harmed if he receives a general discharge under honorable conditions. He argues that anything less than an honorable discharge will stigmatize him and jeopardize his future employment opportunities. Of course, post-discharge remedies are available in the Air Force that could result in his discharge being upgraded to honorable, if the Air Force Discharge Review Board determines that the general discharge was improper. The only conceivable harm that Chilcott could suffer is the damage to his reputation and the stigma that would occur between the time of his discharge and the decision of the Discharge Review Board. The question we are faced with is whether the harm is so great as to justify an interference with Air Force procedures.
Id. at 33. The First Circuit then held that “the prospect of a general discharge under honorable conditions is not an injury of sufficient magnitude to warrant an injunction.” Id. at 34. See also Hartikka, 754 F.2d at 1518 (holding that loss of income and damage to reputation resulting from the stigma of a less than honorable discharge were insufficient under Sampson to justify injunctive relief).
We agree with the First Circuit’s holding in Chilcott. Here, the only harm Guerra could suffer is the damage to his reputation during the interim between his discharge and the decision of the board reviewing his discharge. Such an injury does not rise to the Sampson level of irreparable injury justifying an injunction. Therefore, we conclude that Guerra would not suffer irreparable harm if an injunction was not granted in this case.
B
We now turn to the harm to the Army which would be caused by the issuance of an injunction. The district court found that the harm to the Army would not be great because hearings would only be required in cases where a person’s liberty or property interest was deprived. Further, the due process clause does not require full blown evidentiary hearings in every case where a liberty or property right has been infringed upon. As a result, the district court held that the harm to the Army was not too great. Weighed against the irreparable harm to Guerra, the court held that the balance tipped in Guerra’s favor.
We disagree with the district court. The harm to the Army is greater than it first appears. If we upheld the injunction granted under the facts before us, injunctions would be routinely sought in drug discharge cases. The result would be judicial second-guessing of a kind that courts have been reluctant to engage in. Here, Guerra did not contest his drug use but instead wanted the Army, in the exercise of its discretion, to refrain from discharging him in spite of his admitted drug use. This is the type of discretionary decision best left to the military. We cannot predict the effect on the Army of retaining admitted drug users in specific Army units. To start second-guessing the military under these circumstances “would be a disruptive force as to affairs peculiarly within the jurisdiction of the military authorities.” Orloff v. Willoughby, 345 U.S. 83, 95, 73 S.Ct. 534, 540, 97 L.Ed. 842, 850 (1953). We conclude that the harm to the Army would be substantial if we upheld this injunction.
After looking at the balance of harms to the parties, the balance tips in favor of the Army. If the injunction is granted, Guerra will not suffer irreparable harm, yet the Army will suffer substantial harm in this circumstance. There remain two other prongs of the four-part equity test which we must consider. See Jones, 704 F.2d at 715. Those factors are the plaintiff’s likelihood of success in the underlying dispute and the public interest. See id.
C
When considering the plaintiff’s likelihood of success, we must first decide whether the district court would refuse to resolve the issues before it due to the amount of deference normally accorded to the military with respect to its internal procedures. In Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), the Supreme Court described the need for deference to the military as follows.
The military is “a specialized society separate from civilian society” with “laws and traditions of its own [developed] during its long history.” Parker v. Levy, 417 U.S. 733, at 743, 94 S.Ct. 2547 at 2556, 41 L.Ed.2d 439 (1974). Moreover, “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.” Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8 (1955). To prepare for and perform its vital role, the military must insist upon a respect for duty and a discipline without counterpart in civilian life. The laws and traditions governing that discipline have a long history; but they are founded on unique military exigencies as powerful now as in the past. Their contemporary vitality repeatedly has been recognized by Congress.
Id. 420 U.S. at 757, 95 S.Ct. at 1312, 43 L.Ed.2d at 608-09. The Fifth Circuit addressed the issue of deference to the military in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), where it explained:
Traditional trepidation over interfering with the military establishment has been strongly manifested in an unwillingness to second-guess judgments requiring military expertise and in a reluctance to substitute court orders for discretionary military decisions. Concern has also been voiced that the courts would be inundated with servicemen’s complaints should the doors of reviewability be opened. But the greater reluctance to accord judicial review has stemmed from the proper concern that such review might stultify the military in the performance of its vital mission.
Id. at 199. In Mindes, the Fifth Circuit set out a framework for determining whether a court should review a military decision. First, there must be an “allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations.” Id. at 201. Second, the plaintiff must have exhausted the “available intraservice corrective measures.” Id.
If these two threshold requirements are met, then the court should use a four-part test balancing:
“1. The nature and strength of the plaintiff’s challenge to the military determination. ...
2. The potential injury to the plaintiff if review is refused.
3. The type and degree of anticipated interference with the military function. Interference per se is insufficient since there will always be some interference when review is granted, but if the interference would be such as to seriously impede the military in the performance of vital duties, it militates strongly against relief.
4. The extent to which the exercise of military expertise or discretion is involved. Courts should defer to the superior knowledge and expertise of professionals in matters such as promotions or orders directly related to specific military functions.”
Id. at 201-02. This court adopted the Mindes framework in Williams v. Wilson, 762 F.2d 357 (4th Cir.1985). Therefore, we must analyze Guerra’s chances of success on his claims using the Mindes framework.
Guerra raises Due Process and Equal Protection challenges to the procedures under which the Army sought to discharge him. Therefore, Guerra meets the first threshold requirement of Mindes.
The second threshold requirement is exhaustion of intraservice remedies. The doctrine of requiring exhaustion of administrative remedies has been long established. See Cole v. Spear, 747 F.2d 217, 220 (4th Cir.1984). This doctrine applies to cases like the present one where constitutional claims are made. See American Fed. of Government Employees, AFL-CIO v. Nimmo, 711 F.2d 28, 31 (4th Cir. 1983) (“[R]equiring exhaustion is particularly appropriate when the administrative remedy may eliminate the necessity to decide constitutional questions.”); Thetford Properties IV Ltd. Partnership v. U.S. Dep’t of Hous. and Urban Dev., 907 F.2d 445, 448 (4th Cir.1990) (noting that the exhaustion principle is nothing more than a corollary to the rule of judicial restraint that a court should not pass on constitutional questions unless it is unavoidable).
There is an exception to the exhaustion requirement which this court has recognized. If the outcome would “predictably be futile,” the doctrine of exhaustion will not apply. Dooley v. Ploger, 491 F.2d 608, 614-15 (4th Cir.1974). Guerra argues that the outcome of the intraservice remedies is predictably futile in his case due to the lack of a guaranteed hearing before the ABCMR. Guerra also asserts that neither of the boards are empowered to grant him a portion of the relief he seeks: Guerra asks that he not be discharged despite the fact that he once used cocaine. In addition, Guerra points to a recent finding by the ABCMR as support for his position that an administrative appeal would be futile. Apparently, Guerra’s counsel challenged the six year hearing rule before the ABCMR based on May v. Gray, 708 F.Supp. 716, 720 (E.D.N.C.1988), where the court questioned the rationality of the six year requirement. The ABCMR made a finding that
Notwithstanding May v. Gray, the separation of soldiers with less than six years of service under the notification procedure of AR 635-200 and DOD Directive 1332.14 has not been held to be unconstitutional.
This court has addressed the issue of the exhaustion requirement in a couple of relevant cases. In Williams v. Wilson, we held that the inability of the board to give the plaintiff all the relief he seeks does not automatically excuse the failure to exhaust. 762 F.2d at 360 n. 6. We explained:
While the ABCMR lacks authority to order the West Virginia Army National Guard to reinstate Williams were it to find in his favor, it would have the power to correct Williams’ federal records to show that his federal recognition has not been withdrawn, reinstate Williams in a comparable active federal reserve status, restore his pay and order compensatory back pay.
Id.
In Sanders v. McCrady, 537 F.2d 1199, 1201 (4th Cir.1976), we also held that the board’s inability to grant the plaintiff full relief was not dispositive on the issue of exhaustion. Id. There, the plaintiff had been accused of cheating at a military school. In addition we held that the consequence of delay for Sanders—the postponement of his opportunity to obtain damages and fees — was outweighed by the considerations of efficiency and agency expertise underlying the exhaustion requirement. Id.
In United States ex rel. Brooks v. Clifford, 412 F.2d 1137, 1139-41 (4th Cir.1969), we held that a soldier did not have to exhaust his administrative remedies. There, the soldier was petitioning for a writ of habeas corpus on the ground that he was a conscientious objector. We found that Brooks’ remedy before the ABCMR was inadequate because he would be required to litigate administratively, all the while being required to engage in conduct inimical to his conscience. Id. at 1141.
We find that the facts in the present case more closely resemble the facts in Williams and Sanders where we required exhaustion than those in Clifford where we did not. In this case as in Sanders, the consequence of delay for Guerra—postponement of his ability to obtain damages—is outweighed by the considerations of efficiency and agency expertise in requiring exhaustion. Lacking in this case are factors such as those present in Clifford. There, the effect of delay was greater than a delay seeking damages: the soldier would have been required to violate his own conscience throughout the delay. We find no such dire consequence present in the facts before us and therefore hold that Guerra should have exhausted his administrative remedies in this case. As a result, Guerra has no likelihood of success on the merits of his case because he has failed to exhaust his administrative remedies. This factor thus weighs against granting an injunction in this case.
Even if we were to overlook the threshold exhaustion requirement of Mindes, we would then engage in the Mindes four-part balancing test, and Guerra fares no better under it.
The first factor to be considered is the nature and strength of Guerra’s challenge to the military determination. Mindes, 453 F.2d at 201-02. Guerra raises essentially two constitutional challenges: (1) a Due Process challenge, and (2) an Equal Protection challenge. We will address each in turn.
“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18, 31 (1976). Thus, in order for Guerra to have a Due Process claim, he must first establish that he has a property or liberty interest.
The district court found that Guerra did not have a property interest. Property interests are
created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972). In Perry v. Sindermann, the Supreme Court stated that a property right cannot emanate from a mere subjective expectancy. 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570, 580 (1972).
Here, the statute on which Guerra relies to create a property interest shows that it does not create one. 10 U.S.C. § 1169 provides:
No regular enlisted member of an armed force may be discharged before his term of service expires, except-
(1) as prescribed by the Secretary concerned;
(2) by sentence of a general or special court martial; or
(3) as otherwise provided by law.
10 U.S.C.A. § 1169 (1983). The language of the statute, particularly subsection (1), shows that the Army has discretion to discharge enlisted personnel and that Guerra has no property interest. See Rich v. Secretary of Army, 735 F.2d 1220, 1226 (10th Cir.1984) (holding that Rich had no property right in continued employment with the Army because of the discretion afforded the Secretary under 10 U.S.C. § 1169(1)). Further, even if we found that Guerra had a property interest at one time, we note that he would no longer have a property interest because his term of enlistment has now expired.
Although Guerra does not have a property interest, the district court found that he did have a liberty interest which afforded him due process rights. "Liberty" as referred to in the Due Process Clause of the Fourteenth Amendment includes the right of "an individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge ... and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men." Roth, 408 U.S. at 572, 92 S.Ct. at 2707, 33 L.Ed.2d at 548 (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 5.Ct. 625, 626, 67 L.Ed. 1042, 1045). From the broad notion of liberty has sprung the concept that "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515, 519 (1971). The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 884, 51 L.Ed.2d 92, 96 (1977).
In the abstract, Guerra might have a liberty interest in his good name. The stigma attached to a general discharge related to a drug offense is well documented. See Casey v. United States, 8 Cl.Ct. 234, 242-43 (1985) (holding that a discharge for "personal abuse of alcohol and other drugs" was stigmatizing). However, merely having a liberty interest in one's good name does not make out a claim of a Due Process violation. "A critical element of a claimed invasion of a reputational liberty interest ... is the falsity of the government's asserted basis for the employment decision at issue." Doe v. Garrett, 903 F.2d 1455, 1462-63 (11th Cir.1990); accord Sims v. Fox, 505 F.2d 857, 864 (5th Cir. 1974), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678 (1975) (holding that the government does not infringe upon a person's liberty unless it perpetuates untrue charges); Rich v. Secretary of Army, 735 F.2d 1220, 1227 (10th Cir.1984) (holding that in order to make a showing of liberty deprivation, the employee must show that the dismissal resulted in the publication of false and stigmatizing information). Here, Guerra never denied that he had used cocaine. In fact, he voluntarily underwent disciplinary procedures under Article 15 without demanding a court-martial to contest the drug test results. Therefore, Guerra has failed to make out an essential element of his Due Process claim: he cannot show that the stated reason for his discharge-cocaine use-was untrue. Thus, we find that Guerra had no liberty-interest.
To summarize, Guerra would not likely succeed on the merits of his Due Process claim for two reasons. First, he has no property interest. Second, he had no liberty interest because while he had an interest in his good name, this interest was not infringed upon by the Army’s proposed discharge for cocaine use.
Guerra also raised an Equal Protection claim challenging the requirement that a serviceman must serve in the Army for 6 years before being entitled to a hearing before the ABCMR. See Army Reg. 635-200 § 2-2d (1989). Guerra asserted that the 6 year requirement bears no rational relationship to a legitimate government objective and that it is arbitrary and capricious. Unless a statute or regulation impinges upon a fundamental right or involves a suspect classification, a minimal level of scrutiny is applied under the rational basis test. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16, 33 (1973). Since no fundamental right or suspect classification is involved here, we must apply the rational basis test.
Under the rational basis test, a regulation need only bear some rational relationship to legitimate governmental purposes. See id. at 40, 93 S.Ct. at 1300, 36 L.Ed.2d at 47. The deference afforded to the government under the rational basis test is so deferential that even if the government’s actual purpose in creating classifications is not rational, a court can uphold the regulation if the court can envision some rational basis for the classification. In McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), the Supreme Court stated that “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." Id. at 426, 81 S.Ct. at 1105, 6 L.Ed.2d at 399.
In the case at bar, the Army explained the reason for the 6 year requirement as follows:
Six years is the maximum enlistment in the United States Army. So any soldier who has served beyond six years is by definition serving beyond his initial tour of enlistment ...
[T]he rights of the procedures that are afforded to those soldiers are not a recognition they possess a property right to continue service in the military, but merely out of the fact that they have served beyond that initial enlistment period.
We are saying that we will afford these soldiers because of their term of service these procedures when they are considered
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_declarationuncon
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to 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.
TAYLOR v. LOUISIANA
No. 73-5744.
Argued October 16, 1974
Decided January 21, 1975
White, J., delivered the opinion of the Court, in which Douglas, Brennan, Stewart, Marshall, Blackmun, and Powell, JJ., joined. Burger, C. J., concurred in the result. Rehnquist, J., filed a dissenting opinion, post, p. 538.
William McM. King argued the cause and filed a brief for appellant.
Kendall L. Vick, Assistant Attorney General of Louisiana, argued the cause for appellee. On the brief were William J. Guste, Jr., Attorney General, Walter Smith, and Woodrow W. Erwin.
Me. Justice White
delivered the opinion of the Court.
When this case was tried, Art. VII, § 41, of the Louisiana Constitution, and Art. 402 of the Louisiana Code of Criminal Procedure provided that a woman should not be selected for jury service unless she had previously filed a written declaration of her desire to be subject to jury service. The constitutionality of these provisions is the issue in this case.
I
Appellant, Billy J. Taylor, was indicted by the grand jury of St. Tammany Parish, in the Twenty-second Judicial District of Louisiana, for aggravated kidnaping. On April 12, 1972, appellant moved the trial court to quash the petit jury venire drawn for the special criminal term beginning with his trial the following day. Appellant alleged that women were systematically excluded from the venire and that he would therefore be deprived of what he claimed to be his federal constitutional right to “a fair trial by jury of a representative segment of the community . . . .”
The Twenty-second Judicial District comprises the parishes of St. Tammany and Washington. The ap-pellee has stipulated that 53% of the persons eligible for jury service in these parishes were female, and that no more than 10% of the persons on the jury wheel in St. Tammany Parish were women. During the period from December 8, 1971, to November 3, 1972, 12 females were among the 1,800 persons drawn to fill petit jury venires in St. Tammany Parish. It was also stipulated that the discrepancy between females eligible for jury service and those actually included in the venire was the result of the operation of La. Const., Art. VII, § 41, and La. Code Crim. Proc., Art. 402. In the present case, a venire totaling 175 persons was drawn for jury service beginning April 13, 1972. There were no females on the venire.
Appellant’s motion to quash the venire was denied that same day. After being tried, convicted, and sentenced to death, appellant sought review in the Supreme Court of Louisiana, where he renewed his claim that the petit jury venire should have been quashed. The Supreme Court of Louisiana, recognizing that this claim drew into question the constitutionality of the provisions of the Louisiana Constitution and Code of Criminal Procedure dealing with the service of women on juries, squarely held, one justice dissenting, that these provisions were valid and not unconstitutional under federal law. 282 So. 2d 491, 497 (1973) .
Appellant appealed from that decision to this Court. We noted probable jurisdiction, 415 U. S. 911 (1974), to consider whether the Louisiana jury-selection system deprived appellant of his Sixth and Fourteenth Amendment right to an impartial jury trial. We hold that it did and that these Amendments were violated in this case by the operation of La. Const., Art. VII, § 41, and La. Code Crim. Proc., Art. 402. In consequence, appellant’s conviction must be reversed.
II
The Louisiana jury-selection system does not disqualify women from jury service, but in operation its conceded systematic impact is that only a very few women, grossly disproportionate to the number of eligible women in the community, are called for jury service. In this case, no women were on the venire from which the petit jury was drawn. The issue we have, therefore, is whether a jury-selection system which operates to exclude from jury service an identifiable class of citizens constituting 53% of eligible jurors in the community comports with the Sixth and Fourteenth Amendments.
The State first insists that Taylor, a male, has no standing to object to the exclusion of women from his jury. But Taylor’s claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women. Taylor was not a member of the excluded class; but there is no rule that claims such as Taylor presents may be made only by those defendants who are members of the group excluded from jury service. In Peters v. Kiff, 407 U. S. 493 (1972), the defendant, a white man, challenged his conviction on the ground that Negroes had been systematically excluded from jury service. Six Members of the Court agreed that petitioner was entitled to present the issue and concluded that he had been deprived of his federal rights. Taylor,, in the case before us, was similarly entitled to tender and have adjudicated the claim that the exclusion of women from jury service deprived him of the kind of factfinder to which he was constitutionally entitled.
Ill
The background against which this case must be decided includes our holding in Duncan v. Louisiana, 391 U. S. 145 (1968), that the Sixth Amendment’s provision for jury trial is made binding on the States by virtue of the Fourteenth Amendment. Our inquiry is whether the presence of a fair cross section of the community on venires, panels, or lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment’s guarantee of an impartial jury trial in criminal prosecutions.
The Court’s prior cases are instructive. Both in the course of exercising its supervisory powers over trials in federal courts and in the constitutional context, the Court has unambiguously declared that the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community. A unanimous Court stated in Smith v. Texas, 311 U. S. 128, 130 (1940), that “[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” To exclude racial groups from jury service was said to be “at war with our basic concepts of a democratic society and a representative government.” A state jury system that resulted in systematic exclusion of Negroes as jurors was therefore held to violate the Equal Protection Clause of the Fourteenth Amendment. Glosser v. United States, 315 U. S. 60, 85-86 (1942), in the context of a federal criminal case and the Sixth Amendment’s jury trial requirement, stated that “[o]ur notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government,” and repeated the Court’s understanding that the jury “ ‘be a body truly representative of the community’ . . . and not the organ of any special group or class.”
A federal conviction by a jury from which women had been excluded, although eligible for service under state law, was reviewed in Ballard v. United States, 329 U. S. 187 (1946). Noting the federal statutory “design to make the jury ‘a cross-section of the community’ ” and the fact that women had been excluded, the Court exercised its supervisory powers over the federal courts and reversed the conviction. In Brown v. Allen, 344 U. S. 443, 474 (1953), the Court declared that “[o]ur duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.”
Some years later in Carter v. Jury Comm’n, 396 U. S. 320, 330 (1970), the Court observed that the exclusion of Negroes from jury service because of their race “contravenes the very idea of a jury — ‘a body truly representative of the community’ . . . (Quoting from Smith v. Texas, supra.) At about the same time it was contended that the use of six-man juries in noncapital criminal cases violated the Sixth Amendment for failure to provide juries drawn from a cross section of the community, Williams v. Florida, 399 U. S. 78 (1970). In the course of rejecting that challenge, we said that the number of persons on the jury should “be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community.” Id., at 100. In like vein, in Apodaca v. Oregon, 406 U. S. 404, 410-411 (1972) (plurality opinion), it was said that “a jury will come to such a [commonsense] judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate ... on the question of a defendant’s guilt.” Similarly, three Justices in Peters v. Kiff, 407 U. S., at 500, observed that the Sixth Amendment comprehended a fair possibility for obtaining a jury constituting a representative cross section of the community.
The unmistakable import of this Court’s opinions, at least since 1940, Smith v. Texas, supra, and not repudiated by intervening decisions, is that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial. Recent federal legislation governing jury selection within the federal court system has a similar thrust. Shortly prior to this Court’s decision in Duncan v. Louisiana, supra, the Federal Jury Selection and Service Act of 1968 was enacted. In that Act, Congress stated “the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” 28 U. S. C. § 1861. In that Act, Congress also established the machinery by which the stated policy was to be implemented. 28 U. S. C. §§ 1862-1866. In passing this legislation, the Committee Reports of both the House and the Senate recognized that the jury plays a political function in the administration of the law and that the requirement of a jury’s being chosen from a fair cross section of the community is fundamental to the American system of justice. Debate on the floors of the House and Senate on the Act invoked the Sixth Amendment, the Constitution generally, and prior decisions of this Court in support of the Act.
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U. S., at 155-156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. “Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case.... [T]he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.” Thiel v. Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting).
IV
We are also persuaded that the fair-cross-section requirement is violated by the systematic exclusion of women, who in the judicial district involved here amounted to 53% of the citizens eligible for jury service. This conclusion necessarily entails the judgment that women are sufficiently numerous and distinct from men and that if they are systematically eliminated from jury panels, the Sixth Amendment’s fair-cross-section requirement cannot be satisfied. This very matter was debated in Ballard v. United States, supra. Positing the fair-cross-section rule — there said to be a statutory one — the Court concluded that the systematic exclusion of women was unacceptable. The dissenting view that an all-male panel drawn from various groups in the community would be as truly representative as if women were included, was firmly rejected:
“The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men — personality, background, economic status — and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. ■ Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.” 329 U. S., at 193-194.
In this respect, we agree with the Court in Ballard: If the fair-cross-section rule is to govern the selection of juries, as we have concluded it must, women cannot be systematically excluded from jury panels from which petit juries are drawn. This conclusion is consistent with the current judgment of the country, now evidenced by legislative or constitutional provisions in every State and at the federal level qualifying women for jury service.
V
There remains the argument that women as a class serve a distinctive role in society and that jury service would so substantially interfere with that function that the State has ample justification for excluding women from service unless they volunteer, even though the result is that almost all jurors are men. It is true that Hoyt v. Florida, 368 U. S. 57 (1961), held that such a system did not deny due process of law or equal protection of the laws because there was a sufficiently rational basis for such an exemption. But Hoyt did not involve a defendant’s Sixth Amendment right to a jury drawn from a fair cross section of the community and the prospect of depriving him of that right if women as a class are systematically excluded. The right to a proper jury cannot be overcome on merely rational grounds. There must be weightier reasons if a distinctive class representing 53% of the eligible jurors is for all practical purposes to be excluded from jury service. No such basis has been tendered here.
The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community’s welfare. Rawlins v. Georgia, 201 U. S. 638 (1906). It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community. A system excluding all women, however, is a wholly different matter. It is untenable to suggest these days that it would be a special hardship for each and every woman to perform jury service or that society cannot spare any women from their present duties. This may be the case with many, and it may be burdensome to sort out those who should be exempted from those who should serve. But that task is performed in the case of men, and the administrative convenience in dealing with women as a class is insufficient justification for diluting the quality of community judgment represented by the jury in criminal trials.
VI
Although this judgment may appear a foregone conclusion from the pattern of some of the Court’s cases over the past 30 years, as well as from legislative developments at both federal and state levels, it is nevertheless true that until today no case had squarely held that the exclusion of women from jury venires deprives a criminal defendant of his Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community. It is apparent that the first Congress did not perceive the Sixth Amendment as requiring women on criminal jury panels; for the direction of the First Judiciary Act of 1789 was that federal jurors were to have the qualifications required by the States in which the federal court was sitting and at the time women were disqualified under state law in every State. Necessarily, then, federal juries in criminal cases were all male, and it was not until the Civil Rights Act of 1967, 71 Stat. 638, 28 U. S. C. § 1861 (1964 ed.), that Congress itself provided that all citizens, with limited exceptions, were competent to sit on federal juries. Until that time, federal courts were required by statute to exclude women from jury duty in those States where women were disqualified. Utah was the first State to qualify women for juries;, it did so in 1898, n. 13, supra. Moreover, Hoyt v. Florida was decided and has stood for the proposition that, even if women as a group could not be constitutionally disqualified from jury service, there was ample reason to treat all women differently from men for the purpose of jury service and to exclude them unless they volunteered.
Accepting as we do, however, the view that the Sixth Amendment affords the defendant in a criminal trial the opportunity to have the jury drawn from venires representative of the community, we think it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male. To this extent we cannot follow the contrary implications of the prior cases, including Hoyt v. Florida. If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed. If at one time it could be held that Sixth Amendment juries must be drawn from a fair cross section of the community but that this requirement permitted the almost total exclusion of women, this is not the case today. Communities differ at different times and places. What is a fair cross section at one time or place is not necessarily a fair cross section at another time or a different place. Nothing persuasive has been presented to us in this case suggesting that all-male venires in the parishes involved here are fairly representative of the local population otherwise eligible for jury service.
^
Our holding does not augur or authorize the fashioning of detailed jury-selection codes by federal courts. The fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community. Carter v. Jury Comm’n, supra, as did Brown v. Allen, supra; Rawlins v. Georgia, supra, and other cases, recognized broad discretion in the States in this respect. We do not depart from the principles enunciated in Carter. But, as we have said, Louisiana’s special exemption for women operates to exclude them from petit juries, which in our view is contrary to the command of the Sixth and Fourteenth Amendments.
It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, Fay v. New York, 332 U. S. 261, 284 (1947); Apodaca v. Oregon, 406 U. S., at 413 (plurality opinion) ; but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.
The judgment of the Louisiana Supreme Court is reversed and the case remanded to that court for further proceedings not inconsistent with this opinion.
So ordered.
Mr. Chief Justice Burger concurs in the result.
La. Const., Art. VII, § 41, read, in pertinent part:
“The Legislature shall provide for the election and drawing of competent and intelligent jurors for the trial of civil and criminal cases; provided, however, that no woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service.”
As of January 1, 1975, this provision of the Louisiana Constitution was repealed and replaced by the foEowing provision, La. Const., Art. V, §33:
“(A) Qualifications.
“A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled. The legislature may provide additional qualifications.
“(B) Exemptions.
“The supreme court shall provide by rule for exemption of jurors.”
La. Code Crina. Proc., Art. 402, provided:
“A woman shaU not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service.”
This provision has been repealed, effective January 1, 1975. The repeal, however, has no effect on the conviction obtained in this case.
The stipulation appears in the Appendix, at 82-84, filed in Edwards v. Healy, No. 73-759, now pending before the Court.
Ibid.
The death sentence imposed on appellant was annulled and set aside by the Supreme Court of Louisiana in accord with this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), with instructions to the District Court to impose a life sentence on remand. The Supreme Court of Louisiana granted a rehearing to appellant on certain other issues not relevant to this appeal, 282 So. 2d 491, 500 (1973), and later denied a second petition for rehearing.
Pub. L. 90-274, 82 Stat. 53, 28 U. S. C. § 1861 et seq.
H. R. Rep. No. 1076, 90th Cong., 2d Sess., 8 (1968):
“It must be remembered that the jury is designed not only to understand the case, but also to reflect the community’s sense of justice in deciding it. As long as there are significant departures from the cross sectional goal, biased juries are the result — biased in the sense that they reflect a slanted view of the community they are supposed to represent.”
See S. Rep. No. 92-516, p. 3 (1971).
S. Rep. No. 891, 90th Cong., 1st Sess., 9 (1967): “A jury chosen from a representative community sample is a fundamental of our system of justice.”
Both the Senate and House Reports made reference to the decision of the Court of Appeals in Rabinowitz v. United States, 366 F. 2d 34, 57 (CA5 1966), which, in sustaining an attack on the composition of grand and petit jury venires in the Middle District of Georgia, had held that both the Constitution and 28 U. S. C. § 1861, prior to its amendment in 1968, required a system of jury selection “that will probably result in a fair cross-section of the community being placed on the jury rolls.” See S. Rep. No. 891, supra, at 11, 18; H. R. Rep. No. 1076, supra, n. 7, at 4, 5.
Elimination of the “key man” system throughout the federal courts was the primary focus of the Federal Jury Selection and 'Service Act of 1968. See H. R. Rep. No. 1076, supra, at 4 and n. 1.
114 Cong. Rec. 3992 (1968) (remarks of Mr. Rogers). See also 118 Cong. Rec. 6939 (1972) (remarks of Mr. Poff).
114 Cong. Rec. 3999 (1968) (remarks of Mr. Machen).
Id., at 6609 (remarks of Sen. Tydings).
Compare Peters v. Kiff, 407 U. S. 493, 502-504 (1972) (opinion of Marshall, J., joined by Douglas and Stewart, JJ.):
“These principles compel the conclusion that a State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well.
“But the exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases. ... ■
“Moreover, we are unwilling to make the assumption that the exclusion of Negroes has relevance only for issues involving race. When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” (Footnote omitted.)
• Controlled studies of the performance of women as jurors conducted subsequent to the Court’s decision in Ballard have concluded that women bring to juries their own perspectives and values that influence both jury deliberation and result. See generally Rudolph, Women on Juries — Voluntary or Compulsory?, 44 J. Am. Jud. Soc. 206 (1961); 55 J. Sociology & Social Research 442 (1971) ; 3 J. Applied Social Psychology 267 (1973); 19 Sociometry 3 (1956).
This is a relatively modern development. Under the English common law, women, with the exception of the trial of a narrow class of cases, were not considered to be qualified for jury service by virtue of the doctrine of propter defectum sexus, a “defect of sex.” 3 W. Blackstone, Commentaries *362. This common-law rule was made statutory by Parliament in 1870, 33 & 34 Viet., e. 77, and then rejected by Parliament in 1919, 9 & 10 Geo. 5, c. 71. In this country women were disqualified by state law to sit as jurors until the end of the 19th century. They were first deemed qualified for jury service by a State in 1898, Utah Rev. Stat. Ann., Tit. 35, § 1297 (1898). Today, women are qualified as jurors in all the States. The jury-sendee statutes and rules of most States do not on their face extend to women the type of exemption presently before the Court, although the exemption provisions of some States do appear to treat men and women differently in certain respects.
Florida Stat. 1959, § 40.01 (1), provided that grand and petit jurors be taken from male and female citizens of the State possessed of certain qualifications and also provided that “the name of no female ■person shall be taken for jury service unless said person has registered with the clerk of the circuit court her desire to be placed on the jury list.” Hoyt v. Florida, 368 U. S. 57, 58 (1961).
