task
stringclasses 260
values | output
stringlengths 2
5
| instruction
stringlengths 576
44k
|
|---|---|---|
songer_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
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: 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_usc1sect
|
2255
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellee, v. Paul John CARBO, Defendant-Appellant.
No. 72-2399.
United States Court of Appeals, Ninth Circuit.
Feb. 23, 1973.
John Paul Carbo, in pro. per.
William D. Keller, U. S. Atty., Lawrence W. Campbell, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before HAMLIN and DUNIWAY, Circuit Judges, and WEIGEL, District Judge.
Honorable Stanley. A. Weigel, United States sitting by designation. District Judge, Northern District of California,
PER CURIAM:
Carbo appeals from an order denying his motion under Rule 35, F.R.Crim.P. to correct and reduce sentence, verse. We re-
On December 2, 1961, Carbo was sentenced to twenty-five years in prison. Notice of appeal was filed, and Carbo elected under Rule 38(a)(2) not to begin to serve his sentence. On May 16, 1962, he elected to begin serving the sentence. Carbo now seeks credit for the period between December 2, 1961, and May 16, 1962, that he spent in custody.
The district court denied Carbo’s motion on jurisdictional grounds. The court held that a motion under Rule 35 is not the proper remedy. The court pointed out that there has been no showing that the sentence imposed is illegal. The petitioner is therefore limited to a motion to reduce sentence; however, that motion must be brought within 120 days of the finality of the judgment, and this time had elapsed. The court went on to state that if the motion were to be considered as a petition either for a writ of habeas corpus or for a writ of mandamus, it must be brought in the district where the petitioner resides (the district serving Marrion, Illinois). The court consequently held that it lacked jurisdiction to entertain the motion.
We do not disagree with the district court’s holding that in this case a motion under Rule 35 is not available, or that habeas corpus may be an appropriate remedy. See Aldridge v. United States, 9 Cir. 1969, 405 F.2d 831. See also Comulada v. Pickett, 7 Cir., 1972, 455 F.2d 230. If Carbo were limited to habeas corpus, the district court would lack jurisdiction. However, there remains the question whether 28 U.S.C. § 2255 is available, and whether Carbo’s motion under Rule 35 may be considered as an application for relief under § 2255. In similar situations, this court has treated § 2255 as an available remedy. Myers v. United States, 9 Cir., 1971, 446 F.2d 232; Williams v. United States, 9 Cir., 1971, 440 F.2d 684. So have other circuits. Davis v. United States, 7 Cir., 1971, 446 F.2d 847; Bujese v. United States, 3 Cir., 1968, 404 F.2d 615. We accordingly hold that the district court should have treated the motion as an application for relief under § 2255, and therefore retained jurisdiction and decided the merits.
Reversed and remanded.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.
Answer:
|
songer_genstand
|
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 civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
SAN JOAQUIN BRICK CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 10007.
Circuit Court of Appeals, Ninth Circuit
Aug. 8, 1942.
Lafayette J. Smallpage, of Stockton, Cal., for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Newton K. Fox, and Fred E. Youngman, Sp. Assts. to the Atty. Gen., for respondent.
Before WILBUR, STEPHENS, and HEALY, Circuit Judges.
STEPHENS, Circuit Judge.
Petition to review a decision of the Board of Tax Appeals which affirmed a determination of the Commissioner of Internal Revenue that the petitioner-taxpayer is not entitled to certain claimed deductions in computing its 1934 income taxes.
The matter was submitted to the Board of Tax Appeals upon a stipulation of facts, neither the petitioner nor the Commissioner introducing any other evidence.
The stipulated facts are, briefly, as follows :
The petitioner-taxpayer is a California corporation with its principal office at Stockton, California, and is engaged in the manufacture and sale of building materials. It keeps its books and prepared its income tax returns on an accrual basis. In 1934 and 1935, all shares of its capital stock were owned by I. R. Stein, who has since died.
Stockton Medico-Dental' Building, Inc. [herein called Medico-Dental] is a Delaware corporation organized in 1925. It erected a twelve-story office building at Stockton and on June 15, 1926, issued $400,000 six and one-half percent first mortgage bonds and $110,000 seven percent second mortgage bonds, maturing serially up to June 15, 1942, secured by deeds of trust on the building.
Between 1926 and 1934, taxpayer acquired some of each class of these bonds. $30,000 second mortgage bonds were received by it for construction materials of that value supplied by it to Medico-Dental in the construction of the building. $10,-000 of these second mortgage bonds were sold by taxpayer in 1927.
As of January 1, 1934, taxpayer owned second mortgage bonds of Medico-Dental which it had acquired on the dates, in the quantities and at the costs shown as follows [the $20,000 total of bonds shown to have been acquired in the years 1926 and 1927 represent the remainder of the $30,000 bonds acquired for construction materials to which we have just referred] :
Date Acquired Face Value Cost.
Sept. 18, 1926 $12,000.00 $12,000.00
Dec. 21, 1926 1,000.00 1,000.00
Feb. 1, 1927 3.000. 00 3.000. 00
Mar. 12, 1927 4.000. 00 4.000. 00
Apr. 4, 1929 10,000.00 8.500.00
Apr. 8, 1929 2.000. 00 1.750.00
Apr. 11, 1929 8,000.00 6.490.00
Apr. 19, 1929 24.000. 00 18.500.00
Apr. 25, 1929 2,000.00 1.600.00
Apr. 29, 1929 1,000.00 825.00
May 1, 1929 4.000. 00 3.200.00
May 20, 1929 5.000. 00 4.625.00
Nov. 9, 1933 23.000. 00 2.300.00
Totals $99,000.00 $67,790.00
In 1929 Medico-Dental was in default on its obligations under the deeds of trust securing its first and second mortgage bonds. Thereupon Medico-Dental Investment Company, a California corporation [hereinafter referred to as Investment Co.] was organized on March 11, 1929, to acquire and operate the building. The Investment Company assumed the first and second mortgage bonds, then outstanding in the amounts of $392,500 and $110,000 respectively, in consideration of a transfer of Medico-Dental property to it. Investment Company issued 615 shares of stock of $50.00 par value, of which 600 were issued to taxpayer for $30,000.00.
In 1930 Investment Company defaulted in payment of interest on the second mortgage bonds, and in 1933 it defaulted in payment of interest and sinking fund obligations on the first mortgage bonds. The first mortgage bondholders thereupon formed protective committees which formulated a reorganization plan, and on January 29, 1934, made an agreement with Investment Company and Medico-Dental to carry out the plan. This plan was submitted on June 5, 1934, to holders of first mortgage bonds.
The plan provided that if all first mortgage bonds should be deposited with a reorganization committee before August 1, 1934, the trust indenture of June 15, 1926, would be amended so that the six and one-half percent • first mortgage gold bonds would have the effect of “new bonds” and be returned to the parties entitled thereto and the plan of reorganization consummated. If all first mortgage bonds should not be deposited, Investment Company or a new company would acquire the mortgaged building at a trustee’s sale under foreclosure and issue bonds to each depositor in the same principal amount as the bonds deposited. Such new bonds, dated June 15, 1933, and maturing June 15, 1947, would bear four percent interest, and (the company’s earnings permitting) additional interest up to one percent, and coupons for “deferred interest” aggregating three and one-quarter percent of principal and payable in four semi-annual installments ending December 15, 1935, from the promissory note to be given by taxpayer to the new company.
To secure the new bonds, a deed of trust would be placed upon the building, requiring that the new company’s net income be paid to a trustee for application to the bonds, and imposing other restrictions safeguarding the loan. The new company’s capital stock would consist of 615 shares of which 600 would be placed in trust as additional security for the bonds, and after fulfillment of obligations under them, would be transferred to taxpayer. Taxpayer was also to pay Investment Company’s accounts payable incurred prior to June 15, 1933, and acquire its accounts receivable as of that date, and pay the expenses of the reorganization plan, including the amount necessary for distribution to the non-depositing stockholders.
In considering this plan of reorganization it should be noted that it contemplated the possibility of having deposited 100% of the outstanding first mortgage bonds, in which event [quoting from the plan] “the Committee can accomplish the foregoing plan of reorganization without the trustee’s sale and by merely amending the deed of trust securing said bonds and having the Trustee make' appropriate notation on the bonds”. Of course if this had been accomplished, the proposed modification of the interest rate and maturity dates on the first mortgage bonds would have been effected without any change in equity ownership or revision of debts junior to the first mortgage bonds.
The full 100% of the outstanding first mortgage bonds were not deposited, and in accordance with the plan the bondholders’ committee on November 16, 1934, caused Stockton Medico-Dental Building Company [hereinafter referred to as the “New Company”] to be organized as a corporation under the laws of California.
The Committee then transferred to the New Company in trust all the bonds which had been pledged to them [$336,700 out of a then outstanding issue of $351,000].
On November 20, 1934, the trustee under the trust indenture securing the first mortgage bonds took possession of the property pledged under the trust indenture, and on December 14, 1934, sold all the assets at public sale to the highest bidder, which was the New Company. The New Company then issued first mortgage notes to the depositors in the full face amount of their deposited bonds, with extended maturity dates bearing interest at four percent guaranteed and one percent additional, if earned. The non-depositing holders of first mortgage bonds received 30 cents on the dollar face value of their bonds.
The accounts payable of Investment Company incurred prior to June 15, 1933, and which taxpayer had assumed under the plan of reorganization as above outlined, amounted to $19,959.60. They were all due to taxpayer itself for merchandise, advances and interest. There was also a note to a bank for $5,000 payable with accrued interest on May 28, 1933, on which taxpayer was guarantor. Taxpayer paid on account of its liability on this note the sum of $5,-010.32.
Investment Company’s accounts receivable on June 15, 1933, which taxpayer received, amounted to $15,134.15, due-from tenants of stores and offices in the building. Of this, it collected and paid to taxpayer $8,452.69 on November 9, 1934.
Taxpayer in 1934 charged off on account of this latter transaction the sum of $16,-517.23, computed as follows:
Accounts payable assumed $19,959.60 Note and interest paid 5,010.32
$24,969.92
Dess amount collected on accounts receivable 8,452.69
$16,517.23
Taxpayer claims that it is entitled to deductions in computing its 1934 income tax return in the following amounts :
(1) The cost price of the second mortgage bonds of Investment Company totaling $67,790.00.
(2) The cost price of shares of stock of investment company totaling $30,000.00.
(3) The $16,517.23 difference between the accounts payable and amounts received on accounts receivable as above set forth.
In connection with this latter claimed deduction the Board determined that only $9,835.77 was deductible. The $9,835.77 figure was arrived at as follows:
Accounts payable assumed $19,959.60
Note and interest paid 5,010.32
$24,969.92
Less accounts receivable 15,134.15
$ 9,835.77
For convenience we shall consider the three claimed deductions separately. We turn first to item (2), the $30,000 expended for stock of Investment Company.
The Investment Company Stock.
The Board found as a fact that this stock became worthless before 1934, the year in which the taxpayer claimed his deduction. At the outset we are faced with the Commissioner’s argument that this finding is binding on us if supported by evidence. Taxpayer, on the other hand, urges that since the case was submitted upon a stipulation of facts, “this Court has the power and the duty to examine those facts for the purpose of reviewing the reasonableness of the Board’s conclusion”. The point seems to be that the Board’s conclusions from the stipulated facts are either mixed questions of law and fact or conclusions of law, which are subject to our independent judicial review. Commissioner v. Boeing, 9 Cir., 106 F.2d 305, 309.
In the Boeing case, supra, we analyzed recent cases decided by the Supreme Court on the power of this Court to review decisions of the Board of Tax Appeals. On tiie basis of Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 79 L.Ed. 1343, and Helvering v. Tex-Penn Co., 300 U.S. 481, 57 S.Ct. 569, 81 L.Ed. 755, we held that in the case then under consideration the ultimate findings of the Board were “conclusions of law, or mixed questions of law and fact within the meaning of the Supreme Court rulings and as such are subject to independent judicial review by this court.” [106 F.2d 309], The ultimate finding of the Board with which we were there concerned was as to whether the taxpayer was engaged in a “trade or business” which is entirely different from the finding with which we are concerned in the instant case, namely, as to the value of the stock in question prior to the year 1934. The question as to the year in which stock becomes worthless would seem to be purely a question of fact, and if the stipulated facts support the Board’s finding that it became worthless prior to the year 1934, it is our opinion that such finding is binding upon us.
But aside from all of that, the argument of both parties to this appeal on the question of the conclusiveness of the Board’s finding discloses a misunderstanding of the expressions often made by the Courts that the Commissioner’s determination is supported by a presumption of correctness and that the taxpayer has the burden of showing it to be wrong. See, for instance, Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212.
In Perry v. Commissioner, 9 Cir., 120 F.2d 123, 124, this Court undertook to explain such expressions by saying, “This finding [the determination of the Commissioner] is presumptively correct, that is, until the taxpayer proceeds with competent and relevant evidence to support his position, the determination of the Commissioner stands: When such evidence has been adduced the issue depends wholly upon the evidence so adduced and the evidence to be adduced by the Commissioner. The Commissioner cannot rely upon his determination as evidence of its correctness either directly or as affecting the burden of proof.”
It has often been pointed out that in claiming tax deductions the taxpayer must show clearly that he comes within the statute allowing such deductions. But once he presents competent and relevant evidence on every necessary element, the presumption of correctness of the Commissioner’s determination is no longer existent and the outcome of the case depends upon the determination of the trial body after the consideration of the evidence brought before it by both sides. When the evidence on both sides has been adduced, and the Board makes its findings of fact, then the sole question presented to the Court, so far as the facts are concerned, is whether or not the Board’s findings are supported by the evidence.
If the taxpayer fails to present substantial evidence on every point necessary to entitle him to the deductions claimed, this Court upon petition for review necessarily will hold against their allowance. In doing so we are not considering proof nor are we weighing the evidence.
With these principles in mind we turn to the claims of the taxpayer in the instant case.
The law is clear that as to claimed deductions for worthless stock the income tax law contemplates that the deduction must be taken in the year in which the loss is sustained by reason of the stock actually becoming worthless. The statute does not make the loss deduction dependent upon the time of ascertainment but rather upon the time when- the loss is truly sustained. See Bartlett v. Commissioner, 4 Cir., 114 F.2d 634, 638, 639, and cases therein cited.
It is conceded by all that the stock of Investment Company was worthless at least after the sale of the property under foreclosure in 1934. But that is not the question. The problem for us to decide is— did taxpayer represent competent evidence tending to prove that the stock actually became worthless in 1934? If it did present evidence on this point, then we must consider whether or not evidence was introduced to support the Board’s conclusion that the stock became worthless prior to the beginning of the year 1934.
This leads us to the question: What is necessary for a taxpayer to prove in order to establish the fact that stock which he holds became worthless in the year in which he is claiming a deduction?
It would appear, as pointed out by the Court in Dunbar v. Commissioner, 7 Cir., 119 F.2d 367, 369, 135 A.L.R. 1424, that “As a part of his burden in demonstrating that it became worthless in [the year of the claimed deduction] he must of necessity-show that it had some intrinsic or potential value at the close of [the preceding year].”
The stipulation of facts upon which this case was presented to the Board of Tax Appeals is entirely silent on this matter. All that we are told is that in 1929 the Investment Company was organized and that there were transferred to it the properties of Medico-Dental. The value of these properties is not shown. No balance sheets of any kind are in the record. We know that the properties transferred to the Investment Company were mortgaged to the extent of some $500,000.00, being the total of the first and second mortgage bonds, and that there was a default on the second mortgage bonds in 1930 and on the first mortgage bonds in 1933, after which protective committees were organized to work out a plan of reorganization.
Certainly this all falls far short of evidence to show that the stock of Investment Company which the taxpayer claims to have become worthless in 1934 had any intrinsic or potential value at the close of 1933.
In this situation it is our duty to hold that there is no error in the Board’s determination that the taxpayer is not entitled to claim a deduction for the worthlessness of the Investment Company stock in 1934.
The Second Mortgage Bonds of Investment Company.
As to these bonds we have a different situation. Under Regulations 86 of the Treasury Department [Art. 23 (k) 4] it is provided that “Bonds, if ascertained to be worthless, may be treated as bad debts to the amount actually paid for them * * * ”,
And, as pointed out by the decision in Bartlett v. Commissioner, supra [114 F.2d 638], “the law applicable to deductions for worthless stock stands out in clear relief when it is viewed against the background of the law pertaining to deductions for bad debts”.
Under the 1934 Revenue Act, c. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Code § 23, the bad debt deduction is set forth as follows: “Debts ascertained to be worthless and charged off within the taxable year * * *
It is stipulated by the parties that the taxpayer charged off the purchase price of the bonds in the year 1934, but the dispute between the parties arises out of the question of whether they were “ascertained to be worthless” during that year.
We therefore examine the stipulation of facts to determine whether or not it can properly be said that taxpayer presented evidence on every essential element to the proving of its case.
Unlike the situation with respect to claiming a deduction for worthless stock, where we have heretofore held that a part of the taxpayer’s case is to show that the stock had some intrinsic or potential value at the close of the preceding year, in the case of bad debts the actual worthlessness of the debt prior to the tax year in which the deduction is claimed is immaterial so long as the debt was “not ascertained to be worthless” by taxpayer prior to that time.
The taxpayer must present evidence, then, to show: (1) That the debt actually was uncollectible during the year in which he claims the deduction [this is clear in the instant case from the stipulated fact that the property was lost by foreclosure proceedings in 1934] and (2) that he actually “ascertained” that fact for the first time during the tax year in question.
On this second point we have the following stipulated facts: Taxpayer was fully aware of the reorganization proceedings and the foreclosure of the property [this shows that the “ascertainment” was at least as early as 1934 when it claims the deduction] ; that until August 1, 1934 [the deadline for obtaining a deposit of 100% of the first mortgage bonds] the reorganization committee hoped to accomplish the plan of reorganization without a trustee’s sale, thereby, as we have heretofore pointed out, effecting the reorganization without any change in equity ownership or revision of debts junior to the first mortgage bonds; that as late as November, 1933, taxpayer purchased and paid $2,300.00 for $23,000.00 face value of the second mortgage bonds.
It is our opinion and we therefore hold that there was sufficient evidence from which the Board could have found that the taxpayer “ascertained” the bonds to be worthless in 1934.
In this situation, then, the question for our determination is whether there was evidence on behalf of the Commissioner to sustain the Board’s finding that the bonds were ascertained to be worthless prior to 1934.
The Board’s finding in this respect is that the bonds “were in fact worthless before 1934, and the petitioner must be charged with having then ascertained it”.
In order to support this finding, it is apparent that there must be evidence (1) that the bonds were in fact worthless before 1934 and (2) that the facts were such that taxpayer is charged with having ascertained the worthlessness of the bonds prior to that year.
There is some conflict in the cases as to just when a taxpayer is to be charged with ascertainment of the worthlessness of a debt. It is our opinion and we hold that the case of Rosenthal v. Helvering, 2 Cir., 124 F.2d 474, 476, correctly sets forth the true rule, as follows:
“ ‘Losses’ must be deducted in the year in which they are ‘sustained’ and if the taxpayer fails to learn of them in time, he loses the privilege; debts, on the other hand, must be deducted in the year in which the taxpayer ‘ascertains’ them to be ‘worthless,’ and nobody understands that this imposes upon him the absolute risk of selecting the year when they actually became so. * * * However, beginning with Avery v. Commissioner, 5 Cir., 22 F.2d 6, 55 A.L.R. 1277, courts have at times charged taxpayers with the duty of selecting that year in which a prudent person with the same information would have concluded that the debt was uncollectible. * * * In Curry v. Commissioner, 2 Cir., 117 F.2d 307, 309, 310, we held, however, that the ‘subjective test’ as we called it, was the right one; that is, that the proper year was that in which the taxpayer did ‘ascertain’ the fact no matter how much earlier a reasonably prudent person would have done so. * * *
“The taxpayer’s failure to ‘ascertain’ the uncollectibility of the debt as early as a prudent person would have done so, must not be actuated by a desire to postpone the deduction to a later year; he may as little choose the year of greatest advantage to himself by deliberately refusing to follow up evidence which will lead to the facts as by refusing to make use of facts themselves. That would be indeed what the Board here called ‘shutting one’s eyes to the facts.’ But it is one thing not to permit a taxpayer to check an inquiry which he would otherwise have made, and another to impose upon him the duty of general vigilance j}! ÍÍC »
In other words, the taxpayer is under no’ duty of general vigilance to ascertain the fact of worthlessness of a debt. However, if the taxpayer does know the facts he cannot “shut his eyes” to those facts. The taxpayer’s failure to “ascertain” the uncollectibility of the debt as early as a prudent person would have done so “must not be actuated by a desire to postpone the deduction to a later year”. He cannot deliberately refuse to follow up evidence which will lead to the facts, nor can he refuse to make use of the facts themselves.
In the instant case, the taxpayer concededly knew all the facts. It was the principal stockholder and took an active part in the affairs of the company. It would seem, therefore, that if the evidence shows that the bonds were in fact worthless prior to 1934, as the Board found, it would be our duty to hold that that fact would be evidence that the taxpayer actually “ascertained” their worthlessness at that time.
At this point it is well to again point out that the Board did not find that taxpayer actually “ascertained” the worthlessness of the bonds prior to 1934, but that it was chargeable with notice of their worthlessness. It is our opinion that in the event we should find that there is evidence from which the Board could properly conclude that the taxpayer did actually “ascertain” the fact of worthlessness prior to 1934, then it would be our duty to remand the cause to the Board to find upon the point. On the other hand, if there is no evidence from which the Board could properly find an actual “ascertainment” of worthlessness by taxpayer, i. e., if there is no evidence to support a finding that a reasonably prudent person with knowledge of the facts would have “ascertained” that the bonds were worthless, then it is our duty to reverse the cause in favor of the taxpayer. And as we have just said, in the particular circumstances of this case the question turns on whether or not there is evidence to support the finding of the actual worthlessness of the bonds prior to 1934. .
In urging that the Board’s finding is supported by the evidence, the Commissioner relies upon the stipulated fact that there was no interest paid on the second mortgage bonds after 1930 and that there was a default in 1933 on the interest and sinking fund obligations on the first mortgage bonds. But this is not evidence that the bonds themselves were entirely worthless. The Commissioner also relies on the fact that in 1933 bondholders’ protective committees were organized and that these committees thereafter adopted and filed a plan of reorganization, not making therein [quoting from the Commissioner’s brief] “any provision for holders of second mortgage bonds”. There are two answers to1 this point made by the Commissioner. The first is that as we have pointed out above, under the plan it was contemplated that the reorganization might be accomplished without the necessity of foreclosure, in which event the second mortgage bonds would have remained legal evidences of indebtedness secured by the junior mortgage on the building. The second answer is that the evidence does not disclose that the reorganization plan was worked out in 1933 as is assumed by the Commissioner. The stipulated facts show that the protective committees were organized in 1933, and that these committees entered into an agreement on January 29, 1934 to carry out the plan which they had formulated, and which is set forth in the agreement. On such evidence we cannot sustain a finding that the details of the plan were worked out in the year 1933.
The Commissioner also urges that the finding as to the worthlessness of the bonds in 1933 is supported by the fact that in 1934 the property was foreclosed upon and bid in at public sale for $104,000, which provided for the dissenting first mortgage bondholders only 30^ on the dollar. We do not agree that evidence of a sale on foreclosure in December, 1934, at a figure much below the amount of outstanding first mortgage bonds, furnishes support for a finding that as of the end of 1933 there was no equity or value behind the second mortgage bonds.
In dealing with the question of the deduction claimed on account of the common stock of the Investment Company we pointed out that there was no evidence as to the worth of the company at the close of the year 1933. There is nothing in the record to indicate the value of the real property on which the first and second mortgage bonds were a lien. In other words, there is no evidence to support a finding that the second mortgage bonds were actually worthless prior to the time of the foreclosure proceedings in December, 1934, or at least prior to the time when it became apparent that the proposed plan of reorganization by obtaining a deposit of 100% of the outstanding first mortgage bonds would not be carried through. We therefore hold for the taxpayer on this point.
The $16,517.23 Deduction.
As has heretofore been recited, under the reorganization proceedings taxpayer assumed the Investment Company’s accounts payable incurred prior to June 15th, 1933, and received the accounts receivable of said company as of that date. In making its income tax return for the year in question, taxpayer claimed a deduction for the difference between the accounts payable and the amount which it had actually received from the accounts receivable, while the Board allowed a deduction of only the difference between the accounts payable and the gross accounts receivable. In arriving at this -conclusion the Board in effect held that taxpayer was entitled to the deduction for the amounts which it assumed under the reorganization proceedings, but that there must be an offset for income received by it in the same transaction. We are not concerned in this appeal with the propriety of the Board’s holding that the deduction was proper, but only with the holding that taxpayer is chargeable with income in the gross amount of the accounts receivable.
In considering this question it is important to keep in mind that taxpayer kept its books and prepared its income tax returns on an accrual basis, and it is therefore clear that the Board was correct in charging taxpayer with income received by virtue of the assignment to it of the Investment Company’s accounts receivable.
But taxpayer urges that the accounts receivable over and above the $8,-452.69 collected thereon were valueless, and were charged off by it during the tax year. But a charge-off is not enough to entitle a taxpayer to a deduction for worthless debts. It must be remembered that the debts here claimed as worthless were not those of the Investment Company, but rather of debtors of that company. There was no evidence presented as to the financial responsibility of these debtors or their ability to pay. In this state of the record it is our duty to hold that there was no error in the Board’s refusal to allow the deduction.
This holding is not a holding [as is urged by taxpayer] that the accounts receivable were accepted by taxpayer as a payment pro tanto on the indebtedness which it assumed. Taxpayer, being on an accrual basis, is chargeable with income received by virtue of the assignment to it of the accounts receivable. In the absence of a showing that the accounts receivable were “ascertained to be worthless” during the tax year, no deduction is allowable.
The decision of the Board in refusing to allow a deduction of the cost price of the second mortgage bonds of Investment Company totaling $67,790.00 is reversed. In. all other respects, the decision is affirmed.
The plan recites that this note is to be given by I. R. Stein, who, as we have stated, was taxpayer’s sole stockholder. It is stipulated that all obligations entered into and all action taken by Stein under said agreement were entered into and taken by him as nominee of taxpayer.
There appears in one of the exhibits on file a “Registration Statement” filed by the Investment Company with the Federal Trade Commission in connection with the reorganization some time subsequent to May 31, 1934, in which the statement is made “If the securities for which this Registration Statement is filed are ultimately issued, the Second Mortgage 7% Notes of Stockton Medico-Dental Building, Inc. will be retired either by the voluntary surrender of said notes by the holders thereof for cancellation or by the foreclosure * * * of the deed of trust securing the First Mortgage Gold Bonds”. This is the only place in the record where it is indicated that it might have been a part of the plan to retire the Second Mortgage Bonds by voluntary surrender, and this statement was apparently made by the Investment Company some four or five months after the plan was formulated. The plan as outlined in the stipulation of facts, and in the agreement which also outlines the plan both show that if 100% of the first mortgage bonds had been deposited, the reorganization would have been accomplished by merely amending the deed of trust securing the first mortgage bonds and making an appropriate notation on the bonds. It should be kept in mind that the agreement was arrived at by a committee representing only the first mortgage bondholders. This committee could not make any agreement that would wipe out the rights of the holders of the second mortgage bonds without their consent. There is nothing in the record to indicate that such consent was given by the holders of second mortgage bonds.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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
John E. HAYCRAFT et al., Plaintiff s-Appellees, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, KENTUCKY, et al., Defendants-Appellants.
No. 76-2301.
United States Court of Appeals, Sixth Circuit.
Argued June 8, 1977.
Decided Aug. 23, 1977.
John A. Fulton, Will H. Fulton, Woodward, Hobson & Fulton, E. Preston Young, Louisville, Ky, for defendants-appellants.
Thomas L. Hogan, Galen Martin, Darrel T. Owens, John G. O’Mara, Louisville, Ky, for plaintiffs-appellees.
Before PHILLIPS, Chief Judge, and PECK and ENGEL, Circuit Judges.
JOHN W. PECK, Circuit Judge.
This latest aspect of the Louisville school desegregation case commenced in May of 1976, when District Judge Gordon conducted hearings concerning implementation of the July 30, 1975, desegregation plan and order approved by this Court in Cunningham v. Grayson, 541 F.2d 538 (6th Cir. 1976).
As a result of the May 1976 evidentiary hearings, Judge Gordon determined that the pupil population ratio in at least 28 elementary schools did not satisfactorily reflect the racial guidelines set forth in the July 30, 1975, desegregation order. Appellants do not dispute this finding on appeal. Having found that “the elementary school system in Jefferson County has never been in compliance with this Court’s desegregation decision,” and that this failure of compliance rendered the case outside the scope of Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), the district court on August 2, 1976, entered an amended order, which inter alia, altered the pupil assignment methodology of the July 30, 1975 desegregation order by requiring the busing of an additional 900 black pupils. The Board of Education of Jefferson County appeals from this August 2, 1976, amended desegregation order.
On appeal the Board of Education maintains that the district court exceeded its remedial powers in amending the plan without making any determination that the racial imbalance in these 28 elementary schools resulted from any additional segre-gative action on the part of the Board. This is, appellants argue, the precise issue resolved by Pasadena. We do not agree.
In the Pasadena case, the district court entered a desegregation order on January 23, 1970, requiring assignment of students in such a manner that no school within the district would have a majority of minority students (the “no majority” requirement). Only during the 1970-71 school year was the “no majority” requirement met. Thereafter, in 1974, the Board of Education sought to be relieved of the “no majority” requirement and the district court denied its motion. The Supreme Court reversed the decision of the district court, quoting Swann v. Board of Education, 402 U.S. 1, 31-32, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971):
“Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.” Pasadena, supra, 427 U.S. at 436, 96 S.Ct. at 2708. (emphasis added).
We conclude that the district court correctly determined that Pasadena is distinguishable from the instant case. This case is in the pre-compiiance rather than the post-compliance stage of implementation of Pasadena. As the Supreme Court has held “[o]nce a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Board of Education, supra, 402 U.S. at 15, 91 S.Ct. at 1276. We agree with the district court’s conclusion that nothing in Pasadena restricts its remedial powers so as to preclude modification of the student assignment portion of a desegregation plan, which had not, as of the time the modifications were ordered brought about the desegregation of the school system. See United States v. Seminole County School District, 553 F.2d 992 (5th Cir. 1977).
The judgment of the district court is affirmed.
. In this amended order, the district court also approved the report of a Special Committee, appointed May 6, 1976, and in conformity therewith, ordered implementation of procedures for hardship transfers and ordered the school board to keep open five elementary schools scheduled to be closed; and adopted the Board’s recommended voluntary transfer plan.
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_numresp
|
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.
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.
Janet M. HERREMAN et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
No. 72-1055.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 24, 1973.
Decided March 22, 1973.
Jack Aulik, Sun Prairie, Wis., for plaintiffs-appellants.
Harlington Wood, Jr., Morton Hollander, Robert M. Feinson, Dept, of Justice, Washington, D. C., David J. Cannon, U. S. Atty., Milwaukee, Wis., for defendants-appellees.
Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.
SPRECHER, Circuit Judge.
The question is whether the widow of a National Guard officer killed while returning from a Florida fishing trip with the Adjutant General of the State of Wisconsin, as a non-paying passenger on a military aircraft, may sue the United States under the Federal Tort Claims Act.
Jerold F. Herreman was a Captain in the Wisconsin Army National Guard and the Army National Guard of the United States. On January 26, 1969, he joined Major General Ralph Olson, the Adjutant General of the State of Wisconsin, in Key West, Florida. The General and his wife were vacationing in Florida and had invited Captain Herreman to come down from Milwaukee to go fishing with the General. Intending to return home, on January 29, 1969, the Captain appeared at the Key West Naval Air Station, Florida, in military uniform and requested, on a space-available basis, transportation back to Milwaukee on the military aircraft assigned to transport General Olson home. The request was granted. The aircraft crashed on its flight from Key West to Milwaukee, killing General Olson, his wife, and Captain Herreman.
The visit to Key West to fish with the General was a purely social visit. At the time of the crash of the aircraft, Herreman was not on any mission pertaining to the Wisconsin Army National Guard. Neither he nor his unit of assignment was in active federal service. He was not on active duty for training or inactive duty training in his Army National Guard of the United States status, nor was he performing training or duty as a member of the Army National Guard.
Herreman’s widow brought this action pursuant to 28 U.S.C. § 2674 of the Federal Tort Claims Act, asserting that the United States is liable. She also named the Wisconsin Air National Guard as a defendant. After several affidavits were filed by the parties, the district court entered a summary judgment in favor of the United States and dismissed the claim against the Wisconsin Air National Guard. The court concluded at 332 F.Supp. 763, 766 (E.D.Wis.1971):
“[Ejven if a soldier is on leave or off duty, alternatively (1) if the soldier is injured taking advantage of military privileges generally restricted to the military and not generally permitted civilians, or (2) if the soldier is injured while under military jurisdiction, then (whichever way the rule is phrased) he will be barred from suing the Government. In the instant case, Captain Herreman was fatally injured while taking advantage of special travel privileges granted military personnel. While taking advantage of this privilege, it is undisputed that he was under military jurisdiction. The fact that he was not on active duty or that he was pursuing purely pleasurable activities is of no . . . relevance . . .
The outer dimensions of this problem are measured by two Supreme Court cases decided in successive years.
In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), two brothers who were then members of the armed forces of the United States on furlough, driving their own automobile along a highway, collided at an intersection with a United States Army truck. The Court held that their injuries were “not incident to their service” and that their claims were therefore cognizable under the Federal Tort Claims Act. 28 U.S.C. § 2674.
In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), three servicemen while on active duty and not on furlough sustained injury due to the negligence of others in the armed forces. The Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146, 71 S.Ct. at 159.
The issue in this ease is whether Herreman’s activity at the time he was killed in the crash was incident to his service.
At the time of his death Herreman was a member of the Wisconsin Army National Guard with the rank of captain, assigned to the Selective Service Section, Headquarters and Headquarters Detachment at Madison, Wisconsin. In accordance with 10 U.S.C. § 3351(a), he was also a federally recognized captain in the Army National Guard of the United States, a reserve component of the United States Army. 10 U.S.C. § 3077. “The Army consists of . the Regular Army, the Army National Guard of the United States . . .”. 10 U.S.C. § 3062(c)(1). Hence, Herreman at the time of his death was a member of the United States Army. See Layne v. United States, 190 F.Supp. 532 (S.D.Ind.1961), affirmed, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U. S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527 (1962).
“The transportation of members of the Army throughout the United States shall be under the immediate control and supervision of the Secretary of the Army and agents appointed or designated by him.” 10 U.S.C. § 4741. Similarly, the transportation of members of the Air Force is under the control and supervision of the Secretary of the Air Force. 10 U.S.C. § 9741.
The aircraft in which Herreman was killed was military property of the United States but was assigned to the Wisconsin Air National Guard for its use. At the time of the crash, the aircraft had been on a duly authorized flight for the purpose of providing navigational training for Wisconsin Air National Guard personnel on board the aircraft and of transporting Major General Olson from Key West Naval Air Station, Florida, to Milwaukee, Wisconsin.
Pursuant to his power to control and supervise the transportation of “members [and] . . . equipment” of the Air Force (10 U.S.C. § 9741), of which the Air National Guard of the United States is a component part (10 U.S.C. § 8062(d)(1), the Secretary of the Air Force promulgated Air National Guard Regulations No. 76-6 (May 23, 1950), which included paragraph 4b which describes passengers to include as follows:
“Military personnel in appropriate uniform in the categories indicated below, without reimbursement, upon proper identification and when the aircraft is on a duly scheduled training flight, or on a strictly military mission. No flight of an Air National Guard aircraft will be scheduled for the specific purpose of transporting military personnel on leave but such personnel may ride as passengers when the aircraft is on a training flight or a strictly military mission.
-X- * * -X- -X- *
“(2) Military personnel of the National Guard . . . ”
It is not disputed that the aircraft in this case was on a duly authorized and duly scheduled navigational training flight. Herreman was riding in uniform on the aircraft as a non-paying passenger. While on board the aircraft, he was subject to military courtesies and discipline. Most important however, he was subject to the “immediate control and supervision” of both the Secretary of the Army and the Secretary of the Air Force and “agents appointed or designated” by them. He was on board a military training flight engaged in a military mission.
The situation comes very close to that existing in Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745 (1955), where a cadet on leave from the United States Military Academy at West Point was “riding gratuitously in a military plane under military discipline and under the laws and regulations in force at the time.” Id. at 550. In dismissing the claim of the cadet’s parents under the Federal Tort Claims Act, the Court said at 551, 552:
“The Trial Court was undoubtedly correct in holding that a cadet riding under military discipline on an army plane under control of a superior officer has no claim under the Act for injury sustained through whatever cause. This principle would not vary even though the service man were on leave and whether he were on the plane voluntarily or by command. He was in line of duty. Under such circumstances, his parents could not recover for his death.
-X -X- * -X -X *
“ . . . In riding aboard that plane, under these allegations, Herman Archer was either ‘in command’ or ‘under command.’
“The complaint in this case on its face did not state a cause of action or a claim upon which relief could be granted against the United States.”
Here also, Herreman was “in line of duty” and “under command.” Under those circumstances, his activity at the time he was killed was incident to his service. The district court properly rendered judgment for the government under Feres v. United States, supra.
It is significant that if Herreman had sought passage without his uniform and in the capacity of non-military or civilian personnel, it would have been necessary (1) for Major General Olson to execute “a certificate to be attached to the flight clearance certifying” that Herreman was “on National Guard business,” Air National Guard Regulations No. 76-6, par. 4j, and (2) for Herreman to execute a release releasing and discharging “the Government of the United States, and all of its officers and agents, acting officially or otherwise, from any and all claims, demands, actions, or causes of action, on account of my death or on account of any injury to me which may occur by reason of the said flight . . . .” No. 76-6, par. 6.
The judgment is affirmed.
Affirmed.
. As an Army officer, Herreman was also subject to 10 U.S.C. § 4743, which provides :
“Under such conditions as the Secretary of tlie Army may prescribe, officers of the Army may, in the performance of their duties, use means of transportation provided for the Army and its supplies.” A similar statute applies to Air Force officers using transportation provided for the Air Force. 10 U.S.O. § 9743.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_genapel1
|
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 is to determine the nature of the first listed appellant.
TEAMSTERS, LOCAL UNION NO. 688, Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a Labor Organization, Plaintiff-Appellant, v. CROWN CORK & SEAL COMPANY, INC., Defendant-Appellee.
No. 73-1084.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 15, 1973.
Decided Dec. 26, 1973.
Rehearing Denied Jan. 18, 1974.
Earl B. Wilburn, St. Louis, Mo., for appellant.
Edwin D. Akers, Jr., St. Louis, Mo., for appellee.
Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge.
G. THOMAS EISELE, District Judge, Eastern District of Arkansas, sitting by designation.
BRIGHT, Circuit Judge.
Teamsters Local Union No. 688 (the Union), affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, brought this breach of contract action against Crown Cork & Seal Company, Inc., (the Employer) seeking a money judgment representing the difference between actual contributions made by the Employer to an employees’ pension fund after April 1970, and the greater amounts allegedly required by the then-existing collective bargaining agreement between the parties. Federal jurisdiction rests on Section 301(a) of the Labor Management Relations Act, 29 U.S. C. § 185(a) (1970). The district court construed the pertinent pension provision of the contract against the Union and denied it relief. The Union brings this timely appeal. We reverse for reasons stated below.
In the collective bargaining agreement between the parties covering a three-year period of March 1, 1970 to February 28, 1973, the article governing pension contribution read:
Effective MARCH 5th, 1969, the Company agrees to contribute to the Central States, Southeast and Southwest Areas Pension Fund the sum of TEN ($10.00) DOLLARS per week for each employee who has been on the payroll thirty (30) days or more.
The Company thereafter (but for a period not exceeding the termination of this Contract) agrees to contribute to said Central States, Southeast and Southwest Areas Pension Fund such amount or amounts as are or may be in the future from time to time required to be paid by other contributory Employers to said Fund for each employee covered by the Central States Area Local Cartage Agreement. (Emphasis added.)
The appellee-Employer pursuant to this agreement has paid the pension fund ten dollars per week for each qualified production employee covered by the agreement but has refused to make any additional contributions measured by increased pension contributions in the current Central States Area Local Cartage Agreement. This latter agreement was completed in July 1970, and provided that employer parties pay into a pension fund $11 per week effective April 1970, $12 per week effective January 1, 1971, $13 per week effective June 1, 1972, and $14 per week effective January 1, 1973, for each qualified employee.
As explained by the testimony presented at the trial, this Central States Local Cartage Agreement embodies a labor agreement applicable to employers engaged in the local cartage industry in the metropolitan area of St. Louis, Missouri. Appellee is not in the cartage business, and neither it nor appellant-Local No. 688 has ever been a signatory to the labor agreement covering the cartage industry of metropolitan St. Louis.
The appellant-Union contends that the reasonable interpretation of the provision of the labor contract here in issue would compel the Employer to pay, as pension contributions on behalf of its employees, the same amounts contributed to the pension fund by employers who are bound by the Central States Local Cartage Agreement. As previously noted, the appellee-Employer has paid the pension fund ten dollars per week for each qualified employee as required by the first paragraph of the questioned pension provision but contends that the second paragraph only becomes operative during the contract period if and when it hires truck drivers who are protected by the Cartage Agreement.
The trial court determined the questioned second paragraph to be ambiguous in meaning and subject to the interpretation urged by either party to the contract. Applying principles of contract law, the trial court adopted the Employer’s construction of the provision and held that when part of a contract is unclear or open to different constructions, it is construed most strongly against the party who prepared it and at whose urging it was inserted into the contract. See Miravalle Supply Co. v. El Campo Rice Milling Co., 181 F.2d 679, 683 (8th Cir.), cert. denied, 340 U.S. 822, 71 S.Ct. 56, 95 L.Ed. 604 (1950). We disagree with this conclusion and hold that the Union has correctly construed this disputed contract provision.
According to appellee’s argument, since the reading of the questioned terms produces ambiguity of meaning, this court should affirm on the basis of the “clearly erroneous” rule in Fed.R.Civ.P. 52(a). However, Rule 52(a) does not apply to appellate review of a contract issue resting upon the construction of written documents. We must reach an independent judgment as to the meaning of the contract. Dingman v. United States, 429 F.2d 70, 72 (8th Cir. 1970); Arrow Equipment, Inc. v. M-R-S Mfg. Co., 416 F.2d 152, 154 (8th Cir. 1969). See Eddy v. Prudence Bonds Corp., 165 F.2d 157, 163 (2d Cir. 1947), cert. denied, 333 U.S. 845, 68 S. Ct. 664, 92 L.Ed. 1128 (1948). Appellee cites the case of St. Louis Typographical Union No. 8 v. Herald Company, 402 F. 2d 553 (8th Cir. 1968), in support of its Rule 52(a) argument; however, that case is distinguishable on its face because there the existence of pension provisions rested solely upon disputed oral testimony.
As a basic proposition we note that contract principles of state law do not control in the construction of collective bargaining agreements which are the subject of Section 301(a) suits under the L.M.R.A. The Supreme Court in Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957), said:
We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. * * * Federal interpretation of the federal law will govern, not state law. * * * But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy.
Subsequently, the Court in United Steelworkers v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960), elaborated further on this doctrine:
In our role of developing a meaningful body of law to govern the interpretation and enforcement of collective bargaining agreements, we think special heed should be given to the context in which collective bargaining agreements are negotiated and the purpose which they are intended to serve.
Thus, in conformity to this instruction, we need examine with special care the context in which the disputed bargaining agreement was negotiated.
The record discloses that an earlier collective bargaining agreement between appellant and appellee effective for three years from March 1, 1967, contained the following provision relating to pensions:
ARTICLE XXIX — PENSIONS
Effective February 27, 1967, the Company agrees to contribute to the Central States, Southeast and Southwest Areas Pension Fund the sum of eight dollars ($8.00) per week for such employee who has been on the payroll thirty (30) days or more.
Effective March 4, 1968 the Company agrees to contribute to the Central States, Southeast and Southwest Areas Pension Fund the sum of nine dollars ($9.00) per week for each employee who has been on the payroll thirty (30) days or more.
Effective March 5, 1969 the Company agrees to contribute to the Central States, Southeast and Southwest Areas Pension Fund the sum of ten dollars ($10.00) per week for each employee who has been on the payroll thirty (30) days or more.
The Company thereafter (but for a period not exceeding the termination of this contract) agrees to contribute to the said Central States, Southeast and Southwest Areas Pension Fund such amount or amounts as are or may be in the future from time to time required to be paid by other contributory Employers to said Fund for each employee covered by the Central States Area Local Cartage Agreement.
The eight, nine and ten dollar amounts called for in that 1967 contract generally track the amounts required to be paid for employees protected by the Central States Area Local Cartage Agreement in effect for the period of April 1, 1967 to March 31, 1970. The cartage agreement specified contributions of $9 per week for each qualified employee effective April 1, 1968, and $10 per week effective April 1,1969.
In preparing a new 1970 contract to cover appellee’s employees, the business representative of Teamsters Local No. 688 testified that he copied the last two paragraphs from the pension provision (Article XXIX, supra) of the 1967 contract. The Union made no demand for pension increases and the language now in dispute became incorporated into the agreement without discussion by the parties. The Union’s representative testified without contradiction that this last paragraph of the pension provision was included in the 1967 agreement at the request of the Union. Neither in 1967 nor in 1970, did the Union represent any truck drivers under its contract with ap-pellee, Crown Cork & Seal Company, Inc., nor, as already noted, was either appellant or appellee a party to the Ceñ-tral States Area Local Cartage Agreement.
In construing the disputed pension provisions of the 1970 agreement, the Employer argues that some significance should be attached to the fact that the Union also represents appellee’s office employees under a separate contract. In bargaining sessions held in 1970, the Union successfully negotiated an increase in the pensions for these office workers to ten dollars but did not include language in the pension provision similar to that found in the disputed paragraph. At the same time, no special demands were made for an increase in pension contributions for the production employees. The Employer argues that the subsequent developments tend to establish that the parties intended to contract only for the ten dollar pension rate. We reject this argument.
It is apparent from the record that in the negotiations by the production workers in 1970, those provisions of the earlier labor agreement, including the pension provisions which produced no friction between the Employer and the Union, were carried over and incorporated in the new contract. We assume such a practice to be a normal course in negotiating the renewal of labor-management contracts.
Furthermore, following the instruction of Steelworkers, supra, we must look at the intention of the parties as expressed in the 1967 contract and carried over until 1970, and the context which produced the language of the now-disputed pension agreement. Examining the record, therefore, we find that the overall pension provision in the 1967 agreement is in general accord with the maximum pension contributions then stipulated in the Cartage Agreement. The language of the 1967 agreement as modified to reflect only the last applicable (1969) date became the language of the 1970 agreement. The effect of this language served to ensure that production employees of Crown Cork & Seal represented by appellant-Local 688 would receive the same maximum pension benefits as other Teamster members of unions participating in the Cartage Agreement. Thus, when the Teamsters and the local cartage industry finally concluded an agreement in July of 1970, increasing employee pensions in the cartage industry as of the preceding April, the appellee, Crown Cork & Seal, under its own labor agreement became obligated to make pension contributions equivalent to pension contributions called for in the latest local Cartage Agreement.
We think that the construction of the disputed pension provision of the contract urged by the Union gives it a present vitality applicable to current employees. Conversely, the Employer’s argument seems most tenuous — that language in the disputed paragraph stipulating that contributions which are to be paid for each employee covered by the Central States Area Local Cartage Agreements should be taken to refer to future employees who belong to a union which is a party to the Local Cartage Agreement. Such a construction gives the disputed contract provision applicability to a most unlikely contingency. Recognizing the generally hard bargaining by both sides to reach agreement in labor-management relations, we think it unrealistic to conclude that the parties negotiated any pension agreement in this case to cover nonexistent employees.
We believe the teachings of Textile Workers, supra, and Steelworkers, supra, require federal courts to place a practical and realistic construction upon labor agreements, giving due consideration to the purpose which they are intended to serve. This contract needs to be construed as applying to existing employees, not those to be hired in the future.
Accordingly, we reverse and remand this case to the district court and direct the entry of judgment in favor of the Union for the deficiency in pension contributions. According to the record, that sum amounts to $30,041 from April 1970 through April 1972.
Reversed and remanded.
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_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
UNITED PRODUCING COMPANY, Inc., a corporation, Appellant, v. PANHANDLE EASTERN PIPE LINE COMPANY, a corporation, Appellee.
No. 4703.
United States Court of Appeals Tenth Circuit.
Sept. 8, 1954.
William J. Holloway, Jr., and Y. P. Crowe, Oklahoma City, Okl. (Embry, Johnson, Crowe, Tolbert & B oxley, Oklahoma City, Okl., H. W. Stubbs, and Stubbs & Wesley, Ulysses, Kan., on the brief), for appellant.
Mark H. Adams, Wichita, Kan., and William I. Robinson, Tulsa, Okl. (Edward H. Lange, Kansas City, Mo., and Adams, Jones, Robinson & Manka, Wichita, Kan., on the brief), for appellee.
Before BRATTON, MURRAH and PICKETT, Circuit Judges.
PER CURIAM.
The case of Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P.2d 773, was decided after entry of the judgment herein. On the authority of that case, the judgment is vacated and the cause is remanded.
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_habeas
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
BOWERS v. BOWERS.
No. 8686.
United States Court of Appeals District of Columbia.
Argued May 12, 1944.
Decided June 26, 1944.
Mr. Ethelbert B. Frey, of Washington, D. C., for appellant.
Mr. Ben Lindas, of Washington, D.C., for appellee.
Before GRONER, Chief Justice and EDGERTON and ARNOLD, Associate Justices.
EDGERTON, Associate Justice.
This is an appeal by the defendant wife from a judgment for the plaintiff husband in a suit for divorce. The complaint alleged in substance, and the District Court found, “that on July 22d, 1937, plaintiff and defendant mutually agreed to live separate and apart and that in accordance with the said agreement the said parties have lived separate and apart since the said date to, the date of this judgment and that said parties have not lived together as husband and wife since the said date of July 22, 1937.” The court ruled that the plaintiff was entitled to a divorce on the ground of separation for five years by mutual consent.
The District of Columbia Code 1940, § 16 — 403, authorizes divorce for “voluntary separation from bed and board for five consecutive years without cohabitation.” The issue turns upon the continuing character of the separation, not its origin; but its origin is evidence of its continuing character. We have held that if both parties voluntarily and continuously acquiesce in separation during five years, the statute authorizes divorce even though the separation was not originally voluntary on both sides. Parks v. Parks, 73 App. D.C. 93, 116 F.2d 556. It is equally true that if either party does not voluntarily and continuously acquiesce in separation during five years, the statute does not authorize divorce even though the separation was originally voluntary on both sides. But one who contends that a voluntary separation ceased to be voluntary should have the burden of proving his contention. The separation in the present case was originally voluntary on both sides. Although the wife after-wards asked her husband to return to her, the court was “not convinced” that her requests were “made in good faith.” It follows that the judgment should be affirmed.
Affirmed.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_usc1
|
18
|
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.
UNITED STATES of America, Appellee, v. Daniel FATICO, Appellant.
Nos. 1092-93, Dockets 79-1100, 79-2042.
United States Court of Appeals, Second Circuit.
Argued June 5, 1979.
Decided Aug. 13, 1979.
Michael Rosen, Saxe, Bacon & Bolán, P. C., New York City (Roy M. Cohn and Howard F. Husum, New York City, of counsel), for appellant.
Paul F. Corcoran, Sp. Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. New York, and Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
Before OAKES and MESKILL, Circuit Judges, and STEWART, District Judge.
Of the Southern District of New York, sitting by designation.
OAKES, Circuit Judge:
This is the second appeal in connection with appellant’s sentencing. The court imposed the sentence, four years’ imprisonment to be served consecutively to another sentence imposed for a different crime, appeal as to which is pending, after a plea of guilty in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge. The plea was to a conspiracy charge under 18 U.S.C. § 371 as a result of the hijacking of three trucks and their contents from John F. Kennedy Airport in violation of 18 U.S.C. § 659. Both appeals have arisen out of challenges by appellant’s counsel to statements or suggestions in the presentence reports that appellant has strong ties to organized crime and is a “made” member of the Gambino organized crime family.
THE FACTS
Precipitating the first appeal, which was by the Government, was Judge Weinstein’s holding that, although membership in and ties to organized crime are material facts to be considered in sentencing, he would exclude as hearsay involving Due Process and Confrontation Clause limitations any evidence presented through an agent of the Federal Bureau of Investigation (FBI) from a reliable but confidential informer who was allegedly a member of the same New York organized crime “family.” United States v. Fatico, 441 F.Supp. 1285 (E.D.N.Y. 1977). This court agreed that “[t]he Due Process Clause is plainly implicated at sentencing,” United States v. Fatico, 579 F.2d 707, 711 (2d Cir. 1978) (Fatico I), but noted generally that it did not necessarily follow that Due Process required all the procedural safeguards and strict evidentiary limitations of the criminal trial itself. And we held specifically that Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), permitting reliance on hearsay information even though the defendant could not confront or cross-examine the witnesses who supplied the information, was still viable despite Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion), which held that Due Process guaranteed against the imposition of the death penalty on the basis of information not disclosed at all. Thus we stated that
Due Process does not prevent use in sentencing of out-of-court declarations by an unidentified informant where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means. Thus, the trial court erred in excluding the agent’s testimony about the informer’s declaration once the Government represented that it would produce the specified corroboration.
579 F.2d at 713 (footnotes omitted). Accordingly, we reversed the district court’s exclusion of the evidence and remanded the cause for sentencing proceedings, but at the same time specifically stated that “the weight given to the informer’s declarations and the assessment of credibility are matters for the sentencing court.” Id. at 713 n.14.
On remand, the district court held an evidentiary sentencing hearing at which the Government called ten witnesses, seven of whom were law enforcement agents (four with the FBI). The law enforcement officers’ testimony indicated that seventeen different informers had told them that appellant and his brother were long-time, active members of the Gambino family. The Gambino family is one of the five active organized crime families operating in the greater New York City metropolitan area. There was also information to the effect that appellant was a “made” member, that is, one who has officially been initiated as a full-fledged member of the family, not born into it but not merely associated with it. Largely on the strength of this testimony, which the court found “highly probative,” United States v. Fatico, 458 F.Supp. 388, 412 (E.D.N.Y.1978), the court, after numerous holdings of law, said: “While we must remain dubious of any conclusions based upon hearsay, the Government’s proof here meets the rigorous burden of ‘clear, unequivocal and convincing evidence.’ The probability is at least 80% that defendant is an active member of an organized crime family.” Id.
The court then sentenced appellant to four years’ imprisonment out of a maximum of five, 18 U.S.C. § 371, to run consecutive to a three-year sentence imposed in the Eastern District on a federal gambling charge, 78 Cr. 19-1 (E.D.N.Y.), a conviction now on appeal. Doing so, however, the court stated that “[w]ere it not for the organized crime issue, defendant would have been sentenced in the hijacking case to no more than a three year term, concurrent with the gambling sentence.” 458 F.Supp. at 412. The court went to some length to point out how the organized crime characterization was very likely to have a number of serious ramifications for appellant in prison, including designation as a “special offender” under Correction Authority and Parole Board decisions, with resultant confinement in a high security facility and ineligibility for certain rehabilitative programs, early parole, and other privileges. See generally Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975).
We affirm the decision below imposing sentence by no means, however, endorsing all the rules of the district court.
DISCUSSION
Appellant raises five points on appeal:
1. The court’s admission of evidence based on information derived from undisclosed informers coupled with the Government’s refusal to provide counsel with “3500” material, 18 U.S.C. § 3500, denied appellant due process.
2. Under Fatico I, supra, there was insufficient evidence to corroborate the information that the undisclosed informers supplied.
3. Under the trial court’s “clear, unequivocal and convincing evidence” standard, there was insufficient evidence that appellant was a “made” member or an im-' portant figure in the upper echelons of the Gambino family.
4. The proper burden of proof was upon the Government and in any event was “beyond a reasonable doubt.”
5. Appellant was entitled to Jencks Act or “3500” material, viz., prior statements of the law enforcement agents testifying at the sentencing hearing.
The first point has been answered adversely to appellant in Fatico I, supra, and by the line of cases in note 8 supra.
On the second point there was more than ample evidence to corroborate under Fatico I, supra, 579 F.2d at 713, the information that the undisclosed informers supplied. We suggested in Fatico I that sufficient reliability was apparent from corroboration by testimony of the two coconspirators, the nature of the crime itself (armed hijacking of valuable truck loads requiring sophisticated fencing through quasi-legitimate and criminal business groups, of which Judge Weinstein had earlier taken judicial notice, 441 F.Supp. at 1288), and in-court testimony of those who observed appellant and his brother associating with members of the Gambino family. Although Judge Weinstein rejected the testimony of the coconspirators as essentially unreliable, 458 F.Supp. at 412, and did not refer at all to the nature of the crime itself, he found “highly probative” the testimony of “seven different government agents, four of them from the FBI, relying on a total of seventeen independent informants.” As he put it so well, “Even if one or several of these experienced agents miscalculated the reliability of an informant, the large number of agents and informants . greatly reduces the margin for error.” Id. Appellant argues that quantity may not make up for quality of evidence. But under Williams v. New York, supra, as well as Fatico I, hearsay evidence is admissible if reliable. And although it is also possible that ten persons who have heard the same rumor may each be wrong, here we recognize that there are other independent facts, including personal observations and the nature of the crime itself, that go to corroborate the informers’ statements.
The third argument is somewhat more pointed. Appellant argues that the evidence did not show that he was a “made” member of the Gambino family. According to the testimony appellant was one of some 1,100 “made” “soldiers” or “buttons” in the Gambino family. One of the informers, who a retired FBI agent testified was himself a “reliable, long active and highly placed member of the Gambino family,” 458 F.Supp. at 392, told the agent on Easter Sunday 1978 that the Fatico brothers had been such members for over twenty years. There was much other testimony to the same effect as well as testimony that the Fatico brothers, operating with a crew of associates out of the Bergen Hunt and Fish Club in Ozone Park, New York, ran gambling, loan sharking, truck hijacking, and other illegal enterprises which are frequently a hallmark of organized crime.
On the fourth point, we do not agree that the burden of proof on the Government should be “beyond a reasonable doubt.” Such a standard would turn sentencing hearings into second trials. As Judge Friendly said of sentencing hearings in Hollis v. Smith, 571 F.2d 685, 693 (2d Cir. 1978), although expressly noting Judge Weinstein’s opinion leading to Fatico I, 441 F.Supp. 1285, “[t]here is no authority binding upon us which holds that the procedure in proceedings relating solely to punishment, even when an additional fact has to be established, must conform precisely to those in proceedings relating to guilt, and we see no basis in principle for so holding.” We believe that Fatico I, supra, is a sufficient answer to appellant’s fourth point.
The fifth point on this appeal in respect to the Jencks Act is in reality an attempt to have us overturn United States v. Sebastian, 497 F.2d 1267 (2d Cir. 1974), United States v. Percevault, 490 F.2d 126 (2d Cir. 1974), and United States v. Covello, 410 F.2d 536 (2d Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969), something that we cannot do absent treatment of the issue en banc. Compare United States v. Murphy, 569 F.2d 771, 774 n.11 (3d Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1588, 55 L.Ed.2d 807 (1978).
Judgment affirmed.
. This holding was based on 18 U.S.C. § 3577, which provides:
“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” Appellant did not challenge the materiality of information as to his links to organized crime on either the former appeal or this one.
. We distinguished Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion), from Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), on the same ground as the Supreme Court itself noted in Gardner: the sentencing judge in Williams had disclosed the information, and the defendant had not challenged its accuracy, while the judge in Gardner had not even disclosed the information, and so the defendant could not challenge its accuracy. United States v. Fatico, 579 F.2d 707, 711-12 n.10 (2d Cir. 1978) (Fatico I). We also noted that to the extent, if any, that Gardner did limit Williams, the limitation applied only to capital cases, citing Gardner, 430 U.S. at 356, 359, 360, 363-64, 97 S.Ct. 1197, 51 L.Ed.2d 393, Fatico I, supra, 579 F.2d at 711-12 n.10.
We also relied upon various cases in the circuit courts sustaining the admission of hearsay where the defendant did not dispute the information, United States v. Bass, 175 U.S. App.D.C. 282, 292-293, 535 F.2d 110, 120-21 (1976), or other evidence “sufficiently corroborated” the hearsay information, United States v. Needles, 472 F.2d 652, 659 (2d Cir. 1973). See also United States v. Weston, 448 F.2d 626, 634 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972). Fatico I, supra, 579 F.2d at 712-13.
. This court did not express any views on the sentence to be imposed but did state that it did “not understand” the trial judge’s statement that at stake was the difference between freedom and up to five years in prison. We believed that the proffered testimony on organized crime ties did not appear to alter significantly “the picture already on the record of the type of crime involved, the role of defendants as revealed at the trial and their prior conduct.” Fatico I, supra, 579 F.2d at 714 n.17.
. There was also testimony by one law enforcement officer that on more than one occasion he observed appellant with known members of organized crime. Two unindicted coconspirators, with extensive criminal records and under the Government’s witness protection program, also testified as to the Fatico brothers’ links to the Gambino family. The trial judge largely disregarded this latter testimony, as he did the testimony that the brothers attended a closed wake for a Gambino family member and evidence of appellant’s prior arrests on a variety of other charges, United States v. Fatico, 458 F.Supp. 388, 412 (E.D.N.Y.1978), none of which we fault.
. The holdings included:
(1) Sentencing is a critical stage of the criminal process. 458 F.Supp. at 396.
(2) The purpose of the 1975 amendments to Fed.R.Crim.P. 32(c)(3)(A) (mandatory disclosure to defendant or his counsel of presentence reports) reflects the importance of reliable information as a basis for proper sentencing. 458 F.Supp. at 396-97.
(3) Due process does apply to sentencing, and the reliability of factual information is important to sentencing determinations. Id. at 397-98.
(4) Defendants lack protection because (a) Fatico I, supra, held that they cannot confront informers and (b) a line of cases in the Second Circuit, see note 8 infra, has held that defendants cannot obtain under 18 U.S.C. § 3500 prior statements of the law enforcement officials. Id. at 399-400.
(5) Defendants have an important liberty interest at sentencing, id. at 400, especially if they are treated as “special offenders” in the prison system, see text at notes 6-8 infra. Id. at 401-02.
(6) The burden of proof in these proceedings could run a continuum from a “preponderance” of the evidence, to “clear and convincing” evidence, to “clear, unequivocal and convincing evidence,” to “proof beyond a reasonable doubt,” id. at 402-05, all of which may be numerically quantified in terms of probabilities.
(7) Although the provisions in the Organized Crime Control Act of 1970 for sentencing “dangerous special offenders,” note 6 infra, require proof of status only by a preponderance of the evidence, 458 F.Supp. at 406-07, where, as here, a higher sentence is based on proof of a fact not established in a criminal trial, proof should be by “clear, unequivocal and convincing evidence,” which on a quantifiable scale of probability is “above 80%,” id. at 408-12.
. Distinguish a “dangerous special offender” under 18 U.S.C. § 3575(b), see United States v. Bowdach, 561 F.2d 1160, 1171 (5th Cir. 1977). The dangerous special offender may be subject to 25 years’ imprisonment above and beyond his ordinary sentence.
. The district court pointed out that the “parole guidelines” for the gambling conviction were 12 to 16 months, 458 F.Supp. at 413, although it did not mention what they would have been for concurrent hijacking and gambling convictions.
. The court also expressed some dissatisfaction with the decision in Fatico I, supra, and the line of decisions in this court holding that the Jencks Act, 18 U.S.C. § 3500, applies only at trial, e. g., United States v. Sebastian, 497 F.2d 1267 (2d Cir. 1974); United States v. Percevault, 490 F.2d 126 (2d Cir. 1974); United States v. Covello, 410 F.2d 536 (2d Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969), as not in compliance with the “high standards of due process expected from this country’s courts.” 458 F.Supp. at 412. See generally id. at 399-400.
. We note the Government’s request, even though it did not file a cross-appeal, that we reject not only the burden of proof standard that the district judge utilized but also the entire concept of a hearing, which apparently is now called in the criminal bar a “Fatico hearing,” in sentencing matters altogether. We decline as unnecessary to this decision to adopt any standard of proof or reject any standard except "proof beyond a reasonable doubt." And although we do not believe that a sentencing hearing will be necessary every time a defendant disputes facts or statements in the presentence report, we certainly would not hold it an abuse of discretion on the part of a district judge to hold such a hearing where there is reason to question the reliability of material facts having in the judge’s view direct bearing on the sentence to be imposed, especially where those facts are essentially hearsay. Indeed, the statute permitting appeal from the suppression of evidence at a sentencing hearing, 18 U.S.C. § 3731, on which the Government relied in appealing in Fatico I, supra, recognizes that such a hearing may be required in some cases. The thrust of United States v. Bass, 175 U.S.App.D.C. 282, 292-293, 535 F.2d 110, 120-21 (1976), United States v. Needles, 472 F.2d 652, 659 (2d Cir. 1973) and United States v. Weston, 448 F.2d 626, 634 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972), as well as of Hollis v. Smith, 571 F.2d 685, 695-96 (2d Cir. 1978), is to the same effect. The Government suggests that all that these cases—and Fatico I—mean is that the Government has the opportunity at such a hearing to “amplify” its information furnished, and not that the defendant must be given an opportunity to test that information by cross-examination. We cannot accept any such narrow view as a per se rule for the conduct of these hearings; we would have the same trouble with the proposed rule as Judge Weinstein had with our decision in Fatico I, supra. See note 8 supra.
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_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Eugene DiFRANCESCO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Eugene DiFRANCESCO, Defendant-Appellee.
Nos. 231, 908 and 1094, Dockets 78-1250, 78-1369 and 78-1371.
United States Court of Appeals, Second Circuit.
Argued April 20, 1979.
Decided Aug. 6, 1979.
Harold J. Boreanaz, Buffalo, N.Y. (Bo-reanaz, NeMoyer & Baker, Buffalo, N.Y.), for defendant-appellant, defendant-appellee DiFrancesco.
Victor D. Stone, Atty., Dept, of Justice, Washington, D.C. (Richard J. Arcara, U.S. Atty., for the Western District of New York, Jerome M. Feit, Atty., Dept, of Justice, Washington, D.C., of counsel), for plaintiff-appellee, plaintiff-appellant United States.
Before SMITH and MESKILL, Circuit Judges, and HAIGHT, District Judge.
Honorable Charles S. Haight, Jr., United States District Judge for the Southern District of New York, sitting by designation.
J. JOSEPH SMITH, Circuit Judge:
These are appeals by a defendant from judgments of conviction entered after two separate jury trials in the United States District Court for the Western District of New York, and by the government from a sentence imposed under the “dangerous special offender” provisions of 18 U.S.C. § 3575. In the first trial, Harold P. Burke, Judge, presiding, the appellant, Eugene DiFrancesco, was convicted of conspiring to participate in and conduct the affairs of an enterprise through a pattern of racketeering activity, which included multiple acts of arson and use of the mails to defraud insurance companies, in violation of 18 U.S.C. § 1962(c) and (d). In the second trial, George C. Pratt, Judge, presiding by designation, DiFrancesco was convicted on three counts which alleged that he willfully caused damage in excess of $100 to federal property, 18 U.S.C. § 1361, unlawfully stored explosive materials, 18 U.S.C. § 842(j), and conspired to commit these acts, 18 U.S.C. § 371. We affirm the convictions and dismiss the government’s appeal.
On July 24, 1975, DiFrancesco, together with seven co-defendants, was indicted on charges arising out of a series of bombings that occurred in the Rochester area on Columbus Day in 1970. A second indictment, filed on April 7, 1976, named DiFrancesco and seven others, two of whom were also defendants in the bombing indictment, as defendants in two counts of racketeering involving an “arson-for-hire” ring operating in the Rochester area. Since this second indictment was the first to come to trial, we shall begin by discussing DiFrancesco’s appeal from the resulting conviction on the racketeering charges.
RACKETEERING
DiFrancesco and five of the seven co-defendants in the racketeering indictment were tried jointly, in September and October of 1977. Of the two remaining defendants, Joseph LaNovara pleaded guilty before trial and testified as a witness for the government, while Frank Valenti, the alleged leader of the conspiracy, was severed upon the government’s motion because he was ill.
The government presented evidence by which it sought to prove that an arson-for-hire team, which operated as part of a larger organization engaged in illicit activities in the Rochester area, had been responsible for at least eight fires that occurred there between 1970 and 1973. The arson ring allegedly agreed with the' property owners to destroy their buildings in return for a share of the insurance proceeds. The government charged that insurance companies had been defrauded of about $480,000 as a result of the eight fires. The jury acquitted four of the six defendants, but convicted DiFrancesco and Vincent Rallo on both counts. DiFrancesco’s appeal alleges several errors in the district court.
The most substantial issue raised by DiFrancesco is whether certain statements made by government witnesses to the FBI should have been turned over to the defendants under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Shortly before this trial began, it was disclosed that allegations of wrongdoing had been lodged against some members of the Monroe County Sheriff’s Office. These allegations arose in connection with the Sheriff’s Office’s investigation of a number of crimes in which the defendants in this case allegedly had been involved, including a murder for which DiFrancesco had been convicted in state court. The FBI, as part of a federal civil rights investigation of the Sheriff’s Office’s activities, conducted a number of interviews and compiled interview reports. The subject matter of some of these interviews included alleged instances of perjury by witnesses in state court proceedings. Some of these witnesses were expected to be called by the United States to testify in the case against DiFrancesco and his co-defendants.
When this matter arose, Judge Burke granted a continuance for one week during which the government represented that it would seek to learn more about the allegations and would then “turn over all materials that is [sic] favorable to the defense that result from the investigation.” The government reviewed approximately thirty to thirty-five FBI reports and determined that only one was Brady material. The government then submitted the reports to the trial judge to allow him to decide whether he thought any of the remaining material fell within Brady. The judge picked out about fifteen other reports which he ruled were Brady material, but the government refused to turn over these additional reports to the defendants. It argued that exposure of the reports could endanger the ongoing civil rights investigation. Thus, the government stated that it was “willing to stand or fall on that decision [that the reports were not Brady material] made by itself.” The court denied a motion that it order the government to turn over the reports. Instead, those reports which the court believed were Brady material were sealed as Court Exhibit A, and those which the court and government agreed were not within Brady were sealed as Court Exhibit B. At some later time, the government gave defense counsel the reports of interviews of LaNovara and of Angelo Monachino, an unindicted eo-con-spirator, who was to testify for the government. Both of these reports were part of Court Exhibit A, as was a third report which the government eventually turned over as Jencks Act material.
Our examination of the court exhibits convinces us that the reports included no Brady material. None of the reports exculpated DiFrancesco, nor did any demonstrate that the government’s case included perjured testimony. Furthermore, nothing in the reports that the government refused to turn over constituted “material evidence that would impeach a Government witness whose ‘reliability . . . may well [have been] determinative of guilt or innocence.’ ” Ostrer v. United States, 577 F.2d 782, 785 (2d Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1018, 59 L.Ed.2d 73 (1979), quoting Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). One report (Part A of Court Exhibit A) contains two comments attributed to Monachino. Neither of these comments, however, could have been used to impeach Monachino in any way that might have affected the outcome of the trial, which is the standard by which we measure the materiality of undisclosed information for which the defendant makes a specific request. United States v. Agurs, 427 U.S. 97, 104-06, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Ostrer, supra, 577 F.2d at 786. In short, the FBI reports would have added nothing to the vigorous attacks which DiFrancesco and his co-defendants made upon the credibility of a number of the government’s witnesses through use of the substantial public information relating to the investigation.
DiFrancesco also raised several arguments involving evidentiary questions and portions of the court’s instructions to the jury. The first concerns the introduction into evidence of a state court indictment that charged DiFrancesco and others with an act of arson, a fire at Select Tire Company, that also constituted part of a specific act of racketeering alleged in the federal indictment. The government offered the indictment and had a portion of it read to the jury as part of its rebuttal case, for the stated purpose of making the jury aware of the final disposition of the state court case against one of the persons named in the state indictment.
It is difficult to perceive how the indictment was relevant for the purpose stated by the government. In fact, its relevance and materiality to any issue in the case was, at best, minimal. Counsel for the various defendants, including DiFrancesco, opened up the subject of the state court proceedings in their cross-examination of government witnesses. Introduction of the indictment, however, was not, as the government now contends, necessary to clarify the “meaning” of the outcome of the state trial. But admission of the indictment, even if erroneous, did not prejudice DiFrancesco. The jury already knew, from the defendants’ cross-examination of government witnesses, that the state grand jury had received testimony implicating DiFrancesco in the Select Tire fire, that some persons had been tried in state court in connection with that fire, that testimony alleging DiFran-cesco’s participation had been offered at the state court trial, and that DiFrancesco had been named as a co-conspirator in yet another federal indictment alleging mail fraud arising from a separate act of arson. Under these circumstances, admission of the indictment, even if erroneous, was harmless.
DiFrancesco also disputes the admissibility of certain testimony by LaNovara and Monachino, who described the initiation ritual followed by the organization of which the arson-for-hire ring was a part. Admission of this testimony was not erroneous. The evidence was probative of the existence of an “enterprise,” the affairs of which were conducted through a pattern of racketeering activity, which was a matter on which the court correctly charged that the government had the burden of proof. The evidence was sufficiently probative to outweigh any possible prejudice.
DiFrancesco next contends that the testimony that LaNovara and Monachino were participants in the Federal Witness Protection Program, as authorized by the Organized Crime Control Act of 1970, P.L. No. 91-452, Title V, 84 Stat. 933, should not have been allowed. Since a defendant often will seek to impeach a participating witness by showing that he has received significant benefits while in the program, the government may desire to bring out the witness’ participation during direct examination in order to avoid an inference that the government was attempting to hide the witness’ possible bias. Although disclosure of such participation “must be handled delicately,” United States v. Partin, 552 F.2d 621, 644-45 (5th Cir.), cert. denied, 434 U.S. 903, 96 S.Ct. 1493, 47 L.Ed.2d 753 (1977), so as to minimize the possibility that the jury will infer that the defendant was the source of danger to the witness, such testimony is permissible so long as the prosecutor does not attempt to exploit it. No exploitation occurred here, and the defendants cross-examined the witnesses at length to develop the full extent of the benefits received by them. Thus there was no error in allowing the testimony. Nor was the court’s instruction to the jury on this subject erroneous or insufficient. The instruction did not suggest, as DiFrancesco argues, that the Attorney General was vouching for the credibility of the witnesses. Instead, it simply explained the purpose of the program and dispelled any implication that the benefits received by LaNovara and Monachino were bestowed improperly. No additional instruction was necessary. Id.
Lastly, DiFrancesco argues that the court removed an element of the crime from the jury’s consideration by instructing that, if the jury believed the evidence that about $480,000 in claims was paid by insurance companies in New York and other states as a result of the arsons and mail fraud, then the enterprise did affect interstate commerce as required by 18 U.S.C. § 1962(c). This instruction was proper. The court left to the jury the question of fact, whether the claims had been paid as a result of arson engaged in by the defendahts. The trial judge correctly determined, however, that if the defendants’ alleged actions were proven, the effect of those actions on interstate commerce was a question of law. Cf. United States v. Ricciardi, 357 F.2d 91, 94 (2d Cir.), cert. denied, 384 U.S. 942, 86 S.Ct. 1464, 16 L.Ed.2d 540 (1966) (whether activities constitute an “industry affecting commerce” under 29 U.S.C. § 186 is a question of law); United States v. Varlack, 225 F.2d 665, 670-72 (2d Cir. 1955) (judge instructed that, if jury believed testimony of government witnesses, defendant’s acts affected commerce as defined in Hobbs Act, 18 U.S.C. § 1951).
THE COLUMBUS DAY BOMBINGS
DiFrancesco’s attack on his conviction arising from the bombing and explosives charges focuses on the delay between his indictment and the commencement of trial. He contends that the indictment should have been dismissed because this delay violated the Speedy Trial Act, 18 U.S.C. §§ 3161-74 (“the Act”), the Western District’s Transitional Plan for Achieving the Prompt Disposition of Criminal Cases (“the Plan”), and the sixth amendment’s guarantee of a speedy trial.
DiFrancesco was indicted on July 24, 1975 and arraigned on September 8, 1975. The relevant provisions of the Act, 18 U.S.C. §§ 3161(g) and 3163(b)(2), and of the Plan, § 5(a)(1), did not take effect until July 1, 1976. They require that trial of a defendant arraigned before the effective date shall commence within 180 days of that date. Both the Act and the Plan (§ 10(a)) provide, however, for the exclusion of certain periods of delay set forth in 18 U.S.C. § 3161(h) in computing the 180-day period. DiFrancesco contends that the non-excludable delay in this case amounted to 309 days. The government, which conceded in the district court that the 180-day period had expired, now argues that the non-excludable delay totaled either 283, 273, 177 or 145 days, or perhaps no time at all. We need not choose, however, from among these various calculations, because 18 U.S.C. § 3163(c) delays the effective date of the sanctions provided in § 3162 for violations of the Act until July 1, 1979, United States v. New Buffalo Amusement Corp., 600 F.2d 368 at 376-377 (2d Cir. 1979); United States v. Carini, 562 F.2d 144, 148 (2d Cir. 1977), and § 11(e) of the Plan provides that failure to comply with its provisions shall not require dismissal. New Buffalo Amusement Corp., supra, at 376 n.13.
Although the district court retains discretionary power under Rule 48(b) of the Federal Rules of Criminal Procedure to dismiss an indictment because of excessive delay, United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977), DiFrancesco did not invoke that discretion and thus cannot complain of the court’s failure to exercise it. New Buffalo Amusement Corp., supra, at 376 n.13.
We turn therefore to DiFrancesco’s claim that the pretrial delay violated his sixth amendment right to a speedy trial. We shall assume for this purpose that the delay exceeded that allowed under the Act and the Plan, since such a violation may be considered in assessing the merit of a constitutional speedy trial claim. Id. at 2758; Carini, supra, 562 F.2d at 148, 151-52. Nonetheless, we agree with the district judge’s thorough and well-reasoned opinion in which he concluded that DiFrancesco’s claim lacks merit. United States v. DiFrancesco, Cr. 75-165 (W.D.N.Y. April 3, 1978).
The controlling authority is of course Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the Court enunciated four factors to be considered in evaluating a claim of a denial of the right to a speedy trial. These factors are (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the existence of prejudice to the defendant from the delay. Id. at 530, 92 S.Ct. 2182. Other relevant circumstances also may be considered in conducting a. “difficult and sensitive balancing process,” id. at 533, 92 S.Ct. 2182, “in which the conduct of both the prosecution, and the defendant are weighed.” Id. at 530, 92 S.Ct. 2182, 2192.
The delay between indictment and trial in this case was about 30 months. The government concedes that this is sufficient to “trigger” a further investigation of the other factors. See id. at 530-31, 92 S.Ct. 2182; Carini, supra, 562 F.2d at 148 — 49. The reasons for the delay were numerous, including trials of DiFrancesco on state charges and the federal racketeering charges, illness of his attorney and of Judge Burke, to whom the case originally was assigned, the participation of DiFrancesco’s attorney in a trial on behalf of another client (during which time Judge Burke denied the government’s request to remove the attorney from this case), and the pend-ency of motions by the defendants and the government. Although the government bears the responsibility for some of the delay, including that caused by “institutional factors” such as overcrowding of the district court’s docket, Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182, there is no suggestion in the record of any “deliberate attempt [by the government] to delay the trial in order to hamper the defense,” id., and it is apparent that DiFrancesco was responsible for a substantial portion of the delay. Moreover, the government repeatedly moved to set a trial date, a fact which distinguishes this case from United States v. Vispi, 545 F.2d 328, 334 (2d Cir. 1976). DiFrancesco, on the other hand, did not assert his speedy trial claim until the eve of trial.
The final factor, prejudice to the defendant, also fails to support DiFrancesco’s claim. He argues that the death of a potential witness, Samuel DiGaetano, caused substantial prejudice which can be attributed to the delay. DiGaetano, attorney for severed co-defendant Frank Valenti, allegedly would have testified, in direct contradiction of a government witness, that Valenti was in Pittsburgh on the day of and the day immediately preceding the bombings.
We find no error in the district court’s conclusion that the evidence presented to it failed to support the contention that DiGae-tano would have given such testimony. Moreover, although DiGaetano’s death apparently was caused by a heart condition from which he had suffered for a substantial period of time, DiFrancesco made no effort to preserve by deposition the testimony that purportedly would have been given. In addition, as the district court noted, DiFrancesco’s motion and supporting materials contained no affidavit from Valenti concerning his whereabouts on October 11 and 12. Although Valenti was too ill to undergo trial at the same time as his co-defendants, there is no indication that his illness prevented him from asserting, by affidavit or any other means, his presence in Pittsburgh on the days in question.
Even if we assume then that the Plan and Act were violated and weigh such violation in our analysis of DiFrancesco’s claim, the balance tips strongly against his contention that his right to a speedy trial was violated.
DiFrancesco next argues that the court should have severed or declared a-mistrial as to Count II of the indictment because of an error that was not discovered until the conclusion of the presentation of the government’s case. At that time it was learned that the language contained in Count II of the copies of the indictment possessed by counsel for both the government and the defendants differed from that in the copy filed with the court. The prosecutor mistakenly had distributed copies of an earlier draft of the indictment, rather than the final, filed version. The earlier draft, which all counsel had assumed to be the actual indictment, named Valenti as the person who caused the damage to the old Federal Building and named the other defendants, including DiFrancesco, as aiders and abettors. The actual indictment named all the defendants as principals and, in addition, merely cited 18 U.S.C. § 2, the aiding and abetting statute.
DiFrancesco complains that as a result of this confusion, for which he bore no fault, he was convicted under a theory at substantial variance from that which he had a right to believe was the basis of the case. He argues that the assumed indictment was more narrowly drawn than the actual, and that therefore, the substitution of the actual version was forbidden by Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), which holds that a broadening of the charges may only be accomplished by the grand jury itself.
The decision in Stirone, however, is not relevant to the circumstances presented here. The Court relied in Stirone on the violation of “the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Id. at 217, 80 S.Ct. at 273. There is no question that the count on which DiFrancesco ultimately was tried and convicted actually was returned by the grand jury, thus protecting his right to have his jeopardy limited to “offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.” Id. at 218, 80 S.Ct. at 273. DiFrancesco’s real claim is that he was not afforded notice of the charge on which he was convicted. As the Supreme Court explained in Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935), one of the reasons “that allegations and proof must correspond is the obvious [requirement] that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial . . ..” The protection of this right to notice of the charges requires a determination “whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Id.; United States v. Knuckles, 581 F.2d 305, 311 (2d Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978); see United States v. Garguilo, 554 F.2d 59, 63 (2d Cir. 1977).
No such prejudicial variance occurred here. Although the assumed indictment was drawn somewhat more narrowly than was the actual indictment, the evidence introduced and the theory of culpability advanced by the government were not affected by the difference. The government offered no evidence as to who actually delivered the bomb to the Federal Building. Its evidence supported the narrower charge that Valenti “caused” the damage to the building because he directed the conspiracy. Finally, the government withdrew the aiding and abetting theory and proceeded on the “Pinkerton ” theory that each defendant was responsible for the substantive acts of his co-conspirators carried out in furtherance of the conspiracy. This theory would have been permissible under either version of Count II.
DiFrancesco’s claim of prejudice is unsubstantiated. He contends that, had he known the actual wording of the indictment, he would have conducted additional cross-examination of Monachino and would not have entered into certain stipulations. This contention is undermined, however, by counsel’s failure to ask the trial court to recall Monachino for further cross-examination and his failure to withdraw any of the stipulations, which had not yet been given to the jury. Since the difference in the two versions of the indictment caused no prejudice to any substantial rights of the accused, the district court did not err in denying severance or a mistrial.
DiFrancesco’s final argument involves Count VI, which accused him of unlawfully storing explosives. He contends that this count should have been dismissed because there was no proof presented that the storage continued after February 12, 1971, the effective date of 18 U.S.C. § 842(j), which he was charged with violating. We disagree.
The government offered evidence that, during the summer of 1970, DiFrancesco brought two boxes that contained dynamite, guns and various other items to a house in which Joseph Turri lived. DiFran-cesco received permission from Turri to store the boxes in the basement. On the night of October 11, DiFrancesco removed a burlap bag from the box and brought it upstairs to Turri’s apartment, where a meeting of the conspirators was held. There they used some of the material in the bag — dynamite, fuses and blasting caps — to construct the explosive devices which were used in the bombings. After the bombs had been made, the remaining material was put back into the bag. DiFrancesco then left the room with the bag and returned without it a short time later. No one actually saw DiFrancesco return the bag containing the remaining explosives to the basement. Turri testified that he moved the boxes from the basement to the attic of his new residence during the summer of 1971. Tur-ri’s wife testified that DiFrancesco called her at some time in 1973 and asked her to move the boxes from the attic to another location, which she did.
Although none of the witnesses actually examined the contents of the boxes after the effective date of the statute, the jury properly could have inferred that some of the explosives remained in the boxes after that time. The evidence supported a logical inference that, when DiFrancesco left the October 11, 1970 meeting for several minutes and returned without the burlap bag, he had returned the bag containing the remaining explosive materials to the boxes in the basement, and that the explosives remained in the boxes while Turri moved them to his new residence and until DiFran-cesco asked that they be moved again in 1973.
GOVERNMENT APPEAL OF THE SENTENCE
Prior to the start of DiFrancesco’s trial on the racketeering counts, the government, in compliance with 18 U.S.C. § 3575(a), filed a notice with the district court alleging that DiFrancesco was a “dangerous special offender,” as defined in 18 U.S.C. § 3575(e)(3) and (f). The filing of such a notice indicates the government’s intention to seek, if the defendant is convicted, imposition of an enhanced sentence as authorized by 18 U.S.C. § 3575(b).
On March 17,1978, after DiFrancesco had been convicted in both the racketeering and bombing trials, Judge Burke held a sentencing hearing, required by § 3575(b), to obtain information which, with that submitted during trial, would form the basis for his determination whether DiFrancesco was a dangerous special offender. On April 21, the court issued findings of fact and its conclusion that DiFrancesco was a dangerous special offender. United States v. DiFrancesco, Cr. 76-45 (W.D.N.Y. April 21, 1978). One week later, the court sentenced DiFrancesco to concurrent ten-year terms of imprisonment on the two racketeering counts, to be served concurrently with sentences totaling nine years which had been imposed by Judge Pratt on the bombing counts.
The government, under the. authority granted by 18 U.S.C. § 3576, filed a notice of appeal from the sentence imposed by Judge Burke. DiFrancesco argues that the trial judge did not abuse his discretion in setting the sentence and, moreover, that such portion of § 3576 as authorizes the government to appeal a sentence where the defendant has not done so violates the double jeopardy clause of the fifth amendment. Since the government’s right to appeal and thus our jurisdiction to consider the merits of the sentence are dependent upon the constitutionality of the statutory provision, see United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 252 (1975), we must immediately confront the constitutional issue.
The concept of a government appeal to obtain an increase in a valid, enforceable sentence was unknown to the American legal system throughout most of this nation’s two hundred year history. Few states have given their appellate courts any power to increase a sentence, and in each instance where the power exists, it may be exercised only if the defendant has initiated the appellate proceeding by seeking review of the sentence. The United States, prior to 1970, did not have statutory authority to seek an increase in a sentence. In that year, however, Congress enacted 18 U.S.C. § 3576, which provides that, in a case involving a dangerous special offender, “a review of the sentence on the record of the sentencing court may be taken by the defendant or the United States to a court of appeals.” (Emphasis added.) The court of appeals is authorized to review “whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court’s discretion was abused,” and then to affirm” the sentence, impose any sentence that the trial court could have imposed, or remand for further sentencing proceedings.
The government has not rushed to make use of its new power to seek review of sentences. Whether this has resulted from doubts about' the constitutionality of the procedure, an extraordinary degree of satisfaction with the sentences imposed under the dangerous special offender provision, a decision to allocate prosecutorial resources to o,ther tasks, or other factors is of course only a matter of speculation, but this case is apparently the government’s first attempt to obtain review of a sentence on appeal. Moreover, the government’s primary response to DiFrancesco’s attack on the constitutionality of § 3576 is not that government-instigated review of a final sentence is constitutional, but rather that the sentence imposed by the district court is merely “tentative” and that thus the defendant is not placed twice in jeopardy.
The language of the statute does not support the construction urged by the government. Section 3575(b) requires that, if the district court finds the defendant to be a dangerous special offender, it “shall sentence the defendant to imprisonment for an appropriate term not to exceed twenty-five years . . ..” (Emphasis added.) This command is not tentative; the sentence imposed is effective immediately. This procedure contrasts with that provided in, e. g., 28 U.S.C. § 636(b)(1), whereby a trial judge may designate a magistrate to conduct a hearing in certain matters and to submit “proposed” findings and recommendations, which have no force until they have been reviewed by the judge, who may accept, reject or modify them. Nor is the procedure here similar to that provided in 18 U.S.C. § 4205(c) (formerly 18 U.S.C. § 4208(b)), to which it is compared by the government. Section 4205(c) allows a court that desires more information before imposing sentence to commit the defendant to the custody of the Attorney General for a period which will “be deemed to be for the maximum sentence of imprisonment prescribed by law.” After the court obtains the desired information, it then may affirm the original commitment or impose a different sentence which of course cannot exceed the aforementioned maximum prescribed term. “It is plain that as far as the sentence is concerned the original order entered under [§ 4205(c)] is wholly tentative,” because “[t]he whole point of using [§ 4205(c)] is, in its own language, to get ‘more detailed information as a basis for determining the sentence to be imposed ..’ (Emphasis supplied.)” United States v. Behrens, 375 U.S. 162, 164-65, 84 S.Ct. 295, 296, 11 L.Ed.2d 224 (1963). In contrast, the commitment ordered by the district court pursuant to § 3575 is neither tentative nor merely a predicate to a sentence “to be imposed” by the court of appeals.
That Congress, as the government argues, could have written this statute in a manner analogous to § 4205(c) or in some other form which might not raise problems of double jeopardy is an inadequate response to the contention that the statute which Congress did write is constitutionally infirm. “ ‘[A]ppeals by the Government in criminal cases are something unusual, exceptional, not favored,’ at least in part because they always threaten to offend the policies behind the double-jeopardy prohibition.” Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967) (citations omitted). Therefore, we are obliged to construe strictly the procedure that Congress has authorized and to determine whether it, not some other, hypothetical procedure, offends the double jeopardy clause.
The plain command of the fifth amendment is that no “person [shall] be subject for the same offense to be twice put in jeopardy of life or limb.” Although the phrase “life or limb” suggests only the most serious of penalties, it has long been established that it encompasses all penalties which may be imposed in criminal proceedings. Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Ex parte Lange, 8
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Paulette STEWART, Plaintiff-Appellee, v. LUBBOCK COUNTY, TEXAS, et al., Defendants-Appellants. Barbara WILKERSON, on behalf of herself and all others similarly situated, Plaintiffs-Appellees, v. LUBBOCK COUNTY, TEXAS and Delwin Lee (Sonny) Keesee, individually and in his capacity as Sheriff of Lubbock County, Tx., et al., Defendants-Appellants.
Nos. 84-1199, 84-1331 and 84-1406.
United States Court of Appeals, Fifth Circuit.
Aug. 5, 1985.
Hinojosa, District Judge, concurred in part, dissented in part, and filed an opinion.
Jim Bob Darnell, Crim. Dist. Atty., Kay P. Fletcher, Asst. Crim. Dist. Atty., Cecil Kuhne, Lubbock, Tex., for defendants-appellants.
Marvin Rogers, Mark C. Hall, Lubbock, Tex., for plaintiff-appellee.
Marvin Rogers, West Texas Legal Services, Nathan Hult, Mark C. Hall, Lubbock, Tex., for plaintiffs-appellees.
Before JOHNSON, HILL, Circuit Judges, and HINOJOSA , District Judge.
District Judge of the Southern District of Texas, sitting by designation.
ROBERT MADDEN HILL, Circuit Judge:
Lubbock County, Texas, and officials of the Sheriff’s Department, defendants, in these two consolidated cases on appeal allege legal error in the district court’s ruling that the County’s strip search policy was unconstitutional. In the Stewart case, defendants also allege that the district court abused its discretion in refusing to set aside a default judgment for attorney’s fees. We agree with the district court’s ruling that the strip search policy was unconstitutional and affirm the judgments in both cases. We also affirm the award of attorney’s fees in the Stewart case.
FACTS AND PROCEDURAL HISTORY
The policy at the Lubbock County jail prior to the issuance of temporary and permanent injunctions by the district court permitted a strip search of any arrestee. The searches did not depend upon the severity of the charge. Thus, all citizens arrested for misdemeanors punishable by fine only (Class C) were strip searched at the Lubbock County jail pursuant to jail policy. Furthermore, there was no requirement that the arrestee be suspected of possessing weapons or contraband for a strip search to be conducted. These searches, approximately 1000 per month, were conducted before arraignment and before the arrestee had an opportunity to arrange for bail. Thus, persons such as the plaintiffs, Paulette Stewart and Barbara Wilkerson, were subject to strip searches upon arrest for misdemeanors punishable only by fine.
Both plaintiffs sued Lubbock County and county officials in federal district court. In addition to receiving damages, the plaintiffs sought to enjoin the strip search policy in effect. A permanent injunction was issued by the district court in the Stewart case.
Two questions are presented on appeal: whether the district court erred in holding the strip search policy of the Lubbock County Sheriffs Department unconstitutional as a matter of law; and whether the district court abused its discretion in refusing to set aside a default judgment for attorney’s fees against Lubbock County.
ANALYSIS
I. Constitutionality of the Strip Search Policy
Plaintiffs urge that the strip search policy of the defendants is violative of the Fourth Amendment. The Seventh Circuit has provided guidance for the balancing of interests in determining the constitutionality of strip searches under the Fourth Amendment. See Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983). In Mary Beth G. a challenge was made to the strip search policies of the city of Chicago. In finding the policies to be unconstitutional, the court both relied on and distinguished Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). It relied on Wolfish for the standard of determining “reasonableness” of searches:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
723 F.2d at 1271 (citing Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884). It also distinguished the holding of Wolfish that strip searches may be conducted with less than probable cause by specifying that pre-trial detainees in Wolfish “were awaiting trial on serious federal charges after having failed to make bond and were being searched after contact visits.” 723 F.2d at 1272. The court in Mary Beth G. found that the city of Chicago’s need for strip searching “minor offenders who were not inherently dangerous and who were being detained only briefly while awaiting bond ... when there was no reason to believe they were hiding weapons or contraband on their persons” did not outweigh the personal privacy interest of the detainees. 723 F.2d at 1272. It found the strip searches unreasonable without a reasonable suspicion by the authorities that either weapons or contraband might be concealed on the bodies of the detainees. Id. at 1273.
The Fourth Circuit has also applied and distinguished Wolfish in the case of an arrestee facing a charge of driving while intoxicated who was strip searched without any reasonable suspicion that she might be in possession of either a weapon or contraband. See Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). The court pointed out that although Logan’s offense was “not a minor traffic offense, [it] was nevertheless one not commonly associated by its very nature with the possession of weapons or contraband____” Id. at 1013. It also considered relevant to its conclusion of the unconstitutionality of the strip search policy that “there was no cause in [Logan’s] specific case to believe that she might possess either [weapons or contraband].” Id.
In the cases sub judice, similarly to Mary Beth G., the detainees were arrestees awaiting bond on misdemeanor or traffic violation charges. Lubbock County argues that the strip search policy of the Chicago Police Department which it admits was similar to its own was unreasonable because it was enforced only against female arrestees. While the Seventh Circuit held that such disparity in treatment did violate the equal protection clause of the Fourteenth Amendment, that violation was clearly stated to be an “additional ground” for finding the strip search policy unconstitutional. Mary Beth G., 723 F.2d at 1274. Lubbock County’s argument that Mary Beth G. is inapplicable to the present eases is entirely without merit.
Because Lubbock County’s strip search policy was applied to minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband, under the balancing test of Wolfish we find such searches unreasonable and the policy to be in violation of the Fourth Amendment.
II. Attorney’s Fees
Lubbock County argues in the Stewart case that the district court abused its discretion by not setting aside a default judgment for attorney’s fees under 42 U.S.C. § 1988. The court had received an application for an award of attorney’s fees on March 9, 1984. Under Local Rule of Practice 5.1(e) defendants had 20 days to respond to the motion. Further, the court entered an order 3 days later, on March 12, stating that any opposing briefs shall be filed within 20 days of the order. On April 4. after the deadline in the order, the court granted Stewart’s application for attorney’s fees. Thereafter, defendants filed a motion to vacate judgment. It is the denial of this motion that defendants now appeal.
The standard for review is whether the district court abused its discretion. See, e.g., Moldwood Corp. v. Stutts, 410 F.2d 351, 352 (5th Cir.1969). The district court, in its order granting attorney’s fees in the amount requested, noted that defendants had not responded in any way to the court’s earlier order setting the time for their response, and it concluded that the defendants therefore agreed that Stewart’s request was reasonable as to the number of hours expended and to the per hour fee requested. The district court applied the standards of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) and considered the factors specified in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). The court found that the hours expended and the hourly rate were reasonable. Further, relying on Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) it found that the defendants, having failed to submit any evidence, had waived their right to an evidentiary hearing.
In their motion to vacate judgment, defendants asserted that they had been unable to find a copy of the March 12 briefing order in any of their files, and requested relief for “mistake, inadvertence, ... or excusable neglect” under Fed.R.Civ.P. 60(b)(1). The district court, relying on the requirement of Local Rule of Practice 5.1(e) that a response be filed within 20 days of the filing of a motion, denied defendants’ motion to vacate judgment. Thus, defendants’ reliance on their inability to find the March 12 order informing them of the 20 day requirement is misplaced: the order was merely a reminder of the response requirement contained in the local rules (although it extended the 20 day period to respond by starting it from the date of the order).
We find no abuse of discretion in the district court’s failure to set aside the award of attorney’s fees and to grant an evidentiary hearing on the issue of the reasonableness of amount of the award of such fees. The award of attorney’s fees in the Stewart case is affirmed.
AFFIRMED.
. Paulette Stewart had been arrested for public intoxication and Barbara Wilkerson had been arrested on an outstanding warrant for issuing a bad check after a routine traffic stop.
. Stewart sued for damages under 42 U.S.C. § 1983 for injuries received in a scuffle during her strip search and was awarded $1 in nominal damages. Wilkerson also sued for damages under § 1983 for her strip search and was awarded $15,000 in damages.
. The injunction issued by the district court is not before us on appeal. Accordingly, we do not determine whether injunctive relief was appropriate in this case, nor do we reach the merits of the injunction. We note, however, that in light of City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), we would raise sua sponte the question of plaintiffs’ standing to seek injunctive relief were the injunction before us on appeal. See Brown v. Edwards, 721 F.2d 1442, 1446 (5th Cir.1984). Plaintiffs may not be able to show that they would again be arrested and therefore be again subject to the unconstitutional strip search policy of the Lubbock County Sheriffs Department. See Lyons, 461 U.S. at 102, 103 S.Ct. at 1665; Brown, 721 F.2d at 1447. But see Giles v. Ackerman, 746 F.2d 614, 619 (9th Cir.1984) (plaintiff with standing to bring damages action has standing to obtain injunctive relief in addition to damages). Cf. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1266 (7th Cir.1983) (class action: injunction by agreement and stipulation). In the present case, on appeal appellants pray only that the trial court’s ruling of law that the strip search policy is unconstitutional and that Wilkersoris $15,000 damage award be reversed. No relief from the permanent injunction is sought.
The dissent would consider the injunction which is not before us on appeal and dismiss it on jurisdictional grounds (J. Hinojosa, dissenting). The dissent argues primarily that we may consider the injunction because we may and indeed must raise jurisdictional issues sua sponte. We agree completely that this Court could and should raise sua sponte any questions concerning jurisdiction in matters properly before this Court. However, we find that only the judgments regarding damages are before us on appeal and that the permanent injunction which the dissent would dismiss is not part of this appeal.
The cases cited by the dissent in support of the proposition that we should raise the issue of jurisdiction sua sponte even if not raised by the parties involved injunctions and other matters actually before the appellate court. See Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (Supreme Court sua sponte raised standing of some class members released from jail after contempt proceedings to seek injunctive relief; finding that other class members had standing, the Supreme Court reached the merits concerning the applicability of Younger principles); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963) (Supreme Court noted that it may reexamine jurisdiction of the district court to enjoin an order of the National Labor Relations Board although not raised by the parties); Brown, 721 F.2d at 1446 (this Court considered sua sponte Brown’s standing to seek equitable relief in appeal of dismissal of section 1983 action for damages and injunctive relief); Save the Bay, Inc. v. United States Army, 639 F.2d 1100 (5th Cir.1981) (this Court in the appeal of an order in part granting injunctive relief considered sua sponte whether the order was appealable); United States v. Rochelle, 363 F.2d 225 (5th Cir.1966) (this Court sua sponte raised question of the jurisdiction of the district court in a suit involving bankruptcy and income tax). These cases require only that the jurisdiction of this Court or a district court over matters before this Court be raised by us even when the parties did not raise it and the district court did not consider it. In fact, in Brown, this Court considered jurisdiction separately for the damage claims and injunctive relief, although in Giles, the Ninth Circuit found that jurisdiction over damage claims would also sustain jurisdiction over any additional (injunctive or declaratory) relief sought.
We observe, further, that were we to reach the merits as to the injunction, we would vacate section F of the injunction and remand to the district court for a revision of the injunction to clearly permit misdemeanor and traffic violation arrestees to be strip searched even while awaiting bond if reasonably suspected of possessing weapons or contraband.
. The right of the people to be secure in their persons, homes, papers and effects; against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const, amend. IV.
. Section 1988 provides in part:
In any action or proceeding to enforce a provision or section [ ] ... 1983 .... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of costs.
. This rule provides:
Any response to a motion shall be filed within 20 days from the date of filing of the motion.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_circuit
|
J
|
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.
Bill SANDLIN, Plaintiff-Appellee, v. TEXACO REFINING AND MARKETING INC., Defendant-Appellant.
Nos. 88-1764, 88-1874.
United States Court of Appeals, Tenth Circuit.
April 6, 1990.
Rehearing Denied May 16, 1990.
George D. Davis (Robert D. Tomlinson and David W. Kirk on the briefs) of McKinney, Stringer & Webster, P.C., Oklahoma City, Okl., for plaintiff-appellee.
G. Kenneth Handley of Texaco Inc., White Plains, N.Y., (Terri J. Frank of Texaco Inc., White Plains, N.Y., R. Steven Haught of Daugherty, Bradford, Fowler & Moss, Oklahoma City, Okl., and Thomas J. Goodwin, Houston Tex., with him on the briefs), for defendant-appellant.
Before MOORE, BRORBY, and EBEL, Circuit Judges.
JOHN P. MOORE, Circuit Judge.
Texaco Refining and Marketing Inc., (TRMI) appeals, an adverse judgment entered for violation of the Petroleum Marketing Practices Act (PMPA) and for state breach of contract claims. TRMI contends the jury verdict is not supported by the evidence, and the trial court erred in denying its motions for directed verdict, judgment notwithstanding the verdict, and for a new trial. TRMI also appeals the trial court’s award of attorney fees to the plaintiff. We reverse.
The nonrenewal at issue here was spawned by the 1984 merger of Texaco Inc. and Getty Oil Company. As a result, TRMI acquired a service station bearing the Getty name across the street from its existing Texaco station which was operated by its franchisee, Mr. Bill Sandlin, under a three-year franchise agreement with TRMI. In reviewing the merger, the Federal Trade Commission required both Texaco and Getty to divest themselves of certain assets, including the use of the Getty name. (R. II, 164-69). Consequently, the Getty station was rebranded and began doing business under the Texaco name in July 1985. (R. II, 171).
In January 1986, TRMI notified Mr. Sandlin under § 2802(b)(3)(D)(i)(III) it would not renew the franchise because it decided to sell the leased premises “in good faith and in the normal course of business.” Soon after, TRMI sent a written offer to sell the property for $216,000.
At trial, Mr. Sandlin, alleging TRMI violated the PMPA and breached its duty of good faith and fair dealing implied in the contract, sought to prove that TRMI’s substantive decision to nonrenew was not made in good faith and in the normal course of business, and its offer to sell the station was not bona fide. Throughout, evidence probative of statutory “good faith” was intermingled with evidence of whether the offer of sale was bona fide and the contract was performed in good faith. However, when the evidence is properly aligned under the PMPA, there is neither factual nor inferential basis on which the jury could properly find a verdict for Mr. Sandlin on his claim that TRMI violated the PMPA.
Resolution of the issues before this court brings into focus the purposes behind the statute with which we deal. The PMPA generally prohibits the arbitrary and discriminatory termination or nonrenewal of a franchise. It further enacts certain remedial provisions to protect the franchisee from any harm resulting from nonrenewal. Under the statutory scheme, nonrenewal is neither prohibited nor punished. Instead, nonrenewal is permitted if, after proper notification, the franchisor tethers the decision to one of the statutorily permitted grounds for termination. 15 U.S.C. § 2802. Additionally, under 15 U.S.C. § 2802(b)(3)(D)(i)(III), Congress imposed a duty on a franchisor, whose nonrenewal of the franchise relationship is grounded on the decision to sell the marketing premises, to make “a bona fide offer to sell ... to the franchisee such franchisor’s interests in such premises_” 15 U.S.C. § 2802(b)(3)(D)(iii)(I). To vitiate a claim under this subsection, TRMI has the “burden of going forward with evidence to establish as an affirmative defense that such termination or nonrenewal was permitted,” 15 U.S.C. § 2805(c), and satisfied its statutory duty to make a bona fide offer to sell.
It is essential to recall Congress did not intend to intrude courts into the marketplace by permitting “judicial second-guessing of the economic decisions of franchisors.” Svela v. Union Oil Co. of Calif., 807 F.2d 1494, 1501 (9th Cir.1987). While Congress intended the good faith test to prevent franchisors from shielding their decisions with artifice, the normal course of business element examines whether the franchisor made the choice through its usual decision-making process. “The legislative history of the PMPA indicates that courts should look to the franchisor’s intent rather than to the effect of his actions, making [the good faith test] a subjective test.” Svela, 807 F.2d at 1501 (citation omitted). However, we use an objective test to decide whether an offer is bona fide. See Slatky v. Amoco Oil Co., 830 F.2d 476 (3d Cir.1987).
The “good faith and normal course of business” requirement is essentially a procedural direction to the courts about how to judge whether the distributor has abided by the substantive restrictions and failed to renew only because of one of the statutorily permitted reasons. Thus, what the court decides in a challenge to a non-renewal is not whether the distributor determined not to renew according to some elusive notion of good faith but whether it sincerely made a decision to sell the property or to alter it or to accomplish some other business purpose permitted under the statute.
Id. at 482.
I.
The first question presented is whether the totality of the evidence supports the verdict that TRMI’s decision not to renew its franchise was not made in good faith and in the normal course of business as required by PMPA. We also consider whether the evidence supports the verdict that an offer by TRMI to sell its station to Mr. Sandlin was not bona fide. We find no evidence in support of either proposition.
We arrive at this conclusion after undertaking an analysis of the two facets that comprise a claim for violation of the PMPA. The initial inquiry, whether the franchisor made the substantive decision in good faith and the normal course of business, tests the honest commercial judgment of the franchisor. In contrast, the second evaluates whether the franchisor fulfilled its remedial obligation to the franchisee by making a bona fide offer to sell the premises. Whether this subsequent offer is bona fide questions the fairness of the franchisor’s treatment of the franchisee measured by an objective standard. “The bona fide offer provision therefore serves as a second, and distinct, layer of protection, assuring the franchisee an opportunity to continue to earn a livelihood from the property while permitting the distributor to end the franchise relationship.” Id. at 484.
Thus, two separate inquiries must flow from a PMPA test of a nonrenewal decision. Evidence of the first is not evidence of the second, not only because the two inquiries are temporally separated but also because the standards for judging both differ.
TRMI presented evidence of management’s procedure of reviewing its stations in general and these two competing stations in particular. In addition, TRMI set forth its procedure for appraising the property and the circumstances of the offer made to Mr. Sandlin.
In contrast, Mr. Sandlin sought to prove that TRMI treated him unfairly and that its decision to acquire the Getty station was motivated by its desire to profit from his success in building up his business and good will in that location. To that end, Mr. Sandlin related his expectations of remaining in business “if I did good,” (R. II, 105), and various promises or proposed alternatives and commitments that TRMI agents made prior to the decision to sell and the formal notice of that decision.
Intertwined in this testimony of TRMI’s intent was evidence of TRMI’s offer to sell. While a franchisor could make a bona fide offer to sell the premises, it is possible that the underlying decision to sell was not made in good faith and in the normal course of business. Since the statute imposes two tests to support a valid nonre-newal, a bona fide offer alone is not sufficient to cure an otherwise arbitrary nonre-newal decision. Care must be taken not to use the evidence relevant to one test as evidence applicable to the other.
When the record is viewed with that distinction in mind, there is no evidence to be found from which the jury could conclude that TRMI’s written offer to sell the premises for $216,000 was not bona fide. First, plaintiffs Exhibit 6 details appraisals of the property ranging from $200,000 to $233,535. Second, the $216,000 price included the tanks, lines, and equipment; $200,000 for the land, $16,000 for the additions. Finally, after Mr. Sandlin refused the offer, TRMI received an offer of $260,-000 from another entity, which subsequently lapsed when the offeror was itself sold. Thereafter, TRMI listed the property for $260,000, and that listing was in effect at the time of trial.
No matter how the evidence is viewed, the $216,000 offer remains objectively reasonable as a reflection of fair market value. “That, by definition, is the highest price a willing buyer would pay, and an offer at fair market value protects the franchisee’s reasonable expectation of being able to make a living with the franchise property.” Slatky, 830 F.2d at 484. Congress intended no more. “Congress treated the bona fide offer requirement not as a statutory recognition of a business judgment but as a form of compensation to the franchisee for the harm resulting from the distributor’s valid business judgment.” Id. at 481-82.
Similarly, Mr. Sandlin’s self-serving testimony that he expected to stay in business for ten years, cannot substitute for the PMPA’s provisions for the nonrenewal decision. {See R. II, 107). The PMPA does not protect that kind of hope or speculation. Instead, the PMPA attempts to balance the franchisee’s “reasonable expectations” with the franchisor’s legitimate business reasons. Id. at 484. That the nonrenewal at issue has the effect of altering those expectations alone cannot taint TRMI’s action. “So long as the franchisor does not have a discriminatory motive or use the altered terms as a pretext to avoid renewal, the franchisor has met the burden required by the PMPA for determining good faith.” Valentine v. Mobil Oil Corp., 789 F.2d 1388, 1392 (9th Cir.1986) (PMPA does not entitle franchisee to buy station if franchisor proposes material alteration of the premises which franchisee opposes). Recognizing the standard of review which guides the court’s analysis, we must conclude no evidence or reasonable inferences from the evidence can shore up the jury’s verdict.
II.
Mr. Sandlin also recovered a judgment on state claims under theories of breach of contract. TRMI argued in the trial court that the state claims were preempted by PMPA, but that argument has not been asserted on appeal.
Except for some self-serving speculation by Mr. Sandlin, we find no evidence in the record indicating TRMI breached the franchise agreement by bad faith or unfair dealing. In support of his claim that TRMI breached the good faith covenant inherent in every contract, see Hall v. Farmers Ins. Exch., 713 P.2d 1027, 1029-31 (Okla.1985); Christian v. American Home Assurance Co., 577 P.2d 899, 904 (Okla.1977), Mr. Sandlin refers to the testimony of one witness who stated the rebranding of the Getty station took place earlier than necessary. He also contends TRMI marketed its gas at less than it charged him and that it took an “unconscientious” advantage of him through a “technicality” in the law. Unfortunately for Mr. Sandlin’s cause, this “evidence” fails to rise above mere speculation.
The events Mr. Sandlin perceived as harmful to him were nothing more than the consequence of the Getty-Texaco merger which ultimately put TRMI in the posture •of competition with its own franchisee. That competition is not the substance of a state breach of contract claim, even if such a claim is not preempted by PMPA, because Mr. Sandlin was unable to present evidence to the jury which suggests TRMI competed in bad faith.
The judgment of the district court is REVERSED and REMANDED with instructions to enter judgment in favor of TRMI on all claims.
. Reappearing in this testimony is the alleged but denied statement, "to hell with Sandlin," made by a top TRMI management official responsible for the decision to sell. Even if the statement referred to TRMI’s decision to sell, which is questionable, it is difficult to see how that decision, under all the circumstances of this case, is premised on the franchisor’s spite. Indeed, the purported statement is irrelevant to the inquiry of whether the decision is grounded in TRMI’s honest commercial judgment. When faced with the FTC ruling, TRMI clearly had to dispose of one of the two stations. The remaining question, then, is whether the choice of the Sandlin station was grounded in commercial judgment or predicated upon an impermissible ground. Given the evidence which established the superior profitability of the former Getty station, TRMI established a sound commercial reason for the decision not to renew. The alleged statement simply did not controvert this reason.
. A suggestion abounds that appraisals ranged from $97,000 to $233,000. Plaintiff’s Exhibit 6, a copy of TRMI’s internal real estate analysis, lists outside appraisals of $200,000 (12/84) and $210,000 (8/84) without the tanks and equipment; and $223,535 (12/84) and $233,535 (8/84) with the tanks and equipment. The $97,-422 figure in Exhibit 6 represents “cost less reserves (6/85).’’ That figure cannot be an appraisal of value because, in the absence of explanatory evidence, the statement “cost less reserves” must be taken at face value. Thus, the figure of $97,422 cannot represent an appraised value of the station.
.An oral offer or “proposal” to sell the premises made to Mr. Sandlin in May 1985 for $269,000 would not qualify as an offer to sell under the PMPA because it predated formal notice. That offer, according to then existing company policy, did not include the underground tanks and lines although the company offered to decrease the price by half of the cost of installing new equipment if the existing equipment was defective. (R. II, 277). However, a TRMI witness testified that company policy changed, permitting Mr. Sandlin to purchase the equipment if it passed leakage and tightness tests. (R. II, 278).
. For example, the Ninth Circuit affirmed a judgment for the franchisor whose nonrenewal was based on the decision to convert the station from a full-service to a fast-service facility. The court upheld the nonrenewal under the PMPA, observing "the fact that Union’s proposed changes might make it difficult for Svela to remain in business and earn a profit is irrelevant to a finding of good faith." Svela, 807 F.2d 1494, 1501 (9th Cir.1987) (citation omitted).
. We judge whether a motion for judgment n.o.v. should have been granted upon a de novo review of the record to determine whether a jury could properly find for the prevailing party. In performing this task, we do not weigh the evidence or pass upon the credibility of the witnesses, and we view the evidence in a light most favorable to the appellee. Anderson v. Phillips Petroleum Co., 861 F.2d 631 (10th Cir.1988); Brown v. McGraw-Edison Co., 736 F.2d 609 (10th Cir.1984).
. On the issue of preemption, see Cason v. Texaco Inc., 621 F.Supp. 1518 (M.D.La.1985); Siecko v. Amerada Hess Corp., 569 F.Supp. 768 (E.D.Pa.1983).
. For example, Mr. Sandlin stated on "certain days and certain times" he saw posted prices at TRMI’s neighboring station that were lower than his purchase price. Without more, this is not evidence that TRMI set those prices intentionally to harm Mr. Sandlin or that the prices were set in an effort to take an unfair advantage of him.
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_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
ALCOA STEAMSHIP COMPANY, Inc., et al., Plaintiffs, Appellants, v. Ulpiano VELEZ, Manager, Puerto Rico State Insurance Fund, Defendant, Appellee.
No. 6703.
United States Court of Appeals First Circuit.
April 20, 1967.
Jose L. Novas, Nicolas Jimenez, San Juan, P. R., and William E. Wright, New Orleans, La., with whom J. Ward O’Neill, New York City, Rodolfo Sequeira, Hart-zell, Fernandez & Novas, San Juan, P. R., Terriberry, Rault, Carroll, Yancey & Farrell, New Orleans, La., Haight, Gardner, Poor & Havens, New York City, and Rodriguez Ema & Rodriguez Ramon, San Juan, P. R., were on brief, for appellants.
Peter Ortiz, Asst. Sol. Gen., J. F. Rodriguez Rivera, Acting Sol. Gen., for Commonwealth of Puerto Rico, with whom J. B. Fernandez Badillo, Sol. Gen., was on brief, for appellee.
Before ALDRICH, Chief Judge, and MARIS and McENTEE, Circuit Judges.
Sitting by designation.
MARIS, Circuit Judge.
The question presented on this appeal is whether the Puerto Rico Workmen’s Accident Compensation Act, 11 L. P.R.A. § 1 et seq., is applicable to seamen who have been employed in the continental United States and who are working temporarily in the navigable territorial waters of Puerto Rico as crew-members of foreign owned vessels when they are injured.
The plaintiffs Alcoa Steamship Company, Inc., A. H. Bull Steamship Company, Inc., Lykes Brothers Steamship Company, Inc., and Waterman Steamship Corporation, brought suit in January 1962 against the Manager of the Puerto Rico State Insurance Fund in the United States District Court for the District of Puerto Rico alleging that the defendant in July 1961 had advised each of them that in view of the decision of this court in Fonseca v. Prann, 1960, 282 F.2d 153, he understood that all accidents suffered by members of crews of vessels in the navigable waters of Puerto Rico were covered by the Puerto Rico Workmen’s Accident Compensation Act and, therefore, he was serving notice of a new classification and premium assessment with respect to seamen employed by them working in the navigable waters of Puer-to Rico.
The plaintiffs refused to file payroll reports pursuant to the Act or to pay the premiums assessed against them, contending that defendant had no authority to make the demand upon them. Their refusal was based on the grounds that the seamen involved were not residents of Puerto Rico and had not been employed there, but were employed by plaintiffs pursuant to federal maritime law under shipping articles executed at continental United States ports. The plaintiffs alleged that their refusal to comply with the defendant’s demands subjected them to actions as uninsured employers and to liens by successful claimants against their property, 11 L.P.R.A. § 16, and also subjected them to penalties for failure to insure their seamen, 11 L.P.R.A. § 18, and accordingly they prayed for a judgment declaring that their liability for accidental injury or death suffered by their seamen while in the course of employment within the navigable waters of Puerto Rico arises under federal maritime law and that the local workmen’s accident compensation act does not apply.
The parties stipulated that in cases of accidental injury to or death of any seaman employed by plaintiffs aboard their vessels occurring within the navigable waters of Puerto Rico the matter would be referred to the United States Public Health Service as it would upon such an occurrence happening in any port of the United States. It was also stipulated that during 1965 the intervenor Sea-Land Service, Inc., and the plaintiff Waterman Steamship Corporation paid, under protest, the premiums demanded by the defendant and filed petitions for review before the Industrial Commission of Puerto Rico, which at the time of trial were still pending.
The District Court construed our statement in Fonseca v. Prann, 282 F.2d 153, 157, that the “Congress intended to clothe the Government of Puerto Rico with power to provide for the application of its workmen’s compensation act to injuries suffered by employees on local navigable waters” to include maritime workers coming from ports outside Puer-to Rico aboard vessels belonging to owners outside Puerto Rico. The Court concluded that, since that power was delegated by Congress to Puerto Rico, the only remaining question was whether the Puerto Rico Legislature intended to include such foreign seamen within the coverage of the compensation act and that this question could adequately be resolved under the procedure provided by the Puerto Rico Workmen’s Accident Compensation Act. Accordingly, the district court withheld consideration of the merits and dismissed the complaint. This appeal by the plaintiffs followed.
The plaintiffs contend that the district court abused its discretion in dismissing the complaint. It is argued that our holding in Fonseca v. Prann does not support the broad interpretation given that case by the defendant and by the district court. We agree.
In Fonseca v. Prann the sole question for consideration was whether a Puerto Rico seaman could sue his employer, who was insured under the Puerto Rico Workmen’s Accident Compensation Act, for negligence under the Jones Act and for unseaworthiness under the general maritime law to recover for injuries sustained while at work within the territorial limits of Puerto Rico. We held that Section 20 of the Act, 11 L.P.R.A. § 21, barred such an action. In that case we had no occasion to deal with seamen who had been employed outside the jurisdiction of Puerto Rico to work on vessels owned by non-resident employers and whose only contact with Puerto Rico was when their vessel entered the waters of Puerto Rico for a temporary visit in the course of its voyage. As we pointed out in Guerrido v. Alcoa Steamship Co., 1 Cir. 1956, 234 F.2d 349, and in Waterman Steamship Corporation v. Rodriguez, 1 Cir. 1961, 290 F.2d 175, 179, Puerto Rican legislation, such as the Puerto Rico Workmen’s Accident Compensation Act, could not supplant a general rule of maritime law which Congress in the exercise of its constitutional power had expressly made applicable to Puerto Rican waters in common with all other American waters.
But what we had said in the Fonseca case was not intended to mean that the Congress had delegated to the Legislature of Puerto Rico power in the general field of admiralty and maritime law to apply its local compensation act to seamen who are actually employed under federal maritime laws and to require foreign vessel owners who are responsible to their maritime workers under those laws for accidental injury or death, or who have provided them with compensation for those casualties, to insure these workers also under the local Puerto Rico statute. Indeed, the delegation of such power would radically change the characteristic feature of the general maritime law that it follows the flag of the vessel and would seriously interfere with the proper uniform application of that law in its international and interstate relations. Southern P. Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed 1086; Knickerbocker Ice Co. v. Stewart, 1920, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834; State of Washington v. Dawson & Co., 1924, 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 753.
In Alcoa v. Perez Rodriguez, filed this day, 376 F.2d 35, which involved a Puerto Rican maritime worker compensated for injuries under the provisions of the Puerto Rico Workmen’s Accident Compensation Act, we adhere to our prior view to the effect that the Puerto Rico statute has, within the area of its applicability, displaced the remedies of the maritime law and provided the sole remedy of a Puerto Rican longshoreman against his insured employer for injuries sustained in the course of his employment. But this is the extent to which the Legislature of Puerto Rico is empowered to supersede the rules of the general maritime law in Puerto Rico waters. And, furthermore, we think that this is in conformity with the spirit of the Puerto Rico Workmen’s Accident Compensation Act. By the Act of May 16, 1958, No. 16, p. 19, the Legislature enacted an exemption as to technical personnel protected by laws of other jurisdictions. 11 L.P.R.A. § 28a. In the statement of motives, inter alia, appearing in the Act appears the following:
“By express provision of the workmen’s accident compensation statutes, or by judicial order, the laws in the continent generally have extraterritorial effect, so that when workmen are hired in the various states, they are subject to the Workmen’s Compensation Act of the State where they are hired. We are facing the same situation as regards the employment of technical personnel imported from the United States of America.
“Since our statute establishes compulsory insurance, the firms employing such technical personnel would be bound to maintain double insurance in connection therewith.
“It is convenient to industry in general, and to the employers affected, that a reasonable standard be established to prevent duplication in the payment of such premiums.” [See note, 11 L.P.R.A. § 28a.]
Here is a clearly expressed intention by the Legislature of Puerto Rico that its Workmen’s Accident Compensation Act shall not be used as a vehicle to require the maintenance of duplicating compensation insurance by an employer.
Moreover, the Supreme Court of Puer-to Rico has itself applied the generally accepted law of the flag by construing the Puerto Rico Workmen’s Accident Compensation Act to cover injuries to Puerto Rican maritime workers occurring in waters away from Puerto Rico. Inter Island Shipping Corporation v. Industrial Commission of Puerto Rico, Dec. 18, 1963, P.R.R. In that case the contract with the maritime worker had been negotiated in Puerto Rico and the ship belonged to a corporation organized under the laws of Puerto Rico. The Court held that the injury, although it occurred outside of Puerto Rican waters, was insured under the local accident compensation act, stating:
“The Industrial Commission in declaring itself without jurisdiction in this case, applied the criterion that our Workmen’s Accident Compensation Act does not cover an accident occurring outside our territorial limits. The fact that the employer in this case paid premiums also computed on the wages paid to the employer’s maritime crew when it worked outside of Puerto Rico is not argued. The power of the Legislature of Puerto Rico to provide medical assistance and hospitalization to our migrating laborers who are injured outside of Puerto Rico if they return to our country, Act No. 77 of June 23, 1958 is not argued. There is evidence that the benefits of our workmen’s compensation has been extended to some of our officials called to work outside of Puerto Rico for accidents suffered outside our territory. The concept of ‘extraterritoriality’ carries impliedly with it the invasion of the juridical sovereignty of another state, city or political body. When said invasion is not produced, it can hardly be considered that the application of a law has been given extraterritorial effect.”
We conclude that the Puerto Rico Workmen’s Accident Compensation Act cannot be applied to seamen injured in Puerto Rican waters on an American vessel owned by a corporation of a state other than Puerto Rico where the contract of employment was not entered into in Puerto Rico. Such seamen’s rights under the Jones Act, the maritime law of unseaworthiness, and maintenance and cure attach upon their employment and follow them into Puerto Rican waters.
The judgment of the district court will be reversed and the case will be remanded to the district court for further proceedings net inconsistent with this opinion.
. The term “foreign” is used in the sense that these vessels are owned by corporations incorporated in various States of the Union other than Puerto Rico.
. Lauritzen v. Larsen, 1953, 345 U.S. 571, 584-585, 73 S.Ct. 921, 97 L.Ed. 1254; Guerrido v. Alcoa Steamship Co., 1 Cir., 1956, 234 F.2d 349, 354.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Carmen M. PANGELINAN, Santiago C. Masga, Adan C. Masga, Jr. and Adan M. Masga, Plaintiffs-Appellants, v. Antonia M. TUDELA, Defendant-Appellee.
No. 83-2398.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 2, 1984.
Decided May 25, 1984.
Ramon G. Villagomez, Saipan, CM, for plaintiffs-appellants.
Vicente T. Salas, Saipan, CM, for defendant-appellee.
Before CHOY, GOODWIN and KENNEDY, Circuit Judges.
PER CURIAM.
Adan M. Masga and his children appeal from an adverse determination of the ownership of land on the Island of Rota. They contend that his children were not given notice of a hearing conducted by the Land Commission of the Trust Territory of the Pacific Islands. They say that Masga's daughter had been appointed as his representative and that the appellee took advantage of her absence to obtain Masga's land by trickery.
In the late 1960's and early 1970's, Adan M. Masga showed signs of what the trial court characterized as "mental disorientation." One such sign was his sale of some land for inadequate consideration. Accordingly, Adan's children-appellants Carmen M. Pangelinan, Santiago C. Masga and Adan C. Masga, Jr.-took steps in March 1972 to obtain power to act on his behalf in his land dealings. Adan swore to an "affidavit" appointing his daughter Carmen "land trustee of all my properties on Rota • ." and executed a power of attorney granting Carmen the power to act for him in his land dealings. The "affidavit" was prepared by a member of the Land Commission and was filed with the Commission.