The state interest, as articulated by the Court, was based on the assumption that “woman is still regarded as the center of home and family life.” Hoyt v. Florida, supra, at 62. Louisiana makes a similar argument here, stating that its grant of an automatic exemption from jury service to females involves only the State’s attempt “to regulate and provide stability to the state’s own idea of family life.” Brief for Appellee 12.
In Hoyt, the Court determined both that the underlying classification was rational and that the State’s proffered rationale for extending this exemption to females without family responsibilities was justified by administrative convenience. 368 U. S., at 62-63.
In Hoyt v. Florida, supra, the Court placed some emphasis on the notion, advanced by the State there and by Louisiana here in support of the rationality of its statutory scheme, that “woman is still regarded as the center of home and family life.” 368 U. S., at 62. Statistics compiled by the Department of Labor indicate that in October 1974, 54.2% of all women between 18 and 64 years of age were in the labor force. United States Dept. of Labor, Women in the Labor Force (Oct. 1974). Additionally, in March 1974, 45.7% of women with children under the age of 18 were in the labor force; with respect to families containing children between the ages of six and 17, 67.3% of mothers who were widowed, divorced, or separated were in the work force, while 51.2% of the mothers whose husbands were present in the household were in the work force. Even in family units in which the husband was present and which contained a child under three years old, 31% of the mothers were in the work force. United States Dept. of Labor, Marital and Family Characteristics of the Labor Force, Table F (March 1974). While these statistics perhaps speak more to the evolving nature of the structure of the family unit in American society than to the nature of the role played by women who happen to be members of a family unit, they certainly put to rest the suggestion that all women should be exempt from jury service based solely on their sex and the presumed role in the home.
Section 29 of that Act provided that “the jurors shall have the same qualifications as are requisite for jurors by the laws of the State of which they are citizens, to serve in the highest courts of law of such State . . . 1 Stat. 88.
Hoyt v. Florida, as had Fay v. New York, 332 U. S. 261, 289-290 (1947), also referred to the historic view that jury service could constitutionally be confined to males: “We need not, however, accept appellant’s invitation to canvass in this case the continuing validity of this Court’s dictum in Strauder v. West Virginia, 100 U. S. 303, 310, to the effect that a State may constitutionally ‘confine’ jury duty ‘to males.' This constitutional proposition has gone unquestioned for more than eighty years in the decisions of the Court, see Fay v. New York, supra, at 289-290, and had been reflected, until 1957, in congressional policy respecting jury service in the federal courts themselves.” 368 U. S., at 60. (Footnote omitted.) See also Glasser v. United States, 315 U. S. 60, 64-65, 85-86 (1942).
It is most interesting to note that Strauder v. West Virginia itself stated:
“[T]he constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” 100 U. S. 303, 308 (1880).
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:
|
sc_decisiontype
|
B
|
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.
BARTONE v. UNITED STATES.
No. 337.
Decided October 28, 1963.
O. B. Cline, Jr. and Nicholas J. Capuano for petitioner.
Solicitor General Cox for the United States.
Per Curiam.
Although there were other questions before the Court of Appeals, the sole question presented by this petition is stated as follows:
“May a United States District Judge orally revoke the probation of a Defendant in open court and in the presence of the Defendant and his counsel and impose a sentence of confinement for a specific period of time and thereafter enter a formal written judgment and commitment in which a larger and longer sentence of confinement is imposed and set forth?”
It appears that on September 14, 1962, petitioner and his counsel appeared in the District Court, at which time a sentence of confinement of one year was imposed. Subsequently, and in petitioner’s absence, the court enlarged the penalty by one day.
The propriety of this enlargement of the sentence, along with other questions, was presented on the appeal to the Court of Appeals, which made no mention of it in its opinion. 317 F. 2d 608. The Court of Appeals did, however, deny a motion of the United States to remand the cause for the purpose of correcting the sentence — relief to which the United States concedes petitioner is entitled. See Rakes v. United States, 309 F. 2d 686. The only question is whether the error will be corrected here and now or whether petitioner will be remitted to his remedy under Rule 35 of the Federal Rules of Criminal Procedure ; and whether petitioner will be advantaged by one procedure or another is not our concern.
This error, in enlarging the sentence in the absence of petitioner, was so plain in light of the requirements of Rule 43 that it should have been dealt with by the Court of Appeals, even though it had not been alleged as error.
As seen from our Miscellaneous Docket for 1962, the use of collateral proceedings for relief from federal judgments of conviction is considerable:
October Term, 1962. — Miscellaneous Docket.
totals.
Federal prisoners:
Direct attack. 109
28 U. S. C. § 2255. 93
Habeas corpus through federal courts. 38
Original habeas corpus (in this Court). 40
Rule 35, Fed. Rules Crim. Proc. 4
284
Where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceeding. See Fay v. Noia, 372 U. S. 391. But the situation is different in federal proceedings, over which both the Courts of Appeals and this Court (McNabb v. United States, 318 U. S. 332) have broad powers of supervision. It is more appropriate, whenever possible, to correct errors reachable by the appeal rather than remit the parties to a new collateral proceeding.
We grant certiorari and reverse the judgment denying correction of the sentence.
Rule 43 of the Federal Rules of Criminal Procedure provides:
“The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant’s absence. The defendant’s presence is not required at a reduction of sentence under Rule 35.”
Supra, note 1.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
|
songer_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.
Mary P. LAFFEY et al., v. NORTHWEST AIRLINES, INC., Appellant, Air Line Pilots Association, Non-Aligned Party.
No. 78-1365.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 24, 1979.
Decided Oct. 1, 1980.
Philip A. Lacovara, Washington, D. C., with whom Peter M. Kreindler, Gerald Goldman, Washington, D. C., Robert L. Deitz, Washington, D. C., David J. Ranheim and Henry Halladay, Minneapolis, Minn., were on the brief, for appellant.
Michael H. Gottesman, Washington, D. C., with whom George H. Cohen, Robert M. Weinberg and Julia Penny Clark, Washington, D. C., were on the brief, for appellees.
Mary-Helen Mautner, Atty., Equal Employment Opportunity Commission, Washington, D. C., with whom Beatrice Rosenberg, Asst. Gen. Counsel, Equal Employment Opportunity Commission, Washington, D. C., was on the brief, for the Equal Employment Opportunity Commission, amicus curiae, urging affirmance. Issie L. Jenkins, Atty., Equal Employment Opportunity Commission, Washington, D. C., also entered an appearance for the Equal Employment Opportunity Commission, amicus curiae.
Donald S. Shire, Associate Sol., U. S. Dept, of Labor, Washington, D. C., was on the brief for the Secretary of Labor, amicus curiae, urging affirmance.
Before WRIGHT, Chief Judge, ROBINSON, Circuit Judge, and RICHEY , United States District Judge for the District of Columbia.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Northwest Airlines, Inc. (NWA), appeals from an order of the District Court denying its motion for modification of a continuing injunction. The injunction effectuates part of the relief awarded by the District Court in 1974 to female cabin attendants in redress of violations of the Equal Pay Act of 1963 and Title VII of the Civil
Rights Act of 1964. Our review leads us to conclude that the denial of NWA’s motion rests partially on an overbroad reading of the Equal Pay Act-a general interpretation to which this court succumbed on a prior appeal. We believe that it would be inappropriate, though, in the situation before us to deviate from the law of the case enunciated in our previous decision. Even were this not so, however, we would still be constrained to reaffirm our former conclusion. Although we have determined that our pri- or analysis was faulty in some respects, we find that it leads us to the proper result since the construction we earlier gave the Equal Pay Act, to which the District Court adhered, is required on the special facts of this case. We accordingly affirm.
I. THE PRIOR LITIGATION
A. The District Court’s Dispositions
In the original proceeding, the District Court made extensive factual findings, articulated its legal conclusions and specified the relief it deemed warranted. The highlights of the litigation’s history, as thus established, may usefully be recounted in order to elucidate the background of the present controversy.
For many years, NWA maintained a gender-based job classification scheme resulting in employment of most male cabin attendants as pursers and all female cabin attendants save one as stewardesses. Pursers and stewardesses performed tasks requiring equal skill, effort and responsibility, but pursers were paid substantially higher salaries than stewardesses with equivalent seniority. From 1967 onward, NWA in theory allowed female cabin attendants to bid for openings in the purser classification, but women could not effectively utilize that apparent opportunity. They were required to start at the bottom of the purser seniority list with no credit for service as stewardesses; the system thus relegated them to last choice in selecting schedules, susceptibility to involuntary transfer, and first to be laid off upon reductions in force. To remedy the wage inequities, the District Court awarded female cabin attendants backpay and enjoined NWA to pay them the same salaries received by pursers.
NWA also discriminated against female cabin attendants in several other terms and conditions of employment, but we need discuss only two. After 1964, male cabin attendants were provided with single rooms on layovers but female cabin attendants were paired in double rooms. While, pursuant to collective bargaining agreements, company policy ostensibly was to require all cabin attendants to share double rooms, it was enforced only with respect to women. Moreover, a 1970 bargaining contract afforded to male cabin attendants a uniform-cleaning allowance of $13 per calendar quarter but offered female cabin attendants no such allowance. The District Court granted the disadvantaged cabin attendants backpay to compensate for the deprivation of single-room occupancy and cleaning allowances, and the injunction commands NWA to furnish single rooms on layovers and quarterly uniform-cleaning allowances to all cabin attendants.
B. The Initial Appeal
When, in Laffey I, this litigation earlier was before this court, we affirmed the District Court’s ruling that the wage discrimination flowing from NWA’s policy of classifying men as pursers and women as stewardesses infringed both the Equal Pay Act and Title VII. We also upheld the stipulations of the District Court’s injunction directing NWA to furnish female cabin attendants with single rooms on layovers and a quarterly allowance for cleaning uniforms. We reasoned that since NWA regularly supplied lodging to its employees the costs thereof constituted wages under the Equal Pay Act, and consequently that “the provision of less expensive and less desirable lay-over accommodations to female employees than were provided to male employees” violated the Act Additionally, applying the Act’s proscription on downward equalization, we sustained the in-
junctive requirement that NWA afford female cabin attendants the same layover accommodations and cleaning allowances that their male counterparts had previously enjoyed.
We did not affirm the District Court’s judgment in toto, however. We vacated three aspects of the court’s remedial order and also, in light of weight restrictions newly proposed by NWA, directed the court to reconsider a ban which it had imposed on weight standards. We stated that “[i]f the present regulations, applied objectively and in good faith, pass muster under Title VII, the company will become entitled to a modification of this aspect of the injunction by the District Court.”
II. THE MOTION TO MODIFY NWA moved in the District Court for a modification of the 1974 injunction that would allow implementation of policies specified in a 1975 collective bargaining agreement respecting layover accommodations and the uniform-cleaning allowance. That agreement merged all cabin attendants into one classification and placed them all on the purser salary scale erected in the 1973 union agreement. The 1975 contract obligated NWA to furnish “lodging so that not more than two cabin attendants are assigned to one room,” and to fully replace selected uniform items for all cabin attendants in lieu of a cleaning allowance. NWA contends that since it now extends equal treatment to all cabin attendants in its provision of layover accommodations and cleaning allowances, it is entitled to a modification of the 1974 injunction similar to the one we instructed the District Court to consider with regard to weight restrictions. NWA further argues that the proposed changes would not constitute a downward equalization in contravention of the Equal Pay Act.
The District Court denied NWA’s motion to modify, in part because it found “no changed circumstances which would warrant modification of the injunction... ,” Consonantly with its obligation to cleave to the legal concept of wages we expressed in Laffey I, the court also concluded that NWA’s “proposed modification would be contrary to [the District] [C]ourt’s intent in formulating a remedy for the statutory violations in this lawsuit and would constitute a ‘downward equalization’ of benefits in violation of Title VII and the Equal Pay Act.” The instant appeal ensued.
III. THE LAW OF THE CASE
At the outset, we encounter a procedural objection to NWA’s bid for modification. Appellees argue that the District Court’s 1974 order was a final judgment, and as such is alterable only if it meets the stringent requirements laid down in Civil Rule 60(b). Since NWA assertedly failed to show changed circumstances of the type demanded by the rule, they maintain that the District Court correctly denied the motion to modify.
We disagree with appellees’ characterization of the 1974 order as one final in nature. In relevant part the order provided:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:. . .
(5) ... it is no longer equitable that the judgment should have prospective application. .. . (emphasis supplied)
Counsel for the plaintiffs and counsel for [NWA] shall meet promptly following the signing of this Order to establish procedures for determining the precise monetary amounts due to each employee pursuant to the provisions of this Order.... Any disputes as to entitlement or computation which cannot be resolved by agreement of counsel shall be referred to the Court for disposition.
An order is final only when the court has resolved all disputed matters before it and need take no further action save to execute the judgment. The 1974 order did not meet this standard of finality because it left unadjudicated the calculations essential to ascertainment of the amount of backpay NWA owed each employee who was victimized -by its Equal Pay Act and Title VII transgressions. It follows that Rule 60(b) interposes no barrier.
Nevertheless, the District Court was entirely right in denying NWA’s motion to modify the injunction since it had no power to reconsider issues laid to rest on an earlier appeal. Our Laffey I decision affirming the District Court’s directive respecting lodging accommodations and uniform- • cleaning allowances established the law of the case, and the District Court could not deviate from our holdings therein without our leave.
An appellate court also is normally bound by the law of the case it established on a prior appeal, and for a very sound reason. If justice is to be served, there must at some point be an end to litigation; on that account, the power to recall mandates should be exercised sparingly. To warrant divergence from the law of the case, a court must not only be convinced that its earlier decision was erroneous; it must also be satisfied that adherence to the law of the case will work a grave injustice. In the litigation before us, we perceive no exceptional circumstances which would justify overriding the strong policy of repose normally accorded past decisions. Our prior interpretation of the Equal Pay Act admittedly was overinclusive-a defect that for posterity we later cure in this opinion -but that is as much as can be said. If error without more sufficed to render a decision forever vulnerable to reopening, the law of the case doctrine would lose all meaning. Here, as in another context the First Circuit once said, “we believe it would be far greater error to permit reconsideration now after denial of petitions for rehearing and certiorari. There must be an end to dispute.”
To be sure, there are exceptions to the policy of inviolability of what has already been deemed settled. The doctrine of law of the case “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Thus a court may depart from the law of the case to correct clerical mistakes, to clarify its opinion or mandate, to remedy fraud on the court or other misconduct, to avoid divergent results in cases pending simultaneously, or to minister to other similar aberrations. But the instant litigation presents none of these occasions, nor any other circumstance capable of generating injustice from adherence to the law of the case in this instance. We thus agree with the District Court that modification of the injunction was unwarranted.
IV. THE EQUAL PAY ACT
Our concern with Laffey I’s disposition of the questions on layover accommodations and cleaning allowances has not disappeared at this point, however. Although we are not constrained to tamper with these rulings for NWA’s benefit, the claim that we misread the Equal Pay Act prompted us to restudy these issues in the interest of soundness of the law for the future. After an intensive effort in that direction, we find that we did give the statutory term “wage” a scope somewhat too large. But we also discovered that Laffey I’s holdings on NWA’s layover accommodations and cleaning allowances were fully accurate on their own peculiar facts. So it was that this additional ground for affirmance of the District Court came to light.
The Equal Pay Act required the District Court, in framing relief from sex-based wage differentials, to avoid equalization downward. On that basis the court, in its 1974 order, directed NWA to provide female cabin attendants with the same lodging accommodations and uniform-cleaning allowances that it previously had afforded male cabin attendants. In Laffey I, we affirmed this aspect of the order.
The validity of this application of the Act’s mandate for upward equalization turns on the interpretation properly to be ascribed to the statutory term “wage” in its relation to the costs of the accommodations and allowances. NWA argues that its expenditures for these purposes are not wages, and thus that we erred when on the prior appeal we foreclosed the possibility of equalization of accommodations and allowances downward. As was implicit in Laf fey I, while the Equal Pay Act does not define wages, the legislation it amended-the Fair Labor Standards Act of 1938 -does. Under the Fair Labor Standards Act, we again note, the “ ‘[w]age’ paid to an employee includes the reasonable cost ... to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees....” Since NWA “customarily furnished” lodging accommodations and uniform-cleaning allowances to selected classes of employees, as distinguished from reimbursing those employees for expenditures for lodging and cleaning services not regularly supplied, we felt in Laffey I that outlays for these items were wages within the meaning of the Equal Pay Act. After a more penetrating analysis of the administrative regulations implementing the statutory text, we now find this interpretation to be overbroad. Our continued study has revealed that as a general rule provision of accommodations and funds for the cleaning of uniforms will not constitute wages. Nevertheless, we find that in the case before us the single rooms and cleaning allowances really were provided primarily for the benefit of the employees receiving them, and that for that reason they constituted a part of the employees’ wages for purposes of that Act.
To enable determination of a “wage”-“the reasonable cost ... of furnishing . . . facilities ... customarily furnished by [the] employer to his employees” -the Fair Labor Standards Act authorizes the Administrator of the Wage and Hour Division of the Department of Labor to ascertain the fair value of such facilities for defined classes of employees and in defined areas. In exercising this function, the Administrator has promulgated a regulation stating:
The cost of furnishing “facilities” found by the Administrator to be primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be included in computing wages.
The following is a list of facilities found by the Administrator to be primarily for the benefit or convenience of the employer. The list is intended to be illustrative rather than exclusive: (i) Tools of the trade and other materials and services incidental to carrying on the employer’s business; (ii) the cost of any construction by and for the employer; (iii) the cost of uniforms and of their laundering, where the nature of the business requires the employee to wear a uniform.
Another regulation supplies additional examples of expenses that usually are incurred for the benefit of the employer, including:
The actual or reasonably approximate amount expended by an employee, who is traveling “over the road” on his employer’s business, for transportation (whether by private car or common carrier) and living expenses away from home, other travel expenses, such as taxicab fares, incurred while traveling on the employer’s business.
In recognition of the Administrator’s statutory role in the area of wage regulation and the expertise he has developed
therein, we must accord deference to the construction he has placed on the congressional language defining “wage.” Exclusion from the concept of wages, for equal-pay purposes, of lodging and other facilities and services that primarily benefit the employer rather than the employee is indisputably a reasonable interpretation, and one that comports with everyday usage of “wage.” It does not suffice, as we thought in Laffey I, that the facility or service merely have been “customarily furnished” by the employer; it must also primarily serve the interest of the employee. That we wish to make clear for the future.
This does not mean that we erred in holding in Laffey I that the expenses of the layover accommodations and cleaning allowances here involved were wages. The regulations elucidating the meaning of “wage” for Equal-Pay-Act purposes themselves acknowledge that they are to be applied only “as a general rule.” In the case at bar, we are unable to escape the conclusion that the particular type of lodging furnished male cabin attendants-a single room-was a concession primarily for the benefit of the employee. As the Secretary of Labor, participating as amicus curiae, convincingly argues, providing double rooms conserves the employer’s pocketbook, thus fostering his business interests, but the expense of single rooms manifestly is incurred principally for the convenience and added comfort of the employee. The single room is a desirable perquisite for which, we note, NWA’s employees recently bargained in vain. Indeed, NWA has actively resisted the persistent effort of the employees’ union to secure a contractual guaranty of single rooms on layovers. We can view NWA’s stance in these negotiations only as an endeavor to avoid a financial burden.
Similarly, we cannot accept NWA's thesis that the uniform-cleaning allowance, which earlier was given only to NWA’s male cabin attendants, was intended primarily as a boon to the employer. Had the allowance benefited the employer rather than the employee, NWA obviously would have extended it to female cabin attendants as well. While a cleaning allowance provided all employees would not ordinarily amount to a wage, the strictly sex-based limitation on its availability exposes it as simply another supplement to male salaries.
It follows that the District Court correctly denied NWA’s motion for modification of the 1974 order. The law of the case doctrine rendered it impregnable to change save in this court, and then only on grounds absent here. To boot, the request for modification must in any event fail on the merits. The order appealed from is accordingly
Affirmed
. Laffey v. Northwest Airlines, Inc., 481 F.Supp. 199 (D.D.C.1978), Joint Appendix (J.App.) 198-204.
. In Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973), the District Court entered its findings of fact and conclusions of law, and later, in Laffey v. Northwest Airlines, Inc., 374 F.Supp. 1382 (D.D.C.1974), spelled out the injunctive and monetary relief awarded. In a subsequent ruling, Laffey v. Northwest Airlines, Inc., 392 F.Supp. 1076 (D.D.C.1975), the court revised one paragraph of its 1974 order.
. Pub.L.No. 88-38, § 3, 77 Stat. 56 (1963), 29 U.S.C. § 206(d) (1976). In most instances hereinafter, we cite this and other legislation only as codified.
. Pub.L.No. 88-352, tit. VII, § 701 et seq., 78 Stat. 253 (1964), as amended, 42 U.S.C. § 2000e et seq. (1976).
. Laffey v. Northwest Airlines, Inc. (Laffey I), 185 U.S.App.D.C. 322, 348 n.175, 567 F.2d 429, 455 n.175 (1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978), on remand, Laffey v. Northwest Airlines, Inc., 481 F.Supp. 199 (D.D.C.1979), discussed in Part III infra.
. Discussed in Part III infra.
. Discussed in Part IV infra.
. See note 2 supra.
. Laffey v. Northwest Airlines, Inc., supra note 2. 366 F.Supp. at 765, 767 (Finds. 19, 20). In 1949, NWA commenced employment of some male applicants as “flight service attendants” to perform essentially the same duties as the all -female contingent of stewardesses. In a 1951 collective bargaining agreement, flight sendee attendants acquired the right to fill purser openings in order of seniority, and NWA never failed to fill a purser vacancy with the flight service attendant most senior. In 1957, however, NWA discontinued hiring for the position of flight service attendant and by 1970 all male cabin attendants were classified as pursers. Just prior to initiation of litigation, NWA began to employ male applicants as “stewards” to provide the same services as stewardesses at the same rates of pay. Id at 766-767 (Finds. 12-21).
. Id at 789 (Concl. 4).
. Id at 788 (Find. 80).
. Id at 769 (Find. 25). When NWA anticipated purser vacancies, “its practice was to hire men off the streets, put them through its five-week cabin attendant training program, and then post notices of purser vacancies.” Id. at 769 (Find. 27) (emphasis in original).
. Laffey v. Northwest Airlines, Inc., supra note 2, 374 F.Supp. at 1385-1386.
. Id. at 1385-1386. The District Court later abolished the separate classification of pursers and ordered all cabin attendants to bid for schedules on the basis of seniority. Laffey v. Northwest Airlines, Inc., supra note 2, 392 F.Supp. at 1078.
. NWA forbade all female cabin attendants to wear eyeglasses, but did not extend that prohibition to male cabin attendants hired before September, 1971. Laffey v. Northwest Airlines, Inc., supra note 2, 366 F.Supp. at 774 (Find. 39(7)). Female attendants, but not male attendants, had to meet a weight standard. Id. at 773-774 (Find. 39(1 )-(4)). NWA also required female attendants to adhere to stricter luggage requirements than those imposed on males. Id. (Find. 39(10-11)). Prior to 1971, NWA, while observing for male applicants a maximum height limitation of six feet, did not employ females as cabin attendants if they were taller than five feet nine inches. Id. (Find. 39(14)).
. Id. at 11A (Finds. 39(5), (6)).
. The provision respecting lodging accommodations in a 1975 contract was the same as that earlier appearing in a 1973 contract. Brief for Appellees at 13.
. Laffey v. Northwest Airlines, Inc., supra note 2, 366 F.Supp. at 774 (Find. 39(5)(6)).
. Id. at 775 (Find. 39(12)). Both the 1973 and the 1975 collective bargaining agreements specified, however, that NWA would pay the full replacement cost of selected uniform items for all cabin attendants and no cleaning allowance was provided eitfher male or female cabin attendants. J.App. 89-90.
. Laffey v. Northwest Airlines, Inc., supra note 2, 374 F.Supp. at 1387.
. The District Court’s injunctive order directs:
(c) Lodging: Beginning with the date of this Order, the Company shall furnish single rooms to all female cabin attendants on layovers, which shall not be inferior in quality to those heretofore provided to male cabin attendants. Thereafter, the Company shall not assign double rooms to any female cabin attendant, nor provide rooms to any female cabin attendant inferior in quality to those heretofore provided to male cabin attendants.
(d) Uniform Cleaning Allowance: Beginning with the date of this Order, the Company shall provide a quarterly uniform cleaning allowance to each female cabin attendant. ...
Id. at 1385.
. Supra note 5.
. 185 U.S.App.D.C. at 346-347, 567 F.2d at 453-454. See note 49 infra.
. Id., 185 U.S.App.D.C. at 348-350, 567 F.2d at 455-456.
. See Part IV infra.
. Laffey I, supra note 5, 185 U.S.App.D.C. at 348 n.175, 567 F.2d at 455 n.175.
. See note 63 infra.
. Laffey I, supra note 5, 185 U.S.App.D.C. at 350-351, 567 F.2d at 457-458.
. The vacated provisions pertained to NWA’s good faith, the Title VII recovery period and eligible Title VII class members. We remanded the case to the District Court for reconsideration of these matters. Id., 185 U.S.App.D.C. at 371, 567 F.2d at 478.
. Id., 185 U.S.App.D.C. at 349, 567 F.2d at 456.
. Id.
. J.App. 19. NWA submitted to the District Court a proposed order which would have amended the pertinent 1974 injunctive provisions on to lodging and uniforms to read as follows:
(c) Lodging: The Company shall furnish rooms to all female cabin attendants on layovers in accordance with the policy established under the then-current collective bargaining agreement, which policy shall be applied without discrimination in favor of or against either male cabin attendants or female cabin attendants.
(d) Uniforms: The Company shall furnish, to male and female cabin attendants, without discrimination in favor of or against either male or female cabin attendants any uniform cleaning allowance or uniform replacement allowance provided for in the then-current collective bargaining agreement....
J.App. 21.
. J.App. 24.
. J.App. 27. See note 1 supra.
. J.App. 89-90.
. Brief for Appellants at 20-23. See text supra at notes 30-31.
. Id. at 41 n.26; Reply Brief for Appellants at 18-21.
. Laffey v. Northwest Airlines, Inc., supra note 1, J.App. 198-204.
. Id. at 4, J.App. 202.
. See Part IV infra.
. Laffey v. Northwest Airlines, Inc., supra note 1, at 4-5, J.App. 202-203 (footnote omitted).
. Brief for Appellees at 25-26.
. Fed.R.Civ.P. 60(b), the pertinent part of which states:
. See Schildhaus v. Moe, 335 F.2d 529, 530 (2d Cir. 1964) (Rule 60(b)(5) . is not to be read without emphasis on the important words ‘no longer’; assuming that the propriety of the injunction as issued has passed beyond debate, it refers to some change in conditions that makes continued enforcement inequitable”).
. Brief for Appellees at 28-38.
. Even if the 1974 order were final, the District Court would not, simply on that account, lack power to harmonize its still -continuing injunction with our narrowed view, see Part IV infra, of what constitutes wages under the Equal Pay Act. As Professor Moore states, “[wjhile 60(b)(5) is not a substitute for appeal and a subsequent decision in another case may not warrant a vacation or modification of a continuing injunction, a subsequent modification or extension of the law by authoritative judicial decision may render the continuance of the injunction inequitable and, if it does, a party should be granted appropriate relief from the continuing effect of the injunction.” 7 J. Moore, Federal Practice ' 60.26[4] at 335-336 (1978 rev.) (footnotes omitted). See System Fed’n No. 91, R.R.. Employes’ Dep’t v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 371, 5 L.Ed.2d 349, 353 (1961); Glenn v. Field Packing Co., 290 U.S. 177, 179, 54 S.Ct. 138, 78 L.Ed. 252, 254 (1933); Coca-Cola v. Standard Bottling Co., 138 F.2d 788, 790 (10th Cir. 1943). Cf. D.C. Fed’n of Civic Ass’ns v. Volpe, 172 U.S. App.D.C. 51, 53, 520 F.2d 451, 453 (1975) (district court should have granted Rule 60(b)(1) motion' to reconsider an order denying attorneys’ fees where the order was inconsistent with intervening appellate decision).
. Laffey v. Northwest Airlines, Inc., supra note 2, 374 F.Supp. at 1389.
. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911, 916 (1945); John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88-89, 42 S.Ct. 196, 199, 66 L.Ed. 475, 479 (1922); Taylor v. Board of Educ., 288 F.2d 600, 602 (2d Cir. 1961); Johnson v. Combs, 471 F.2d 84, 87 (5th Cir. 1972), cert. denied, 413 U.S. 922, 93 S.Ct. 3063, 37 L.Ed.2d 1044 (1973); McNutt v. Cardox Corp., 329 F.2d 107, 109 (6th Cir. 1964); Gray v. Swenson, 430 F.2d 9, 11 (8th Cir. 1970); Weingartner v. Union Oil Co., 431 F.2d 26, 27 (9th Cir. 1970), cert. denied, 400 U.S. 1000, 91 S.Ct. 459, 27 L.Ed.2d 451 (1971); First Nat'l Bank v. Johnson County Nat'l Bank & Trust Co., 331 F.2d 325, 327 (10th Cir. 1964). See also Boeing Co. v.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond1_3_3
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant.
MONTGOMERY et al. v. MARZALL.
No. 10655.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 21, 1950.
Decided March 29, 1951.
W. Brown Morton, New York City, with whom Clarence M. Fisher, Washington, D. C., was on the brief, for appellants.
H. S. Miller, United States Patent Office, Washington, D. C., with whom E. L. Reynolds, Solicitor, United States Patent Office, Washington, D. C., was on the brief, for appellee.
Before WILBUR K. MILLER, FAHY and WASHINGTON, Circuit Judges.
WILBUR K. MILLER, Circuit Judge.
This is a patent case. A complaint filed under R.S. § 4915, 35 U.S.C.A. § 63, by William J. Montgomery, the inventor, and The Champion Paper and Fibre Company, his assignee, was dismissed by the United States District Court for the District of Columbia. The court held the claims in issue, which have to do with an improvement in the manufacture of "cast coated” paper, are vague and indefinite at the precise point of novelty, and fail to point out the invention with the distinctness contemplated by R.S. § 4888, 35 U.S.C.A. § 33. We are asked to reverse that ruling.
Coated paper is that which has on one or both surfaces a layer of material other than paper which improves its appearance and makes it more suitable for printing. In the manufacture of such paper prior to the invention here involved, the coating composition was applied to the surface of the paper and was then air dried, after which the surface was calendered by running the coated paper between rollers which polished the surface to the extent desired.
Some years ago The Champion Paper and Fibre Company developed a new process which it called “cast coating.” It placed the surface of the paper, wet with the coating material, against the surface of a large heated chromium-plated drum to which the wet paper adhered. As the drum revolved, the water in the coating material evaporated and, when the material was sufficiently dry, the paper no longer adhered to the drum and could be led away to the winding rolls. It is not necessary to calender cast coated paper because it remains in contact with the polished surface of the drum until the coating material is dry, as a result of which the coated paper has the luster of the drum surface.