Shortly before he executed these documents, Adan applied to the Land Commission for registration of a parcel of land on the island of Rota that he lived on and farmed. The Land Commission has jurisdiction to determine and register title to land in the Trust Territory. See Trust Terr.Code §~ 101-120 (1980).
The Land Commission conducted a hearing on Adan's application in October 1972. Neither Carmen nor either of Adan's other children received notice of or were present at the hearing. At the hearing Adan signed an "affidavit" granting the parcel to appellee Antonia M. Tudela. The Commission in due course issued a Determination of Ownership recognizing Tudela as the owner of the parcel.
Appellants appealed the Commission's determination to the Commonwealth Trial Court. The trial court set aside the Commission's action, holding that the Commission should have given Adan's children notice of the hearing. Tudela appealed the trial court's decision to the Appellate Division of the District Court for the Northern Mariana Islands which reinstated the Land Commission's Determination of Ownership. This appeal followed. We have jurisdiction under 48 U.S.C. § 1694c (Supp. V 1981). See Camacho v. Civil Service Commission, 666 F.2d 1257 (9th Cir.1982).
Appellants contend that 67 Trust Terr. Code § 11O(1)(c), which provides that notice of land registration hearings is to be served "upon all parties shown by the preliminary inquiry to be interested . . .," gave Carmen a right to notice of the hearing.
We disagree. The actual notice of the hearing that Adan received satisfies § 110. Appellants argue only that Carmen's capacity as Adan's representative in land matters made her an "interested party" entitled to notice under § 110. But because Adan, her principal, received notice of the hearing, Carmen cannot complain that she, as agent, failed to receive notice.
If Adan had been adjudicated an incom-~ petent and a guardian had been appointed for him, § 110 might require that notice be given to his guardian. See, e.g., Hickey v. Naruth Realty Corp., 71 A.D.2d 668, 419 N.Y.S.2d 12 (1979); Goetz v. Gunsch, 80 N.W.2d 548 (N.D.1957); 41 Am.Jur.2d Incompetent Persons § 114. Carmen, however, was not his guardian. Moreover, the trial court did not find that Adan was incompetent at the time of the hearing. It found only a "serious question" as to his competency, which, as the Appellate Division of the District Court noted, falls short of a finding of incompetency. Therefore, there is no need to decide in this case whether notice to an incompetent person without a guardian satisfies § 110.
Title 67 Trust Terr.Code § 113 directs the Commission to appoint a guardian to represent any person that the Commission finds incompetent. The Commission did not abuse its discretion by failing to inquire into Adan’s competency at the time of the hearing. First, as the trial court found, Adan “may have appeared to be acting in a normal manner and in possession of his mental faculties” when he appeared at the hearing. Second, the “affidavit” that Adan filed with the Commission appointing Carmen his “land trustee” would not have given the Commission reason to question Adan’s competency. For all the Commission knew, the appointment had been made for the sake of convenience rather than out of concern for Adan’s competency, because Adan had himself executed the document, suggesting that he was competent to manage his affairs.
The judgment of the Appellate Division of the District Court of the Northern Mariana Islands is affirmed.
. Mr. Masga's name is variously spelled as Adam, Adan, and Aldan.
. The island of Rota is now part of the Commonwealth of the Northern Mariana Islands. The portions of the Trust Territory Code dealing with land registration have been replaced by the N. Mar. I. Land Commission Act of 1983, P.L. 3-79 (October 11, 1983), codified at ~`LMar.I. Code §~ 4211-4252 (1984)).
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_state
|
23
|
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".
STEPHAN v. UNITED STATES.
No. 9337.
Circuit Court of Appeals, Sixth Circuit.
Feb. 6, 1943.
As Amended Feb. 19, 1943.
Writ of Certiorari Denied April 5, 1943.
See 63 S.Ct. 858, 87 L.Ed. -.
Nicholas Salowich, of Detroit, Mich., and James E. McCabe, of Nashville, Tenn., for appellant.
John W. Babcock, of Detroit, Mich. (John C. Lehr and John W. Babcock, both of Detroit, Mich., on the brief), for appellee.
Before HICKS, ALLEN, HAMILTON, MARTIN, and McALLISTER, Circuit Judges.
HICKS, Circuit Judge.
Appellant was convicted of treason and sentenced to death by hanging. There are twenty-five assignments of error, some of which raise questions not presented to the court below and others of which are not discussed in the brief, nor called to our attention in the oral argument. However, the case involves a penalty of death for appellant, and we shall proceed upon the exception to the general rule and shall notice possible error, although the questions may not properly be raised. See Wiborg v. United States, 163 U.S. 632, 658, 16 S.Ct. 1127, 1197, 41 L.Ed. 289; Crawford v. United States, 212 U.S. 183, 194, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392.
It is urged that the indictment does not charge the offense of treason with sufficient certainty, and particularly that the allegations of overt acts are not clear.
Treason is the most serious offense that may be committed against the United States, Hanauer v. Doane, 12 Wall. 342, 79 U.S. 342, 347, 20 L.Ed. 439; In re Charge to Grand Jury, 30 Fed.Cas. pages 1024, 1025, No. 18269; and its gravity is emphasized by the fact that it is the only crime defined by the Constitution. The constitutional definition [Art. 3, Sec. 3, Cl. 1] is: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * *”
The phrase “in levying War against them” is not here involved. This definition is meticulously exclusive and that it,was so intended is indicated by the use of the adverb “only.” The Constitution has left no room for constructive treason and Congress could not and has not undertaken to restrict or enlarge the constitutional definition.
The statute upon which the indictment is based is as follows: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere is guilty of treason.” (R.S. Sec. 5331; March 4, 1909, C. 321, Sec. 1, 35 Stat. 1088; U.S.C.A. Title 18, c. 1, Sec. 1.)
The statute follows the Constitution and designates the class of persons subject to its provisions, to wit, “whoever, owing allegiance to the United States, * *
Section 2 of the statute provides the punishment for treason.
The indictment charged — that appellant, a citizen of, and a person owing allegiance to, the United States, did at and within the City of Detroit, County of Wayne, State of Michigan, Eastern District of Michigan and the United States of America, continuously and at all times during the 18th and 19th days of April, A. D. 1942, unlawfully, feloniously, wilfully, traitorously and treasonably adhere to one Hans Peter Krug, a secret agent and spy for, and a secret representative of the Government of Germany in the furthering and carrying on of its war against the United States, and an officer in the Army of the Government of Germany who had escaped from a war prisoners’ camp in Ontario, Canada; and that the adherence of appellant to Krug, and the giving of aid and comfort by appellant to Krug during April 18th and 19th, 1942, consisted: in his receiving and treating with Krug, in his furnishing hospitality and entertainment to Krug, in his furnishing to and obtaining for Krug money, necessities of life and personal effects, in his harboring Krug, in his concealing the identity of Krug, in his giving false information to citizens of the United States and others with the intent to conceal the identity of Krug, in his arranging for and providing transportation of Krug in and about Detroit, Michigan, and means of transportation for Krug from Detroit, Michigan, to Chicago, Illinois, and in his failure to report to proper public and military officials the presence in the United States of Krug; and that appellant, when so adhering to and giving aid and comfort to Krug, well knew all of the facts stated in the indictment.
The indictment is sufficient. United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619; Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; Dierkes v. United States, 6 Cir., 274 F. 75. It distinctly and clearly alleges each and every element of the offense necessary to be charged, including time, place and circumstances, and advised appellant of the charge he was required to meet, to wit, that he had unlawfully, feloniously, traitorously, treasonably, knowingly and intentionally adhered to and given aid and comfort to Peter Krug, an enemy of the United States, and in furtherance thereof had committed certain overt and manifest acts. These alleged overt acts, twelve in number, were set out in the indictment with exact and careful detail.
Appellant insists that the court erred in denying his motion for a directed verdict. This involves the question, (1) whether the constitutional provision [Art. 3, Sec. 3, Cl. 1] that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, * * [italics ours] has been met, see United States v. Robinson, D.C., 259 F. 685; Wharton’s Crim.Law, 11th Ed., vol. 3, Sec. 2155; Wigmore on Ev., 3rd Ed., vol. 7, Sec. 2038; and if met (2) whether there was substantial evidence to support the verdict. There was no material conflict in the evidence. Appellant cross-examined witnesses for the Government but introduced no testimony on his own behalf.
The evidence discloses that appellant was admitted to citizenship in the United States on June 24, 1935, and took the oath of allegiance on June 28, 1935. The oath is as follows: “I hereby declare on oath that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, and particularly to Germany of whom (1) I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies foreign and domestic; that I will bear true faith and allegiance to the United States of America, and that I take this obligation freely without any mental reservation or purposes of evasion, so help me God.”
The Government’s principal witness was Hans Peter Krug. He testified that he was a citizen of the Government of Germany and an officer, an “Oberlieutnant,” in the German Air Force; that on August 28, 1940, he was piloting a bombing plane over England, with which country Germany was then at war; that he was shot down and captured; that he was injured, was taken to a hospital and afterwards, in January 1941, was transferred to an internment camp for war prisoners near Nays, Ontario; that in November 1941, he was transferred to an officers’ camp at Bowmanville, Ontario, from which he escaped on April 17, 1942. His escape was confirmed by the testimony of two Canadian officers stationed at the camp. With the aid of forged papers and the assistance of a priest, who was influenced by false stories, he reached Windsor, Ontario, and proceeded by means of a stolen boat, across the river to Detroit. About 9:00 or 9:30 on the next morning, April 18, dressed in coveralls, he made his way to 259 Phillip Ave., Detroit, the home of a Mrs. Bertelmann, whose name and address he had obtained from his fellow prisoners. At his urgent behest, she admitted Krug to her home and he identified himself by showing her the epaulets of a German officer.
Mrs. Bertelmann was born in Germany, was married there in 1920, and came to Canada in 1928. Her husband, also a German, became an American citizen in 1930 but she never applied for citizenship. She had done knitting for the German war prisoners in Canada and had, through appellant, purchased tobacco and other articles to send to them. She testified that it was required that the name and address of the sender should be attached to these packages.
Krug testified that when he told Mrs. Bertelmann that he was “Oberlieutnant Krug,” escaped from Canada, she telephoned appellant, whom she styled as a friend of hers, and said, “that he was coming over.” There is evidence that in this telephone conversation Mrs.' Bertelmann told appellant that she had a German prisoner in her home. Mrs. Bertelmann testified that when she realized that Krug was a German prisoner, escaped from Canada, she was scared, because she knew that it was not right to have him in her house; that when she told appellant upon his arrival that she had a German prisoner, he chided her for her agitation and said, “what are you shaking for? — You’re crazy.” Krug testified that when appellant came into the kitchen where he was, appellant sat down, “held his hands on the upper part of his legs and smiled.”
There was some question on Krug’s part whether he told appellant the whole story of his escape then or later in appellant’s restaurant, although it appears from both his and Mrs. Bertelmann’s testimony that Krug spoke to them both at some length of his experiences after his escape from Bowmanville. Mrs. Bertelmann, who was passing back and forth through the kitchen during this conversation, testified that she heard appellant ask, “Why don’t you give up, you haven’t a chance?” and that Krug replied, “I have to try, because on account of treatments over there.” On cross-examination Krug revealed that appellant told him that it would be impossible for him to go back to Germany by way of South America, and that he should go back where he came from. Later he testified that he didn’t know at which place they were when appellant said that to him.
Krug testified that before he left Mrs. Bertelmann’s she gave him $20 in money, some shoes, socks and underwear. Her testimony was that there was a pair of shoes on the kitchen floor and when it appeared that the sole of one of Krug’s shoes was broken, appellant said, “Do you think those fit?” and then asked her if she had any socks, and when she brought a pair of knitted socks, appellant said, “Those are too long,” and she then provided Krug with a pair she had darned for her husband. She testified that appellant then asked Krug, “What are you wearing underneath?” and that he showed that he had no underwear, whereupon she supplied him with underwear which she had planned to send to Canada. Asked by appellant whether she had any money, that he, appellant, had come away so fast that he didn’t bring any with him, she replied that she had $20 and laid it on the kitchen table, near appellant, and although she didn’t see appellant take it, the money was gone when the man left, nor did she see appellant give any money to Krug. The latter, on the other hand, stated categorically that he did not recall any discussions between appellant and Mrs. Bertelmann about money, socks, underwear or shoes.
Krug testified that when he left Mrs. Bertelmann’s he went from her apartment with appellant, to appellant’s car, got in and drove to appellant’s restaurant. Mrs. Bertelmann testified that she watched them leave the apartment together, observed them go to appellant’s car and saw appellant open the door. She did not see them get in, although she assumed that they did.
We must keep in mind that one may not be convicted of treason upon evidence of an overt act, unless such act has been laid in the indictment. Burr’s Trial, United States v. Burr, 25 Fed.Cas. page 55, No. 14,693; Wharton’s Crim. Law, 11th Ed., vol. 3, Sec. 2153, p. 2310. Further, although not explicitly set forth in either the constitutional or statutory provisions, an intent to give aid and comfort to the enemy is an essential element of the crime of treason. United States v. Werner, D.C., 247 F. 708, 709; United States v. Fricke, D.C., 259 F. 673, 676; cf. United States v. Burr, C.C., 25 Fed.Cas. pages 52, 54, No. 14,692h; United States v. Burr, C.C., 25 Fed.Cas. pages 55, 90, No. 14,693; see United States v. Robinson, supra. Without an intent to give aid and comfort to the enemy, there is no treason. Wimmer v. United States, 6 Cir., 264 F. 11.
Overt acts Nos. (1), (2) and (3) as charged in the indictment, are briefly as follows:
(1) That Stephan traveled by automobile on April 18, 1942, from his home to the home of Mrs. Bertelmann, “for the purpose of taking * * * Peter Krug under * * * his protective care, and for the purpose of giving and with the intent to give said enemy Krug, aid and comfort.” (Words similar to those italicized conclude the allegation of each overt act.)
(2) That Stephan on April 18, 1942, obtained from Mrs. Bertelmann money of the United States for the use and benefit of Krug.
(3) That Stephan on April 18, 1942, escorted Krug from Mrs. Bertelmann’s home to the automobile then being used by Stephan.
As to overt act (1), there is evidence, as hereinbefore pointed out, that Mrs. Bertelmann talked to appellant by telephone, and that he arrived ten minutes or a quarter of an hour later and that it would have taken around a half hour to come by street car. Krug’s estimate was that it was a half to three quarters of an hour after the telephone call before appellant appeared. Krug did not see a car in front of the house when he came in. An inference might have been drawn by the jury that Mrs. Bertelmann reached appellant on the telephone a-nd that he must have come in his car since it was standing in front of the house. But even so, such an inference could hardly be based upon testimony by two witnesses.
There is a confusion of testimony regarding overt act (2) which hardly appears to have been proven by the testimony of two witnesses.
Overt act (3) was legally proven because both Krug and Mrs. Bertelmann were in accord that appellant escorted Krug from her house to the car appellant was using.
A failure to establish all the overt acts alleged is not fatal upon a motion for peremptory instructions. If one or more of such acts have been established, all others may be disregarded as surplusage. Wharton’s Crim. Law, supra, at page 2310; Wharton’s Crim. Ev., 10th ed., vol. 1, Sec. 131, p. 355.
Krug and appellant drove from Mrs. Bertelmann’s to appellant’s restaurant at 7209 Jefferson Avenue. Appellant went in the back way and directed Krug to enter by the front entrance. Krug did so and sat down at a table and appellant came over to him and Krug ordered food but did not pay for it. Appellant told Krug that he was busy and Krug took a walk down town, returning to the restaurant about the middle of the afternoon, when appellant said, “Now, I have nothing to do and it is your birthday today and we will take a pleasure trip,” Krug having told appellant at Mrs. Bertelmann’s that April 18 was his birthday. Appellant gave Krug a necktie and billfold and on the trip outfitted him with a small traveling bag.
It was in the course of this short trip that the second series of overt acts alleged, numbered (7), (8) and (9) in the indictment, took place:
(7) That Stephan on April 18, 1942, escorted Krug to Haller’s cafe in Detroit, and bought a drink for Krug and himself, and concealed the identity of Krug by introducing him as “one of the Meyers boys” for the purpose of concealing Krug’s identity.
(8) That Stephan on April 18, 1942, escorted Krug to the Progressive Club in Detroit, there buying drinks for Krug and himself, and concealing the identity of Krug “as a friend of his from Milwaukee.”
(9) That Stephan on April 18, 1942, escorted Krug to the place of business of Theodore Donay in Detroit, introducing Donay to Krug, who then related to Donay the incidents of his escape, his version of prison conditions in the prison camp in Ontario and of the intended future travel of Krug, at which place Stephan purchased candy for Krug and obtained money from Donay which was given to Krug for his use.
The first place visited was a business house engaged in renting glassware and crockery. Krug remained in the car but while appellant was in the building he had the proprietor make a telephone call for him concerning the departure of trains for Chicago and the fare between the two cities. Then the bag was bought; next they went to a restaurant where each had beer and whiskey. Krug testified that appellant talked in English to the man behind the counter and “may be * * * told him that I am a friend * * * of his from Milwaukee.” At this place, which was not identified by Krug by name, Krug left his bag and had to return for it. The place is identified, by the incident of the forgotten bag, as Haller’s Cafe. August Haller, who operated this place at 1407 Randolph, testified that Krug, whom he identified from photographs introduced by the Government, was introduced by appellant as one of the Meyers boys. He testified that appellant did not seem disturbed; and on the other hand, that he did not reveal Krug’s real identity.
Next they went to a coffee shop or social club, where Krug had coffee and cake. Krug testified that appellant did not talk to anybody at this place. The second witness to this incident was Joseph McGuire, patron of the Progressive Hall. He identified Krug from the photographs. He testified that they ordered a couple of “shells of beer,” took a couple of sips and left after five or ten minutes. Krug was not introduced. Some time during the afternoon they went to the place of business of one Donay, where appellant styled Donay a friend of his, after which Krug introduced himself as “Oberlieutnant Krug.” Krug testified that he told of his escape from Bowmanville, of conditions at the camp there, of a man who had been shot there, and of his intention to make his way back to Germany. While there, he testified, appellant bought some candy and gave it to him. Krug also obtained $20 at this place which came from Donay’s cash drawer, but he could not recall whether appellant actually gave him the money or whether Donay himself handed it to him. Krug could not recall that he saw any other person, clerks or customers in Do-nay’s place. On cross-examination he testified that Donay gave him the $20.
The confirmatory witness to overt act (9) is one Rintelen, clerk in the business house of Donay. He knew appellant and identified Krug from his photographs. He testified that the two came in and appellant asked to see Donay, whereupon the three, standing close together, “engaged in an important conversation which they held secretly.” He saw appellant purchase the candy and saw Donay go to his cash drawer and when he next looked Donay was walking back to the others. The next day Rintelen found a slip for $20.68 in the cash drawer, indicating that Donay had withdrawn that amount.
Of these three alleged overt acts we think that (7) was sufficiently proven by the testimony of the two witnesses Krug and Haller. The place was fixed by the circumstance of the forgotten bag and although there was divergence as to whether Krug was introduced as one of the Meyers boys, or as from Milwaukee, it is clear enough that appellant purposely concealed Krug’s identity.
Overt act (8)' is not so clear, for, although it is reasonably certain that both Krug and McGuire were thinking of the Progressive Club, Krug never identified it by name and there was no other happening from which it could be recognized. Further, we think that the proof of overt act (9) falls short. Rintelen overheard no consecutive part of the conversation that took place between Krug and Donay and we find nothing in his testimony from which a jury could be certain of what was said between them. The circumstances indicate with certainty that the Donay incident occurred but it cannot be established by vague testimony of one witness, plus circumstantial evidence. See United States v. Robinson, supra, 259 F. page 694.
The trip ended with appellant and Krug returning to appellant’s restaurant around 6:00 or 6:30 P. M. Here, it appears from the testimony of Krug and of a waitress, Erna Schwartz, that Krug ate a meal and sat around the restaurant until about 9:00 P. M., when he was let out the back door to go to the Field Hotel. During this period Krug sat at a booth and ordered food for which he did not pay. Later he sat at another table and a young couple and another young man sat down with him. He was not introduced to them by name but testified that so far as he could recall appellant introduced him as a friend from Milwaukee. The young couple, Karl and Eva Erhardt, testified. Neither would positively identify Krug from photographs as the man who sat with them at the table; but later Mrs. Erhardt was confronted with Krug in person in the courtroom and she then identified him as the man who had been at the table with them. Each recalled that appellant had pointed Krug out as a friend from Milwaukee. While they were at the table with Krug they spoke to him, but testified that he soon got up and left. The testimony of Erna Schwartz throws some doubt as to whether she or appellant served Krug the evening meal and whether Krug paid for it. She testified that she served Krug a glass of beer and some food and that he paid for it, although she was not sure.
We think that overt act (11), which in f-he indictment was alleged as follows: (11) That Stephan in the evening hours of 'April 18, 1942, escorted Krug to his place of business where he entertained him at dinner, giving him food and drink, and concealing his identity by introducing him as a man from Milwaukee- — -was sufficiently proved. There is no question that Krug was served a meal there and that appellant concealed his identity.
Overt act (12) averred as follows: (12) That Stephan on April 18,1942, gave orders to others in arranging- that Krug should register as a guest at the Field Hotel, Detroit, Michigan, and spend the night as a guest there — was not relied upon by the Government in its brief as proven by two witnesses. Nevertheless, we think it was so supported.
Krug testified that he and appellant talked about where he should spend the night and appellant proposed that he stay in the nearby Field Hotel. Erna Schwartz testified that appellant told her that Krug was a German fellow from Canada, and that appellant asked where he should put him to sleep for one night. Mrs. Schwartz testified that she told appellant she had a vacant room in her house and offered to put him up there for one night, but that appellant said, “Oh, I think he can go in Field Hotel to sleep.”
Krug did spend the night in the Field Hotel, being let out of the restaurant at the rear door by Mrs. Schwartz to go there. He came to the door of the restaurant about 8 o’clock the next morning by prearrangement with appellant who had looked up the bus schedule to Chicago. They drove down town, had breakfast together and appellant bought for Krug a bus ticket to Chicago.
We come now to the question of intent. Was there substantial evidence that appellant intended to adhere to Krug, an enemy of the United States, giving him aid and comfort?
Proof by two witnesses of criminal intent is not necessary. It may be proved by one or more witnesses, or by circumstances, or by a single fact. United States v. Fries, 9 Fed.Cas. pages 924, 931, No. 5,127. Krug was an “enemy” as that term is used in the constitutional clause defining treason. He was the subject of a foreign power in a state of open hostility with us. United States v. Greathouse, C.C., 26 Fed.Cas. page 18, No. 15,254; see also United States v. Fricke, supra. We had been at war with the German Reich since December 11, 1941.
There is substantial evidence found not only in appellant’s confession, hereafter to be considered, but in the testimony of Mrs. Bertelmann that appellant knew that Krug was an escaped German prisoner, even before he went to the Bertelmann house; and Krug testified that appellant smiled when he first confronted him. There is evidence from Krug’s testimony that the latter told appellant his whole story and of his purpose and intention to attempt to get to Germany through the United States and that when he arrived in Germany he intended to inform the German Government about all the events which had happened during the time he was a prisoner in Canada, about conditions in Canada and about the treatment of officers and men in the Canadian prison camps, and that he also intended to rejoin the German air force. Krug advised appellant that he desired to go to or through Chicago and he further testified, and appellant admitted, in the signed statement before referred to, that he checked the bus schedules for Krug, bought the traveling bag for him, went to the station with him and bought his ticket. This and other testimony hereinbefore recited supply proof that appellant, fully cognizant of Krug’s identity and plans almost from the outset, willingly and without stint gave of his time and substance to the furtherance of Krug’s plans and substantially support the finding of the jury of appellant’s treasonable intent as charged in the indictment.
The motion for peremptory instructions was properly denied.
Appellant contends that because Krug was an officer in the German Luftwaffe and an adherent to Nazi principles, he was therefore so infamous as to bar him from giving testimony and that the court should not have permitted him to testify. This proposition was not raised at the trial, and was probably waived by appellant’s cross-examination of Krug. However, we think it not improper to discuss it briefly.
When a witness takes the stand to testify, the law presumes that he is a competent witness and incompetency must be shown by the party objecting to him. Wharton on Crim.Ev., 10th ed., vol. I, Sec. 358, p. 721.
It is said that Krug was incompetent as a witness under the laws of Michigan and that the federal courts are bound thereby. Granted that this was the old rule, an important exception has been engrafted upon it. In Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, 93 A.L.R. 1136, the court said in substance that in criminal cases federal courts are not bound by such rules but that in the development of truth they are to apply them as they have been modified by changed conditions. But, all this to one side, we have been cited to no law of Michigan or decision of any federal court, that a German Army officer, although imbued with Naziism, is disqualified to give evidence in a court of justice and we make no such decision now.
It is urged that because Krug came to the witness stand dressed in the full uniform of an officer of the German Army and gave the Nazi salute he should have at once been disqualified by the court as a witness. Again this complaint is raised here for the first time. We find no evidence in the record that Krug was so attired or that he gave the salute. However, in the argument of the District Attorney there was reference to Krug’s dress and behavior. But, assume the fact, the manner and demeanor of the witness was relevant in determining the weight and credibility to be given to his testimony by the -jury. It did not require, in the reasonable exercise of the court’s discretion, his disqualification and rejection altogether. The court in its charge might have been somewhat more specific with reference to the effect of Krug’s misconduct, if in fact there was such misconduct, but there was no exception whatever to the charge.
The appellant complains of the failure of the court to compel Krug to answer certain questions on cross-examination, or in the alternative, to strike his entire testimony.
The questions he refused to answer on cross'-examination on the grounds that they involved a military secret were, (1) “How much money, if any, did you have when you arrived in Detroit ?”; (2) “How much money, if any, did you have on your person when you left Detroit on the 19th of April?”; (3) “Will you state to the jury, if you can, what part of the City of Detroit you landed in when you first landed from Canada ?”; (4) re: the clothes he was wearing when he arrived in Detroit; “And underneath the coveralls did you have a suit of clothes, a coat and a pair of pants?”; (5) “How much did you have when you arrived at San Antonio?”; (6) with reference to his membership in the Luftwaffe, he refused to give the number of “any particular battalion or squadron or section”; (7) with reference to a piece of cardboard with writing thereon in his own handwriting which was found on him in San Antonio, he was asked, “What does it say? What does it say on there?” to which he replied, “I won’t read it.”
Immediately following his refusal to answer the first question of those enumerated, the court interposed to say, “It is a proper question. * * * I don’t see that can be * * * any military secret. * * * ” To which the prisoner answered: “I am sorry. I can’t answer this question because I can’t tell Canadian officials if it is possible or if it is not possible for a prisoner of war to get some money, and if I tell it I had a lot of money with me then they know that in any way I got some money in the prison camp, and if I tell No, I had no' money with me, then they know too that there is no way that the prisoners gets some money. Do you understand what I mean? So I can’t answer his question.”
The court then reiterated its opinion that it involved no military secret and was a proper question, “relevant to the direct examination.” Counsel for the appellant then said: “I think we should have a ruling here at this time whether this witness, having submitted himself voluntarily as a witness in this case, stands on any different footing than any other witness who refuses to answer a question when the court rules that it is a proper question.” The court replied: “Well, not as a matter of law, but from a practical standpoint as a prisoner of war he stands in a very different situation. It is much the same situation as I once had with other witnesses who were serving a life time in Jackson Prison. * * * I just didn’t know what I could do. If anybody can tell me, why I welcome the information.” No exception was taken and counsel continued cross-examination.
In explanation of his refusal to answer the second enumerated question, the prisoner defined a military secret as follows: “A military secret, when we make an escape all the facts in connection with an escape are military secrets, because every single thing which we do and which happens during an escape give information to the enemy how we handle such an escape and how we are able to escape, and how we are able to make our way to the states and so on.”
Later in the cross-examination counsel for appellant in addressing Krug said, “You understand from your knowledge of international law that there is no power on earth that can make you testify in this law suit unless you wanted to; you know that,” to which Krug answered, “That is right.”
Then Krug said his purpose in testifying was “to clear about that he (Stephan) didn’t do what he is charged with. I was only asked to tell the truth about the case and which is wrong, what FBI has charged him and all other persons who are charged with having known who I am.”
Krug had earlier on direct examination refused to answer the following questions because they were military secrets: (1) “How long have you been serving as an officer of the * * * German Air Force?”; (2) in connection with the clothing he was wearing when he went to Mrs. Bertelmann’s he was asked, “What was the other clothing?” to which he replied: “ * * * I can’t tell you how I was dressed to make my escape”; (3) “Now, after you got to Chicago, how long did you stay there, Lieutenant?”; (4) “Now why did you go to New York?” In connection with his refusal to answer this question he .stated later that his trip to New York was in connection with his purpose to get out of the country and back to Germany.
Finally, on redirect examination, when he was being asked by Government counsel about the circumstances of the conversation with Donay, Krug interrupted and addressed the court. He asked, “Your Honor, would you be good enough to answer a question?” Krug said, “The defender of Mr. Stephan told me that I stayed and testified against Stephan. If that is so, I will be relieved from further questioning.” The court then said to the stenographer, “Will you read what he said” and Krug’s answer was read. Krug then said: “I don’t intend to testify against Stephan. I was told by the FBI agents
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_appel1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Edward EGGENBERGER, Appellant, v. ERIE RAILROAD COMPANY.
No. 11430.
United States Court of Appeals, Third Circuit.
Argued Feb. 23, 1955.
Decided March 4, 1955.
I. Reines Skier, Hawley, Pa., for appellant.
Joseph C. Kreder, Scranton, Pa. (Walter L. Hill, Jr., Edward W. Warren, of Harris, Warren, Hill & Henkelman, Scranton, Pa., on the brief), for appel-lee.
Before GOODRICH, KALODNER and STALEY, Circuit Judges.
PER CURIAM.
This is an appeal from a judgment for the defendant in a personal injury case. The case, which arose out of a grade crossing accident, was tried to the court who made full findings of fact. Those findings depend upon his acceptance of one line of testimony which was inconsistent with the evidence given for the plaintiff. This is the type of case where Rule 52(a), 28 U.S.C., is, by its own terms, especially applicable. The court’s findings are not clearly erroneous. There is no disputed proposition of law.
The judgment of the district court, 122 F.Supp. 481, will be affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_altdisp
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) 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".
Ferd SCHNEIDER v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership, et al., Clermont Tenants Association, Inc., a D.C. Non-Profit Corp., d/b/a Clermont Partnership, Appellant. Ferd SCHNEIDER v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership, et al., 2106 F Street Associates, Appellant. Ferd SCHNEIDER v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership and Clermont Corporation, a D.C. Corporation, Appellants, Clermont Tenants Association, Inc., a D.C. Non-Profit Corp., d/b/a Clermont Partnership, et al. Ferd SCHNEIDER, Appellant, v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership, et al.
Nos. 83-2075 to 83-2078.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 13, 1984.
Decided July 23, 1985.
Kate Abbott Martin, Washington, D.C., with whom David N. Webster and William R. Robertson, Washington, D.C., were on the brief for 2106 F Street Associates and Clermont Tenants Ass’n appellants in No. 83-2075 and 83-2076 and cross-appellees in No. 83-2077.
Reuben B. Robertson, III, Washington, D.C., for Dumbarton Developers, Inc., et al., appellant in No. 83-2077 and cross-appellees in Nos. 83-2075, 83-2076 and 83-2078.
Howard H. Stahl, Washington D.C., for Ferd T. Schneider appellee in No. 83-2078 and cross-appellant in Nos. 83-2075, 83-2076 and 83-2077. Loren Kieve, Washington, D.C., also entered an appearance for Schneider.
Before MIKVA, GINSBURG and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
MIKVA, Circuit Judge:
This appeal and cross appeal (as well as the related case District-Realty Title Insurance Corp. v. Ensmann, 767 F.2d 1018, also released today) arise frbm appellee Ferd Schneider’s abortive attempt to sell the appellants the Clermont apartment building, located at 2106 F Street, N.W., in Washington. This court has jurisdiction on the basis of diversity of citizenship. See 28 U.S.C. § 1332 (1982).
The legal questions raised are straightforward, but the facts are convoluted. The district court’s findings consume almost twenty pages of small type. We repeat only the more salient findings here.
On February 10, 1981, Schneider agreed to sell his building to appellants, Clermont Tenants Association, Inc., (“CTA”), a District of Columbia nonprofit corporation and Dumbarton Developers, Inc. (“Dumbarton”), a District of Columbia corporation, co-partners t/a Clermont Partnership, (collectively, the purchaser) (see Land Purchase Agreement, reprinted in Record Excerpts (“R.E.”) at 319-36). Dumbarton apparently had been recruited by CTA as a developer partner; its role was to obtain the funds necessary to buy the property and make certain payments of cash and notes to CTA members. Under the terms of the Land Purchase Agreement, settlement was to have been completed 120 days following execution of the agreement. At the purchaser’s request, however, settlement was postponed twice. Finally, Schneider announced that unless “full settlement [was] made on or before 3:00 P.M., May 17, 1982,” he would consider the Land Purchase Agreement terminated. On May 17, Schneider did all that the Agreement required of him, but the purchaser failed to make settlement. Schneider then brought suit seeking a declaratory judgment that the agreement was terminated. This suit was settled under an “Agreement of Settlement and Release,” dated August 4, 1982 (“August 4 Settlement Agreement”, reprinted in R.E. at 108-13).
Under the August 4 Settlement Agreement, purchaser agreed to “consummate settlement of the Agreement on or before October 4, 1982, time being of the essence.” Apart from seven exceptions not pertinent to this appeal, the time for settlement could not be further extended for “any reason whatsoever.” The agreement further provided:
[I]n the event it fails to consummate settlement as aforesaid, the deposit in the amount of Fifty Thousand Dollars ... shall be forfeited to Schneider as liquidated damages, the Agreement will thereupon be terminated and of no further force or effect, and the parties relieved of all further liability or obligation thereunder. Clermont, Dumbarton, and Corporation agree that in the event settlement is not consummated in accordance with the terms of Paragraph 1, they shall thereupon have waived and relinquished any and all interest in or rights to purchase the property.
Thus, the purchaser was given two months — from August 4, 1982, until October 4 — to consummate settlement. Schneider was ready, willing, and able to make settlement at all times during that period, but the purchasers designated the very last day, October 4, 1982, as the earliest date at which they would be ready to make settlement.
Unbeknownst to Schneider, Dumbarton had entered into a financing arrangement with West German investor Rudolf Ensmann for the purchase and development of the property. Since early September 1982, moreover, Ensmann’s attorneys had been attempting — without success — to persuade Dumbarton to let Ensmann take title to the property at the closing. Having failed to persuade Dumbarton, Ensmann’s attorneys had begun pressing CTA to exercise its contractual option to buy out Dumbarton’s share of the partnership. As of daybreak on October 4, however, no agreement had been reached.
The events of October 4, 1982, and the days immediately following are a tangled web of mix-ups, mistakes, and miscalculations.
On the morning of October 4, Ensmann’s attorneys finally concluded an “Agreement for Assignment and Disbursement” with CTA under which CTA was to assign all of the Clermont Partnership’s right, title, and interest in the apartment building to Ensmann and do everything in its power to ensure that Ensmann perfected title to the property. Schneider was not told of this agreement. At about noon, 2106 F Street Associates (“2106”) was created as a limited partnership 99% owned by Ensmann. Schneider was not told about this development either.
Schneider and his attorney arrived at the title company at about 2:00 P.M. and had completed their part of the transaction by about 2:20 P.M. At that time, one of Dumbarton’s attorneys informed Schneider that it “might be necessary” to change the name of the grantee on the deed. Schneider’s lawyer replied that his client had no objection provided he “gets his money.” The possible new grantee was not named, and Schneider was still not informed of the agreement which had been concluded that morning.
Schneider asked the settlement officer for his payment, but was told it was not yet available. Schneider asked “when will I get my money” and was told to call the title company on Wednesday, October 6. Having fulfilled all his obligations under the Land Purchase Agreement and the August 4 Settlement Agreement, Schneider left the title company’s offices at about 2:30 P.M. At about 4:00 P.M., Schneider’s attorney phoned the title company and was informed that the purchaser had not completed settlement. He was still not informed, however, of the assignment or of the creation of 2106.
Between 4:00 and 5:00 P.M., CTA delivered to Dumbarton a document that purported to exercise CTA’s option to buy out Dumbarton’s interest in the Clermont Partnership. Dumbarton immediately informed CTA that Dumbarton was not in default as to any of its obligations, considered the purported exercise of the option invalid, and would contest it.
At about 6:00 P.M., lawyers for CTA and for 2106 delivered escrow instructions and three checks totalling $1,405,000 to the title company. Dumbarton had never authorized or joined in the escrow instructions. The instructions were defective in a number of other respects as well.
Schneider’s attorney called the title company’s offices at about 6:30 P.M. and was again told nothing except that settlement had not been completed.
At about 8:30 P.M., new escrow instructions were delivered to the title company, this time by CTA, 2106 and Dumbarton. The title company was unable to comply with the mandate of the instructions because they contained several preconditions which could not be satisfied. Specifically, the instructions required certain payments to Dumbarton, CTA, and others, for which the sums then deposited with the title company were insufficient. The instructions also required delivery to the title company of certain documents — CTA’s assignment of its interests to 2106 and Ensmann’s release of a lawsuit against Dumbarton— which either had not been delivered or had not been fully executed.
At about 10:00 A.M. on October 5, 1982, Schneider’s lawyer called the title company and learned that settlement had still not been made. At 11:00 A.M., representatives of Dumbarton, CTA, and 2106 (Ensmann) arrived at the title company, delivered more money, and began drawing up still more instructions. At 2:00 P.M., Schneider’s attorney called again. After learning that settlement was still not complete because the title company could not comply with the latest escrow instructions, Schneider decided to terminate the Land Purchase Agreement. Schneider and his lawyer appeared at the title company at about 2:50 P.M. and, upon being informed by the settlement officer that no substantial progress has been made, tendered a letter terminating the agreement and claiming the $50,000 deposit as liquidated damages. Schneider’s attorney instructed the title company to return ail documents submitted in connection with the settlement.
After Ensmann’s attorneys learned that Schneider had terminated the agreement, they drafted yet another set of escrow instructions and directed that the title company issue a check for the adjusted purchase price to Schneider.
On the morning of October 6, Schneider’s attorney received from the title company, not the documents whose return he had requested, but instead the check, a copy of a new deed naming 2106 as grantee, and a new District of Columbia Real Estate Deed Recordation Tax and Real Property Tax Return. This was the first that Schneider’s attorney had heard of 2106. The title company had forwarded a copy of CTA’s assignment of its rights to 2106; it had forwarded nothing indicating a similar assignment by Dumbarton. Schneider’s attorney was aware of disputes among Dumbarton, CTA, and their financial backer and, consequently, was leary of assuming Dumbarton’s acquiescence. He asked a lawyer who was acting for both Ensmann and 2106 whether she could obtain Dumbarton’s consent to the exercise of the option and was told that that would be “impossible.” Ensmann’s attorneys offered to indemnify Schneider for any resultant litigation.
Schneider’s attorney advised that the proffered indemnification was inadequate to protect Schneider from lawsuits claiming he had wrongfully transferred property. Thus, on October 7, 1982, Schneider returned the check and filed suit in district court, seeking a declaratory judgment that the Land Purchase Agreement was terminated, $50,000 in liquidated damages, and attorney fees. Dumbarton and CTA counterclaimed for specific performance. The district court found for Schneider, declaring the agreement terminated and holding all the defendants jointly and severally liable in the amount of $50,000, but ordered the parties to bear their own costs and fees. Defendants appealed; Schneider cross-appealed for attorney fees. We affirm all aspects of the district court’s judgment except the conclusion that 2106 is jointly and severally liable with the other defendants for the $50,000 liquidated damages.
Substantial Performance:
The appellants contend that their actions on October 4 and the two days immediately following constituted substantial performance under the contracts. Although the district court may have overstated the holding of Drazin v. American Oil Company, 395 A.2d 32 (D.C.App.1978), in asserting that the doctrine of substantial performance can never apply where time is of the essence, the district judge reached the correct result.
In Drazin, the District of Columbia Court of Appeals considered whether a unilateral act by one party could add a “time is of the essence” provision to a real estate contract that initially had not had one. The court concluded it could and denied appellant Drazin’s claim for specific performanee, noting that he had failed to meet the deadline that the defendant had imposed.
The court did not address the question of whether Drazin’s performance had been substantial or whether the substantial performance doctrine in general could apply where time is of the essence. We too need not decide whether the substantial performance doctrine has any proper application to time is of the essence contracts because it is evident that the appellants did not substantially perform. The appellants’ acts on October 4 were not sufficient to constitute substantial performance and their acts after that date may not properly be considered.
Under District of Columbia law, “time is of the essence” provisions are taken seriously and occasion a departure from the ordinary rules governing time limitations in land contracts. Generally, the time set in a real estate contract is looked upon as “an approximation of what the parties regard as a reasonable time.” Drazin, 395 A.2d at 34; Doering v. Fields, 187 Md. 484, 490, 50 A.2d 553, 555-56 (1947). Normally, neither party is held strictly to the time limit although the limit is “not nugatory” and the seller has “a right to expect that the vendees [will] be ready at about that time.” Drazin, 395 A.2d at 34. Such laxity ceases, however, where time is of the essence. In contracts for sale of land
equity treats the [time] provision as formal rather than essential, and permits the purchaser who has suffered the period to elapse to make payment after the prescribed date, and to compel performance by the vendor notwithstanding the delay, unless it appears that time is of the essence of the contract by express stipulation, or by inference from the conduct of the parties, the special purpose for which the sale was made, or other circumstances surrounding the sale.
Id.; Kasten Construction Co. v. Maple Ridge Construction Co., 245 Md. 373, 379, 226 A.2d 341, 345 (1967) (both quoting Soehnlein v. Pumphrey, 183 Md. 334, 338, 37 A.2d 843, 845 (1944)).
Given that the August 4 Settlement Agreement stated not only that “time is of the essence” but also that “the time for settlement may not be further extended for any reason whatsoever,” acts performed after the October 4 deadline may not be considered in determining whether there was substantial performance. The appellants actions before the October 4 deadline, however, do not constitute substantial performance.
As commentators have noted, see, e.g., Corbin on Contracts § 704, substantial performance is not susceptible of simple definition. It is generally conceded to exist, however, when a contracting party has failed to render full performance but the defects are, all considered, minor. Although it most often applies to construction contracts (and some cases have even limited it to that context, see, e.g., Corbett v. Freedman & Sons, 161 N.E. 415, 263 Mass. 391 (1928)), the general view is that the doctrine may apply to any contract, see Corbin on Contracts § 701. Whether a particular tender of performance is ‘substantial’ depends on the facts of the case.
Where the line is to be drawn between the important and the trivial cannot be settled by a formula. In the nature of the case, precise boundaries are impossible. The same omission may take on one aspect or another according to its setting ... Nowhere will change be tolerated, however, if it is so dominant or pervasive as in any real or substantial measure to frustrate the purpose of the contract____ The question is one of degree, to be answered ... if the inferences are certain, by the judges of the law. We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence.
Jacob & Youngs v. Kent, 129 N.E. 889; 230 N.Y. 239 (1921) (Cardozo, J.). Important factors are the character of the performance promised, the purposes and interests it was expected to serve, and the extent to which nonperformance has defeated those purposes and ends. Another key consideration is the actual receipt and enjoyment of benefits by the defendant. In short, substantial performance does not contemplate full performance but does contemplate performance of all important parts of the contract. See Corbin on Contracts § 712.
Turning to the facts at hand, we find that the performance tendered by the appellants cannot be considered substantial. The central purpose of the contract was to effect a transfer of real estate. To realize this purpose, the appellants had to pay the full purchase price to the title company (which would then issue a check to Schneider) and agree to a transfer to the entities named in the original agreement or their lawful substitutes. Neither of these acts was performed on October 4.
That the appellants paid ‘substantial’ sums of money over to the title company was of no benefit to Schneider because the appellants’ escrow instructions prevented the title company from releasing the funds. We reject appellants’ contention that the unfulfilled preconditions in the escrow instructions were merely minor details, devoid of real significance. Since the title company would not release any funds to Schneider until the full amount was deposited, these ‘minor details’ prevented Schneider from receiving any payment whatsoever on the date due, let alone the full payment to which he was entitled under the contract.
Equally important, the appellants failed to make proper provisions for the transfer of title. Schneider was contractually bound to deliver the property to the Clermont Partnership, but the partnership’s financial backer, Ensmann, was insisting upon transfer to a new entity called 2106. This controversy was not resolved on October 4, nor, so far as the record discloses, at any point thereafter.
Ensmann was able eventually to present a legally effective assignment from CTA to 2106 but admitted that it would be “impossible” to obtain a similar document from Dumbarton. The best Ensmann could do was make a lame offer to indemnify Schneider if Dumbarton sued for wrongful transfer. Indemnity is not performance and cannot be cavalierly substituted for performance. Nor is the distinction a mere technicality. Ensmann in essence had conditioned payment on the issuance of a new deed not in accordance with the Land Purchase Agreement. Such “performance” is not “substantial”; indeed under District of Columbia law, it is of no effect whatsoever. Ferguson v. Caspar, 359 A.2d 17, 24 (D.C. 1976), holds that “a tender of performance by the purchaser which contains conditions other than those specified in the contract between the parties is ineffectual.”
In sum, the August 4 Settlement Agreement made timely compliance a key term of the contract by stating both that “time is of the essence” and that the time for compliance could not be extended for “any reason whatsoever.” When we further recall the history of the case — the original provision for settlement within 120 days of the execution of the Land Purchase Agreement, the two postponements at the appellants’ request, Schneider’s ultimatum that payment be made by May 17, 1982 or the contract would terminate and appellants’ failure to meet the deadline, Schneider’s original suit for declaratory judgment and the August 4 Settlement Agreement providing the appellants with one last chance to buy the property — we have no difficulty discerning that stricter adherence to the deadline was intended than is generally the case in real estate transactions. The parties bargained for the strict construction that Schneider urges and it would be improper for the courts to put any other interpretation on the “time is of the essence” clause.
It would therefore be improper to include acts performed after October 4 in considering substantial performance. Turning to the events of October 4, we find that the appellants failed to pay the seller any money and failed also to resolve a dispute as to which entity would take title. Both of these failures go to the heart of the contract. They are material; indeed it is difficult to imagine anything more material.
Reviewing all the circumstances of the present case, we conclude that the district judge was correct in ruling that the appellants had not substantially performed their obligations under the contract within the time allotted.
Notice and Opportunity to Cure:
The appellants argue that under the terms of the Land Purchase Agreement, they were entitled to notice of default and a five-day opportunity to cure the default, which entitlements were improperly denied by Schneider’s filing suit only three days after the scheduled settlement date. The appellants suggest that the contract’s notice and cure provision applied to any and all defaults, even the most grievous. We need not determine whether this interpretation — which in effect provides an automatic extension whenever settlement is not made — is correct. We agree with the district judge that the August 4 Settlement Agreement effectively eliminated the grace period provision from the agreement between the parties.
The August 4 Settlement Agreement, reached in compromise of a lawsuit that had been filed solely because of excessive delays in making settlement under the contract to purchase, essentially provided for one last chance to complete the deal. The agreement not only asserted that “time is of the essence” but also emphatically stated that “the time for settlement may not be further extended for any reason whatsoever.”
Settlement agreements are in high judicial favor. See, e.g., Williams v. First National Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 445, 54 L.Ed. 625 (1910); Autera v. Robinson, 419 F.2d 1197, 1199 (D.C.Cir. 1969). They enable the parties to avoid the expense and delay involved in full litigation of the issues and spare the court the burden of trial. The District of Columbia partakes of the general view that such an agreement voluntarily entered into cannot be repudiated by either party and will be enforced summarily by the court. See, e.g., Autera v. Robinson, 419 F.2d at 1200; see also Kelly v. Greer, 365 F.2d 669, 671 (3rd Cir.1966), cert. denied, 385 U.S. 1035, 87 S.Ct. 772, 17 L.Ed.2d 682 (1967); Cummins Diesel Michigan, Inc. v. The Falcon, 305 F.2d 721, 723 (7th Cir.1962).
A settlement agreement resolving a contract dispute is said to operate as a substituted contract, cancelling or modifying the prior contract to the extent that the two are inconsistent. See Sirota v. Econo-Car, International, Inc., 556 F.2d 676, 681 (2d Cir.1977); Jersey Central Power and Light Co. v. Local 327, IBEW, 508 F.2d 687, 703 & n. 44 (3rd Cir.1975); Restatement of Contracts § 408 (1932 & Supp. 1979); 6 Corbin on Contracts § 1293 (1962). Whether the provisions of a subsequent contract are deemed to supersede the provisions of a prior contract turns on the parties’ intent which is ascertained from the contracts themselves when they are unambiguous. See Jersey Central Power & Light Co., 508 F.2d at 703.
We find that the August 4 Settlement Agreement clearly meant for October 4, to be the last and final opportunity to settle and that an automatic five-day extension is inconsistent with the intent of the Settlement Agreement. We conclude that the settlement contract eliminated the grace period provision and that, consequently, the appellants’ claim of entitlement is without merit.
Waiver:
The appellants assert that even if Schneider had a right to demand payment on October 4, his actions on that day constituted a waiver. The appellants point to Schneider’s failure to terminate the agreement when first informed that the title company would not pay out his money before October 6 and Schneider’s apparent willingness to provide a new deed if necessary. We reject appellants’ waiver argument.
Under District of Columbia law, which we are bound to apply in this diversity case, a written contract specifying that time is of the essence can only be modified in writing. See Landow v. Georgetown-In land West Corp., 454 A.2d 310, 313 (D.C. 1982). In Landow, the District of Columbia Court of Appeals rejected arguments remarkably similar to those advanced by the appellants here. The buyer had contended that as long as he was making good faith efforts to consummate the transaction, the settlement date should be extended notwithstanding a “time is of the essence” clause. The court rejected the buyer’s argument as “without legal foundation” and “commercially impracticable.” Id.
The court noted that in a written contract where time is not of the essence, strict compliance with the date of performance may be waived orally. Where time is stated to be of the essence, however, a different rule applies. Modification of the date of settlement is then regarded as a material change which cannot be effected without a writing. Since no one here contends that Schneider’s right to demand adherence to the October 4 deadline was ever waived in writing, whether Schneider’s actions suggested a willingness to dispense with the deadline is and should be irrelevant.
A different rule would be inconsistent with public policy. Were we to adjudge acts as equivocal as Schneider’s sufficient to constitute a binding waiver of material contractual rights, we would discourage the negotiations and minor, reasonable accommodations which are the norm in the business world. The consequence would be a decrease in flexibility and an increase in litigation. Such a rule would be as unwise as it would be unprecedented in District law. Consequently, we affirm the trial court’s conclusion with respect to waiver.
Attorney Fees:
Schneider has cross-appealed from the district court’s denial of attorney fees. We affirm the district court. The cases Schneider cites fail to establish his entitlement to fees. Under the American rule, parties normally bear their own costs and fees. A fee award is an extraordinary remedy which the court grants only where specially authorized by contract or statute or where the conduct of the losing party was exceptionally bad. See, e.g., Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 249-70, 95 S.Ct. 1612, 1617-28, 44 L.Ed.2d 141 (1975); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-19, 87 S.Ct. 1404, 1406-07, 18 L.Ed.2d 475 (1967); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979).
Schneider, rather than the appellants, initiated this lawsuit in the district court, and although the legal position of the appellants was weak and they have pursued their cause here without success, we are not convinced that they have acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.” Cf. Wisconsin Avenue Associates, Inc. v. 2720 Wisconsin Avenue Cooperative Association, Inc., 385 A.2d 20, 24 (D.C.App.1978); 1901 Wyoming Avenue Cooperative Association v. Lee, 345 A.2d 456, 465 (D.C.App.1975); F.W. Berens Sales Co. v. McKinney, 310 A.2d 601, 603 (D.C.App.1973).
Nor do we accept Schneider’s claim that he is entitled to fees on a breach of contract theory. He asserts that the August 4 Settlement Agreement was a contract and that a major goal of the agreement was to avoid litigation; by forcing him to sue for declaratory judgment and then pursuing this appeal, appellants, he contends, deprived him of the benefit of his bargain. A settlement agreement is, of course, a contract, see Bullard v. CurryCloonan, 367 A.2d 127, 131 (D.C.App. 1976), and litigation in defiance of a promise not to sue could constitute a breach. But no such situation presents itself here. The August 4 Settlement Agreement contains no explicit covenant not to sue. Even if we were to find such a covenant by implication, as the law permits us to do, the covenant would go only to the merits of the controversy settled — not to the existence or terms of the Settlement Agreement itself. See Winchester Drive-In Theatre, Inc. v. Warner Bros. Pictures Distributing Corp., 358 F.2d 432, 436 (9th Cir.1966). Since we find that this suit arose from genuine disputes as to the terms and import of the settlement agreement, we reject Schneider’s breach of contract theory.
Where the trial court exercises its discretion to award or deny attorney fees, our role on review is restricted to determining whether discretion was abused. See Trilon Plaza Co., 399 A.2d at 38; Panos v. Nefflen, 205 A.2d 600, 602 (D.C.App.1964) (quoting Shima v. Brown, 140 F.2d 337, 337 (D.C.Cir.1943)). Here we have little difficulty in concluding that the trial court exercised its discretion soundly. Indeed, as indicated above, we are unaware of any precedent which would authorize the award of fees in the circumstances of this case.
Liability of 2106 F Street Associates:
Appellant 2106 objects on both procedural and substantive grounds to its being held jointly and severally liable for the $50,000 liquidated damages. 2106 contends that because it appeared as an intervenor and Schneider never amended his complaint to include specific claims against the intervenor, 2106 had neither adequate notice of nor reasonable opportunity to defend against the liquidated damages liability. 2106 further contends that it assumed no liability for damages under the agreements between it and Dumbarton and CTA. We find the first contention without merit, but agree with the second.
When a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party. See District of Columbia v. Merit Systems Protection Board, 762 F.2d 129, 132 (D.C.Cir.1985); Marcaida v. Rascoe, 569 F.2d 828, 831 (5th Cir.1978). The intervenor renders itself “vulnerable to complete adjudication by the federal court of the issues in litigation between the intervenor and the adverse party.” United States v. Oregon, 657 F.2d 1009, 1014 (8th Cir.1981) (quoting 3B Moore’s Federal Practice ¶ 24.16[6] (2d ed. 1981)). It is said to assume the risk that its position will not prevail and that an order adverse to its interests will be entered. See 7A C. Wright & A. Miller, Federal Practice & Procedure § 1920, at 611 (1972). As we said recently, “the possibility that the plaintiff will be able to obtain, relief against the intervenor-defendant” is part of the “price” paid for intervention. District of Columbia, at 132.
As an intervenor, 2106 subjected itself to the plaintiff’s claims against the defendant, notwithstanding plaintiff’s failure to amend his complaint to include reference to 2106. 2106 entered the lawsuit with full awareness of the nature of Schneider’s claims against the defendants and participated actively. It argued vehemently that it was the lawful substitute for the original parties and had the right to take title to the property under the contracts negotiated by the original parties. It was aware, moreover, that Schneider’s trial brief asked for “judgment against the defendants CTA, Dumbarton, and 2106 FSA, and each of them, in the amount of $50,000” (emphasis added). Although 2106 may not have anticipated that the court would hold it liable, unpleasant surprise is not the same as unfair surprise and certainly does not constitute a due process violation in circumstances such as these. The district court therefore reasonably rejected 2106’s claim of inadequate notice and opportunity to defend. See Order, Civ. Action No. 82-2876 (D.C.D.C. Sept. 27, 1983); cf. Memorandum of Points and Authorities in Support of 2106 F Street Associates’ Motion for Reconsideration, Schneider v. Dumbarton Developers, Inc., Civ. Action No. 82-2876.
The district court erred, however, when it concluded that 2106 was jointly and severally liable for the liquidated damages. Given that appellants failed to make settlement and that Schneider lawfully terminated the contract, 2106 was under no further obligation. It was not the defendants’ assignee unless settlement was made and even if it had been, under District of Columbia law, the terms of the assignments were insufficient to impute an assumption of liability to 2106.
The agreement between 2106 and CTA, see R.E. at 122-26, and the agreement between 2106 and Dumbarton, see id. at 141-51, were drafted at the eleventh hour when the danger that the deal would fall
Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_alj
|
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: "Did the court support the decision of an administrative law judge? 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".
PUBLICKER INDUSTRIES, INC. and Continental Distilling Corporation, Appellants, v. ROMAN CERAMICS CORPORATION.
No. 78-2400.
United States Court of Appeals, Third Circuit.
Argued June 4, 1979.
Decided Aug. 8, 1979.
Harold Cramer, Anthony E. Creato (argued), Jeffrey Cooper, Mesirov, Gelman, Jaffee, Cramer & Jamieson, Philadelphia, Pa., for appellants.
Meyer J. Myer (argued), Chicago, Ill., David H. H. Felix, Philadelphia, Pa., Myer New Berlin & Braude, Chicago, Ill., for appellee.
Before ADAMS and ROSENN, Circuit Judges, and LAYTON, District Judge.
Honorable Caleb R. Layton, 3rd United States District Judge for the District of Delaware, sitting by designation.
OPINION OF THE COURT
ROSENN, Circuit Judge.
In contemplation of the American Bicentennial celebration, Publicker Industries, Inc. (“Publicker”) conceived of the idea of putting four-fifths of a quart of whiskey in miniature ceramic replicas of the Liberty Bell and retailing the “patriotic product” for $19.99 each. Continental Distilling Corp. (“Continental”), Publicker’s wholly-owned subsidiary, became involved in the implementation of this idea, and Roman Ceramics Corporation (“Roman”) agreed to supply the uniquely-shaped containers at prices ranging between $6.35 and $6.55 per bottle. A snag in the plan developed when Roman discovered a similarity between 40,-000 of the bottles it had manufactured and the original design it was copying: each of the bottles, like the Liberty Bell itself, had a crack in its side rendering it unsuitable to hold liquor. Unsuccessful efforts to find a suitable disposition of these defective bottles led to a suit by Publicker and Continental against Roman in the United States District Court for the Eastern District of Pennsylvania. The district court entered judgment in favor of Roman, and Publicker and Continental appealed. Because the district court did not make certain critical findings, we will vacate the judgment and remand the case for further proceedings.
Although the design for the bottles was originally drawn in 1975 by Publicker and Roman, the actual purchase orders came from Continental. Roman had been manufacturing the bottles and billing Continental for several months when the problem arose. Roman discovered and advised Continental in January 1976 that 40,000 bottles were defective and unusable as whiskey containers. Letters were exchanged, the effect of which culminated in a dispute. Roman contended that Continental agreed to purchase the defective bottles at $2.50 each, and Continental claimed no agreement had been reached. In May, Continental suggested that Roman dispose of the bottles elsewhere, but Roman responded that there was a firm contract and billed Continental for $100,000. The bottles remained undelivered and in Roman’s possession.
In August 1976, Roman began direct negotiations with Publicker concerning the disposition of the bottles. A new agreement was reached in September 1976, under which Publicker agreed to purchase the 40,-000 defective bottles at $1.00 each and to purchase 12,000 new bottles at $6.55 each. Publicker paid Roman $40,000, but subsequently learned that approximately 1200 of the defective bottles had been sold by Roman to an outside party. Publicker viewed this as a breach of its contract with Roman justifying rescission and demanded that the $40,000 be returned. Roman refused. Thereupon, Publicker and Continental sought a judgment in this proceeding in the amount of $40,000 and a declaration that the contract to purchase 12,000 additional bottles had been rescinded.
Roman, incorporated in Delaware with its principal place of business in Illinois, moved to dismiss the suit because of lack of diversity between it and Continental. Continental has its principal place of business in Pennsylvania but is incorporated in Delaware. (Publicker is incorporated and has its principal place of business in Pennsylvania.) The district court dismissed the motion without prejudice for failure to comply with the local rule concerning notice. Rather than renew the motion, Roman chose to file an answer and counterclaim. In its answer, Roman again controverted the jurisdictional allegation, made in plaintiffs’ complaint, that Roman was incorporated in Illinois, and stated that it was incorporated in Delaware. The counterclaim averred that the plaintiffs’ original contract to purchase the bottles at $2.50 each was still valid, and that an invoice in the amount of $9,864.30 for bottles previously shipped remained unpaid. (The unpaid invoice is not in issue on this appeal.) After reduction for the $40,000 already paid, the counterclaim sought damages of $69,864.30 plus interest.
The district judge, following a bench trial, entered judgment for the defendant against both plaintiffs on the original claim and the counterclaim. In so doing, he made the following findings:
1) The September 1976 contract had been rescinded and the parties were relieved from any obligations under it.
2) The January 1976 contract was still binding on the parties.
3) Roman did not breach the January contract. by selling approximately 1200 bottles to outside parties.
4) The plaintiff corporations acted as “alter egos for each other” and could be treated interchangeably, “as one in the same.”
5) Plaintiffs were obligated to pay the price set forth in the January contract of $100,000, less $40,000 already paid, and less $3,259 received by Roman for the 1200 bottles, together with certain other adjustments.
Thu3, the court entered judgment for the defendant and against both plaintiffs in the amount of $73,047.17.
Plaintiffs then filed a motion to vacate the judgment or in the alternative to amend it, alleging in part that the lack of complete diversity required the court to dismiss the action. The trial judge vacated the judgment, dismissed Continental from the suit in all respects, and reentered the judgment in full in favor of Roman against Publicker.
Publicker and Continental filed this appeal, contending that the district court erred: 1) in failing to dismiss the suit entirely for want of complete diversity; 2) in treating Continental and Publicker as alter egos, thereby imposing liability on Publicker for the January contract; 3) in not holding that the September contract was a novation which extinguished all rights and obligations under the January agreement; 4) in not holding that Roman’s sale of 1200 bottles to outside parties permitted Publicker to rescind the contracts; and 5) in calculating damages. We affirm the court’s decision as to 1), 3) and 4) and reverse and remand for further proceedings on issues 2) and 5).
It is undisputed that the district court acted properly in dismissing Continental as a party. The court’s authority stems from Fed.R.Civ.P. 21 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.” Continental was a nondiverse party and could not have remained in the lawsuit. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978).
Publicker contends, however, that a dismissal of Continental required a dismissal of the entire suit. It argues that if complete diversity is lacking, then the court has absolutely no jurisdiction over the action. We see this view of the district court’s power under Fed.R.Civ.P. 21 as too restrictive. The court may dismiss a nondiverse party in order to achieve diversity even after judgment has been entered. See Finn v. American Fire & Casualty Co., 207 F.2d 113 (5th Cir. 1953), cert. denied, 347 U.S. 912, 74 S.Ct. 476, 98 L.Ed. 1069 (1954); Wolgin v. Atlas United Financial Corp., 397 F.Supp. 1003 (E.D.Pa.1975), aff’d without opinion, 530 F.2d 966 (3d Cir. 1976). And although the district court is precluded from retaining diversity jurisdiction by dismissing a nondiverse party if that party is indispensable under Fed.R.Civ.P. 19, it has not been contended that Continental is an indispensable party with respect to the claims between Roman and Publicker.
Publicker argues next that it was improper for the district court to treat Continental and Publicker as “alter egos for each other” and “as one in the same,” and thereby to impose liability on Publicker based on the January agreement between Continental and Roman. According to Publicker, there is insufficient evidence in the record to support the district court’s application of the alter ego theory to pierce the separate corporate entities of Publicker and Continental. In addition, Publicker argues that the district court’s decision to treat Publicker and Continental interchangeably for purposes of contractual liability is inconsistent with, and contradicted by, the court’s dismissal of Continental from the lawsuit— which was necessarily predicated on the ground that Continental is a separate, dispensable party — in order to preserve diversity jurisdiction.
In delivering his oral opinion, the district judge made the following statement concerning Publicker’s liability for the January contract:
I will note for the record that thus far I have spoken of the plaintiffs interchangeably, and I did that deliberately. I rule that on the present record there is no basis for distinguishing between the two. There is nothing in the record to show that they are indeed separate entities, that they are not alter egos for each other. Because of the way they worked interchangeably throughout this transaction, I treat them as one in the same; and the finding on the counterclaim is against both plaintiffs.
Although it is not readily apparent what legal principles were relied upon by the district court in reaching its conclusion that the plaintiffs may be treated interchangeably, the foregoing statement suggests that the court may have disregarded Continental’s separate corporate existence by the application of the alter ego theory to pierce the corporate veil. This tool of equity is appropriately utilized “when the court must prevent fraud, illegality, or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from liability for a crime.” Zubik v. Zubik, 384 F.2d 267, 272 (3d Cir. 1967), cert. denied, 390 U.S. 988, 88 S.Ct. 1183, 19 L.Ed.2d 1291 (1968); accord, Chengelis v. Cenco Instruments Corp., 386 F.Supp. 862 (W.D.Pa.), aff’d without opinion, 523 F.2d 1050 (3d Cir. 1975). The burden of proof on this issue rests with the party attempting to negate the existence of a separate entity. United States v. Standard Beauty Supply Stores, Inc., 561 F.2d 774 (9th Cir. 1977).
The trial court made no findings that the circumstances normally required for application of the alter ego theory were present here. Apparently recognizing the lack of such evidence, Roman has not attempted to support this theory on appeal. In the district court, it failed to allege the perpetration of fraud, illegality, or injustice by means of Continental’s separate existence. Thus, the district court could not have disregarded Continental’s corporate form under the alter ego theory.
Moreover, even were there sufficient evidence to support a determination that Publicker and Continental are to be treated as one and the same, either under the alter ego theory or under some less precise notion that the corporations simply acted interchangeably and in disregard of their corporate separateness, it is not at all evident that that determination could coexist with the trial court’s decision to dismiss Continental and thereby preserve diversity jurisdiction. If Publicker and Continental are so intimately related to one another with respect to their dealings with Roman as to justify the imposition of liability on Publicker for Continental’s contractual undertaking, then Continental may well be a real party in interest to this suit, and might not fairly be disregarded for purposes of ascertaining whether there is diversity jurisdiction.
It is not clear completely, however, whether the district court actually relied on an alter ego theory, or whether instead it invoked the term “alter ego” loosely, for want of a more precise legal concept to convey its impression that the plaintiffs were jointly involved in the transactions leading up to the January contract with Roman and were jointly and severally obligated by it. A legal framework might be provided by the principles of agency, in that it might be concluded that Publicker and Continental created mutual agencies in one another with respect to their dealings with Roman. The underpinnings of this approach are described in Restatement (Second) of Agency § 27 (1958):
[Ajpparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal, which reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.
Under the agency theory, then, it could be argued that Continental, acting both on its own behalf and under apparent authority from Publicker, bound Publicker as well as itself to the January contract with Roman. If established, this determination would permit Roman to sue Publicker alone, since obligors that are jointly liable may be sued independently, thereby obviating a dismissal for lack of complete diversity.
The evidence which indicates that Publicker may have created a reasonable belief in Roman that Continental was acting as agent for Publicker is as follows:
1) Negotiations for the purchase of bottles were initiated in the first instance by Publicker.
2) Design of the bottle was worked out with Publicker.
3) Although the initial order arrived on Continental stationery, it was signed by George Berman, Director of Purchasing for both Publicker and Continental.
4) Additional correspondence came from both Publicker and Continental.
5) Harold Roman, President of Roman testified that he treated the plaintiff companies as one and the same and that he believed Publicker had purchased the 40,000 bottles.
However, because the district court made no findings under an agency theory and because we cannot discern any other ground upon which the district court’s conclusion that the plaintiffs were one and the same for purposes of this suit may be upheld, we are constrained to remand the case to allow the trial judge to make the necessary findings and to explain the legal underpinnings of his determination.
Publicker’s third contention is that the court erred in imposing liability under the January contract because all obligations under that agreement were discharged by the September contract. It argues that the new agreement was a novation, which has the effect of extinguishing all rights and duties under a prior contract. See Restatement of Contracts § 424 (1932). On the other hand, Roman contends that the September agreement was an accord executory which discharges the earlier contract only after performance by the parties of the new obligations. Although eschewing the use of formal legal terms, the district court apparently agreed with Roman by concluding that, “having reneged on the settlement agreement, plaintiff is bound by the original agreement? to purchase the 40,000 defective bottles at $2.50 each.”
The distinction between these two principles of novation and accord was considered in In re Kellett Aircraft Corp., 173 F.2d 689, 693 (3d Cir. 1949), where this court, quoting from Wyatt v. New York, O. & W. R. Co., 45 F.2d 705, 708 (2d Cir.) cert. denied, 283 U.S. 829, 51 S.Ct. 353, 75 L.Ed. 1442 (1930) said:
Ordinarily an executory contract constituting an accord is not a bar to an action upon the original claim; ‘satisfaction’ that is, full performance of the contract of accord, is also necessary. If the parties so intend, the contract of accord may itself be taken as a satisfaction and discharge of the original claim; but the intention must be clear, and the presumption is otherwise.
To determine whether a contract acts as a novation or an accord executory, intent of the parties is the key:
It is frequently difficult to determine whether a new agreement is a substituted contract operating as an immediate discharge, or is an accord executory the performance of which it is agreed shall operate as a further discharge. It is wholly a question of intention, to be determined by the usual processes of interpretation, implication, and construction.
6 Corbin on Contracts § 1293 at 190 (1962). See Westinghouse Electric Supply Co. v. Fidelity and Deposit Co., 560 F.2d 1109, 1113 (3d Cir. 1977); Slaughter v. Philadelphia National Bank, 417 F.2d 21, 27 (3d Cir. 1969).
Novation is an affirmative defense and when raised on a counterclaim, as here, the plaintiff has the burden of proving that the parties intended to discharge the earlier contract. See Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612, 617 (1967). A review of the events and records concerning the September agreement, however, reveals no evidence of the parties’ intention to supplant the January contract. Thus, we conclude that the district court’s holding that Publicker’s failure to perform the September agreement left the January contract in full force is not clearly erroneous.
The fourth issue raised on this appeal is that Roman’s sale of 1200 bottles to an outside party was either a material breach of contract or the basis for a claim of misrepresentation, permitting Publicker to rescind the September agreement and entitling it to a return of the $40,000 already paid to Roman.
In dismissing this contention, the district court was willing to assume that Roman had initially agreed to refrain from selling the bottles to outside parties. However, the court noted, on May 7 Continental wrote Roman and stated that “it might be advisable to look into the possibility of your own disposition at this late date, but with the reservation of checking with us first for total agreement as to whether we will take over or not.” The trial judge interpreted the letter as follows:
As far as I am concerned, the inference which is inescapable from this is twofold: No. 1, that the plaintiffs were seeking ways out of any contractual arrangement which they had with the defendant; and No. 2, they certainly did not have any strong objection to the defendant disposing of these bottles if that would reduce the plaintiffs’ exposure to any claim for breach of contract.
We do not believe that this finding of fact is clearly erroneous, and the court was therefore correct in concluding that Roman’s sale of the bottles did not relieve Publicker from its obligations, if any, under the January agreement.
Finally, Publicker challenges the district court’s calculation of damages. The district judge’s computation was as follows: 40,000 bottles at $2.50 each or $100,000, less the amount of $3,259 received by Roman for the previous sale of 1200 bottles, and $9,864.30 due on an open account, or $106,-605.30. From this sum, he deducted $40,000 previously paid, and added interest from the date of the original judgment for a final judgment in the sum of $74,142.46. Unfortunately, the court did not indicate the legal basis for its damage calculation. Roman claims, however, that the proper authority for the remedy of recovery of the original contract price can be found in U.C.C. § 2-709:
(1) When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section, the price
(a) of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and
(b) of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.
The statute allows an aggrieved seller to recover the contract price in any one of three instances:
(1) when the goods have been accepted by the buyer, or
(2) when the goods have been lost or damaged within a reasonable time after risk of loss had passed to the buyer, or
(3) when goods have been identified to the contract and the seller is unable to resell them.
The first two situations obviously do not apply to this case. The third would be applicable only if Roman was unable to resell the bottles at a reasonable price. But the district court made no finding on this point. The only evidence in the record relating to this issue appears to be a letter to Roman from an outside party dated December 21, 1976, offering to purchase the bottles at $.40 each for a total of $16,000. As the record now stands, we are unable to determine whether or not this would constitute a reasonable price. If $.40 per bottle is not a reasonable price and the court determines that Roman made a reasonable effort to sell the bottles or that such effort would have been unavailing, then, and only then, could Roman recover the January contract price of $2.50 per bottle. Because we are unable to make this determination, we must remand this case to allow the district court to make additional findings on this issue as well.
In conclusion, the judgment will be vacated and the case remanded to the district court to make findings on whether, in its dealings with Roman, Continental was acting as Publicker’s agent and to determine whether Publicker should be held liable under the January contract between Continental and Roman. If the court determines that Publicker is liable, then the necessary findings must be made to support the calculation of damages under the appropriate provision of the Uniform Commercial Code.
Each party shall bear its own costs.
. The district court could have sua sponte dismissed the suit or discharged Continental as a party. Ray v. Bird & Son Asset Realization Co., 519 F.2d 1081, 1082 (5th Cir. 1975); Fed.R. Civ.P. 21. Its failure to do so is especially puzzling given that,
It is . . well established that when jurisdiction depends upon diverse citizenship the absence of sufficient averments or of facts in the record showing such required diversity of citizenship is fatal and cannot be overlooked by the court, even if the parties fail to call attention to the defect, or consent that it may be waived.
Thomas v. Board of Trustees, 195 U.S. 207, 211, 25 S.Ct. 24, 25, 49 L.Ed. 160 (1904). See also Carlsberg Resources Corp. v. Cambria Sav. & Loan Ass’n, 554 F.2d 1254, 1256 (3d Cir. 1977).
. Continental has not challenged its dismissal from this action on appeal. The joint brief filed with Publicker raises issues relevant only to the judgment against Publicker. We see no reason for Continental’s participation in this appeal.
. The denial of a federal court remedy where an adequate one exists in state court would fall far short of an injustice that would permit piercing the corporate veil.
. Cf. Leach Co. v. General Sani-Can Manufacturing Corp., 393 F.2d 183, 186 (7th Cir. 1968) (court disregards separate entities without clearly specifying whether it was relying on alter ego or agency theories, or on fact that parties themselves simply disregarded their separateness).
. Cf. Miller & Lux, Inc. v. East Side Canal & Irrigation Co., 211 U.S. 293, 29 S.Ct. 111, 53 L.Ed. 189 (1908) (Court determines existence vel non of diversity jurisdiction by looking at real party in interest, not at collusively created formal party). On the rare occasions in which courts have been urged to disregard the corporate existence of a wholly owned subsidiary, by application of an alter ego, theory or otherwise, so that diversity jurisdiction may be retained over a case, they have declined to do so, primarily on policy grounds. See Glenny v. American Metal Climax, Inc., 494 F.2d 651, 654-55 (10th Cir. 1974); Lang v. Colonial Pipeline Co., 266 F.Supp. 552, 557-58 (E.D.Pa.) aff'd per curiam 383 F.2d 986 (3d Cir. 1967).
. See, e. g., Jett v. Phillips & Associates, 439 F.2d 987, 990 (10th Cir. 1971). See generally, 7 C. Wright & A. Miller, Federal Practice and Procedure § 1613 (1972).
. Even if the September contract were labeled a novation, the district court would have had the power to enforce the antecedent agreement as a restitutionary remedy. See 6 Corbin on Contracts § 1293 at 196.
. If U.C.C. § 2-709 does not apply, then U.C.C. § 2-708(1) probably would. Section 2-708(1) allows recovery for the difference between the market price at the time and place for tender and the unpaid contract price. Additional findings would have to be made by the district court in order to calculate damages under this provision.
Question: Did the court support the decision of an administrative law judge?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_casetyp1_1-3-1
|
O
|
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".
UNITED STATES v. LUTZ.
No. 8564.
Circuit Court of Appeals, Third Circuit.
Argued April 4, 1944.
Decided May 15, 1944.
Louis B. LeDuc, of Camden, N. J. (Milton C. Nurock, of Camden, N. J., and Isidor Ostroff, of Philadelphia, Pa., on the brief), for appellant.
Thomas J. Curtin, of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., on the brief), for appellee.
Before JONES, GOODRICH, and Mc-LAUGHLIN, Circuit Judges.
GOODRICH, Circuit Judge.
The defendant was indicted on two counts for buying and selling Maine selected seed potatoes at prices higher than the maximum price permitted by Maximum Price Regulation No. 271 and § 4 of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 904(a). Pie was acquitted on the second count for selling, but found guilty on the first count which charged him with having “bought and received” seed potatoes at prices above the permitted máximums. Defendant has appealed from the judgment of conviction and sentence.
The underlying facts giving rise to the prosecution are not disputed. Defendant is a produce wholesaler in the city of Philadelphia. On April 19 certain individuals offered to sell him a hundred bags of No. 1 Maine selected seed potatoes and fifty bags of No. 2 Maine selected seed potatoes. The terms of the transaction were cash upon delivery. The price to be paid for the No. 1 seed potatoes was $6.50 per cwt. and for the No. 2, $4.55 per cwt. The potatoes were delivered to the defendant late in the afternoon on the same day. Defendant did not have the cash on hand to pay for them. He gave the sellers his check drawn to the •order of cash in the amount of $877.60 with the understanding that he would go with one of the sellers to the bank the next morning and secure the cash for them. Pursuant to this arrangement one of the sellers called at defendant’s premises the following morning and was told to return an hour later. He returned but was again told to come back. When he came back for the third time, about 10:30 A.M., an O.P.A. agent was on the premises and took possession of the check for the $877.60. This check remained in the possession of the O.P.A. and has never been cashed. However, after the intervention of the O.P.A. in the transaction, defendant paid the sellers $510.90 for the potatoes. This sum was not in excess of the established maximum prices.
Defendant contends that there was a failure to show that any maximum price regulation applicable to seed potatoes existed at the time the offense is charged to have been committed. This contention cannot be sustained. Maximum Price Regulation 271, covering certain perishable food commodities, was promulgated November 7, 1942, and became effective November 9, 1942. 7 Fed.Reg. 9179 (1942). It applied to “All white potatoes used for human consumption, not including seed potatoes,” as defendant points out. § 1351.-1001(a) (1). However, it was amended a number of times after its initial promulgation. Paragraph 1 of Amendment 5, 8 Fed.Reg. 3397 (1943), made Maximum Price Regulation 271 applicable to “All white potatoes, whether used for human consumption or as seed potatoes.” Paragraph 2(3) reads “Appendix C sets forth maximum prices for seed potatoes which were previously exempt from this regulation.” Paragraph 3 provides “Section 1351.1003(d) is added to read as follows: (d) All intermediate sellers as defined in this section, who sell seed potatoes shall compute their prices under Appendix C.” Section 1351.1019 as added by paragraph 7 deals with Appendix C. Subsection (a) thereof states that “Maximum prices for the sale of seed potatoes in bulk by farmers and in sacks * * * by country shippers * * * and intermediate sellers are established in this Appendix C.” Subsections (c) and (d) state the method for computing the maximum prices to be charged by country shippers for sales of certified or selected seed potatoes. Subsection (e) states the method for computing the maximum prices for certified or selected seed potatoes to be charged by intermediate sellers. Paragraph (4) of subsection (f) requires the seller of seed potatoes to furnish an invoice stating that the selling price does not exceed the maximum price. Subsection (h) defines seed potatoes. Amendment 5 became effective March 19, 1943, one month before the offense charged was alleged to have been committed. Further amendments to Maximum Price Regulation 271, prior to April 19, 1943, did not exempt seed potatoes from Maximum Price Regulation 271 but merely added to and further amended the provisions covering seed potatoes as promulgated by Amendment 5. See: Amendment 6, 8 Fed.Reg. 3733 (1943), effective March 24, 1943; Amendment 8, 8 Fed.Reg. 4725. (1943), effective April 8, 1943.
There can be no doubt therefore that on April 19, 1943, when defendant entered into the transaction in question, Maximum Price Regulation 271 as amended applied to seed potatoes such as were involved in. the transaction. Intermediate sellers had to sell seed potatoes at prices not in excess of certain maximum prices. Defendant’s vendors came within this classification.
The government contends that, allowing the benefit of every possible markup permitted under the regulation to an intermediate .seller in computing .his maximum prices, it is clear that the prices for which the potatoes were to be purchased by the defendant were substantially beyond the ceiling prices allowed by Maximum Price Regulation 271. Defendant, per contra, contends that there were fatal infirmities in the proof of the ceiling price at the trial. The prosecution had an investigator of the O.P.A. testify on this issue. The United States Attorney asked of him:
“What is the ceiling price of No. 1 Maine selected potatoes? For a cash and carry wholesaler, after the first resale?
*****
■“A. * * * $4.78 * * * per/cwt bags.
“Q. * * * and now on the No. 2’s:
* * * * *
“A. $4.30 per/cwt. bag. * * *”
The defect defendant points to is the fact that the question as phrased did not refer to “seed” potatoes, and thus no ceiling price was established for No. 1 and No. 2 Maine selected seed potatoes. However, full examination of the investigator’s testimony discloses that the figures he stated pertained to No. 1 and No. 2 Maine selected seed potatoes.
The investigator did not, in his testimony, go into a detailed explanation of how he arrived at the figures he stated. In a brief filed with this Court, the step by step calculations were set out along with the sections of Maximum Price Regulation 271 relied upon. Defendant in a reply brief challenges the interpretations placed upon some of these sections, their applicability to the facts and hence the figures arrived at. We do not, however, share the view that there was a mistake in the sections relied upon or the results reached in applying them. Further, the defendant had an opportunity in the court below to cross-examine the O.P.A. investigator and by this and his own evidence to prove that the regulations did not apply to the facts or that the calculations were erroneous. This counsel for defendant failed to do so that there was nothing before the jury but the figures offered by the government which the jury, by its verdict, accepted as correct.
The defendant also, in effect, now questions the admissibility of the statements that ceiling prices were $4.78 and $4.30 per cwt. Maximum Price Regulation 271 does not prescribe a flat dollar and cents ceiling price for seed potatoes; it only states the methods for arriving at the ceiling price in each particular case. The figures stated by the investigator were apparently computed on this basis, as now explained to us in argument. However, numerous factors entered into this determination: various differentials, freight charges, sellers’ prices, etc. Some of these matters were issues of fact as to which the testimony of the investigator might have been inadmissible, as hearsay or as secondary evidence. The figures given by him were based on these factors and were obviously conclusions. If defendant had seasonably urged specific objections, the government would have had to adduce competent proof of the factors entering into the calculations and the correctness of the final determination. However, such objections were not urged and the court failed to request this evidence of its own motion. The rule is too well settled to require discussion that a rule of evidence not invoked is waived and that if there is a failure to object to the admission of testimony at the trial such objection will usually not be considered for the first time on appeal. To prevent a failure of justice this rule has been relaxed, especially in cases where the life or liberty of a defendant is involved. But the circumstances of this case leave no doubt that the maximum prices were violated and the jury found this violation to have been intentional. We are not to be understood as approving the method of proof used to establish the maximum prices. As evidentiary matters they were incorrectly offered into evidence. But it is too late for the defendant now to complain.
Complaint is made of the fact that the various amendments to the regulation were not offered in evidence in the trial below. They were judicially noticeable, both by the express provisions of the statute providing for the Federal Register, and by precedent concerning judicial notice of action of a department of the federal government. United States v. Brown, 7 Cir., 1944, 140 F.2d 136. See Caha v. United States, 1894, 152 U.S. 211, 221, 222, 14 S.Ct. 513, 38 L.Ed. 415.
The next question is whether there was sufficient evidence for the jury to find that defendant “bought and received” seed potatoes at prices above those permitted by Maximum Price Regulation 271 and whether if he did, this constitutes a violation of the regulation and the act of Congress. Defendant’s argument is that the transaction between himself and the sellers of the potatoes was a sale for cash and that title to the potatoes did not vest in him until the cash was paid. Since, at the time the O.P.A. agent interceded, the cash had not been paid for the potatoes, title never vested in the defendant and, therefore, he cannot be said to have “bought” them. The check which he gave to the vendors when they delivered the potatoes, it is said, was not intended as payment, but was merely a memorandum of the transaction until the cash could be procured.
We do not think it was the intendment of the statute or the regulations promulgated thereunder to have the enforcement of the Price- Control Act turn upon technical concepts of the law of sales. The act is quite broad. It states that “It shall be unlawful * * * for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any regulation or order under section . . . or of any price schedule effective in accordance with the provisions of section 206 . . . or to offer, solicit, attempt, or agree to do any of the foregoing.” § 4(a), 50 U.S.C.A.Appendix, § 904(a). The regulation provides that it shall not be evaded “whether by direct or indirect methods, in connection with any offer, solicitation, agreement, sale, delivery, purchase or receipt of, [etc.]” Paragraph 4 of Amendment 5, supra. The judge charged the jury to find'“Did the Defendant buy and receive potatoes at prices in excess of ceiling prices ?" He did not go further and define to the jurors under what circumstances title gasses under the law of sales. Counsel for defendant did not make any requests for charge on this point, nor did he take exception to the charge.
There are several answers to the contentions of the defendant on this phase of the argument. The first is that since we are concerned here with a federal statute creating a federal offense, not in terms of state law, the local law of sales is inapplicable. When a commodity is offered at a certain price for cash upon delivery and the offer is accepted and the article delivered but actual payment is postponed until the following day, the purchaser can be said to have “bought” the commodity within the meaning of the Price Control Act and the applicable • regulations.
Second, even if we'assume that Congress had reference to the technical law of sales generally, there was no error in refusing to direct a verdict for the defendant. Although a sále for cashvon delivery requires the payment of cash before title passes, where the seller delivers even though the buyer does not proffer the cash, the seller may be held under certain circumstances to have waived the condition and the transfer becomes absolute. See Frech v. Lewis, 1907, 218 Pa. 141, 67 A. 45, 11 L.R.A.,N.S., 948, 120 Am.St.Rep. 864, 11 Ann.Cas. 545; 3 Williston on Contracts, Rev.Ed.1936, §§ 730-733. We cannot say that as a matter of law, under the present' facts there was not such a waiver. The question was for the jury. The defendant himself testified that he was approached to buy some potatoes and that he “bought them at the price—” These and other facts were properly submitted to the jury and defendant cannot complain of a failure to charge that which he did not request.
Third, there is a sufficient additional basis to uphold the verdict of the jury. The statute makes it unlawful “to buy or receive”. The indictment charged the defendant with having “bought and received”. Thus under the act it is unlawful if one (1) buys a commodity in violation of the act and regulations or (2) receives a commodity in violation of the act and regulations. The commission of either one of these acts, alone, is unlawful. Since the indictment charges both, conjunctively, proof of either one of them is sufficient to support a finding of guilt. Here it is undisputed that the defendant received potatoes under an agreement and it was proved that the prices specified in that agreement were above those permitted at the time the potatoes were delivered. At the moment defendant so received them the statute was violated.
The defendant has stressed that ultimately he in fact paid for the potatoes at prices permitted by Maximum Price Regulation 271. As just stated, however, the offense already had been committed prior to that time. Payment was made after the O.P.A. had intervened. Prior to payment defendant had hound himself to pay at prices above those permitted and had received the commodities. Cf. Henderson v. Glasser, D.C.W.D.PaP.1942, 46 F.Supp. 460.
Affirmed.
§ 1351.1003 (a) defines “intermediate sellers”:
“For the purposes of this regulation ‘intermediate sellers’ are divided into the following classes and the term means any wholesale seller, including, but not limited to terminal distributors, service and cash-and-carry wholesalers, carlot receivers, jobbers or any other person who purchases for the purpose of reselling, except country shippers and retailers, and who take title and make sales to any person who is not the ultimate consumer. The term ‘ultimate consumer’ does not include institutional, commercial or industrial users.
(1) Class 1: Retailer-owned cooperative wholesaler. ♦ * *
(2) Class %: Cash and ccn-ry wholesalers. A cash and carry wholesaler is a wholesaler not in Class 1 who distributes food commodities for resale or to commercial, industrial and institutional users without materially changing their form and who does not customarily deliver or extend credit.
(3) Class 8: Service wholesalers. A service wholesaler is a wholesaler not in Class 1 who distributes food commodities for resale or to commercial, industrial or institutional users without materially changing their form and who customarily delivers, or delivers and extends credit to purchasers.” 7 Fed. Reg. 9180 (1942).
Defendant’s counsel asked whether the investigator had a- record of prices in court. The investigator answered that he had the computations he had made and the regulations with him.
As distinguished from a substantive rule of law, such as the “parol evidence” rule.
1 Wigmore on Evidence, 3rd Ed. 1940, § 18.
Some recent decisions on this point are: United States v. Maggio, 3 Cir., 1942, 126 F.2d 155, certiorari denied 1942, 316 U.S. 686, 62 S.Ct. 1275, 86 L.Ed. 1758; Simon v. United States, 4 Cir., 1941, 123 F.2d 80, certiorari denied 1941, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555; Hilliard v. United States, 4 Cir., 1941, 121 F.2d 992, certiorari denied 1941, 314 U.S. 627, 62 S.Ct. 111, 86 L.Ed. 503; Beausoliel v. United States, 1939, 71 App.D.C. 111, 107 F.2d 292; Reavis v. United States, 10 Cir., 1939, 106 F.2d 982.
See: Mumforde v. United States, 1942, 76 U.S.App.D.C. 107, 130 F.2d 411, certiorari denied 1942, 317 U.S. 656, 63 S.Ct. 53, 87 L.Ed. 527; Miller v. United States, 10 Cir., 1941, 120 F.2d 968; Hayes v. United States, 10 Cir., 1940, 112 F.2d 676; Benson v. United States, 5 Cir., 1940, 112 F.2d 422, certiorari denied 1940, 311 U.S. 644, 61 S.Ct. 43, 85 L.Ed. 411.
44 U.S.C.A. § 307.
The court, apparently of its own motion, granted an exception to counsel for defendant to additional instructions given to the jurors at their request.
Crain v. United States, 1896, 162 U.S. 625, 636, 16 S.Ct. 952, 40 L.Ed. 1097 (overruled on another point in Garland v. State of Washington, 1914, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772); Troutman v. United States, 10 Cir., 1939, 100 F.2d 628, 631; Shepard v. United States, 9 Cir., 1916, 236 F. 73, 81, 82; United States v. Hall, C.C.S.D.Ala.1871, 26 Fed.Cas. pages 79, 82, No. 15,282.
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:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
UNITED STATES, TRUSTEE, v. OREGON.
No. 329.
Argued April 25, 1961.
Decided May 29, 1961.
Herbert E. Morris argued the cause for the United States. With him on the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Orrick, Acting Assistant Attorney General Leonard, Alan S. Rosenthal and David L. Rose.
Catherine Zorn, Assistant Attorney General of Oregon, argued the cause for respondent. With her on the brief was Robert Y. Thornton, Attorney General.
Mr. Justice Black
delivered the opinion of the Court.
Adam Warpouske, an Oregon resident, died in a United States Veterans’ Administration Hospital in Oregon without a will or legal heirs, leaving a net estate composed of personal property worth about $13,000. Oregon law provides that such property shall escheat to the State. A United States statute, on the other hand, provides that when a veteran dies without a will or legal heirs in a veterans’ hospital, his personal property “shall immediately vest in and become the property of the United States as trustee for the sole use and benefit of the General Post Fund . ...” In reliance upon these provisions of their respective statutes, both the State of Oregon and the Government of the United States filed claims for Warpouske’s estate in the Oregon probate court having jurisdiction of the matter.
Recognizing that the federal statute, if applicable and valid, would make the claim of the United States paramount, the State attacked the Government’s reliance upon that statute on two grounds: first, it urged that the federal statute did not apply to this case on the theory that its provisions depended upon the Government’s having made a valid contract with the veteran prior to his death and that Warpouske had made no such contract because he had been mentally incompetent to do so when he entered the hospital and at all times thereafter up to his death; and, secondly, it urged that the federal statute, even if applicable, was invalid because it pertains to the devolution of property, a matter contended to have been wholly reserved to the States by the Tenth Amendment.
After hearings, the probate court found as a fact that Warpouske had been unable to enter into a valid contract with the Government because of his mental incompetence. That court then accepted the State’s interpretation of the federal statute as requiring a valid contract as a prerequisite to its application and concluded that since such a contract could not, in this case, have been made, the State was entitled to Warpouske’s property by virtue of its escheat law. On appeal, the State Supreme Court affirmed on the same grounds. Because of the importance of this question of federal statutory construction and an alleged conflict between this decision and decisions previously made by other state courts of final jurisdiction, we granted certiorari.
Since we accept the findings of the two state courts that Warpouske could not and did not enter into a contract to leave his property to the United States, the crucial question is whether the Government can prevail in the absence of such a contract. We hold that it can on the grounds that the federal statute relied upon does not require a contract and that this statute does not violate the Tenth Amendment.
The controlling provision was passed in 1941 as an amendment to the Sundry Appropriations Act of 1910. The 1910 Act quite plainly and unequivocally provided that the admission of an applicant to a veterans’ home should “be and constitute a valid and binding contract between such applicant and the Board of Managers of said home that on the death of said applicant while a member of such home, leaving no heirs at law nor next of kin, all personal property owned by said applicant at the time of his death, including money or choses in action held by him and not disposed of by will . . . shall vest in and become the property of the said Board of Managers for the sole use and benefit of the post fund of said home . . . .” The contractual nature of these provisions of the 1910 Act was clear and, indeed, we expressly recognized that fact when the question of the validity of the Act was brought before this Court.
The 1910 Act was greatly amplified, however, by the amendments adopted in 1941 and the central provision of the Act, quoted above, was significantly changed. Section 1 of the new Act restates this provision without reference to the word “contract,” providing simply that when a veteran dies “while a member or patient in any facility, or any hospital while being furnished care or treatment,” all his personal property “not disposed of by will or otherwise, shall immediately vest in and become the property of the United States as trustee for the sole use and benefit of the General Post Fund . ...” The Act then goes on to supplement this basic provision with other provisions that are drawn in the language of contract. But these provisions must be read in the context of § 2 of the Act which provides that the death of a veteran in a veterans’ hospital “shall give rise to a conclusive presumption of a valid contract.” Read in this context, the language of contract which appears in these other provisions of the Act is not at all inconsistent with the provision for automatic vesting without a contract in § 1. Quite the contrary, it seems plain to us that these “contractual” provisions were included in the Act for the purpose of reinforcing rather than detracting from the provisions of § 1 — the thought apparently being that there was some chance that the Act would be attacked as unconstitutional and that it would consequently be advisable to include alternative bases upon which it could be upheld.
This natural construction we give to § 1 makes it fit well in the pattern of legislation dealing with this subject. The solicitude of Congress for veterans is of long standing. Veterans’ pensions, homes, hospitals and other facilities have been supplied on an ever-increasing scale. Many veterans, as did the deceased veteran here, have had to depend upon these benefits for long periods of their lives. Warpouske, for example, appears to have spent more than ten years of his life, at various intervals from time to time, in veterans’ homes and hospitals throughout the country. These were the only homes he had at those times. The congressional plan here is that whatever little personal property veterans without wills or kin happen to leave when they die in veterans’ homes and hospitals should be paid into the General Post Fund, to be used for the recreation and pleasure of other ex-service men and women who have to spend their days in veterans’ homes and hospitals. This idea was expressed by Representative Jennings during the discussion of the 1941 Act on the floor of the House: “And would it not be much better to let that money go into a fund that would inure to the benefit of other veterans than to let . . . it go into a fund under the escheat laws of [a] State?”
Having concluded that the provisions of § 1 are clear and unequivocal on their face, we find no need to resort to the legislative history of the Act. Since the State has placed such heavy reliance upon that history, however, we do deem it appropriate to point out that this history is at best inconclusive. It is true, as the State points out, that Representative Rankin, as Chairman of the Committee handling the bill on the floor of the House, expressed his view during the course of discussion of the bill on the floor that the 1941 Act would not apply to insane veterans incompetent to make valid contracts. But such statements, even when they stand alone, have never been regarded as sufficiently compelling to justify deviation from the plain language of a statute. They are even less so here for there is powerful countervailing evidence as to the intention of those who drafted the bill. The bill was drawn up and sent to the Speaker of the House, in the very form in which it was passed, by the Veterans’ Bureau itself. And that Bureau, we are told, has consistently interpreted the 1941 Act as making the sanity or insanity of a veteran who dies in a veterans’ hospital entirely irrelevant to the determination of the Government’s rights under the Act.
We see no merit in the challenge to the constitutionality of § 1 as construed in this natural manner. Congress undoubtedly has the power — under its constitutional powers to raise armies and navies and to conduct wars— to pay pensions, and to build hospitals and homes for veterans. We think it plain that the same sources of power authorize Congress to require that the personal property left by its wards when they die in government facilities shall be devoted to the comfort and recreation of other ex-service people who must depend upon the Government for care. The fact that this law pertains to the devolution of property does not render it invalid. Although it is true that this is an area normally left to the States, it is not immune under the Tenth Amendment from laws passed by the Federal Government which are, as is the law here, necessary and proper to the exercise of a delegated power.
The judgment of the Oregon Supreme Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed.
Ore. Rev. Stat., § 120.010, provides: “Immediately upon the death of any person who dies intestate without heirs, leaving any real, personal or mixed property, interest or estate in this state, the same escheats to and vests in the state, subject only to the claims of the creditors and as provided in ORS 120.060 to 120.130; and the clear proceeds derived therefrom shall be paid into and become a part of the Common School Fund of this state and be loaned or invested by the State Land Board, as provided by law.”
38 U. S. C. (1952 ed.) § 17.
222 Ore. 40, 352 P. 2d 539.
The conflict alleged is with the decisions in Skriziszouski Estate, 382 Pa. 634, 116 A. 2d 841; and In re Gonsky’s Estate, 79 N. D. 123, 55 N. W. 2d 60.
364 U. S. 877.
36 Stat. 703, 736
“In passing the Act of June, 1910, Congress merely directed the terms and conditions under which veterans, consistently with state law, can obtain admittance to Homes built, maintained and operated by the government for the benefit of veterans. Homes for the aged, needy, or infirm, in return for the benefits bestowed by them, generally receive some benefit from any property or estates of their members.” United States v. Stevens, 302 U. S. 623, 627.
55 Stat. 868, 38 U. S. C. (1952 ed.) § 17 et seq.
38 U. S. C. (1952 ed.) § 17.
38 U. S. C. (1952 ed.) § 17a.
These fears doubtless arose, in part at least, from the fact that the Circuit Court of Appeals had, in the Stevens case, supra, declared even the milder provisions of the 1910 Act unconstitutional under the Tenth Amendment, Stevens v. United States, 89 F. 2d 151, a holding ultimately reversed by this Court.
See the Brief History of Legislation Pertaining to Veterans’ Benefits, 38 U. S. C. A. 1.
87 Cong. Rec. 5203-5204.
Cf. United States v. Bowen, 100 U. S. 508, 513-514; National Home v. Wood, 299 U. S. 211, 216.
87 Cong. Rec. 5203.
See H. R. Rep. No. 609, 77th Cong., 1st Sess., pp. 1-2.
See, e, g., Kolovrat v. Oregon, ante, p. 187, This was also implicit in the holding in United States v. Stevens, 302 U. S. 623, See n. 11, supra. Cf. Hines v. Lowrey, 305 U. S. 85, in which this Court rejected the contention that the Federal Constitution does not confer any authority upon Congress to deal with mental incompetents.
See, e. g., Case v. Bowles, 327 U. S. 92; Oklahoma v. Atkinson Co., 313 U. S. 508; United States v. Darby, 312 U. S. 100.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_circuit
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Gladys L. COK, Plaintiff, Appellant, v. FAMILY COURT OF RHODE ISLAND, et al., Defendants, Appellees.
No. 92-1600.
United States Court of Appeals, First Circuit.
Feb. 9, 1993.
Gladys L. Cok, on brief, pro se.
James E. O’Neil, Atty. Gen. and Richard B. Woolley, Asst. Atty. Gen., on brief, for def endants-appellees.
Before BREYER, Chief Judge, CAMPBELL, Senior Circuit Judge, and TORRUELLA, Circuit Judge.
PER CURIAM.
Pro se plaintiff-appellant Cok appeals from an order remanding to the state court a matter which Cok had attempted to remove, and from an injunction preventing her from removing any other matters and placing restrictions on future filings. We are without jurisdiction to review the remand order, and vacate the injunction,
REMOVAL AND REMAND
Cok was divorced in Rhode Island in 1982. Protracted and acrimonious proceedings in the Rhode Island Family Court have continued to this day and form the backdrop of this appeal. According to Cok, the divorce and its fallout have produced over 600 orders. Cok’s contentions, while characterized in terms of preemption and federalism, revolve, at bottom, around her continuing objections to family court orders doling out her money to various persons whom she considers unworthy and corrupt.
This is at least Cok’s second attempt to remove matters devolving out of her divorce to the federal district court. In 1984, the Supreme Court of Rhode Island affirmed the divorce decree including various fees awarded. After the court-appointed guardian ad litem had moved in the Family Court of Rhode Island to collect a fee for his services, and the conservator, on order of the court, had attempted to sell certain properties owned by Cok, Cok undertook to remove the case to the District Court for the District of Rhode Island. Finding the case unremovable, the district court remanded. We summarily dismissed Cok’s appeal from that order under the authority of 28 U.S.C. § 1447(d). Cok v. Cosentino, No. 85-1058, slip op. (1st Cir. May 1, 1985). Thereafter, in Cok v. Cosentino, 876 F.2d 1 (1st Cir.1989), we affirmed the dismissal of Cok’s civil rights and RICO complaints against the same court-appointed guardian ad litem and conservator of marital assets. Subsequently, Judge Suttell of the Family Court of Rhode Island ordered the payment of $160,000 to the conservator, that amount to be disbursed from a $200,000 fund that Cok was “forced” to deposit with the family court.
In September 1991, apparently in response to Judge Suttell’s order, Cok attempted this removal. The State of Rhode Island and its family court appeared specially and moved for summary dismissal or, alternatively, for remand. The matter was referred to a magistrate-judge, who, after a hearing, determined that the remand motion should be granted. In concluding that the matter had been improvidently removed, the magistrate observed that Cok, in essence, sought appellate review of a matter decided by Judge Suttell, and had “misconstrued the purpose and proper use of the removal statute, 28 U.S.C. § 1446.” The magistrate also found that Cok was attempting to litigate a different set of claims than those litigated in family court and that these new claims could not be brought via a removal petition. The district court upheld the remand order and Cok has appealed.
This court is altogether without jurisdiction to review the subject of this appeal: a district court order remanding plaintiffs case to a Rhode Island state court. We so held on very similar facts in Unauthorized, Practice of Law Committee v. Gordon, 979 F.2d 11 (1st Cir.1992). In Unauthorized Practice, involving, as here, a remand order issued by a magistrate-judge and affirmed by the district court, we determined that such an order was immune from appellate review under 28 U.S.C. § 1447(d). Id. at 13. The same result applies here.
Unlike the plaintiff in Unauthorized Practice, Cok filed, within the ten days normally reserved for objecting to a magistrate’s report and recommendation, a motion to reconsider the order granting the motion to remand. The district court held a hearing on the motion, and “affirmed” the magistrate’s remand order. Nonetheless, as discussed in Unauthorized Practice, id. at 13-14, despite § 1447(d)’s language precluding review of remand orders “on appeal or otherwise” (emphasis added), whether the district court was reviewing a final order of remand (as appears to be the case), or whether it construed the magistrate’s order as a report and recommendation and Cok’s motion to reconsider as objections thereto, “§ 1447(d)’s prohibition on review of a remand order dooms [the] appeal here.” Id. at 14.
THE INJUNCTION
At the hearing on the motion to reconsider the remand order, the district court, sua sponte, enjoined Cok from attempting the pro se removal of any matters from the family court, or from filing any pro se actions in district court, without the prior approval of a judge of the court, and entered an order to that effect. It states:
Plaintiff is hereby enjoined from removing any matters to this Court from the Rhode Island Family Court, pro se, and is also enjoined from commencing any actions in this Court, pro se, without prior approval of a Judge of this Court.
On appeal from this injunctive order, Cok challenges the propriety of such an injunction, complaining of the absence of supporting findings by the district court.
Federal courts plainly possess discretionary powers to regulate the conduct of abusive litigants. Castro v. United States, 775 F.2d 399, 408 (1st Cir.1985); Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir.), cert. denied 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34 (1980). However, the restrictions imposed must be tailored to the specific circumstances presented. Castro, 775 F.2d at 410 (“[I]f an injunction against future litigation were couched in overly broad terms, this could impermissibly infringe upon a litigator’s right of access to the courts”); see also Sires v. Gabriel, 748 F.2d 49, 51-52 (1st Cir.1984).
To determine the appropriateness of an injunction barring a litigant from bringing without advance permission any action in the district court, we look to the degree to which indicia supporting such a comprehensive ban are present in the record. We have said that the use of broad filing restrictions against pro se plaintiffs “should be approached with particular caution.” Pavilonis, 626 F.2d at 1079. We have also required, like other jurisdictions, that in such situations a sufficiently developed record be presented for review. See, e.g., Castro, 775 F.2d at 409 & n. 11; see also De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir.), cert. denied, 498 U.S. 1001, 111 S.Ct. 562, 112 L.Ed.2d 569 (1990); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988).
An initial problem with the present injunction is that Cok was not warned or otherwise given notice that filing restrictions were contemplated. She thus was without an opportunity to respond before the restrictive filing order was entered. Adequate notice may be informal but should be afforded. For example, in Pavilonis, 626 F.2d at 1077, a magistrate’s report recommended that the district court impose filing restrictions and the plaintiff filed objections to that report. In Castro, 775 F.2d at 402, the defendants tried to enjoin the plaintiffs from relitigating matters arising out of the case at hand or any earlier litigation between the parties. Where recommendations or requests like this do not come first, courts have issued show cause orders to errant pro se litigators, Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991), or have entered a cautionary order to the effect that filing restrictions may be in the offing in response to groundless litigation. See, e.g., Martin v. District of Columbia Court of Appeals, — U.S. -, -, 113 S.Ct. 397, 398, 121 L.Ed.2d 305 (1992); Ketchum v. Cruz, 961 F.2d 916, 918 (10th Cir.1992); Winslow v. Romer, 759 F.Supp. 670, 678 (D.Colo.1991) (plaintiff repeatedly “informed” that a litigant may not collaterally attack a state court judgment or order in federal court, or unilaterally declare such judgments or orders void, and then use that proclamation as the basis for an action against court or government officials, attorneys, or other parties). Here, as in Sires, 748 F.2d at 51, the defendants did not seek an injunction nor did they maintain that they had been harassed by Cok’s conduct. We think, therefore, that Cok should have been given an opportunity by the court to oppose the entry of so broad an order placing restrictions on court access. Accord De Long, 912 F.2d at 1147; Tripati v. Beaman, 878 F.2d 351 (10th Cir.1989); In re Powell, 851 F.2d at 431; Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir.1987); In re Hartford Textile Corp., 613 F.2d 388, 390 (2d Cir.1979), (district court, in entering sua sponte order curtailing pro se litigant’s future access to the courts, must give notice and allow litigant to be heard on the matter).
A second question is whether the record is sufficiently developed to show that an injunction as sweeping as this one is warranted. Plaintiff is enjoined, inter alia, from “commencing any actions in this court, pro se, without prior approval.... ” It would have been helpful had the court identified what previously filed frivolous cases or other abuses caused it to issue this injunction. See, e.g., Castro, 775 F.2d at 409 n. 11; see also Martin, — U.S. at -, 113 S.Ct. at 397 nn.1 & 2; In re Sindram, 498 U.S. 177 n. 1, 111 S.Ct. 596 n. 1, 112 L.Ed.2d 599 (1991); De Long, 912 F.2d at 1147-48; Tripati, 878 F.2d at 353; In re Martin-Trigona, 737 F.2d 1254, 1264-74 (2d Cir.1984) (reciting history of extensive filings). While it is clear enough that — beyond the instant removal — Cok made a misguided removal effort in 1984, and unsuccessfully sued the guardian ad litem thereafter, we are unclear whether these were the full extent of her actions leading to the injunction. If they were, the court should have explained why it felt it appropriate to ban, without findings as to the abuses of the judicial process causing imposition of the injunction, the commencement of “any actions in this court” (as opposed, for example, to a ban merely on further attempts, without authorization, to remove, pro se, more proceedings from the Rhode Island Family Court divorce case). See Sires, 748 F.2d at 51; see also De Long, 912 F.2d at 1148; In re Powell, 851 F.2d at 431. Injunctions restricting court access across the board in all cases are very much “the exception to the general rule of free access to the courts.” Pavilonis, 626 F.2d at 1079. They should be issued only when abuse is so continuous and widespread as to suggest no reasonable alternative.
We emphasize that it is the breadth of the instant order that causes us some concern. Had the court, after notice and opportunity to respond, merely enjoined Cok from further frivolous removals from the family court, we would have doubtless approved. The present record supports such a limited order. We have not hesitated to uphold injunctions that were narrowly drawn to counter the specific offending conduct. Castro, 775 F.2d at 410; cf. Pavilonis, 626 F.2d at 1079 (upholding issuance of injunction but narrowing its scope). But this order is not limited to restricting improper conduct of the type which the present record indicates plaintiff has displayed in the past. If the “specific vice” sought to be curtailed is simply the appellant’s propensity, as here and in 1984, to attempt improper removals to federal court of matters based on her state divorce proceeding, the district court may, after notice, wish to enter an order limiting such conduct. See Castro, 775 F.2d at 410. On the other hand, if the court means to issue a more generalized injunction aimed at preventing the bringing of any and all unpermitted pro se actions in the district court, it must develop a record showing such widespread abuse of the judicial system as to warrant such a broadcast prohibition. Id. at 410 n. 13.
We recognize that the district court is in the best position to set preconditions on access and do not prescribe any particular design for such restraints to take. See Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir.1986) (en banc) (compiling illustrative restrictions); see also Abdul-Akbar v. Watson, 901 F.2d 329, 333 (3d Cir.1990); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986); Winslow, 759 F.Supp. at 678, 683-85. We are also sympathetic to the difficult task faced by a court in attempting to ensure that judicial resources are not misused by abusive litigants. The present litigant has clearly been acting in an unacceptable manner. But for the reasons discussed above, we are unable, without more, to affirm an injunction of unlimited breadth.
CONCLUSION
Plaintiffs appeal from the remand order is dismissed for lack of jurisdiction. The order as now worded enjoining the plaintiff, pro se, from removing family court matters and commencing any actions in the district court, pro se, without prior approval, is vacated and remanded to the district court for further proceedings not inconsistent with this opinion.
Appellant’s pending motion for a stay of this appeal is denied.
So ordered.
. At the hearing before the district court to reconsider the remand order, Cok withdrew her motion for recusal of the district judge, and it was not acted upon. Although raised on appeal, that issue has been waived.
. In agreement with other circuits that have considered the question, we are satisfied that we have jurisdiction to review an order restricting a pro se litigant's right of access even when no new filing has, as yet, been rejected under the order. See Moy v. United States, 906 F.2d 467, 470 (9th Cir.1990) (collecting cases); Pavilonis v. King, 626 F.2d 1075, 1077 (1st Cir.), cert. denied, 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34 (1980).
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_confess
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant." 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".
Freddie DAVIS, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee.
No. 83-8384.
United States Court of Appeals, Eleventh Circuit.
Sept. 30, 1987.
Rehearing and Rehearing En Banc Denied Nov. 25,1987.
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.
Joseph M. Nursey, Millard C. Farmer, Atlanta, Ga., for petitioner-appellee, cross-appellant.
Before HILL and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge.
HILL, Circuit Judge:
Ralph Kemp, Warden of the Georgia Diagnostic Center, appeals to this court from an order of the district court granting Freddie Davis’ petition for a writ of habeas corpus, and thus prohibiting his execution unless the state holds a resentencing hearing within 180 days. Davis has filed a cross-appeal from the order of the district court denying relief as to the other grounds set forth in his petition. We affirm the order of the district court denying relief as to the grounds raised by Davis in his cross-appeal and reverse the order granting relief on the grounds addressed by the state’s appeal.
Davis was indicted in Meriwether County, Georgia, on charges of murder and rape; at his trial in March 1977, the jury found him guilty of both crimes. At his sentencing hearing, the jury found an aggravating circumstance, see O.C.G.A. § 17-10-30(b)(2), and the judge sentenced Davis to death for the murder and life imprisonment for the rape. Davis appealed his convictions and sentence to the Georgia Supreme Court. In February 1978, that Court upheld Davis’ convictions but vacated his death sentence. See Davis v. State, 240 Ga. 763, 243 S.E.2d 12 (1978). At Davis’ second sentencing hearing in May 1978, the jury found two statutory aggravating circumstances, see O.C.G.A. § 17-10-30(b)(2) & (b)(7), and the judge sentenced Davis to death. Davis appealed to the Georgia Supreme Court, which affirmed the death sentence. See Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979). The United States Supreme Court vacated the second death sentence and remanded the case to the Georgia Court for reconsideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) . See Davis v. Georgia, 446 U.S. 961, 100 S.Ct. 2934, 64 L.Ed.2d 819 (1980). The Georgia Court reinstated the death sentence, see Davis v. State, 246 Ga. 432, 271 S.E.2d 828 (1980), and the Supreme Court denied certiorari. See Davis v. Georgia, 451 U.S. 921,101 S.Ct. 2000, 68 L.Ed.2d 312 (1981) . Davis then filed a petition for a writ of habeas corpus in state superior court. The state court denied this petition on February 5, 1982, and the Georgia Supreme Court denied Davis’ application for a certificate of probable cause on March 24, 1982. The United States Supreme Court again denied certiorari. See Davis v. Georgia, 459 U.S. 891, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982).
On December 15,1982, Davis filed a petition for a writ of habeas corpus in federal district court. The court denied this petition on December 20, 1982. Davis, with new counsel, filed various pleadings with the district court, which he characterized as amended petitions, in an effort to raise new claims. Although the district court found the petitions to be successive and an abuse of the writ, on December 23, 1982, the court agreed to reconsider the case. On April 8, 1983, the court granted Davis the above-described partial relief.
This appeal was held in abeyance pending four en banc opinions affecting the outcome of this case. With the Supreme Court’s denial of certiorari on March 2, 1987 in Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc), vacated, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (llth Cir.1986), cert, denied, — U.S.-, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987), the appeals in these four cases became final. Accordingly, we proceed to analyze the issues set forth in Davis’ petition.
I
Davis raised three of his claims on appeal for the first time in his second federal habeas petition. The state contends that the district court improperly considered Davis’ second petition after finding it to be a successive petition and an abuse of the writ. We hold that, under the controlling case law, the district judge did not abuse his discretion in considering the issues raised in the successive petition in this case.
As the Supreme Court has stated, the district courts are responsible for
the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a . second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power— and, if the ends of justice demand, the duty — to reach the merits.
Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); see also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2625, 91 L.Ed.2d 364 (1986) (“the permissive language of § 2244(b) gives federal courts discretion to entertain successive petitions under some circumstances”); Potts v. Zant, 638 F.2d 727, 741 (5th Cir. Unit B 1981). In his order, the district judge specifically cited Sanders and Potts. We thus conclude that, despite his decision that Davis had abused the writ, the district judge relied on the proper grounds in exercising his discretion, concluding that the “ends of justice” justified considering Davis’ amended petition. See Sanders, 373 U.S. at 15, 83 S.Ct. at 1077.
II
The district court granted the writ because it found the closing argument of the prosecutor at Davis’ sentencing hearing unconstitutional under our decision in Hance v. Zant, 696 F.2d 940 (11th Cir.1983). In Hance, the court found unconstitutional arguments made by the prosecutor which were similar to the arguments delivered in this case. The decision in Hance, however, has been largely overruled. Brooks v. Kemp, 762 F.2d 1383, 1399 (11th Cir.1985) (en banc), vacated on other grounds, — U.S.-, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986); see Drake v. Kemp, 762 F.2d 1449 (11th Cir.1985) (en banc), cert, denied, — U.S.-, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986); Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc), vacated, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (11th Cir.1986), cert, denied, — U.S.-, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987); Tucker v. Kemp, 762 F.2d 1496 (11th Cir.1985) (en banc).
Generally the court engages in a two step process in determining whether a habeas petitioner is entitled to relief based upon a prosecutor’s arguments. First, we consider whether the prosecutor’s arguments were improper. Second, we consider whether any arguments found improper were so prejudicial as to render the trial fundamentally unfair. As we noted in Brooks, 762 F.2d at 1400, “it is not our duty to ask whether a particular remark was unfair; we are concerned with whether it rendered the entire trial unfair.” The Supreme Court has recently reaffirmed the standard to be employed in reviewing a prosecutor’s argument:
The relevant question is whether the prosecutors’ comments “so infected the trial with unfairness as to make the re-suiting conviction a denial of due process.” Donnelly v. De Christoforo, 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431] (1974). Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is “the narrow one of due process, and not the broad exercise of supervisory power.” Id. at 642, 94 S.Ct. at 1871.
Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Applying this standard, we conclude that the prosecutor’s closing arguments did not render Davis’ trial fundamentally unfair.
Davis primarily attacks six portions of the prosecutor’s arguments which he considers unconstitutional. During the sentencing phase, the prosecutor analogized the role of the jury and the role of soldiers fighting for their country:
I know it’s difficult and an unpleasant thing. Nobody would like to recommend the death penalty for anybody else, but people, unfortunately, are faced with difficult times, having to do difficult things. Every one who goes into the armed services has a difficult duty. Oftentimes these men have to go into battle and fight and get killed although they might be opposed to the practice of killing. But, in order to protect our country and preserve it, keep it where it is and keep it free, they must occasionally go into battle and kill people. It’s the same principal that applies here, and I submit, Freddie Davis and people like him are just as much as an enemy of this country as soldiers who have fought against this country in war. In fact, even more because these soldiers are fighting for their own country.
Freddie Davis has no such motives. His motives are self-motivations, greed, lust or what have you. Let’s not feel sorry for Freddie Davis. There has been no evidence whatsoever presented by Freddie Davis to repute [sic] or dispute or rebute [sic] any evidence that we have submitted. The evidence that we have submitted must be taken as true because you have no other evidence presented to you. That’s it.
In Brooks, we found improper an argument that was similar in some respects to the argument quoted above but was in other respects more egregious. We noted that “the analogy of the death penalty to killing in a war was appropriate insofar as it implied that imposing death, while difficult, is at times sanctioned, by the state because of compelling reasons (national security or deterring crime).” 762 F.2d at 1412. We found the particular analogy drawn in Brooks to be improper, as it “undermine[d] the crucial discretionary element required by the Eighth Amendment.” Id. at 1413. In that case, however, “[t]he improper aspect of the argument was the suggestion that the jurors should forego an individualized consideration of Brooks’ case and instead choose execution because he was part of the broad ‘criminal element’ terrorizing American society.” Id. at 1414. The excerpt quoted above included no such suggestion. Instead, the prosecutor emphasized the evidence in this particular case and the duty of the jury to impose a sentence of death if they deemed it appropriate under the particular circumstances of the crime Davis committed. The prosecutor thus avoided the argument held improper in Brooks.
Also challenged is the prosecutor’s argument concerning the deterrent value of the death penalty:
We do know this, that in the last 10 or 12 years, since we haven’t had but one death penalty in the whole United States, violent crimes have increase [sic] tremendously. They are running rampant in this country. You cannot pick up the newspaper, listen to the television, or radio, read a magazine or anything about the news without reading about some vile, horrible, unspeakable crime. These crimes are happening in much more frequency now than they did while we were imposing the death penalty on people who committed these crimes. That’s just the facts of life. We do know that this is happening.
This argument was not improper. Arguments by the prosecutor that the death penalty serves as a deterrent are proper. Brooks, 762 F.2d at 1407 (“In deciding whether to impose the death penalty in a particular case, it is appropriate for a jury to consider whether or not the general deterrence purpose of the statute is served thereby.”); Drake, 762 F.2d at 1449; Tucker, 762 F.2d at 1484; Tucker, 762 F.2d at 1505; Collins v. Francis, 728 F.2d 1322, 1339 (11th Cir.1984). One of the stronger arguments relied upon by defense attorneys during the sentencing phase of a death case is that nothing would be served by taking the defendant’s life. The prosecutor is permitted to rebut such an argument. The constitution does not require one-sideness in favor of the defendant.
Davis contends the prosecutor’s arguments are presumably based on studies not in evidence. In Brooks, the prosecutor was permitted to argue that the increasing crime rate had been produced by the state’s failure to have executed anyone in recent years. Reference to the increasing crime rate was permissible without statistical proof, because such information was within the common knowledge of jurors. Implicit within the state legislature’s decision to enact a death penalty statute is the determination that the death penalty serves valid purposes of deterrence and retribution. Thus, the court in Brooks concluded that: “[t]he prosecutor need not adduce evidence ... to prove the link between death and deterrence. An argument ... urging jurors to consider the deterrent effect of the penalty is not improper.” Brooks, 762 F.2d at 1409.
Retribution is also a permissible factor which the jury may consider in imposing death. Brooks, 762 F.2d at 1407; Tucker, 762 F.2d at 1484; Tucker, 762 F.2d at 1505. The prosecutor’s arguments seeking to justify the execution of Freddie Davis based upon society's legitimate interest of purging itself of this wrong was a permissible argument. The prosecutor made the following argument:
But, by feeling sorry for him, we neglect and overlook another aspect of the case. We completely ignore and neglect and overlook what happened to Miss Coe. What happened to her? For 35 or 40 minutes these people were in her house in which she was undergoing tortures that we can’t imagine. We can’t imagine what happened to her. No one within his wildest dreams can imagine what she went through. This type of sympathy directed toward Freddie Davis, ladies and gentlemen is false sympathy because it only looks at one side of the coin. One side of the story. To ignore Frances Coe and feel only for this defendant, I submit, would be a disgrace and an injustice and an outrage. That people can commit crimes like this in this country and not receive the punishment that they deserve is a disgrace and an outrage. Something this whole country has to be ashamed of, and ladies and gentlemen, I submit one of the main reasons that we have so many crimes like this in this country and we have them because of sympathy on the part of jurors toward people who commit the crime.
This argument was merely an effective means of emphasizing the purposes of retribution and deterrence served by this statute. The prosecutor also invoked both general and specific deterrence again in his conclusion:
The death penalty is called for. Ask yourselves this question, how would you feel living in this community if you looked out of your window one night and saw Freddie Davis walking down the street coming up toward your house. If that wouldn’t put a feeling of cold terror in your heart, what would?
One thing and one thing only will stop or reduce this type of crime from happening is that jurors must do their duty and stand up and be counted and tell Freddie Davis and people like him that they have had enough. That we are going to execute you if you participate in crimes like this. If you don't do it, why should they ever stop doing it? Why should they? If you are not willing to impose the death penalty in this case or cases like this, what will ever stop these people from committing these types of horrible, unspeakable crimes.
In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court held that the future dangerousness of a defendant is a proper consideration in imposing death. See Tucker, 762 F.2d at 1507; Bowen v. Kemp, 769 F.2d 672, 679 (11th Cir.1985). In the above quoted excerpt, the prosecutor dramatically illustrated this future dangerousness. In Brooks, the prosecutor brought this very matter home to the jury by asking, “Who’s daughter will be killed next?” We found such an argument to be constitutional, concluding that: “A legitimate future dangerousness argument is not rendered improper merely because the prosecutor refers to possible victims.” Brooks, 762 F.2d at 1412. The argument made in this case is no more emotion laden than the imagery created by the prosecutor in Brooks.
Davis also attacks two portions of the prosecutor’s arguments which he argues tend to lessen the jury’s role in the sentencing process. The prosecutor argued:
This is an important task. It’s a task that only the jury can decide. This is a task, a decision, that is so important that only the people, the people themselves, can decide this. The people decide this in the person of your twelve citizens picked from this county, twelve upstanding, intelligent citizens, as the law requires and decide what you think should be done. Punishment can’t be decided by the Sheriff. You can’t blame him if the person doesn’t get the electric chair. You can’t blame the judge if he doesn’t give him the electric chair, you can’t blame the District Attorney or the Governor or the GBI. The Governor doesn’t sentence, nor the State Legislature or the State Appeal Court or anybody else. This decision, what a sentence will be, is to be decided by a jury and only be decided by you, by this jury.
A similar argument was made toward the conclusion of the prosecutor’s argument:
What this case comes down to is a question of duty. You must do your duty as you see fit as the citizens of this country. And I — this is a difficult thing to do at times. Everyone else has had a duty in this case. The other people have done their duty as well as they saw fit. The citizens who found Miss Coe, found her body, they did their duty by bringing this to light. The officers, GBI, the Sheriff's office, Sheriff Branch, Mr. Bert Davis, they did their duty as well as it could be done, and we are very fortunate, ladies and gentlemen, to have people like this working for you. I think you realize that. All the witnesses who testified in the case, officers, or people reported the crime or Crime Lab — the Crime Lab did its duty and they did their duty by performing the tests that they did and coming and testifying about it. The Grand Jury did its duty by returning an indictment. The Judge did his duty deciding on the legal points that came up and with intelligence. The juries — first jury did its duty by finding this one guilty of the offenses that he committed. I have attempted to do my duty by trying to bring the truth out to you and let you know what happened. It’s your duty and nobody else’s you can’t delegate it to anyone else. No one else but you and your duty is clear, and to not find — not recommend the death penalty is to leave your duty undone and only halfway complete this case.
These arguments bear some resemblance to an argument made by the prosecutor in Tucker v. Kemp, 762 F.2d 1480 (11th Cir. 1985):
[The defense attorney will] mention that, well, can you sleep well if this man is executed? Won’t it bother you if you ever read about it or hear about it whenever it happens? But I for one want to tell you that you are not the ones who did it if he is executed. It does not rest on your shoulders, ladies and gentlemen. Policemen did their duty and they went out and made the case. The grand jury down there did its duty and it indicted him and charged him with these horrible offenses. The district attorney’s office prosecuted the case, located the witnesses, and brought them in. The judge, the court came in and presided at the trial. And ladies and gentlemen, you are the last link in this thing, and if this man suffers the death penalty it’s no more up to you than it is to anybody else, the grand jury or the police, or the district attorney’s office. All of us are coming in and doing our duty.
In Tucker, the Court concluded that such an argument was improper because it “suggested] that the jury is only the last link in a long decision” to impose death and therefore trivializes the jury’s importance. Tucker, 762 F.2d at 1485-86.