There was one weakness in the new process: when the coating composition had dried, the coated paper did not always immediately disengage itself from the casting surface. When it did not, particles of coating gradually began to stick to the drum surface, damaging the quality of the paper and roughening the surface of the drum so that it was necessary to shut down the machine and thoroughly clean the drum surface before operation could be resumed.
Montgomery found by experimentation that if the drum surface carried a film of oil so thin that it could not be detected even by rubbing the surface with a clean cloth, the dry coating would not stick to the drum but the wet coating would adhere long enough to give the proper finish to the coated paper. The film of oil requisite for this result was obtained by adding to the coating composition itself a small quantity of oil. The quantity of oil required to be added to the coating composition in order to form an infinitesimal film on the drum is necessarily small, and the exact quantity is determined by the skilled operator who watches the point at which the paper leaves the drum surface, and increases or decreases the percentage of oil in order to maintain the “cracking-off” point at the proper place, so that adherence to the drum will continue long enough but not too long.
By the practice of this method, The Champion Paper and Fibre Company has been able to maintain its cast coated process in continuous operation without stopping to clean the drum surface as had been necessary under the old method.
.In his specification Montgomery said: “ * * * I have, however, further discovered that if, instead of attempting to apply oil directly to the casting surface, oil is incorporated into the aqueous fluid coating material, this alone will serve to maintain the oil film on the casting surface. * * * I have still further discovered that by properly regulating the amount of oil incorporated into the coating material I can control the thickness of the film so that the desired results can be continuously secured.
“It may be noted that the actual thick- . ness of the required film is completely unknown and it may vary considerably with different oils. The thickness is infinitesimal * * *. The only gauge of its thickness and the only convenient proof of its presence is, in this case, the result obtained. * * * Thus in practical operation the oil content of the coating is adjusted in accordance with the results obtained without regard to any theoretical consideration as to the presence or thickness of a film on the casting surface.”
In other words, Montgomery claims invention because he adds the step of putting a small quantity of oil in the coating composition just before it is applied to the paper. He says the percentage varies for many reasons. One of them is the difference in oils; some oils are effective and some are relatively ineffective. Another is the type of casting surface, as different metals require different amounts of oil to insure satisfactory operation. The temperature of the drum and its speed of rotation are important variables. The type, condition and moisture content of the paper used are significant factors. It is, therefore, necessary to have an expert observe the “cracking-off” point. If the coated paper loosens from the casting surface before the coating has dried adequately, the proportion of oil is too high. If the coated paper tends to stick to the casting surface after the drying is complete, the proportion of oil in the coating material is too low. So, when the cracking-off point moves one way or the other, the operator must increase or reduce the percentage of oil in the coating composition.
As we have said, many varying factors and conditions cause variation in the exact proportion of oil necessary to successful operation, some of which may change while the process is in progress, so requiring adjustment by the alert operator.
The specification gave eight examples of use, in each of which the oil was not more than one per cent of the weight of the coating composition. The Patent Office allowed Claim 26 which described the process as consisting of
“ * * * applying * * * oil in an amount in the order of one-tenth to one percent of the weight of the coating composition, * * * the amount of said oil being such as to maintain on said casting surface, by adsorption thereon, a film of oil of a thickness insufficient to prevent adhesion of the coating composition to the casting surface until the coating composition is substantially dry.”
But, the Patent Office and the District Court rejected Claims 31, 32 and 33, which describe the process but do not expressly say what percentage of oil should be used; thus Claim 31 describes it this way:
"* * * the improvement which comprises incorporating in the coating composition prior to its application to the paper a film-forming oil, and so adjusting the proportion of said film-forming oil in the coating composition that, in continued operation, the coating adheres to the casting surface until non-plastic and thereafter upon further drying becomes non-adherent.”
The District Court’s conclusion of law that the claims in issue are vague and indefinite at the precise point of novelty and fail to point out the invention with the required distinctness was based on the fact that the claims do not specify the proportion of oil to be added but leave that to be adjusted by the skilled operator.
Claim 26, which was allowed, specifies that there shall be added to the coating composition “oil in an amount in the order of one-tenth to one percent of the weight of the coating composition.” But, even under the allowed Claim 26, the exact proportion of oil is not specified but must be regulated by the skilled man who observes the operation, since Claim 26 says the amount of oil must be “such as to maintain on said casting surface, by adsorption thereon, a film of oil of a thickness insufficient to prevent adhesion of the coating composition to the casting surface until the coating composition is substantially dry.”
William J. Montgomery was the only witness. The following is quoted from his testimony:
“Q. In your commercial operations do you use more than one per cent of oil? A. Not at present.
"Q. Well, is one per cent of oil the maximum amount that can be used in the coating and still satisfactorily carry out the process described in the application? A. No.
* * # sje * jjc
“Q. Could you manufacture cast-coated paper, such as is exemplified by this exhibit, according to your process by using more than one per cent of oil? A. It is my opinion that we could, based on laboratory results, a number of which where [ric] we have successfully made sheets with well over one per cent, and some commercial experience where we have been slightly over one percent.
“Q. That is, by selection of these variable factors that you enumerated you could select conditions which would require more than one per cent of oil to carry out the process, is that correct? A. That is correct.
“Q. But according to your commercial procedure, it is less than one per cent because more than that is not necessary, is that correct? A. That is correct.”
Uncontradicted evidence showed, therefore, that one per cent is not the maximum proportion of oil which can be used. Yet the District Court restricted the coverage of the patent to that percentage. The court found as a fact that “The novelty resides in the addition of oil to the coating composition as one of the steps of that process.” The case was decided, however, as though the finding had been: “The novelty resides in the addition of not more than one per cent of oil to the coating composition as one of the steps of that process.” The court seems to have regarded the step of adding oil as not in fact a true “step” in a method claim unless a floor and ceiling were fixed on the small amount to be added. This may have been due to confusion caused by the Bradner patent, to which we refer later.
It is apparent, we think, that the hinge upon which the decision of the District Court turned was its conclusion of law No. 3, which follows:
“ * * * In the claims at bar, the step of 'adjusting the proportion of said film-forming oil * * * ’ is dependent upon the result desired, rather than the result being dependent upon the step.”
This is Na finding of fact, — not a conclusion of law. From it flowed the decisive conclusion of law that the claims are vague and indefinite at the precise point of novelty and so- fail to point out the invention with the distinctness required by the statute. If this finding of fact [conclusion of law] is incorrect, it follows that the court erred in its legal conclusion.
The specification and Montgomery’s testimony make it clear that the result desired is dependent on the step of adjusting the proportion of the film-forming oil in the coating composition. Unless this adjustment is made and maintained the dry coated paper will either stick to the casting surface or will not have a cast surface. The fact that the degree o'f adjustment required is best measured by its effect on the result does not make the result any less dependent on the adjustment.
A similar attack was made upon certain claims in Proctor & Gamble Mfg. Co. v. Refining Inc., 1943, 135 F.2d 900, 906. It was said the claims merely stated the results to be achieved. The Court of Appeals for the Fourth Circuit said:
“The defendant seeks to apply these decisions [General Electric Co. v. Wabash Appliance Corporation, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402; United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 63 S.Ct. 165, 87 L.Ed. 232] to the pending case by pointing out a lack of definiteness in the claims. For example, claim 2 describes a continuous refining process which includes passing the mixture through a heated conduit to raise its temperature to a degree which would facilitate centrifugal separation without specifying the precise degree of temperature; and claim 9 describes a quick continuous refining process which includes mixing measured quantities of oil and alkali ‘for a brief period to effect substantial neutralization of the free fatty acid contained in the oil and to form soap stock.’ It is contended that by reason of these omissions, the claims become merely descriptive oif the desired function.
“This argument, we think, misconceives the nature of the claims in suit. They do not state merely the results to be achieved but are process claims which set out a series of steps by which the desired ends are attained with sufficient definiteness to inform persons skilled in the art and to limit the extent of the monopoly of the patent. It was not necessary or practicable for Clayton to specify the exact degree of emulsion breaking temperature or the precise length of time needed for the substantial neutralization of every quality of oil that might be subjected to refinement; and the evidence shows that the information given was entirely adequate to persons skilled in the art. That such a description is sufficient is shown in Smith v. Snow, 294 U.S. 1, 7, 55 S.Ct. 279, 79 L.Ed. 721, wherein a claim relating to incubation of eggs was sustained although it spoke only in general terms of the size of openings for ventilation and the velocity and temperature of a current of air to be employed in the patented method. See, also, Waxham v. Smith, 294 U.S. 20, 55 S.Ct. 277, 79 L.Ed. 733; Gulf Smokeless Coal Co. v. Sutton, 4 Cir., 35 F.2d 433; Colgate-PalmolivePeet Co. v. Lever Bros. Co., 7 Cir., 90 F.2d 178; Catalin Corporation of America v. Catalazuli Mfg. Co., Inc., 2 Cir., 79 F.2d 593.”
In like manner, the Patent Office tribunals and the District Court have in this case mistaken the nature of the claims in issue. They are true process claims, in that they describe the acts to be done in manufacturing cast coated paper, including new steps added by appellants to the previously practiced process. The claims are not for the compounding of ingredients into a new product, nor are they for a manufactured article the characteristics of which are caused or affected by the materials of which it is made. That is to say, these are not claims for compounding a new coating' composition by adding a specified proportion of oil. The coating composition is the same as before. The small quantity of oil is added just before use, not to change the nature of the coating composition, but to obtain and maintain a definitely described operating condition. Due to the variables, some of which we have mentioned, the quantity of oil to be added does not remain constant but must be changed frequently as the process proceeds.
Thus the invention lies, not in adding a fixed quantity of oil, but in the use of oil to lubricate the drum surface, — in, adding the quantity which is observed to be necessary. It is clear that the addition of a small amount of oil is a step in the process of manufacture. Observing the cracking-off point and regulating the quantity accordingly are additional steps.
We turn to the Bradner patent, No. 1826726, which was mentioned in argument and in the District Court’s findings and which m'ay have influenced the decision. Bradner’s invention had no relation to the manufacture of cast coated paper. It was an improvement in the old method which was in use before the cast coating process was developed. In the former practice, the wet coating composition was allowed to dry in the air, after which the paper was calendered. If the composition were foaming when applied to the paper, the bubbles burst during air-drying and caused “pin holes” which damaged the quality of the product. Bradner added pine oil and sulphonated castor oil to the coating composition to reduce foaming.
Cast coated paper is neither air-dried nor calendered. The wet paper is rolled tightly against the surface of the heated drum and is there dried, with the result that foaming does not constitute the problem which it was in the air-drying method. This was recognized in finding of fact No. 3 in which it was said, “The quantity and character of oil effective to reduce foaming has no relation to the quantity and character of oil required for the practice of the process claimed.”
Yet the Commissioner of Patents said in his brief, “In the case at bar, the use of oil in coating material for paper is old.” Quite to the contrary, “In the case at bar,” the use of oil in the coating material for cast coated paper is new. Indeed, the District Court so found 'by saying, “The novelty resides in the addition of oil to the coating composition as one of the steps of that process.”
The inconsistency of allowing Claim 26 and rejecting the three claims in dispute should be pointed out. We have shown that Claim 26 stipulates the use of oil— not in a fixed proportion — but in a range from one-tenth to one per cent, the percentage being adjusted when necessary as the result is observed. The Patent Office and the District Court found no fault with that claim, of which it could have been said equally well as of the rejected claims that “the step of ‘adjusting the proportion of * * * 0ii * * * ’ is dependent upon the result desired, rather than the result being dependent upon the step.”
It is our view that the decisions of the Patent Office tribunals and the District Court are so clearly erroneous that the strong presumption of their correctness is overcome. We find strikingly appropriate the following quotation from Proctor & Gamble Mfg. Co. v. Refining, Inc., supra:
“There are many situations in the practice of the arts in which specific directions are properly omitted from the claims of patents because greater definition is either impracticable or is unnecessary to inform the art, and would serve only unduly to limit the scope of the invention or to invite evasion by those who desire wrongfully to misappropriate the substance of the invention”, and this excerpt from Chadeloid Chemical Co. v. Wilson Remover Co., 2 Cir., 1915, 224 F. 481, 484:
“ * * * It was not necessary or wise to specify the exact proportion of wax, as this differs according to the work being done. Had the exact percentage been named, anyone could evade the patent by using more or less than the specified amount and thus could have secured all the advantages of the invention without the payment of a dollar.”
The only defense presented by the answer of the Commissioner of Patents was that the claims in issue do not describe the process definitely enough to meet the requirements of R.S. § 4888, 35 U.S.C.A. § 33. We hold solely that the claims were sufficiently definite, and express no opinion concerning any other question which might have been raised.
The case will be remanded for the entry of a judgment authorizing the Commissioner of Patents to allow Claims 31, 32 and 33.
Reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant?
A. Occupational Safety & Health Administration
B. Occupational Safety & Health Review Commission
C. Office of the Federal Inspector
D. Office of Management & Budget
E. Office of Personnel Management
F. Office of Workers Compensation Program
G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons
H. Patent Office
I. Postal Rate Commission (U.S.)
J. Postal Service (U.S.)
K. RR Adjustment Board
L. RR Retirement Board
Answer:
|
sc_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
SERBIAN EASTERN ORTHODOX DIOCESE FOR THE UNITED STATES OF AMERICA AND CANADA et al. v. MILIVOJEVICH et al.
No. 75-292.
Argued March 22, 1976
Decided June 21, 1976
Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blacicmun, and Powell, JJ., joined. White, J., filed a concurring opinion, post, p. 725. Burger, C. J., concurred in the judgment. Rehnquist, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 725.
Albert E. Jenner, Jr., argued the cause for petitioners. With him on the briefs were Keith F. Bode, Robert L. Graham, Thomas J. Karacic, and Henry D. Fisher.
Leo J. Sullivan III argued the cause for respondents. With him on the brief were Richard J. Smith and Jerome H. Torshen.
Don H. Reuben, Lawrence Gunnels, and James A. Serritella filed a brief for the Catholic Bishop of Chicago as amicus curiae.
Mr. Justice Brennan
delivered the opinion of the Court.
In 1963, the Holy Assembly of Bishops and the Holy Synod of the Serbian Orthodox Church (Mother Church) suspended and ultimately removed respondent Dionisije Milivojevich (Dionisije) as Bishop of the American-Canadian Diocese of that Church, and appointed petitioner Bishop Firmilian Ocokoljich (Firmilian) as Administrator of the Diocese, which the Mother Church then reorganized into three Dioceses. In 1964 the Holy Assembly and Holy Synod defrocked Dionisije as a Bishop and cleric of the Mother Church. In this civil action brought by Dionisije and the other respondents in Illinois Circuit Court, the Supreme Court of Illinois held that the proceedings of the Mother Church respecting Dionisije were procedurally and substantively defective under the internal regulations of the Mother Church and were therefore arbitrary and invalid. The State Supreme Court also invalidated the Diocesan reorganization into three Dioceses. 60 Ill. 2d 477, 328 N. E. 2d 268 (1975) , We granted certiorari to determine whether the actions of the Illinois Supreme Court constituted improper judicial interference with decisions of the highest authorities of a hierarchical church in violation of the First and Fourteenth Amendments. 423 U. S. 911 (1975). We hold that the inquiries made by the Illinois Supreme Court into matters of ecclesiastical cognizance and polity and the court’s actions pursuant thereto contravened the First and Fourteenth Amendments. We therefore reverse.
I
The basic dispute is over control of the Serbian Eastern Orthodox Diocese for the United States of America and Canada (American-Canadian Diocese), its property and assets. Petitioners are Bishops Firmilian, Gregory Udicki, and Sava Yukovich, and the Serbian Eastern Orthodox Diocese for the United States of America and Canada (the religious body in this country). Respondents are Bishop Dionisije, the Serbian Orthodox Monastery of St. Sava, and the Serbian Eastern Orthodox Diocese for the United States of America and Canada, an Illinois religious corporation. A proper perspective on the relationship of these parties and the nature of this dispute requires some background discussion.
The Serbian Orthodox Church, one of the 14 auto-cephalous, hierarchical churches which came into existence following the schism of the universal Christian church in 1054, is an episcopal church whose seat is the Patriarchate in Belgrade, Yugoslavia. Its highest legislative, judicial, ecclesiastical, and administrative authority resides in the Holy Assembly of Bishops, a body composed of all Diocesan Bishops presided over by a Bishop designated by the Assembly to be Patriarch. The Church’s highest executive body, the Holy Synod of Bishops, is composed of the Patriarch and four Diocesan Bishops selected by the Holy Assembly. The Holy Synod and the Holy Assembly have the exclusive power to remove, suspend, defrock, or appoint Diocesan Bishops. The Mother Church is governed according to the Holy Scriptures, Holy Tradition, Rules of the Ecumenical Councils, the Holy Apostles, the Holy Faiths of the Church, the Mother Church Constitution adopted in 1931, and a “penal code” adopted in. 1961. These sources of law are sometimes ambiguous and seemingly inconsistent. Pertinent provisions of the Mother Church Constitution provide that the Church’s “main administrative division is composed of dioceses, both in regard to church hierarchical and church administrative aspect,” Art. 12, and that “[djecisions of establishing, naming, liquidating, reorganizing, and the seat of the dioceses, and establishing or eliminating of position of vicar bishops, is decided upon by the [Holy Assembly], in agreement with the Patriarchal Council,” Art. 16.
During the late 19th century, migrants to North America of Serbian descent formed autonomous religious congregations throughout this country and Canada. These congregations were then under the jurisdiction of the Russian Orthodox Church, but that Church was unable to care for their needs and the congregations sought permission to bring themselves under the jurisdiction of the Serbian Orthodox Church.
In 1913 and 1916, Serbian priests and laymen organized a Serbian Orthodox Church in North America. The 32 Serbian Orthodox congregations were divided into 4 presbyteries, each presided over by a Bishop's Aide, and constitutions were adopted. In 1917, the Russian Orthodox Church commissioned a Serbian priest, Father Mardary, to organize an independent Serbian Diocese in America. Four years later, as a result of Father Mard-ary’s efforts, the Holy Assembly of Bishops of the Mother Church created the Eastern Orthodox Diocese for the United States of America and Canada and designated a Serbian Bishop to complete the formal organization of a Diocese. From that time until 1963, each Bishop who governed the American-Canadian Diocese was a Yugoslav citizen appointed by the Mother Church without consultation with Diocesan officials.
In 1927, Father Mardary called a Church National Assembly embracing all of the known Serbian Orthodox congregations in the United States and Canada. The Assembly drafted and adopted the constitution of the Serbian Orthodox Diocese for the United States of America and Canada, and submitted the constitution to the Mother Church for approval. The Holy Assembly made changes to provide for appointment of the Diocesan Bishop by the Holy Assembly and to require Holy Assembly approval for any amendments to the constitution, and with these changes approved the constitution. The American-Canadian Diocese was the only diocese of the Mother Church with its own constitution.
Article 1 of the constitution provides that the American-Canadian Diocese “is considered ecclesiastically-judicially as an organic part of the Serbian Patriarchate in the Kingdom of Yugoslavia,” and Art. 2 provides that all “statutes and rules which regulate the ecclesiastical-canonical authority and position of the Serbian Orthodox Church in the Kingdom of Yugoslavia are also compulsory for” the American-Canadian Diocese. Article 3 states that the “jurisdiction of the . . . Diocese ... includes the entire political territory of the United States of America and Canada, which as such by its geographical location enjoys full administrative freedom and accordingly, it can independently regulate and rule the activities of its church, school and other diocesan institutions and all funds and beneficiencies, through its organs . . . .” Article 9 provides that the Bishop of the Diocese “is appointed by the Holy Assembly of Bishops of the Serbian Patriarchate”; various provisions of the constitution accord that Bishop extensive powers with respect to both religious matters and control of Diocesan property. The constitution also provides for such Diocesan organs as a Diocesan National Assembly, which exercises considerable legislative and administrative authority within the Diocese.
In 1927, Father Mardary also organized a not-for-profit corporation, the Serbian Eastern Orthodox Council for the United States and Canada, under the laws of Illinois. The corporation was to hold title to 30 acres of land in Libertyville, Ill., that Father Mardary had personally purchased in 1924. The charter of that corporation was allowed to lapse, and Father Mardary organized another Illinois not-for-profit corporation, respondent Serbian Eastern Orthodox Diocese for the United States and Canada, under Illinois laws governing incorporation of hierarchical religious' organizations. In 1945, respondent not-for-profit monastery corporation, the Monastery of St. Sava, was organized under these same Illinois laws, and title to the Libertyville property was transferred to it. Similar secular property-holding corporations were subsequently organized in New York, California, and Pennsylvania.
Respondent Bishop Dionisije was elected Bishop of the American-Canadian Diocese by the Holy Assembly of Bishops in 1939. He became a controversial figure; during the years before 1963, the Holy Assembly received numerous complaints challenging his fitness to serve as Bishop and his administration of the Diocese.
During his tenure, however, the Diocese grew so substantially that Dionisije requested that the Patriarch and Holy Assembly appoint bishops to assist him but to serve under his supervision. Eventually, the Diocese sought its elevation by the Holy Assembly to the rank of Metropolia, that South America be added to the Diocese, and that several assistant bishops be appointed under Dionisije. Dionisije specifically recommended that petitioners Pirmilian and Gregory Udicki, and one Stefan Lastavica be named assistant bishops. A delegation from the Diocese was sent to the May 1962 meeting of the Holy Assembly in Belgrade to urge adoption of these reorganization proposals, and on June 12, 1962, the Holy Synod appointed a delegation to visit the United States and study the proposals. The delegation was also directed to confer with Dionisije concerning the complaints made against him and his administration over the years.
The delegation remained in the United States for three months, visiting parishes throughout the Diocese and discussing both the reorganization proposals and the complaints against Dionisije. After completion of its survey, the delegation suggested to the Holy Synod the assignment of vicar bishops to the Diocese and recommended that a commission be appointed to conduct a thorough investigation into the complaints against Dionisije. However, the Holy Assembly on May 10, 1963, instead recommended that the Holy Synod institute disciplinary proceedings against Dionisije. The Holy Synod thereupon met immediately and suspended Dionisije pending investigation and disposition of the complaints. The Holy Synod appointed petitioner Fir-milian, Dionisije’s chief episcopal deputy since 1955 and one of Dionisije’s candidates for assistant bishop, as Administrator of the Diocese pending completion of the proceedings.
The Holy Assembly thereafter reconvened and, acting under Art. 16 of the constitution of the Mother Church, reorganized the American-Canadian Diocese into three new dioceses — the Middle Western, the Western, and the Eastern — whose boundaries were roughly those of the episcopal districts previously created by Dionisije. The final fixing of boundaries for the new dioceses and all other organizational and administrative matters were left to be determined by the officials of the old American-Canadian Diocese. Dionisije was appointed Bishop of the Middle Western Diocese and, seven days later, petitioners Archimandrites Firmilian, Gregory, and Stefan were appointed temporary administrators for the new Dioceses.
Dionisije’s immediate reaction to these decisions of the Mother Church was to refuse to accept the reorganization on the ground that it contravened the administrative autonomy of the Diocese guaranteed by the Diocesan constitution, and to refuse to accept his suspension on the ground that it was not effectuated in compliance with the constitution and laws of the Mother Church. On May 25, 1963, he prepared and mailed a circular to all American-Canadian parishes stating his refusal to recognize these actions, and on May 27 he issued a press release stating his refusal to recognize his suspension and his intent to litigate it in the civil courts. This refusal to recognize the Diocesan reorganization and his suspension as Bishop was again stated by Dionisije in a circular issued on June 3 and addressed to the Patriarch, the Holy Assembly, the Holy Synod, all clergy, congregations, Diocesan committees, and all Serbians in North America. He also continued to officiate as Bishop-, refusing to turn administration of the Diocese over to Firmilian; in a May 30 letter to Firmilian, Dionisije repeated this refusal, asserted that he no longer recognized the decisions of the Holy Assembly and Holy Synod, and charged those bodies with being “communistic.”
The Diocesan Council met on June 6, and Dionisije reaffirmed his refusal to turn over administration of the Diocese to Firmilian; he also announced that he had discharged two of his vicars general because of their loyalty to the Mother Church. The Council resolved at the meeting to advise the Holy Synod that the proposal to reorganize the Diocese into three dioceses would be submitted to the Diocesan National Assembly in August for acceptance or rejection. The Council also requested that the Holy Assembly promptly send a committee to investigate the complaints against Dionisije.
On June 13, the Holy Synod appointed such a commission, composed of two Bishops and the Secretary of the Holy Synod. On July 5, the commission met with Dio-nisije, who reiterated his refusal to recognize his suspension or the Diocesan reorganization, and who demanded all accusations in writing. The commission refused to give Dionisije the written accusations on the ground that defiance of decisions of higher church authorities itself established wrongful conduct, and advised him that the Holy Synod would appoint a Bishop as court prosecutor to prepare an indictment against him.
On the basis of the commission's report and recommendations, which recited Dionisije's refusal to accept the decisions of the Holy Synod and Holy Assembly and his refusal to recognize the court of the Holy Synod or its competence to try him, the Holy Assembly met on July 27, 1963, and voted to remove Dionisije as Bishop. The minutes of the Holy Assembly meeting and the Patriarch's letter to Dionisije informing him of the Holy Assembly’s actions made clear that the removal was based solely on his acts of defiance subsequent to his May 10, 1963, suspension, and his violation of his oath and loss of certain qualifications for Bishop under Art. 104 of the constitution of the Mother Church.
The Diocesan National Assembly, with Dionisije presiding despite his removal, met in August 1963 and issued a resolution repudiating the division of the Diocese into three Dioceses and demanding a revocation by the Mother Church of the decisions concerning that division. When the Holy Assembly refused to reconsider, the Diocesan National Assembly in November 1963 declared the Diocese completely autonomous and reinstated the provisions of the Diocesan constitution that provided for election of the Bishop of the Diocese itself and for amendments without the approval of the Holy Assembly.
Meanwhile, the Holy Synod in October 1963 forwarded to Dionisije a formal written indictment based on the charges of canonical misconduct. In November 1963, Dionisije responded with a demand for the verified reports and complaints referred to in the indictment and for a six-month extension to answer the indictment. The Holy Assembly granted a 30-day extension in which to answer, but declined to furnish verified charges on the grounds that they were described in the indictment, that additional details would be evidentiary in nature, and that there was no legal or canonical basis for forwarding such material to an accused Bishop.
Dionisije returned the indictment in January, refusing to answer without the verified charges, denouncing the Holy Assembly and Holy Synod as schismatic and pro-Communist, and asserting that the Mother Church was proceeding in violation of its penal code and constitution.
The Holy Synod, on February 25, 1964, declared that it could not proceed further without Dionisije and referred the matter to the Holy Assembly, which tried Dionisije as a default case on March 5, 1964, because of his refusal to participate. The indictment was also amended at that time to include charges based on Dionisije’s acts of rebellion such as those committed at the November meeting of the National Assembly which had declared the Diocese separate from the Mother Church. Considering the original and amended indictments, the Holy Assembly unanimously found Dionisije guilty of all charges and divested him of his episcopal and monastic ranks.
Even before the Holy Assembly had removed Dionisije as Bishop, he had commenced what eventually became this protracted litigation, now carried on for almost 13 years. Acting upon the threat contained in his May 27, 1963, press release, Dionisije filed suit in the Circuit Court of Lake County, Ill., on July 26, 1963, seeking to enjoin petitioners from interfering with the assets of respondent corporations and to have himself declared the true Diocesan Bishop. Petitioners countered with a separate complaint, which was consolidated with the original action, seeking declaratory relief that Dionisije had been removed as Bishop of the Diocese and that the Diocese had been properly reorganized into three Dioceses, and injunctive relief granting petitioner Bishops control of the reorganized Dioceses and their property. After the trial court granted summary judgment for respondents and dismissed petitioners’ counter-complaint, the Illinois Appellate Court reversed and remanded for a hearing on the merits. Serbian Orthodox Diocese v. Ocokoljich, 72 Ill. App. 2d 444, 219 N. E. 2d 343, appeal denied, 34 Ill. 2d 631 (1966).
Following a lengthy trial, the trial court filed an unreported memorandum opinion and entered a final decree which concluded that “no substantial evidence was produced . .. that fraud, collusion or arbitrariness existed in any of the actions or decisions preliminary to or during the final proceedings of the decision to defrock Bishop Dionisije made by the highest Hierarchical bodies of the Mother Church,” Pet. for Cert., App. 44; that the property held by respondent corporations is held in trust for all members of the American-Canadian Diocese; that it was “improper and beyond the power of the Mother Church to take its action in dividing the whole American Diocese into three new Dioceses, changing its boundaries, and in appointing new bishops for said so-called new Dioceses/’ id., at 46; and that “Firmilian was validly appointed by the Holy Episcopal Synod as temporary Administrator of the whole American Diocese in place of the defrocked Bishop Dionisije,” ibid.
On appeal, the Supreme Court of Illinois affirmed in part and reversed in part, essentially holding that Dionisije’s removal and defrockment had to be set aside as “arbitrary” because the proceedings resulting in those actions were not conducted according to the Illinois Supreme Court’s interpretation of the Church’s constitution and penal code, and that the Diocesan reorganization was invalid because it was beyond the scope of the Mother Church’s authority to effectuate such changes without Diocesan approval. 60 Ill. 2d 477, 328 N. E. 2d 268 (1975). Although the court denied rehearing, it amended its original opinion to hold that, although Dionisije had been properly suspended, that suspension terminated by operation of church law when he was not validly tried within one year of his indictment. Thus, the court purported in effect to reinstate Dionisije as Diocesan Bishop.
II
The fallacy fatal to the judgment of the Illinois Supreme Court is that it rests upon an impermissible rejection of the decisions of the highest ecclesiastical tribunals of this hierarchical church upon the issues in dispute, and impermissibly substitutes its own inquiry into church polity and resolutions based thereon of those disputes. Consistently with the First and Fourteenth Amendments “civil courts do not inquire whether the relevant [hierarchical] church governing body has power under religious law [to decide such disputes]. . . . Such a determination . . . frequently necessitates the interpretation of ambiguous religious law and usage. To permit civil courts to probe deeply enough into the allocation of power within a [hierarchical] church so as to decide . . . religious law [governing church polity] . . . would violate the First Amendment in much the same manner as civil determination of religious doctrine.” Md. & Va. Churches v. Sharpsburg Church, 396 U. S. 367, 369 (1970) (Brennan, J., concurring). For where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. Ibid.
Resolution of the religious disputes at issue here affects the control of church property in addition to the structure and administration of the American-Canadian Diocese. This is because the Diocesan Bishop controls respondent Monastery of St. Sava and is the principal officer of respondent property-holding corporations. Resolution of the religious dispute over Dionisije’s de-frockment therefore determines control of the property. Thus, this case essentially involves not a church property dispute, but a religious dispute the resolution of which under our cases is for ecclesiastical and not civil tribunals. Even when rival church factions seek resolution of a church property dispute in the civil courts there is substantial danger that the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs. Because of this danger, “the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes.” Presbyterian Church v. Hull Church, 393 U. S. 440, 449 (1969). “First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. . . . [T]he [First] Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.” Ibid. This principle applies with equal force to church disputes over church polity and church administration.