In Brooks v. Kemp, the en banc court also considered a prosecutor’s argument which is remarkably similar to the argument made in the present case:
Now I’m sure another question that might be going through your mind at this time is, when I get back to that jury room, and we have to vote, and I vote to take somebody’s life, can I do it? I know it’s rough, it would be hard for me to do. Can I take somebody’s life? Well the truth, you’re not pulling the switch in the electric chair; the police who investigated this case and who apprehended William Brooks, they’re not taking his life; the Recorder’s Court Judge who heard the evidence in the preliminary hearing, are you going to say he’s responsible for taking his life? Of course not. How about the Grand Jury who listened to the evidence and indicted him for murder; are the Grand Jurors responsible for his life, can you say they’re about to take his life? Of course not. How about me and my staff, we put the case together and we prosecuted him, and we’re here now asking you to bring back the death penalty, do we feel responsible? I don’t. I don’t think anybody in my office does. How about the man, if he’s electrocuted, who actually pulls the switch, is he responsible for taking his life? Of course not. The person who is responsible for his life is William Brooks himself, and if the switch is pulled and he’s put to death, he pulled the switch the morning that he was walking along Saint Mary’s Road when he put the gun in the back of Carol Jeannine Galloway and kidnapped her, that's when he took his own life. He’s a grown man, and he knew what he was doing.
This argument was found to be proper because it did not minimize the role of the jury as the prosecutor had sought to do in Tucker, rather the argument emphasized the responsibility of the jury. In the present case, the prosecutor’s arguments are more closely analogous to the argument made in Brooks rather than the argument used by the prosecutor in Tucker. Here, the jury was instructed as to the importance of its task. The prosecutor informed the jury that they alone could determine the appropriate sentence and that this task could not be delegated.
In Dutton v. Brown, 788 F.2d 669, 675 (10th Cir.1986) the United States Court of Appeals for the Tenth Circuit considered a prosecutor’s argument which informed the jury that they were not “functioning as individuals” but functioning as part of the legal system in the same manner that the judge and district attorney performed their roles within this system. The court held that such an argument did not diminish the jury’s responsibility:
[T]he statement of the prosecutor was not constitutionally impermissible. The statement was not designed to, nor did it, suggest to the jury that it was not ultimately responsible for deciding [the defendant’s] punishment. The prosecutor merely underscored that the jury was part of the whole system of justice, and within that system it had a grave responsibility.
The same must be said concerning the arguments delivered in this case. It certainly was not improper for the prosecutor to argue that the jury should return a verdict of death in this particular case. Accordingly, the argument by the prosecutor in this case was proper.
Finally, even if we were to find the prosecutor’s argument to be improper, Davis’ sentencing proceeding was not rendered fundamentally unfair. In Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985), the court concluded that the prosecutor’s “last link” argument was improper but proceeded to find the argument was not so egregious as to create a constitutional error. The decision in Tucker, however, was vacated and remanded by the Supreme Court in light of the Supreme Court’s subsequent decision in Caldwell v. Mississippi, 472 U.S. 320, 105 5. Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell, the court reversed a death sentence where the jury was informed that a sentence of death is not final and the sentence would be subject to automatic review by the State Supreme Court. In so ruling, the Court, per Justice Marshall, wrote:
In this case, the state sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eight Amendment requires.
Id., 105 S.Ct. at 2646. On remand, the Tucker court concluded that its previous holding was consistent with Caldwell. Tucker v. Kemp, 802 F.2d 1293 (11th Cir. 1986) (en banc), cert, denied, — U.S.-, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987). The court noted that “[vjiewing the entire sentencing proceeding, there can be little doubt that the jury understood it had the sole responsibility to determine the sentence to be received by petitioner.” Id. at 1296; see also Coleman v. Brown, 802 F.2d 1227, 1238 (10th Cir.1986) (“[W]e do not find that this ‘last link’ remark made during the guilt stage of the trial — even taken together with the prosecutor’s persistent attempts to evoke sympathy for [the] victims and his comments on matters not in evidence — rose to the level of constitutional error.”). In the present case, the prosecutor’s closing arguments repeatedly emphasized the role played by the jury. The prosecutor began by informing the jury that only they could impose death. Later in his argument, the prosecutor commented:
If you think that the aggravated circumstances are there, but you think he should get life, then, that’s your prerogative and you can give him life. It’s totally your decision.
Defense counsel began his arguments by commenting upon the “very awesome responsibility” to which the prosecutor had referred. Furthermore, the judge informed the jury it had the discretion of imposing life even if the statutory aggravating factors were proven beyond a reasonable doubt. In light of these circumstances, we conclude that “the jury was fully apprised of and appreciated the decision that it alone had to make — whether to impose a sentence of death or one of life imprisonment.” Tucker, 802 F.2d at 1297. The sentencing proceeding was not fundamentally unfair.
Ill
Davis argues that, given the facts and procedural posture of his case, he should not have been put on trial again for his life. He contends that the evidence produced at his guilt/innocence trial failed to demonstrate beyond a reasonable doubt that he committed the offense of rape. At Davis’ first sentencing hearing, the state relied on only the subsection (b)(2) aggravating circumstance — murder committed in connection with the rape. Thus, Davis argues that the state could not resentence him to death after his first sentencing hearing because, given the lack of evidence to prove the rape, the double jeopardy clause bars placing him again on trial for his life. See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). We will consider the constitutional validity of both his rape conviction and his resentencing together.
When a habeas petitioner raises a sufficiency of the evidence claim, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). At trial, the state produced evidence that the victim had been forcibly assaulted around the vaginal area. Although the medical examiner testified that he found no sperm and only trace elements of seminal fluid, the position of the victim’s body — sweater open, slip pulled up, pantyhose and panties pulled down — was entirely consistent with the jury’s conclusion that a rape occurred. Davis argues that the injury could have been accomplished with a foreign object such as a stick. Although this may be true, a reasonable juror could have found beyond a reasonable doubt that the victim was raped.
Davis argues that, although a juror could conclude that the victim was raped, the state introduced no evidence tending to show that Davis, as opposed to his co-defendant Spraggins (who was tried separately), committed the crime. We agree that the state failed to exclude all doubt that Davis, as a principal, committed the rape himself; however, the evidence clearly placed him in the victim’s house at the time of the crime. Although both Davis and Spraggins testified that the victim was not raped (assertions controverted by the evidence), Spraggins testified that Davis was not only present during the crime but that Davis instructed Spraggins as to how next to torture and kill the victim. Davis had a cut on his hand; and blood matching Davis’ blood type, but not Spraggins’, was found in the victim's bedroom and in other portions of the house. Given this evidence, the jury properly could decide that either Davis or Spraggins raped the victim and that the other participated as an aider and abetter, thus making him guilty as a principal under O.C.G.A. § 16-2-20. The judge gave the appropriate jury charge. Thus, we reject both Davis’ contention that his rape conviction lacks validity and his contention that the invalidity voids his death sentence.
IV
In a somewhat related claim, Davis next argues that the double jeopardy clause, as construed in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), prevents the state from relying on an aggravating circumstance to support his death sentence at his second sentencing hearing (the subsection (b)(7) circumstance) not relied on at his first sentencing hearing. Davis is not entitled to relief on this claim. The recent Supreme Court decision in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), disposes of this issue.
In Poland, the trial judge had found as an aggravating factor that the murder was “especially heinous, cruel, or depraved,” and imposed a sentence of death. The judge, however, concluded that the crime did not fall within the “pecuniary gain” aggravating circumstance because the murder was not a contract killing. The Arizona Supreme Court found the evidence insufficient to support a finding that the murder was especially heinous; the court, however, concluded that the trial judge could have found that the crime was committed for pecuniary gain. At Poland's second sentencing, the prosecution presented additional evidence as to the “especially heinous” and “pecuniary gain” aggravating factors. The prosecutor also introduced evidence concerning a third aggravating circumstance — conviction of a previous violent felony. At the second sentencing, the trial judge found all three aggravating circumstances present and resentenced Poland to death. The Supreme Court held that the reimposition of the death penalty was not precluded by the Double Jeopardy Clause. Concluding that the defendant had never been “acquitted” of the death penalty, the court noted that the prosecutor was writing upon a “clean slate” in seeking a sentence of death at the second sentence hearing. The Supreme Court stated:
We reject the fundamental premise of petitioners’ argument, namely, that a capital sentencer’s failure to find a particular aggravating circumstance alleged
Question: Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
CONNECTICUT FIRE INSURANCE COMPANY and Hawkeye-Security Insurance Company, Appellants, v. Anthony FERRARA, Appellee.
No. 16051.
United States Court of Appeals Eighth Circuit.
April 22, 1960.
Rehearing Denied June 2, 1960.
Glenn E. McCann, Kansas City, Mo., for appellants.
Joseph S. Levy, Kansas City, Mo., for appellee.
Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges.
VOGEL, Circuit Judge.
Connecticut Eire Insurance Company and Hawkeye-Security Insurance Company, appellants here, brought suit in the federal District Court for the Western District of Missouri seeking a declaration of their liability under two fire insurance policies issued to the appellee, Anthony Ferrara, in the amount of $5,-000 each. Simultaneously the insured initiated an action in the state court of Missouri to recover the full amount of the policies. The state court action was then removed to the federal court and consolidated for the purposes of trial with the declaratory proceedings. The District Court, sitting without a jury, found for the insured and entered a judgment against each insurance company in the amount of $5,000.00 plus interest and costs, from which result this appeal is taken.
The insured property, consisting of a fruit and grocery market in Kansas City, Missouri, was destroyed by fire on September 21, 1955. The proofs of loss filed by the insured contained the following provision:
“The said loss did not originate by any act, design or procurement on the part of your insured, or this affiant; nothing has been done by or with the privity or consent of your insured or this affiant, to violate the conditions of the policy, or render it void; no articles are mentioned herein or in annexed schedules but such as were destroyed or damaged at the time of said loss; no property saved has in any manner been concealed, and no attempt to deceive the said company, as to the extent of said loss, has in any manner been made. Any other information that may be required will be furnished and considered a part of this proof."
The policies in question provided that:
“This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto."
The insurance companies maintained that the insured had rendered the policies void in that he had falsely sworn that the fire was not due to any act or design on his part and in that he had fraudulently sworn to the values and extent of the property damaged. During the course of the trial the insured was asked on cross examination whether or not on February 14, 1957, he had been convicted in the Circuit Court of Jackson County, Missouri, of the crime of arson in connection with the destruction of the insured premises. An objection to this question was sustained on the grounds that the state court criminal conviction was then on appeal to the Missouri Supreme Court. Thereafter counsel for the insurance companies offered to prove the fact of the conviction, to which the insured’s objection was sustained. The District Court then found that, on the basis of the evidence before it, the destruction of the insured premises was not due to the act or design of the insured and that he was guilty of no fraud in valuing the destroyed property.
Subsequent to the entry of judgment and to the filing of the notice of appeal therefrom, the insured’s criminal conviction was affirmed by the Missouri Supreme Court. State v. Ferrara, Mo., 1958, 320 S.W.2d 540. The insurance companies thereupon petitioned the District Court to vacate the judgment and to enter judgment for them or, in the alternative, to reopen the proceedings on the grounds that the affirmance of the conviction constituted newly discovered evidence. Because of the previously filed appeal the motion was denied, the District Court stating:
“It is the opinion of the court that the question is now one for determination by the Court of Appeals and not this court.”
The central issue presented by this appeal is whether or not a criminal conviction may be considered in a subsequent civil proceeding for the purpose of establishing the truth of the facts upon which it was based. The courts of Missouri have uniformly held that a criminal judgment may not be so used. Sklebar v. Downey, Mo.App., St. Louis, 1926, 220 Mo.App. 5, 285 S.W. 148; Summers v. Rutherford, Mo.App., Springfield, 1917, 195 S.W. 511; Myers v. Maryland Cas. Co., Mo.App., Kansas City, 1907, 123 Mo.App. 682, 101 S.W. 124. The rationale of these and similar rulings of other jurisdictions has been that criminal and civil proceedings differ as to the issues, objects and procedures involved. Additionally, it has been thought that the fact that a judgment of acquittal could not be binding upon the new civil party prevents, upon the principle of mutuality, a converse result having this effect upon the criminal defendant. See, Annotation, 18 A.L.R.2d 1297. It should be noted, however, that each of the Missouri decisions cited involved a civil proceeding brought against the criminal defendant to recover damages for the acts previously found unlawful. We believe that the same rule does not and should not apply where the subsequent civil action is brought by the criminal defendant for the purpose of profiting from his criminal conduct.
In Mineo v. Eureka Security Fire & Marine Ins. Co., 1956, 182 Pa.Super. 75, 125 A.2d 612, the Supreme Court of Pennsylvania held that it was error for the trial court to refuse to admit in evidence in a suit to recover on a fire insurance policy a judgment of conviction against the insured for arson. The court noted that:
“The tendency is to abandon any general rule of exclusion applicable to all criminal judgments, and to approach the problem from the point of view of the particular judgment of conviction * * * ”, 125 A.2d at page 616,
and found that a rule permitting admission of a criminal conviction was necessary under the circumstances of the instant case as:
“This rule is founded upon the public interest which requires that the laws against crime be enforced, and that courts aid no man in any effort he may make to benefit from his own violation of them. The rule is enforced upon the ground of public policy alone and not out of consideration for the defendant to whom the advantage is incidental. * * *
“The insureds have had their day in court with the opportunity to produce their witnesses, to examine and cross examine witnesses and to appeal from the judgment and to be acquitted unless the evidence established their guilt beyond a reasonable doubt.
“To now permit them to recover for the loss which they have been convicted of fraudulently causing would be against public policy. It would tend to destroy the confidence of the public in the efficiency of the courts; it would stir up litigation that would reopen tried issues; it would impress the public with the belief that the results of trials of the gravest nature were so uncertain that the innocent could not escape condemnation; and it would convince the public that the courts themselves have no confidence in the judicial processes.” 125 A.2d at pages 617-618.
Similarly, in Eagle, Star and British Dominions Ins. Co. v. Heller, 1927, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490, the Supreme Court of Virginia recognized a distinction between civil proceedings brought against the criminal defendant and those brought by him to take advantage of his criminal act. In reference to the latter, the court stated:
“It is certainly clear in such cases that the plaintiff who is seeking redress in the civil case for the injury, not having been a party to the criminal prosecution, is not bound by its result. We confess our inability to perceive, however, why the accused person himself should not be held either as bound or affected by the result of the prosecution, if adverse to him. He has had his day in court * * *. (140 S.E. at page 316.)
* * * -x- * *
“* * *To permit a recovery under a policy of fire insurance by one who has been convicted of burning the property insured, would be to disregard the contract, be illogical, would discredit the administration of justice, defy public policy and shock the most unenlightened conscience. To sustain such a judgment would be to encourage and give support to the current thoughtless and carping criticisms of the legal procedure, and to justify the jibe that the administration of the law is (the) only remaining legalized lottery.” 140 S.E. at page 323.
This distinction has been recognized in other jurisdictions. Austin v. United States, 7 Cir., 1942, 125 F.2d 816; Rosenberger v. Northwestern Mut. Life Ins. Co., D.C.Kan.1959, 176 F.Supp. 379; Sovereign Camp. W.O.W. v. Gunn, 1933, 227 Ala. 400, 150 So. 491; Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 1933, 226 Ala. 226, 146 So. 387; North River Ins. Co. of City of New York v. Miletello 1937, 100 Colo. 343, 67 P.2d 625, affirmed, 104 Colo. 28, 88 P.2d 567; Wolff v. Employers’ Fire Ins. Co., 1940, 282 Ky. 824, 140 S.W.2d 640, 130 A.L.R. 682; Schindler v. Royal Ins. Co., 1932, 258 N.Y. 310, 179 N.E; 711, 80 A.L.R. 1142; contra, Smith v. Dean, 1956, 226 Ark. 438, 290 S.W.2d 489; In re Johnston’s Estate, 1935, 220 Iowa 328, 261 N.W. 908, affirmed on rehearing, 262 N.W. 488; True v. Citizens’ Fund Mut. Fire Ins. Co., 1933, 187 Minn. 636, 246 N.W. 474; Lillie v. Modern Woodmen of America, 1911, 89 Neb. 1, 130 N.W. 1004; Goodwin v. Continental Cas. Co., 1935, 175 Okl. 469, 53 P.2d 241; Girard v. Vermont Mut. Fire Ins. Co., 1931, 103 Vt. 330, 154 A. 666, 670. Additionally, it has received the approval of leading treatise writers. McCormick, Law of Evidence sec. 295, p. 618-619 ; V Wigmore (3rd Ed.) sec. 1671(a), p. 694; A.L.I., Model Code of Evidence, Rule 521, p. 280.
It is a basic principle of American jurisprudence that one may not profit from his own crime. See, for example, New York Mut. Life Ins. Co. v. Armstrong, 1886, 117 U.S. 591, 600, 6 S.Ct. 877, 881, 29 L.Ed. 997, wherein the United States Supreme Court held that it was error to refuse to receive testimony that one who was the sole owner of an insurance policy at the time of the death of the insured had feloniously caused the death, stating:
“It would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had wilfully fired.” (Emphasis supplied.)
The courts of Missouri have unequivocally adopted this rule. Grose v. Holland, 1948, 357 Mo. 874, 211 S.W.2d 464, 466; Hopkins v. Metropolitan Life Ins. Co., Mo.App., St. Louis, 1941,151 S.W.2d 527, 530; Perry v. Strawbridge, 1908, 209 Mo. 621, 108 S.W. 641, 16 L.R.A.,N.S., 224. Additionally, the Missouri Court of Appeals has inferentially recognized that this policy must prevail over considerations which might otherwise make a criminal conviction inadmissible in a civil proceeding when that proceeding involves an attempt to circumvent that very policy. Thus, in Osborn v. Gibson, Mo.App., Kansas City, 1958, 309 S.W.2d 15, the trial court’s refusal to admit evidence of a criminal conviction in a civil proceedings was affirmed because the civil action involved an issue not relevant to the criminal judgment. However, the court proceeded to note that:
“Most of the leading cases approving of the admission, in civil actions, of a previous criminal conviction as evidence of the facts upon which it was based, have involved situations where the convicted criminal has sought to take advantage of rights growing out of the criminal act. 18 A.L.R.2d 1300.” 309 S.W. 2d at page 17.
That annotation states, inter alia:
“The logical basis for admitting evidence of convictions seems to be the same regardless of the type of conviction or civil action involved, although the strong public policy rule against permitting one to profit by his own wrong may furnish a more compelling reason for abandoning the previous rule.” (Emphasis supplied.) 18 A.L.R.2d at 1289-1290.
We therefore conclude that the affirmed conviction of the insured for arson in regard to the destruction of the insured premises may be considered as bearing upon the merits of his claim against the insurance companies.
The next question to be determined is whether or not the fact of the insured’s criminal conviction is merely additional evidence to be weighed by the finder of fact in determining the cause of the fire, in which event we would be required to remand this case to the District Court for further proceedings, or is an automatic and conclusive bar to his right to recover. Admittedly, the former effect is the one adopted by the majority of jurisdictions holding that the criminal conviction may be considered in proceedings such as this. Sovereign Camp. W.O.W. v. Gunn, supra; Fidelity-Phenix Fire Ins. Co. v. Murphy, supra; North River Ins. Co. v. Miletello, supra; Rosenberger v. Northwestern Mut. Life Ins. Co., supra; Wolff v. Employers’ Fire Ins. Co., supra; Schindler v. Royal Ins. Co., supra. Nonetheless, the reasoning of Austin v. United States, supra; Mineo v. Eureka Security Fire & Marine Ins. Co., supra; and Eagle Star & British Dominions Ins. Co. v. Heller, supra, wherein the criminal conviction was held conclusive of the civil issue, is persuasive for, if public policy demands that a criminal be not allowed to profit by his crime and considering the fact that the criminal judgment was based upon a burden of proof requiring guilt beyond a reasonable doubt, there seems little justification for allowing the civil tribunal to reach a conclusion inconsistent with that policy. The facts of this case are such, however, that it is unnecessary for us to decide this issue. The opinion of the Missouri Supreme Court in State v. Ferrara, supra, reveals clearly that the evidence adduced at the criminal proceeding was fully as complete as that presented in this action. No basis for a collateral attack on the validity of that judgment appears. Thus, even accepting the majority rule that a criminal conviction is only additional evidence in a subsequent civil proceeding, we hold in this case that any conclusion of the finder of fact, having been apprised of this conviction, that this fire was not due to the act and design of the insured would be unsupported by substantial evidence and would demand reversal by us.
The judgment appealed from is reversed with directions to dismiss the suit brought by the insured against the appellants and to grant such further relief as is not inconsistent with this opinion.
. Judge Holt dissented, claiming that a contrary result would embody the “fair and common sense rule”. 290 S.W.2d at page 441.
. Characterized by Wigmore as “unsound; this sort of law is a reproach to our system”. IV Wigmore (3rd Ed.) sec. 134 (a), n. 1, p. 673.
. Characterized by Wigmore as a case which “reveals an instance where some of our fundamental law is fundamental nonsense”. IV Wigmore, (3rd Ed.) sec. 1346(a), n. 1, p. 673.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
BLANCHARD v. BERGERON et al.
No. 87-1485.
Argued November 28, 1988
Decided February 21, 1989
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, Stevens, O’Connor, and Kennedy, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 97.
William W. Rosen argued the cause for petitioner. With him on the brief was Charles J. Pisano.
Edmond L. Guidry III argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the Advocacy Center for the Elderly and Disabled by M. David Gelfand; for Farnsworth, Saperstein & Seligman et al. by Guy T. Saperstein, Antonia Hernandez, and E. Richard Larson; and for the National Association of Legal Assistants, Inc., by John A. DeVault III.
Justice White
delivered the opinion of the Court.
The issue before us is whether an attorney’s fee allowed under 42 U. S. C. § 1988 is limited to the amount provided in a contingent-fee arrangement entered into by a plaintiff and his counsel.
I
Petitioner Arthur J. Blanchard brought suit in the United States District Court for the Western District of Louisiana alleging violations of his civil rights under 42 U. S. C. § 1983. Blanchard asserted that he was beaten by Sheriff’s Deputy James Bergeron while he was in Oudrey’s Odyssey Lounge. Blanchard brought his claim against the deputy, the sheriff, and the St. Martin Parish Sheriff’s Department. He also joined with his civil rights claim a state-law negligence claim against the above defendants and against the owners and a manager of the lounge and the lounge itself. The case was tried and a jury awarded Blanchard compensatory damages in the amount of $5,000 and punitive damages in the amount of $5,000 on his § 1983 claim. Under the provisions of 42 U. S. C. § 1988, which permit the award of attorney’s fees to a prevailing party in certain federal civil rights actions, Blanchard sought attorney’s fees and costs totaling more than $40,000. The District Court, after reviewing the billing and cost records furnished by counsel, awarded $7,500 in attorney’s fees and $886.92 for costs and expenses.
Petitioner appealed this award to the Court of Appeals for the Fifth Circuit, seeking to increase the award. The Court of Appeals, however, reduced the award because petitioner had entered into a contingent-fee arrangement with his lawyer, under which the attorney was to receive 40% of any damages awarded should petitioner prevail in his suit. While recognizing that other Circuits had different views, the court held that it was bound by its prior decision in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 718 (1974), to rule that the contingency-fee agreement “serves as a cap on the amount of attorney’s fee to be awarded.” 831 F. 2d 563, 564 (1987). The court further found that hours billed for the time of law clerks and paralegals were not compensable since they would be included within the contingency fee. Ibid. Accordingly, the court limited the fee award to 40% of the $10,000 damages award — $4,000.
Because other Courts of Appeals have concluded that a § 1988 fee award should not be limited by a contingent-fee agreement between the attorney and his client, we granted certiorari to resolve the conflict, 487 U. S. 1217 (1988). We now reverse.
II
Section 1988 provides that the court, “in its discretion, may allow ... a reasonable attorney’s fee .’. . .” The section does not provide a specific definition of “reasonable” fee, and the question is whether the award must be limited to the amount provided in a contingent-fee agreement. The legislative history of the Act is instructive insofar as it tells us: “In computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, Tor all time reasonably expended on a matter.’” S. Rep. No. 94-1011, p. 6 (1976) (citing Davis v. County of Los Angeles, 8 EPD ¶ 9444 (CD Cal. 1974); and Stanford Daily v. Zurcher, 64 F. R. D. 680, 684 (ND Cal. 1974)).
In many past cases considering the award of attorney’s fees under § 1988, we have turned our attention to Johnson v. Georgia Highway Express, Inc., supra, a case decided before the enactment of the Civil Rights Attorney’s Fee Award Act of 1976. As we stated in Hensley v. Eckerhart, 461 U. S. 424, 429-431 (1983), Johnson provides guidance to Congress’ intent because both the House and Senate Reports refer to the 12 factors set forth in Johnson for assessing the reasonableness of an attorney’s fee award. The Senate Report, in particular, refers to three District Court decisions that “correctly applied” the 12 factors laid out in Johnson.
In the course of its discussion of the factors to be considered by a court in awarding attorney’s fees, the Johnson court dealt with fee arrangements:
“ ‘Whether or not [a litigant] agreed to pay a fee and in what amount is not decisive. Conceivably, a litigant might agree to pay his counsel a fixed dollar fee. This might be even more than the fee eventually allowed by the court. Or he might agree to pay his lawyer a percentage contingent fee that would be greater than the fee the court might ultimately set. Such arrangements should not determine the court’s decision. The criterion for the court is not what the parties agree but what is reasonable.’” 488 F. 2d, at 718 (quoting Clark v. American Marine Corp., 820 F. Supp. 709, 711 (ED La. 1970), aff’d 437 F. 2d 959 (CA5 1971)).
Yet in the next sentence, Johnson says “In no event, however, should the litigant be awarded a fee greater than he is contractually bound to pay, if indeed the attorneys have contracted as to amount.” 488 F. 2d, at 718. This latter statement, never disowned in the Circuit, was the basis for the decision below. But we doubt that Congress embraced this aspect of Johnson, for it pointed to the three District Court cases in which the factors are “correctly applied.” Those cases clarify that the fee arrangement is but a single factor and not determinative. 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), for example, the District Court considered a contingent-fee arrangement to be a factor, but not dispositive, in the calculation of a fee award. In Davis v. County of Los Angeles, supra, the court permitted a fee award to counsel in a public interest firm which otherwise would have been entitled to no fee. Finally, in Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), the court stated that reasonable fees should be granted regardless of the individual plaintiff’s fee obligations. Johnson’s “list of 12” thus provides a useful catalog of the many factors to be considered in assessing the reasonableness of an award of attorney’s fees; but the one factor at issue here, the attorney’s private fee arrangement, standing alone, is not dispositive.
The Johnson contingency-fee factor is simply that, a factor. The presence of a pre-existing fee agreement may aid in determining reasonableness. “‘The fee quoted to the client or the percentage of the recovery agreed to is helpful in demonstrating the attorney’s fee expectations when he accepted the case.’” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U. S. 711, 723 (1987) quoting Johnson, 488 F. 2d, at 718. But as we see it, a contingent-fee contract does not impose an automatic ceiling on an award of attorney’s fees, and to hold otherwise would be inconsistent with the statute and its policy and purpose.
As we understand § 1988’s provision for allowing, a “reasonable attorney’s fee,” it contemplates reasonable compensation, in light of all of the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less. Should a fee agreement provide less than a reasonable fee calculated in this manner, the defendant should nevertheless be required to pay the higher amount. The defendant is not, however, required to pay the amount called for in a contingent-fee contract if it is more than a reasonable fee calculated in the usual way. It is true that the purpose of § 1988 was to make sure that competent counsel was available to civil rights plaintiffs, and it is of course arguable that if a plaintiff is able to secure an attorney on the basis of a contingent or other fee agreement, the purpose of the statute is served if the plaintiff is bound by his contract. On that basis, however, the plaintiff should recover nothing from the defendant, which would be plainly contrary to the statute. And Congress implemented its purpose by broadly requiring all defendants to pay a reasonable fee to all prevailing plaintiffs, if ordered to do so by the court. Thus it is that a plaintiff’s recovery will not be reduced by what he must pay his counsel. Plaintiffs who can afford to hire their own lawyers, as well as impecunious litigants, may take advantage of this provision. And where there are lawyers or organizations that will take a plaintiff’s case without compensation, that fact does not bar the award of a reasonable fee. All of this is consistent with and reflects our decisions in cases involving court-awarded attorney’s fees.
Hensley v. Eckerhart, 461 U. S. 424 (1983), directed lower courts to make an initial estimate of reasonable attorney’s fees by applying prevailing billing rates to the hours reasonably expended on successful claims. And we have said repeatedly that “[t]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U. S. 886, 888 (1984). The courts may then adjust this lodestar calculation by other factors. We have never suggested that a different approach is to be followed in cases where the prevailing party and his (or her) attorney have executed a contingent-fee agreement. To the contrary, in Hensley and in subsequent cases, we have adopted the lodestar approach as the centerpiece of attorney’s fee awards. The Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended on the litigation. In Blum, we rejected, as contrary to congressional intent, the notion that fees are to be calculated on a cost-based standard. Further, as we said in Blum, “Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization.” 465 U. S., at 894. That a nonprofit legal services organization may contractually have agreed not to charge any fee of a civil rights plaintiff does not preclude the award of a reasonable fee to a prevailing party in a § 1983 action, calculated in the usual way.
It is clear that Congress “intended that the amount of fees awarded ... be governed by the same standards which pre- ■ vail in other types of equally complex Federal litigation . . . and not be reduced because the rights involved may be non-pecuniary in nature.” S. Rep. No. 94-1011, at 6. “The purpose of § 1988 is to ensure ‘effective access to the judicial process’ for persons with civil rights grievances.” Hensley, supra, at 429, quoting H. R. Rep. No. 94-1558, p. 1 (1976). Even when considering the award of attorney’s fees under the Clean Air Act, 42 U. S. C. §7401, the Court has applied the § 1988 approach, stating: “A strong presumption that the lodestar figure — the product of reasonable hours times a reasonable rate — represents a ‘reasonable fee’ is wholly consistent with the rationale behind the usual fee-shifting statute . . . .” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 565 (1986).
If a contingent-fee agreement were to govern as a strict limitation on the award of attorney’s fees, an undesirable emphasis might be placed on the importance of the recovery of damages in civil rights litigation. The intention of Congress was to encourage successful civil rights litigation, not to create a special incentive to prove damages and shortchange efforts to seek effective injunctive or declaratory relief. Affirming the decision below would create an artificial disincentive for an attorney who enters into a contingent-fee agreement, unsure of whether his client’s claim sounded in state tort law or in federal civil rights, from fully exploring all possible avenues of relief. Section 1988 makes no distinction between actions for damages and suits for equitable relief. Congress has elected to encourage meritorious civil rights claims because of the benefits of such litigation for the named plaintiff and for society at large, irrespective of whether the action seeks monetary damages.
It should also be noted that we have not accepted the contention that fee awards in § 1983 damages cases should be modeled upon the contingent-fee arrangements used in personal injury litigation. “[W]e reject the notion that a civil rights action for damages constitutes nothing more than a private tort suit benefiting only the individual plaintiffs whose rights were violated. Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.” Riverside v. Rivera, 477 U. S. 561, 574 (1986).
Respondent cautions us that refusing to limit recovery to the amount of the contingency agreement will result in a “windfall” to attorneys who accept § 1983 actions. Yet the very nature of recovery under § 1988 is designed to prevent any such “windfall.” Fee awards are to be reasonable, reasonable as to billing rates and reasonable as to the number of hours spent in advancing the successful claims. Accordingly, fee awards, properly calculated, by definition will represent the reasonable worth of the services rendered in vindication of a plaintiff’s civil rights claim. It is central to the awarding of attorney’s fees under § 1988 that the district court judge, in his or her good judgment, make the assessment of what is a reasonable fee under the circumstances of the case. The trial judge should not be limited by the contractual fee agreement between plaintiff and counsel.
The contingent-fee model, premised on the award to an attorney of an amount representing a percentage of the damages, is thus inappropriate for the determination of fees under § 1988. The attorney’s fee provided for in a contingent-fee agreement is not a ceiling upon the fees recoverable under § 1988. Accordingly, we reverse and remand.
HH HH
Blanchard also complains of the failure of the court below to award fees in compensation for the time of paralegals and law clerks. Because the Court of Appeals held that recovery for legal fees was to be limited by the contingency agreement, that court never addressed the issue of separate billing for legal assistants. “[A]ny hours ‘billed’ by law clerks or paralegals would also naturally be included within the contingency fee.” 831 F. 2d, at 564. Since we hold today that the contingency-fee arrangement does not control the award for attorney’s fees, the determination of the total fee will be considered on remand. We reserve for another day the question whether legal assistants’ fees should be included in the award.
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
The Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 94-559, 90 Stat. 2641, as set forth in 42 U. S. C. § 1988 states:
1 In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, 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 section states that the court “in its discretion” may allow a fee, but that discretion is not without limit: the prevailing party “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (1968); Hensley v. Eckerhart, 461 U. S. 424, 429 (1983).
The District Court referred to the guidelines announced by this Court in Hensley v. Eckerhart, 461 U. S. 424 (1983), for determining the calculation of fee awards. In that case, we said that “[t]he 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.” Id., at 433. We also went on to say that “[t]he district court. . . should exclude from this initial fee calculation hours that were not ‘reasonably expended’” on the litigation. Id., at 434, quoting S. Rep. No. 94-1011, p. 6 (1976). The District Court here first determined that the plaintiff, Blanchard, was a prevailing party. Then, to arrive at a reasonable fee, the court multiplied what it deemed to be the reasonable hours expended on the litigation by a reasonable hourly rate. This lodestar figure was then further reduced by the District Court based on its considerations of “the elemental nature of this litigation and the contingency fee arrangement entered.” App. to Pet. for Cert. 14A (ruling in Civil Action No. 83-0755, filed Oct. 23, 1986; Record 363, 370). Accordingly, the District Court adjusted its lodestar of $9,720 downward to the awarded fee of $7,500. We express no opinion on the number of hours reasonably expended on this litigation or on the reasonable hourly rate for the work involved here or even whether the District Court correctly characterized the nature of the litigation as “elemental.”
Blanchard’s attorney when he filed his original complaint on March 29, 1983, was Charles Pisano. On June 11, 1984, the District Court granted a motion substituting William Rosen as counsel.
Cooper v. Singer, 719 F. 2d 1496, 1507 (CA10 1983); Lusby v. T. G. & Y. Stores, Inc., 749 F. 2d 1423 (CA10 1984), cert. denied, 474 U. S. 818 (1985); Sisco v. J. S. Alberici Constr. Co., 733 F. 2d 55, 56 (CA8 1984); Sanchez v. Schwartz, 688 F. 2d 503, 505 (CA7 1982). The Fifth Circuit is not alone, however, in holding that a contractual agreement between a § 1983 plaintiff and counsel should govern the award of attorney’s fees under § 1988. See Pharr v. Housing Authority of Prichard, 704 F. 2d 1216 (CA11 1983).
The 12 factors set forth by the Johnson court for determining fee awards under § 706(k) of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5(k) are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F. 2d, at 717-719.
“The appropriate standards, see Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. ¶ 9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N. C. 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES of America, Appellee, v. Leonard Russell HORGER, Appellant. UNITED STATES of America, Appellee, v. Robert THIEMAN, Appellant. UNITED STATES of America, Appellee, v. Jack Simmons HORGER, Appellant.
Nos. 75-1645 to 75-1647.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 4, 1976.
Decided Jan. 25, 1977.
Betty M. Sloan, Columbia, S. C. (Frank K. Sloan, Columbia, S. C., on brief), for Leonard and Jack Horger.
James B. Craven, III, Durham, N. C. (Everett, Everett, Creech & Craven, Durham, N. C., on brief), for Robert Thieman.
Thomas P. Simpson, Asst. U. S. Atty., Columbia, S. C. (Mark W. Buyck, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and RUSSELL and HALL, Circuit Judges.
HAYNSWORTH, Chief Judge:
Three men were found guilty of intimidating a United States Drug Enforcement Administration special agent while he was engaged in the performance of his official duties and of stealing government property from him. Each seeks reversal, but only one contention deserves comment.
Leonard Russell Horger argues that Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) requires reversal of his conviction. That is true only if Geders is to be retroactively applied, and we hold that under these facts it is not. Geders held that an order preventing the defendant from consulting his counsel “about anything” during a 17-hour overnight recess between his direct and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment.
On February 26, 1975, after defendant, Leonard Russell Horger’s, direct examination was completed, defense counsel requested that another, out-of-town defense witness be called out-of-turn. As the defendant left the witness stand the court admonished him:
Now, you can’t talk, talking to you, Mr. Horger, you can’t talk to anyone. You’re still under examination. Just as a matter of convenience, its a good spot. I know she’s got to be back, so if you want to take her right now, we’ll take her right now. You can step down, but you can’t talk with anybody about this. No, you can sit back there, but I’ll know whether you’re talking or not
After the testimony of the out-of-town witness the court recessed for the evening. After the jury was excused the judge again told the defendant he was still under oath and was not to talk to anyone about the case. The defendant returned to the witness stand when court reconvened the next morning.
No objection was made at trial to the court’s ruling and no prejudice to the defendant has been claimed.
It is settled that the retroactivity of a new rule does not depend on the particular section of the constitution on which it is based. Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Shiflett v. Virginia, 447 F.2d 50, 54 (4th Cir. 1971); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) is a Sixth Amendment right to counsel case and is fully retroactive, but that does not necessarily require a finding of retroactivity in this effective assistance of counsel situation. Gideon recognized the fundamental fact that a layman, unassisted by counsel, could not adequately further his claims of innocence and violation of previously declared rights, but the bare possibility that the rule may have some effect on the reliability of the fact-finding process does not automatically require its retroactive application. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972). See also Williams v. United States, 401 U.S. 646, 655, n. 7, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). Much depends upon the extent to which the reliability of that process is implicated. If little or not at all, other considerations tending against a retroactive application may readily carry the day; if substantially implicated, that circumstance must still be weighed against the practical considerations arising out of the reasonableness and extent of reliance upon the former rule and the practical effect a retroactive application would have in the administration of justice.
Here there was no showing of any need for consultation between lawyer and client during the overnight recess. No prejudice is shown; counsel quite frankly claims none. In this case the integrity of the fact-finding process seemingly is implicated not at all. Even if we speculate that there may have been some communication between lawyer and client had the defendant-witness not been instructed as he was, the reliability of the fact-finding process is but slightly implicated.
The court’s instruction to the defendant-witness represented the established practice in the District of South Carolina. The United States Attorney represents that it has been in existence at least since 1956. The defense lawyer was thoroughly familiar with the practice, and her familiarity with it influenced her failure to object to it. Surely we cannot say that its constitutional infirmity should have been obvious to court and counsel at the time the instruction was given.
Since the practice is one of longstanding, at least in the District Court of South Carolina, a retroactive application of the rule would probably affect a number of other convictions. We do not know how many, but the fact that a substantial number may be involved militates strongly against a retroactive application of a new rule which implicates the integrity of the fact-finding process so slightly.
In another case a showing of actual prejudice would introduce a new ingredient into the computation. If the magnitude of the prejudice shown was substantial, a different result might be required.
AFFIRMED.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_usc1
|
18
|
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.
Philip BANKS, Appellant, v. Donald WOLK, Brad Cohen, Larry Cohen, First Fidelity Insurance Corp., James Weiner, Esquire, First Fidelity Financial Group.
No. 90-1278.
United States Court of Appeals, Third Circuit.
Argued Sept. 18, 1990.
Decided Nov. 9, 1990.
Robert J. Sugarman (argued), Sugarman & Associates, Philadelphia, Pa., for appellant.
Michael P. Coughlin (argued), David N. Bressler, Lesser & Kaplin, Blue Bell, Pa., for appellee Donald Wolk.
Thomas Martin (argued), Philadelphia, Pa., for appellees Brad Cohen, Larry Cohen, First Fidelity Ins. Corp., James Weiner and First Fidelity Financial Group.
Before HIGGINBOTHAM, Chief Judge, SCIRICA and ALDISERT, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
This case requires us once again to address the question of what constitutes a “pattern of racketeering activity” under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.A. §§ 1961-1968 (1984 & Supp.1990).
Plaintiff Philip Banks filed an initial complaint against defendants Donald Wolk, Brad Cohen, Larry Cohen, James Weiner, First Fidelity Insurance Corporation (“FFIC”), and First Fidelity Financial Group (“FFFG”). The complaint contained both RICO and pendent state law claims arising from an alleged real estate fraud. The district court dismissed this complaint under Fed.R.Civ.P. 12(b)(6) for failure to allege a sufficient “pattern” under RICO, and plaintiff sought leave to file an amended complaint containing new allegations. The district court denied this motion on the grounds that the amended complaint would still fail to state a RICO claim, and plaintiff now appeals from this denial. We will affirm the district court’s dismissal of the RICO claims against defendants Donald Wolk, James Weiner, FFIC, and FFFG. However, we will reverse the order of the district court with instructions to allow certain claims against Brad Cohen and Larry Cohen to proceed.
I. BACKGROUND
Denials of leave to amend a complaint under Fed.R.Civ.P. 15(a) are reviewed for abuse of discretion. Kiser v. General Elec. Corp., 831 F.2d 423, 426-27 (3d Cir.1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 238 (1988). However, reversal is proper when the district court bases its denial on an erroneous rule of law. See, e.g., Centifanti v. Nix, 865 F.2d 1422, 1431 (3d Cir.1989). Here, the district court denied plaintiffs motion for leave to amend on the grounds that the amended complaint would fail to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Consequently, we must accept as true all factual allegations in the amended complaint and all reasonable inferences that can be drawn from them. The amended complaint must be construed in the light most favorable to the plaintiff, and can be dismissed only if the plaintiff has alleged no set of facts upon which relief could be granted. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988); Labov v. Lalley, 809 F.2d 220, 221-22 (3d Cir.1987). We note that in RICO actions, “in many cases plaintiffs will be able to withstand a facial attack on the complaint and have the opportunity to have their pattern allegations threshed out in discovery.” Swistock v. Jones, 884 F.2d 755, 758 (3d Cir.1989).
The allegations in plaintiffs initial complaint pertained solely to a transaction involving the American Patriot Building in Philadelphia (“AP Building”). According to the complaint, Banks and Wolk had been partners in a partnership that owned the AP Building (“Partnership”). On July 28, 1987, the Partnership entered into an agreement to sell the AP Building to Brad Cohen, his brother Larry Cohen, and FFIC. Unknown to Banks, however, Wolk was also an undisclosed partner in the buying enterprise, and was to become a 50% owner of the building upon sale. The buyers delayed the transaction, which was never completed. After Wolk refused to enter into an agreement to pay Partnership debts, a creditor bank foreclosed upon the AP Building.
The gravamen of the complaint was that Wolk and the Cohens concealed Wolk’s involvement with the buyers in an attempt to gain a favorable price for the AP Building. The complaint also alleged that James Weiner, the attorney for the buyers, participated in this fraud. The RICO claim was based on allegations that all defendants committed two or more unspecified acts of mail and wire fraud in carrying out the scheme. The district court dismissed the RICO count for failure to allege a “pattern of racketeering activity,” since the alleged fraudulent scheme “was a one-time happening without the threat of repetition.” See H.J. Inc. v. Northwestern Bell Telephone Co., — U.S. -, 109 S.Ct. 2893, 2901-02, 106 L.Ed.2d 195 (1989) (RICO pattern requires that predicate acts pose threat of continuing criminal activity). Having dismissed the RICO claim, the court then declined to assume jurisdiction over the pendent state law claims.
Plaintiff sought leave to file an amended complaint containing six additional specific allegations against Brad and Larry Cohen, which are as follows. First, in 1982 Brad Cohen formed an entity called the Philadelphia Gold Corporation which later was used “to illegally obtain funds from investors via fraudulent sales orders.” Amended Complaint at ¶ 50. Second, in 1989 the Cohens signed an illusory sale agreement for the Rittenhouse Club in Philadelphia, for the purpose of lowering the property’s value. Id. at ¶ 53(a). Third, in 1987 they misappropriated $1.5 to 2 million in profits from “Securities Trading Commissions [sic]” and invested this money in real estate. Id. at ¶ 53(b). Fourth, in 1986 they misused funds that had been entrusted to them by an investor. Id. at ¶ 53(c). Fifth, in 1984 or 1985 they defrauded another investor of profits that were owed him. Id. at H 53(d). Sixth, sometime between 1986 and 1989 Brad Cohen “illegally financed another party as a strawman in a real estate transaction ... where he was specifically rejected as a potential partner.” Id. at ¶ 53(e).
FFIC and FFFG are named as the RICO “enterprises.” The amended complaint alleges that FFIC and FFFG were formed and operated with money derived from the Philadelphia Gold Corporation scheme, and were the vehicles through which the other frauds, with the exception of the last, were committed. Again, each defendant was alleged to have committed two or more unspecified acts of mail and wire fraud in carrying out these schemes. There are no allegations that Banks, Wolk, or Weiner were involved in any way in the additional frauds.
The district court held that the amended complaint still failed to allege a “pattern of racketeering activity,” since the additional allegations were not sufficiently “related” to the AP Building scheme. See H.J. Inc., — U.S. at -, 109 S.Ct. at 2900-01 (RICO pattern requires relationship between predicate acts). The district court stressed that neither Banks nor Wolk were alleged to have participated in the additional schemes, and that “the transactions in themselves bear no relationship to the breach of fiduciary duty in the original complaint.”
II. STATUTORY LANGUAGE
The RICO statute authorizes civil suits by “[a]ny person injured in his business or property by reason of a violation of [18 U.S.C. § 1962].” 18 U.S.C. § 1964(c) (1988). Section 1962(a) prohibits “any person who has received any income derived ... from a pattern of racketeering activity” from using that money to acquire, establish or operate any enterprise that affects interstate commerce. Section 1962(b) prohibits any person from acquiring or maintaining an interest in, or controlling any such enterprise “through a pattern of racketeering activity.” Section 1962(c) prohibits any person employed by or associated with an enterprise affecting interstate commerce from “conduct[ing] or participating] ... in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Finally, section 1962(d) prohibits any person from “conspirpng] to violate any of the provisions of subsections (a), (b), or (c).” A “pattern of racketeering activity” requires commission of at least two predicate offenses on a specified list. 18 U.S.C.A. §§ 1961(1), (5) (1984 & Supp. 1990).
We note that no defendant can be liable under RICO unless he participated in two or more predicate offenses sufficient to constitute a pattern. This participation need not be direct. RICO recognizes liability for those who merely aid and abet the underlying predicate offenses. Petro-Tech, Inc. v. Western Co. of North America, 824 F.2d 1349, 1356-58 (3d Cir.1987). Moreover, a defendant can be liable under RICO’s conspiracy provision for agreeing to the commission of a pattern of racketeering activity, even if that defendant does not directly participate in the underlying acts. United States v. Adams, 759 F.2d 1099, 1116 (3d Cir.), cert. denied, 474 U.S. 906, 971, 106 S.Ct. 275, 336, 88 L.Ed.2d 236, 321 (1985); see also Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1166-67 (3d Cir.1989) (RICO conspiracy requires “agreement to commit predicate acts and knowledge that the acts were part of a pattern of racketeering activity.”).
In this case, defendants Wolk and Weiner are alleged only to have participated in the AP Building fraud, and there is no indication that either was involved, directly or indirectly, in any of the additional schemes. Consequently, we must consider only the AP Building scheme allegations in determining whether a sufficient “pattern” has been alleged against either Wolk or Weiner. Even if the AP Building scheme were part of a pattern of acts committed by the Cohens, the additional schemes cannot affect the liability of Wolk or Weiner, since they neither participated in those frauds nor agreed to their commission. Because the further allegations involve the Cohens, we will consider separately whether a sufficient pattern has been alleged against them.
Although no party has raised the issue, we note also that FFIC and FFFG are named both as RICO “enterprises” and as defendants. Such a dual role is permissible in actions based on 18 U.S.C. § 1962(a), Petro-Tech, Inc. v. Western Co. of North America, 824 F.2d 1349, 1360-61 (3d Cir.1987), but not in those based on section 1962(c), B.F. Hirsch v. Enright Ref. Co., 751 F.2d 628, 633-34 (3d Cir.1984). Banks appears to allege violations of sections 1962(a), (b), and (c). However, he does not allege that he was injured specifically by the use or investment of income in any enterprise, as is required under section 1962(a). See Rose v. Bartle, 871 F.2d 331, 357-58 (3d Cir.1989). In addition, the amended complaint does not allege a specific nexus between control of any enterprise and the alleged racketeering activity, as is required under section 1962(b). See Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1168 n. 2 (3d Cir.1989). Consequently, section 1962(c) is the only available basis for liability. Because FFIC and FFFG are named as the enterprises upon which this liability is based, they must be dismissed as RICO defendants.
III. THE H.J. INC. STANDARD
In H.J. Inc. v. Northwestern Bell Telephone Co., — U.S. -, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989), the Supreme Court addressed the standards governing RICO’s pattern requirement. The Court stressed that a pattern requires more than the commission of two or more predicate acts. A plaintiff must show also “that the racketeering acts are related, and that they amount to or pose a threat of continued criminal activity.” Id. at -, 109 S.Ct. at 2900 (emphasis in original). These are two separate requirements, “though in practice their proof will often overlap.” Id.
The test for “relatedness” is broad. Borrowing language from another statute, H.J. Inc. states that criminal acts are sufficiently related if they “ ‘have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.’ ” Id. at -, 109 S.Ct. at 2901 (iquoting Dangerous Special Offender Sentencing Act, 18 U.S.C. § 3575(e) (1982), repealed by Sentencing Reform Act of 1984, Pub.L. No. 98-473, tit. II, § 212(a)(2), 98 Stat.1987); see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985). This statement remains our only guidance in this area.
As for the “continuity” requirement, the Court rejected the notion that RICO requires proof that a defendant engaged in multiple criminal “schemes.” H.J. Inc., — U.S. at -, 109 S.Ct. at 2901. Predicate offenses committed in furtherance of a single criminal scheme can constitute a RICO pattern if the acts present the threat of future criminal activity. The criminal conduct need not be ongoing. Past conduct will satisfy the continuity requirement if “by its nature [it] projects into the future with a threat of repetition.” Id. at-, 109 S.Ct. at 2902 (citing Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir.1987)).
The Court stressed that the question of continuity depends on the facts of each case, but noted that “[predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct.” Id. Although continuity is “centrally a temporal concept,” id., this court has questioned whether the length of time over which the criminal activity occurs or threatens to occur should be the decisive factor without reference to the “societal threat” posed by the activity. Marshall-Silver Constr. Co. v. Mendel, 894 F.2d 593, 597 (3d Cir.1990).
IV. THE ALLEGATIONS AGAINST WOLK AND WEINER
As we have noted, the amended complaint does not allege that defendants Wolk and Weiner participated in any fraud other than the AP Building scheme. We must examine whether the actions of these defendants meet the separate requirements of relatedness and continuity. Since this alleged scheme involved a single real estate transaction, the relatedness requirement is satisfied. The unspecified predicate acts of mail and wire fraud are all related to the common goal of obtaining a lower price for the building. Thus, the critical question is whether the acts “pose a threat of continued criminal activity.” We agree with the district court that they do not.
The AP Building scheme was an attempt to defraud a single investor of his interest in a single piece of real estate over a relatively short period of time. The essence of the charge is that the defendants failed to disclose Wolk’s relationship with the buyers and then somehow used his inside position to drive the Partnership into bankruptcy. It is not clear when the defendants actually formulated their scheme, but the injury to Banks occurred during the eight month period between July 28, 1987, when the sale agreement was signed, and shortly after March 21, 1988, when the creditor bank foreclosed upon the building.
In H.J. Inc., by contrast, the Court stressed that the racketeering predicates “occurred with some frequency over at least a 6-year period.” — U.S. at —, 109 S.Ct. at 2906. That case involved allegations of long-term bribery of regulators by a telephone company. Unlike H.J. Inc., there is no indication that fraud such as the AP Building scheme is “a regular way of doing business” for Wolk or Weiner. See id. at-, -, 109 S.Ct. at 2902, 2906. Nor is there any suggestion that Wolk or Weiner would have continued to defraud Banks in any way. Cf. id. at -, 109 S.Ct. at 2902 (promise to extort money regularly as part of ongoing “insurance” racket would establish threat of continuity despite small number of predicate acts).
Rather, the AP Building scheme more closely resembles that involved in Marshall-Silver Construction Co. v. Mendel, 894 F.2d 593 (3d Cir.1990), in which the defendants were alleged to have destroyed a business by filing a false bankruptcy petition. In that case, we stressed that “the alleged illegal activity posed no threat of additional repeated criminal conduct over a significant period.” Id. at 597 (emphasis in original). Similarly, the alleged actions of Wolk and Weiner were directed solely at defrauding Banks of his interest in the AP building, and do not amount to or threaten long-term criminal activity. This case is unlike Swistock v. Jones, 884 F.2d 755 (3d Cir.1989). Although that case centered around a single episode of real estate fraud lasting approximately one year, there were allegations of further misrepresentations by the defendants in regard to other potential transactions with the plaintiffs. Id. at 759. In this case, there is no such indication of possible future misconduct by Wolk or Weiner.
We note that H.J. Inc. has not rendered obsolete our prior multi-factor pattern inquiry which focused on “the number of unlawful acts, the length of time over which the acts were committed, the similarity of the acts, the number of victims, the number of perpetrators, and the character of the unlawful activity.” Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir.1987). See Marshall-Silver, 894 F.2d at 596 (Barticheck approach entirely consistent with H.J. Inc.). After H.J. Inc., we must focus on these factors as they bear upon the separate questions of continuity and relatedness. Thus, the fact that Wolk and Weiner are alleged to have harmed only one victim in a single scheme is not necessarily dispositive. See Swistock, 884 F.2d at 758. But there is no factor in this case indicating that the actions of Wolk and Weiner threaten future harm to anyone. The AP Building scheme, considered alone, amounts to nothing more than an isolated incident of “garden variety” real estate fraud.
V. THE ALLEGATIONS AGAINST THE COHENS
As we have noted, the additional allegations against Brad and Larry Cohen place these defendants in a different situation from Wolk and Weiner. The amended complaint describes fraudulent behavior by the Cohens extending well beyond the AP Building scheme. Construing these allegations in the light most favorable to the plaintiff, we believe the amended complaint sufficiently alleges that the Cohens have engaged in a pattern of racketeering activity.
At the outset, we note that two of the six additional specific allegations against the Cohens cannot be considered part of a pattern comprising the AP Building scheme. The amended complaint lists FFIC and FFFG as the RICO “enterprises” upon which liability is based. Under 18 U.S.C. § 1962(c), all predicate acts in a pattern must somehow be related to the enterprise. This nexus requirement is satisfied when “ ‘[o]ne is enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise; or the predicate offenses are related to the activities of that enterprise.' ” United States v. Provenzano, 688 F.2d 194, 200 (3d Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 492, 74 L.Ed.2d 634 (1982) (quoting United States v. Scotto, 641 F.2d 47, 54 (2d Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981)).
However, the amended complaint alleges no connection between either enterprise and the charge that Brad Cohen “illegally financed a strawman.” Amended Complaint at H 53(e). In addition, the allegation involving the Philadelphia Gold Corporation states only that Brad Cohen invested the profits from that fraud in FFIC and FFFG, in violation of 18 U.S.C. §§ 1962(a) and (b). Id. at ¶ 51. No other relationship between this scheme and the named enterprises is alleged. Thus, neither of these schemes can form part of a pattern of acts underlying the § 1962(c) violation.
The amended complaint does allege that FFIC and FFFG were employed in carrying out the other five schemes. We note that the sufficiency of the pattern may require reassessment should that nexus later prove inadequate. At this stage, however, we find the remaining allegations against the Cohens sufficient to constitute a pattern of racketeering activity under § 1962(c). The element of continuity clearly has been established. In addition to the AP Building scheme, the amended complaint charges the Cohens with using FFIC and FFFG in the commission of four other frauds between 1984 and 1989. Accepting these allegations as true, they indicate that fraudulent behavior is a “regular way of doing business” for the Cohens. See H.J. Inc., — U.S. at -, 109 S.Ct. at 2902. As a consequence, a threat of continuing criminal behavior is present.
The main question, therefore, is whether the additional allegations are sufficiently “related” to the AP Building scheme. We believe that they are. As noted above, we must determine whether the Cohens’ alleged criminal acts “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Id. at -, 109 S.Ct. at 2901. The Supreme Court recognized that this test is broad, stating that “[w]e have no reason to suppose that Congress had in mind ... any more constrained a notion of the relationships between predicates that would suffice.” Id.
This test admittedly is difficult to apply. See id. at -, 109 S.Ct. at 2907 (Scalia, J., concurring). In this case, the district court emphasized that neither Banks nor Wolk was involved in any of the additional schemes. However, the fact that Banks was not a victim of the additional frauds should not carry much weight. The reference to “similar victims” in H.J. Inc. cannot be read to require that a plaintiff be injured by more than one predicate act. See, e.g., Town of Kearny v. Hudson Meadows Urban Renewal Corp., 829 F.2d 1263, 1268 (3d Cir.1987) (“Reading into the statute a requirement that a civil plaintiff prove injury from the entire pattern rather than from any predicate act would ... be inconsistent with the core congressional purposes behind its enactment.”). The alleged victims in this case were “similar” in the sense that they all were engaged in business dealings with the Cohens through FFIC and FFFG. Likewise, the reference to “similar participants” does not require that Wolk have participated in the Cohens’ other schemes. Once the requisite connection with the RICO enterprise is shown, the fact that a defendant employed different associates for different predicate acts should not be of overriding significance.
Rather, we focus on the nature of the alleged criminal activity. Cf. Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1168 (3d Cir.1989) (focusing on fact that “the distinctive character of the unlawful activity set out was securities fraud.”). The various alleged schemes employed different techniques, but taken together they indicate the Cohens were at least partially in the business of defrauding those who dealt with FFIC and FFFG. There are more specific similarities as well. The Rit-tenhouse Club and the AP Building schemes both were attempts to drive down the price of real estate. In addition, the AP Building scheme and the allegations of misuse of investment funds all involved breaches of fiduciary duty. We believe the amended complaint adequately alleges criminal episodes that are not “isolated events.”
The relatedness requirement has received less judicial attention than the continuity requirement, perhaps because most disputed RICO allegations have involved single schemes. See, e.g., Medallion Television Enters. v. SelecTV of California, Inc., 833 F.2d 1360, 1363 (9th Cir.1987) (relatedness seldom at issue), cert. denied, — U.S. -, 109 S.Ct. 3241, 106 L.Ed.2d 588 (1989). However, when a plaintiff alleges predicate offenses in furtherance of multiple schemes, we should avoid interpreting the relatedness requirement too narrowly. A single scheme with a limited number of victims often will not project the necessary threat of continuing criminal activity. Thus, if too close a relationship among multiple schemes is required, eases within RICO’s intended ambit may be improperly dismissed. In organized crime cases, where the RICO enterprise exists solely for criminal purposes, the necessary nexus between the predicate acts and the enterprise will often be enough to satisfy the relatedness requirement. Cf. United States v. Indelicato, 865 F.2d 1370, 1383 (2d Cir.) (“In some cases both ... relatedness and continuity ... may be proven through the nature of the RICO enterprise.”), cert. denied, — U.S. -, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989). In cases such as this, which allege multiple fraudulent schemes conducted through an otherwise legitimate entity, the relatedness requirement should not insulate defendants who merely vary the methods by which they defraud their victims.
VI. CONCLUSION
Because the amended complaint does not indicate that defendants Wolk or Weiner have engaged in conduct that poses the threat of continued criminal activity, we will affirm the dismissal of the RICO claims against them. We also will affirm the dismissal of the RICO claims against defendants FFIC and FFFG. However, because the amended complaint adequately alleges that Brad Cohen and Larry Cohen have engaged in a “pattern of racketeering activity,” we will reverse the order of the district court and remand with instructions to allow the § 1962(c) and state law claims to proceed against these defendants. Since the state law claims against the Cohens remain, we leave it to the district court to reconsider whether it desires to dismiss the pendent state law claims against the other defendants. We stress that our decision is based solely upon the adequacy of the pleadings. It may be that specific issues will be susceptible to resolution by summary judgment. See Swistock v. Jones, 884 F.2d 755, 758 (3d Cir.1989).
Each side to bear its own costs.
. Although it was not addressed in the district court or on appeal, we raise the question whether the allegations of mail and wire fraud in the amended complaint are sufficient to satisfy the requirement of Fed.R.Civ.P. 9(b) that fraud be pleaded with particularity. See Saporito v. Combustion Eng’g Inc., 843 F.2d 666, 673-76 (3d Cir.1988), vacated on other grounds, 489 U.S. 1049, 109 S.Ct. 1306, 103 L.Ed.2d 576 (1989) (blanket allegation of mail and wire fraud in RICO case, without indicating who made or received fraudulent representation, is insufficient under Rule 9(b)); see also Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985) (allegations must be such as "to place the defendants on notice of the precise misconduct with which they are charged”). The amended complaint gives a general description of the various fraudulent schemes, but contains only a blanket statement that all defendants committed two or more acts of mail and wire fraud "in connection with their real estate scheme.” Amended Complaint at ¶¶ 57, 58. The complaint does not specify any correspondence or conversation alleged to constitute mail or wire fraud. We express no opinion of the merits of this issue.
. We assume without deciding that the allegations against the Cohens state substantive claims of mail or wire fraud, because the issue was not addressed in the district court or on appeal. Should the district court later decide that the AP Building scheme allegations do not state such a claim against the Cohens, then Banks will lack standing to pursue a RICO action against them. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) ("[T]he plaintiff only has standing if ... he has been injured in his business or property by the conduct constituting the violation.”). Moreover, the sufficiency of the pattern may require reassessment if the district court determines that any of the additional allegations do not amount to mail or wire fraud as a matter of law.
. We note that our affirmance of the district court's order dismissing the RICO charges against Wolk, Weiner, FFIC, and FFFG does not preclude Banks from bringing a common law fraud action, in an appropriate forum, against his partner Wolk or other parties.
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_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.
PORTER, Adm’r, Office of Price Administration, v. McCOLLOCH, Judge.
No. 11024.
Circuit Court of Appeals, Ninth Circuit.
March 21, 1946.
Herbert H. Bent, Jacob Chaitkin, and Austin Clapp, Attys., OPA, all of San Francisco, Cal., for petitioner.
S. J. Graham, William M. Langley, and John M. Hickson, all of Portland, Or., for respondent.
C. M. Gould and Hill, Morgan & Farrar, all of Los Angeles, Cal., and Reuben G. Lenske, of Portland, Or., for A. G. E. Abendroth.
Before STEPHENS, FIEALY, and BONE, O'rcuit Judges.
PER CURIAM.
This proceeding is an outgrowth of our decision in Bowles, Administrator, v. Abendroth, 9 Cir., 151 F.2d 407, in which we reversed an order of the district court denying an application of the Administrator, made pursuant to § 202(c) of the Price Control Act, 50 U.S.C.A.Appendix, § 922(c), for the enforcement of a subpena. As appeared on the face of the application and supporting' papers, the subpena had been issued over the signature of James F. Brownlee, Acting Price Administrator of the Office of Price Administration. No question was raised concerning Brownlee’s authority in the premises. We decided that on the showing made it was the duty of the district court to grant the application.
Mandate was issued commanding the taking of further proceedings in the cause by the district court in accordance with our opinion and decree. Thereafter the Administrator, Petitioner here, submitted to Honorable Claude McColloch, judge of the district court, a proposed order responsive to the mandate. The judge, however, on the supposed authority of Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895, declined to make any order enforcing compliance with the subpena in view of the fact that it had been issued over the signature of the Acting Price Administrator rather than the Price Administrator, Chester Bowles. Instead an order was entered denying the enforcement application for want of jurisdiction.
The Administrator petitioned this court for a writ of mandamus commanding the district judge to comply with our decree. An order to show cause was issued, and the matter is before us on the petition of the Administrator and the return of the Respondent judge.
The law of the case requires the granting of the writ petitioned for. No new facts were before the district court after mandate went down. The court was not, as it appears to have thought, without jurisdiction to proceed. Questions, if any, concerning the authority of the Acting Price Administrator to issue the subpena were waived by the failure timely to raise them. It is not now open to the Respondent to question the mandate.
Some claim is made that the desired inspection has already been had and that the proceeding is therefore moot. This was not a ground of the trial judge’s decision, and there is no sufficient basis for the suggestion of mootness.
Since the views here expressed will serve to remove the obstacles to enforcement thought by Respondent to exist, we assume that the writ need not formally issue at this time. Instead, the clerk is directed to furnish certified copies of this opinion to the Respondent and to the Clerk of the District Court of Oregon for Respondent’s information and guidance.
The subpena was denominated an “inspection requirement.”
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_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
COOPER STEVEDORING CO., INC. v. FRITZ KOPKE, INC., et al.
No. 73-726.
Argued April 15-16, 1974
Decided May 28, 1974
Marshall, J., delivered the opinion of the Court, in which all Members joined except Stewart, J., who took no part in the decision of the case.
Joseph D. Cheavens argued the cause and filed a brief for petitioner.
Bruce Dixie Smith argued the cause and filed a brief for respondents.
Mr. Justice Marshall
delivered the opinion of the Court.
This case concerns the extent to which contribution between joint tortfeasors may be obtained in a maritime action for personal injuries. The S. S. Karina, a vessel owned and operated by respondent Fritz Kopke, Inc., and under time charter to respondent Alcoa Steamship Co., was loaded at Mobile, Alabama, with palletized crates of cargo by petitioner Cooper Stevedoring Co. The vessel then proceeded to the Port of Houston where longshoremen employed by Mid-Gulf Stevedores, Inc., began to load sacked cargo. The Houston longshoremen had to use the top of the tier of crates loaded by Cooper as a floor on which to walk and stow the Houston cargo. One of these longshoremen, Troy Sessions, injured his back when he stepped into a gap between the crates which had been concealed by a large piece of corrugated paper.
Sessions brought suit in the District Court against Kopke and Alcoa (hereinafter collectively the Vessel) seeking to recover damages for his injuries. The Vessel filed a third-party complaint against Cooper alleging that if Sessions was injured by any unseaworthy condition of the vessel or as the result of negligence other than his own, such condition or negligence resulted from the conduct of Cooper and its employees. The Vessel also filed a similar third-party complaint against Mid-Gulf.
Prior to trial, Mid-Gulf and the Vessel apparently entered into an agreement under which Mid-Gulf would indemnify the Vessel against any recovery which Sessions might obtain. Pursuant to this agreement, Mid-Gulf was dismissed as a third-party defendant and Mid-Gulf's attorneys were substituted as counsel for the Vessel.
The case then went to trial, after which the District Court, which sat without a jury, orally announced its findings of fact and conclusions of law. The court found that the Vessel's failure either to make adequate arrangements to assure that the stow would not move and leave spaces in the course of its trip from Mobile to Houston or to put some type of dunnage on top of the stow had resulted in an unsafe place to work and unseaworthy condition. The court found that Cooper was also negligent in not stowing the crates in a manner in which longshoremen at subsequent ports could safely work on top of them. Finding it difficult from the evidence to “evaluate exactly the responsibility between the shipowner on the one hand and Cooper on the other,” the District Court divided the liability equally between the Vessel and Cooper. Judgment was entered allowing Sessions to recover $38,679.90 from the Vessel and allowing the Vessel to recover $19,-339.95 from Cooper.
Cooper appealed, asserting that the District Court's award of contribution in a noncollision maritime case was in direct conflict with this Court’s decisions in Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282 (1952), and Atlantic Coast Line R. Co. v. Erie Lackawanna R. Co., 406 U. S. 340 (1972). The Court of Appeals rejected this contention, relying on prior decisions of the Fifth and Second Circuits to the effect that the apparent prohibition against contribution in noncol-lision maritime cases announced in Halcyon and Atlantic was inapplicable where the joint tortfeasor against whom contribution is sought is not immune from tort liability by statute. See Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F. 2d 1131 (CA5 1970), cert. denied, 400 U. S. 993 (1971); Watz v. Zapata Off-Shore Co., 431 F. 2d 100 (CA5 1970); In re Seaboard Shipping Corp., 449 F. 2d 132 (CA2 1971), cert. denied, 406 U. S. 949 (1972). The Court of Appeals found this principle applicable here since Sessions, in addition to suing the Vessel, could have proceeded directly against Cooper as the latter was not his employer and, therefore, not shielded by the limited liability of the Longshoremen's and Harbor Workers’ Compensation Act, 33 U. S. C. § 905. 479 F. 2d 1041 (CA5 1973). We granted certiorari to consider this question, 414 U. S. 1127 (1974), and now affirm.
Where two vessels collide due to the fault of each, an admiralty doctrine of ancient lineage provides that the mutual wrongdoers shall share equally the damages sustained by each. In The North Star, 106 U. S. 17 (1882), Mr. Justice Bradley traced the doctrine back to the Laws of Oléron which date from the 12th century, and its roots no doubt go much deeper. Even though the common law of torts rejected a right of contribution among joint tortfeasors, the principle of division of damages in admiralty has, over the years, been liberally extended by this Court in directions deemed just and proper. In one line of cases, for example, the Court expanded the doctrine to encompass not only damage to the vessels involved in a collision, but personal injuries and property damage caused innocent third parties as well. See, e. g., The Washington, 9 Wall. 513 (1870); The Alabama, 92 U. S. 695 (1876); The Atlas, 93 U. S. 302 (1876); The Chattahoochee, 173 U. S. 540 (1899). See generally The Max Morris, 137 U. S. 1, 8-11 (1890). In other cases, the Court has recognized the application of the rule of divided damages in circumstances not involving a collision between two vessels, as where a ship strikes a pier due to the fault of both the shipowner and the pier owner, see Atlee v. Packet Co., 21 Wall. 389 (1875), or where a vessel goes aground in a canal due to the negligence of both the shipowner and the canal company, see White Oak Tramp. Co. v. Boston, Cape Cod & New York Canal Co., 258 U. S. 341 (1922). See also The Max Morris, supra, at 13-14. Indeed, it is fair to say that application of the rule of division of damages between joint tortfeasors in admiralty cases has been as broad as its underlying rationales. The interests of safety dictate that where two parties “are both in fault, they should bear the damage equally, to make them more careful.” The Alabama, supra, at 697. And a “more equal distribution of justice” can best be achieved by ameliorating the common-law rule against contribution which permits a plaintiff to force one of two wrongdoers to bear the entire loss, though the other may have been equally or more to blame. See The Max Morris, supra, at 14.
Despite the occasional breadth of its dictum, our opinion in Halcyon should be read with this historical backdrop in mind. Viewed from this perspective, and taking into account the factual circumstances presented in that case, we think Halcyon stands for a more limited rule than the absolute bar against contribution in noncollision cases urged upon us by petitioner.
In Halcyon, a ship repair employee was injured while making repairs on Halcyon’s ship. He sued Halcyon for damages, alleging negligence and unseaworthiness. Since the employee was covered by the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. §§ 901-950, he was prohibited from suing his employer Haenn. Nevertheless Halcyon impleaded Haenn as a joint tort-feasor seeking contribution for the judgment recovered by the employee. We granted certiorari in Halcyon to resolve a conflict which had arisen among the circuits as to whether a shipowner could recover contribution in these circumstances. See 342 U. S., at 283-284, and n. 3. One court had held that the employer’s limitation of liability vis-á-vis its employee under the Harbor Workers’ Act barred contribution. See American Mutual Liability Insurance Co. v. Matthews, 182 F. 2d 322 (CA2 1950). Another Circuit had held that the Act did not bar contribution, see United States v. Rothschild Int’l Stevedoring Co., 183 F. 2d 181 (CA9 1950), and yet a third Circuit, in the case reviewed in Halcyon, had permitted contribution but limited it to the amount which the injured employee could have compelled the employer to pay had he elected to claim compensation under the Act. 187 F. 2d 403 (CA3 1951).
Before this Court, both parties in Halcyon agreed that “limiting an employer’s liability for contribution to those uncertain amounts recoverable under the Harbor Workers’ Act is impractical and undesirable.” 342 U. S., at 284. The Court also took cognizance of the apparent trade-off in the Act between the employer’s limitation of liability and the abrogation, in favor of the employee, of common-law doctrines of contributory negligence and assumption of risk. Id., at 285-286. Confronted with the possibility that any workable rule of contribution might be inconsistent with the balance struck by Congress in the Harbor Workers’ Act between the interests of carriers, employers, employees, and their respective insurers, we refrained from allowing contribution in the circumstances of that case.
These factors underlying our decision in Halcyon still have much force. Indeed, the 1972 amendments to the Harbor Workers’ Act re-emphasize Congress’ determination that as between an employer and its injured employee, the right to compensation under the Act should be the employee’s exclusive remedy. But whatever weight these factors were properly accorded in the factual circumstances presented in Halcyon, they have no application here. Unlike the injured worker in Halcyon, Sessions was not an employee of Cooper and could have proceeded against either the Vessel or Cooper or both of them to recover full damages for his injury. Had Sessions done so, either or both of the defendants could have been held responsible for all or part of the damages. Since Sessions could have elected to make Cooper bear its share of the damages caused by its negligence, we see no reason why the Vessel should not be accorded the same right. On the facts of this case, then, no countervailing considerations detract from the well-established maritime rule allowing contribution between joint tortfeasors.
Our brief per curiam opinion in Atlantic Coast Line R. Co. v. Erie Lackawanna R. Co., 406 U. S. 340 (1972), is fully consistent with this view. In that case a yard brakeman, employed by Erie, brought suit for injuries sustained while working on a boxcar owned by another railroad, Atlantic, while the boxcar was being transported on a carfloat barge owned by Erie. The accident was allegedly due to a defective footboard and handbrake of the boxcar and the plaintiff sued Atlantic for its negligence in supplying defective equipment. Atlantic sought contribution from Erie on the ground that its negligence was also a factor in causing the injury. The District Court denied contribution, relying on Halcyon. The Court of Appeals affirmed and we granted certiorari because it initially appeared that the decision was inconsistent with the Courts of Appeals' decisions in Horton, Watz, and Seaboard, supra, which had allowed contribution, notwithstanding Halcyon, in situations where the party against whom contribution was sought was not entitled to the limitation-of-liability protections of the Harbor Workers’ Act. After oral argument, however, it appeared that the case was factually indistinguishable from Halcyon. Erie, against whom contribution was sought, was the plaintiff’s employer, and in Pennsylvania R. Co. v. O’Rourke, 344 U. S. 334 (1953), we recognized that a railroad employee injured while working on a freight car situated on a carfloat in navigable waters was subject exclusively to the Harbor Workers’ Act. Erie was therefore entitled to the limitation-of-liability protections of the Harbor Workers’ Act, just like the employer in Halcyon.
Petitioner argues, however, that this protection was ephemeral in Atlantic since, under Jackson v. Lykes Bros. S. S. Co., 386 U. S. 731 (1967), the injured employee in Atlantic could have sued Erie, the shipowner-employer, for unseaworthiness of the vessel. See also Reed v. The Yaka, 373 U. S. 410 (1963). But the fact that Erie may have been subject to a suit based on unseaworthiness for damages caused by defective boxcar appliances, compare The Osceola, 189 U. S. 158, 175 (1903), with Gutierrez v. Waterman S. S. Corp., 373 U. S. 206, 213 (1963), did not make it a joint tortfeasor subject to a contribution claim. Contribution rests upon a finding of concurrent fault. Erie's liability, if any, for unseaworthiness of its vessel would have been a strict liability not based upon fault. In other words, even if Erie were negligent, its injured employee was entitled to claim compensation from it under the Harbor Workers’ Act, and Erie was accordingly entitled to the protective mantle of the Act’s limitation-of-liability provisions. And to the extent Erie was not negligent but nevertheless subject to a suit on a seaworthiness theory, Erie was not a joint tortfeasor against whom contribution could be sought. See Simpson Timber Co. v. Parks, 390 F. 2d 353 (CA9), cert. denied, 393 U. S. 858 (1968).
In sum, our opinion in Atlantic was not intended to answer the question posed by the present case, as its failure to discuss Horton, Watz, and Seaboard indicates. Rather, Atlantic proves only that our decision in Halcyon was, and still is, good law on its facts.
Affirmed.
Mr. Justice Stewart took no part in the decision of this case.
This suit was commenced prior to the enactment of the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. §§ 901-944 (1970 ed., Supp. II), and all parties agree that the amendments are therefore not applicable. Accordingly we need not decide whether Sessions’ suit against the Vessel or the Vessel’s third-party complaints against Cooper or Mid-Gulf could be brought under the Act, as amended. See § 905 (b).
Petitioner suggests that the Vessel cannot recover contribution because it has already been fully indemnified for the judgment under its agreement with Mid-Gulf. See W. Prosser, Law of Torts §§ 48-49 (4th ed. 1971). But this suggestion rests on a faulty construction of the agreement between the Vessel and Mid-Gulf. The latter agreed to indemnify the Vessel only to the extent necessary after trial of the lawsuit, and the assumption of the parties was that Mid-Gulf would step into the Vessel’s shoes both to defend the suit brought by Sessions and to prosecute the third-party complaint against Cooper.
Since the District Court concluded that the only apportionment of fault it could reach on the evidence in this ease was an equal division, we have no occasion in this case to determine whether contribution in cases such as this should be based on an equal division of damages or should be relatively apportioned in accordance with the degree of fault of the parties. Cf. The Max Morris, 137 U. S. 1, 15 (1890). See also Jacob v. New York City, 315 U. S. 752 (1942); Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424 (1939) ; The Arizona v. Anelich, 298 U. S. 110 (1936). See generally Staring, Contribution and Division of Damages in Admiralty and Maritime Cases, 45 Calif. L. Rev. 304, 340-344 (1957).
The Vessel also cross-appealed, contending that the District Court should have allowed it full indemnity from Cooper. The Court of Appeals rejected this argument, relying on the District Court’s finding that the Vessel’s “conduct precluded its full recovery on the indemnity claim because it failed to fulfill its primary responsibility under its arrangement with Cooper to assure that some type of dunnage was placed on top of the cargo.” 479 F. 2d 1041, 1042. Cf. Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U. S. 563, 567 (1958). The Vessel did not file a petition for a writ of certiorari to seek review of this aspect of the Court of Appeals’ judgment, and we therefore lack jurisdiction to consider its contention that it is entitled to recover full indemnity on the basis of Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956).
The lower courts have generally not read Halcyon as petitioner suggests, and have continued to recognize a right of contribution in noncollision maritime cases. See, e. g., Crain Bros., Inc. v. Wieman & Ward Co., 223 F. 2d 256 (CA3 1955); Moran Towing Corp. v. M. A. Gammino Constr. Co., 409 F. 2d 917 (CA1 1969); Coca Cola Co., Tenco Div. v. S. S. Norholt, 333 F. Supp. 946 (SDNY 1971); Dow Chemical Co. v. Tug Thomas Allen, 349 F. Supp. 1354 (ED La. 1972); Bilkay Holding Corp. v. Consolidated Iron & Metal Co., 330 F. Supp. 1313 (SDNY 1971); American Independent Oil Co. v. M. S. Alkaid, 289 F. Supp. 329 (SDNY 1967); Cities Service Refining Corp. v. National Bulk Carriers, Inc., 146 F. Supp. 418 (SD Tex.1956).
Under the 1972 amendments, an employee injured on a vessel can bring an action against the vessel for negligence, but the vessel’s liability will not be based upon the warranty of seaworthiness or breach thereof. And where the vessel has been held hable for negligence "the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.” 33 U. S. C. § 905 (b) (1970 ed., Supp. II). The intent and effect of this amendment were to overrule this Court’s decisions in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946), and Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956), insofar as they made an employer circuitously liable for injuries to its employee, by allowing the employee to maintain an action for unseaworthiness against the vessel and allowing the vessel to maintain an action for indemnity against the employer. See H. R. Rep. No. 92-1441, pp. 4-8 (1972); S. Rep. No. 92-1125, pp. 8-12 (1972).
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_polquest
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the case because it was considered to be a nonjusticiable "political question"?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
STERNBERG v. WAKONDA DRAINAGE AND LEVEE DIST. IN FULTON COUNTY, ILLINOIS, et al.
Circuit Court of Appeals, Seventh Circuit.
June 3, 1929.
Rehearing Denied July 18, 1929.
No. 4147.
S. M. Wallace, of St. Louis, Mo. (Miller, Elliott & Westervelt, of Peoria, 111., of counsel), for appellant.
Glenn Ratcliff, of Lewistown, III., and C. W. Heyl, of Peoria, 111., for appellees.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
PAGE, Circuit Judge.
On motion, this case was dismissed as to the drainage district, and demurrers to the declaration by the other defendants were sustained.
The substance of the declaration is that, after the drainage district let a contract to do the work of the district to defendant, the Edward Gillen Dock, Dredge & Construction Company, called Gillen, appellant made with Gillen a subcontract, under which appellant was to furnish all of the necessary machinery and appliances and was to begin work May 1, 1923; that defendants Whit-nah, Betts, and one Routson (deceased, and whose executors are sued) were, and the two former are now, the commissioners of the drainage district; that the commissioners repeatedly urged appellant to prepare for and begin the work that they represented was ready to be performed; that appellant, at large expense, promptly made the necessary preparations and informed the commissioners of his readiness to begin the work, but that they prevented him from doing so; that the commissioners failed and neglected to obtain permits to do the work, as the law required them to do, from the United States and the state of Illinois; that appellant remained unadvised and ignorant of that negleet and assumed, and was caused to believe and be assured, that nothing prevented performance of the work; that in a proceeding under the laws of Illinois, to which appellant was a party, it was adjudged that the contract with Gillen was void, and that, as to the drainage district, with whom appellant had no contract, his contract was also void; that neither contract created any indebtedness. Duck Island Club v. Gillen Co., 330 Ill. 121, 161 N. E. 300. It is then alleged that the commissioners wrongfully failed and neglected to advise appellant of their, failure to secure the permits, as it was their duty so to do; that appeUant did not know of such failure. The damages claimed are the costs of a dredge, constructed to do the work under the contract, the maintenance thereof, the reasonable rental therefor, and the profit appellant alleges he would have made under the contract.
The drainage district was a municipal corporation for a limited purpose. People v. Spring Lake Drainage Dist., 253 Ill. 479, 494, 97 N. E. 1042. We are of opinion that section 79, c. 32, 2 Callaghan’s 111. Stats. Ann. p. 1951, which saves rights of action as against dissolved private corporations, does not save rights as against drainage districts, after dissolution. It appears that whatever work appellant performed was done under his contract. In the dissolution proceedings, to which he was a party, the court, holding that his contract was void as against the district, also' said that it made no difference that he had expended money in getting ready to perform. Duck Island Club v. Gillen Co., 330 Ill. 121, 123, 161 N. E. 300. We are of opinion that under that authority, and on authority of De Kam v. Streator, 316 Ill. 123, 146 N. E. 550, there can, under the circumstances shown, be no recovery as against the district. The substance of appellant’s complaint is that he was ignorant of the faet that permits to do the work had not been obtained, and that the defendants wrongfully failed and neglected to advise appellant of such failure. The only thing that defendants, other than Gillen, had to do with appellant, up to the time of the making of his contract with Gillen, was to consent that that contract might be made, and he did not make the contract relying upon anything that the commissioiners did or failed to do. Although it is averred that, after the making of the contract, the commissioners urged him to get ready to perform it, it is not alleged that he did anything pursuant to such urging, nor by reason thereof. The most that the declaration says is that what he did to get ready for the performance of his contract was done with the knowledge and consent of the defendants (other than the executors). It is averred that both the nature of the work and the law required that the permits be obtained. Appellant was chargeable with notice of what the law required and probably nobody knew what the nature of the work demanded better than he. His averment at this place in the declaration is that he “assumed and was caused by them to believe and to be assured, that nothing prevented the performance of said work.” This is very indefinite and uncertain. That the commissioners caused him to believe that nothing prevented the performance of the work is a mere conclusion. The allegation that he assumed a thing,, and at the same time was caused to believe it and was assured of it, are inconsistent statements, and bad pleading.
The declaration is fatally defective in that there is no averment that appellant did anything, relying upon what it is alleged was said to him by any of the defendants, or that he did anything because he was misled or deceived by the silence of the defendants.
The judgment of the district court is affirmed. •
Question: Did the court refuse to rule on the merits of the case because it was considered to be a nonjusticiable "political question"?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Norman DODD and Aaron M. Sargent, Trustees under Joint Venture Agreement of Pioche Mines Consolidated, Inc., Appellants, v. PIOCHE MINES CONSOLIDATED, INC., Helen Dolman, Shareholders of said Corporation, and Fidelity-Philadelphia Trust Company, Appellees.
No. 17519.
United States Court of Appeals Ninth Circuit.
Sept. 24, 1962.
Ernest S. Brown and Jack I. Mc-Auliffe, Reno, Nev., for appellant.
T. David Horton, Francis T. Cornish, Berkeley, Cal., Roscoe H. Wilkes, Pioche, Nev., and Harold M. Morse, Las Vegas, Nev., for appellee Pioche Mines Consolidated, Inc.
Sullivan, Roche, Johnson & Farraher, San Francisco, Cal., and Alvin N. Wart-man, Las Vegas, Nev., for appellee Helen Dolman.
William J. Forman, Reno, Nev., George H. Johnston and Willard P. Norberg, San Francisco, Cal., Woodbum, Forman, Wedge, Blakey & Folsom, Reno, Nev., Morgan, Lewis & Bockius, Philadelphia, Pa., and Ackerman, Johnston, Johnston & Mathews, San Francisco, Cal., for ap-pellee Fidelity-Philadelphia Trust Co.
Before HAMLEY and DUNIWAY, Circuit Judges, and TAYLOR, District Judge.
PER CURIAM.
Appellants Norman Dodd and Aaron M. Sargent, two of three trustees named in a joint venture agreement with Ap-pellee Pioche Mines Consolidated, Inc., have appealed to this Court from an Order of the trial court denying their motion to be substituted as counter-claimants in this litigation.
In reaching our decision here we are assuming, without deciding, that the order denying the motion for substitution is appealable.
The substitution or joinder of Appellants as counterclaimants rested in the discretion of the district court and was not mandatory. Rule 25(c), Federal Rules of Civil Procedure, 28 U.S.C.A.; Virginia Land Co. v. Miami Shipbuilding Corp., 201 F.2d 506 (5th Cir.1953); Sun-Maid Raisin Growers of California v. California Packing Corporation, 273 F.2d 282 (9th Cir.1959).
On an examination of the record we are satisfied that the district court did not abuse its discretion in denying the motion of Appellants.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts Corporation v. HERCULES POWDER COMPANY, Appellant.
No. 11559.
United States Court of Appeals Third Circuit.
Argued June 16, 1955.
Decided July 11, 1955.
Rehearing Denied Aug. 9, 1955.
McLaughlin, Circuit Judge, dissented.
Marcus A. Rowden, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Leonard G. Hagner, U.S. Atty., Wilmington, Del., Melvin Richter, Washington, D. C., Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.
William Prickett, Wilmington, Del., for appellee.
Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
GOODRICH, Circuit Judge.
This is an appeal from a district court decision in a suit for declaratpry judgment. Liberty Mutual has sought a declaration that it was not liable to defend .or to indemnify Hercules Powder Company on a policy issued, by it. The district court agreed with that contention. D.C.D.Del.1954, 126 F.Supp. 943. Hercules brings the case here for review.
The facts are simple and undisputed. Hercules entered into a contract, with the United States under the terms of which Hercules conducted experimental research for the Navy at the Allegany Ballistics Laboratory of Hercules at Pinto, West Virginia. In the course of this work Hercules purchased an aluminum .tube from the Aluminum Company of ' America. At. the Hercules laboratory ■ the tube- was squared at its ends and a plug was welded into each end. The . tube was then used to plunge into a mass of molten explosive material and the process was repeated many times.
Thereafter Hercules sent the tube to Electro-Chemical Engineering and Manufacturing Company to have work done ’ on it by the latter in its plant at Emmaus, Pennsylvania. At the conclusion , of this work the tube was to be returned to Hercules. While it was being processed as directed by Hercules, it exploded, killing one man, injuring another and ' causing property damage. Suits were begun against Hercules. Liberty has denied its liability under the policy. Hence this lawsuit.
The whole quéstion in this case turns upon the interpretation of the insurance contract made between Liberty and Hercules. Several of the' arguments made by Liberty we will' readily concede without discussion. We do not take the .view that all insurance companies are concerns who play with words to trap unsuspecting customers. We agree that we should'not create ambiguities in or-der to find a reason for interpreting a contract against the insurance company. Bergholm v. Peoria Life Ins. Co., 1932, 284 U.S. 489, 492, 52 S.Ct. 230, 76 L.Ed. 416. On the other hand, when a party chooses the language which he puts into a form contract, in case of doubt of its effect the general rule, is that it is interpreted against him. Bergholm v. Peoria Life Ins. Co., supra. This is true of deeds and other documents as well as insurance policies. 3 Corbin, Contracts, §559(1951).
One side has talked to us about the “basic thrust” of the policy, the other the “overriding purpose” thereof. Hercules says the “basic thrust” is insuring against all of Hercules’ possible liability under this contract with the Navy. . Liberty says the “overriding purpose” is to exclude all accidents or,events except those taking place at the Pinto, West Virginia, laboratory. We agree, with neither party.
The insurance contract is headed “Comprehensive General Liability Policy.” It starts out with the insuring agreements. These are stated on page 1 and are short and clear. Following this there are “Exclusions” and following the “Exclusions’.’ there are “Conditions.” Attached to these on a printed form are the “Declarations.” Then, still on a printed form of Liberty’s is a “General Endorsement For General Liability Policy.” This has eleven provisions only one of which is important here but that one is very important. That is paragraph (a) of number eight. And it will be quoted in full in a moment.
Is the- liability of Liberty limited to accidents occurring at the laboratory in Pinto, West Virginia? This argument is urged by Liberty and its argument points to the answer in the Declarations (item 4) giving the location of premises “owned, rented or controlled by named insured.” There is also called to our attention paragraph (b) of the Exclusions. This we had better quote.
“(b) except with respect to operations performed by independent contractors, to the ownership, maintenance or use, including loading or unloading, of (1) watercraft while away from premises owned, rented or controlled by the named insured, (2) automobiles while away from such premises or the ways immediately adjoining, or (3) aircraft;”
These statements, combined with a phrase in paragraph 8, are made the basis of the argument that all liability is limited to what happens in the laboratory at Pinto.
We do not find from the language any support for Liberty’s conclusion. The very fact that, in the words quoted from paragraph (b) of the Exclusions, certain types of items are particularized tends rather to show that it was felt necessary to carve these out from what otherwise would be covered. The giving of the address of the premises owned by Hercules in Pinto, West Virginia, in item 4 of the Declarations, we do not think persuasive as an exclusionary provision. The language in the General Endorsement is discussed later. Of course, it will be conceded, that if Liberty’s argument here is a valid one the case comes to an end, for the accident involved here took place in premises not owned nor controlled by Hercules.
Liberty urges at length and with great vigor what it claims is the effect of the language in the General Endorsement, paragraph 8(a). This is headed “Exclusion of Products Liability.” Here it is:
“The policy does not apply a. to the handling or use of, the existence of any condition in or a warranty of goods or products manufactured, sold, handled or distributed by the named insured, other than equipment rented to or located for use of others but not sold, if the accident occurs after the insured has relinquished possession thereof to others and away from premises owned, rented or controlled by the insured or on premises for which the classification is stated in the declarations as subject to this exclusion; * * *”
Does this language let Liberty out? It is of significance, we think, that argument for Liberty has pointed out the origin of what is now called “Products Liability.” It comes, we are told, from the famous opinion by Judge Cardozo in MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916 F, 696. The dispute there concerned the liability of a manufacturer for personal injuries resulting from a defect in the product to one not in privity of contract with the manufacturer. The case marked an advance in Tort law and the extension of liability to manufacturers was carried to suppliers of chattels as well. See Restatement, Torts, §§ 388 to 393. The very basis of this liability was the responsibility put upon one who sends goods out into the channels of trade for use by others. To the extent that the history of “products liability” is any criterion it is clear that it has no place with regard to a piece of equipment sent by a manufacturer to a laboratory for processing.
Liberty says that this tube was "goods or products * * * handled * * by the named insured.” Therefore, it argues, it is excluded. What does the word “goods” mean? What does the word “handled” mean in this clause? Now, of course, this tube is a chattel and no doubt the contract for the sale of a batch of them would come under the provisions of the statute of frauds having to do with the sale of goods, wares and merchandise. Likewise, both Hercules and the Emmaus laboratory “handled” this tube.
Here we have a place where dictionary definitions help us very little because it is the dictionary’s job to give all the different ways in which words are used. If a word or a phrase comes to have a definitely settled legal meaning then we can apply a definite rule of law to its legal effect. At common law the words to “A and his heirs” created an estate in fee simple and they were the only words which would create that estate. But in general, as the great Holmes pointed out years ago, “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 1918, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372.
“To say dogmatically that we ‘know what a word means’ in advance of its utterance is nonsense. All we can know in advance is approximately what it will' mean. After the utterance, we interpret what has been said in the light of both verbal and physical contexts, and act according to our interpretation * * *"
We think Hercules is right in saying that the reasonable interpretation of the purpose, of this clause is to avoid the type of products liability to which Liberty has called our attention. That is, that which begins with MacPherson v. Buick Motor Co. That liability is not in question here. This tube was a chattel owned by Hercules. We think it was clearly equipment being used in the conduct of this experimental work. If not equipment, it was simply a tool like a wrench or a jack or any other of the numerous pieces of paraphernalia about a laboratory or factory. Furthermore, it was not manufactured by Hercules in any sense when they squared the ends and put in a plug any more than a garage proprietor manufactures a jack if he shortens the handle.
Numerous cases have been cited to us. This is a situation, however, where comments of courts on language not identical cannot help us much. And the reason for that is already apparent. Unless particular words have crystallized into a definite legal rule their meaning necessarily varies with time, place, occasion and the vocabulary of the user. We think that the provision in paragraph 8(a), quoted above, excluding products liability is not to be given the sweeping effect which is urged by Liberty.
We must therefore, reverse. Since it is agreed that there is no controverted question of fact aside from what the words in question mean, the directions will be for a judgment for the defendant in the declaratory judgment action.
. Language in Action, S. I. Hayakawa, p. 66 (Harcourt, Brace & Co., 1940).
. Many of the cases cited to us we find are not very helpful because they clearly were concerned with a product and product liability in the MacPherson sense which is not involved in this case. See, e. g., Employers Mut. Liability Ins. Co. v. Underwriters at Lloyds, D.C.W.D. Wis.1948, 80 F.Supp. 353, affirmed 7 Cir., 1949, 177 F.2d 249 (large rolls of paper); Lyman Lumber & Coal Co. v. Travelers Ins. Co., 1939, 206 Minn. 494, 289 N.W. 40 (coal); Hultquist v. Novak (Ocean Accident & Guarantee Corp., Garnishee), 1938, 202 Minn. 352, 278 N. W. 524 (gasoline); Loveman, Joseph & Loeb v. New Amsterdam Casualty Co., 1937, 233 Ala. 518, 173 So. 7 (cosmetic).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Joseph E. PIATT, Appellant, v. UNITED STATES of America, Appellee.
No. 18118.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 10, 1964.
Decided Feb. 20, 1964.
Mr. Milton V. Freeman, Washington, D. C., with whom Mr. Richard B. Sobol, Washington, D. C. (both appointed by this court) was on the brief, for appellant.
Mr. David Epstein, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Donald S. Smith, Asst. U. S. Attys., were on the brief, for appellee.
Before Bazelon, Chief Judge, and Weight and McGowan, Circuit Judges.
PER CURIAM.
Counsel appointed by this court to represent the appellant have presented for our consideration, by brief and oral argument, the only issues fairly raised by the record. Having examined these issues, we find them without sufficient merit to warrant reversal. Assigned counsel’s effort, however, in presenting the issues available, and thus insuring an appeal for an indigent defendant, is in the best tradition of the bar.
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_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America v. Bobby BRONSON, Appellant.
No. 24334.
United States Court of Appeals, District of Columbia Circuit.
Order Filed June 26, 1970.
Opinion Filed Aug. 11, 1970.
Mr. Leslie Scherr for appellant.
Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, and Brian W. Shaughnessy, Asst. U. S. Attys., for appellee.
Before LEVENTHAL and ROBINSON, Circuit Judges, in Chambers.
PER CURIAM:
The District of Columbia is privileged to have the Anacostia Naval Station located within its boundaries. Appellant Bobby Bronson, a native of Chicago, has been a seaman apprentice in the United States Navy for eleven months; he has served the last four months at the Anacostia base. Bronson has been arrested for robbery in the District of Columbia. The robbery was committed at a time when appellant was on liberty from the base, there is no indication that the crime was service-connected, and, accordingly, appellant will be tried in a civil court rather than by court-martial.
Immediately after appellant’s arrest, the District of Columbia Bail Agency recommended against outright release on personal recognizance, but instead recommended release on the condition appropriate for “weak family ties”, namely a custody release — in this instance the Military Police as third-party custodian. Thereafter, a judge of the Court of General Sessions conditioned pretrial release upon the execution of a $2000 bond with a solvent surety: the District Court left that condition intact but denied appellant’s motion for release on personal recognizance. That order, which is the subject of this appeal, provided as follows:
It appearing on oral argument on defendant’s motion for release on personal recognizance heard June 5, 1970, and from consideration of the Bail Agency’s report in connection with this case, that the defendant has limited family or community ties to the District of Columbia, and in light of the serious nature of the offense now pending against the defendant, and in light of the strength of the government’s case, to wit identification [occurring] on the scene of the crime, it is
ORDERED, that defendant’s motion for release on personal recognizance is denied.
The cases of this court dealing with pretrial release in non-capital cases have firmly established the applicable principles: 1) The pertinent consideration is whether the appearance of the accused for trial may be reasonably assured. 2) The court must in each case seek the minimal non-financial conditions of release which will reasonably assure the presence of that particular defendant at trial. 8) The imposition of a money bond is proper only after all other non-financial conditions have been found inadequate for this purpose.
The assessment of the likelihood that a defendant will appear for trial and the determination of the conditions needed to effectuate that appearance necessarily involve an attempt to predict future behavior on the basis of present information. Information on the accused’s family and community ties, and on his employment record and past criminal record are generally given significant, even dominant, weight in making these determinations. This is in accordance with the legislative intent underlying the Bail Reform Act. “Family and community ties, a job, residence in the community, and the absence of a substantial criminal record, are factors more likely to assure the appearance of a person than the posting of bail.” The standard approach, indeed the routine forms, of the District of Columbia Bail Agency emphasizes these same factors.
However, these criteria, evolved for the ordinary civilian case, may not soundly be given crucial significance as a reason for denying relief to a serviceman stationed within the district, because of his limited family and community ties to the district. In the circumstances of this case, we find such an approach to be contrary to both the spirit of the Bail Reform Act and the thrust of the Supreme Court decision in O’Callahan v. Parker.
The Bail Reform Act contemplates that the search for conditions of release should be characterized by a recognition of the need for flexible and individualized conditions. The fact that a serviceman cannot satisfy the general criteria evolved for bail cases, evolved in the setting of civilian defendants, may not be taken as a reason for overriding different, but equivalent, facts which strongly suggest that the serviceman would appear for trial if released. The papers before us indicate that this is appellant’s first arrest, that the military police at the Anacostia Naval Station have agreed to act as third party custodian, that appellant’s commanding officer has been apprised of the situation and has consented to retain the appellant should this court grant his application for release, to have appellant rejoin the unit and resume his naval employment. Appellant’s incentive to appear for trial, to avoid additional trouble with the Navy, is at least comparable to the incentive said to animate some defendants on money bond, to avoid embroilment with the long arm of the bail bondsman.
In O’Callahan v. Parker, supra, the Supreme Court held that civil jurisdiction over servicemen obtains when the crime is not service-connected and is committed in peacetime and within the territorial limits of the United States. Although the opinion of the court focused on the constitutional right of indictment by grand jury and of trial by jury, the transfer of jurisdiction from courts-martial to civil courts at the same time conferred the right to bail upon these servicemen, there being no military equivalent of bail. To hold servicemen to standards of residency impossible of fulfillment renders the right to bail illusory. It places them on a less than equal footing with their civilian counterparts whose life style may evince less overall stability and it raises the question whether an unreasonable form of preventive detention is being imposed upon servicemen-defendants.
In our view, a lack of close family and community ties is not an insurmountable obstacle to pretrial release; it presents a problem which may be overcome by the imposition of carefully chosen conditions. In the case of civilian defendants release may be available through the intercession of civilian institutional custodians, such as Bonabond and Offender Rehabilitation. We consider appellant’s institutional ties to the District of Columbia an adequate substitute for those civilian associations which he lacks.
Our order granting pretrial release to appellant Bronson was conditioned upon his continued residence with his military unit and the designation of his unit commander as third-party custodian. We do not suggest that conditions of release for servicemen-defendants must draw exclusively from military sources. The judicial officer, is, of course, free to shape the available military custody in conformance with his mandate to seek the minimal conditions which may reasonably assure the accused’s presence at trial.
The order issued by the court on June 26, 1970 is attached.
PER CURIAM.
ORDER
This appeal from an order of the United States District Court for the District of Columbia denying a motion for pre-trial release of appellant on personal recognizance, came on for consideration on the original record and memoranda of law and fact, submitted by the parties.
On consideration of the foregoing, it is
Ordered by the Court that the order of the District Court appealed from herein is reversed and this case is remanded to said Court with directions that appellant be admitted to bail upon his executing and filing a personal recognizance bond with the Clerk of the United States District Court for the District of Columbia. The aforesaid bond is to be signed by appellant for his appearance pursuant to Rule 46(d) of the Federal Rules of Criminal Procedure, and said bond is to be conditioned upon the following: ble to the Court whenever the defendant is required to appear;
(1) Such release shall be subject to the provisions of Title 18 U.S. Code § 3150;
(2) Continued residence with his military unit;
(3) Third party custody with the defendant’s unit commander, who has agreed to accept the defendant back into his unit and to make him availa-
(4) The defendant shall not leave the metropolitan area of the District of Columbia without the permission of the United States District Court.
. This opinion sets forth the reasons why the court entered its order of June 26, 1970, which granted appellant pretrial release on conditions.
. As of June 26, 1970 appellant had not yet been indicted.
. O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).
. See e. g., United States v. Leathers, 134 U.S.App.D.C. 38, 412 F.2d 169 (1969).
. S.Rep. No. 750, 89th Cong., 1st Sess. 1 (1965).
. 18 U.S.C. § 3146 et seq. (Supp. V, 1965-69).
. O’Callahan v. Parker, supra, Note 3.
. “Non-financial conditions, our decisions have made clear, should be used flexibly, varying with the needs of the individual defendant.” United States v. Leathers, supra note 4, 134 U.S.App.D.C. at 41, 412 F.2d at 172 [citations omitted].
. United States ex rel. Watkins v. Vissering, 184 F.Supp. 529 (E.D.Va.1960) ; Weiner, Courts-Martial and The Bill of Rights: The Original Practice II, 72 Harv.L.Rev. 266, 296 (1958).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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.
Billy Ray HALL, Appellee, v. O. M. BOSTIC, Monroe Prison Unit and the Attorney General of the State of North Carolina, Appellant.
No. 75-1119.
United States Court of Appeals, Fourth Circuit.
Argued June 10, 1975.
Decided Dec. 16, 1975.
Certiorari Denied April 26, 1976.
See 96 S.Ct. 1733.
Lawrence Young, Chapel Hill, N. C. [court-appointed counsel], for appellee.
Jacob Safron, Asst. Atty. Gen. (Rufus L. Edmisten, Atty. Gen., and Richard N. League, Asst. Atty. Gen., on brief), for appellant.
Before RUSSELL, FIELD and WIDENER, Circuit Judges.
Donald RUSSELL, Circuit Judge:
The petitioner, a North Carolina prisoner, pleaded guilty to the crime of forgery and was sentenced to seven years’ imprisonment, suspended during probation for five years. Under the North Carolina probation statute, one who, under suspended sentence as was the petitioner, violates the conditions of his probation, is dealt with “as if there had been no probation or suspension of sentence” and “his original sentence” is “automatically activated.” After serving four and a half years on probation, the petitioner had his probation revoked in proceedings had in conformity with these North Carolina procedures. He claims the right to have credited on his seven year prison sentence the four and a half years during which he was on probation. The state court denied relief and this habeas action was filed in the District Court, which sustained the petitioner’s claim and ordered the state authorities to credit time on probation against his forgery prison sentence. We reverse.
There is nothing unusual in the denial by North Carolina law of credit for probation or parole time against a prison sentence. It is common to both state and federal probation and parole systems. The validity of such denial has been universally recognized both in federal and state decisions. The leading case to this effect is Kaplan v. Hecht (2d Cir. 1928) 24 F.2d 664, 665, in which the Court said:
“The second contention is that the time during which appellant was on ¡probation must be credited upon the execution of the sentence of imprisonment imposed on November 2, 1927. The argument runs that, although on probation, he was not a free man, but was undergoing punishment and restraint in execution of the judgment of conviction, so that any imprisonment after December 8, 1927, the expiration of 18 months from the date he was placed on probation, amounts to a second punishment for the same crime, in violation of the Fifth Amendment. The fallacy of this argument is made at once apparent upon a consideration of the purpose of the Probation Act. This is clearly explained in the recent opinion of the Supreme Court, cited above, where the Chief Justice points out that probation is the attempted saving of a man who has taken one wrong step, and whom the judge thinks can be set again upon the path of rectitude, if an opportunity for reform be given him before he is stigmatized with imprisonment and subjected to association with hardened convicts. Hence the judge is given the power to suspend sentence — a thing he could not do without legislation, after the decision in Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, L.R.A.1917E, 1178, Ann.Cas.1917B, 355. The purpose is to avoid imprisonment so long as the guilty man gives promise of reform. Clearly, therefore, probation is not intended to be the equivalent of imprisonment. The aim of the statute is reformatory, not punitive, and its language carries this aim into effect. While we have found no decision under the Federal Probation Act which passes upon the contention that the prior probation must be credited upon a sentence of imprisonment imposed when probation is revoked, numerous cases under similar state statutes have adjudicated its lack of merit.”
The District Court, however, relying on Hart v. Coiner (4th Cir. 1973) 483 F.2d 136, held that the activation of his original prison sentence by the revocation of his probation “deprived the [petitioner] of due process of law by subjecting him to additional punishment which has no rational relationship to the seriousness of the offenses which brought about revocation of the probation.” The error in this reasoning is obvious. The petitioner, upon revocation of his suspended sentence, suffers imprisonment under a sentence, not for the matters that may have caused the revocation of his probation, but for the crime of forgery, of which he confessed guilt. The validity of his sentence thus is to be measured by the crime for which it was imposed (i. e., forgery) and not by the numerous derelictions that induced the state court to revoke his probation. So measured, there is no constitutional unreasonableness in the sentence imposed, as was found by the Court in Hart v. Coiner, supra. Nor is the refusal to credit probation time against the prison sentence double jeopardy, or an extension or enlargement of the original sentence of seven years’ imprisonment, “since the period of probation is not counted” as a part of the period of imprisonment. A person does not serve a prison sentence while on probation or parole any more than he does while free on bail. In both instances, there are certain restrictions generally on the person’s movements but the person’s condition, as the Court observed in Morrissey v. Brewer (1972) 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 is “very different from that of confinement in a prison.”
The judgment of the District Court granting the petitioner habeas relief is accordingly reversed, and the District Court is directed to dismiss as without merit the petition.
. § 15-200, General Statutes of North Carolina.
. Hewett v. State of North Carolina (4th Cir. 1969) 415 F.2d 1316, 1319.
See, also, Roberts v. United States (1943) 320 U.S. 264, 268, 64 S.Ct. 113, 88 L.Ed. 41 for similarity with federal practice under § 3653, 18 U.S.C. Credit is allowed, however, for those sentenced under the Youth Corrections Act. Viggiano v. United States (S.D.N.Y.1967) 274 F.Supp. 985, 986.
. The record indicates forebearance on the part of the state court. There had been numerous claims of violations of probation on the part of the petitioner over the period but finally, its patience apparently exhausted, the state court revoked his probation. There was no claim made that the facts did not justify revocation under the North Carolina statute, though the District Court did find the statute exacting.
. For cases dealing with probation: Anglin v. Johnston (7th Cir. 1974) 504 F.2d 1165, cert. denied, 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975); United States v. Hawkins (5th Cir. 1974) 492 F.2d 771, 772, cert. denied, 419 U.S. 1052, 95 S.Ct. 629, 42 L.Ed.2d 647; United States v. Guzzi (3d Cir. 1960) 275 F.2d 725; Allen v. United States (6th Cir. 1953) 209 F.2d 353, cert. denied, 347 U.S. 970, 74 S.Ct. 782, 98 L.Ed. 1111; State v. Saavedra (1968) 5 Conn.Cir. 367, 253 A.2d 677, 680; Sommers v. Missouri (Mo. 1973) 498 S.W.2d 794; Royalty v. McAdory (Miss.1973) 278 So.2d 464; Wilson v. State of Texas (Tex.Cr.App.1971) 471 S.W.2d 416; Quintero v. Texas (Tex.Cr.App.1971) 469 S.W.2d 189; State of Arizona v. Tritle (1971) 15 Ariz.App. 325, 488 P.2d 681; State of Arizona v. Sanchez (1973) 19 Ariz.App. 253, 506 P.2d 644; State v. Lowdermilk (1964) 245 Ind. 93, 195 N.E.2d 476; State ex rel. Ahern v. Young (1966) 273 Minn. 240, 141 N.W.2d 15; People v. Gomez (1972) 24 Cal. App.3d 486, 100 Cal.Rptr. 896; State of Missouri v. Phillips (Mo.1969) 443 S.W.2d 139; Gehl v. People (1967) 161 Colo. 535, 423 P.2d 332.
For cases dealing with parole: Zerbst v. Kidwell (1938) 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399; Anderson v. Corail (1923) 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247; Hamrick v. Peyton (4th Cir. 1965) 349 F.2d 370, 372; Hutchison v. United States (10th Cir. 1971) 450 F.2d 930, 931; United States v. Farrell (8th Cir. 1937) 87 F.2d 957, 961; State v. Davis (1973) 19 N.C.App. 459, 199 S.E.2d 37, 38.
A number of states have by statute provided for such credit. Typical is the Illinois Statute, which specifically provides that, “[T]ime served on probation or conditional discharge shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.” See People v. Taylor (1974) 21 Ill.App.3d 702, 315 N.E.2d 914 at 916, where the statute is quoted. The rule in Illinois was the traditional one prior to the adoption of this statute. People v. Harris (1972) 6 Ill.App.3d 487, 285 N.E.2d 583, 584. New Mexico and Montana have somewhat similar statutes. Cf., State of New Mexico v. Reinhart (1968) 79 N.M. 36, 439 P.2d 554; Barrows v. State of Montana (1970) 155 Mont. 522, 474 P.2d 145.
.State v. Pietsch (1973) 109 Ariz. 261, 508 P.2d 337, 339; People v. Turner (1970) 129 Ill.App.2d 24, 262 N.E.2d 379, 380; Davis v. Parker (D.C.Del.1968) 293 F.Supp. 1388, 1394; State v. Everett (1913) 164 N.C. 399, 79 S.E. 274, 277; Johnson v. State (1959) 214 Ga. 818, 108 S.E.2d 313, 314.
. Anglin v. Johnston, supra, 504 F.2d at 1168; Kaplan v. Hecht, supra, 24 F.2d at 665.
. Thomas v. United States (10th Cir. 1964) 327 F.2d 795, 797, cert. denied, 377 U.S. 1000, 84 S.Ct. 1936, 12 L.Ed.2d 1051 (1964); King v. Commonwealth (1923) 246 Mass. 57, 140 N.E. 253, 254.
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_appel1_1_4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
TUNIS BROTHERS COMPANY, INC. de la Rigaudiere, Richard N. and Smith, David C., Appellants, v. FORD MOTOR COMPANY, Ford Motor Credit Company, Wenner Ford Tractor, Inc., Wenner, John S. Watson, John Crawford, Douglas N. Fraher, Eugene W. Hasel, E.S. Nickel, Hugh Harris, Kenneth E. and Wenzel, C.W., Appellees.
No. 84-1318.
United States Court of Appeals, Third Circuit.
Argued Jan. 15, 1985.
Decided May 30, 1985.
Rehearing and Rehearing In Banc Denied June 24, 1985.
Arnold R. Ginsburg (Argued), Haverford, Pa., for appellants.
Steven T. Stern (Argued), Braemer and Kessler, Philadelphia, Pa., for appellees Wenner Ford Tractor, Inc. & John S. Wenner.
Robert C. Heim (Argued), Jeffrey G. Weil, Robert A. Limbacher, Dechert, Price & Rhoads, Philadelphia, Pa., for appellees Ford Motor Co., Ford Motor Credit Co., John Watson, Douglas N. Crawford, Eugene W. Fraher, E.S. Hasel, Hugh Nickel & Kenneth E. Harris.
Before HUNTER and HIGGIN-BOTHAM, Circuit Judges, and DEBE-VOISE, District Judge.
Honorable Dickinson R. Debevoise, United States District Court for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge:
The plaintiffs in this “distributor termination” case, a franchised tractor dealership and its new owners, appeal a final order of the district court granting summary judgment in favor of the defendant franchisor and other corporate and individual defendants on plaintiffs’ federal antitrust claims. The appealed from order also dismissed plaintiffs’ state common law breach of contract and tort claims without prejudice.
We reverse and remand for further proceedings.
I. THE SUMMARY JUDGMENT RECORD
A. The Complaint and Other Pleadings
The six-count complaint filed by plaintiffs Tunis Brothers Company, Inc. (“Tunis Brothers”), Richard N. de la Rigaudiere (“de la Rigaudiere”) and David C. Smith (“Smith”) on December 15, 1982 and amended July 14, 1983, includes four counts alleging violations of section 1 of the Sherman Act, 15 U.S.C. § 1 (1982) by three corporate defendants and eight individual defendants. The remaining two counts allege state common law tort and contract claims against the defendants and invoke pendent jurisdiction. The plaintiffs claim injuries to their business and property in the amount of $7,724,357 and seek treble damages from the defendants in the amount of $23,173,071. Appendix (“App.”) at 11-94.
Count I alleges, inter alia, that corporate defendants Ford Motor Company (“Ford”), Ford Credit Company (“Ford Credit”), Wenner Ford Tractor, Inc. (“Wenner Ford”), and individual defendant John S. Wenner (“Wenner”) conspired to terminate the authorized Ford tractor dealership of plaintiff Tunis Brothers, a Pennsylvania corporation located in Kennett Square, Pennsylvania. Complaint $ 66, App. at 35.
The business of Tunis Brothers had been established in 1934 by Richard M. Tunis and his brother Robert. In 1959, Tunis Brothers entered into an agreement with Ford and became a franchised tractor dealership owned and operated by Richard Tunis and his wife Isabelle. From 1959 until April 1981 when its Ford dealership franchise was terminated, Tunis Brothers was an authorized dealer of Ford tractors and related equipment and it sold Ford tractors, Ford accessories and non-Ford products. On March 13, 1981, plaintiffs de la Rigaudiere and Smith purchased the business and became the sole directors and stockholders of Tunis Brothers Company, Inc.
Count I further alleges that the defendants conspired to prevent plaintiffs de la Rigaudiere and Smith, the new owners of Tunis Brothers, from operating in Kennett Square to eliminate or substantially decrease competition with defendant Wenner Ford Tractor, Inc. Complaint 66, App. at 35-6.
Wenner Ford is a Delaware Corporation whose principal place of business prior to 1982 was Concordville, Pennsylvania, about 11 miles east of Kennett Square. Wenner Ford was the authorized Ford dealer of farm and industrial tractors, machinery, equipment and parts nearest Tunis Brothers. It is a Ford Dealer Development Company, established by Ford in November 1979, in which defendant Ford owns all of the voting stock and 79% of the equity stock. App. at 3522-37. Defendant John 5. Wenner owned 21% of Wenner Ford’s equity stock, app. at 3712-3883, and operated Wenner Ford as its president and chief executive officer pursuant to a Dealer Development Agreement and a Management Agreement. App. at 3434, 3449.
It is alleged in Count 1 that, in addition to John S. Wenner, the other named individual defendants, employed by Ford in varying managerial capacities, participated in and aided and abetted the conspiracy. These individuals are: John Watson (“Watson”); Douglas N. Crawford (“Crawford”); Eugene W. Fraher (“Fraher”); E.S. Hasel (“Hasel”); Hugh Nickel (“Nickel”); Kenneth E. Harris (“Harris”) and C.W. Wenzel (“Wenzel”).
It is further averred in Count 1 that the conspiracy and actions of the defendants were not only in unreasonable restraint of trade but were illegal per se because they were in furtherance of an illegal horizontal territorial restriction by Ford where Ford was in both a horizontal and a vertical relationship with Tunis Brothers, as both franchisor and competitor. Complaint U 74, App. at 38.
Count II alleges that the 1974 franchise agreement between Ford and Richard and Isabelle Tunis constituted a contract in unreasonable restraint of trade due to the existence of certain unlawful provisions. The individual defendants are alleged to have aided and abetted Ford in exercising its rights under the agreement in furtherance of illegal objectives. Complaint j[ 95, App. at 48.
Count III alleges, inter alia, that the franchise agreement and the conspiracy included “dirty business tricks and unfair business dealing ... in furtherance of defendants’ illegal antitrust objectives and their unreasonable restraint of trade ...” Complaint j[ 97, App. at 49.
Count IV avers that the franchise agreement and the conspiracy, by eliminating Tunis Brothers as a competitor, eliminated intrabrand competition in the sale and service of Ford products. Because no inter-brand competition of any significance or consequence was promoted by such elimination of intrabrand competition, it is alleged that the anti-competitive effect constituted an unreasonable restraint of trade. Complaint j[ 100, 102; App. at 50, 51.
As to the state causes of action, Count V alleges tort liability under common law based on fraud and other tortious conduct. App. at 52-9. Count VI alleges contract liability on the part of the defendants at common law. App. at 60-5.
The defendants’ answers and amended answers to the amended complaint deny all material allegations.
B. Defendants’ Rule 56 Motions
On November 30, 1983, the defendants filed motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, with supporting memoranda, affidavits, depositions and exhibits. App. at 200-900. The major argument presented by defendants was that there were no genuine issues of material fact in dispute and, on the basis of the undisputed facts, the plaintiffs not only failed to show direct evidence of a conspiracy but also failed to present facts which would permit a reasonable inference of conspiracy. Moreover, defendants argued that plaintiffs presented no facts showing an adverse impact on competition. They also asserted that there were no facts supporting plaintiffs’ breach of contract claim.
In reply, the plaintiffs filed memoranda, affidavits, depositions and exhibits in opposition to defendants’ summary judgment motions. App. at 900-1375. They argued in a 141-page brief that the factual record fully supported the allegations in the complaint and that there were genuine issues of material fact in dispute. The district court heard oral argument on February 8, 1984. App. at 1375.
In its May 7, 1984 memorandum opinion, the district court found that the plaintiffs failed to establish a “... contract or conspiracy, in restraint of trade” under section 1 of the Sherman Act in two respects.
First, the district court held that plaintiffs did not satisfy their burden of producing sufficient evidence of a conspiracy to terminate Tunis Brothers and to prevent de la Rigaudiere and Smith from operating the dealership as a franchise in competition with Wenner Ford. According to the district court, “there is no evidence of a conspiracy under section 1 of the Sherman Act” and therefore, “there is no genuine issue of material fact and all defendants are entitled to judgment as a matter of law on Counts I, III, and IV”. Tunis Brothers Co. v. Ford Motor Co., 587 F.Supp. 267, 274 (E.D.Pa.1984).
Second, the district court determined that the 1974 franchise agreement, which contained provisions preventing Tunis Brothers from transferring the franchise without the approval of Ford and which gave Ford the right to terminate the agreement, was not a contract in unreasonable restraint of trade violative of section 1 of the Sherman Act. The district court also determined that “there are no facts which show that Ford improperly used the franchise agreement to deny transfer of the Ford franchise to plaintiffs de la Rigaudiere and Smith.” Tunis Brothers Co., 587 F.Supp. at 275. Summary judgment as to Count II was also granted.
Having dismissed all of the federal claims before trial, the district court then exercised its discretion and dismissed the pendent claims in Counts V and VI. 587 F.Supp. at 275.
The plaintiffs noticed this appeal on June 4, 1984.
II. STANDARD OF REVIEW
Although Tunis Brothers, de la Rigaudiere and Smith challenge the district court’s ruling as to the validity of the franchise agreement and the dismissal of the state claims, they have launched their major offensive against the district court’s holding with respect to the entry of summary judgment on the conspiracy charge. They strongly take issue with the district court’s evaluation of the material facts and staunchly maintain that it failed to examine all of the admissible evidence, direct and circumstantial, which they presented in opposition to the defendants’ Rule 56 motions. The plaintiffs contend that the district court did not properly determine what legitimate inferences could be drawn as to the ultimate facts in issue. They assail the trial court’s conclusions by asking: Where are the facts?
Of course, in the true nature of our adversarial process, each side has provided us with a portrayal of the evidence which, if selectively read, could be viewed as providing a solid foundation of evidentiary support. Our function on appeal, however, in regard to summary judgment, is the same as that of a trial court: it is not within our province to adjudicate genuine factual issues. We are to view the evidence in the light most favorable to the plaintiffs, the nonmoving parties, giving Tunis Brothers, de la Rigaudiere and Smith the benefit of all reasonable inferences without assessing credibility.
To determine whether the defendants have satisfied their burden under Rule 56, we must on the one hand closely scrutinize the affidavits, depositions, and exhibits submitted by the defendants, while on the other, indulgently treat those proffered by plaintiffs. 6 J. Moore, W. Taggert & J. Wicker, Moore’s Federal Practice j| 56.15[3] (2d ed. 1985). Only if we conclude that the evidence is so one-sided that it leaves no room for any reasonable difference of opinion as to any material fact should we hold that the case should have been decided by the district court as a matter of law rather than submitted to a jury.
Although we recognize that summary judgments are somewhat disfavored in antitrust cases, especially when motive or intent is at issue, see Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164, 165 (3d Cir.1979), they are not automatically precluded in antitrust litigation, if otherwise justified. First National Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Sound Ship Building v. Bethlehem Steel Co., 533 F.2d 96, 99-100 (3d Cir.), cert. denied, 429 U.S. 860, 97 S.Ct. 161, 50 L.Ed.2d 137 (1976); Innovation Data Processing, Inc. v. International Business Machines Corp., 585 F.Supp. 1470, 1472 (D.N.J.1984). Therefore, we have, with painstaking care, reviewed this massive 3,712 page record to ascertain whether it does or does not have the quantum of evidence required to sustain the district court’s grant of summary judgment on behalf of the defendants as to Counts I through IV. The critical inquiry is: did the district court err in concluding that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law? Cernuto, 595 F.2d at 165.
We believe that, in evaluating the evidence contained in this veritable mountain of briefs and appendices, the trial judge, unintentionally of course, tilted the scale against plaintiffs by failing to factor into the overall conspiracy equation certain significant evidence that clearly favored the plaintiffs. Therefore, we reverse the entry of summary judgment as to Counts I, III and IV. As to Count II, we also reverse the judgment of the district court, again for the reason that evidence favoring the plaintiffs was not taken into account as to the improper use of the franchise agreement.
Our review of the dismissal of plaintiffs’ pendent state claims is for an abuse of discretion. In light of our disposition of the federal claims, we reinstate Counts V and VI and remand this matter for trial.
III. ANALYSIS
A. The Antitrust Claims
For activities to constitute a section 1 violation, the following four elements must be present: (1) that the defendants contracted, combined or conspired among each other; (2) that the combination or conspiracy produced adverse, anti-competitive effects within the relevant product and geographic markets; (3) that the objects of and the conduct pursuant to that contract or conspiracy were illegal; and (4) that the plaintiffs were injured as a proximate result of that conspiracy. Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81-2 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978).
Although the literal language of section 1 declares “every” contract, combination or conspiracy in restraint of trade to be illegal, it has been construed to proscribe only those combinations that “unduly” restrain trade. Cernuto, 595 F.2d at 166. Thus, unless the particular restraint falls within a category that has been judicially determined to be illegal per se, the legality of a restraint challenged under section 1 of the Sherman Act must be assessed under the “rule of reason” standard.
To demonstrate an antitrust violation under the “rule of reason,” plaintiffs would have to show an actual anti-competitive impact on the sale of tractors in the relevant market area. Plaintiffs allege, and may be able to prove such harmful effects, but the district court did not reach the question of adverse impact, having determined that the first element of a section 1 claim was not satisfied. Plaintiffs’ claims, however, are not entirely grounded on the “rule of reason;” in Count 1, plaintiffs allege the per se illegality of the defendants’ combination in the form of a horizontal territorial restriction.
1. Counts I, III, IV — Concerted Action
We will first consider whether the defendants met their burden of establishing that, as to the undisputed material facts, there could not have been a conspiracy as a matter of law either because (a) there was not sufficient evidence of concerted action or (b) even if there was such evidence, the acts complained of are not violative of the antitrust laws.
(a) Burden of Proof
We begin with the proposition that “liability under the antitrust laws [cannot] be measured by any rigid or mechanical formula____” Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 1410, 8 L.Ed.2d 777 (1962).
To establish the existence of concerted action as a matter of fact, the plaintiff must submit evidence from which a jury could reasonably infer that the defendants “had a conscious commitment to a common scheme designed to achieve an unlawful objective”, Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984), quoting Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981), or, in other words, “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement____” American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946); American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230, 1243 (3d Cir.1975). Direct proof of an express agreement is not required. Edward J. Sweeny & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981).
As we noted in In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 304 (3d Cir.1983), cert. granted, — U.S. -, 105 S.Ct. 1863, 85 L.Ed.2d 157 (1985), “[b]ecause the concert of action which violates the antitrust laws will so rarely be the subject of direct evidence, the Supreme Court has permitted broad latitude with respect to what inferences are permissible from the totality of the circumstances.” (Emphasis added). The Supreme Court stated in American Tobacco Co., .328 U.S. at 809-10, 66 S.Ct. at 1139:
It is not the form of the combination or the particular means used but the result to be achieved that the statute condemns. It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful. Acts done to give effect to the conspiracy may be in themselves wholly innocent acts. Yet, if they are part of the sum of the acts which are relied upon to effectuate the conspiracy which the statute forbids, they come within its prohibition. No formal agreement is necessary to constitute an unlawful conspiracy. Often crimes are a matter of inference deduced from the acts of the person accused and done in pursuance of a criminal purpose____ The essential combination or conspiracy in violation of the Sherman Act may be found in a course of dealings or other circumstances as well as in an exchange of words, (citations omitted).