The principles limiting the role of civil courts in the resolution of religious controversies that incidentally affect civil rights were initially fashioned in Watson v. Jones, 13 Wall. 679 (1872), a diversity case decided before the First Amendment had been rendered applicable to the States through the Fourteenth Amendment. With respect to hierarchical churches, Watson held:
“[T]he rule of action which should govern the civil courts ... is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” Id., at 727.
In language having “a clear constitutional ring,” Presbyterian Church v. Hull Church, supra, at 446, Watson reasoned:
“The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.” 13 Wall., at 728-729 (emphasis supplied).
Gonzalez v. Archbishop, 280 U. S. 1 (1929), applied this principle in a case involving dispute over entitlement to certain income under a will that turned upon an ecclesiastical determination as to whether an individual would be appointed to a chaplaincy in the Roman Catholic Church. The Court, speaking through Mr. Justice Brandéis, observed:
“Because the appointment [to the chaplaincy] is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them. In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise.” Id., at 16.
Thus, although Watson had left civil courts no role to play in reviewing ecclesiastical decisions during the course of resolving church property disputes, Gonzalez first adverted to the possibility of “marginal civil court review,” Presbyterian Church v. Hull Church, supra, at 447, in cases challenging decisions of ecclesiastical tribunals as products of “fraud, collusion, or arbitrariness.” However, since there was “not even a suggestion that [the Archbishop] exercised his authority [in making the chaplaincy decision] arbitrarily,” 280 U. S., at 18, the suggested “fraud, collusion, or arbitrariness” exception to the Watson rule was dictum only. And although references to the suggested exception appear in opinions in cases decided since the Watson rule has been held to be mandated by the First Amendment, no decision of this Court has given concrete content to or applied the “exception.” However, it was the predicate for the Illinois Supreme Court's decision in this case, and we therefore turn to the question whether reliance upon it in the circumstances of this case was consistent with the prohibition of the First and Fourteenth Amendments against rejection of the decisions of the Mother Church upon the religious disputes in issue.
The conclusion of the Illinois Supreme Court that the decisions of the Mother Church were “arbitrary” was grounded upon an inquiry that persuaded the Illinois Supreme Court that the Mother Church had not followed its own laws and procedures in arriving at those decisions. We have concluded that whether or not there is room for “marginal civil court review” under the narrow rubrics of “fraud” or “collusion” when church tribunals act in bad faith for secular purposes, no “arbitrariness” exception— in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations — is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense “arbitrary” must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else into the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them. Watson itself requires our conclusion in its rejection of the analogous argument that ecclesiastical decisions of the highest church judicatories need only be accepted if the subject matter of the dispute is within their “jurisdiction.”
“But it is a very different thing where a subject-matter of dispute, strictly and purely ecclesiastical in its character, — a matter over which the civil courts exercise no jurisdiction, — a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them, — becomes the subject of its action. It may be said here, also, that no jurisdiction has been conferred on the tribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it, or that the laws of the church do not authorize the particular form of proceeding adopted; and, in a sense often used in the courts, all of those may be said to be questions of jurisdiction. But it is easy to see that if the civil courts are to inquire into all these matters, the whole subject of the doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court. This principle would deprive these bodies of the right of construing their own church laws, would open the way to all the evils which we have depicted as attendant upon the doctrine of Lord Eldon, and would, in effect, transfer to the civil courts where property rights were concerned the decision of all ecclesiastical questions.” 13 Wall., at 733-734. (Emphasis supplied.)
Indeed, it is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria. Constitutional concepts of due process, involving secular notions of “fundamental fairness” or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.
The constitutional evils that attend upon any “arbitrariness” exception in the sense applied by the Illinois Supreme Court to justify civil court review of ecclesiastical decisions of final church tribunals are manifest in the instant case. The Supreme Court of Illinois recognized that all parties agree that the Serbian Orthodox Church is a hierarchical church, and that the sole power to appoint and remove Bishops of the Church resides in its highest ranking organs, the Holy Assembly and the Holy Synod. Indeed, final authority with respect to the promulgation, and interpretation of all matters of church discipline and internal organization rests with the Holy-Assembly, and even the written constitution of the Mother Church expressly provides:
“The Holy Assembly of Bishops, as the highest hierarchical body, is legislative authority in the matters of faith, officiation, church order (discipline) and internal organization of the Church, as well as the highest church juridical authority within its jurisdiction (Article 69 sec. 28).” Art. 57.
“All the decisions of the Holy Assembly of Bishops and of the Holy Synod of Bishops of canonical and church nature, in regard to faith, officiation, church order and internal organization of the church, are valid and final.” Art. 64.
“The Holy Assembly of Bishops, whose purpose is noted in Article 57 of this Constitution:
“9) interprets canonical-ecclesiastical rules, those which are general and obligatory, and particular ones, and publishes their collections;
“12) prescribes the ecclesiastical-judicial procedure for all Ecclesiastical Courts;
“26) settles disputes of jurisdiction between hierarchical and church-self governing organs;
“27) ADJUDGES:
“A) In first and in final instances:
“a) disagreements between bishops and the Holy Synod, and between the bishops and the Patriarch;
“b) canonical offenses of the Patriarch;
“B) In the second and final instance:
“All matters which the Holy Synod of Bishops judged in the first instance.” Art. 69.
Nor is there any dispute that questions of church discipline and the composition of the church hierarchy are at the core of ecclesiastical concern; the bishop of a church is clearly one of the central figures in such a hierarchy and the embodiment of the church within his Diocese, and the Mother Church constitution states that “[h]e is, according to the church canonical regulations, chief representative and guiding leader of all church spiritual life and church order in the diocese.” Art. 13.
Yet having recognized that the Serbian Orthodox Church is hierarchical and that the decisions to suspend and defrock respondent Dionisije were made by the religious bodies in whose sole discretion the authority to make those ecclesiastical decisions was vested, the Supreme Court of Illinois nevertheless invalidated the decision to defrock Dionisije on the ground that it was “arbitrary” because a “detailed review of the evidence discloses that the proceedings resulting in Bishop Dionisije's removal and defrockment were not in accordance with the prescribed procedure of the constitution and the penal code of the Serbian Orthodox Church.” 60 Ill. 2d, at 503, 328 N. E. 2d, at 281. Not only was this “detailed review” impermissible under the First and Fourteenth Amendments, but in reaching this conclusion, the court evaluated conflicting testimony concerning internal church procedures and rejected the interpretations of relevant procedural provisions by the Mother Church’s highest tribunals. Id., at 492-500, 328 N. E. 2d, at 276-280. The court also failed to take cognizance of the fact that the church judicatories were also guided by other sources of law, such as canon law, which are admittedly not always consistent, and it rejected the testimony of petitioners’ five expert witnesses that church procedures were properly followed, denigrating the testimony of one witness as “contradictory” and discounting that of another on the ground that it was “premised upon an assumption which did not consider the penal code,” even though there was some question whether that code even applied to discipline of Bishops. The court accepted, on the other hand, the testimony of respondents’ sole expert witness that the Church’s procedures had been contravened in various specifics. We need not, and under the First Amendment cannot, demonstrate the propriety or impropriety of each of Dionisije’s procedural claims, but we can note that the state court even rejected petitioners’ contention that Dionisije’s failure to participate in the proceedings undermined all procedural contentions because Arts. 66 and 70 of the penal code specify that if a person charged with a violation fails to participate or answer the indictment, the allegations are admitted and due process will be concluded without his participation; the court merely asserted that “application of this provision . . . must be viewed from the perspective that Bishop Dionisije refused to participate because he maintained that the proceedings against him were in violation of the constitution and the penal code of the Serbian Orthodox Church.” 60 Ill. 2d, at 502, 328 N. E. 2d, at 281. The court found no support in any church dogma for this judicial rewriting of church law, and compounded further the error of this intrusion into a religious thicket by declaring that although Dionisije had, even under the court’s analysis,, been properly suspended and replaced by Firmilian as temporary administrator, he had to be reinstated as Bishop because church law mandated a trial on ecclesiastical charges within one year of the indictment. Yet the only reason more time than that had expired was due to Dionisije’s decision to resort to the civil courts for redress without attempting to vindicate himself by pursuing available remedies within the church. Indeed, the Illinois Supreme Court overlooked the clear substantive canonical violations for which the Church disciplined Dionisije, violations based on Dionisije’s conceded open defiance and rebellion against the church hierarchy immediately after the Holy Assembly’s decision to suspend' him
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
sc_casedisposition
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
NEW ENGLAND POWER CO. v. NEW HAMPSHIRE et al.
No. 80-1208.
Argued December 7, 1981
Decided February 24, 1982
Burger, C. J., delivered the opinion for a unanimous Court.
Samuel Huntington argued the cause for appellant in No. 80-1208. With him on the briefs were John F. Sherman III, Edward Berlin, Carmen D. Legato, and J. Phillip Jordan. Donald K. Stem, Assistant Attorney General of Massachusetts, argued the cause for appellants in Nos. 80-1471 and 80-1610. With him on the brief for appellants in No. 80-1471 were Francis X. Bellotti, Attorney General, Thomas R. Kiley, First Assistant Attorney General, and Joan C. Stod- dard, E. Michael Sloman, and Alan Sherr, Assistant Attorneys General. Dennis J. Roberts II, Attorney General of Rhode Island, and John R. McDermott filed a brief for appellants in No. 80-1610.
Gregory H. Smith, Attorney General of New Hampshire, argued the cause for appellees. With him on the brief was Peter C. Scott, Assistant Attorney General.
Together with No. 80-1471, Massachusetts et al. v. New Hampshire et al.; and No. 80-1610, Roberts, Attorney General of Rhode Island, et al. v. New Hampshire et al., also on appeal from the same court.
Briefs of amid curiae urging reversal were filed by Acting Solicitor General Wallace, Stuart A. Smith, and Jerome M. Feit for the United States et al.; by Robert L. Baum and Ronald D. Jones for the Edison Electric Institute; by Joseph D. Alvaini for the New England Legal Foundation et al.; by James R. McIntosh and Allan B. Taylor for the New England Power Pool Executive Committee; and by Robert C. McDiarmid for the Unaffiliated Massachusetts Municipal Wholesale Customers of New England Power Co.
Chief Justice Burger
delivered the opinion of the Court.
These three consolidated appeals present the question whether a state can constitutionally prohibit the exportation of hydroelectric energy produced within its borders by a federally licensed facility, or otherwise reserve for its own citizens the “economic benefit” of such hydroelectric power.
I
Appellant New England Power Co. is a public utility which generates and transmits electricity at wholesale. It sells 75% of its power in Massachusetts and much of the remainder in Rhode Island; less than 6% of New Hampshire’s population is serviced by New England Power’s wholesale customers. New England Power owns and operates six hydroelectric generating stations on the Connecticut River, consisting of 27 generating units. Twenty-one of these units—with a capacity of 419.8 megawatts, or about 10% of New England Power’s total generating capacity—are located within the State of New Hampshire. The units are licensed by the Federal Energy Regulatory Commission pursuant to Part I of the Federal Power Act, 41 Stat. 1063, as amended, 16 U. S. C. §§ 791a-823 (1976 ed. and Supp. IV). Since hydroelectric facilities operate without significant fuel consumption, these units can produce electricity at substantially lower cost than most other generating sources.
New England Power is a member of the New England Power Pool, whose utility-members own over 98% of the total generation capacity, and virtually all of the transmission facilities, in the six-state region. The objectives of the Power Pool, as described in the agreement among its members, are to assure the reliability of the region’s bulk power supply and to attain “maximum practicable economy” through, inter alia, “joint planning, central dispatching . . . and coordinated construction, operation and maintenance of electric generation and transmission facilities owned or controlled by the Participants . . . .” New England Power Pool Agreement §4.1, App. 31a. All member-owned generating facilities are placed under the control of the Power Pool’s Dispatch Center. A computer calculates the cost of generation for each generating unit and assigns each unit an operating schedule that will minimize the cost of the region’s total power supply. Power generated at the various units, including New England Power’s Connecticut River hydroelectric stations, flows freely through the Pool’s regional transmission network, or “grid.” The energy is dispatched to members’ customers as their power needs arise, without regard to generating source. The Pool bills each member the amount it would have cost the utility to meet its customers’ load using only its own generating sources, minus that member’s share of the savings resulting from the centralized dispatch system.
A New Hampshire statute, enacted in 1913, provides:
“No corporation engaged in the generation of electrical energy by water power shall engage in the business of transmitting or conveying the same beyond the confines of the state, unless it shall first file notice of its intention so to do with the public utilities commission and obtain an order of said commission permitting it to engage in such business.” N. H. Rev. Stat. Ann. §374:35 (1966).
The statute empowers the New Hampshire Commission to prohibit the exportation of such electrical energy when it determines that the energy “is reasonably required for use within this state and that the public good requires that it be delivered for such use.” Ibid.
Since 1926, New England Power or a predecessor company periodically applied for and obtained approval from the New Hampshire Commission to transmit electricity produced at the Connecticut River plants to points outside New Hampshire. However, on September 19, 1980, after an investigation and hearings, the Commission withdrew the authority formerly granted New England Power to export its hydroelectric energy, and ordered the company to “make arrangements to sell the previously exported hydroelectric energy to persons, utilities and municipalities within the State of New Hampshire . . . .” In its report accompanying the order, the Commission found that New Hampshire’s population and energy needs were increasing rapidly; that, primarily because of its low “generating mix” of hydroelectric energy, the Public Service Company of New Hampshire, the State’s largest electric utility, had generating costs about 25% higher than those of New England Power; and that if New England Power’s hydroelectric energy were sold exclusively in New Hampshire, New Hampshire customers could save approximately $25 million a year. The Commission therefore concluded that New England Power’s hydroelectric energy was “required for use within the State” of New Hampshire, and that discontinuation of its exportation would serve the “public good.” App. to Juris. Statement in No. 80-1208, pp. 25-39.
The Commission did not, however, order New England Power to sever its connections with the Power Pool. So long as the electricity produced at New England Power’s hydroelectric plants continues to flow through the Pool’s regional transmission network, it will be impossible to contain that electricity within the State of New Hampshire in any physical sense. Although the precise contours of the Commission’s order are unclear, it appears to require that New England Power sell electricity to New Hampshire utilities in an amount equal to the output of its in-state hydroelectric facilities, at special rates adjusted to reflect the entire savings attributable to the low-cost hydroelectric generation.
New England Power, the Commonwealth of Massachusetts, and Dennis J. Roberts II, Attorney General of Rhode Island, appealed the Commission’s order to the Supreme Court of New Hampshire. They contended that the order was pre-empted by Parts I and II of the Federal Power Act, 16 U. S. C. §§791a-824k (1976 ed. and Supp. IV), and imposed impermissible burdens on interstate commerce. The court rejected these arguments, concluding that the “saving clause” of § 201(b) of the Federal Power Act, 16 U. S. C. §824(b) (1976 ed., Supp. IV), granted New Hampshire authority to restrict the interstate transportation of hydroelectric power generated within the State. Appeal of New England Power Co., 120 N. H. 866, 870-877, 424 A. 2d 807, 814 (1980). The court further held that the New Hampshire Commission’s order did not interfere with the Federal Energy Regulatory Commission’s exclusive regulatory authority over rates charged for interstate sales of electricity at wholesale. It thus remanded the case to permit the parties to “develop the mechanics of implemention” of the New Hampshire Commission’s order, and mandated that New England Power “make appropriate adjustments and filings with the appropriate federal and State administrative agencies to enable New Hampshire to regain the benefit of its hydroelectric power.” Id., at 878-879, 424 A. 2d, at 815.
We noted probable jurisdiction, 451 U. S. 981 (1981), and we reverse.
M h-H
The Supreme Court of New Hampshire recognized that, absent authorizing federal legislation, it would be “questionable” whether a state could constitutionally restrict interstate trade in hydroelectric power. 120 N. H., at 876, 424 A. 2d, at 814. Our cases consistently have held that the Commerce Clause of the Constitution, Art. I, § 8, cl. 3, precludes a state from mandating that its residents be given a preferred right of access, over out-of-state consumers, to natural resources located within its borders or to the products derived therefrom. E. g., Hughes v. Oklahoma, 441 U. S. 322 (1979); Pennsylvania v. West Virginia, 262 U. S. 553 (1923); West v. Kansas Natural Gas Co., 221 U. S. 229 (1911). Only recently, in Philadelphia v. New Jersey, 437 U. S. 617, 627 (1978), we reiterated that “[tjhese cases stand for the basic principle that a ‘State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State’ ” (quoting Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10 (1928)).
The order of the New Hampshire Commission, prohibiting New England Power from selling its hydroelectric energy outside the State of New Hampshire, is precisely the sort of protectionist regulation that the Commerce Clause declares off-limits to the states. The Commission has made clear that its order is designed to gain an economic advantage for New Hampshire citizens at the expense of New England Power’s customers in neighboring states. Moreover, it cannot be disputed that the Commission’s “exportation ban” places direct and substantial burdens on transactions in interstate commerce. See Public Utilities Comm’n v. Attleboro Steam & Electric Co., 273 U. S. 83 (1927). Such state-imposed burdens cannot be squared with the Commerce Clause when they serve only to advance “simple economic protectionism.” Philadelphia v. New Jersey, supra, at 624.
The Supreme Court of New Hampshire nevertheless upheld the order of the New Hampshire Commission on the ground that § 201(b) of the Federal Power Act expressly permits the State to prohibit the exportation of hydroelectric power produced within its borders. It is indeed well settled that Congress may use its powers under the Commerce Clause to “[confer] upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy.” Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 44 (1980). See Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 769 (1945). The dispositive question, however, is whether Congress in fact has authorized the states to impose restrictions of the sort at issue here.
Ill
The national concern for planning, development, and comprehensive utilization of the country’s water resources was very early expressed by Congress under its Commerce Clause powers. The Federal Water Power Act, now Part I of the Federal Power Act, 16 U. S. C. §§791a-823 (1976 ed. and Supp. IV), was enacted in 1920. The potential of water power as a source of electric energy led Congress to exercise its constitutional authority over navigable streams to regulate and encourage development of hydroelectric power generation “to meet the needs of an expanding economy.” FPC v. Union Electric Co., 381 U. S. 90. 99 (1965).
In 1935, Congress enacted Part II of the Federal Power Act, 16 U. S. C. §§ 824-824k (1976 ed. and Supp. IV), which delegated to the Federal Power Commission, now the Federal Energy Regulatory Commission, exclusive authority to regulate the transmission and sale at wholesale of electric energy in interstate commerce, without regard to the source of production. United States v. Public Utilities Comm’n of California, 345 U. S. 295 (1953). The 1935 enactment was a “direct result” of this Court’s holding in Public Utilities Comm’n v. Attleboro Steam & Electric Co., supra, that the states lacked power to regulate the rates governing interstate sales of electricity for resale. United States v. Public Utilities Comm’n of California, supra, at 311. Part II of the Act was intended to “fill the gap” created by Attleboro by establishing exclusive federal jurisdiction over such sales. 345 U. S., at 307-311.
Section 201(b) of the Act provides, inter alia, that the provisions of Part II “shall not. . . deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line.” However, this provision is in no sense an affirmative grant of power to the states to burden interstate commerce “in a manner which would otherwise not be permissible.” Southern Pacific Co. v. Arizona ex rel. Sullivan, supra, at 769. In § 201(b), Congress did no more than leave standing whatever valid state laws then existed relating to the exportation of hydroelectric energy; by its plain terms, § 201(b) simply saves from pre-emption under Part II of the Federal Power Act such state authority as was otherwise “lawful.” The legislative history of the Act likewise indicates that Congress intended only that its legislation “tak[e] no authority from State commissions.” H. R. Rep. No. 1318, 74th Cong., 1st Sess., 8 (1935) (emphasis added). Nothing in the legislative history or language of the statute evinces a congressional intent “to alter the limits of state power otherwise imposed by the Commerce Clause,” United States v. Public Utilities Comm’n of California, supra, at 304, or to modify the earlier holdings of this Court concerning the limits of state authority to restrain interstate trade. E. g., Pennsylvania v. West Virginia, 262 U. S. 553 (1923); West v. Kansas Natural Gas Co., 221 U. S. 229 (1911). Rather, Congress’ concern was simply “to define the extent of the federal legislation’s pre-emptive effect on state law.” Lewis v. BT Investment Managers, Inc., supra, at 49.
To support its argument to the contrary, New Hampshire relies on a single statement made on the floor of the House of Representatives during the debates preceding enactment of Part II. Congressman Rogers of New Hampshire stated:
“[T]he Senate bill as originally drawn would deprive certain States, I think five in all, of certain rights which they have over the exportation of hydroelectric energy which is transmitted across the State line. This situation has been taken care of by the House committee, and I hope when you come to it, section 201 of part II, that you will grant us the privilege to continue, as we have been for 22 years, to exercise our State right over the exportation of hydroelectric energy transmitted across State lines but produced up there in the granite hills of old New Hampshire.” 79 Cong. Rec. 10527 (1935).
From this expression of “hope,” New Hampshire concludes that Congress specifically intended to preserve the very statute at issue here.
Reliance on such isolated fragments of legislative history in divining the intent of Congress is an exercise fraught with hazards, and “a step to be taken cautiously. ” Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 26 (1977); United States v. Public Utilities Comm’n of California, supra, at 319-321 (Jackson, J., concurring). However, even were we to accord significant weight to Congressman Rogers’ statement, it would not support New Hampshire’s contention that § 201(b) was intended to permit states to regulate free from Commerce Clause restraint. Congressman Rogers simply urged his colleagues not to “deprive” the State of New Hampshire of “rights” it already possessed — i. e., to ensure that the Act itself would not be read as pre-empting otherwise valid state legislation.
To be sure, some Members of Congress may have thought that no further protection of state authority was needed. Indeed, given that the Commerce Clause — independently of the Federal Power Act — restricts the ability of the states to regulate matters affecting interstate trade in hydroelectric energy, § 201(b) may in fact save little in the way of “lawful” state authority. But when Congress has not “expressly stated its intent and policy” to sustain state legislation from attack under the Commerce Clause, Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 427, 431 (1946), we have no authority to rewrite its legislation based on mere speculation as to what Congress “probably had in mind.” See United States v. Public Utilities Comm'n of California, 345 U. S., at 319 (Jackson, J., concurring); see also id., at 311. We must construe § 201(b) as it is written, and as its legislative history indicates it was intended — as a standard “nonpre-emption” clause.
>
We conclude, therefore, that New Hampshire has sought to restrict the flow of privately owned and produced electricity in interstate commerce, in a manner inconsistent with the Commerce Clause. Section 201(b) of the Federal Power Act does not provide an affirmative grant of authority to the State to do so. For these reasons, the judgment of the Supreme Court of New Hampshire is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
So ordered.
Testimony before the New Hampshire Public Utilities Commission in these cases indicated that the savings have been substantial. For example, in 1979, the savings attributable to the Power Pool’s centralized dispatch system were reported at over $44 million. App. 35a, 56a. See generally Federal Energy Regulatory Commission, Office of Electric Power Regulation, Power Pooling in the United States 15-23, 39-41, 69-79 (1981), for a description of efficiencies attributable to pooling arrangements.
The order reads:
“ORDERED, that the permission granted New England Power Company (NEPCO) to transmit hydroelectric energy from within the boundaries of the State to outside the State is hereby withdrawn as of thirty (30) days from the date of this Order; and it is
“FURTHER ORDERED, that NEPCO make arrangements to sell the previously exported hydroelectric energy to persons, utilities and municipalities within the State of New Hampshire within thirty (30) days of the date of this Order; and it is
“FURTHER ORDERED, that upon the completion of both units at Seabrook the Commission will again re-examine the issue of exportation.”
For example, the Commission’s staff economist testified at the hearings that New England Power could “allocate the benefits of low-cost hydroelectric power to New Hampshire through billing mechanisms” pursuant to which the power would be sold in New Hampshire at “economic cost”— i. e., the cost of producing the power, including depreciation, plus a return on invested capital. App. 38a-39a. The economist’s analysis of the benefits which would ensue from restricting the “exportation” of hydroelectric energy in this manner — upon which the New Hampshire Commission relied heavily in its report — was based on the assumption that New England Power would simply enter into new unit power contracts with New Hampshire utilities for an amount of kilowatt hours equal to New England Power’s average hydroelectric generation over the course of a number of years. 3 Tr. of Hearings before the N. H. Public Utilities Comm’n in DE 79-223, pp. 23-24, 1-35. Although the record is not entirely clear on this point, it appears that the “economic benefit,” or "savings,” attributable to New England Power's hydroelectric facilities is currently reflected in the company’s general wholesale rates, and thus shared pro rata by its customers in Massachusetts, Rhode Island, and New Hampshire. App. 15a-18a. See also Brief for Appellant in No. 80-1208, p. 7.
The court also dismissed several arguments advanced only by appellants Massachusetts and Roberts — that § 201(b), as so interpreted, exceeded Congress’ power under the Commerce Clause, Art. I, § 8, cl. 3, and violated both the Privileges and Immunities Clause, Art. IV, § 2, cl. 1, and the Tenth Amendment of the Constitution.
The parties inform us that the New Hampshire Commission has refrained from acting on remand pending this Court’s disposition of the appeals.
We find no merit in New Hampshire’s attempt to distinguish these cases on the ground that it “owns” the Connecticut River, the source of New England Power’s hydroelectricity. Whatever the extent of the State’s proprietary interest in the river, the pre-eminent authority to regulate the flow of navigable waters resides with the Federal Government, United States v. Twin City Power Co., 350 U. S. 222 (1956), which has licensed New England Power to operate its Connecticut River hydroelectric plants pursuant to a determination that those facilities are “best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce,” 16 U. S. C. § 803(a). New Hampshire’s purported “ownership” of the Connecticut River therefore provides no justification for restricting or conditioning the use of these federally licensed units. See First Iowa Hydro-Electric Cooperative v. FPC, 328 U. S. 152 (1946). Moreover, New Hampshire has done more than regulate use of the resource it assertedly owns; it has restricted the sale of electric energy, a product entirely distinct from the river waters used to produce it. See Utah Power & Light Co. v. Pfost, 286 U. S. 165, 179-181 (1932). This product is manufactured by a private corporation using privately owned facilities. Thus, New Hampshire’s reliance on Reeves, Inc. v. Stake, 447 U. S. 429 (1980)—holding that a state may confine to its residents the sale of products it produces — is misplaced.
Indeed, had Congress intended § 201(b) to confer upon the states powers which they would have lacked in the absence of the federal legislation, it would have been anomalous to speak in terms of “authority now exercised.” This language plainly assumes the prior existence of valid state authority; in addition, it appears to limit the saving effect of the provision to those few States in which the authority was in fact “exercised” in 1935.
On the other hand, it would not have been at all unusual had Congress taken care that the 1935 enactment not displace state authority in the area, without consideration of the scope of that authority or the extent to which it might be constrained by other provisions of federal law. See Milwaukee v. Illinois, 451 U. S. 304, 329, n. 22 (1981).
We need not speculate here as to the precise contours of § 201(b)’s saving effect.
Even were we to conclude that Congress intended §201(b) to override restraints placed on state regulatory power by the Commerce Clause, there would remain a substantial question whether the order of the New Hampshire Commission was entitled to protection under that provision. Section 201(b) seeks to protect only state regulation relating to the “exportation” of hydroelectric power. However, New England Power cannot terminate its out-of-state transmission of hydroelectricity without substantial alterations in the regional transmission- system to which its hydroelectric facilities are connected — alterations which the New Hampshire Commission did not appear to contemplate would be made. Appeal of New England Power Co., 120 N. H. 866, 876-877, 424 A. 2d 807, 814 (1980). The operative effect of the Commission’s order would be to compel New England Power to enter into new wholesale contracts with New Hampshire utilities, at rates fixed by the New Hampshire Commission to reflect the “economic cost” of the company’s hydroelectric production. See supra, at 336, and n. 3. Appellants argue that such state regulation is incompatible with Part II of the Federal Power Act — which vests in the Federal Energy Regulatory Commission exclusive ratemaking jurisdiction over “the sale of electric energy at wholesale in interstate commerce,” 16 U. S. C. §§ 824(b), 824d-824f (1976 ed. and Supp. IV) — and conflicts directly with § 205(b) of the Federal Power Act, 16 U. S. C. § 824d(b), which prohibits utilities from maintaining “any unreasonable difference in rates ... as between localities” with respect to sales subject to federal jurisdiction. Given our holding that the New Hampshire Commission’s order violates the Commerce Clause, we need not decide this issue.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_appel1_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 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".
WATERWAY COMMUNICATIONS SYSTEMS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Riverphone, Inc., Intervenor.
No. 87-1488.
United States Court of Appeals, District of Columbia Circuit.
Argued May 2, 1988.
Decided July 5, 1988.
As Amended Sept. 21, 1988.
Martin W. Bercovici, with whom Susan J. Pisner, Washington, D.C., was on the brief, for petitioner.
Gregory M. Christopher, Counsel, F.C.C., for respondents. Diane S. Killory, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, John E. Ingel, Robert L. Cook, Counsel, F.C.C., Robert B. Nicholson and Laura Heiser, Attys., Dept, of Justice, were on the brief, for respondents.
Anne P. Jones and Robert J. Miller, Washington, D.C., entered appearances for intervenor Riverphone, Inc.
Before STARR and WILLIAMS, Circuit Judges, and WEIGEL, Senior District Judge.
Of the U.S. District Court for the Northern District of California, sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion for the Court filed by Circuit Judge WILLIAMS.
WILLIAMS, Circuit Judge:
Waterway Communications System, Inc. (“Watercom”), a provider of ship-to-shore telecommunications, appeals the Federal Communications Commission’s order rejecting its petitions to deny certain license applications of a competitor, Radio Television of Louisiana, Inc. (“RTL”). We dismiss for want of jurisdiction. The Commission’s rejection of Watercom’s petitions to deny the RTL license applications was not an appeal-able order; its ultimate grant of the RTL applications was appealable, but Watercom did not file its petition for review in this court within the 30-day statutory window following the grant.
I.
In the late 1970s Watercom developed technology for an “Automated Maritime Telecommunications System” or “AMTS.” AMTS represents a leap ahead of prior systems, which did not allow customer dialing and which required a caller from shore to know the location of the ship he wished to call and the nearest public coastal station. Watercom’s development and implementation of the AMTS technology threatened the interests of firms holding licenses for stations operating manual systems. An affiliated group of these licensees, of which RTL is a member, unsuccessfully contested Watercom’s applications for frequencies on which to run an AMTS network. Watercom counterattacked on two fronts. First, it asked the Commission to investigate the conduct of RTL and its affiliates (especially Riverphone, Inc.), with an eye to imposition of sanctions. Second, it petitioned to deny several of RTL’s pending public coast license applications on the theory that character flaws exhibited by members of its corporate family in their various challenges to Watercom should disqualify it from receipt of any FCC licenses.
On January 15, 1987 the Commission issued an order rejecting both aspects of Watercom’s counterattack. Its disposition of the generalized request for sanctions, however, is not before us; Watercom has limited its appeal to the Commission’s treatment of its petitions to deny RTL’s license applications. Reply Brief at 2-10; cf. Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Viewing the RTL group’s actions in the context of the entire record, a “record ... replete with rancorous and ad hominem pleadings,” Complaint of Waterway Communications System, Inc. against Riverphone, Inc., 2 FCC Red 241 (Joint Appendix (J.A.) 485), the Commission judged it innocent of material wrongdoing. Finding a hearing unnecessary, it rejected the petitions to deny and directed its staff to “process [the RTL] filings in the regular course of business.” Id. On August 17, 1987, the Commission denied Watercom’s petition for reconsideration of this decision. Complaint of Waterway Communications System, Inc. against Riverphone, Inc., 2 FCC Red 5012, J.A. 574.