Conspiracies under the Sherman Act are not dependent on any overt act other than the act of conspiring. See Associated Press v. United States, 326 U.S. 1, 12-13, 65 S.Ct. 1416, 1420-1421, 89 L.Ed. 2013 (1945). Those who, with knowledge of the conspiracy, aid or assist in carrying out the purposes of the conspiracy make themselves parties thereto and are equally liable to or guilty with the original conspirators.
The primary facts upon which plaintiffs rely to support their allegation of conspiracy are these:
(1) Plaintiffs de la Rigaudiere’s and Smith’s conversations and communications with defendants Ford, John Watson and Eugene W. Fraher regarding the purchase of Tunis Brothers by de la Rigaudiere and Smith and their application for Ford franchise from April 1980 to January 1981
Complaint U 35-45, App. at 23-27.
(2) Plaintiffs de la Rigaudiere’s and Smith’s conversations and communications with defendants
Eugene W. Fraher and Hugh Nickel regarding their franchise application Complaint H 46-56, App. at 27-32.
(3) The events surrounding the rejection of plaintiffs de la Riguadiere’s and Smith’s franchise application
Complaint K 57-65, App. at 32-35.
The character and effect of an alleged conspiracy are determined only by analyzing the activities in question as a whole, Continental Ore Co. v. Union Carbide, 370 U.S. at 699, 82 S.Ct. at 1410. This court “need not affirmatively find that a conspiracy exists, but merely that there are factual questions concerning such a conspiracy in order to deny the motions for summary judgment.” American Dermatologists’ Medical Group, Inc. v. Collagen Corp., 595 F.Supp. 79, 81 n. 1 (N.D.Ill. 1984). Therefore, we will look to the affidavits, depositions, and exhibits to determine whether the facts alleged by plaintiffs are susceptible of an interpretation that might give rise to an inference of a conspiracy.
(1) Plaintiffs’ Conversations and Communications With Defendants Ford, John Watson and Eugene W. Fraher Regarding the Purchase of Tunis Brothers and Ford Franchise April 1980 to January 1981.
The district court found, as a matter of undisputed fact, that in March 1980 plaintiffs de la Rigaudiere and Smith began negotiations with Mr. and Mrs. Tunis as to the sale of the dealership. They initiated a series of meetings and negotiations with Richard and Isabelle Tunis, extending over a period of months, culminating in an Agreement of Sale dated December 16, 1980. App. at 2787.
Richard de la Rigaudiere deposed that he contacted defendant John Watson, a Zone Manager for Ford’s Tractor Operations for an area including Kennett Square and Concordville, in April of 1980 regarding the proposed sale. App. at 1554. He further testified that Watson suggested that they meet at Wenner Ford and then have lunch at the Concordville Inn, near Wenner Ford. App. at 1908-11. It is undisputed that on May 23, 1980, prior to the sale of the business, de la Rigaudiere and Smith met with defendant John Watson for the purpose of discussing the transfer of the Ford franchise to them once Richard and Isabelle Tunis sold the business. The parties met at Wenner Ford.
Meeting at Wenner Ford and Concord-ville Inn — May 23, 1980
De la Rigaudiere testified that Watson introduced him and Smith to John S. Wenner and took them on a tour of the Wenner Ford facility. App. at 1564-5; 1910-91. It is undisputed that the May 23, 1980 meeting also included lunch at the Concordville Inn, during which de la Rigaudiere and Smith told Watson of their plans to purchase Tunis Brothers, expand the business and become franchised tractor dealers in Kennett Square. Defendant Watson indicated that Ford did not intend to have a franchised dealership selling tractors in Kennett Square after Tunis Brothers was sold but rather was interested in having a franchised dealership in the area, 15 miles west of Kennett Square.
De la Rigaudiere and Smith both testified that Watson also said that the Kennett Square area was to belong to Wenner Ford after Mr. Tunis retired or sold the business. App. at 1567-15; 1919; 2142, 2377. Watson denies making the statement.
De la Rigaudiere further testified that Wenner was seated nearby during lunch at the Concordville Inn and was “in an excellent position to overhear ... our conversation.” App. at 1916. Defendant Wenner testified that he remembered the meeting with Watson, de la Rigaudiere and Smith at Wenner Ford but that he had no recollection of having lunch at the Concordville Inn on that same day and no recollection of ever eating at the Concordville Inn. App. at 108-10. Plaintiffs’ Exhibit P-8, an invoice to Wenner Ford which shows that John Wenner had been at the Concordville Inn on May 23, app. at 2778, contradicts the testimony of Wenner. Watson denied in his deposition knowing that Wenner was at the Concordville Inn.
Following the May 23rd meeting, defendant Watson, in his Ford New Dealer Prospecting Report wrote that the two men were very well qualified to represent Ford in the trade area — Oxford and Cochran-ville, Pennsylvania — not Kennett Square. App. at 2779-80.
Whether or not Wenner saw Watson, de la Rigaudiere and Smith at the Concordville Inn; whether it was just a coincidence that Wenner was seated at an adjacent table or whether this was planned and prearranged, are disputed issues of material fact properly left for a jury.
Meeting on June 13, 1980 with Defendant Eugene E. Fraher
Smith testified that he and de la Rigaudiere felt that Watson and Wenner had been collaborating and decided to “go over their heads.” App. at 2143. It is undisputed that later, in June 1980, plaintiffs de la Rigaudiere and Smith met with Watson’s superiors, defendant Eugene E. Fraher, who was then Northeastern District Manager of Ford Tractor Operations, and his associate, Edward Poole, in Cohoes, New York.
Smith and de la Rigaudiere did not know that Fraher was also then a Director and Senior Vice President of Wenner Ford Tractor and that he had served in those official capacities since November 1979. App. at 3723, 3735, 3757, 3781, 3790, 3813, 3820, 3828, 3833-34, 3482. De la Rigaudiere testified that Fraher did not mention that Ford had a stock interest in Wenner Ford, or that he was an officer of Wenner Ford. App. at 1936-37.
It is undisputed that Fraher confirmed Watson’s report that Ford intended to realign its distributorship and eliminate the Kennett Square outlet. According to Smith, Fraher agreed with Watson that Kennett Square was going to be Wenner’s territory. App. at 2146. De la Rigaudiere testified to the same effect. App. at 1936.
De la Rigaudiere testified that Fraher also told them Ford preferred not to have its dealers competing with each other but went on to say that he thought de la Rigaudiere and Smith could have a dealership in Kennett Square for two to three years before they would have to move to the Cochranville area. App. at 1579-80, 1935-36, 1939-40. Smith testified, “Finally, we reached an agreement that we would start out in Kennett Square and after a period of time set up a place in Cochranville.” App. at 2149. Fraher gave de la Rigaudiere and Smith dealer applications and told them to apprise him of the progress of the sale negotiations. App. at 1940. After mortgage financing had been arranged through the Chester County Industrial Development Authority (“CCIDA”), App. at 2790, 3051, Richard and Isabelle Tunis and de la Rigaudiere and Smith signed an Agreement of Sale for Tunis Brothers. It is undisputed that performance of the agreement was not conditioned on de la Rigaudiere and Smith obtaining Ford’s approval to continue the Tunis Brothers dealership as a Ford franchised dealership.
In January of 1981 de la Rigaudiere sent to Fraher de la Rigaudiere’s and Smith’s personal financial statements, a copy of the sales agreement, their business plan, a description of the CCIDA and a copy of CCIDA approval. App. at 2857-58. The same package was mailed to defendant Douglas N. Crawford, who had succeeded Watson as Ford’s zone manager. App. at 1666-67.
(2) Plaintiffs’ Conversations and Communications With Defendant Hugh Nickel Regarding the Franchise Application
March 3, 1981 Meeting At Tunis Brothers
The district court found it to be an undisputed fact that on March 3, 1981, defendants Douglas N. Crawford and Hugh Nickel, a Dealer Replacement Representative in the Northern Region of Ford Tractor Operations, met de la Rigaudiere and Smith in Kennett Square to obtain more application information for: 1) a franchised dealership; and 2) credit from defendant Ford Credit As to this particular meeting, the district court made no further findings, nor did it consider record evidence and inferences in support of several important allegations made by plaintiffs. It is especially at this stage that the plaintiffs allege that the district court improperly tilted the scales against them by failing to note several critical facts and inferences favorable to plaintiffs that create a genuine dispute as to material facts within the admonitions of Rule 56.
De la Rigaudiere testified that he received a telephone call from defendant Crawford, who said that “Mr. Fraher was sending him.” App. at 1668. Crawford testified that it was Mr. Fraher who telephoned him and told him to go to Tunis Brothers to take the dealer application. App. at 1292-94. Fraher testified that he did not call Crawford. App. at 1338-41.
During the meeting with de la Rigaudiere, Smith and Mr. and Mrs. Tunis, Nickel explained that Ford would not process an application for a replacement dealer unless the present dealer submitted a letter of resignation. Nickel presented Mr. Tunis with a form letter of unconditional resignation and termination notice for Mr. Tunis to copy and submit to Ford. Nickel told them Tunis’ resignation letter would not be finally processed until the application of the new owners for Ford franchise was approved. Nickel assured them it would be approved and that the resignation and termination letter would be kept in a drawer and not acted upon.
Nickel also recorded considerable detailed financial information which de la Rigaudiere and Smith supplied orally. He had de la Rigaudiere and Smith sign blank applications on which the credit information was to be typed later. He stated that he would have the forms typed up in his office and then return them to de la Rigaudiere and Smith for their review before submitting them. De la Rigaudiere and Smith never saw those papers again. App. at 1954-59. See generally deposition testimony of de la Rigaudiere, App. at 1950-54; Smith, App. at 2158-60; Isabelle Tunis, App. at 2661-63; Richard Tunis, App. at 2556-69.
During this meeting, neither Nickel nor Crawford mentioned any move to Cochran-ville or Oxford or any time limit on the franchise in Kennett Square. App. at 1959-62; 2162.
Despite his assurance to de la Rigaudiere and Smith that the dealer applications would be approved, Nickel subsequently wrote a Ford New Dealer Prospecting Report which stated that he did not feel that de la Rigaudiere and Smith were qualified businessmen or that their net worth or financial strength was adequate to qualify for a line of credit.
(3) Rejection of Plaintiffs' Application
According to de la Rigaudiere and Smith, after the March 3, 1981 meeting with Nickel and Crawford, the purchase and sale of Tunis Brothers was consummated based on Nickel’s repeated assurances that the dealership application of de la Rigaudiere and Smith would be approved. The closing of the sale of Tunis Brothers took place on March 13, 1981, and by letter dated March 17, 1981, Richard Tunis sent Ford his letter of resignation. App. at 2929. Upon receipt of Tunis’ resignation, Nickel completed, by hand, a request that the Market Representation Manager accept Tunis’ resignation immediately. App. at 2972, 1018. The request was then typed and signed by Fraher. It is undisputed that defendant Kenneth E. Harris, the Market Representative Manager of the Northern Region of Ford Motor Company’s Tractor Division, did not process the resignation letter, but rather, held the resignation pending a decision on plaintiffs’ applications.
On April 1, 1981, H.W. Stoneback, Manager of the Philadelphia Branch of Ford Credit, telephoned Harris and indicated that Ford Credit would not approve credit. Consequently, Harris called Ford to complete the resignation letter. In May 1981, de la Rigaudiere and Smith were informed that their credit application had not been approved by Ford Credit.
After de la Rigaudiere’s and Smith’s credit applications had been rejected, they discovered that Nickel had, in completing the dealer applications signed by them in blank, supplied information that de la Rigaudiere and Smith were investing in Tunis Brothers business only $2,500 each. Yet, they had informed Nickel at the March 3, 1981 meeting that they were putting $25,-000 each into the business settlement. See deposition testimony of de la Rigaudiere, App. at 1959. Although Ford concedes that Nickel inserted the wrong figures, the district court opinion does not address the blank applications or the erroneous information supplied. However, because the decision had been based on erroneous financial information, de la Rigaudiere and Smith were permitted to
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer:
|
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
DISTRICT DIRECTOR OF INTERNAL REVENUE, Appellant, v. LONG BEACH JUNIOR CHAMBER OF COMMERCE, Appellee.
No. 18704.
United States Court of Appeals Ninth Circuit.
Feb. 7, 1964.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum and Gilbert E. Andrews, Attys., Dept, of Justice, Washington, D. C., Francis C. Whelan, U. S. Atty., Loyal E. Keir, Asst. U. S. Atty., Chief, Tax Section, and Richard G. Sherman, Asst. U. S. Atty., Los An-geles, Cal., for appellant.
Riedman & Dalessi, and James W. Ed-son, Long Beach, Cal., for appellee.
Before ORR, JERTBERG and BROWNING, Circuit Judges.
ORR, Circuit Judge:
The trial court found that the Long Beach Junior Chamber of Commerce was a “civic or community membership association” within the meaning of section 4233(a) (3) of the Internal Revenue Code of 1954, and thus was entitled to the admissions tax exemption provided in that section. The government here challenges that finding.
As set forth in its Constitution and ByLaws, the purpose of the Long Beach Junior Chamber of Commerce is:
“to provide the younger business and professional men of the City of Long Beach a medium for training in citizenship and Chamber of Commerce work, to promote and publicize the civic, industrial, recreational, and educational activities of the community, to secure and disseminate accurate information relating thereto, to oppose legislation unfavorable thereto, and to promote and support legislation favorable thereto.
“The organization shall be nonpartisan in all respects and shall not at any time endorse any candidate or individual for public office; and it shall be the policy of this organization to refrain from endorsing or opposing any and all definitely partisan measures.”
The activities of the taxpayer have included the following: “Boys Junior Olympics”, an annual boys track meet; “Wings Over the World”, an activity designed to publicize aviation; a Christmas Tree Lighting Contest; “Operation Phone Santa”, where members of the organization take calls from children to Santa Claus; “My True Security”, an essay contest; good citizenship awards; the “Miss Welcome to Long Beach Contest”, where a girl to welcome beauty contestants to Long Beach for the Miss Universe Contest is selected; “Christmas Cheer Clearing House”, where food and gifts are gathered and distributed to needy families during the Christmas season ; social surveys in the area requested by the City of Long Beach and other governmental agencies; programs to combat juvenile delinquency such as having the Wink Martindale Television Show held at the Long Beach Municipal Auditorium for several weeks, and publicizing same in Long Beach schools; and sponsorship of shows in which Duke Ellington, Fred Waring, Spade Cooley, and others appeared. No profit, commission, or bonus has inured to the benefit of any member of the Long Beach Junior Chamber of Commerce from these activities.
The statute in question here reads:
Ҥ 4231. Imposition of tax
“There is hereby imposed:
“(1) General.—
“(A) Single admission.—
“A tax of 1 cent for each 10 cents or major fraction thereof of the amount in excess of $1 paid for admission to any place.
******
Ҥ 4233. Exemptions
“(a) Allowance._
“No tax shall be imposed under section 4231 in respect of:
******
„ _ . . , ,. (3) Certain musical or dramatic performances.
^ “Any admissions to musical or dramatic performances conducted by a civic or community membership association if no part of the net earnings thereof inures to the benefit of any stockholders or members of such association.”
The performance on which the government claims that the admissions tax was described as follows in the trial court’s proper was findings of fact.
“On January 29, and 30, and February 1, 2 and 3 of 1959 the plaintiff sponsored at the Long Beach California Municipal Auditorium an American version of the Oberam-mergau Passion Play. The perform-anee was presented by a professional theatrical group, Consolidated Concerts Corporation, 30 Rockefeller Plaza, New York, New York, for a consideration of $7,500. The net proceeds, if any, after payment of this consideration and other necessary expenses would go to the Long Beach Junior Chamber of Commerce ‘Youth Activities Fund’.”
The government contends that “the term ‘civic or community membership association’ as used in Section 4233 (a) (3) has reference only to those nonprofit membership associations which are organized and operated primarily for the purpose of conducting musical or dramatic performances for the cultural benefit of the members of the association, such as civic music associations whose members pay annual dues for the right to attend a senf f cor|ce.rtjs; “ requires a rather tortuous twisting of the plain meaning of the statute’s words to reach result contended for by the gov. ernment, and our conclusion is that it says no such thing. The term “civic or community” contemplates an association formed for purposes beneficial to the cornmunity as a whole; one in which members of the community cooperate for cornmunity ends. Taxpayer’s purposes and prior activities indicate that it is precisely the type of association described in the statute.
The several exemptions from the admissions tax for non-profit musical and dramatic productions contained in section 4233 indicate that Congress intended to encourage such productions by eliminating the economic burden of the admissions tax on them. In view of this policy, there is no reason to engraft onto the statute a limitation denying the exemption to a civic or community membership association formed for general purposes which also engages in musical or dramatic productions. The “primary purpose” test urged by the government would deny the exemption to those associations which are most public in nature and limit its benefits to those associations whose activities are more oriented toward benefiting their members, an<^ no^ community as a whole,
We find nothing in the legislative his-tory which would justify ignoring the clear and unambiguous language of the section, even assuming we would be free to do so.
Affirmed.
. See Erie Endowment v. United States, 316 F.2d 151 (3d Cir. 1963); United States v. Pickwick Electric Membership Corp., 158 F.2d 272 (6th Cir. 1946); and Debs Memorial Radio Fund v. Commissioner, 148 F.2d 948 (2d Cir. 1945), all construing the phrase “civic leagues or organizations” which appears in § 501 (c) (4) of the Internal Revenue Code of 1954.
. Int.Rev.Code of 1954, § 4233(a) (1) (A) (iv), (a) (3), (a) (7).
. Compare United States v. Public Util. Comm. of Calif., 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020 (1953), and Gilbert v. Commissioner, 241 F.2d 491 (9th Cir. 1957), with Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 87 L.Ed. 407 (1943), and United States v. American Trucking Ass’n, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).
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_habeas
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Howard B. STICKNEY, Appellant, v. O. B. ELLIS, Director, Texas Department of Corrections, Appellee.
No. 18623.
United States Court of Appeals Fifth Circuit.
Feb. 9, 1961.
O. John Rogge, New York City, John P. Spiller, Houston, Tex., for appellant.
Samuel H. Robertson, Jr., Dan Walton, Houston, Tex., for appellee.
Before TUTTLE, Chief Judge, and JONES and BROWN, Circuit Judges.
TUTTLE, Chief Judge.
This is an appeal from the dismissal of a petition for writ of habeas corpus by the trial court, following a state murder conviction and death sentence, without conducting a hearing to determine the truth or falsity of appellant’s claim that his confession used in the State Court trial had been illegally obtained. The appellant also complains of the failure of the trial court to hold a hearing on the contention that he had been denied effective assistance of counsel.
In his petition below, Stickney also charged that the State Court had denied him his constitutional rights in failing to grant a new trial for newly discovered evidence. On this charge the habeas corpus court held an extended hearing. At its conclusion, the trial judge held that the only evidence to support the charge was “fantastic and false” and held that there was no merit in the claim. Appellant does not appeal from this ruling.
As to the first two contentions, Judge Hannay, the trial judge, reviewed all the evidence submitted at the State Court trial and all the records in the State Court and those in the habeas corpus proceedings, including briefs of counsel urging that the court hold a hearing touching on the voluntary character of the confession.
Reference to the transcript of the State Court trial shows that full inquiry was made by the trial judge into the circumstances of the giving of the statement by which appellant confessed commission of the crime, both by defense counsel’s taking the State’s witnesses on voir dire out of the presence of the jury, and then in open court before the jury, and that the court permitted the statement to be introduced in evidence under an appropriate charge to the jury.
We think the trial judge could properly determine, as he did on the record before him, that the statement was made voluntarily and its receipt in evidence was in no way illegal.
We find that the appellant has exhausted his state remedies and that the trial court could properly entertain the application for the writ.
In their brief filed in this court, counsel for the appellant make repeated and extensive arguments touching on the Constitutionally guaranteed rights of an accused person. These statements are, in the main, unexceptionable. It is, or should be, recognized by every American court now that a coerced confession or inculpatory statement, whether the coercion results from physical or mental pressure, may not be received in evidence in a criminal case, and upon a finding that such confession or statement was drawn from an unwilling accused, a conviction resulting therefrom should be set aside. See Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Chambers v. State of Florida, 1940, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; to the recent eases of Leyra v. Denno, 1954, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Fikes v. State of Alabama, 1957, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Payne v. State of Arkansas, 1958, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Spano v. People of State of New York, 1959, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; and Blackburn v. State of Alabama, 1960, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242.
So, too, since Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, it is thoroughly established that every person accused of a capital crime in a state prosecution is entitled to have the effective assistance of counsel. See also Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61; Tomkins v. State of Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; and Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398. For the most recent statement of this principle see McNeal v. Culver, 81 S.Ct. 413.
There is no doubt, either, that in a proper case the fact of the denial of either of the protections just discussed can be found in a Federal habeas corpus proceeding, notwithstanding a prior contrary decision by the state courts. As said by the Supreme Court in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 437, 448, 97 L.Ed. 469, the District Court’s review on habeas corpus of a state conviction is not “a case of a lower court sitting in judgment on a higher court. It is merely one aspect of the Supremacy Clause of the Constitution whereby federal law is higher than State law.”
However, it has been authoritatively decided by the Supreme Court that unless upon reading the transcript of the proceedings of a state court trial, the habeas corpus judge finds a “vital flaw” in the state court proceedings, he may, although he is not required to, accept the determination of the subsidiary facts creating the constitutional issue as binding. See Brown v. Allen, supra. Also see Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361. There, in denying certiorari to the Court of Appeals for the Second Circuit, the Supreme Court restated the proposition enunciated by Mr. Justice Frankfurter in his separate opinion in Brown v. Allen. The Supreme Court, however, has granted a subsequent review of the later opinion of the Court of Appeals for the Second Circuit in United States ex rel. Rogers v. Richmond, 271 F.2d 364.
We have here, then, the question whether the District Court was in error in .accepting the determination of the Texas Trial Court as affirmed by the Court of Criminal Appeals, Stickney v. State, Tex.Cr.App., 336 S.W.2d 133, certiorari denied 363 U.S. 807, 80 S.Ct. 1245, 4 L.Ed.2d 1151, on the issue of voluntariness of the confession without conducting a further hearing to permit appellant to relitigate that issue.
We have carefully read the transcript of the State Court trial. We find that upon the tender in evidence of the statement signed by Stickney proof was made outside the presence of the jury to permit the trial court to make the preliminary determination as to the admissibility of the statement, counsel for Stickney took each witness for the state on voir dire and examined him at length as to the time, place and circumstances surrounding the questions and statements that were taken. This examination disclosed no circumstances of a coercive nature, no lack of education, no racial discrimination, no prolonged period of questioning, no denial of opportunity for Stickney to see his mother in private (he saw her on at least two occasions), and no denial of the right to consult in private with his privately employed counsel. It disclosed the facts that Stickney had been arrested under a warrant charging him with the murders of Shirley Barnes and her husband and that there was outstanding a Federal warrant for his arrest on a charge of flight across state lines to escape prosecution. It also disclosed that, he had not been indicted or been given a hearing before a Magistrate. It disclosed the fact that Stickney conferred at least two times with his lawyer during the period prior to the making of the statement. The testimony disclosed the fact that Stickney was taken to the area where the body of the husband had been found, for the stated purpose of seeing “if he could show me where he threw the body” and also to the area where the killing of Shirley was thought to have taken place. During this trip, one of the officers showed Stickney six “admittedly gruesome” photographs of the body of the victim, in an effort, the officers said, to “see if he was telling the truth about, the way he disposed of her body”.
The trial court held that the showing made warranted the submission of the-statement to the jury, whereupon much of the examination upon direct and cross-examination was repeated to the jury. The judge, in his charge to the jury, said:
“You are instructed that before you may consider the purported statement of the defendant, which is • in evidence before you as exhibit No. 16, for any purpose you must first believe from the evidence beyond a reasonable doubt that the same was. voluntarily and freely made by the defendant and signed by him.
“If you believe from the evidence, ■or if you have a reasonable doubt thereof, that said purported statement was not freely and voluntarily made and signed by the defendant, or that same was made as a result of coercion, complusion [sic] or force, either physical or mental, or by reason of any promise made to the ■defendant, then you will not consider said statement for any purpose whatsoever.”
Following the trial and filing and overruling of a motion for a new trial by appointed counsel, other counsel, including -those now representing Stickney, entered -the case and filed an amended motion for new trial, attacking the admissibility of the conviction. On appeal to the Court of ■Criminal Appeals the judgment of conviction was affirmed. In its original opinion the court primarily discussed the weight of the evidence and certain procedural points not now in issue. Then, •on motion for re-hearing the appellate court dealt extensively with the attack on the admissibility of the confession. The •court took as true, as it was required to do, all the testimony of the officers, inasmuch as none of this was controverted ■either by the accused himself or by his mother or by the lawyer who represented him until after the statement had been signed. The Texas court found that the questioning and obtaining of the statement were not of such a character as to make the statement inadmissible as a matter of law.
With the transcript of the testimony .and the record of the State Court proceedings before him, the habeas corpus trial judge, without a further hearing on -the facts, made the following finding:
“Considering the first two counts together, I find that at the time of the written confession made by the petitioner, he had a competent counsel of his own choosing who had instructed him before the confession, both orally and in writing, not to make any statement, that he did not have to make any statement, and should not make a statement.
“I further find that at the time the confession was made petitioner was of mature age (past 20), educated (equivalent to a high school education), husky (five foot eleven inches in height and weighing 180 pounds), and a normal young man, who had served a full term of enlistment in the Army and until after the alleged homicide held a responsible position with the State of Texas. (See: Stickney v. State [Tex.Cr.App.], 336 S.W.2d 133.)
“I further find that the confession was freely and voluntarily made and that it was not made under any sense of fear or made as a result of any intimidation or coercion or as a result of any promises, and that the petitioner thoroughly understood the nature of the confession and contents thereof and knew that he was under no obligation of any kind to make it. See Leonard v. United States [9 Cir.], 278 F.2d 418, 421.”
In his petition for habeas corpus, the appellant, in colorful language containing a skillful mixture of fact and argument which is carried forward in his purported statement of fact in his brief in this Court, charges that he was questioned long hours, was kept from consultation with the counsel, prevented the opportunity to see his mother, was promised psychiatric treatment if he would confess, was subjected to public embarrassment by being questioned in the presence of newspaper and radio and television reporters and that he finally broke down and signed the statement prepared by others for his signature. This statement he now says was a complete fabrication.
There is nothing in the transcript of the state trial that suggests these facts, other than the fact that Stickney was in custody when the statement was made, that he voluntarily talked to newspaper and other news reporters and that he was frequently questioned on several different days. This was explained by the officers’ testimony that they were “checking out” statements he voluntarily made to them from time to time.
Whatever may have been the reason for their not having done so, Stickney’s two able trial lawyers did not offer a single line of evidence attacking the testimony of the prosecuting witnesses touching on the voluntariness of the statement or touching on the fact that it was dictated by Stickney himself over a period of an hour and a half to a stenographer, written down by her, and read by him before it was signed. If a habeas corpus court can accept and rely on the determination of the underlying fact issues relating to the voluntariness of a confession, as we think it can, Brown v. Allen, supra, it would be unthinkable if such right of reliance could be destroyed by the withholding of available evidence on the trial and its subsequent production for the first time on the habeas corpus hearing. We think, therefore, that the habeas corpus court had a right to give the finding of the state trial judge exactly the same weight and had the same right to accept it as if all of the matters now presented for the first time had been testified to on the trial and had been resolved against the appellant. This is so because no reason is assigned for the failure of appellant to put into the scales all he had to weigh them in his favor when the state court was passing on this very issue.
This record discloses no “vital flaw” in the state court proceedings. Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361. In fact a reading of the record discloses that the trial court and counsel for the accused meticulously guarded all rights of the accused and adequately and properly dealt with each matter presented on his behalf. This, then, leaves only the question as to whether on the “undisputed portions of the records” (Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 887, 2 L.Ed.2d 863) the trial court should have found that the confession was coerced as a matter of law. United States ex rel. Rogers v. Richmond, 2 Cir., 271 F.2d 364, 369.
We conclude that in no decided case has the Supreme Court held that the facts disclosed on this state court record would require such a holding. See United States ex rel. Petersen v. La Vallee, 2 Cir., 279 F.2d 396, certiorari denied 81 S.Ct. 289.
The complaint, separately made in the petition for habeas corpus, that appellant was denied effective aid of counsel in reality merges into the question heretofore discussed. It goes only to the question as to whether the incriminating statement was voluntary. It is not disputed that Stickney was represented until after the statement was given by counsel, who had ample time and opportunity, as found by the state court, to consult with his client, and in fact did so, and in fact strongly urged him not to give a statement. The state court record discloses that he had local counsel when he was arrested in Canada, he was met by counsel when he arrived at the Houston airport, he conferred with counsel on at least two occasions before making his statement and he was ably represented by counsel during the trial. The specific issue touching on the imagined effect of counsel’s inability to persuade Stickney not to give a statement was either ignored or decided against him on the same finding of voluntariness that we have heretofore discussed.
We conclude that the trial judge followed a permissible course of action when he accepted the determination of the state court on the fact issue of voluntariness in the absence of any “vital flaw” in such proceedings. His refusal to hold a de novo hearing on the same issue was not error, nor did he err in finding that the undisputed facts did not warrant a holding that Stickney had been deprived of his constitutional rights as a matter of law.
The judgment is affirmed.
. Lt. Doss, the officer in charge of the investigation, testified as follows:
“Q. Were you present when this statement was made? A. Yes sir, I was.
"Q. Was the statement which Howard B. Stickney made to you reduced to writing? A. Yes sir.
“Q. Was it signed in your presence? A. Yes sir.
“Q. Who signed it? A. Howard B. Stickney.
“Q. Prior to the time he made this statement to you, was a warning given to the defendant, Howard B. Stickney? A. Yes sir.
“Q. What warning was given to him? A. This warning that is at the head of the statement, the first paragraph.
“Q. What warning was that? A. T, Howard B. Stickney, after first being duly warned by W. O. Doss, the person to whom this statement is made, as follows: First, that I do not have to make any statement at all; second, that any statement made by me may be used in evidence against me in the trial or trials-of the offense or offenses concerning-which this statement is made, to hereby do made [sic] the following voluntary statement:’.
“Q. Lt. Doss, after the warning which-you have just read was given- to this-defendant, he made this statement to you- and signed it in your presence-? A. Yes-sir, he did.”
. Under Texas Law no statement made by the accused while so held and questioned' can be introduced into evidence unless written and signed by the accused. The-trial court and the prosecuting officer-strictly avoided the violation- of this rule. The only exceptions were as- to matters brought out by defense counsel and later-explained on re-direct examination. This is permissible under Texas law.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Alfonso J. CERVANTES, Appellant, v. TIME, INC., and Denny Walsh, Appellees.
No. 71-1555.
United States Court of Appeals, Eighth Circuit.
Submitted April 11, 1972.
Decided July 20, 1972.
Rehearing Denied Aug. 17, 1972.
Mortimer A. Rosecan, Rosecan & Pop-kin, St. Louis, Mo., for appellant.
Harold Medina, Jr., New York City, and D. Jeff Lance, Robert S. Allen, St. Louis, Mo., for appellees.
Before VAN OOSTERHOUT, Senior Circuit Judge, and MEHAFFY and STEPHENSON, Circuit Judges.
STEPHENSON, Circuit Judge.
Alfonso J. Cervantes is the mayor of Saint Louis, Missouri. In May 1970 there appeared in appellee’s Life magazine an article of 87 paragraphs accusing the mayor of maintaining “business and personal ties with the gangsters that operate in his city.” The article was entitled “The Mayor, The Mob and The Lawyer,” and captioned with a comment explaining: “Both the mayor and his new crime commissioner have personal ties to the underworld.” The substance of the article describes in some detail the relationship said to exist between Mayor Cervantes, Morris Shenker, a Saint Louis criminal lawyer and then the mayor’s appointee “to head [the] newly formed Commission on Crime and Law Enforcement,” and Tony Sansone who, according to the article, is “the mayor’s liaison with the two mobs that run the St. Louis underworld.”
Mayor Cervantes instituted this diversity libel action in the United States District Court for the Eastern District of Missouri seeking $2,000,000 compensatory and $10,000,000 punitive damages. He sought relief against and named as defendants the publisher of Life magazine and the reporter whose investigative efforts produced grist for the article. He alleged in his amended complaint that 4 paragraphs of the article contained false statements which were authored, published, and communicated with knowledge of their falsity or, alternatively, with reckless disregard as to their truth. The defendants answered raising both the defense of truth and constitutional privilege.
The mayor undertook extensive pre-trial discovery. He deposed the reporter who testified that he gathered information which formed the basis for most of the story from informants within the Federal Bureau of Investigation and within the United States Department of Justice. He revealed that these informants furnished him copies of confidential reports and orally transmitted additional and supplemental corroboratory information from which he constructed the events embodied in 3 of the 4 disputed paragraphs, but he refused, under repeated questioning, to divulge the names of the individuals from whom he extracted this information. That refusal was bottomed on the theories (i) that to assume a contrary position would be to subject his informants to retaliation or reprisals and physical danger; (ii) that compulsory disclosure of confidential sources would violate the First Amendment’s freedom of the press by impeding the dissemination of news which can be obtained only if he, as a professional journalist, may effectively guarantee anonymity of the source; and (iii) that he, as a professional journalist and as a resident and citizen of the State of New York, possesses a statutory reportorial privilege to withhold the source of news coming into his possession. The mayor promptly moved for an order to compel disclosure of the identity of the informant[s]. The defendants responded by moving for summary judgment on the ground that each had acted in good faith in publishing the article and that both believed all of the allegedly defamatory statements to be true.
The District Court (The Honorable James H. Meredith, Chief Judge), did not reach the merits of the motion to compel. However, on the basis of a well-developed record consisting of affidavits, depositions, and other documentary evidence, it entered summary judgment for the defendants on the grounds that neither defendant had knowledge of falsity, that neither entertained serious doubts as to the truth of any statement in the article, and that neither acted with reckless disregard for truth or falsity. 330 F.Supp. 936, 940 (1970). This appeal followed.
I
In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L. Ed.2d 686 (1964), it was established that the First and Fourteenth Amendments’ protection of speech and the press restrict the enforcement of State libel laws. Times accordingly held that a public official may recover damages “for a defamatory falsehood relating to his official conduct” only if he “proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280, 84 S.Ct. at 726. The holding of Times was reaffirmed and the reckless disregard aspect of its actual malice standard amplified in St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L.Ed.2d 262 (1968). The Court said with respect to this aspect of the constitutional standard:
“[Rjeekless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” 390 U. S., at 731, 88 S.Ct., at 1325.
It is clear, finally, that the conditional privilege granted by Times to false defamatory expression no longer is confined to statements concerning public officials. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), holds that constitutional protection is to be extended to “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” Id., at 44, 91 S.Ct., at 1820. Thus, “the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern.” 403 U.S., at 44, 91 S.Ct., at 1820.
Since the statements in suit are conceded by all to touch and concern issues of public or general concern, it is clear that Mayor Cervantes cannot, absent a showing of actual malice, recover damages under the Missouri law of defamation. The District Court con-eluded, and the defendants here suggest, that because substantial editorial effort was expended to secure independent corroboration of the published materials, the mayor cannot meet the applicable constitutional standard of proof.
II
Without question the article fashions a broadside attack on the ability of May- or Cervantes to perform responsibly in the governmental domain. It directs sharp and coarse comment both toward his official conduct and also his fitness for office. Indeed, the entire thrust of the article’s message is that the mayor, despite public pronouncements to the contrary, seemingly possesses substantial personal and business interest in the perpetuation of profitable criminal activity in this city. Yet in the face of this massive attack on his fitness to occupy his important office, the mayor takes issue with but 4 of the 87 paragraphs comprising the article. So far as the vast amount of the other material is concerned, its truth is either admitted or not explicitly denied. Thus, we are concerned here with only the comparatively few words said by the mayor to be false and defamatory, and as to these, he acknowledges that the burden is his to establish with “convincing clarity” deliberate or reckless error. Times, supra, 376 U.S. at 285-286, 84 S.Ct. 710, 11 L. Ed.2d 686.
Central to the mayor’s appellate attack is his contention that he cannot possibly meet his burden of proof if the reporter is allowed to hide behind anonymous news sources. He argues that in a libel case of this kind the identity of a reporter’s sources is absolutely essential to the successful outcome of the lawsuit. His arguments in favor of compulsory disclosure may be summarized as follows: [a] disclosure enables the plaintiff to scrutinize the accuracy and balance of the defendant’s reporting and editorial processes; [b] through disclosure it is possible to derive an accurate and comprehensive understanding of the factual data forming the predicate for the news story in suit; [c] disclosure assists successful determination of the extent to which independent verification of the published materials was secured; and [d] disclosure is the sole means by which a libeled plaintiff can effectively test the credibility of the news source, thereby determining whether it can be said that the particular source is a perjurer, a well-known libeler, or a person of such character that, if called as a witness, any jury would likely conclude that a publisher relying on such a person’s information does so with reckless disregard for truth or falsity. Moreover, these particularized considerations are said to assume extraordinary importance when, as in this case, the information forming the core of the publication by its nature is not available to the public generally and is obtainable only from governmental employees who are under a duty not to reveal it to outsiders. On the basis of these considerations, the mayor advanced arguments in the District Court that it should not reach the defense motion for summary judgment until he was given the opportunity to depose and examine the Federal Bureau of Investigation and Department of Justice employees who supplied Life’s reporter with confidential reports and corroboratory materials used in connection with the article. The failure of the District Court to respond favorably to this plea is urged as error here.
These arguments in behalf of compulsory disclosure of confidential news sources, when urged on behalf of a public official whose reputation and integrity have been assaulted on the basis of information supplied by those sources, do not strike us as frivolous. Especially is this so when much of the information supplied by the anonymous informants has been obtained from the private files of Government. Nevertheless, on the facts of this particular ease, we believe that in his preoccupation with the identity of Life’s news sources, the mayor has overlooked the central point involved in this appeal: that the depositions and other evidentiary materials comprising this record establish, without room for substantial argument, facts that entitled both defendants to judgment as a matter of law, viz., that, quite apart from the tactics employed in collecting data for the article, the mayor has wholly failed to demonstrate with convincing clarity that either defendant acted with "knowing or reckless disregard of the truth.
We are aware of the prior cases holding that the First Amendment does not grant to reporters a testimonial privilege to withhold news sources. But to routinely grant motions seeking compulsory disclosure of anonymous news sources without first inquiring into the substance of a libel allegation would utterly emasculate the fundamental principles that underlay the line of cases articulating the constitutional restrictions to be engrafted upon the enforcement of State libel laws. Such a course would also overlook the basic philosophy at the heart of the summary judgment doctrine.
Ill
Some twenty years ago, this court, in Traylor v. Black, Sivalls & Bryson, Inc., 189 F.2d 213 (CA8 1951), set forth the general policy of the circuit with regard to the entry of summary judgment. There it was said that:
“A summary judgment upon motion therefor by a defendant in an action should never be entered except where the defendant is entitled to its allowance beyond all doubt. To warrant its entry the facts conceded by the plaintiff, or demonstrated beyond reasonable question to exist, should show the right of the defendant to a judgment with such clarity as to leave no room for controversy, and they should show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances.” 189 F.2d, at 216. (Citations omitted).
Summary judgment, as the foregoing excerpt makes clear, is an extreme remedy to be granted only in those eases where there clearly is no genuine issue to be tried. But its extreme nature does not lighten the burden of a party against whom a motion therefor is interposed. Indeed, Fed.Rules Civ.Proc. Rule 56(e), 28 U.S.C.A., supplies the other side of the proposition recognized in Black, Sivalls & Bryson. In pertinent part, it is therein stated:
“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
This aspect of Rule 56(e) has been followed in prior decisions of this court, both in summary judgment cases generally, Lundeen v. Cordner, 354 F.2d 401, 407-408 (CA8 1966), and in First Amendment libel cases in particular, Hurley v. Northwest Publications, Inc., 398 F.2d 346 (CA8 1968), aff’g per curiam, 273 F.Supp. 967, 974-975 (D.Minn. 1967). It accords with recent constructions of Rule 56(e) by the Supreme Court, Adickes v. S. H. Kress & Company, 398 U.S. 144, 153, 160-161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), and it advances the important summary judgment objective of judicially assessing the proof to see where there is a genuine issue for trial.
Applying these rules to the ease before us, the compulsory disclosure issue is drawn into clearer focus. Where there is a concrete demonstration that the identity of defense news sources will lead to persuasive evidence on the issue of malice, a District Court should not reach the merits of a defense motion for summary judgment until and unless the plaintiff is first given a meaningful opportunity to cross-examine those sources, whether they be anonymous or known. For only then can it be said that no genuine issue remains to be tried. Thus, if, in the course of pretrial discovery, an allegedly libeled plaintiff uncovers substantial evidence tending to show that the defendant’s published assertions are so inherently improbable that there are strong reasons to doubt the veracity of the defense informant or the accuracy of his reports, the reasons favoring compulsory disclosure in advance of a ruling on the summary judgment motion should become more compelling. Similarly, where pretrial discovery produces some factor which would support the conclusion that the defendant in fact entertained serious doubt as to the truth of the matters published, identification and examination of defense news sources seemingly would be in order, and traditional summary judgment doctrine would command pursuit of further discovery prior to adjudication of a summary judgment motion. The point of principal importance is that there must be a showing of cognizable prejudice before the failure to permit examination of anonymous news sources can rise to the level of error. Mere speculation or conjecture about the fruits of such examination simply will not suffice. Hurley, supra, p. 974 of 273 F.Supp.
But such is not this case. As the opinion of the District Court makes clear, the record contains substantial evidence indicating that it was over a period of many months that Life’s reporter carefully collected and documented the data on the basis of which the article was written and published. In turn, Life’s key personnel, including one researcher, four editors and three lawyers, spent countless hours corroborating and evaluating this data. Once suit was instituted, the mayor was provided with hundreds of documents utilized in preparation of the article. He then deposed virtually every Life employee who possessed any connection whatever with the article’s preparation and publication and, with one exception, each affirmed his or her belief in the truth of the article and each gave deposition testimony sufficient to raise a strong inference that there was good reason for that belief. To rebut this evidence, and to support his claim that 4 of the 87 paragraphs conveyed false information, the mayor was content to present little more than a series of self-serving affidavits from himself and from Mr. Sansone, together with other evidentiary materials which framed but a minimal assault on the truth of the matters contained in the four paragraphs. Aside from this evidence, he has not produced a scintilla of proof supportive of a finding that either defendant in fact entertained serious doubts about the truth of a single sentence in the article. Neither has he come forward with competent evidence from which the District Court could reasonably discern the inherent improbability of the matters published. In short, the mayor’s proof simply does not meet the standard traditionally required of one against whom a motion for summary judgment is interposed.
We have mentioned long-standing decisions of the Supreme Court making clear that the mayor is obligated to demonstrate with convincing clarity that the materials he alleges to be defamatory were published with knowledge of their falsity or with reckless disregard for their truth.. Where, as here, the published materials, objectively considered in the light of all the evidence, must be taken as having been published in good faith, without actual malice and on the basis of careful verification efforts, that is, they were published in good faith without regard to the identity of the news sources, there is no rule of law or policy consideration of which we are aware that counsels compulsory revelation of news sources. Neither is there any evidence by which a jury could reasonably find liability under the constitutionally required instructions. When these factors conjoin, the proper disposition is to grant the defense motion for summary judgment. The judgment of the District Court must therefore be affirmed.
Affirmed.
. Mr. Shenker is characterized by the article as “the foremost lawyer for the mob in the U. S.” “His relations with some of the nation’s top hoodlums, Life’s investigations show, go far beyond legal representation.” The article describes Mr. Shenker as “a brilliant organizer of labyrinthine business and financial schemes which dazzle and befuddle the government,” and as one who “would have to do little more than to tell what he already knows about organized crime to go a long way toward breaking its back in St. Louis and several other places as well.”
. Life has this to say about Mr. Sansone:
“The man closest to Cervantes, as friend, business associate, campaign manager and unofficial but forceful influence around city hall, is Tony Sansone. A wealthy and socially prominent real estate and insurance man, Sansone is, to begin with, the son-in-law of Jimmy Michaels, a notorious gunman and gang leader whose record goes back to the shooting wars of the ’20s in St. Louis. Michaels runs the Syrian Mob, an ethnic gang that coexists these days as an ‘ally by treaty’ with the Sicilian Mafia family in St. Louis headed by Anthony Giardano. Michaels’ general franchise is the gambling and bookie operations in south St. Louis. He is also the most effective entrepreneur in either mob in politics and legitimate business.”
. The article was published under the reporter’s by-line. The record reveals that although ultimate editorial responsibility for the article’s content rested with Life’s Associate and Managing editors, the reporter shared, with others, draftsmanship duties.
. The mayor bases part of his action on the prepublication press release which Life dispatched to herald the coming of the article. The complaint charges that this release,:was transmitted by the publisher to radio and television stations throughout Missouri and elsewhere to stimulate reader interest. The release invited and authorized the media to announce that the forthcoming issue of Life would report that its years-long investigation disclosed, inter alia, that Mayor Cervantes has business and personal ties with the gangsters that operate in Saint Louis.
. This aspect of the reporter’s refusal is rooted in N.Y. Civil Eights Law, § 79-h (McKinney’s Consol.Laws, c. 6, 1970). Subparagraph (b) of the statute provides, in substance, that a professional journalist shall not be adjudged in contempt by any court for “refusing or failing to disclose any news or the source of any such news coming into his possession in the course of gathering or obtaining news for publication or to be published in a * * * magazine * * * by which he is professionally employed or otherwise associated in a news gathering capacity.” The law of Missouri recognizes no such privilege.
We have been referred to no New York cases defining the scope of this statutory privilege. Nor have we found a New York case affording precedent from which we can determine whether the statute draws a distinction based on the context in which the privilege is asserted. But see People v. Wolf, 329 N.Y.S.2d 291 (Sup.Ct. New York County 1972), and In Re WBAI-FM, 326 N.Y. S.2d 434 (Albany County Ct.1971).
The scope of discovery permitted by Fed.Eules Civ.Proc. Eule 26(b) (1), 28 U.S.C.A. is limited to matters not privileged. This case presents the somewhat unusual situation where a deposition is being taken in New York for use in an action based on diversity of citizenship pending in a United States District Court sitting in Missouri, and the witness, a citizen of New York, claims a testimonial privilege not recognized in Missouri. In determining the validity of the asserted statutory privilege, a court is faced with the question whether to apply federal law or State law; and, if State law is to control, is it to be applied under the so-called Erie doctrine, see Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), or under Fed.Rules, Civ. Proc. Rule 43(a), providing, inter alia, that evidence shall be admitted if it is admissible under the rules of evidence in the courts of the State in which the federal court is situate? Once these questions iiave been resolved, the court must determine whether to apply the law of the trial State or that of the deposition State.
This court long ago adopted the rule, said to comport with the “weight of authority”, see Massachusetts Mutual Life Insurance Company v. Brei, 311 F.2d 463, 465-466 (CA2 1962), that State, not federal, law is determinative of evidentiary problems arising in a diversity case. See, e. g., Bennett v. Wood, 271 F.2d 349, 351 (CA8 1959) (burden of proof); Severson v. Fleck, 251 F.2d 920, 923-924 (CA8 1958); and State Mutual Life Assurance Co. v. Wittenberg, 239 F.2d 87, 89-90 (CA8 1957) (burden of proof). Similarly, it is well-settled law that a federal diversity court must apply the choice-of-law rules of the State in which it sits, here Missouri. Klaxon Company v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Applying these rules, we note that Missouri seemingly adheres to the generally accepted principle that the admissibility of evidence is governed by the law of the State where the testimony is to be heard,. Rosser v. Standard Milling Company, Mo., 312 S.W.2d 106, 110 (1958), and Prentiss v. Illinois Life Ins. Co., Mo., 225 S.W. 695, 702 (1920). Thus, by this analysis, New York’s law as to the testimonial privilege of a journalist does not apply, and the reporter is entitled to no protection on that ground. Compare Application of Cepeda, 233 F. Supp. 465 (S.D.N.Y.1964). The same result would follow under application of the proposed Rules of Evidence for the United States Courts and Magistrates, albeit for different reasons. See 51 F. R.D. 315, 356, 358-360.
. Various aspects of the Missouri law of defamation have received the careful attention of this court in previous cases. See, e. g., Ruderer v. Meyer, 413 F.2d 175 (CA8 1969), certiorari denied 396 U.S. 936, 90 S.Ct. 280, 24 L.Ed.2d 235; Underwood v. Woods, 406 F.2d 910, 915 (CA8 1969); Walker v. Pulitzer Publishing Co., 394 F.2d 800 (CA8 1968); Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188 (CA8 1966); certiorari denied 388 U.S. 909, 87 S.Ct. 2097, 18 L.Ed.2d 1347; and Riss v. Anderson, 304 F.2d 188 (CA8 1962). The Missouri law recognizes a qualified privilege in the news media to comment on matters and persons of public concern so long as the account is fair and not actuated by malice. See e. g., Moritz v. Kansas City Star Co., 364 Mo. 32, 258 S.W.2d 583 (1953). This privilege is an affirmative defense which must be proven by the defendant. Walker v. Kansas City Star Co., Mo., 406 S.W.2d 44 (1966). See also Pulliam v. Bond, Mo., 406 S.W.2d 635 (1966).
. In his Reply Brief on this point the mayor asserts that most of the other material did not pertain to him. In the light of Mayor Cervantes’ relationship with Commissioner Shenker, however, a fair reading of the record leaves us with the contrary inference.
. The reporter freely admits and positively asserts that certain key information used in preparation of the article was “leaked” to him by anonymous governmental employees. The mayor contends that the reporter helped himself to confidential information from governmental files and, in so doing, incited a violation of regulations designated as “Prescribing Standards of Ethical Conduct for Government Officers and Employees,” issued by President Johnson under authorization of 3 U.S.C.A, § 301. Exec.Order No. 11,222, 30 Fed.Reg. 6469 (1965) provides in pertinent part, that
“Section 101. Where government is based on the consent of the governed, every citizen is entitled to have complete confidence in the integrity of his government. Each individual officer, employee, or adviser of government must help to earn and must honor that trust by his own integrity and conduct in all official actions.
“Section 205. An employee shall not make use of, or permit others to make use of, for the purpose of furthering a private interest, official information not made available to the general public.”
Purloined governmental documents have been before the courts before. See, e. g., New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), and Dodd v. Pearson, 279 F.Supp. 101 (D. DC 1968). Compare Liberty Lobby, Inc. v. Pearson, 129 U.S. App.D.C. 74, 390 F.2d 489 (1968).
. The weight of decisional authority so holds. See, e. g., Garland v. Torre, 259 F.2d 545, 548-549 (CA2 1958), certiorari denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231; State v. Buchanan, 250 Or. 244, 436 P.2d 729 (1968), certiorari denied, 392 U.S. 905, 88 S.Ct. 2055, 20 L.Ed.2d 1363; In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963); and In re Goodfader, 45 Haw. 317, 367 P.2d 472 (1961). See also, Adams v. Associated Press, 46 F.R.D. 439, 440-441 (SD Tex.1969); Application of Cepeda, n. 5, supra; Brewster v. Boston Herald-Traveler Corp., 20 F.R.D. 416 (D.Mass.1957); and Rosenberg v. Carroll (In re Lyons), 99 F.Supp. 629 (SD N.Y.1951). But see In re Grand Jury Witnesses, 322 F. Supp. 573, 576-578 (ND Cal.1970).
In two recent cases, however, it lias been held that a libel defendant’s refusal to reveal the identity of its news sources need not bar the entry of summary judgment in its favor. Konigsberg v. Time, Inc., 312 F.Supp. 848 (SD N.Y. 1970), and Cerrito v. Time, Inc., 302 F.Supp. 1071 (ND Cal.1969), aff’d per curiam, 449 F.2d 306 (CA9 1971). Implicit in each of these cases is tacit approval of the contention that the free flow of news obtainable only from anonymous sources is likely to be deterred absent complete confidentiality. Hence, each court seemed to reason that, absent a positive showing of relevance or materiality, a newsman need not divulge the identity of his confidential news informants.
Finally, in Branzburg v. United States, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (Caldwell v. United States) (1972), the Supreme Court was asked to address the constitutional aspects of grand jury efforts to acquire from professional journalists information about possible law violations committed by their news sources. See Caldwell v. United States, 434 F.2d 1081 (CA9 1970), certiorari granted, 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 109; In re Pappas, 226 N.E.2d 297 (Mass.1971), certiorari granted, ibid; and Branzburg v. Pound, 461 S.W.2d 345 (Ky.Ct.App.1970), certiorari granted, ibid. It was held, over 4 dissents, that a newsman does not possess a First Amendment privilege to refuse to answer relevant and material questions asked during a good-faith grand jury investigation. Noting that “the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability,” 408 U.S. at 682, 92 S.Ct. at 2657, the Court declined to exempt newsmen from the general obligation of all citizens “to answer questions relevant to an investigation into the commission of crime.” Ibid. The Court was not faced with and, therefore, did not address, the question whether a civil libel suit should command the quite different reconciliation of conflicting interests pressed upon us here by the defense.
. Indeed, as the Court observed in Caldwell, n. 9, supra, “without some protection for seeking out the news, freedom of the press could be eviscerated.” 406 U.S. at 681, 92 S.Ct., at 2656. Similarly, to compel a newsman to breach a confidential relationship merely because a libel suit has been filed against him would seem inevitably to lead to an excessive restraint on the scope of legitimate news-gathering activity.
. The single exception is this: one of Life’s house counsel testified only that he had authenticated the genuineness of certain Government documents which had come into the possession of Life’s reporter. He did not purport to pass on the truth or falsity of these purloined materials. This same employee formerly had served as Chief of the Department of Justice’s Organized Crime section.
. Caldwell makes clear that harassment of the press undertaken not for legitimate reasons is without justification. 408 U.S. 665, 92 S.Ct. 2646 (opinion of Powell, J.). To compel disclosure under; the circumstances shown by this record would seem to constitute precisely the harassment Caldwell seeks to curb.
. Cf. Thompson v. Evening Star Newspaper, 129 U.S.App.D.C. 299, 394 F.2d 774, 776 (1968), certiorari denied, 393 U.S. 884, 89 S.Ct. 194, 21 L.Ed.2d 160; Markus v. Penn Mutual Life Insurance Co., 128 U.S.App.D.C. 368, 389 F.2d 538, 545, n. 9 (1967) ; and Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 968 (1966), certiorari denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L. Ed.2d 548.
. The result we reach in the instant case is not to be construed as precedent for the proposition that news
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appel1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
POLYMER PROCESSES, INC., Plaintiff-Appellant, v. CADILLAC PLASTIC & CHEMICAL CO., Inc., Defendant-Appellee.
No. 15645.
United States Court of Appeals Sixth Circuit.
Nov. 2, 1964.
John T. Synnestvedt, Philadelphia, Pa., William P. Cole, Philadelphia, Pa., on brief; Whittemore, Hulbert & Belknap, Detroit, Mich., Synnestvedt & Lechner, Philadelphia, Pa., of counsel, for appellant.
Charles J. Merriam, Chicago, 111., Basil P. Mann, Chicago, 111., on brief; Merriam, Smith & Marshall, Chicago, 111., Cullen, Sloman & Cantor, Detroit, Mich., of counsel, for appellee.
Before PHILLIPS and EDWARDS, Circuit Judges, and PRETTYMAN, Senior Circuit Judge.
. Senior Circuit Judge E. BARRETT PRETTYMAN, of the District of Columbia Circuit, sitting by designation.
ORDER AFFIRMING JUDGMENT OF THE DISTRICT COURT.
This is an action for patent infringement, involving the continuous production of large diameter rod stock from nylon, on appeal from the United States District Court for the Eastern District of Michigan, Southern Division. The District Judge, the Honorable Talbot Smith, rendered a comprehensive opinion holding that the claims of patent asserted by plaintiff are invalid for lack of patentable invention and have not been infringed by defendant. The case has been presented to this court upon briefs and oral argument.
Upon consideration, we find no error in the judgment of the District Court. It is ordered that the judgment of the District Court be and hereby is affirmed upon, the basis of the opinion of the District. Judge reported in 220 F.Supp. 563.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
sc_jurisdiction
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
UNITED STATES v. MINKER.
NO. 35.
Argued November 14, 1955.
Decided January 16, 1956.
Marvin E. Frankel argued the cause for the United States in No. 35 and for respondent in No. 47. With him on the briefs were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Carl H. Imlay.
Jacob Kossman argued the cause and filed a brief for respondent in No. 35.
George Morris Fay argued the cause for petitioners in No. 47. With him on a brief was John P. Burke. Anthony S. Falcone also filed a brief for petitioners in No. 47.
Mr. Justice Frankfurter
delivered the opinion of the Court.
Because of conflicting constructions by the Courts of Appeals for the Second and Third Circuits of § 235 (a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 198, we brought these cases here. 349 U. S. 904; 349 U. S. 927. They were heard in sequence, and, since minor differences in their facts are irrelevant to the problems now before us, they may be disposed of in one opinion.
Section 235 (a) provides that any immigration officer “shall have power to require by subpena the attendance and testimony of witnesses before immigration officers . . . relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the. administration of the Service, and to that end may invoke the aid of any court of the United States.” The controlling issue presented by these cases is whether this section empowers an immigration officer to subpoena a naturalized citizen who is the subject of an investigation by the Service, where the purpose of the investigation is to determine if good cause exists for the institution of denaturalization proceedings under § 340 (a) of the Act.
In No. 35, the District Director of the Immigration and Naturalization Service at Philadelphia, in accordance with § 340.11 of the Service’s regulations, instituted an investigation of respondent for the aforementioned purpose. In furtherance of this inquiry into the legality of Minker’s naturalization the Director subpoenaed him to give testimony at the offices of the Service. Prior to the required date of his appearance, he moved to quash the subpoena in the United States District Court for the Eastern District of Pennsylvania upon the ground, inter alia, that it was unauthorized by the Act. This motion was denied, In re Minker, 118 P. Supp. 264, and no appeal was taken. When respondent thereafter failed to obey the subpoena, the District Court, on application of the District Director, ordered respondent to appear before the Service and testify. He disregarded this order. After a hearing he was adjudged in contempt for so doing and fined $500. The Court of Appeals for the Third Circuit reversed, holding that while the power to subpoena under § 235 (a) was available for investigations directed toward denaturalization proceedings, respondent as a putative defendant in such a proceeding was not a “witness” within the meaning of the section, and the Service was, therefore, without power to subpoena him. 217 F. 2d 350.
In No. 47, each petitioner was served with a subpoena issued by the officer in charge of the Immigration and Naturalization Service at Syracuse, New York. The subpoenas commanded petitioners’ appearance and testimony, and required them to produce specified documents. They appeared with documents as ordered, but refused to be sworn or to testify. Thereupon an application for an order of compliance was made by the Service in the United States District Court for the Northern District of New York; but the court, denying the Service’s authority, refused to compel petitioners to appear and give testimony. 116 F. Supp. 464. On appeal, to the Court of Appeals for the Second Circuit, this judgment was reversed. 219 F. 2d 137. The court held that § 235 (a) of the Act permitted the immigration officer to subpoena the petitioners in furtherance of the Service’s investigation of them under § 340.11 of the regulations. The decision assumed, although the court did not discuss the question, that each petitioner, even though a subject of investigation, was a “witness” within the meaning of § 235 (a).
This brings us to an examination of the scope of § 235 (a). It had its genesis in § 16 of the Immigration Act of 1917, 39 Stat. 874, 885, which dealt with the examination of entering aliens by the Immigration Service. With respect to subpoenas the section provided: “Any commissioner of immigration or inspector in charge shall also have power to require by subpoena the attendance and testimony of witnesses before said inspectors and the production of books, papers, and documents touching the right of any alien to enter, reenter, reside in, or pass through the United States, and to that end may invoke the aid of any court of the United States . . . .” Obviously, this provision strictly defined the purposes for which officers of the Service could subpoena witnesses. It did not give them power to issue subpoenas as aids in investigating potential naturalization offenses.
The 1952 Act in § 235 (a) retained the substance of this language in § 16. But the word “alien” was changed to “person,” and additional language extended the subpoena power to “any matter which is material and relevant to the enforcement of this Act and the administration of the Service.” If the additional clause, following the portion “relating to the privilege of any person to enter, reenter, reside in, or pass through the United States,” had merely read “and any other matter which is material and relevant,” the doctrine of ejusdem generis would appropriately be invoked to limit the subpoena power to an investigation pertaining to questions of admission and deportation. The comprehensive addition of the clause “or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service,” precludes such narrowing reading. “Act” encompasses the full range of subjects covered by the statute. The Immigration and Nationality Act of 1952 brought together in one statute the previously atomized subjects of immigration, nationality and naturalization. The unqualified use of the word “Act” in § 235 (a), if read as ordinary English, embraces all of these subjects even though § 235 (a) is itself in the immigration title of the statute. But “the title of a statute and the heading of a section cannot limit the plain meaning . . . .” Brotherhood of Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529. Throughout this statute the word “Act” is given its full significance. . The word embraces the entire statute. On the other hand, when only a particular title is referred to, it is designated as such, and when the reference is to a section, that word is employed. No justification appears for treating “Act” in § 235 (a) as meaning “section.” Thus far the Second and Third Circuits are in agreement.
We come then to the question upon which the two Courts of Appeals part ways in their construction of § 235 (a), namely, whether Salvatore and Joseph Falcone in the one case and Abraham Minker in the other, although each the subject of a denaturalization investigation under § 340.11 of the regulations, were “witnesses” within the meaning of the power given to “any immigration officer” to require “by subpoena the attendance and testimony of witnesses” before immigration officers.
If the answer to the question merely depended upon whether, as a matter of allowable English usage, the word “witness” may fairly describe a person in the position of Minker and the Falcones, it could not be denied that the word could as readily be deemed to cover persons in their position as not. In short, the word is patently ambiguous: it can fairly be applied to anyone who gives testimony in a proceeding, although the proceeding immediately or potentially involves him as a party, or it may be restricted to the person who gives testimony in another’s case.
It is pertinent to note the breadth of § 235 (a) not only with respect to the type of investigation in which a subpoena may be issued (“any matter which is material and relevant to the enforcement of this Act”), but also with respect to the member of the Service empowered to issue it. The power is granted “any immigration officer,” who in turn is defined in § 101 (a) (18) of the Act as “any employee or class of employees of the Service or of the United States designated by the Attorney General, individually or by regulation, to perform the functions of an immigration officer specified by this Act or any section thereof.” This extensive delegated authority reinforces the considerations inherent in the nature of the power sought to be exercised that make for a restrictive reading of the Janus-faced word “witness.” The subpoena power “is a power capable of oppressive use, especially when it may be indiscriminately delegated and the subpoena is not returnable before a judicial officer. . . . True, there can be no penalty incurred for contempt before there is a judicial order of enforcement. But the subpoena is in form an official command, and even though improvidently issued it has some coercive tendency, either because of ignorance of their rights on the part of those whom it purports to command or their natural respect for what appears to be an official command, or because of their reluctance to test the subpoena’s validity by litigation.” Cudahy Packing Co., Ltd. v. Holland, 315 U. S. 357, 363-364.
These concerns, relevant to the construction of this ambiguously worded power, are emphatically pertinent to investigations that constitute the first step in proceedings calculated to bring about the denaturalization of citizens. See Schneiderman v. United States, 320 U. S. 118; Baumgartner v. United States, 322 U. S. 665. This may result in “loss of both property and life; or of all that makes life worth living.” Ng Fung Ho v. White, 259 U. S. 276, 284. In such a situation where there is doubt it must be resolved in the citizen’s favor. Especially must we be sensitive to the citizen’s rights where the proceeding is nonjudicial because of “[t]he difference in security of judicial over administrative action . . . .” Ng Fung Ho v. White, supra, at 285.