On September 14, 1987, Watercom filed for review in this court pursuant to § 402 of the Federal Communications Act, 47 U.S.C. § 402 (1982). More than two weeks later, on October 2, the Commission’s staff, acting on delegated authority, granted the RTL license applications.
II.
There appear to be two ways of viewing Watercom’s appeal to this court. The appeal may be from the Commission’s denial of Watercom’s petition to deny the RTL licenses, i.e., its decision that Watercom’s challenges to the RTL applications did not warrant a hearing. That petition reached the end of the road when the Commission denied Watercom’s petition for reconsideration on August 17, 1987. But, for the reasons discussed below and despite some suggestions to the contrary in our cases, the Commission’s decision lacks finality and is not appealable.
On the other hand, this case may instead be characterized as a challenge to the grant of the RTL licenses on October 2, 1987. Commission orders granting radio licenses plainly are appealable under 47 U.S.C. § 402(b). But Watercom’s September 14, 1987 filing in this court did not fall within the 30-day jurisdictional window allowed by 47 U.S.C. § 402(c).
A. Rejection of Watercom’s Petitions to Deny
Jurisdiction for review of FCC licensing-related decisions is governed by § 402(b). § 402(b)(l)-(4) provide jurisdiction for appeals by parties affirmatively seeking Commission authorization, mostly described as “applicant[s]” for one thing or another; subsection (1) allows appeal by “any applicant for a ... station license, whose application is denied by the Commission.” § 402(b)(6) turns to the other side and authorizes appeal for persons situated as is Watercom — “any ... person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (l)-(4).” (Emphasis added.) On its face, therefore, it appears that relief for Watercom under § 402(b) requires as a trigger the grant or denial of a license application.
Although the Commission order rejecting Watercom’s Petitions to Deny removed an impediment to the Commission’s eventual grant of the RTL licenses, the order was not itself a final license grant. Nor did it irrevocably commit the Commission to granting the RTL licenses. In the denial the Commission directed its staff to “process” the RTL filings “in the regular course of business.” This left the staff to assess RTL’s technical submissions and make the statutorily required public interest finding. To treat the rejection of Wa-tercom’s petitions to deny as de facto a final decision to grant the RTL applications, as Watereom urges, would entangle the courts in disputes that have at least some chance of completely disappearing.
Resolution of petitions to deny a license application characteristically revolve around the Commission’s duty to hold a hearing when the petition raises a sufficient question about the license application. See 47 U.S.C. § 309(e). As Watereom asserts that its petitions to deny raised such an issue, it suggests that the order rejecting the petitions must be appealable. But the Commission’s violation of § 309, if its January and August 1987 decisions be such, can create a reviewable issue without constituting an appealable order. Water-corn’s impression to the contrary may well have derived from its reading some of our prior cases that loosely, and somewhat misleadingly, characterize appeals of the Commission’s licensing decisions as appeals of the Commission’s concurrent rejection of the appellants’ petitions to deny. See, e.g., Metropolitan Television Co. v. United States, 221 F.2d 879, 880-81 (D.C.Cir.1955); Citizens for Jazz on WRVR, Inc. v. FCC, 775 F.2d 392, 393 (D.C.Cir.1985). The cases are properly characterized as appeals of Commission licensing decisions in which the primary issue on appeal was whether the Commission had violated the standards established by § 309(e). Cf. Stone v. FCC, 466 F.2d 316, 321 (D.C.Cir.1972); Columbus Broadcasting Coalition v. FCC, 505 F.2d 320, 322 (D.C.Cir.1974). None of these cases even considered whether the Commission’s § 309 decisions could be independently appealable.
In a post-argument filing Watereom asserts that Fidelity Television, Inc. v. FCC, 502 F.2d 443 (D.C.Cir.1974), and Committee for Open Media v. FCC, 543 F.2d 861 (D.C.Cir.1976), are binding precedent for its view that a Commission order rejecting a § 309(d) petition to deny without a hearing is independently appealable. We disagree. In Fidelity Television the court held final and appealable under § 402(b) a Commission decision renewing RKO General’s Los Angeles TV station but reserving its authority to upset that renewal if the results of an inquiry then pending in Boston (and relating to allegations of anticompetitive behavior by RKO) so dictated. The Commission’s decision stated that “the application of RKO General, Inc.... IS DEEMED TO BE GRANTED, and ... the application of Fidelity Television, Inc.... IS DEEMED TO BE DENIED, subject to whatever action may be deemed appropriate following resolution of the matters” raised in the Boston proceeding. Id. 502 F.2d at 448. So far as appears, the qualification of the decision’s finality was no more than what is inevitable under 47 U.S.C. § 312(a)(2), which authorizes the Commission to revoke licenses “because of conditions coming to the attention of the Commission which would warant it in refusing to grant a license or permit on an original application.”
Commission for Open Media v. FCC is closer but not on the mark. It arose from an objection by the Commission for Open Media (“COM”) to the FCC’s decision to renew Chronicle Broadcasting’s TV license. On November 1, 1971 COM petitioned to deny Chronicle’s application for renewal. The FCC rejected the substance of this petition in its May 9, 1973 decision to grant renewal. But that decision did not specifically mention the petition to deny, and the Commission formally rejected that petition only on May 30, 1973. In other words, what we would normally think of as the final decision — license renewal — preceded formal disposition of what we might think of as an interlocutory motion.
COM on June 23,1973 filed a petition for reconsideration with the Commission. Under 47 U.S.C. § 405, this was timely as to the May 30 order, untimely as to that of May 9. On October 15, 1973, while this petition was pending, COM appealed to this court. Besides challenging the FCC’s rejection of its initial petition, it sought relief against the Commission’s allegedly unreasonable delay in failing to act on its petition for reconsideration. (Although filing a petition for reconsideration was not a prerequisite of seeking judicial review, pendency of the petition rendered the Commission’s decision non-final.) Finally, on January 4, 1974, the FCC denied COM’s petition.
The court found that the FCC denial of reconsideration mooted COM’s delay complaint. Turning to the merits claim, the court said that COM’s motion for reconsideration tolled the statute of limitations for appeal from the May 9 order, and that that order was appealable. 543 F.2d at 864-65 n. 20. But as more than 30 days had elapsed from the May 9 order to COM’s petition for reconsideration, that did not solve the limitations problem. The court proceeded to say that the May 30 order “was ancillary to the Commission’s licensing authority, and was likewise appeal-able.” Id. Whatever the purpose of the remark, it cannot mean that any decision ancillary to a final decision is on that account final; such a view would extinguish the requirement of finality. (The cases cited by the court, Metropolitan Television Co. v. United States, 221 F.2d 879 (D.C.Cir. 1955), and Radio Station WOW, Inc. v. FCC, 184 F.2d 257 (D.C.Cir.1950), do not support that view.)
Thus, read consistently with ordinary notions of finality, COM appears to be mainly a response to the FCC’s cart-before-the-horse move — granting the license renewal before rejecting the petition to deny. In essence it says that when the Commission disposes of a matter once, and then issues a mopping-up order explicitly rejecting a petitioner’s claim, the petitioner may treat the latter as the final, final order. Such a proposition does no good for Waterway.
Finally, petitioner notes that Commission rules prevent the entertainment of motions to reconsider interlocutory appeals. See 47 C.F.R. § 1.106(a) (1987). As the Commission clearly did entertain its motion to reconsider, it would evidently have us infer that the Commission must have regarded its denial of the petition to deny as final. See May 5, 1988 letter submitted under Rule 28(j) of the Federal Rules of Appellate Procedure. Presumably so; but the Commission’s characterization of its decision as final for its purposes does not make it so for ours. See Spanish Int’l Broadcasting Co. v. FCC, 385 F.2d 615, 625-26 (D.C.Cir. 1967).
B. Approval of the RTL License Applications
In view of the confusion engendered by the Commission’s consolidated treatment of Watercom’s requests for enforcement against Riverphone and for denial of the RTL license applications, one can perceive an equitable claim in favor of treating Watercom’s September 14,1987 petition for review here as an appeal of the Commission staff’s October 2, 1987 approval of those applications. Even if we thought the equitable claim strong, compare Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), however, our previous decisions preclude this course. The time limit imposed by 47 U.S.C. § 402(c) is jurisdictional, i.e., if the appeal is not filed in accordance with the statutory terms, “it must be dismissed.” National Black Media Coalition v. FCC, 760 F.2d 1297, 1298 (D.C.Cir. 1985) (emphasis added).
Here the appeal was filed 18 days before public notice of the RTL license grant. 47 U.S.C. § 402(c) requires that notice of appeals taken pursuant to § 402(b) be “file[d] ... with the court within thirty days from the date upon which public notice is given of the decision or order complained of.” We have already construed an identically phrased time limit as creating only a “window,” i.e., a period for filing restricted on both ends.
In Western Union Telegraph Co. v. FCC, 773 F.2d 375 (D.C.Cir.1985), we considered the requirement of 28 U.S.C. § 2344 (1982) that appeals under 28 U.S.C. § 2342 be filed “within 60 days after ... entry” of the order appealed. The petition for review in question had been filed one week after release to the public, but six days before publication of the contested order in the Federal Register. The panel acknowledged that the statutory time limit could be viewed as either establishing a “deadline” or a “window.” Id. at 377. It concluded that both the language of the statute and the interest in establishing clear and certain jurisdictional boundaries weighed heavily in favor of the latter approach. Id. at 377-78.
The statutory language at issue here (“within thirty days,” 47 U.S.C. § 402(c)) mirrors that construed in Western Union; no other factors distinguish the issue here from that faced by the Western Union panel. We conclude that we have no power to entertain Watercom’s appeal.
We note that some of the rigor behind our rejection of premature appeals has derived from the fact that 28 U.S.C. § 2112(a) (1982) created a race to the courthouse where timely appeals were filed in different courts of appeal with respect to the same agency order. If time limits were construed as deadlines only, parties would file progressively earlier, necessitating judicial invention of some threshold. See Western Union, 773 F.2d at 378. The race has since been replaced by a lottery, Act of Jan. 8, 1988, Pub.L. No. 100-236, 101 Stat. 1732, a change that argues for some relaxation of existing barriers. Compare Sacks v. Rothberg, 845 F.2d 1098 at 1099 (D.C. Cir.1988) (“[A]n appeal taken prematurely effectively ripens and secures appellate jurisdiction when the district court’s judgment becomes final prior to disposition of the appeal”). But Western Union itself did not actually involve a race, so the court clearly did not regard the absence of a race as justifying mitigation of the rule. Nor was it explicitly founded upon the existence of the race problem as a general matter. Accordingly, Western Union remains the law of this circuit.
We dismiss the petition.
. Watercom has also petitioned to deny the application of Riverphone Inc., an RTL affiliate recently created to exploit the new AMTS technology, for a band of AMTS frequencies (File No. 854213 (Dec. 31, 1986)). J.A. 542. The Commission has not yet spoken to this petition to deny, and it is not before us.
. The Licensing order also was a staff order and thus was not subject to judicial review in the absence of an application for review by the Commission. See 47 U.S.C. § 155(c)(7).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Barnet SHOIFET, Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.
No. 203, Docket 25297.
United States Court of Appeals Second Circuit.
Argued Jan. 14, 1959.
Decided March 31, 1959.
Jack Steinman, New York City (William E. J. Connor, Hudson, N. Y., on the brief), for plaintiff-appellee.
C. Austin White, New York City (Gerald E. Dwyer and Thomas J. Smith, New York City, on the brief), for defendant-appellant.
Before MEDINA, LUMBARD and BURGER, Circuit Judges.
Sitting by designation pursuant to 28 U.S. C.A. § 291(a).
MEDINA, Circuit Judge.
In this grade-crossing accident case The New York Central Railroad Company’s appeal presents a single question of law, properly raised at the trial by a variety of motions: Was appellee guilty of contributory negligence as a matter of law?
As federal jurisdiction is based on diversity of citizenship, and the accident occurred in New York, the substantive aspects of the case are governed by New York law. See Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Continental Can Co. v. Horton, 8 Cir., 1957, 250 F.2d 637; and Poplar v. Bourjois, Inc., 1948, 298 N.Y. 62, 80 N.E.2d 334; Benton v. Safe Deposit Bank, 1931, 255 N.Y. 260, 174 N.E. 648; Fitzpatrick v. International Ry. Co., 1929, 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801.
On November 21, 1956 appellee Barnet Shoifet, a 72-year old cattle-dealer was driving alone in his 1948 Chevrolet pickup truck along Route 343 bound for Amenia, New York, from his home in Sharon, Connecticut. He had driven his car in this same locality many times before. At about 9:10 A.M. a New York Central train, on its single track Harlem Division, struck Shoifet’s truck at a crossing. The direction of the truck was about due West and that of the train Southwest.
There was evidence from which the jury was justified in concluding that the crossing, otherwise unguarded, was protected by flashing red lights or blinkers, and that these blinkers were not operating at the time of the accident, despite the presence of the on-coming train. Nor was there any other warning of the approach of the train; no bell was rung; no whistle was blown. The train was proceeding at a “pretty fast” rate of speed, estimated by the engineer and the fireman to be about sixty miles an hour.
Shoifet was going about 30 miles an hour in his truck as he approached the crossing. He slowed down considerably, and from conflicting testimony the jury may have inferred that he did not stop. The applicable New York law did not require him to stop. See Judson v. Central Vermont R. Co., 1899, 158 N.Y. 597, 53 N.E. 514. The road and the railroad track converge at an angle of approximately 20 degrees. Thus the view of the track on which the train was moving was more backwards than sideways from the driver’s seat; and, after coming through a cut, the train was visible for a distance of about 900 feet. But the exhibits and the testimony indicate that this distance cannot be taken absolutely. It was only when the truck had passed a point about 350 feet from the crossing that the train could be seen 900 feet away, and there was expert testimony that a driver, who had to watch where he was going on the road, could only see from his driver’s seat “a train practically the same distance from the crossing (as) he was,” and that it would have taken the train 9.7 seconds to traverse this 900 feet. The jury could have reasonably concluded, however, that the train was going faster than appellant’s employees admitted. See Noseworthy v. City of New York, 1948, 298 N.Y. 76, 80 N.E.2d 744.
It was broad daylight at the time of the accident, although a slight drizzle might have somewhat interfered with Shoifet’s view. While badly injured he survived and testified that his sight and hearing were good despite his age and that he “looked around” in all directions and listened to ascertain if a train was coming before attempting to cross the track. There was nothing in the back of the truck behind the driver’s cab to obstruct or impede Shoifet’s vision. It is on the basis of his testimony that he looked and did not see the train that we are asked to rule that he was guilty of contributory negligence as a matter of law, and to reverse the judgment and dismiss the complaint. The burden of the argument is, and must be, that this testimony is incredible on its face, because it is claimed that no reasonably prudent person could have looked, not seen the train and yet been hit by it.
We see no reason to doubt that on the facts as above summarized the controlling rule of law is the one frequently formulated by the New York Court of Appeals in wrongful death actions arising out of railroad crossing accidents, that contributory negligence is an issue for the jury, if there is “any possible hypothesis on the evidence that will support the conclusion that due care was exercised.” See Chamberlain v. Lehigh Valley R. Co., 1924, 238 N.Y. 233, 144 N.E. 512; Flynn v. Long Island R. Co., 1942, 289 N.Y. 283, 45 N.E.2d 445; Nicholson v. Greeley Square Hotel Co., 1919, 227 N.Y. 345, 349, 125 N.E. 541, 543; and Crough v. New York Central R. Co., 1932, 260 N.Y. 227, 183 N.E. 372. Indeed, as we are not here concerned with any question of burden of proof, this is only another way of saying that all questions of credibility, sifting of the evidence and drawing inferences therefrom must be assumed to have been decided in Shoifet’s favor. See Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Baltimore & Ohio R. Co. v. Groeger, 1925, 266 U.S. 521, 527, 45 S.Ct. 169, 69 L.Ed. 419; Greany v. Long Island R. Co., 1886, 101 N.Y. 419, 423, 5 N.E. 425, 426.
It was for the jury to determine what were the relative speeds of the truck and the train and also to determine how far away the train was at the various times Shoifet said he looked. As he slowly approached the crossing and looked to the right, before he looked to the left, it is too plain for reasonable debate that the train might have been beyond the cut and obscured from sight. Moreover, in view of the fact that the blinkers were not functioning and he knew that they were placed there to warn of the approach of trains, together with the absence of any bell or whistle, we think a jury might reasonably have concluded that a prudent person would do no more than look from the driver’s seat through the right-hand window of the truck, without shifting his seat or straining to look backwards. Had the jury reasoned in this fashion, they might well have concluded that the train was only 300 or 400 or 500 feet away when he first looked to the right but that it still was not within Shoifet’s vision. The speeding train thus could within 4 or 5 seconds have come upon the unsuspecting Shoifet before the latter realized his danger.
Another and very likely hypothesis is that when Shoifet first looked to the right the train had not yet come out of the cut, but that in the time it took him to watch the road ahead, look to the left, and then again to the right the train had reached a point less than 900 feet away, but still not within his vision, as his last look was merely confirmatory and hence he did not strain to see the full distance over his right shoulder and backwards to the cut. The jury, on this hypothesis, may well have concluded that Shoifet was, under the circumstances, entitled to some degree to relax his vigilance. See Flynn v. Long Island R. Co., supra, 289 N.Y. 283, 286, 45 N.E.2d 445, 446; Nicholson v. Greeley Square Hotel Co., supra, 227 N.Y. 345, 349, 125 N.E. 541, 543; Carr v. Pennsylvania R. Co., 1918, 225 N.Y. 44, 47, 121 N.E. 473, 474. In any event, as he slowed down when he neared the crossing and kept “looking around,” he could see less and less distance down the track with his normal line of sight through the right-hand window of the truck. Thus we have not one but many hypotheses to support a jury finding that due care was exercised in this case, and none of these hypotheses lacks rationality or probability.
Indeed the facts here are strikingly similar to those in Chamberlain v. Lehigh Valley R. Co., supra, 238 N.Y. 233, 144 N.E. 512. There the road and track were parallel except at the crossing. Plaintiff’s intestate’s truck was proceeding at 8 miles an hour, the train at 45 miles an hour. The view of the track was obstructed until the decedent was 105 feet from the track, giving the decedent about 9 seconds to see the track. The train could be seen from 600 feet away which meant that it could be seen for nine seconds before it reached the crossing. The New York Court of Appeals held that the question of contributory negligence was for the jury, stating at page 237 of 238 N.Y., at page 513 of 144 N.E.:
“With one pair of eyes one cannot look in two directions at the same time. The duty of deceased was to look in both directions, keep control of his car, and negotiate it across the tracks. If he had looked in the direction of the approaching train 10 seconds before the accident, the jury might have said that he would have seen nothing and heard nothing to warn him of the approaching danger.”
Cases abound which demonstrate the New York attitude on this subject and we cite only a few more as further illustrations. Guido v. Delaware, Lackawan-na & Western R. Co., 1958, 4 N.Y.2d 981, 177 N.Y.S.2d 503, 152 N.E.2d 527; Cabri v. Long Island R. Co., 1954, 306 N.Y. 765, 118 N.E.2d 475; Latourelle v. New York Central R. Co., 1950, 301 N.Y. 103, 92 N.E.2d 911; Paley v. New York Central R. Co., 1948, 297 N.Y. 1017, 80 N.E.2d 537; Flynn v. Long Island R. Co., 1942, 289 N.Y. 283, 45 N.E.2d 445; Bond v. Schenectady Ry. Co., 1929, 251 N.Y. 315, 167 N.E. 455; Carr v. Pennsylvania R. Co., 1918, 225 N.Y. 44, 121 N.E. 473; Mullen v. Schenectady Ry. Co., 1915, 214 N.Y. 300, 108 N.E. 412; Greany v. Long Island R. Co., 1886, 101 N.Y. 419, 5 N.E. 425.
Appellant’s reliance upon cases like Wadsworth v. Delaware, L. & W. R. Co., 1947, 296 N.Y. 206, 71 N.E.2d 868; Crough v. New York Central R. Co., 1932, 260 N.Y. 227, 183 N.E. 372; Schrader v. New York, C. & St. L. R. Co., 1930, 254 N.Y. 148, 172 N.E. 272; Fitch v. New York Central R. Co., 1922, 233 N.Y. 356, 135 N.E. 598; Hagglund v. Erie R. Co., 1913, 210 N.Y. 46, 103 N.E. 770, is misplaced. Factors such as right angle intersections, plainly unobstructed views and various other circumstances suggesting a total lack of any care whatsoever are commonly found. In none of these cases do we find any basis in the facts for an inference or hypothesis consistent with the exercise of reasonable prudence by the injured person who was struck by the train.
Affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_appsubst
|
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 "sub-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.
William L. DUCKETT, Plaintiff-Appellee, v. The CITY OF CEDAR PARK, TEXAS, et al., Defendants, Dianne Newsom, as Community Survivor of the Estate of Clyde Newsom, Deceased and George Hamilton, etc., Defendants-Appellants.
No. 91-8060.
United States Court of Appeals, Fifth Circuit.
Jan. 10, 1992.
Douglas M. Becker and Roger Moore, Gray & Becker, Austin, Tex. for defendants-appellants.
Gabriel Gutierrez, Jr., Austin, Tex., for William L. Duckett.
Before KING, JOHNSON, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendants Newsom and Hamilton, police officers for the City of Cedar Park, Texas, appeal from a denial of their motion for summary judgment asserting qualified immunity. Concluding that — based on the summary judgment record — defendants are entitled to qualified immunity as a matter of law, we reverse the district court’s denial of summary judgment and remand for entry of judgment in defendants’ favor.
I. BACKGROUND
A. Facts
During the evening of June 2, 1987, Officer George Hamilton lawfully stopped William L. Duckett in the City of Cedar Park, Texas for failing to dim his headlights. Hamilton, a police officer for the City, ran a routine warrant check on the computer which revealed the existence of an outstanding warrant in Williamson County. Despite Duckett’s protests that the warrant had been withdrawn, Hamilton transported Duckett to the police station.
At the police station, Duckett saw Officer Newsom and asked him about the warrant. Newsom told Duckett that he would check on the warrant the next morning. Later that same evening, Hamilton telephoned Duckett’s mother, who informed him that the warrant for Duckett’s arrest had been withdrawn. To make sure the warrant was still valid, Hamilton sought and obtained a teletyped confirmation from Williamson County which showed an outstanding warrant for Duckett’s arrest. Hamilton then showed this confirmation to Newsom and, accordingly, Duckett was held in custody overnight. Duckett was released from custody the next morning after a new teletype from Williamson County indicated that the warrant for his arrest had been withdrawn.
B. Proceedings
Duckett sued the City of Cedar Park, Texas and other city officials under 42 U.S.C. § 1983, alleging they violated his constitutional rights. Specifically, Duckett alleged that defendants’ actions deprived him of liberty without due process of law. Throughout the litigation, defendants filed various motions for summary judgment, alleging they were entitled to judgment as a matter of law. Defendants City of Cedar Park, Newsom and Hamilton filed their initial motion for summary judgment, asserting that summary judgment was proper because: (1) Duckett’s evidence failed to establish a constitutional violation; and (2) the City of Cedar Park was immune from liability on Duckett’s claim. Subsequently, defendants City of Cedar Park, Newsom and Hamilton filed a supplemental motion for summary judgment, asserting summary judgment was appropriate because: (1) Duckett failed to state a constitutional claim; and (2) even if Duckett had stated a constitutional claim, Duckett could not overcome defendants’ assertion of good faith defense. The district court denied the defendants’ initial motion for summary judgment and set the case for trial. The district court did not rule on the supplemental motion for summary judgment.
Defendants Hamilton and Newsom appealed the district court’s order denying defendants’ motion for summary judgment, pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (“a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law is an appealable ‘final decision’ ”). This court, however, concluding that the order from which defendants appealed was not an ap-pealable judgment, dismissed the appeal for want of jurisdiction. Duckett v. City of Cedar Park, Texas, Et Al, No. 90-8285, slip op. at 4 (5th Cir. Oct. 17, 1990) [917 F.2d 562 (table)]. The court concluded that the district court did not expressly address whether Newsom and Hamilton were entitled to summary judgment based on qualified immunity. This court noted that dismissing the appeal would not prevent Newsom and Hamilton from filing a summary judgment motion based specifically on qualified immunity. Id.
Defendants Newsom and Hamilton filed their second supplemental motion for summary judgment where they expressly asserted they were entitled to summary judgment based on qualified immunity. The district court granted defendants’ motion for summary judgment in part and denied it in part. The district court denied defendants’ motion for summary judgment on the issue whether Duckett was held in custody longer than necessary because it found a factual dispute as to the defendants’ knowledge regarding the warrant’s validity. Defendants Newsom and Hamilton now appeal, again pursuant to Mitchell v. Forsyth, the partial denial of their motion for summary judgment.
II. STANDARD OF REVIEW
Summary judgment is proper if the movant demonstrates that there is an absence of genuine issues of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “[T]he substantive law will identify which facts are material.” Id. at 248, 106 S.Ct. at 2510. Such a showing entitles the movant to summary judgment as a matter of law. Fed.R.Civ.P. 56(c). The movant accomplishes this by informing the court of the basis for its motion, and by identifying portions of the record which reveal there are no genuine material fact issues. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the movant produces such evidence, the nonmovant must then direct the court’s attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial — that is, the nonmovant must come forward with evidence establishing each of the challenged elements of its case upon which it will bear the burden of proof at trial. Id. at 323-24, 106 S.Ct. at 2553. Because this case is an appeal from summary judgment, we review the record de novo, Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir.1991), examining the evidence in the light most favorable to Duckett, the nonmovant below. See Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990).
III. DISCUSSION
Until recently, this court would review a Mitchell v. Forsyth appeal, where the defendant pleads the qualified immunity defense, by examining defendant’s entitlement to this defense before examining the merits of the plaintiff’s constitutional claim. See, e.g., Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990) (on appeal from order denying motion for summary judgment based on qualified immunity, plaintiff has burden of submitting summary judgment evidence to create genuine issue as to whether defendant’s conduct was objectively reasonable); Mouille v. City of Live Oak, 918 F.2d 548, 551 (5th Cir.1990) (court must determine whether defendant’s conduct is qualifiedly immune before reaching merits of § 1983 claim). Because the methodology for reviewing a qualified immunity defense has changed, we first examine the extant case law to ascertain the proper analytical structure. See Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Samaad v. City of Dallas, 940 F.2d 925 (5th Cir.1991); Quives v. Campbell, 934 F.2d 668 (5th Cir.1991).
A.
The Supreme Court — while keeping all the familiar pieces — recently reassembled the analytical structure for reviewing an appeal of a denial of a motion for summary judgment asserting qualified immunity. In Siegert v. Gilley, the Court’s stated purpose was to “clarify the analytical structure under which a claim of qualified immunity should be addressed.” Ill S.Ct. at 1793. The Court rejected the approach taken by the Court of Appeals, which denied the defendant’s motion for summary judgment asserting qualified immunity because plaintiff was unable to overcome defendant’s assertion of qualified immunity, id. at 1792, by “assuming], without deciding, that ... a constitutional claim [had been] stated.” Id. at 1794. The Supreme Court, while it affirmed the Court of Appeals, concluded that the plaintiff’s claim “failed at an analytically earlier stage of the inquiry into qualified immunity: his allegations ... did not state a claim for violation of any rights secured to him under the United States Constitution.” Id. at 1791. The Supreme Court held that the first inquiry in the examination of a defendant’s claim of qualified immunity is whether the plaintiff “allege[d] the violation of a clearly established constitutional right.” Id. at 1793.
“[I]nformed by Siegert v. Gilley,” this court in Quives analyzed an appeal of a grant of summary judgment on defendants’ claim of qualified immunity. 934 F.2d at 670. The district court had granted summary judgment in defendants’ favor on Quives’s claim under 42 U.S.C. § 1983, holding that defendants were entitled to qualified immunity because defendants “could not reasonably be charged with knowledge that they might be violating a clearly established right of the Plaintiff.” Id. On appeal, we analyzed whether Quives had stated a claim of a constitutional violation and, concluding that she had failed to state a constitutional claim, affirmed the judgment of the district court without reaching the issue of qualified immunity. Id. We recognized that, because Quives involved an appeal from a final judgment granting the defendants’ motion for summary judgment asserting qualified immunity, the procedural posture of Quives was different from that in Siegert stating:
[I]n light of the fact that the Supreme Court has recognized the question of failure to state a claim as “an analytically earlier stage of the inquiry into qualified immunity,” we read Siegert as directing us to make that initial inquiry here, just as we would in a Mitchell v. Forsyth appeal from the denial of qualified immunity.
Id. at 670 (citations omitted).
We had the opportunity to examine such a Mitchell v. Forsyth appeal from a denial of a summary judgment motion asserting qualified immunity in Samaad v. City of Dallas. In Samaad, the district court dismissed the plaintiffs’ pendent claims and granted summary judgment in defendants’ favor on all the federal claims except the equal protection claim, ordering that limited discovery should proceed on the public official’s claim of qualified immunity. 940 F.2d at 928. The district court concluded that “it is true that if Plaintiffs’ allegations are true, Defendants’ actions violated clearly established constitutional law by intentionally discriminating against Plaintiffs on the basis of race.” Id. at 940. The district court, concluding that a city official’s entitlement to qualified immunity depended on whether “a discriminatory animus infected his actions,” ordered additional discovery as to this official’s intent. Id. at 940. The defendant-official appealed the district court’s order that discovery should proceed with respect to the equal protection claim. Id. at 928.
On appeal, we considered first “whether the plaintiff asserted a ‘violation of a clearly established right at all,’ ” id. at 940, quoting Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), and concluded that while
the district court essentially followed th[e] mandated analysis in first concluding that ‘if Plaintiffs’ allegations are true, Defendants’ actions violated clearly established constitutional law by intentionally discriminating against Plaintiffs on the basis of race[,]’ [w]e ... disagree with that conclusion; in fact, ... plaintiff did not allege a constitutional violation at all, ‘clearly established’ or not, for the complaint does not state facts that, even if true, would constitute a violation of the Equal Protection Clause.
Id. at 940-41. We found that plaintiffs failed to state a constitutional violation and, therefore, we reversed the summary judgment insofar as it denied the official’s claim of qualified immunity. Id. at 942.
This appeál involves a denial of defendants’ motion for summary judgment asserting qualified immunity. While the parties did not brief or argue the constitutional issue on appeal, Siegert, Quives, and Samaad instruct us that in a case where a defendant asserts such a qualified immunity defense, we should first resolve the constitutional question — that is, whether Duckett has stated a claim for a violation of a right secured to him under the United States Constitution. See Siegert, 111 S.Ct. at 1793; Samaad, 940 F.2d at 940; Quives, 934 F.2d at 670.
B.
Duckett contends — and the district court agreed that there is a factual dispute on this issue — that he was held in custody longer than necessary because the defendants knew the arrest warrant was invalid. An individual has a federally protected right to be free from unlawful arrest and detention resulting in a significant restraint of liberty and violation of this right may be grounds for suit under 42 U.S.C. § 1983. See Dennis v. Warren, 779 F.2d 245, 247 (5th Cir.1985). An arrest or detention may be unlawful if it is accomplished without due process of law as required by the Constitution. See Baker v. McCollan, 443 U.S. 137, 144-45, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979). Police officers are, therefore, required under the Fourth Amendment to make a determination of probable cause before any significant pretrial restraint of liberty. See id. at 142-43, 99 S.Ct. at 2694, citing Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). A police officer has probable cause to arrest if, at the time of the arrest, he had knowledge that would warrant a prudent person’s belief that the person arrested had already committed or was committing a crime. See Gladden v. Roach, 864 F.2d 1196, 1199 (5th Cir.), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700 (1989).
We seek to determine res nova whether a police officer has an obligation to release an individual arrested pursuant to a valid warrant when, subsequent to the arrest, the officer receives information regarding the invalidity of the warrant. Our inquiry is guided by two cases concerning a police officer’s duty to release a suspect after he determines that the reasons for the initial arrest were invalid. See McConney v. City of Houston, 863 F.2d 1180 (5th Cir.1989); Thompson v. Olson, 798 F.2d 552 (1st Cir.1986).
In Thompson, the First Circuit, examining a state-law claim of false imprisonment, observed that a police officer’s initial finding of probable cause justifies an arrest and detention for the purpose of bringing the arrestee before a magistrate. Id. at 556, citing Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 862-63, 43 L.Ed.2d 54 (1975). The court cautioned, however, that “a police officer, upon an initial finding of probable cause, may [not] close his eyes to all subsequent developments .... Probable cause to arrest does not suspend an officer’s continuing obligation to act ‘reasonably.’ ” Id. The court went on to say that an officer, “having once determined that there is probable cause to arrest ... should not be required to reassess his probable cause conclusion at every turn, whether faced with the discovery of some new evidence or a suspect’s self-exonerating explanation from the back of the squad car.” Id. Although an officer may not “close his eyes to all subsequent developments,” id., he need not continually reevaluate the lawfulness of the detention. The court concluded, however, that a police officer has an affirmative duty to release an arrestee if he ascertains beyond a reasonable doubt that the probable cause which formed the basis for the arrest was unfounded. Id.
We applied this same principle in McConney v. City of Houston, 863 F.2d 1180 (5th Cir.1989). In McConney, police officers found McConney, a diabetic, in a rain-filled ditch one evening in Houston. Id. at 1182. After examining McConney’s physical condition, paramedics diagnosed that McCon-ney was intoxicated with an unknown substance. Id. Based on the paramedics’ diagnosis and McConney’s physical reactions, McConney was arrested for public intoxication and was taken to the city jail. Id. McConney was subsequently taken to a holding cell and then to a regular cell where he remained overnight. Id. at 1183. Plaintiff, alleging violations of the Fourth and Fourteenth Amendments, brought a § 1983 suit against the City of Houston and other city officials. Id. McConney claimed that his constitutional rights had been violated because, even though he was not intoxicated, the City detained him pursuant to a four-hour detention rule. In considering the question whether a detention following a lawful warrantless arrest is unconstitutional, we “generally agree[d]” with the approach taken in Thompson, id. at 1185, and concluded “that a person may constitutionally be detained for at least four or five hours following a lawful warrantless arrest for public intoxication without the responsible officers having any affirmative duty during that time to inquire further as to whether the person is intoxicated, even if requested to do so.” Id. We stated further that once a police officer ascertains beyond a reasonable doubt that the reasons which gave rise to the initial lawful arrest become invalid, the arrestee should be released. Id.
Thompson and McConney were concerned with developments subsequent to a warrantless arrest that might detract from the initial probable cause determination. Thompson articulated the standard that, following a lawful warrantless arrest, a police officer has an affirmative duty to release an arrestee if he ascertains beyond a reasonable doubt that the probable cause which formed the basis for the arrest was unfounded. See Thompson v. Olson, 798 F.2d 552, 556 (1st Cir.1986). We adopted this principle in McConney v. City of Houston and enunciated the rule that a police officer must release an arrestee if he ascertains beyond a reasonable doubt that the reasons for the initial arrest are no longer valid. In McConney, we expressly left open the question of the appropriate standard when a suspect is arrested pursuant to a warrant. See McConney, 863 F.2d at 1185 n. 3. We now hold that a plaintiff may state a constitutional claim if, after the police officers make an arrest pursuant to a warrant, the police officers fail to release the arrestee after they receive information upon which to conclude beyond a reasonable doubt that such warrant had been withdrawn.
We find that Duckett, having alleged that his overnight detention in the jail was unconstitutional because the Defendants knew the warrant was invalid, has stated a constitutional challenge under 42 U.S.C. § 1983.
C.
We now turn to the issue of defendants’ entitlement to qualified immunity, which shields certain public officials performing discretionary functions from civil damage liability if “their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). The protections afforded by the qualified immunity defense turn on the “objective legal reasonableness” of the defendant’s conduct examined by reference to clearly established law. Id. at 639, 107 S.Ct. at 3038. This court does not ascertain solely whether the law was settled at the time of defendants’ conduct, but rather, whether, when measured by an objective standard, a reasonable police officer would have known that his conduct was illegal. See Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir.1988). “[Ejven if a defendant’s conduct actually violates a plaintiff’s constitutional right, the defendant is entitled to qualified immunity if the conduct was objectively reasonable.” Pfannstiel v. City of Manon, 918 F.2d 1178, 1183 (5th Cir.1990), citing Melear v. Spears, 862 F.2d 1177, 1188 (5th Cir.1989) (Higginbotham, J., concurring). Accordingly, we review the summary judgment record to ascertain the objective reasonableness of the defendants’ actions. See id.
The summary judgment evidence reflects that the defendants received information which impinged on the warrant’s validity on three separate occasions. Hamilton initially stopped the motor vehicle Duckett was driving because of Duckett’s failure to dim his headlights. After stopping Duckett, Hamilton ran a computer check which revealed the warrant for Duckett’s arrest. Duckett protested that the warrant had been withdrawn but he was nevertheless arrested pursuant to a warrant issued by Williamson County. Because the warrant was facially valid, Hamilton had probable cause to arrest Duckett. The warrant under which Duckett was arrested and detained met the standards of the Constitution. See Baker v. McCollan, 443 U.S. 137, 142-43, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979) (requires a fair and reliable determination of probable cause as a condition for deprivation of liberty); see also United States v. McDonald, 606 F.2d 552, 553-54 (5th Cir.1979) (NCIC printout indicating an outstanding warrant suffices to establish probable cause for that person’s arrest); United States v. Roper, 702 F.2d 984, 989 (11th Cir.1983) (officer had probable cause to arrest where officer radioed NCIC and learned of warrant). Based on information known to Hamilton— including Duckett’s protestations that the warrant had been withdrawn — we find that Hamilton’s actions in arresting Duckett were objectively reasonable.
Duckett was then taken to the police station, where, upon seeing Officer Newsom, he inquired as to the validity of the arrest warrant. Newsom responded to Duckett’s inquiry by saying that he would check on the warrant the next morning. Later that evening, Hamilton contacted Duckett’s mother who told him that the warrant had been withdrawn. Acting on this information, Hamilton sought to ascertain the validity of this information by obtaining a teletyped confirmation from Williamson County. Indeed, the confirmation showed an outstanding warrant for Duckett’s arrest. We conclude — based on defendants’ knowledge concerning the warrant’s validity during this period of Duckett’s detention — that defendants were objectively reasonable in not releasing him.
The following morning, on June 3, the police officers obtained a teletyped confirmation from Williamson County which stated “RECEIVED A WARRANT RECALL THIS MORNING ON THIS WARRANT WANTED TO ADVISE YOUR DEPT TO CANCEL.” Based on this information, the police officers promptly released Duckett from custody. We find that the defendants’ actions — in not releasing Duckett prior to the teletyped confirmation indicating that Duckett’s arrest warrant had been withdrawn — were objectively reasonable.
IV. CONCLUSION
Finding that the defendants’ conduct was objectively reasonable, we REVERSE the district court’s denial of defendants’ motion for summary judgment and REMAND for entry of judgment for defendants Newsom and Hamilton.
. This is an offense under Texas law. See Tex. Rev.Civ.Stat.Ann. art. 6701d, § 127 (Vernon 1977).
. In July 1986 a warrant for Duckett’s arrest was issued by Williamson County, Texas. On May 15, 1987 Randall Nichols, an investigator for the Williamson County Attorney’s office, gave Officer Newsom (Cedar Park’s Chief Warrant Officer) a number of warrants for the arrest of Cedar Park residents. Newsom contacted Duckett’s mother, who served as Mayor of Cedar Park, regarding the warrant for Duckett’s arrest. Duckett’s mother informed Newsom that she had been told Duckett’s warrant had been taken care of and that Williamson County assured her that it would be taken off the statewide computer. Newsom wrote "Has been taken care of’ on the warrant card and returned the warrant card to Nichols. Nichols told New-som he would investigate the warrant for Duck-ett. The criminal case against Duckett which gave rise to the warrant was dismissed May 28, 1987. Williamson County did not delete the warrant from the TCIC computer, however, until the morning of June 3, 1987 — after Duckett’s arrest and overnight detention.
.Newsom claims that he was not aware that Duckett's June 2 arrest had resulted from the same warrant he discussed with Duckett’s mother.
. On September 3, 1987, Duckett dismissed his claims against all defendants except the City, Chief of Police Phillips, Chief Warrant Officer Newsom, and Police Officer Hamilton. Duck-ett’s claim against Phillips was dismissed on December 23, 1987. Officer Newsom died during the pendency of these proceedings and his wife Dianne Newsom was substituted as representative of his estate. Hamilton and Dianne Newsom are the only defendants in this appeal.
. Duckett claimed the following actions constitute violations of his federally protected rights: (i) the original arrest by Officer Hamilton; (ii) the failure of Hamilton and Newsom to release Duckett from custody after they learned about the warrant’s invalidity; (iii) the defendants’ failure to release Duckett on a $500 cash bond; and (iv) Cedar Park's alleged custom or policy that permitted the defendants’ actions.
.The district court granted summary judgment on Duckett’s illegal arrest claim against Hamilton and on Duckett’s claim regarding defendants’ failure to release Duckett on bail, but denied the motions for summary judgment in all other regards.
. Siegert v. Gilley, 895 F.2d 797 (D.C.Cir.1990).
.Marine Maria Quives was dismissed from her job as a services assistant at the Fort Worth State School, a state facility. After pursuing the established grievance procedure, Quives was reassigned to a different position than that of a services assistant. Quives then, claiming a denial of due process and asserting pendent state claims, filed suit under 42 U.S.C. § 1983 against various school officials, contending that she should have been reinstated as a services assistant. After the parties filed motions for summary judgment, the district court denied Quives’s motion for summary judgment, dismissed the state law claims without prejudice, and granted summary judgment in defendants’ favor. 934 F.2d at 669.
. The district court also held, in the alternative, that Quives had not been denied due process. Id. at 669.
. The Samaad plaintiffs sued defendants under 42 U.S.C. § 1983, contending that defendants’ operation of two automobile races in a public park near their homes denied them equal protection of the laws and resulted in a taking of their property without due process of law. Plaintiffs also stated pendent state and local law claims. 940 F.2d at 928.
. McConney testified that he had not consumed any "intoxicants, marihuana, 'tablets or pills’ ... and was not intoxicated at any time on that date.” 863 F.2d at 1183.
. We do not hold that police officers must conduct an investigation regarding the warrant’s validity. See Baker v. McCollan, 443 U.S. at 145-146, 99 S.Ct. at 2695 ("[W]e do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury.”) (footnote omitted).
. The defendants also had probable cause to arrest Duckett because of his failure to dim his headlights. See Gassner v. City of Garland, 864 F.2d 394, 398-99 & n. 5 (5th Cir.1989).
Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
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songer_procedur
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D
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
ORIENT INVESTMENT & FINANCE CO., Inc. v. COMMISSIONER OF INTERNAL REVENUE. ELLEN INVESTMENT & FINANCE CO., Inc. v. SAME.
Nos. 9551, 9552.
United States Court of Appeals District of Columbia.
Argued Dec. 4, 1947.
Decided Feb. 2, 1948.
Mr. H. N. Roth, of Orlando, Fla., with whom Messrs. Joseph Hartman, of Jacksonville, Fla., and H. Nathaniel Blaustein, of Washington, D. C., were on the brief, for petitioners.
Miss Louise Foster, Special Assistant to the Attorney General, with whom Miss Helen R. Carloss and Mr. A. F. Prescott, Special Assistants to the Attorney General, were on the brief, for respondents.
Messrs. John P. Wenchel, Chief Counsel, and Charles E. Lowery, Special Attorney, Bureau of Internal Revenue, both of Washington, D. C., also entered appearances for respondent.
Before GRONER, Chief Justice, and STEPHENS and WILBUR K. MILLER, Associate Justices.
GRONER, C. J.
These two cases involve the same question in precisely the same circumstances. We shall dispose of them as a single case. Petitioners filed ordinary income tax returns for the years 1940-41-42. Several years later, on an examination of petitioners’ books, the Commissioner determined that both were liable for personal holding company surtaxes, and asserted penalties for failure to file personal holding company returns. Petitioners paid the tax and interest, but disputed the penalty. The Tax Court found petitioners were liable for the penalty and entered an order accordingly. The single question here is — Was this decision correct ?
The Tax Court found that there was no dispute on the facts. Petitioners are corporations and have their principal offices at Orlando, Florida. They filed their income tax returns for the years involved with the Collector for the District of Florida, at Jacksonville. One of them, the Orient Investment & Finance Company, Inc., whom we shall call “Orient,” operates two citrus groves and also owns some turpentine interests. The.other, the Ellen Investment & Finance Company, Inc., carries on no business, and its only assets consist of bonds of the Angebilt Hotel Holding Company. At all times material here, the capital stock of Ellen has been owned by Orient, and its stock in turn has all been owned by I. N. Burman, his wife and daughter. Burman has served as president of both corporations during their entire existence. The books and accounts of both have always been kept by licensed public accountants, two of whom, J. B. Asher and Myer Sigal, were certified public accountants. D. A. Garrett succeeded Asher, and in turn was succeeded by Myer Sigal. Garrett and Asher are both deceased.
The Tax Court found that the accountants made all the entries in petitioners’ books and prepared their income tax returns. In making them out they answered “No” to the question — “Is the corporation a personal holding company * * * ?” And accordingly did not prepare and file a personal holding company surtax return for either of petitioners for any of the years involved. So far as the evidence shows, they did not consider or discuss the matter of filing such returns. They never brought the matter to the attention of Burman, who had no knowledge of that requirement nor, in fact, of any of the other requirements of the tax laws. The Tax Court found that Burman is a man of little education, who would not understand the requirements of the tax statutes, and who therefore left those matters entirely in the hands of the experts whom he employed for that purpose. These accountants were reputable, licensed accountants, and Burman had complete confidence in them. He believed that they had filed all of the returns and had done all of the things required under the law. The accountants had before them at all times all of the records of both companies as to stock ownership, as well as the sources of income. No information concerning any of those matters was ever withheld from them by Burman, or any other officer or stockholder. The first time that
Burman had notice of the requirement for personal holding company returns was in 1945, when a revenue agent brought the matter to his attention. Another revenue agent, who had previously (1941) made an official examination of petitioners’ books, had failed to make any mention of personal holding company returns, and obviously thought petitioners were not within that provision of the law.
Petitioners paid the additional tax and interest, as we have said, but refused to pay the penalty.
In this state of the record the Tax Court —one judge sitting- — held, as appears to us, that because of the accountants’ dereliction petitioners were liable for the penalty. Section 291 (a) of the Internal Revenue Code, as amended, 26 U.S.C.A. Int.Rev. Code, § 291(a), provides — “In case of any failure to make and file return required by this chapter, within the time prescribed by law or prescribed by the Commissioner in pursuance of law, unless it is shown that such failure is due to reasonable cause and not due to willful neglect * * the penalty shall be exacted. And the Commissioner’s general interpretation of the exception in the statute is that if the delinquency occurs notwithstanding the exercise of ordinary care and caution, the penalty will not be charged. That is this case.
In applying the statute and the regulation it is well to bear in mind that the Tax Court definitely found that in the instances we are concerned with there was no willful neglect on the part of the petitioners or their officers. The Court was at pains to say:
“There is no cause whatever to question the good faith of this witness, nor, in view of his limited education, can we question his professed inability to understand the income tax laws. * *, * We are convinced that there was no willful neglect here in the sense of ‘an intentional or designed’ failure to file on the part of petitioners or their officers.”
In the light of this finding, obviously, the only question left is — whether the failure in the years in question was “due to reasonable cause.” The Judge of the Tax Court who heard the case was apparently of the opinion that because of the ownership of the stock of both petitioners by Burman and his wife and daughter, it was clear that both petitioners were “holding companies,” and that since there was no explanation of the omission on the part of the public accountants (both of whom were then dead), the holding of “reasonable cause” could not be made. But we think, for many reasons, that goes too far, for stock ownership is not the only test of a personal holding company. There are other equally vital considerations, and that this is true is persuasively shown by the fact, to which we have already adverted, that Commissioner’s own agent, on examining the books, accounts and records of petitioners in 1941, and in making his report, not only found no reason for personal holding company returns, but did find an overpayment of taxes, on the theory that petitioners were chargeable only on the ordinary income tax return by corporations. Certainly, there was nothing in this to put petitioners or petitioners’ accountants on notice that a personal holding company return was required, but, on the contrary, they were lulled into believing that everything was in order. Accordingly, we have here a case in which neither the president of the two corporations nor his wife and daughter, who were the only other stockholders, had any knowledge or were capable of receiving any knowledge on the subject of the form of income tax returns to be filed, and consequently a case in which petitioners placed those matters in the hands of certified accountants whose expert knowledge was universally considered sufficient to fit them to do all that petitioners were required to do to comply with the tax laws. Clearly, there is nothing in this that should ■condemn petitioners. On the contrary, it was all they could do. They, as the Tax Court found, had turned over to the accountants all the records of the companies, both as to stock ownership and as to sources of income. Nothing was withheld. The accountants physically had the books and saw the entries, and petitioners relied in good faith on their action in preparing the returns correctly. Nevertheless, these un-contradicted facts are held not to constitute reasonable cause for not filing the proper returns. In short, that in a case like this, where the president and other officers and stockholders of the corporation are admittedly incompetent to understand, much less to prepare, proper returns, and the corporation selects as its agent a licensed, certified public accountant to do the job, the corporation’s act in this respect does not measure up to the exercise of ordinary business care and prudence and the taxpayer becomes liable for penalties for its agent’s omissions. But such a view of the language of the statute not only is contrary to natural justice, but also to many previous decisions of the Tax Court, and is in the very teeth of the language of the Supreme Court in the Spies case, a criminal case, where, in construing among others this particular statute, the Court said 317 U.S. at page 496, 63 S.Ct. at page 367, 87 L.Ed. 418: “It is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care. Such errors are corrected by the assessment of the deficiency of tax and its collection with interest for the delay.” And this is as it should be.
The question we have been discussing is not new, either in the Tax Court or in the appellate courts, and is elaborately dealt with in Hatfried, Inc., v. Commissioner, 3 Cir., 162 F.2d 628, 635, decided just six months ago. The latter case involves precisely the point involved in the present case in the respect in which we are concerned, on substantially the same factual basis. Judge Kalodner, in the Hatfried case, traces and analyzes the cases decided by the Tax Court pro and con, as well as some two or three cases decided in the Circuit Courts of Appeals. To repeat here this elaborate opinion and analysis would, we think, unduly prolong this opinion. Accordingly, we refer to the Hatfried case and the cases there examined as fully and amply supporting the conclusion we reach, —namely, that “The irrefragable conclusion from the record is that the taxpayer here, in fact and in law, exercised such ordinary business care and prudence as to bring him within the rule that ‘reasonable cause means nothing more than the exercise of ordinary business care and prudence.'" Southeastern- Finance Co. v. Commissioner, 5 Cir., 153 F.2d 205; Girard Inv. Co. v. Commissioner, 3 Cir., 122 F.2d 843. Here we are* of opinion that the words “reasonable cause” were written by Congress into the statute by -the amendment of 1936 to prevent and avoid just such hardships as are involved in this case. Prior to the amendment, the result here as determined by the Tax Court was inevitable, and the hardships thus resulting impelled Congress in right and fairness to provide by amendment for their discontinuance by excluding the penalty wherever reasonable cause for the omission to file is shown.
In the argument in this case there was a mild suggestion that whether the Tax Court’s decision was right or wrong is not conclusive, for the reason that under the doctrine of the Dobson case, the decisive point here involved a finding of fact as to which we are impotent to give relief. But this very clearly is not correct. Here, as-we have seen, the facts are all admitted. But the decision turns not upon the facts, but upon the proper conclusion to be reached from the facts in the light of the law.
As the Third Circuit said in the Hatfried case, whether the elements which constitute reasonable cause are present is a question of fact, and as to that quéstion of fact the-Board found in favor of the taxpayer. But the real question is what elements must be present to constitute reasonable cause, and that is a question of law. “For example: whether the elements which constitute ‘murder in the first degree’ are present is-a question of fact; what elements must be present to constitute ‘murder in the first degree’ is a question of law.”
As we have indicated, we are of opinion that the decisions of the Tax Court were without substantial basis and must be reversed and the cases remanded for proceedings in accordance with this opinion.
Reversed and remanded.
Spies v. United States, 317 U.S. 492, 63 S.Ct 364, 87 L.Ed. 418.
Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248.
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:
|
sc_petitioner
|
019
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
BEHRENS v. PELLETIER
No. 94-1244.
Argued November 7,1995
Decided February 21, 1996
& ALIA, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 314.
Leñará G. Weiss argued the cause for petitioner. With him on the briefs was Christine A. Murphy.
Cornelia T. L. Pillará argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Barbara L. Herwig, and Richard A. Olderman.
Samuel T. Rees, by appointment of the Court, 515 U. S. 1101, argued the cause for respondent. With him on the brief was Michael J. White.
Louise H. Renne, Dennis Aftergut, G. Scott Emblidge, Ronald R. Ball, David J. Erwin, J. Kenneth Brown, Norman Herring, Edward J. Foley, Charles J. Williams, James K. Hahn, Katherine J. Hamilton, Gregory P. Friamos, Edward J. Cooper, Rene Auguste Chouteau, Mark G. Sellers, David B. Brearley, and Robert E. Murphy filed a brief for the City and County of San Francisco as amicus curiae urging reversal.
Justice Scalia
delivered the opinion of the Court.
In Mitchell v. Forsyth, 472 U. S. 511 (1985), we held that a district court’s rejection of a defendant’s qualified-immunity defense is a “final decision” subject to immediate appeal under the general appellate jurisdiction statute, 28 U. S. C. §1291. The question presented in this case is whether a defendant’s immediate appeal of an unfavorable qualified-immunity ruling on his motion to dismiss deprives the court of appeals of jurisdiction over a second appeal, also based on qualified immunity, immediately following denial of summary judgment.
I
In 1983, South Coast Savings and Loan Association, a new institution, applied to the Federal Home .Loan Bank Board (FHLBB or Board) for the approval necessary to obtain account insurance from the Federal Savings and Loan Insurance Corporation (FSLIC).- Under FHLBB regulations, approval of new institutions was to be withheld if their “financial policies or management” were found to be “unsafe” for any of various reasons, including “character of the management.” 12 CFR § 571.6(b) (1986). Accordingly, when FHLBB approved South Coast for FSLIC insurance in March 1984, it imposed a number of requirements, including the condition that South Coast “provide for employment of a qualified full-time executive managing officer, subject to approval by the Principal Supervisory Agent” — FHLBB’s term for the president of the regional Home Loan Bank when operating in his oversight capacity on behalf of FHLBB. Record, Exh. B, Resolution No. 84-164, ¶ 10(p) (Mar. 29, 1984). The Board’s resolution also required that, for a period of three years, any change in South Coast’s chief management position be approved by FHLBB. Ibid.
Shortly after obtaining FHLBB’s conditional approval, South Coast was succeeded in interest by Pioneer Savings and Loan Association, another new institution. Pioneer named respondent Pelletier as its managing officer, subject to FHLBB consent, which Pioneer sought in mid-May 1985. Only a few weeks earlier, however, on April 23, 1985, FHLBB had declared insolvent Beverly Hills Savings and Loan Association, where respondent had at one time held a senior executive position. An inquiry by FSLIC pointed to potential misconduct by high-level management of the failed institution, which ultimately became the subject of an FSLIC lawsuit against several Beverly Hills officers, including respondent.
The FSLIC suit had not yet been filed at the time Pioneer sought the Board’s consent to hire respondent; but FSLIC’s pending investigation into Beverly Hills’ collapse caused petitioner Behrens, the FHLBB “Supervisory Agent” then responsible for monitoring Pioneer’s operations, to write Pioneer on May 8,1986, withholding approval and advising that respondent be replaced. On receipt of the letter Pioneer asked respondent to resign and, when he refused, fired him.
Three years later, in 1989, respondent brought suit in federal court, naming petitioner as defendant in a complaint that included Bivens damages claims for two alleged constitutional wrongs. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Respondent charged, first, that petitioner’s action in writing a letter that had effectively discharged him from his post at Pioneer, in summary fashion and without notice or opportunity to be heard, violated his right to procedural due process. Second, he claimed that he had been deprived of substantive due process by petitioner’s alleged interference with his “clearly established and Constitutionally protected property and liberty rights ... to specific employment and to pursue his profession free from undue governmental interference.” First Amended Complaint ¶ 38, reprinted in App. 7, 16. The complaint alleged that petitioner’s letter, along with other, continuing efforts to harm respondent’s reputation, had cost respondent not only his position at Pioneer, but also his livelihood within the savings and loan industry. The complaint also contained other claims — against petitioner and against the Federal Home Loan Bank of San Francisco (petitioner’s immediate employer), FHLBB, and the United States; none of these is relevant to the present appeal.
Petitioner filed a motion to dismiss or, in the alternative, for summary judgment. With regard to the Bivens claims, he asserted a statute-of-limitations defense and claimed qualified immunity from suit on the ground that his actions, taken in a governmental capacity, “d[id] not violate clearly established statutory or constitutional rights.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). The District Court ruled in favor of petitioner on the statute-of-limitations ground and therefore dismissed the procedural due process Bivens claim, and the substantive due process Bivens claim to the extent it related to petitioner’s letter and respondent’s loss of employment at Pioneer. It refused, however, to dismiss respondent’s suit “to the extent [it was] based on other alleged subsequent acts of defendant] preventing and continuing to prevent [respondent] from securing employment.” Pelletier v. Federal Home Loan Bank of San Francisco, No. CV 89-969 (CD Cal., Oct. 5, 1989), reprinted in App. 27-28. The court also denied petitioner’s summary judgment motion, without prejudice, on the ground that it was premature given the lack of discovery.
Petitioner immediately appealed the District Court’s implicit denial of his qualified-immunity defense regarding the remaining Bivens claim. The Court of Appeals entertained the appeal, notwithstanding its interlocutory nature, holding that “a denial of qualified immunity is an appealable ‘final’ order under the test set forth in Cohen v. Beneficial Indust. Loan Corp., 337 U. S. 541 (1949) . . . , regardless of whether that denial takes the form of a refusal to grant a defendant’s motion to dismiss or a denial of summary judgment.” Pelle-tier v. Federal Home Loan Bank of San Francisco, 968 F. 2d 865, 870 (CA9 1992). It said in dictum, however, that a defendant claiming qualified immunity could not “take advantage of the several opportunities for immediate appeal afforded him by bringing repeated pretrial appeals,” and that “[o]ne such interlocutory appeal is all that a government official is entitled to and all that we will entertain.” Id., at 870-871. On the merits of the appeal, the court rejected the argument that petitioner enjoyed qualified immunity because he had not violated any “clearly established right.” It said that the question whether respondent had a constitutionally protected property interest in his Pioneer employment (subject, as it was, to regulatory approval) was not properly before the court, since the claims relating specifically to his discharge had been dismissed as time barred. Id., at 871-872. (The Court of Appeals noted in dictum, however, id., at 869, n. 6, that the District Court had applied an unduly short limitations period.) With respect to the claimed deprivation of post-Pioneer employment, the court held that the “nebulous theories of conspiracy” set out in respondent’s complaint — although “insufficient to survive a motion for summary judgment” — made out a proper Bivens claim. 968 F. 2d, at 872-873.
Upon remand, the District Court reversed its earlier statute-of-limitations ruling in light of the Court of Appeals’ dictum, and reinstated the claims relating to employment at Pioneer. After discovery, petitioner moved for .summary judgment on qualified-immunity grounds, contending that his actions had not violated any “clearly established” right of respondent regarding his employment at Pioneer or elsewhere. The District Court denied the motion with the unadorned statement that “[m]aterial issues of fact remain as to defendant Behrens on the Bivens claim.” Pelletier v. Federal Home Loan Bank of San Francisco, No. CV 89-0969 (CD Cal., Sept. 6, 1994), reprinted in App. to Pet. for Cert. 5a. Petitioner filed a notice of appeal, which, on respondent’s motion, the District Court certified as frivolous. In an unpublished order, the Ninth Circuit dismissed the appeal “for lack of jurisdiction.” Pelletier v. Federal Home Loan Bank of San Francisco, No. 94-56507 (CA9, Nov. 17, 1994), reprinted in App. to Pet. for Cert. la. We granted certio-rari, 514 U. S. 1035 (1995).
II
Section 1291 of Title 28, U. S. C., gives courts of appeals jurisdiction over “all final decisions” of district courts, except those for which appeal is to be had to this Court. The requirement of finality precludes consideration of decisions that are subject to revision, and even of “fully consummated decisions [that] are but steps towards final judgment in which they will merge.” Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949). It does not, however, bar review of all prejudgment orders. In Cohen, we described a “small class” of district court decisions that, though short of final judgment, are immediately appealable because they “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Ibid. See also Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 142-145 (1993) (citing Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978)). The issue in the present case is the extent to which orders denying governmental officers’ assertions of qualified immunity come within the Cohen category of appealable decisions.
As set forth in Harlow v. Fitzgerald, 457 U. S. 800 (1982), the qualified-immunity defense “shield[s] [government agents] 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,” id., at 818 (citing Procunier v. Navarette, 434 U. S. 555, 565 (1978)). Harlow adopted this criterion of “objective legal reasonableness,” rather than good faith, precisely in order to “permit the defeat of insubstantial claims without resort to trial.” 457 U. S., at 819, 813. Unsurprisingly, then, we later found the immunity to be “an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal [immunity] question.” Mitchell v. Forsyth, 472 U. S., at 526. And, as with district-court rejection of claims to other such entitlements distinct from the merits, see, e. g., Puerto Rico Aqueduct, supra, at 145-146 (Eleventh Amendment immunity); Abney v. United States, 431 U. S. 651, 662 (1977) (right not to be subjected to double jeopardy), we held that “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U. S. C. § 1291 notwithstanding the absence of a final judgment.” Mitchell, supra, at 530. See also Johnson v. Jones, 515 U. S. 304, 311-312 (1995).
While Mitchell did not say that a defendant could appeal from denial of a qualified-immunity defense more than once, it clearly contemplated that he could raise the defense at successive stages:
“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiff’s complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.” 472 U. S., at 526 (citation omitted).
Thus, Mitchell clearly establishes that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a “final” judgment subject to immediate appeal. Since an unsuccessful appeal from a denial of dismissal cannot possibly render the later denial of a motion for summary judgment any less “final,” it follows that petitioner’s appeal falls within §1291 and dismissal was improper.
Indeed, it is easier to argue that the denial of summary judgment — the order sought to be appealed here — is the more “final” of the two orders. That is the reasoning the First Circuit adopted in holding that denial of a motion to dismiss on absolute-immunity grounds was not “final” where the defendant had stated that, if unsuccessful, he would later seek summary judgment on qualified-immunity grounds: “Since the district court has not yet determined whether [the defendant] has qualified immunity, and that he will have to stand trial, its decision is not an appealable collateral order.” Kaiter v. Boxford, 836 F. 2d 704, 707 (1988). The problem with this approach, however, is that it would logically bar any appeal at the motion-to-dismiss stage where there is a possibility of presenting an immunity defense on summary judgment; that possibility would cause the motion-to-dismiss decision to be not “final” as to the defendant’s right not to stand trial. The First Circuit sought to avoid this difficulty by saying that the defendant could render the motion-to-dismiss denial final by waiving his right to appeal the summary judgment denial. See id., at 708. But quite obviously, eliminating the ability to appeal the second order does not eliminate the possibility that the second order will vindicate the defendant’s right not to stand trial, and therefore does not eliminate the supposed reason for declaring the first order nonfinal.
The source of the First Circuit’s confusion was its mistaken conception of the scope of protection afforded by qualified immunity. Harlow and Mitchell make clear that the defense is meant to give government officials a right, not merely to avoid “standing trial,” but also to avoid the burdens of “such pretrial matters as discovery ..., as ‘[inquiries of this kind can be peculiarly disruptive of effective government.’” Mitchell, supra, at 526 (emphasis added) (quoting from Harlow, supra, at 817). Whether or not a later summary judgment motion is granted, denial of a motion to dismiss is conclusive as to this right. We would have thought that these and other statements from Mitchell and Harlow had settled the point, questioned by Justice Breyer, see post, at 317, that this right is important enough to support an immediate appeal. If it were not, however, the consequence would be, not that only one pretrial appeal could be had in a given case, as Justice Breyer proposes, but rather, that there could be no immediate appeal from denial of a motion to dismiss but only from denial of summary judgment. That conclusion is foreclosed by Mitchell, which unmistakably envisioned immediate appeal of “[t]he denial of a defendant’s motion for dismissal or summary judgment on the ground of qualified immunity.” 472 U. S., at 527.
The Court of Appeals in the present case, in the first of its two decisions, rested its “one-appeal” pronouncement upon the proposition that resolving the question of entitlement to qualified immunity “should not require more than one judiciously timed appeal.” Pelletier, 968 F. 2d, at 871. It did not explain how this proposition pertains to the question of finality, but we suppose it could be argued that a category of appeals thought to be needless or superfluous does not raise a claim of right “too important to be denied review,” as our Cohen finality jurisprudence requires, see 337 U. S., at 546. In any event, the proposition is not sound. That one appeal on the immunity issue may not be enough is illustrated by the history of respondent’s claims for loss of employment at Pioneer in the present ease. Because these claims had initially been dismissed as time barred, the Court of Appeals refused to decide (and thus evidently regarded as an open question) whether one who holds his job subject to regulatory approval can assert a constitutionally cognizable expectation of continued employment. See Pelletier, supra, at 871-872. Thus, the question whether petitioner was entitled to immunity on these claims was not presented to any court until petitioner’s summary judgment motion — and, by operation of the Ninth Circuit’s one-appeal rule, has never been addressed by an appellate court.
That is assuredly an unusual set of circumstances, but even in a case proceeding in a more normal fashion resolution of the immunity question may “require more than one judiciously timed appeal,” because the legally relevant factors bearing upon the Harlow question will be different on summary judgment than on an earlier motion to dismiss. At that earlier stage, it is the defendant’s conduct as alleged in the complaint that is scrutinized for “objective legal reasonableness.” On summary judgment, however, the plaintiff can no longer rest on the pleadings, see Fed. Rule Civ. Proc. 56, and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry. It is no more true that the defendant who has unsuccessfully appealed denial of a motion to dismiss has no need to appeal denial of a motion for summary judgment, than it is that the defendant who has unsuccessfully made a motion to dismiss has no need to make a motion for summary judgment.
The Court of Appeals expressed concern that a second appeal would tend to have the illegitimate purpose of delaying the proceedings. See 968 F. 2d, at 870-871. Undeniably, the availability of a second appeal affords an opportunity for abuse, but we have no reason to believe that abuse has often occurred.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
sc_respondent
|
124
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
KAISER STEEL CORP. v. W. S. RANCH CO.
No. 1328.
Decided June 3, 1968.
/. R. Modrall for petitioner.
William R. Federici for respondent.
Boston E. Witt, Attorney General, and F. Harlan Flint, Special Assistant Attorney General, filed a brief for the State of New Mexico on the relation of the New Mexico State Engineer, as amicus curiae, in support of the petition.
Per Curiam.
Respondent brought this diversity suit in the United States District Court for the District of New Mexico, claiming an illegal trespass by petitioner and seeking damages and an injunction. Petitioner admitted the alleged trespass but claimed it was authorized to do this by N. M. Stat. Ann. § 75-1-3 (1953), in order to use water rights it had been granted by the State. Respondent contended that if § 75-1-3 were construed to authorize condemnation of private land to secure water for a private business, the law would violate the New Mexico Constitution, which permits the taking of private property only for “public use.” N. M. Const., Art. II, § 20. The crucial issue thus became the interpretation of the term “public use” in the State Constitution. The District Court held that the property had been taken for a public use, rejecting the suggestion in petitioner’s brief that the action be stayed pending decision of the crucial question by the state courts. The Court of Appeals reversed on the merits, 388 F. 2d 257 (1967), and rejected petitioner’s motion to stay the federal court’s action until the state law issues could be settled in a declaratory judgment suit then pending in the state courts, 388 F. 2d, at 262 (1968) (on petition for rehearing).
The Court of Appeals erred in refusing to stay its hand. The state law issue which is crucial in this case is one of vital concern in the arid State of New Mexico, where water is one of the most valuable natural resources. The issue, moreover, is a truly novel one. The question will eventually have to be resolved by the New Mexico courts, and since a declaratory judgment action is actually pending there, in all likelihood that resolution will be forthcoming soon. Sound judicial administration requires that the parties in this case be given the benefit of the same rule of law which will apply to all other businesses and landowners concerned with the use of this vital state resource.
The writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded with directions that the action be stayed in accordance with the prayer of petitioner. Federal jurisdiction will be retained in the District Court in order to insure a just disposition of this litigation should anything prevent a prompt state court determination.
It is so ordered.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
sc_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
ROBERTSON v. UNITED STATES.
No. 388.
Argued March 31, 1952.
Decided June 2, 1952.
Samuel E. Blackham argued the cause for petitioner. With him on the brief was Clyde D. Sandgren.
Marvin E. Frankel argued the cause for the United States. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Slack and Harry Baum.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioner is a musician and composer who between the years 1936 and 1939 composed a symphony. In 1945 Henry H. Reichhold, a philanthropist, established a music award offering $25,000, $5,000, and $2,500 for the three best symphonic works written by native-born composers of this hemisphere. The terms of the offer provided that none of the compositions could be published or publicly performed prior to entry in the contest and that each composition receiving an award would remain the property of the composer except that he would grant the Detroit Orchestra, Inc., (1) all synchronization rights as applied to motion pictures, (2) all mechanical rights as applied to phonograph recordings, electrical transcriptions and music rolls, and (3) the exclusive right to authorize the first performance of the composition in each of the countries whose citizens were eligible to enter the contest and to designate the publisher of the composition.
Petitioner submitted his symphony and on December 14, 1947, won the $25,000 award. He included that amount in his 1947 income tax return as gross income, claimed the benefits of § 107 (b) of the Internal Revenue Code (26 U. S. C. (1946 ed.) § 107 (b), 53 Stat. 878, as amended), and computed the tax as though the $25,000 had been received ratably during the years 1937, 1938, and 1939. Thereafter he filed a claim for refund on the ground that the award constituted a nontaxable gift. The Commissioner did not allow the claim but determined a deficiency on the ground that the tax should have been computed under § 107 (b) as though the award had been ratably received over the three-year period ending with 1947. Petitioner paid the deficiency, filed a supplemental claim for refund, and brought this suit to obtain it. The District Court held that the award was a gift and not taxable by reason of § 22 (b) (3) of the Internal Revenue Code. The Court of Appeals reversed. 190 F. 2d 680. The case is here on certiorari, 342 U. S. 896, because of the conflict between that decision and McDermott v. Commissioner, 80 U. S. App. D. C. 176, 150 F. 2d 585, decided by the Court of Appeals for the District of Columbia. And see Williams v. United States, 114 Ct. Cl. 1, 84 F. Supp. 362.
I.
In the legal sense payment of a prize to a winner of a contest is the discharge of a contractual obligation. The acceptance by the contestants of the offer tendered by the sponsor of the contest creates an enforceable contract. See 6 Corbin on Contracts, § 1489; Restatement, Contracts, § 521. The discharge of legal obligations — the payment for services rendered or consideration paid pursuant to a contract — is in no sense a gift. The case would be different if an award were made in recognition of past achievements or present abilities, or if payment were given not for services (see Old Colony Trust Co. v. Com missioner, 279 U. S. 716, 730), but out of affection, respect, admiration, charity or like impulses. Where the payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.
II.
Section 107 (b) defines “artistic work” as the “musical” or “artistic composition” of an individual, “the work on which . . . covered a period of thirty-six calendar months or more from the beginning to the completion” of the composition. In case the gross income from a particular artistic work in the taxable year is not less than a particular percentage (not material here), the tax attributable to the income of the taxable year may be computed as though it had “been received ratably over that part of the period preceding the close of the taxable year but not more than thirty-six calendar months.” The question is whether the amount of the prize should be taxed ratably over the 36 months ending with the close of 1947 (the taxable year in which it was received) or over the last 36 months of the period (1937 to 1939) when petitioner wrote the symphony.
The phrase in question, as it originated (H. R. 7378, 77th Cong., 2d Sess., § 128), read “ratably over the period of thirty-six calendar months ending with the close of the taxable year.” In that form the present tax would have been computed as the Commissioner contended, viz. the tax would be laid over a period of 36 months extending back from the close of the taxable year. The change in wording does not seem to us to have made a change in meaning. The present words “ratably over that part of the period preceding the close of the taxable year but not more than thirty-six calendar months” would on their face seem to refer to a period ending with the close of the taxable year and extending back a maximum of 36 months. That wording was adopted in order to treat the income as though it had “been received ratably over (1) the part of the period of the work which preceded the close of the taxable year, or (2) a period of 36 calendar months, whichever of such periods is the shorter.” See S. Rep. No. 1631, 77th Cong., 2d Sess., p. 109. The House Conferees, in agreeing to the change, stated that it “clarifies the language of the House bill.” H. R. Conf. Rep. No. 2586, 77th Cong., 2d Sess., p. 43. That history strongly suggests that the purpose was not to change the allowable period of allocation from one ending with the close of the taxable year to one covering any 36 months in the past when the work was done, but to prevent tax reduction by proration of income over a period of work greater than the duration of the work preceding the close of the taxable year. That is the construction given by Treasury Regulations 111, § 29.107-2; and while much more could be said, it seems to us that that construction fits the statutory scheme.
Affirmed.
Me. Justice Frankfurter, not having heard the argument owing to illness, took no part in the disposition of this case.
Mr. Justice Jackson dissents.
Section 107 (b) provides: “For the purposes of this subsection, the term ‘artistic work or invention’, in the case of an individual, means a literary, musical, or artistic composition of such individual or a patent or copyright covering an invention of or a literary, musical, or artistic composition of such individual, the work on which by such individual covered a period of thirty-six calendar months or more from the beginning to the completion of such composition or invention. If, in the taxable year, the gross income of any individual from a particular artistic work or invention by him is not less than 80 per centum of the gross income in respect of such artistic work or invention in the taxable year plus the gross income therefrom in previous taxable years and the twelve months immediately succeeding the close of the taxable year, the tax attributable to the part of such gross income of the taxable year which is not taxable as a gain from the sale or exchange of a capital asset held for more than 6 months shall not be greater than the aggregate of the taxes attributable to such part had it been received ratably over that part of the period preceding the close of the taxable year but not more than thirty-six calendar months.”
Section 22 (b) (3) of the Internal Revenue Code provides:
“The following items shall not be included in gross income and shall be exempt from taxation under this chapter: . . .
“The value of property acquired by gift, bequest, devise, or inheritance . . . .”
See note 1, supra.
Section 29.107-2 provides in part:
“The method of allocating the gross income from the artistic work or invention to the taxable years in which falls any of the calendar months (not exceeding 36 calendar months) included within the part of the period of work which precedes the close of the current taxable year may be illustrated by the following examples:
“Example (1). On October 1, 1942, A, an individual, who makes his returns on a calendar year basis and on the basis of cash receipts and disbursements, receives $36,000 in full payment for a musical composition, the work on which was commenced by A on July 10, 1938, and completed on January 29, 1943. Although the period of work covers 55 calendar months, allocations may be made to only the last 36 calendar months included within the part of the period of work which precedes the close of 1942 (the current taxable year). Therefore, $1,000 ($36,000 divided by 36) must be allocated to each of the 36 calendar months preceding January 1, 1943. Accordingly, $12,000 is allocated to 1940, $12,000 to 1941, and $12,000 to 1942 (the current taxable year).
“Example (%). Assume the same facts as in example (1) except that the period of work was commenced by A on July 1, 1941, and completed on September 1, 1944. Although the period of work covers 38 calendar months, allocations may be made to only the 18 calendar months which are included within the part of the period of work which precedes the close of 1942 (the current taxable year). Therefore, $2,000 ($36,000 divided by 18) must be allocated to each of 18 calendar months preceding January 1, 1943. Accordingly, $12,000 is allocated to 1941, and $24,000 to 1942 (the current taxable year).”
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_post_trl
|
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 some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. 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".
RELIABLE COAL CORPORATION, Petitioner, v. Rogers C. B. MORTON, Secretary of the Interior and his delegate, and the Board of Mine Operations Appeals of the Department of the Interior, Respondents.
No. 72-1477.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 8, 1972.
Decided May 3, 1973.
Brooks E. Smith, Kingwood, W. Va. (Dailey & Smith, Kingwood, W. Va., on brief), for petitioner.
Michael Kimmel, Atty., U. S. Dept, of Justice, Civil Div. (Harlington Wood, Jr., Asst. Atty. Gen., Alan S. Rosenthal, Atty., U. S. Dept, of Justice, Civil Div., J. Philip Smith, Asst. Sol., U. S. Dept, of Interior, on brief), for respondents.
Charles L. Widman, Atty., International Union, United Mine Workers of America (Edward L. Carey, and Willard P. Owens, Washington, D. C., on brief), for respondent, International Union, United Mine Workers of America.
Before BUTZNER, FIELD and WIDENER, Circuit Judges.
FIELD, Circuit Judge:
Reliable Coal Corporation seeks review of a decision of the Board of Mine Operations Appeals which affirmed the Hearing Examiner in denying Reliable’s petitions to modify certain mandatory safety standards contained in Sections 303(d)(1) and 303(Z) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 863(d)(1) and 863(Z). Additionally, petitioner complains of the Board’s determination that review of the reasonableness of time for abating a violation of Section 303(d)(1) was rendered moot upon Reliable’s compliance with the standard. 2Jurisdiction for this review is based upon Section 106, 30 U.S.C. § 816.
Under Section 301(e) of the Act, 30 U.S.C. § 861(e), the Secretary may, upon petition by an operator or the representative of miners, modify the application of any mandatory safety standard to a mine if he determines that “an alternative method of achieving the result of such standard exists which will at all times guarantee no less than' the same measure of protection afforded * * * by such standard” or that “the application of such standard to such mine will result in a diminution of safety to the miners.”
Asserting that its Kanes Creek Mine was entitled to modification of the mandatory standards of Section 303(Z) under both criteria of Section 301(c), Reliable filed its initial petition for modification on January 5, 1971. On January 7, 1971, a preshift inspection resulted in the issuance of an abatement order for violating Section 303(d)(1) of the Act to take effect January 22, 1971 Subsequent to this order Reliable filed separate petitions challenging the reasonableness of time of the order as well as the application of Section 303(d)(1) on the basis that it was in compliance with the standard by an alternative method that attains the same result and assures no less than the same measure of protection to the miners. These petitions were consolidated for hearing by the Examiner.
In both instances, the modifications sought by Reliable pertain to testing devices used to detect methane in a mine. Section 303(d)(1) requires the use of a methane detector to check for accumulations of methane within three hours immediately preceding the beginning of the shift. In lieu of the detector, Reliable would test with a permissible flame safety lamp, a device commonly used for this purpose prior to the 1969 Act. Section 303(i) requires as an additional methane detecting device that a methane monitor be installed on any electric face cutting equipment, continuous miner, longwall face equipment, and loading machine, except that no monitor is required to be installed on the equipment prior to the date such equipment is required to be permissible under Section 305(a), 30 U.S.C. § 865(a). Reliable seeks to avoid the mandate of this provision of the Act by making what it terms “continuous routine periodic checks” with a methane detector or permissible flame safety lamp. The Examiner, whose decision was affirmed by the Board, concluded that neither of the modifications proposed by Reliable would meet the requirements of Section 301(c) that they guarantee the same measure of protection to the miners as the mandatory standards. In reaching this conclusion, the Examiner rejected Reliable’s argument that he should determine whether the Kanes Creek Mine is not gassy or potentially gassy. While permitting evidence on this question at the hearing, he concluded that the Act abolished the gassy/nongassy distinction and therefore it was unnecessary for him to make a factual finding relative to the potential for methane accumulations in Reliable’s Kanes Creek Mine.
Reliable’s position on this review rests on the premise that Sections 301(c) and 305(a) of the 1969 Act, when read together, indicate that it retained the distinction of the 1952 Federal Coal Mine Safety Act between gassy and nongassy mines. Under the prior Act, a nongassy mine, a classification based on the amount of methane detected in a mine, was subject to less stringent safety standards than those imposed on a gassy mine. See, e. g., Sections 209(d) (5), (6), (7), (9), (10), and (11) of the 1952 Act, 66 Stat. 703. Reliable concedes that all mines are initially regulated by the same standards under the 1969 Act, but argues that the debate in Congress on the question of retaining the distinction resulted in a compromise provision, namely Section 301(c), which they feel permits an operator to obtain a modification upon a factual showing that there is no potential for gas accumulation in the operator’s mine. Reliable reasons that once this is established, the mine satisfies the criteria for modification as enunciated in Section 301(c). They contend that Section 301(c) does not require a finding that the alternative method of measuring methane proposed by the operator must have the same degree of refined measurement as the statutory standard, but only that it achieve the same result. From this premise Reliable argues that since no methane exists in the Kanes Creek Mine, the alternative method will guarantee no less than the same protection since the result of using either device will be the same —a zero reading of methane. Reliable also refers to Section 305(a)(2) as an indication of Congressional intent to retain the gassy/nongassy distinction since this section extends to mines not previously classified as gassy and located above the watertable substantial grace periods within which to convert their present equipment to permissible status. Under the 1952 Act, it was primarily in regard to the requirement pertaining to the use of permissible electrical equipment that the distinction between gassy and nongassy mines was significant. In sum, based on a showing that the Kanes Creek Mine is not gassy or potentially gassy, Reliable asserts that Section 301(c) should countenance the use of a permissible flame safety lamp in lieu of a methane detector; and either of these devices in lieu of the methane monitor.
The argument is flawed in every aspect, the most conspicuous being the contention that the 1969 Act retained the distinction between gassy and non-gassy mines. A review of the legislative history of the Act as contained in House Comm, on Ed. and Labor, Legislative History Federal Coal Mine Health and Safety Act, Comm.Print, 91st Cong., 2d Sess. (1970) [hereinafter cited as Leg. Hist.], convinces us that, aside from the extension periods provided for in the Act, Congress intended to eliminate any distinction between gassy and nongassy mines. While the debate in Congress relative to Section 305(a) focused on the requirement of maintaining permissible equipment, it clearly indicates a rejection of the classification as related to all safety standards since obviously the means prescribed to detect methane provides greater protection for the miners than the mere elimination of one source of igniting the gas once its presence is discovered in a working area.
As in the case of prior coal mine legislation, the 1969 Act was precipitated by a tragic mining incident, an explosion which entombed seventy-eight coal miners in the Farmington No. 9 mine located in West Virginia. Leg.Hist. at 558. Immediately, Senate and House Subcommittees conducted extensive hearings to propose new legislation designed to raise the health and safety standards of the coal mining industry and one of the major areas of concern and controversy involved the elimination of the gassy/nongassy distinction. Aside from the dust standard, no issue received as much time or attention before the Senate Subcommittee. Leg.Hist. at 222. Significantly, of the bills introduced in the Senate Hearings on S. 355, S. 467, S. 1094, S. 1178, S. 1300, and S. 1907 Before a Subcommittee of the Comm, on Labor and Public Welfare, 91st Cong. 1st. Sess. 7-447 (1969), only Senator Cook’s proposal retained the distinction, id. at 283. The Committee, which during the deliberations had rejected an amendment submitted by Senator Cooper which would have retained the gassy/nongassy classification, Leg.Hist. at 35, explained in their report accompanying the composite bill S. 2917, that “[they] followed the recommendation of the Department of Interior that all mines be treated alike, in providing these new and additional safeguards to control methane and prevent ignitions.” Leg.Hist. at 27.
During the Senate debate on the Committee Bill, Senator Cooper again introduced an amendment to retain the distinction. Leg.Hist. at 397. To accommodate the Senator’s views with respect to the financial imposition on the small mines, the substitute amendment was offered which provided mines previously classified as nongassy additional time within which to comply with the requirements of procuring permissible electrical equipment. Leg.Hist. at 474-77. The amendment recognized the economic impact on the small operator if required to convert to permissible equipment on the operative date of the Act, as well as the industrial reality that manufacturers were incapable of producing the requisite equipment within a relatively short period of time. It is manifestly clear that Section 305(a) was a compromise measure incident to the elimination of the prior classification, Leg.Hist. at 690, 742. During the debate Senator Cooper himself recognized that except for the extension periods the adoption of the substitute amendment would remove the gassy/nongassy classification, LegHist. at 481. The substitute amendment was passed and contained in the final Senate Bill, Leg.Hist. at 482, 530.
The House likewise rejected the proposals of the small mine operators urging the retention of the distinction. The House Committee, after extensive hearings on the issue, Hearings on H.R. 4047, H.R. 4295, and H.R. 7976 Before the Comm, on Ed. and Labor, 91st Cong., 1st Sess. (1969), submitted a bill, H.R. 13950, which contained provisions similar to the Senate Bill regarding the elimination of the distinction, but did provide an extended grace period for compliance. While the Bill was on the House floor members of the House were advised that acceptance of the proposed Bill contemplated the elimination of the gassy/nongassy classification. Leg.Hist. at 690. The statement of the Managers of the House relative to the Bill accepted in conference explained that Section 305(a) which eliminated the distinction adopted the language of the Senate Bill, but accepted the time provisions of the House Bill. Leg.Hist. at 1045. In the Senate debate on the conference Bill, Senator Williams submitted a summary of the major provisions of the Bill in which he unequivocally stated that “[305(a)] eliminates the distinction be-tweén gassy mines and the so-called non-gassy mines.” Leg.Hist. at 1130.
The history of the Act demonstrates beyond any doubt that Congress carefully evaluated the issue and determined that the gassy/nongassy distinction should be eliminated. Yet, Reliable contends that Section 301(c), which was not contained in the Senate Bill, but was placed in the House Bill and conference Bill, was a compromise provision which in effect affords the small mine operator the statutory means to perpetuate the distinction. Again the legislative history as well as the plain language of the Act refutes this contention. Under the statutory pattern the Secretary is directed to “develop, promulgate and revise, as may be appropriate, improved mandatory safety standards for the protection of life and the prevention of injuries in a coal mine * * This authority and the procedure incident thereto is delineated in Section-101 of the Act, 30 U.S.C. § 811. However, recognizing the urgent need for improved safety measures, interim mandatory safety standards applicable to all underground coal mines are prescribed by Sections 302 through 318 of Title III of the Act, 30 U.S.C. §§ 862-878. These provisions were designed to prescribe immediate mandatory standards without undergoing the ’lengthy administrative process for the promulgation of such standards by the Secretary under Section 101, Leg.Hist. at 50. The expeditious application of these standards to the entire coal mining industry necessarily presented a variety of problems, technical in nature, and it was necessary to give the Secretary a degree of flexibility to adjust the many detailed requirements of Title III to the particular problems of individual coal mines. This is the plain purpose of Section 301(c), but it was never intended by the Congress that modifications thereunder would be employed to dilute the statutory standards or resurrect the “gassy/nongassy” distinction.
The safety standards embodied in Title III of the Act represent an attempt by the Congress to maximize the protection of the miners based on the current knowledge and technology of the industry. These standards, however, are not to be static, but constantly upgraded to provide increased safety and, when necessary, to meet changes in technology and mining conditions. Leg.Hist. at 1040. The methane testing devices challenged by Reliable were designed by the Act to provide reasonable interim protection for the miners and assuredly it would frustrate the legislative purpose to construe Section 301(c) in a manner which would permit these standards to be lowered.
In St. Marys Sewer P. Co. v. Director of U. S. Bureau of Mines, 262 F.2d 378, 381 (3 Cir. 1959), which involved an interpretation of the 1952 Act, the Court stated:
“The statute we are called upon to interpret is the out-growth of a long history of major disasters in coal mines. * * * It is so obvious as to be beyond dispute that in construing safety or remedial legislation narrow or limited construction is to be eschewed. Rather, in this field liberal construction in light of the prime purpose of the legislation is to be employed.”
We find this observation equally appropriate to the case at hand and conclude that the Board’s interpretation of the Act carries out the plain intent of the Congress and should not be disturbed.
The order of the Board will be affirmed.
Affirmed.
. We agree with the Board’s ruling on this point and do not feel the question necessitates further discussion.
. As a result of petitioner’s purchase order for methane detectors the period of abatement was extended several times until .Tune 14, 1971. On that date, the Bureau of Mines issued a notice of abatement since the detectors had then been procured b.v Reliable.
. The methane detector is a small portable instrument about the size of a transistor radio which measures the concentration of methane in the sampled air.
. Section 303(d) (1) requires testing for methane “[with] means approved by the Secretary.” This provision was implemented by regulation, 30 C.F.R. 75.304r-3, which permitted the use of the flame safety lamp until December 31, 1970, on and after which date a methane detector was required; however, the flame safety lamp may still be used as a supplementary testing device. The express language of the statute rejecting the use of the flame safety lamp, coupled with protests in subcommittee hearings against the rejection of the lamp as an adequate testing device, indicates a Congressional determination that the flame safety lamp, when used exclusively, is inadequate for the purpose of testing for methane. See Hearings on H.R. 4047, H.R. 4295 and H.R. 7976, before a Subcommittee of the House Committee on Education and Labor, 91st Cong. 1st Sess. 138-39 (1969).
. The methane monitor is similar to the methane detector, except that it tests on a continuous basis rather than at periodic intervals, and is designed to be attached fo electrically powered mine machinery. Section 303(i) requires that the monitor be set to automatically give a warning when the methane concentration reaches one percent, and to automaticaly de-ener-gize the machinery when the methane concentration reaches two percent.
. As applied to electric face equipment, “permissible” means “the electric parts of which * * * are designed, constructed, and installed, in accordance with the specifications of the Secretary, to assure that such equipment will not cause a mine explosion or mine fire, and the other features of which are designed and constructed, in accordance with the specifications of the Secretary, to prevent, to the greatest extent possible, other accidents in the use of such equipment * * *.” Section 318 (i) of the Act, 30 U.S.C. § 878 (i).
. Section 305(a) which will be discussed in detail infra, authorizes grace periods for certain mines to comply with the mandatory standards as related to permissible equipment. With respect to the Kanes Creek Mine, the required date for installation of the methane monitors will be March 30, 1974.
. The mine was sealed ten days after the explosion and its cause remains unknown.
. St Recognition of the interim standards as the minimal protective measures acceptable to Congress is evident in the language of Section 101(b), 30 U.S.C. § 811(b) :
“No improved mandatory health or safety standard promulgated under this sub-chapter shall reduce the protection afforded miners below that provided by any mandatory health or safety standard.”
Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_opinstat
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UNITED STATES of America, Appellee, v. Joanne Uline GIDDEN, Appellant.
No. 79-5122.
United States Court of Appeals, Fourth Circuit.
Argued April 2, 1982.
Decided May 17, 1982.
Certiorari Denied Oct. 4, 1982.
See 103 S.Ct. 167.
Joseph A. Miklasz, Glen Bumie, Md. (M. R. Rohrback, Glen Bumie, Md., on brief), for appellant.
Catherine C. Blake, Asst. U. S. Atty., Baltimore, Md. (J. Frederick Motz, U. S. Atty., Jane W. Moscowitz, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.
Before BUTZNER, RUSSELL and HALL, Circuit Judges.
PER CURIAM:
Joanne Uline Gidden was convicted under 18 U.S.C. § 81 for setting fire to her family’s living quarters at the Annapolis Naval Station. She appeals and we affirm.
One of Gidden’s arguments merits brief attention because of its novelty. She contends that the government destroyed the evidence of the fire by repairing the apartment and, as a consequence, her expert witness was unable to formulate an opinion about the source of the fire. Although the government agents took photographs of the scene and saved bags of evidence which they though would be relevant, Gidden’s expert opined that those pieces of evidence were insufficient to support any conclusions.
We simply cannot agree that the government should have left the burned apartment intact until an indictment issued and the defendant’s expert had an opportunity to see it. Health and safety considerations as well as the practical necessity of utilizing the space available for military housing required that the Giddens’ living quarters be restored to normal without undue delay. Moreover, the categorical imperative is disturbing: if every crime scene were preserved pending an indictment, a substantial part of our country would be in a state of suspended animation.
The other issues raised on appeal are patently without merit. Accordingly, the judgment of the district court is affirmed.
AFFIRMED.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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songer_geniss
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Appellee, v. Eric Marshall NAGLER, Appellant.
No. 808, Docket 73-1194.
United States Court of Appeals, Second Circuit.
Argued April 26, 1973.
Decided May 17, 1973.
Donald L. Doernberg, New York City (Jeremiah S. Gutman, Levy, Gutman, Goldberg & Kaplan, New York City, of counsel), for appellant.
Thomas R. Maher, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.D.N.Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appel-lee.
Before BREITENSTEIN, KAUFMAN and MANSFIELD, Circuit Judges.
Of the United States Court of Appeals for the Tenth Circuit, sitting by designation.
MANSFIELD, Circuit Judge:
Eric Marshall Nagler appeals from a judgment of conviction for failure to report for induction into the armed forces in violation of 50 U.S.C. App. § 462(a), entered after a trial in the Eastern District of New York before Judge Anthony J. Travia, sitting without a jury. Appellant was sentenced to three years imprisonment. and was released on bail pending this appeal. The question before us is whether the denial of appellant’s claim for classification as a conscientious objector to combatant and noncombatant training and service (1-0 status) and his consequent retention in a I-A classification resulted from a denial of due process. We conclude that the Local Board did not provide adequate reasons for its rejection of appellant’s conscientious objection claim, that appellant was thus subject to an invalid induction order, and that his conviction based on that order must therefore be reversed.
The essential facts are undisputed. Appellant duly registered with Local Board 41 in Brooklyn, New York, on June 6, 1960. He was classified I-A on October 18, 1961, but on December 11, 1963, he was reclassified II-S until June 1964 because he had enrolled as a full-time graduate student in psychology at Queens College. On December 16, 1964, he was again classified I-A. After receiving information five days later from Queens College that appellant was still pursuing a graduate degree part-time, the Local Board reviewed his classification on January 20, 1965, but concluded that the new information did “not warrant reopening.” On September 22, 1965, Nagler was continued in a I-A classification, and on November 1 he was ordered to report November 12 for an Armed Forces Physical Examination. He reported for the examination as required, though he had in the interim, by letter dated November 5, 1965, requested from his Local Board SSS Form 150, the Special Form for Conscientious Objectors.
The Local Board received appellant’s completed application for conscientious objector status on November 22, 1965, along with seven letters in support of it. The Government concedes that his application “made out a prima facie case for reclassification as a conscientious objector.” Appellant based his claim on religious beliefs, including belief in a Supreme Being, which led him to “three deeply felt guiding forces: nonviolence, respect for the individual, and responsibility to the community.” He noted his Jewish background, but stressed “freedom of religion” and recorded his membership in the National Ethical Youth Organization of the New York Ethical Culture Society and its Executive Committee when he was in high school, as well as membership in the Fellowship of Reconciliation, the Committee for a Sane Nuclear Policy, and the New York Her-petologieal Society. He also stated that he was “opposed to all war,” that his conscience would not allow him to take part in killing, and that “non-violence is always a possible alternative when nations are at odds” and should be followed if at all possible in situations of individual attack, though if there were no alternatives he allowed that he would in the final analysis fight for his life. Appellant cited his brother, also a conscientious objector, as the one person most influential in guiding him towards pacifism.
No action was taken by the Local Board on Nagler's claim until seven months later, just after he wrote to them requesting permission to leave the United States for a two-month period. On June 14, 1966, he received notification of a discretionary interview before the Local Board, to be held on the following day, June 15. Following his appearance, his claim for classification as a conscientious objector was rejected by the Local Board and his request for a permit to depart the country was denied. The Board’s minutes of his appearance and of its disposition include the following notations:
“Reg. appeared requests deferment on grounds of being a conscientious objector. ... 21 Questions and Answers read and considered by the Board. ... He stated he was an atheist because he did not believe in the Jewish God or the Christian God. Believes that killing is against civilization and that things should be handled by non-violence. . . . Board finds this registrant to be less than sincere hnd statements were found to be somewhat inconsistent i. e. re: belief in Supreme Being. Registrant does not qualify for 1-0 Classification under the existing regulations.”
Appellant asked the Board to reconsider its decision and to reopen his classification, complaining that he had not been afforded sufficient time to prepare for the interview. After a lengthy exchange of correspondence, he was granted a personal appearance on September 13, 1966, but his claim was again rejected and he was retained in a I-A classification. The Board’s summary stated the following relevant observations:
“Reg. states he is of the Jewish Religion but does not attend any synagogue or Temple. . . . about a year ago he joined the Fellowship of Reconciliation. . . . Attended a Quakers meeting once and only listened. Reg. states that he would not now call himself an atheist. He be-' lieves in a Supreme being that does not organize religions but humanists. Basis of objection to war is that it is wrong to kill. . . . The 21 questions and answers read & considered by the Board. Reg. states his answers are the same today. Minutes of meeting dtd June 15, 1966 were considered & same questions & answers received. Conscientious objector for religious reasons. . Board finds that registrant to be less than sincere [sic] and statements made now are inconsistent with statements made at prior hearing held on June 15, 1966. . . . Does not warrant reopening 4-0.”
Nagler appealed the Local Board’s determination to the Appeal Board which, pursuant to procedures then applicable, 50 U.S.C. App. § 456(j) (1948) and 32 C.F.R. § 626.25(a) (1948), sought an advisory recommendation from the Department of Justice after it had reviewed the file and “tentatively” determined that appellant was not eligible for a 1-0 classification. A Hearing Officer from the Justice Department interviewed appellant on May 31, 1967, concluded that he was sincere in his religious beliefs and conscientious objection, and recommended that his conscientious objector claim be sustained. In the formal reply to the Appeal Board, however, T. Oscar Smith, Chief of the Justice Department’s Conscientious Objector Section, relayed the recommendation of the Department of Justice that the conscientious objection claim not be sustained because (1) it was filed after appellant had been classified I-A and ordered for his physical examination, (2) asserting the claim at that late date was “not persuasive” of “deep and abiding beliefs held for a long period of time,” and (3) the inconsistencies cited by the Local Board could be considered in its determination of appellant’s sincerity.
In accordance with Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L. Ed. 467 (1955), appellant was given an opportunity to and did respond to the Justice Department’s recommendation. In a 10-page letter to the Appeal Board dated August 27, 1967, Nagler protested that he had informed his Local Board at the earliest point when he had been fully convinced that he was a conscientious objector and that even if he had not been called for a pre-induction physical examination he would still have sent for the SSS Form 150 when he did. He disputed the Local Board’s summary descriptions of what he had said at his two appearances before them and their conclusion that he had been inconsistent in his views regarding his belief in a Supreme Being.
Despite appellant’s explanations, the Appeal Board unanimously sustained the Local Board’s I-A classification on October 9, 1967, without any statement of reasons. Appellant was subsequently ordered to report for induction on November 13, 1967, and he failed to do so. He was indicted on May 13, 1969 and this conviction followed.
Judge Travia rejected appellant’s argument that the Local Board’s classification of him as I-A was without a “basis in fact,” Estep v. United States, 327 U. S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and that the Appeal Board’s determination was invalid because that Board did not state its reasons for affirming the Local Board’s classification. The court accepted as a valid “basis in fact” the Local Board’s conclusion that appellant was “insincere” because of inconsistent statements as to his religious views. Judge Travia also interpreted the Appeal Board’s determination as resting solely on the ground of insincerity, since the Appeal Board tentatively rejected appellant’s claim before it sought the Justice Department recommendation and the judge construed the Department’s advice as relating solely to the question of appellant’s sincerity. On this interpretation Judge Travia concluded that the failure of the Appeal Board to state the reasons for its determination did not affect the validity of the induction order.
The legal parameters governing this appeal have been indicated by recent rulings of the Supreme Court, Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed. 473 (1972), and Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1973), which have been interpreted by this and other circuits considering the issue as mandating reversal of a conviction upon a record of the type here presented. It is now clear that when a registrant states a prima facie claim for a conscientious objector classification, as concededly appellant did here, his Local Board’s failure to give reasons for denying his claim precludes meaningful administrative review by the Appeal Board and therefore invalidates a I-A classification following such denial. Accordingly a conviction based on failure to respond to an induction order grounded on that classification must be reversed. United States v. Stewart, 478 F.2d 106, 112 (2d Cir. 1973); United States v. Holby, 477 F.2d 649, 656-657 (2d Cir. 1973). Furthermore, since an Appeal Board need not restate the reasons for denying the claim when it affirms the Local Board’s determination, United States v. Orr, 474 F.2d 1365, 1369 (2d Cir. 1973), it “becomes all the more important that the local board specify the facts forming the basis of its decision,” United States v. Stewart, supra at 112-113. We noted specifically in the Stewart case that the requirement that reasons be furnished for rejecting the conscientious objector claim “is not satisfied by a board’s mere conclusory statements of insincerity. The facts or factors relied upon by the board must be stated. United States ex rel. Checkman v. Laird, 469 F.2d 773, 785 (2d Cir. 1972); see United States v. Andersen, 447 F.2d 1063, 1065 (9th Cir. 1971).” Id.
Application of these principles here dictates reversal of Nagler’s conviction. After his first appearance before the Local Board on June 15, 1966, his claim was rejected because he was found to be “less than sincere” and his “statements were found to be somewhat inconsistent, i. e. re: belief in Supreme Being.” The conclusion of insincerity, standing alone, would not suffice to support the Board’s determination, United States v. Stewart, supra, 112. To the extent that it is supplemented by a reference to Nagler’s inconsistent statements regarding his religious views, the Government has conceded that “in his reply to the Smith letter Nagler appears to have fully answered and explained the alleged inconsistencies, at least to the extent that even without crediting his version of what transpired at his meetings with the Board, no reasonable person could conclude that there was any necessary inconsistency in his religious views.” (Emphasis supplied) Since the misunderstanding as to the nature of appellant’s belief in a Supreme Being was not based upon objective fact but rather upon either an erroneous record of what he had said or upon a misconception by the Board members of what he had described as his beliefs, the alleged inconsistencies do not constitute a relevant “fact which casts doubt on the veracity of the registrant,” Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 396, 99 L.Ed. 428 (1955). Without a rational basis for finding appellant’s statements concerning his belief in a Supreme Being inconsistent, the Local Board cannot either base its classification on the inconsistencies or base its conclusion of insincerity on inference drawn from the supposed inconsistencies. United States v. Anderson, supra, 447 F.2d at 1066-1067. Cf. United States v. Corliss, 280 F.2d 808, 814 (2d Cir.), cert, denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960); United States v. O’Rourke, 341 F.Supp. 622, 626 (S.D.N.Y.1972).
Nor do the minutes of appellant’s second appearance before the Local Board, an appearance as of right, provide a sufficient basis in fact to support the Board’s denial of his conscientious objector claim, as the Government now urges. The Board concluded again that appellant was “less than sincere”, and this time that “statements made now are inconsistent with statements made at prior hearing held on June 15, 1966.” Obviously, if the inconsistencies refer to statements concerning appellant’s religious views, they gain no more basis through repetition a second time. Adopting this view, the Government, erroneously assuming that if it could show that there was a “basis in fact” for the decisions of the Local and Appeal Boards no statement of the reasons actually relied upon by those Boards was required, initially took the position upon this appeal that the “inconsistencies,” which it correctly interpreted as referring solely to “the registrant’s use of or the Board’s understanding of the term 'atheist,’ ” were not sufficiently substantial to uphold the Board’s decision, stating:
“The government concedes that, without more, these alleged inconsistencies would appear insufficient upon which to predicate a finding of insincerity. Very simply there is not enough in this record on this point.
“At the same time, however, the Government would suggest that, on this record it seems quite unlikely that these alleged inconsistencies played any substantial role, if any at all, in influencing the Appeals Board and that there was other evidence, much more strongly emphasized in the Smith letter. . . . ”
Notwithstanding the Supreme Court’s decisions in Lenhard and Joseph and our intervening decisions in Holby and Stewart, with which the Government was first confronted after briefing the appeal, it nevertheless continues to urge other “inconsistencies” which it has culled from the record in an effort to support the Local Board’s finding of insincerity. However, in view of our agreement with the Government’s initial interpretation of the Local Board’s use of the term as referring solely to the registrant’s religious views we must reject any reasons that were not articulated by the Local Board. Accordingly, we are left with that Board’s mere conclusion that a registrant is “less than sincere,” which is insufficient. United States v. Stewart, supra.
Nor can the Government gain any comfort from the Appeal Board’s decision, which sustained the Local Board’s I-A classification on appeal without giving any reason, conclusory or otherwise. If the Local Board has supported its decision with a valid statement of reasons, a further statement by the Appeal Board would be unnecessary. United States v. Orr, 474 F.2d 1365, 1369 (2d Cir. 1973). But where, as here, the Local Board has failed to furnish such a statement, that deficiency can not be cured by the Appeal Board, since the Local Board, not having articulated any reasons which rest on a “basis in fact,” may have acted upon invalid grounds. The Appeal Board, like ourselves has been left to speculate as to what legitimate reasons, if any, the Local Board might have found conclusive. The registrant, because of the Local Board’s silence, is deprived of a basic due process step, i. e., meaningful administrative review, which is an essential element of the system and should be accorded to all registrants.
In any event, the Appeal Board’s decision is fatally deficient for the reason that it failed to state any reason at all for its rejection of appellant’s claim, thus leaving us to speculate as to its grounds, just as we must speculate as to the basis of the Local Board’s decision. This deficiency cannot be remedied by reference to the reasons suggested to the Appeal Board by the Chief of the Justice Department’s Conscientious Objector Section, to which the Appeal Board looked for guidance. Some of these suggested reasons were plainly insufficient. Although late crystallization and assertion of conscientious objection may be viewed by a Board with suspicion, this factor is not conclusive. The claim may nevertheless be found to have been asserted in good faith. It cannot, therefore, automatically be rejected on such grounds. Ehlert v. United States, 402 U.S. 99, 103-104, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971) ; United States v. Gearey I, 368 F.2d 144 (2d Cir. 1966); United States v. Gearey II, 379 F.2d 915 (2d Cir.), cert, denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967) ; Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). And in any event the Appeal Board may have made its determination in reliance on the unsupported ground of inconsistent statements by Nagler as to his religious views, since this appears to have been the basis of the Local Board’s decision and the Justice Department, in turn, stated that it could properly be considered. Since the Appeal Board’s decision may well have been based upon invalid grounds, its decision could not in any event be upheld. Clay v. United States, 403 U.S. 698, 704, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971).
The judgment of the district court is reversed with directions that the indictment be dismissed.
. Although Nagler submitted to the Armed Forces Physical Examination, he refused to complete its Security Questionnaire (DD Form 98) on the ground that it represented an “unwarranted invasion of [his] right to freedom of association and belief.”
. Appellee’s Brief 5. See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) ; Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) ; Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970).
. Mr. Smith’s letter did set forth, among other things, the Hearing Officer’s recommendation and the fact that the Hearing-Officer had reported “that the registrant’s early religious training was Jewish but that his beliefs are of a personal nature based on his own present understanding of the teachings of Jesus and upon his individual inquiry into various philosophies of religion” and that “he believes in a Supreme Being.”
. Nagler’s letter stated in pertinent part:
“In neither of my two appearances before the Local Board did I state that I am an atheist. At my first encounter I did say that I did not believe in either the Jewish or the Christian God, but I was as clear as I could be on my conception of God. I said then unequivo-cably [sic] that I believe in God, and I pointed out that the answers to the questions in series II of my SSS Form 150 are quite clear on this. .
“God, to me, is not something which can be dearly defined by words, as can be the Judeo-Christian God, God is experienced emotionally much more than rationally. It is the Universe, It is everything that is Good, It is the Ideal, It is Love, It is Life. ... At my second appearance before the Local Board, ... I remember clearly the events which led up to their writing ‘Reg. does not now call himself an atheist.’ One of the members was looking at a paper (which I assume to have been the minutes of my first appearance) and told me that I call myself an atheist. I said that I don’t. He said that at my first appearance I had claimed atheism. I replied that I had not said such a thing. He then dictated . words to the effect that I now retract my former statement of atheism. I then said that I do not retract any statement, that I never made such a statement to the Local Board. He then dictated . . . words to the effect that I do not remember making any statement that I was an atheist, and that I do not now call myself one. I then began to repeat what I had said at the first meeting concerning my belief in God, but was interrupted. .
“The minutes of the second appearance state that I believe in a ‘Supreme Being that does not organize religions but humanists.’ I do not remember making this statement. I do not know what it means. . . . ”
. After the rejection of his conscientious objector claim by the Appeal Board, appellant requested an occupational deferment from his Local Board on October 23, 1967. His request was supported by a letter from his employer, an Associate Commissioner for Research and Evaluation in the State Education Department of the University of the State of New York. The Local Board convened on October 24, reviewed appellant’s file, and determined that the new information did not warrant reopening his classification.
Appellant urges that the Local Board’s refusal to reopen his classification was error invalidating his subsequent induction order because he had stated a prima facie claim for an occupational deferment under 32 C.F.R. §§ 1622.22(a), 1622.23 (1967). The Government takes issue as to the latter claim. Because of our disposition of this case on the conscientious objector claim, we need not resolve this controversy.
. United States v. Lenhard, 461 F.2d 1268 (2d Cir. 1972) (on remand) ; United States v. Hulsey, 463 F.2d 1071, 1075 (7th Cir. 1972) ; United States v. Hanson, 460 F.2d 337, 342-343 (8th Cir. 1972).
. Appellee’s Brief 18.
. Upon their initial briefing of this appeal, neither side referred to the Supreme Court’s decisions in Lenhard and Joseph, supra, and of course our decisions in JIol-hy and Stewart had not yet issued.
. Appellee’s Brief 17.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_numresp
|
6
|
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.
Robert STEWART and Rene Harris, on behalf of themselves and all other persons similarly situated, Women Employed, and Association For Worker’s Rights, an Illinois Not for Profit Corporation, Plaintiffs-Appellants, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Elenor Holmes Norton, individually and in her official capacity as Chairman of the Equal Employment Opportunity Commission, Ethel B. Walsh, individually and in her official capacity as Vice-Chairman and Member of the Equal Employment Opportunity Commission, Colston A. Lewis, individually and in his official capacity as a member of the Equal Employment Opportunity Commission, Raymond C. Telles, individually and in his official capacity as a member of the Equal Employment Opportunity Commission, and Martin Slade, individually and in his official capacity as District Director of the Equal Employment Opportunity Commission, Defendants-Appellees.
No. 78-2054.
United States Court of Appeals, Seventh Circuit.
Argued April 2, 1979.
Decided Dec. 28, 1979.
Rehearing and Rehearing In Banc Denied March 11,1980.
Robert Masur, Legal Assistance Foundation, Chicago, 111., for plaintiffs-appellants.
Francine K. Weiss, Equal Employment Opportunity Commission, Washington, D. C., for defendants-appellees.
Before SPRECHER and BAUER, Circuit Judges, and HOFFMAN, Senior District Judge.
The Honorable Walter E. Hoffman, Senior United States District Judge, Eastern District of Virginia, sitting by designation.
WALTER E. HOFFMAN, Senior District Judge:
This action was initiated on December 1, 1975 by plaintiff-appellants, Stewart and Harris, on behalf of themselves and others similarly situated within the Chicago District Office of the Equal Employment Opportunity Commission (hereafter EEOC). Plaintiffs sought declaratory and injunctive relief in the district court, alleging that the EEOC had failed to act on charges which plaintiffs had filed in the Chicago office and that the EEOC failed to make timely reasonable cause determinations on those charges. Plaintiffs cite violations under Title VII of the Civil Rights Act of 1972, 42 U.S.C. §§ 2000e, et seq. (hereafter the Act), the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq. (hereafter APA), and the Fifth Amendment to the United States Constitution. On cross-motions for summary judgment the district court denied all relief to plaintiffs and granted defendants’ motion for summary judgment. Plaintiffs appealed and, for the reasons set forth below, we affirm.
I
In 1972 Congress amended the Civil Rights Act of 1964 with newly designed provisions of the Equal Employment Opportunity Act. The right established in Title VII and in the Equal Employment Opportunity Act is “the right to be free of discrimination,” Hall v. Equal Employment Opportunity Com’n, 456 F.Supp. 695 (N.D.Cal.1978), and “Congress established an integrated, multistep enforcement procedure culminating in the EEOC’s authority to bring a civil action in a federal court,” Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977); Burlington Northern, Inc. v. Equal Employment, etc., 582 F.2d 1097 (7th Cir. 1978), in an effort to satisfactorily overcome administrative delay and satisfy this Title VII right.
Plaintiffs allege that the EEOC failed to meet the enforcement procedures required by the Act when, subsequent to the filing of employment discrimination charges, the Chicago office neglected these charges by allowing them to remain uninvestigated, unprocessed, and without reasonable cause determinations for one to more than two years. The Association for Worker’s Rights alleges that the long delays adversely affected their efforts to combat employment discrimination.
The principal issue before us is whether this failure to make reasonable cause deter-ruinations within 120 days of the original charge constitutes an actionable wrong under the Act, the APA, or the Fifth Amendment. We find, as did the district court, that no such actionable wrong has been committed by the EEOC and that plaintiff’s claims, though not without some basis in fact, are nonetheless without merit on this appeal. The Equal Employment Opportunity Act provides in pertinent part, 42 U.S.C. § 2000e-5(b), that:
[T]he Commission shall serve a notice of the charge [to the respondent] . within ten days, and shall make an investigation thereof. . . . The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge.....
And, at § 2000e-5(f)(1), that:
If a charge filed with the Commission is dismissed . . . or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference . . ., whichever is later, the Commission has not filed a civil action under this section ., or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the unlawful employment practice.
In Occidental Life, supra, 432 U.S. at 361, 97 S.Ct. at 2452, the Supreme Court in holding that the above provision (the 180-day limitation) was not a statute of limitations on EEOC enforcement suits, spoke directly to the purpose of this section:
Rather than limiting action by the EEOC, the provision seems clearly addressed to an alternative enforcement procedure: If a complainant is dissatisfied with the progress the EEOC is making on his or her charge of employment discrimination, he or she may elect to circumvent the EEOC procedures and seek relief through a private enforcement action in a district court. The 180-day limitation provides only that this private right of action does not arise until 180 days after a charge has been filed.
Appellants argue, however, that such a provision should not act as a bar to their “implied cause of action” against the EEOC should the latter fail to handle charges of employer discrimination “as promptly as possible and, so far as practicable.” In light of the claimants’ right to maintain an action in a federal court via private enforcement, appellants’ argument fails.
The legislative history of Title VII and of the 1972 amendments reveal clearly that Congress was not only aware of the backlog and “administrative quagmire” in many EEOC offices, but that Congress wanted to provide avenues of relief to avoid such processing delay. Had Congress intended a remedy of enforcement against the EEOC, the provisions of § 2000e would have so indicated.
After the final Senate vote the House and Senate bills were sent to a Conference Committee. An analysis presented to the Senate with the Conference Report provides the final and conclusive confirmation of the meaning of § 706(f)(1), [42 U.S.C. § 2000e-5(f)(1)]:
“The retention of the private right of action, as amended, ... is designed to make sure that the person aggrieved does not have to endure lengthy delays if the Commission . does not act with due diligence and speed. Accordingly, the provisions . allow the person aggrieved to elect to pursue his or her own remedy under this title in the courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution.
“It is hoped that recourse to the private lawsuit will be the exception and not the rule, and that the vast majority of complaints will be handled through the offices of the EEOC. However, as the individual’s rights to redress are paramount under the provisions of Title VII it is necessary that all avenues be left open for quick and effective relief.”
Occidental Life, supra, at 365-6, 97 S.Ct. at 2454.
We feel that the Supreme Court’s analysis in Occidental, and the recent cases confirming the interpretation of § 706(f)(1), are dispositive of appellants’ claims under Title VII. .
II
Appellants seek to bring the EEOC under the provisions of the Administrative Procedure Act, 5 U.S.C. § 551, et seq., which provides in pertinent part:
“[A]gency action” includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act. 5 U.S.C. § 551(13).
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action, [emphasis added] 5 U.S.C. § 704.
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
(1) [C]ompel agency action unlawfully withheld or unreasonably delayed. 5 U.S.C. §§ 706 and 706(1).
Once again, the Supreme Court spoke in conclusive terms as to the applicability of the APA, ITT v. Electrical Workers, 419 U.S. 428, 443, 95 S.Ct. 600, 610, 42 L.Ed.2d 558 (1975), when agency action, there the National Labor Relations Board, is challenged by a claimant or charging party:
In a tautological sense, of course, the Board’s determination in a § 10(k) [National Labor Relations Act] is a “final disposition” of that proceeding, but we think that when Congress defined “order” in terms of a “final disposition,” it required that “final disposition” to have some determinate consequences for the party to the proceeding. ... As the Attorney General’s Manual on the Administrative Procedure Act 40 (1947) observed: “[I]nvestigatory proceedings, no matter how formal which do not lead to the issuance of an order containing the element of final disposition as required by definition, do not constitute adjudication.”
We find no merit to appellants’ claim that the inaction of the EEOC is reviewable by the courts, even though these actions cannot bind the parties thereto. This argument is based on the premise that such action, or inaction as is claimed here, can cause hardship to the parties. To bring the EEOC under the provisions of the APA solely on the grounds of alleged hardship is not only without the realm of this court, but a remedy clearly within the province of the individual’s right to de novo action in a federal court. Furthermore, to find agency action in this case, under the theory that the alleged failure to act is, in fact, action because of its effect, is to beg the question of reviewability. “The test of finality for purposes of review is not whether the order is the last administrative order contemplated by statutory scheme, but rather whether it imposes an obligation or denies a right with consequences sufficient to warrant review.” Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 79 n. 8, 439 F.2d 584, 589 n. 8 (D.C. Cir., 1971).
It was not the intention of the APA to supplant the primary purpose of an administrative agency, but agency action is reviewable in that narrow realm of “finality” and only in the absence of another “adequate remedy in a court,” Deering Milliken, Inc. v. Johnston, 295 F.2d 856, 865 (4th Cir. 1961).
In Hall v. Equal Employment Opportunity Comm’n, 456 F.Supp. 695, 701 (N.D.Cal. 1978), where the district court gave the “generous review provisions” ... of the APA “hospitable interpretation,” and reluctantly found the presence of final agency action in the particular case, the court went on to conclude that review of the EEOC action is precluded nevertheless, because there exists “an adequate remedy in a court” for the grievances of the plaintiffs therein:
We are convinced, however, by the statements in the legislative history quoted in Occidental Life . . . that Congress intended that the private right of action preserved by § 706(f)(1) be the all-purpose remedy for charging parties dissatisfied with the EEOC’s handling of their charge. In short, we do not think Congress could have been more clear in expressing its intent that the private right of action preserved by § 706(f)(1) is “an adequate remedy in a court” for the alleged shortcomings in the EEOC’s handling of the plaintiffs’ charges. Thus we hold that the actions of the EEOC herein alleged are not reviewable by this court under the APA.
We align ourselves with the quoted legislative history in the Occidental Life decision and, insofar as the Supreme Court’s declaration of the intent of the various provisions of the Equal Employment Opportunity Act of 1972 herein at issue is dispositive, we are in accord. We further find no “final disposition” or “final agency action,” nor any evidence to suggest a failure to act on the part of the EEOC which necessitates or warrants review under the APA. As an “adequate remedy in a court” is available to appellants herein, their claims in this case are without merit.
Affirmed.
. The group plaintiff is the Association for Worker’s Rights whose purpose is to oppose discrimination in employment against persons, including its own members, who are of Latin-American origin. The original complaint included two other group plaintiffs. People United to Save Humanity (PUSH) and Women Employed. PUSH was dismissed as a party plaintiff when it did not answer certain interrogatories, and Women Employed chose not to appeal.
. As appellants’ due process claim is without any basis as being clearly violated, or clearly determinable constitutional rights, and is further not in issue on this appeal, it will not be discussed herein.
. 431 F.Supp. 47 (N.D.Ill.1976), contains an abbreviated discussion of the allegations and rulings on the motion to dismiss and class certification.
. Pub.L. 92-261, 86 Stat. 103, 42 U.S.C. § 2000e, et seq., (1970 ed. Supp. V), amending Civil Rights Act of 1964, 78 Stat. 253. All subsequent citations to Title VII in this opinion are to the 1964 Act as amended.
. Sec. 706(b), 42 U.S.C. § 2000e-5(b) (1970 ed. Supp. V).
. While the parties do not agree on the reasons for defendants’ delay in processing charges of discrimination, the parties agree that there are processing delays in the Chicago District Office.
. Although the individual claims herein have since been processed by the Chicago District Office of the EEOC under a new procedure called rapid charge processing, which appellees claim has been 42% effective in processing new charges received in the Chicago office after September 23, 1977, within the 120 day statutory period; and which has further disposed of 52% of its backlog, this claim is not mooted by such developments as some members of the class have still not had their charges processed.
. 42 U.S.C. § 2000e-5(f)(1).
. Occidental Life, supra, at 364-5, 97 S.Ct. 2447.
. H.R. 1746, 92d Congress, 1st Sess., reprinted in H.R.Rep.No.92-238, p. 12, U.S.Code Cong. & Admin.News 1972, p. 2137.
Question: What is the total number of respondents in the case? Answer with a number.
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.
Milton PARNESS, Appellant, v. UNITED STATES of America.
No. 17248.
United States Court of Appeals Third Circuit.
Submitted on Briefs Nov. 5,1968.
Decided Nov. 13, 1968.
Milton Parness, pro se.
Donald Horowitz, Asst. U. S. Atty., David M. Satz, Jr., U. S. Atty., Newark, N. J., for appellee.
Before KALODNER, FORMAN and STAHL, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
Once again this federal prisoner has gone to the well in his efforts to vacate and correct his sentence on the ground that it had been premised upon false information contained in a pre-sentence report.
He now appeals from the sentencing judge’s denial of his motion to vacate and correct his sentence, made under Section 2255, Title 28 U.S.C.A.
In his Opinion and Order denying the motion, the sentencing judge, after reciting newly specified challenges to the pre-sentence report, said in relevant part:
"I certify that none of the statements in the Presentence Report, presently criticized by petitioner, affected my judgment as to the sentence which should be imposed upon him.”
The stated finding of the sentencing judge stands unimpeached. Since none of the challenged statements in the presentence report were determinative factors in his sentencing, the prisoner’s complaint is groundless.
For the reasons stated the Order of the District Court will be affirmed.
. In February, 1966, Parness filed a motion under Section 2255, 28 U.S.C.A. to correct or vacate his sentence on the ground that it had been based upon “materially erroneous information with respect to the petitioner’s background” which was “highly prejudicial.” The sentencing judge heard and denied the motion. We affirmed at 368 F.2d 327 (3 Cir. 1966), cert. den. 386 U.S. 1012, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967).
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_casetyp1_1-3-1
|
R
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
James F. O’CALLAHAN, Appellant, v. J. J. PARKER, Warden, United States Penitentiary, Lewisburg, Pennsylvania, et al.
Nos. 16210, 16211.
United States Court of Appeals Third Circuit.
Submitted Jan. 17, 1967.
Decided Feb. 2, 1967.
James F. O’Callahan, pro se.
Harry A. Nagle, Lewisburg, Pa., Bernard J. Brown, U. S. Atty., Abraham Nembrow, Lieutenant Colonel, JAGC, Office of the Judge Advocate General, Dept, of Army, Washington, D. C., for appellees.
Before HASTIE, GANEY and SEITZ, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
The issues which we are asked to decide on this appeal from a denial of ha-beas corpus are now before the United States Court of Military Appeals on a “motion for rehearing” filed in that court by the present appellant on December 6, 1966, and the Court of Military Appeals has directed that the matter be briefed and argued. In this posture of the matter any intervention by the civil courts would be untimely.
Accordingly, the district court’s denial of habeas corpus, 256 F.Supp. 679, will be affirmed.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
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