These considerations of policy, which determined the Court’s decisions in requiring judicial as against administrative adjudication of the issue of citizenship in a deportation proceeding and those defining the heavy criterion of proof to be exacted by the lower courts from the Government before decreeing denaturalization, are important guides in reaching decision here. They give coherence to law and are fairly to be assumed as congressional presuppositions, unless by appropriate explicitness the lawmakers make them inapplicable. Cf. Bell v. United States, 349 U. S. 81, 83. It does not bespeak deprecation of official zeal, nor does it bring into question disinterestedness, to conclude that compulsory ex parte administrative examinations, untrammelled by the safeguards of a public adversary judicial proceeding, afford too ready opportunities for unhappy consequences to prospective defendants in denaturalization suits.
These general considerations find specific reinforcement in the language of other provisions of the Act, wherein the person who is the subject of an investigation is referred to with particularity. The most striking example of this is to be found in § 335 and its legislative history which pertains to the investigation of an alien who petitions for naturalization. Section 335 (b) provides: “The Attorney General shall designate employees of the Service to conduct preliminary examinations upon petitions for naturalization .... For such purposes any such employee so designated is hereby authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any petitioner for naturalization, to administer oaths, including the oath of the petitioner for naturalization and the oaths of petitioner’s witnesses to the petition for naturalization, and to require by subpena the attendance and testimony of witnesses, including petitioner . . . Contrast this with § 335 (b)’s predecessor, § 333 (a) of the Nationality Act of 1940, 54 Stat. 1137, 1156: . . any such designated examiner is hereby authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any petitioner for naturalization, to subpena witnesses, and to administer oaths, including the oath of the petitioner to the petition for naturalization and the oath of petitioner’s witnesses.” Other examples of Congress’ careful differentiation between a witness who is not the subject of an investigation and the person who is, may be found in §§ 236 (a), 242 (b) and 336 (d) of the 1952 Act.
All these considerations converge to the conclusion that Congress has not provided with sufficient clarity that the subpoena power granted by § 235 (a) extends over persons who are the subject of denaturalization investigations; therefore Congress is not to be deemed to have done so impliedly. Since this is so, we are not called upon to consider whether Congress may empower an immigration officer to secure evidence, under the authority of a subpoena, from a citizen who is himself the subject of an investigation directed toward his denaturalization. The judgment in No. 35 is affirmed; in No. 47, the judgment is reversed.
Affirmed and reversed respectively.
Section 235 (a) in full provides: “The inspection, other than the physical and mental examination, of aliens (including alien crewmen) seeking admission or readmission to, or the privilege of passing through the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe. Immigration officers are hereby authorized and empowered to board and search any vessel, aircraft, railway car, or other conveyance, or vehicle in which they believe aliens are being brought into the United States. The Attorney General and any immigration officer, including special inquiry officers, shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, pass through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service, and, where such action may be necessary, to make a written record of such evidence. Any person coming into the United States may be required to state under oath the purpose or purposes for which he comes, the length of time he intends to remain in the United States, whether or not he intends to remain in the United States permanently and, if an alien, whether he intends to become a citizen thereof, and such other items of information as will aid the immigration officer in determining whether he is a national of the United States or an alien and, if the latter, whether he belongs to any of the excluded classes enumerated in section 212. The Attorney General and any immigration officer, including special inquiry officers, shall have power to require by subpena the attendance and testimony of witnesses before immigration officers and special inquiry officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service, and to that end may invoke the aid of any court of the United States. Any United States district court within the jurisdiction of which investigations or inquiries are being conducted by an immigration officer or special inquiry officer may, in the event of neglect or refusal to respond to a subpena issued under this subsection or refusal to testify before an immigration officer or special inquiry officer, issue an order requiring such persons to appear before an immigration officer or special inquiry officer, produce books, papers, and documents if demanded, and testify, and any failure to obey such order of the court may be punished by the court as a contempt thereof.”
Section 340 (a) provides: “It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 310 of this title in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: Provided, That refusal on the part of a naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted of contempt for such refusal, shall be held to constitute a ground for revocation of such person's naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation. If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceedings may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence.”
8 CFR § 340.11 provides: “Investigation and report. Whenever it appears that any grant of naturalization may have been procured by concealment of a material fact or by wilful misrepresentation, the facts shall be reported to the district director having jurisdiction over the naturalized person’s last known place of residence. If the district director is satisfied that a prima facie showing has been made that grounds for revocation exist, he shall cause an investigation to be made and report the facts in writing to the Commissioner with a recommendation as to whether revocation proceedings should be instituted. If it appears that naturalization was procured in violation of section 1425 of Title 18 of the United States Code, the facts in regard thereto may be presented by the district director to the appropriate United States Attorney for possible criminal prosecution.”
The question whether respondent was required to obey the order of the District Court irrespective of that court’s power under § 235 (a) has not been raised. See United States v. United Mine Workers of America, 330 U. S. 258.
The Court of Appeals for the Fifth Circuit has taken the same view. Lansky et al. v. Savoretti, 220 F. 2d 906.
E. g., § 215 (g): “Passports, visas, reentry permits, and other documents required for entry under this Act may be considered as permits to enter for the purposes of this section.” § 241 (a) (2): “Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who — entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this Act or in violation of any other law of the United States.” § 290 (a): “There shall be established in the office of the Commissioner for the use of the security and enforcement agencies of the Government of the United States, a central index, which shall contain the names of all aliens heretofore admitted to the United States, or excluded therefrom, insofar as such information is available from the existing records of the Service, and the names of all aliens hereafter admitted to the United States, or excluded therefrom, the names of their sponsors of record, if any, and such other relevant information as the Attorney General shall require as an aid to the proper enforcement of this Act.”
E. g., §284: “Nothing contained in this title shall be construed so as to limit, restrict, deny, or affect the coming into or departure from the United States of an alien member of the Armed Forces of the United States who is in the uniform of, or who bears documents identifying him as a member of, such Armed Forces, and who is coming to or departing from the United States under official orders or permit of such Armed Forces: Provided, That nothing contained in this section shall be construed to give to or confer upon any such alien any other privileges, rights, benefits, exemptions, or immunities under this Act, which are not otherwise specifically granted by this Act.”
“While the Nationality Act [§ 333 (a) of the 1940 Act] provides for subpena of witnesses at a preliminary [naturalization] hearing and for calling of witnesses in any naturalization proceedings in court, specific provision is not made for subpenaing the petitioner. The subcommittee feels that the proposed bill should contain the requirement that the petitioner be required to attend hearings and is so recommending.” S. Rep. No. 1515, 81st Cong., 2d Sess. 739.
Section 236 (a) provides: “A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and cross-examine the alien or witnesses.”
Section 242 (b) provides: “A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation.”
Section 336 (d) provides: “The Attorney General shall have the right to appear before any court in any naturalization proceedings for the purpose of cross-examining the petitioner and the witnesses produced in support of the petition concerning any matter touching or in any way affecting the petitioner’s right to admission to citizenship, and shall have the right to call witnesses, including the petitioner, produce evidence, and be heard in opposition to, or in favor of, the granting of any petition in naturalization proceedings.”
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_genresp2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
WARD v. DEAVERS et al. YOUNG et al. v. WARD.
Nos. 11070, 11312.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 22, 1952.
Decided March 26, 1953.
Mr. Emory H. Guy, Washington, D. C., for appellant Ellen M. Ward in case No. 11070 and for appellee Ellen M. Ward in case No. 11312.
Mr. Byron N. Scott, Washington, D. C., for appellees C. J. Young and Lane Pastor in case No. 11070 and for appellants C. J. Young and Lane Pastor in case No. 11312.
Mr. Dickson R. Loos, Washington, D. C., with whom Mr. Alexander M. Heron, Washington, D. C., was on the brief, for appellee The Aetna Casualty & Surety Company in case No. 11070.
Mr. Jo V. Morgan, Jr., Washington, D. C., with whom Messrs. John J. Wilson and Harry L. Ryan, Jr., Washington, D. C., were on the brief, for appellee Maryland Casualty Company in case No. 11070.
Before EDGERTON, WILBUR K. MILLER and WASHINGTON, Circuit Judges.
WASHINGTON, Circuit Judge.
These appeals grow out of a suit brought by Mrs. Ellen Ward, to rescind certain transactions whereby she acquired a rooming-house business.
One Deavers was the principal owner of the business in question, which was conducted in leased premises. Under the lease, Deavers could be required to quit the premises within 60 days, if the owner should at any time sell the property. In April 1945, Deavers contracted to sell the business to defendant Belew. Belew took over the business and served as its manager under a “Manager’s Operating Agreement” with Deavers. He did not acquire title to the business, but by February 1946 he had a $3,400 equity in it.
In October 1945 the business was offered for sale for $11,000 through defendants-appellants Young and Pastor, partners in a business-chance brokerage firm licensed in the District of Columbia. Plaintiff Ward, who had previously bought a similar — and entirely satisfactory — business through these brokers, investigated the proposal with the-aid of one of their employees. Shortly thereafter she put up $1,000, and offered to buy the business. Belew accepted the offer as “owner.” The sale hung in suspense, for various reasons, until mid-February of 1946, when Pastor, with whom plaintiff had been dealing for the most part, renewed his efforts to complete it. On February 14, Mrs. Ward raised her deposit to $2,500 and signed a new sales contract with Belew as owner. The next day she signed a “Manager’s Operating Agreement” offered by Deavers and similar to that he had given Belew, in lieu of a bill of sale. By its terms she was to pay Deavers part of the purchase price in installments during the remaining 13months of the lease on the premises, thereby acquiring the right to purchase the assets and good will of the business at the expiration of the lease for a nominal sum. At the same time, plaintiff gave Deavers a note for $4,000, covering the installments and final payment due him, and another note for $3,400 which he immediately indorsed to Belew “without recourse,” evidently to cover Belew’s equity in the business. She also executed a note for the balance of the purchase price — $1,100—to Young and Pastor, covering their commission on the transaction. Plaintiff entered into possession immediately. Within three months the premises were sold and within seven months the new owner demanded possession. Approximately ten months after she bought the business, plaintiff surrendered the premises in which it was conducted.
After the new owner’s demand for possession, plaintiff brought this action in the United States District Court for the District of Columbia. Her complaint was entitle “Complaint for Rescission of Business Sales Contract; the Cancellation of a Certain Manager’s Operating Contract, and of Certain Promissory Notes Representing Part of Consideration of said Business Sales Contract.” The prayer for relief asked that these contracts and notes be surrendered to the court "by [for?] cancellation,” that plaintiff’s total cash investment in the business be returned, that the court “ascertain the expenses and damages suffered by plaintiff” and enter judgment therefor, and that further just and proper relief be granted. Plaintiff named as defendants, and served, Pastor and his statutory surety, Young and his statutory surety, and Belew. Other named defendants, among them Deavers, were never validly served with process, and the action proceeded without them. The court, after trial without a jury, entered a Memorandum Opinion in which it made findings of fraud, concealment and damage, and concluded “as a matter of law, that the plaintiff is entitled to rescind and she is to have judgment to that effect.” Then, seeking to restore the status quo ante, it entered money judgments against Pastor, Young and Belew, and decreed that “all notes * * * executed by plaintiff and arising out of this transaction, are herewith can-celled.” Neither contract was specifically rescinded in the judgment. Plaintiff, dissatisfied with the sums awarded and the court’s dismissal of the action “without prejudice” as to the two defendant sureties, appealed. Defendants Young and Pastor, dissatisfied with any finding for the plaintiff, filed a counter-appeal.
In their counter-appeal, the brokers contend that Deavers was an indispensable party and that by reason of his absence the trial court “was without jurisdiction to hear the case.” The issue thus presented requires resolution at the outset. It is settled that “Rescission of a contract, or declaration of its invalidity, as to some of the parties, but not as to others, is not generally permitted.” Roos v. Texas Co., 2 Cir., 1927, 23 F.2d 171, 172. In this case there were two writings' — the sales contract of February 14 signed by the parties Ward and Belew, and the Manager’s Agreement of February 15 signed by Mrs. Ward and by Deavers, who was not a party to this suit. It seems reasonably clear that the sales contract of February 14 became a nullity on February 15 by merger in the Manager’s Agreement. But even if it did not, we think it was not severable from the rest of the transaction for separate rescission, though the formal parties to it were before the court. Nor could the remainder of the transaction—the Manager’s Agreement, signed by Deavers—be rescinded in the absence of Deavers. “[T]here is a general rule that where rights sued upon arise from a contract all parties to it must be joined.” Gauss v. Kirk, 1952, 91 U.S.App.D.C. 80, 198 F.2d 83, 84. Under the agreement, Deavers was entitled, inter alia, to prompt monthly payment of $250 for 13% months, or, failing this, restoration of the premises “with all of the equipment, furnishings, stock in trade, or other chattels therein contained * * unencumbered and in good condition. He was an indispensable party because a final decree rescinding the agreement could hardly be made without “affecting” his interest, Shields v. Barrow, 1854, 17 How. 130, 136, 15 L.Ed. 158. Because the transaction could not be rescinded as to Deavers, it could not be rescinded at all. Roos v. Texas Co., supra.
Although the District Court lacked jurisdiction to rescind, it did not therefore lack jurisdiction “to hear the case,” as Young and Pastor contend. Since the complaint alleged that “the entire transaction was fraudulent,” and that others beside Deavers were implicated, the court should have considered whether relief other than rescission should not be granted, despite Deavers’ absence, against parties actually before the court. Rule 54(c) of the Federal Rules of Civil Procedure, 28 U.S. C.A., requires that the court’s final judgment “grant the relief to which the party in' whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Such a situation may present an occasion for application of Rule 19(b) of the Federal Rules of Civil Procedure. See Gauss v. Kirk, supra, 91 U.S. App.D.C. 80, 198 F.2d at page 86. On the other hand, if the court finds that plaintiff was entitled to tort damages against persons actually served Deavers’ presence before the court is neither indispensable nor necessary.
We turn now to the merits of the case. The trial court’s ultimate finding that fraud was committed by the brokers and by Belew appears to be based on its findings (1) that “all of the defendants concealed from the plaintiff the fact that Belew was not the owner of the property in question,” and (2) that there were “outstanding two other sales agreements of the same property.” (Memorandum Opinion.)
We find no adequate support in the record for the first of these basic findings. Plaintiff knew that both Deavers and Belew were interested in the business (Complaint, par. 7; Tr. 72, 75). She knew that neither one was owner of the real estate itself (Complaint, par. 7). She dealt with both men, and clearly knew she was buying up their respective interests in the business. We find no evidence of misrepresentation as to Belew’s interest, much less any misrepresentation in that regard on which plaintiff relied and acted with consequent injury. Cf. Imperial Assurance Co. of N. Y. v. Joseph Supornick & Son, 8 Cir., 1950, 184 F.2d 930, 934.
Again, we think the “two other sales agreements of the same property” afford no basis for the relief attempted. The court no doubt refers to the 1945 agreement-between Deavers- and Belew and to a contract made in 1946 between Deavers and a Mrs. Restine. The first of these was superseded by the plaintiff’s purchase of the business. Belew joined in the transfer to her, and effectively parted with his interest. As to the contract between Deavers and Mrs. Restine entered into in January 1946: there is nothing to indicate that it was ever made the basis of any claim against Mrs. Ward or anyone else, or that any injury was caused plaintiff by it, or that any misrepresentation in connection with it was ever made to her.
If the trial court's general finding of fraud is to be sustained, it must be on other grounds, not specified iby the court. We have reviewed the entire transcript of testimony, but find nothing in it which so decisively points to fraud as to dispense with the need for specific findings. We have considered whether to reverse outright, under the doctrine that fraud must be clearly and convincingly shown. Public Motor Service v. Standard Oil Company of New Jersey, 1938, 69 App.D.C. 89, 91, 99 F.2d 124, 126. But we recognize that the evidence here on many points is conflicting, and that the trial court, which heard the witnesses, is in a much better position than we to reach a conclusion on the question of fraud. Cf. Wynne v. Boone, 1951, 88 U.S. App.D.C. 363, 191 F.2d 220. Accordingly, we think the case should be remanded. Plaintiff must, of course, show fraud committed by or imputable to the defendants who are actually before the court, in order to justify relief as against them. And she must show that the fraud caused the injury of which she complains: damages therefor must be measured by the usual tests of causality rather than by ah effort to restore the status quo ante. Cf. Draisner v. Lowenstein, 1952, 91 U.S.App.D.C. 98, 198 F.2d 295. Here, again, new findings are called for. Upon remand, the court should also reexamine its dismissal of the action, without prejudice, as to the statutory sureties of Young and Pastor. Absent good reason for declining to decide it, we think the issue of the sureties’ liability should be settled finally in the present action. No such reason appears in the record before us.
For the foregoing reasons, the judgment will be
Reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
. The $3,400 note indorsed to Belew and the $1,100 note to Young and Pastor were at first issued in the form of a $4,500 note payable directly to Belew. The latter note was destroyed when the two replacements for it were executed.
. Young’s surety as a licensed broker was Maryland Casualty Company; Pastor’s was Aetna Casualty , Surety Company. Their bonds were written pursuant to Section 45-1405 of the D.C.Code (1951).
. Later designated in its judgment to serve as its Findings of Fact and Conclusions of Law.
. That rule provides: “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 o.r if, though they are subject to its jurisdiction, their join-der 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.”
. “Tort feasors are not indispensable or necessary to an action against one of their number, because ■ their liability is both joint and several.” 3 Moore’s Federal Practice, par. 19.07; Wells v. Universal Pictures Co., 2 Cir., 1948, 166 F.2d 690; Carl Gutmann & Co. v. Rohrer Knitting Mills, D.C., 1949, 86 F.Supp. 506, Id., 9 F.R.D. 67.
. See supra note 1.
. Certainly, under the circumstances, there was no fraud in Belew’s signing as “owner,” when Deavers also became obligated.
. The contract was apparently abandoned when Mrs. Restine committed suicide a few days after signing ■ it, and before Mrs. Ward’s second offer on the business.
. If, upon the remand, the court proceeds to an award of damages against any defendant properly served who remains in possession of notes arising from this transaction, cancellation thereof by physical destruction as an offset to the award may then bo within the range of proper relief. See Annotation, 109 A.L.R. 1032.
. See supra note 2.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond1_7_2
|
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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES v. SORCEY.
No. 8848.
Circuit Court of Appeals, Seventh Circuit.
Nov. 17, 1945.
Rehearing Denied Dec. 7, 1945.
Eugene J. Sullivan and Royal M. Galvin, both of. Milwaukee, Wis., for appellant.
Timothy T. Cronin and E. J. Koelzer, U. S. Atty., both of Milwaukee, Wis., for appellee.
Before EVANS, SPARKS, and KERN-ER, Circuit Judges.
KERNER, Circuit Judge.
Defendant appeals from a judgment rendered on a verdict of guilty upon an indictment in four counts. The first three counts charged him and Martin King, Dominick Rizzo, Anthony Cicerello, and Sebastian Vermiglio with possessing, selling and transferring, and with intent to sell and transfer or otherwise use, certain United States Federal Reserve notes in violation of 18 U.S.C.A. §§ 264, 265, and 268. The fourth count charged the defendant with conspiring with others to commit an offense against the United States by unlawfully possessing, receiving, exchanging, transferring and using with intent to defraud, falsely made, forged and counterfeit obligations of the United States in violation of 18 U.S.C.A. § 88.
At the trial the evidence for the Government consisted of the testimony of James Carter, an accomplice, four treasury department agents, a Chicago police officer, and several other witnesses. From the evidence the jury might have found the following facts: Sometime in 1944, Carter, Sorcey, and one Volpe formed a partnership to operate a tavern. The license was granted to Volpe. Carter obtained a bartender’s license and managed the tavern, but because of Carter’s criminal record the license was revoked, and on July 1, 1944, Sorcey bought Carter’s interest in the tavern.
On June 26, 1944, Sorcey and King called Carter into the back room of the tavern, told him that they had some “queer,” that is, counterfeit money, and wanted to know if he knew anyone who would buy it. King produced ten or twelve $20 bills, saying some of them were phony, and Sorcey showed him a couple of “hundred dollar” counterfeit bills. On August 9 Sorcey told him, “Cokie Joe (defendant Cicerello) is over in Chicago,” “he is passing those phoney bills like a house afire,” and “He wants you to go with him.” July 11, Vermiglio gave Carter fifteen $20 counterfeit bills and told him to call Sorcey. Carter, Sorcey, and Cicerello met the next morning and Sorcey gave Carter additional counterfeit bills, and thereafter Carter and Cicerello drove to several cities in Indiana and passed the $20 bills. One of the bills was passed by Cicerello in a restaurant operated by a Mrs. Kirkpatrick in Chicago, Illinois. On the return trip Carter was arrested at Chicago and eight of the $20 counterfeit bills were found on his person.
Sorcey did not take the stand, and the evidence against him consisted principally of Carter’s testimony as to what passed between him and defendant and the testimony of treasury department agents who testified as to conversations between Sorcey and Carter, as well as to his conduct after Carter’s arrest. Under this state of the record, there can be no question of the sufficiency of the evidence; consequently, defendant’s motion for a directed verdict was properly overruled. Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann.Cas.1917B 1168.
Defendant complains of the refusal to give a requested instruction on the weight to be accorded the testimony of an accomplice. We find no merit in this contention.
There is no requirement that any specifically framed charge be given if the general charge includes fair, comprehensive instructions upon the subject-matter involved, and in framing a charge upon the elements bearing upon credibility of witnesses, the court is not to be bound to a hard and fast formula as to each and every phase of his charge. Wainer v. United States, 7 Cir., 82 F.2d 305, and United States v. Pape, 2 Cir., 144 F.2d 779, 781. Here, the record reveals that Carter was not only an accomplice, but it also showed that he had been convicted of a felony. The court told the jury that the testimony of a witness who has been convicted of a crime may not be as worthy of belief as one who has never been convicted and that his testimony -should be taken with caution. It called attention to the witness’s testimony as to the part he had played in violating the law, and instructed the jury to scrutinize carefully this evidence in determining the weight and credit to be given it. Thus it is clear that the court warned the jury against conviction upon the testimony of an accomplice. Jelke v. United States, 7 Cir., 255 F. 264, 283.
Defendant also contends that the court erred in failing to incorporate in its instructions on circumstantial evidence an instruction that the facts proved must be incompatible with innocence and incapable of explanation upon any other reasonable theory than that of guilt, and that it is not sufficient that they coincide with and render probable the guilt of the accused, but they must exclude every other reasonable hypothesis of innocence.
This was not a case where guilt depended entirely upon circumstantial evidence. Nevertheless, the court in its instruction said: “To warrant a conviction on circumstantial evidence, each fact necessary to the conclusion of guilt must be proved by competent evidence beyond a reasonable doubt, and all the facts so proven must be consistent with each other and with the main facts to be proven, and the circumstances taken together must be of a conclusive nature and producing, in effect, a reasonable and moral certainty beyond a reasonable doubt that the accused committed the offense charged.” In this situation we perceive no error in refusing to instruct the jury as requested. Caminetti v. United States, supra; Estabrook v. United States, 8 Cir., 28 F.2d 150; United States v. Austin-Bagley Corp., 2 Cir., 31 F.2d 229; Corbett v. United States, 8 Cir., 89 F.2d 124; and Beckman v. United States, 5 Cir., 96 F.2d 15.
The facts concerning the claimed error in recalling the jury for further instruction are these: After the jury had been deliberating for some time, the court recalled the jury and said, “I would like to ask you, Mr. Foreman, if there is any particular item which you desire further instructions on or whether you think that further deliberation might result in a verdict.” To this inquiry the foreman replied that the jury had completed part of the decisions and the rest would be completed in a short period of time, whereupon the court said: “I want to impress upon you the great importance on having this jury reach a verdict. This is a long and expensive trial and expensive to the defendants and to the government. I don’t think any other twelve people would have any more intelligence or be able to consider the matter any better than you can do. It would only necessitate another trial if you did not reach a verdict, and while, as I said before, if you have reasonable doubts, why, it is, of course, your duty to maintain them, but at the same time you should also listen, if you are in disagreement * * * to the arguments of those who may seem to be in the majority, to see if you might not have overlooked something in the evidence that didn’t come readily to your mind. * * * I don’t want to unduly prolong your deliberations, but I do feel that it would be necessary, if you didn’t agree, to keep you together for some several hours yet.”
Now, defendant contends that the court’s remarks were coercive and prejudicial, citing State v. Fisher, 23 Mont. 540, 59 P. 919; State v. Clark, 38 Nev. 404, 149 P. 185; and Potard v. State, 140 Neb. 116, 299 N.W. 362.
The first two of these cases are clearly distinguishable on the facts, and while the Potard case seems tobe applicable, we think the better rule and reasoning may be found in Allis v. United States, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91; and United States v. McGuire, 2 Cir., 64 F.2d 485. In the Allis case, supra, 155 U.S. 123, 15 S.Ct. 38, 39 L.Ed. 91, the court said: “It is a familiar practice to recall a jury, after they have been in deliberation for any length of time, for the purpose of ascertaining what difficulties they have in the consideration of the case, and of making proper efforts to assist them in the solution of those difficulties. It would be startling to have such action held to be error, and error sufficient to reverse a judgment. The time at which such a recall shall be made, if at all, must be left to the sound discretion of the trial court, * *
We think that what was said in the case of Dwyer v. United States, 2 Cir., 17 F.2d 696, 698, is appropriate here. “If the whole episode be viewed as an entirety, we are unable to perceive that it had any tendency to coerce the jury or to treat any accused with unfairness. Coercion, as distinguished from duress, has often been called a moral wrong. There can be no wrong in reminding a body of jurors of their duty to exercise intelligence and listen to reason, and that was all that was done in the present instance.”
We do not wish it understood that we approve that part of the instruction in which the jurors were told that if they did not agree, it would be necessary to keep them “together for some several hours yet,” but in the light of all the evidence, instructions and other matters properly of record, we think the action of the court should be treated as harmless.
Defendant also contends that the court improperly participated in the trial of the case and imposed an unusually harsh sentence.
It is asserted that the remarks of the court about the length of the cross-examination were prejudicial to defendant. Five .attorneys represented the defendants on trial. The court on several occasions suggested that the cross-examination was “long and drawn out” and that counsel were going over the same matter three or four times. We can’t say this constitutes reversible error.
As to the court’s participation in the trial, the facts are that when Carter was called to testify, he answered, “I can’t hear you,” and thereafter frequently indicated he had difficulty in hearing the questions. Thereupon the court said: “Speak loud when you talk to the witness.” “All of you speak so quietly that I don’t think this witness will be able to hear unless you make .an effort to put on a little extra horsepower.” “Don’t go dropping your voice so that I can’t even hear you. How do you expect he is going to hear it?”
The argument is that it was the sole province of the jury to resolve the issue of whether Carter could hear the questions properly, and his actions and demean- or should have been considered by the jury in determining his credibility, without the court obtruding his opinion on the question of Carter’s ability to hear the questions. The argument and contention is absolutely void of any merit.
Defendant insists that the penalty imposed when compared with those given the other defendants was extremely harsh. Defendant was sentenced to serve terms of seven years each on the first three counts and two years on the fourth count, the sentences to run concurrently.
The fixing of penalties for crimes is a legislative function. What constitutes an adequate penalty is a matter of legislative judgment and discretion, and the courts will not interfere therewith unless the penalty is clearly and manifestly cruel and unusual, Moore v. Aderhold, 10 Cir., 108 F.2d 729, and where the sentence imposed is within the limits prescribed by the statute for the offense committed, it ordinarily will not be regarded as cruel and unusual, Schultz v. Zerbst, 10 Cir., 73 F.2d 668. The sentences in this case were well within the maximum statutory penalties. In such a situation, we may not disturb a judgment fixing such penalties because only of the seeming severity of the sentence. Bailey v. United States, 7 Cir., 284 F. 126.
Defendant’s final attack upon the judgment is based upon the refusal of the court to grant a new trial because the bailiff in charge of the jury communicated with the jury.
In the consideration of defendant’s contention we note that the record discloses that after the supplemental instructions heretofore discussed had been given to the jury they retired for further deliberations, and after the jury had agreed on verdicts of guilty as to all of the defendants on trial, and while the foreman was signing the form of verdicts to be returned, the bailiff came to the door of the judge’s chambers and informed him that the jury wanted to know whether all the counts had to be accounted for — whether they had to pass on all counts in the indictment. The court directed the bailiff to tell the jury "yes” and they were so informed. At the time of this occurrence all counsel for defendants were in the chambers, and the judge informed them of the jury’s request and of the directions he had given to the bailiff. Counsel were asked “if they had any objection to the procedure, * * To the court’s inquiry, neither counsel for defendant, nor the attorney for the other defendants made an objection, but each remained silent.
To be sure, the jury should pass upon each case free from external causes tending to disturb the exercise of deliberate and unbiased judgment, hence, communications, between jurors and third persons or officers in charge of the jury, are absolutely forbidden, and, if it appears that such communications have taken place, a presumption arises that they were prejudicial, but this presumption may be rebutted by evidence, Wheaton v. United States, 8 Cir., 133 F.2d 522. But, we must not permit the integrity of the jury to be assailed by mere suspicion and surmise; it is presumed that the jury will be true to their oath and conscientiously observe the instructions of the court, Baker v. Hudspeth, 10 Cir., 129 F.2d 779, 782. And where, upon a motion for a new trial, it is claimed that communications have taken place and competent evidence is offered in substantiation of the claim, it is the duty of the trial court to hear and consider it, and when it does so, and decides the motion thereon, its decision is reviewable for abuse of discretion only. Wheaton v. United States, supra, and Ray v. United States, 8 Cir., 114 F.2d 508. Applying the tests required by the cases cited, the question is whether the court abused its discretion. We think it did not.
The judgment of the District Court will be affirmed. It is so ordered.
Question: This question concerns the first listed respondent. 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:
|
sc_casesource
|
023
|
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.
UNITED STATES v. PARK
No. 74-215.
Argued March 18-19, 1975
Decided June 9, 1975
Burger, C. J., delivered the opinion of the Court, in which Douglas, Brennan, White, Blackmun, and Rehnquist, JJ., joined. Stewart, J., filed a dissenting opinion, in which Marshall and Powell, JJ., joined, post, p. 678.
Allan Abbott Tuttle argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Kauper, Howard E. Shapiro, and Peter Barton Hutt.
Gregory M. Harvey argued the cause for respondent. With him on the brief was Orvel Sebring
Briefs of amici curiae urging affirmance were filed by James F. Rill, Robert A. Collier, and John Hardin Young for the National Association of Food Chains; by H. Thomas Austern, H. Edward Dunkelberger, Jr., and Geoffrey Richard Wagner Smith for the National Canners Assn.; by Robert C. Barnard and Charles F. Let-tow for the Synthetic Organic Chemical Manufacturers Assn.; and by Frederick M. Rowe, Paid M. Hyman, and Jonathan W. Sloat for the Grocery Manufacturers of America, Inc.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to consider whether the jury instructions in the prosecution of a corporate officer under § 301 (k) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1042, as amended, 21 U. S. C. § 331 (k), were appropriate under United States v. Dotterweich, 320 U. S. 277 (1943).
Acme Markets, Inc., is a national retail food chain with approximately 36,000 employees, 874 retail outlets, 12 general warehouses, and four special warehouses. Its headquarters, including the office of the president, respondent Park, who is chief executive officer of the corporation, are located in Philadelphia, Pa. In a five-count information filed in the United States District Court for the District of Maryland, the Government charged Acme and respondent with violations of the Federal Food, Drug, and Cosmetic Act. Each count of the information alleged that the defendants had received food that had been shipped in interstate commerce and that, while the food was being held for sale in Acme’s Baltimore warehouse following shipment in interstate commerce, they caused it to be held in a building accessible to rodents and to be exposed to contamination by rodents. These acts were alleged to have resulted in the food’s being adulterated within the meaning of 21 U. S. C. §§ 342 (a)(3) and (4), in violation of 21 U. S. C. §331 (k).
Acme pleaded guilty to each count of the information. Respondent pleaded not guilty. The evidence at trial demonstrated that in April 1970 the Food and Drug Administration (FDA) advised respondent by letter of insanitary conditions in Acme’s Philadelphia warehouse. In 1971 the FDA found that similar conditions existed in the firm’s Baltimore warehouse. An FDA consumer safety officer testified concerning evidence of rodent infestation and other insanitary conditions discovered during a 12-day inspection of the Baltimore warehouse in November and December 1971. He also related that a second inspection of the warehouse had been conducted in March 1972. On that occasion the inspectors found that there had been improvement in the sanitary conditions, but that “there was still evidence of rodent activity in the building and in the warehouses and we found some rodent-contaminated lots of food items.” App. 23.
The Government also presented testimony by the Chief of Compliance of the FDA’s Baltimore office, who informed respondent by letter of the conditions at the Baltimore warehouse after the first inspection. There was testimony by Acme’s Baltimore division vice president, who had responded to the letter on behalf of Acme and respondent and who described the steps taken to remedy the insanitary conditions discovered by both inspections. The Government’s final witness, Acme’s vice president for legal affairs and assistant secretary, identified respondent as the president and chief executive officer of the company and read a bylaw prescribing the duties of the chief executive officer. He testified that respondent functioned by delegating “normal operating duties,” including sanitation, but that he retained “certain things, which are the big, broad, principles of the operation of the company,” and had “the responsibility of seeing that they all work together.” Id., at 41.
At the close of the Government’s case in chief, respondent moved for a judgment of acquittal on the ground that “the evidence in chief has shown that Mr. Park is not personally concerned in this Food and Drug violation.” The trial judge denied the motion, stating that United States v. Dotterweich, 320 U. S. 277 (1943), was controlling.
Respondent was the only defense witness. He testified that, although all of Acme’s employees were in a sense under his general direction, the company had an “organizational structure for responsibilities for certain functions” according to which different phases of its operation were “assigned to individuals who, in turn, have staff and departments under them.” He identified those individuals responsible for sanitation, and related that upon receipt of the January 1972 FDA letter, he had conferred with the vice president for legal affairs, who informed him that the Baltimore division vice president “was investigating the situation immediately and would be taking corrective action and would be preparing a summary of the corrective action to reply to the letter.” Respondent stated that he did not “believe there was anything [he] could have done more constructively than what [he] found was being done.” App. 43-47.
On cross-examination, respondent conceded that providing sanitary conditions for food offered for sale to the public was something that he was “responsible for in the entire operation of the company,” and he stated that it was one of many phases of the company that he assigned to “dependable subordinates.” Respondent was asked about and, over the objections of his counsel, admitted receiving, the April 1970 letter addressed to him from the FDA regarding insanitary conditions at Acme’s Philadelphia warehouse. He acknowledged that, with the exception of the division vice president, the same individuals had responsibility for sanitation in both Baltimore and Philadelphia. Finally, in response to questions concerning the Philadelphia and Baltimore incidents, respondent admitted that the Baltimore problem indicated the system for handling sanitation “wasn’t working perfectly” and that as Acme’s chief executive officer he was responsible for “any result which occurs in our company.” Id., at 48-55.
At the close of the evidence, respondent’s renewed motion for a judgment of acquittal was denied. The relevant portion of the trial judge’s instructions to the jury challenged by respondent is set out in the margin. Respondent’s counsel objected to the instructions on the ground that they failed fairly to reflect our decision in United States v. Dotterweich, supra, and to define “ 'responsible relationship.’ ” The trial judge overruled the objection. The jury found respondent guilty on all counts of the information, and he was subsequently sentenced to pay a fine of $50 on each count.
The Court of Appeals reversed the conviction and remanded for a new trial. That court viewed the Government as arguing “that the conviction may be predicated solely upon a showing that . . . [respondent] was the President of the offending corporation,” and it stated that as “a general proposition, some act of commission or omission is an essential element of every crime.” 499 F. 2d 839, 841 (CA4 1974). It reasoned that, although our decision in United States v. Dotterweich, supra, at 281, had construed the statutory provisions under which respondent was tried to dispense with the traditional element of “ ‘awareness of some wrongdoing,’ ” the Court had not construed them as dispensing with the element of “wrongful action.” The Court of Appeals concluded that the trial judge’s instructions “might well have left the jury with the erroneous impression that Park could be found guilty in the absence of ‘wrongful action’ on his part,” 499 F. 2d, at 841-842, and that proof of this element was required by due process. It held, with one dissent, that the instructions did not “correctly state the law of the case,” id., at 840, and directed that on retrial the jury be instructed as to “wrongful action,” which might be “gross negligence and inattention in discharging . . . corporate duties and obligations or any of a host of other acts of commission or omission which would ‘cause’ the contamination of food.” Id., at 842. (Footnotes omitted.)
The Court of Appeals also held that the admission in evidence of the April 1970 FDA warning to respondent was error warranting reversal, based on its conclusion that, “as this case was submitted to the jury and in light of the sole issue presented,” there was no need for the evidence and thus that its prejudicial effect outweighed its relevancy under the test of United States v. Woods, 484 F. 2d 127 (CA4 1973), cert. denied, 415 U. S. 979 (1974). 499 F. 2d, at 843.
We granted certiorari because of an apparent conflict among the Courts of Appeals with respect to the standard of liability of corporate officers under the Federal Food, Drug, and Cosmetic Act as construed in United States v. Dotterweich, supra, and because of the importance of the question to the Government’s enforcement program. We reverse.
I
The question presented by the Government’s petition for certiorari in United States v. Dotterweich, supra, and the focus of this Court’s opinion, was whether “the manager of a corporation, as well as the corporation itself, may be prosecuted under the Federal Food, Drug, and Cosmetic Act of 1938 for the introduction of misbranded and adulterated articles into interstate commerce.” Pet. for Cert., No. 5, O. T. 1943, p. 2. In Dotterweich, a jury had disagreed as to the corporation, a jobber purchasing drugs from manufacturers and shipping them in interstate commerce under its own label, but had convicted Dotterweich, the corporation’s president and general manager. The Court of Appeals reversed the conviction on the ground that only the drug dealer, whether corporation or individual, was subject to the criminal provisions of the Act, and that where the dealer was a corporation, an individual connected therewith might be held personally only if he was operating the corporation “as his ‘alter ego.’ ” United States v. Buffalo Pharmacal Co., 131 F. 2d 500, 503 (CA2 1942).
In reversing the judgment of the Court of Appeals and reinstating Dotterweich’s conviction, this Court looked to the purposes of the Act and noted that they “touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection.” 320 U. S., at 280. It observed that the Act is of “a now familiar type” which “dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” Id., at 280-281.
Central to the Court’s conclusion that individuals other than proprietors are subject to the criminal provisions of the Act was the reality that “the only way in which a corporation can act is through the individuals who act on its behalf.” Id., at 281. The Court also noted that corporate officers had been subject to criminal liability under the Federal Food and Drugs Act of 1906, and it observed that a contrary result under the 1938 legislation would be incompatible with the expressed intent of Congress to “enlarge and stiffen the penal net” and to discourage a view of the Act’s criminal penalties as a “ ‘license fee for the conduct of an illegitimate business.’ ” 320 U. S., at 282-283. (Footnote omitted.)
At the same time, however, the Court was aware of the concern which was the motivating factor in the Court of Appeals’ decision, that literal enforcement “might operate too harshly by sweeping within its condemnation any person however remotely entangled in the proscribed shipment.” Id., at 284. A limiting principle, in the form of “settled doctrines of criminal law” defining those who “are responsible for the commission of a misdemeanor,” was available. In this context, the Court concluded, those doctrines dictated that the offense was committed “by all who . . . have . . . a responsible share in the furtherance of the transaction which the statute outlaws.” Ibid.
The Court recognized that, because the Act dispenses with the need to prove “consciousness of wrongdoing,” it may result in hardship even as applied to those who share “responsibility in the business process resulting in” a violation. It regarded as “too treacherous” an attempt “to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation.” The question of responsibility, the Court said, depends “on the evidence produced at the trial and its submission — assuming the evidence warrants it — to the jury under appropriate guidance.” The Court added: “In such matters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted.” Id., at 284r-285. See 21 U. S. C. § 336.’ Cf. United States v. Sullivan, 332 U. S. 689, 694-695 (1948).
II
The rule that corporate employees who have “a responsible share in the furtherance of the transaction which the statute outlaws” are subject to the criminal provisions of the Act was not formulated in a vacuum. Cf. Morissette v. United States, 342 U. S. 246, 258 (1952). Cases under the Federal Food and Drugs Act of 1906 reflected the view both that knowledge or intent were not required to be proved in prosecutions under its criminal provisions, and that responsible corporate agents could be subjected to the liability thereby imposed. See, e. g., United States v. Mayfield, 177 F. 765 (ND Ala. 1910). Moreover, the principle had been recognized that a corporate agent, through whose act, default, or omission the corporation committed a crime, was himself guilty individually of that crime. The principle had been applied whether or not the crime required “consciousness of wrongdoing,” and it had been applied not only to those corporate agents who themselves committed the criminal act, but also to those who by virtue, of their managerial positions or other similar relation to the actor could be deemed responsible for its commission.
In the latter class of cases, the liability of managerial officers did not depend on their knowledge of, or personal participation in, the act made criminal by the statute. Rather, where the statute under which they were prosecuted dispensed with “consciousness of wrongdoing,” an omission or failure to act was deemed a sufficient basis for a responsible corporate agent’s liability. It was enough in such cases that, by virtue of the relationship he bore to the corporation, the agent had the power to prevent the act complained of. See, e. g., State v. Burnam, 71 Wash. 199, 128 P. 218 (1912); Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 P. 924 (1904). Cf. Groff v. State, 171 Ind. 547, 85 N. E. 769 (1908); Turner v. State, 171 Tenn. 36, 100 S. W. 2d 236 (1937); People v. Schwartz, 28 Cal. App. 2d 775, 70 P. 2d 1017 (1937); Sayre, Criminal Responsibility for the Acts of Another, 43 Harv. L. Rev. 689 (1930).
The rationale of the interpretation given the Act in D otterweich, as holding criminally accountable the persons whose failure to exercise the authority and supervisory responsibility reposed in them by the business organization resulted in the violation complained of, has been confirmed in our subsequent eases. Thus, the Court has reaffirmed the proposition that “the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors.” Smith v. California, 361 U. S. 147, 152 (1959). In order to make “distributors of food the strictest censors of their merchandise,” ibid., the Act punishes “neglect where the law requires care, or inaction where it imposes a duty.” Morissette v. United States, supra, at 255. “The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.” Id., at 256. Cf. Hughes, Criminal Omissions, 67 Yale L. J. 590 (1958). Similarly, in cases decided after Dotterweich, the Courts of Appeals have recognized that those corporate agents vested with the responsibility, and power commensurate with that responsibility, to devise whatever measures are necessary to ensure compliance with the Act bear a “responsible relationship” to, or have a “responsible share” in, violations.
Thus Dotterweich and the cases which have followed reveal that in providing sanctions which reach and touch the individuals who execute the corporate mission — and this is by no means necessarily confined to a single corporate agent or employee — the Act imposes not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure that violations will not occur. The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them. Cf. Wasserstrom, Strict Liability in the Criminal Law, 12 Stan. L. Rev. 731, 741-745 (I960).
The Act does not, as we observed in Dotterweich, make criminal liability turn on “awareness of some wrongdoing” or “conscious fraud.” The duty imposed by Congress on responsible corporate agents is, we emphasize, one that requires the highest standard of- foresight and vigilance, but the Act, in its criminal aspect, does not require that which is objectively impossible. The theory upon which responsible corporate agents are held criminally accountable for “causing” violations of the Act permits a claim that a defendant was “powerless” to prevent or correct the violation to “be raised defensively at a trial on the merits.” United States v. Wiesenfeld Warehouse Co., 376 U. S. 86, 91 (1964). If such a claim is made, the defendant has the burden of. coming forward with evidence, but this does not alter the Government’s ultimate burden of proving beyond a reasonable doubt the defendant’s guilt, including his power, in light of the duty imposed by the Act, to prevent or correct the prohibited condition. Congress has seen fit to enforce the accountability of responsible corporate agents dealing with products which may affect the health of consumers by penal sanctions cast in rigorous terms, and the obligation of the courts is to give them effect so long as they do not violate the Constitution.
Ill
We cannot agree with the Court of Appeals that it was incumbent upon the District Court to instruct the jury that the Government had the burden of establishing “wrongful action” in the sense in which the Court of Appeals used that phrase. The concept of a “responsible relationship” to, or a “responsible share” in, a violation of the Act indeed imports some measure of blameworthiness; but it is equally clear that the Government establishes a prima facie case when it introduces evidence sufficient to warrant a finding by the trier of the facts that the defendant had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do so. The failure thus to fulfill the duty imposed by the interaction of the corporate agent’s authority and the statute furnishes a sufficient causal link. The considerations which prompted the imposition of this duty, and the scope of the duty, provide the measure of culpability.
Turning to the jury charge in this case, it is of course arguable that isolated parts can be read as intimating that a finding of guilt could be predicated solely on respondent’s corporate position. But this is not the way we review jury instructions, because “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U. S. 141, 146-147 (1973). See Boyd v. United States, 271 U. S. 104, 107 (1926).
Reading the entire charge satisfies us that the jury’s attention was adequately focused on the issue of respondent’s authority with respect to the conditions that formed the basis of the alleged violations. Viewed as a whole, the charge did not permit the jury to find guilt solely on the basis of respondent’s position in the corporation; rather, it fairly advised the jury that to find guilt it must find respondent “had a responsible relation to the situation,” and “by virtue of his position ... had ... authority and responsibility” to deal with the situation. The situation referred to could only be “food ... held in unsanitary conditions in a warehouse with the result that it consisted, in part, of filth or . . . may have been contaminated with filth.”
Moreover, in reviewing jury instructions, our task is also to view the charge itself as part of the whole trial. “Often isolated statements taken from the charge, seemingly prejudicial on their face, are not so when considered in the context of the entire record of the trial.” United States v. Bimbaum, 373 F. 2d 250, 257 (CA2), cert. denied, 389 U. S. 837 (1967). (Emphasis added.) Cf. Cupp v. Naughten, supra. The record in this case reveals that the jury could not have failed to be aware that the main issue for determination was not respondent’s position in the corporate hierarchy, but rather
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Calvin W. SLAUGHTER and Carol Ann Slaughter, Plaintiffs-Counter Defendants-Appellants, v. ALLSTATE INSURANCE COMPANY, et al., Defendants-Counter Plaintiff-Appellees.
No. 86-2201.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 3, 1986.
David T. Lopez & Associates, David T. Lopez, Houston, Tex., for plaintiffs-counter defendants-appellants.
Bracewell & Patterson, V. Scott Kneese, Dennis Childs, Houston, Tex., for defendants-counter plaintiff-appellees.
Before RUBIN, RANDALL, and HIGGINBOTHAM, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
Calvin W. Slaughter, who was forty-one years old and had worked for Allstate Insurance Company for sixteen years, was discharged for the stated reason that he had submitted a false insurance claim for damages to his home. Allstate replaced him with a younger person. Slaughter and his wife sued Allstate and various Allstate employees, asserting claims under the Age Discrimination in Employment Act of 1967, as well as various tort claims under Texas state law. Allstate counterclaimed, asserting that Slaughter had violated a covenant not to compete following his discharge, and obtained a preliminary injunction from the district court against his competition. Subsequently, the district court dismissed the claims against the Allstate employees and rendered summary judgment in favor of Allstate. We affirm the judgments of the district court.
I.
Slaughter, an insurance sales agent for Allstate, had an Allstate policy on his home for fire and extended coverage in the amount of $85,000, subject to a deductible of $850. The premium was lower than it would have been if the deductible had been less. The policy was to expire on March 27, 1984. Slaughter testified in his deposition that he had decided to increase the coverage and decrease the deductible, but had neither filed an application to do so nor paid the additional premium that this would entail when on March 24 he suffered water damage, amounting to $550, to a carpet in his home. Subsequently, on March 26, Slaughter filed an application to Allstate to increase the insured value of his home and decrease the deductible. He dated the application March 26, but backdated the effective date of the change to March 23. As a result of the lower deductible, half of the damage to the carpet was covered. Slaughter filed a claim for his loss without reporting to his supervisors that he had made the changes in his policy after the loss had occurred.
Several days thereafter, Slaughter discussed the changes with his superior. What was said then is disputed. Slaughter’s version is that the superior told him that the claim would probably be denied, but that denial would be the worst that could happen, and that Slaughter should submit it for a “management exception.” Allstate investigated the matter, and after further discussions with Slaughter, discharged him on September 7.
In his complaint, Slaughter prayed for reinstatement and compensatory and punitive damages. Although he alleged that, “unless subjected to the specific injunctive orders of this court, the Defendants will continue to deny to the Plaintiff the benefits of his contract of employment as an insurance sales agent, and the Plaintiff has no plain and adequate remedy at law,” Slaughter did not seek any injunctive relief other than reinstatement in the complaint.
II.
The Act gives no basis for relief against the company employees as individuals. Reinstatement, the only appropriate relief sought by Slaughter under the Act, could be granted only by Allstate. The complaint stated no other federal claim against the named individual defendants. The judgment dismissing the age discrimination claim against the individual defendants was, therefore, correct. In the absence of a federal claim, a district court may in its discretion, and generally should, dismiss pendent state law claims. The district court properly declined to exercise jurisdiction of the state law claims against the individual defendants.
III.
The district court entered the preliminary injunction enforcing Slaughter’s covenant not to compete on May 23, 1985. The preliminary injunction was then appealable as of right. Fed.R.App.Proc. 4(a)(1) requires the notice of appeal from any order appealable as of right to be filed within 30 days after the order is entered. That time limit is jurisdictional. Because Slaughter did not file a notice of appeal until March 1986, we lack jurisdiction to consider the appeal from the preliminary injunction.
IV.
The party opposing a motion for summary judgment may not rest on the allegations of his complaint. As the Supreme Court held in Celotex Corp. v. Catrett, the party who bears the burden of proof on an issue at trial must, in responding to a proper motion for summary judgment, “make a sufficient showing on an essential element of [his] case” to establish a genuine dispute. If he has had sufficient time for discovery, he must “designate ‘specific facts showing that there is a genuine issue for trial.'" Although our earlier jurisprudence required the district judge to search the record for a genuine dispute about a material fact, Celotex Corp., as well as this court’s recent decision in Fontenot v. Upjohn Co., makes clear that the moving party must point out to the court the absence of evidence showing a genuine dispute — though the moving party need not always present actual evidence negating a dispute. The court in Celotex Corp. said:
Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.
Allstate’s motion for summary judgment was based almost entirely on Slaughter’s deposition supplemented by other evidentiary materials. The Slaughters did not file any evidentiary material in opposition
to this motion. The Slaughters do not point, either in the record or in their brief to this court, to any genuine dispute of a material fact. While Slaughter did not backdate the form that he filled out to change his policy, he did backdate the effective date of the change. The Slaughters’ suggestion that it is not dishonest to backdate the effective date of an insurance policy to acquire retroactive coverage betrays a curious sense of morality. That Slaughter took such action was sufficient to warrant his discharge absent use of the incident as a pretext to cloak discrimination.
Whether, as Slaughter contends, he told his supervisor about the discrepancy in dates a few days after making the change, or, as Allstate’s evidence indicates, this conversation about the discrepancy in dates took place a month later, when Allstate was investigating the matter, is immaterial. The conversation did not negate the earlier dishonesty but, at most, minimized in Slaughter’s mind the danger to which he had exposed himself. Slaughter points to nothing other than this conversation to show that Allstate’s reasons for discharging him were pretextual.
While Slaughter said in his deposition that he believed and suspected that Allstate had a company policy of replacing agents over 40 with younger agents to reduce expenses, he admitted having no personal knowledge of such a policy and adduced no evidence of it. Testimony based on conjecture alone is insufficient to raise an issue as to the existence of the alleged policy. It is difficult indeed to see how Allstate would save money with such a policy, since the evidence shows that all agents were paid on a commission basis, with compensation keyed to sales, so that younger agents making greater sales earned more than Slaughter.
The burden of establishing pretext rests on the party asserting age discrimination. In Anderson v. Liberty Lobby, Tree., the Supreme Court held that “evidence” as weak as Slaughter’s cannot preclude summary judgment, saying:
The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
* * * * * *
If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. (Citations omitted.)
There is, of course, no rule of law prohibiting summary judgment in an age discrimination case.
Slaughter’s pendent state claims against Allstate include a contention that Allstate breached its contract with him by discharging him without notice. The contract, however, does not require notice and an opportunity for corrective action before discharge on grounds of dishonesty. It requires advance warning and counselling only in instances of unsatisfactory work. Here, dishonesty was the ground for discharge.
The Slaughters also assert the existence of evidence from which a jury might have determined that Allstate slandered him, but do not identify that evidence. The only testimony adduced on this issue related to the circumstances of Slaughter’s termination. The publicity given Slaughter’s discharge was in publications that (i) were privileged because they were made in good faith, between persons within the Allstate system who had an interest in the discharge, or (ii) stated nothing about the reason for his termination.
The state law claim against Allstate for intentional infliction of emotional distress depends on the successful assertion of an independent tort, and was therefore properly dismissed. The conspiracy claim was properly dismissed because it was made only against the individual defendants, who had already been dismissed from the case, and not against Allstate.
Y.
The Slaughters assert that the district court erred in “failing to consider and exercise pendent party jurisdiction” of their state law claims against the Allstate employees. The Slaughters, however, never invoked pendent party jurisdiction. Moreover, even when properly invoked, the exercise of pendent jurisdiction is left to the discretion of the district judge. Their claims were dismissed without prejudice.
For these reasons, we AFFIRM the judgments of the district court.
. 29 U.S.C. § 623, et seq. (1986).
. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
. --- U.S. ---, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Id. at ---, 106 S.Ct. at 2553.
. Id.
. 780 F.2d 1190, 1195-97 (5th Cir.1986).
. Celotex Corp., --- U.S. at ---, 106 S.Ct. at 2555.
. Confer v. SKF Industries, Inc., 40 FEP 1721, 1724 (W.D.Pa.1986). [Available on WESTLAW, DCTU database].
. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).
. --- U.S. ---, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id. at ---, 106 S.Ct. at 2512, 2511.
. See Anderson v. Liberty Lobby, --- U.S. ---, 106 S.Ct. 2505.
. Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex.Civ.App. --- Tyler 1980, no writ).
. Vietnamese Fishermen’s Assn. v. Knights of the Ku Klux Klan, 518 F.Supp. 993, 1013-14 (S.D.Tex.1981); cf. Fenslage v. Dawkins, 629 F.2d 1107, 1110-11 (5th Cir.1980).
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
WESTERN FOOD PLAN, INC., a Utah Corporation, Plaintiff-Appellant, v. J. D. MacFARLANE, Colorado Attorney General, and D. P. Cronin, Manager of Safety and Ex-Officio Sheriff of the City and County of Denver, Defendants-Appellees.
No. 77-1343.
United States Court of Appeals, Tenth Circuit.
Submitted Sept. 26, 1978.
Decided Dec. 4, 1978.
John M. Cogswell and Phyllis Cox Werkman of Cogswell, Chilson, Dominick & Whitelaw, Denver, Colo., for plaintiff-appellant.
J. D. MacFarlane, Atty. Geni, David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Mary J. Mullarkey, First Asst. Atty. Gen., Appellate Section, and David K. Rees, Asst. Atty. Gen., Appellate Section, Denver, Colo., for defendants-appellees.
Before DOYLE and LOGAN, Circuit Judges, and STANLEY, Senior District Judge.
Of the District of Kansas, sitting by designation.
WILLIAM E. DOYLE, Circuit Judge.
Western Food Plan, Inc. brought an action in the District Court seeking injunctive relief and damages pursuant to 42 U.S.C. § 1983. The complaint alleges that the Attorney General, defendant in the case, filed a consumer action in state court pursuant to C.R.S.1973, § 6-1-101 et seq. and brought about the issuance of a writ of attachment in that suit against the Micron Corporation, which is a subsidiary or parent, it is not clear which, of Western Food Plan.
The thrust of the § 1983 action by Western Food Plan is that a writ of attachment was issued at the behest of the Attorney General against the assets of Micron Corporation. It is further alleged that Western Food as a successor of Micron has a substantial interest in the Micron Corporation and that it was thus damaged by the action taken. Indeed the Micron Corporation is alleged to have collapsed as a result of the seizure.
The legal theory of the suit here is that attachment in aid of suit which resulted from the seizure of the assets was invalid in that the rule under which it was issued, namely 102 of the Colorado Rules of Civil Procedure, is in procedure and substance in conflict, with the Fourth and Fourteenth Amendments both on its face and as applied. These assets were described in some detail in the complaint.
It is alleged that the damages suffered were not less than $100,000 and not more than $4 million. The prayer seeks adjudication that the writ of attachment issued by the District Court violated the plaintiff’s constitutional rights and was void. The basic question presented to the District Court was whether the attachment in aid of suit, which was granted pursuant to Colorado Rule of Civil Procedure 102 violated the Constitution.
The trial court did not determine the merits of the case. Instead on motion of the Attorney General the court abstained and did so on the basis that proceedings were then pending in the Colorado District Court and that these were capable of disposing of the action.
The court said:
It is apparent that this action in this court is a collateral attack on the pending state court proceedings. Under the principle of comity recognized in Younger v. Harris, 401 U.S. 37 [, 91 S.Ct. 746, 27 L.Ed.2d 669] (1971); Huffman v. Pursue, Ltd., 420 U.S. 592 [, 95 S.Ct. 1200, 43 L.Ed.2d 482] (1975); and Juidice v. Vail, 45 U.S.L.W. 4269 (U.S. Mar. 22, 1977) [430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977)], this court must abstain from interference with the state litigation.
The court thereafter dismissed the suit.
The sole issue which is here presented is whether the court was correct in its determination that it was required to abstain. Our conclusion is that the cause must be remanded, not because the trial court abstained, but because it dismissed the lawsuit as well.
In the state action filed by the Attorney General, pursuant to the Colorado Consumer Protection Act, C.R.S.1973, § 6-1-101 et seq., Western Food Plan, Inc., the plaintiff-appellant herein, was not originally named. Listed as defendants were a number of corporations, including the Micron Corporation, Supreme Food Corporation, Supreme Food Distributors and Supreme Food of Utah Corporation, together with Talon Corporation, a Colorado corporation. However, in that suit Western Food intervened and filed a counterclaim which alleged inter alia that on August 4,1976, Micron Corporation was in default on a $3 million line of credit which had been issued by F.N.B. Financial Company, an affiliate of the First National Bank of Boston. Hussel, the major stockholder of Micron, purchased the note from F.N.B. for full value. Thereupon, on or about August 4, 1976, Hussel took possession of the assets of Micron Corporation and transferred the same to Western, the plaintiff-appellant, a newly formed Utah corporation.
The allegation is that Western was formed in order to carry out the objects of the Micron business. It sought to get the Attorney General’s permission to do so, but the Attorney General filed its action in the Denver District Court on August 13, 1976, for the issuance of writs of attachment.
Western’s complaint in intervention alleges that the writ of attachment is void for various reasons, one of which is that the writ of attachment violates the Colorado Constitution as well as the United States Constitution. Damages are claimed in the amount of not less than $100,000 and not more than $4 million.
The § 1983 suit, which is described in the first amended complaint of Western Food Plan, Inc., is substantially similar to the complaint in intervention that was filed in the district court. Many of the allegations are identical in fact. The center of attack in the § 1983 suit is the obtaining of the writ of attachment in state court. The contention is that this writ of attachment constituted a substantial cause of the damages that were complained of in the other suit also. The amount in this instance is, however, $3.9 million instead of $3 million.
We have not examined each of the several claims for relief contained in the § 1983 complaint, but we are nevertheless convinced that the thrust of each of these actions is quite similar, and with that in mind we consider the abstention issue.
The leading case on the type of abstention which applies when litigation is being conducted or is about to be commenced both in federal and state court' is Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). There the Texas Railroad Commission had ordered that no sleeping ears should be operated on any line in Texas unless such cars are continuously in charge of an employee having the rank and position of pullman conductor. This was to remedy a situation on lines in which passenger traffic was light and which pulled but one sleeping car. No pullman conductor was included in such crews. This was an obvious attempt to prevent a black person from being in charge of the single pullman cars. The Supreme Court noted jurisdiction, but concluded that in the interests of maintaining favorable relations with state courts the federal court should use its equitable powers to abstain at least until the matter had been fully litigated in state court. The Court said:
In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. Glenn v. Field Packing Co., 290 U.S. 177 [54 S.Ct. 138, 78 L.Ed. 252]; Lee v. Bickell, 292 U.S. 415 [54 S.Ct. 727, 78 L.Ed. 1337], The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court.
The cause was remanded to the district court with directions
to retain the bill pending a determination of proceedings, to be brought with reasonable promptness, in the state court in conformity with this opinion. Compare Atlas Ins. Co. v. Southern, Inc., 306 U.S. 563, 573 [59 S.Ct. 657, 662, 83 L.Ed. 987], and cases cited.
312 U.S. at 500 and 501-502, 61 S.Ct. at 645 and 646.
Wright, Law of Federal Courts, 3rd ed., at page 219, explains that this method allows the state court to decide the state issues and the federal court to avoid deciding a federal constitutional question prematurely or unnecessarily, since, if the state court should hold the order unauthorized as a matter of state law, there will be no need for the federal court to pass on the federal question.
That the Pullman case continues to receive recognition is shown by the recent opinion of the Supreme Court in Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976), which was an appeal from a judgment of a three-judge federal court in the Southern District of New York, declaring unconstitutional and enjoining enforcement of certain New York statutes which provided for prejudgment attachment of a defendant’s assets. The allegations of the complaint were not dissimilar from those which we have before us. Like the present case the allegation in the basic action was that some species of deception had taken place. The three-judge court found the New York prejudgment attachment provision unconstitutional because, according to the Supreme Court, the opportunity to vacate the attachment was inadequate to justify the property deprivation involved. In a per curiam opinion the Supreme Court said that where fact issues are raised, on a motion to vacate an attachment, with respect to the merits of the underlying claim, a preliminary hearing has to be held on those issues. Based on that the Supreme Court said that it would be unwise for it to address the constitutionality of the New York attachment statute because such action might be rendered unnecessary by a decision of the New York courts under state law. Citing Railroad Comm’n v. Pullman Co., supra, the Supreme Court said further that even if the statute were unconstitutional, it was possible that the state courts would construe it so as to remove any constitutional problems. The judgment of the three-judge court was vacated and it was remanded with directions to abstain from a decision on the federal constitutional issues until the parties had had an opportunity to obtain a construction of New York law from the New York state courts.
We do not find fault with the decision of the trial court to abstain on the basis that proceedings were then pending in the district court and these were capable of disposing of the action.
We do disagree with the dismissal of the action by the District Court, if, as the court has said, the action is still pending in the state court, and we have no reason to conclude that it is not still pending, and abstention is certainly proper under Pullman and Carey. These cases, however, contemplate that the abstaining court shall maintain control of the litigation pending the state court disposition. If need be it can try the case on the merits if the state court does not resolve the controversy under state law.
Accordingly, it is the judgment of this court that the cause must be remanded with directions to the trial court to reinstate this cause and to hold it in abeyance pending completion of state court proceedings. Thereafter, the cause can be tried or dismissed depending on the outcome of the state court proceedings.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_genresp1
|
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.
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.
ANDERSON v. SHIPOWNERS’ ASS’N OF PACIFIC COAST et al.
(Circuit Court of Appeals, Ninth Circuit.
January 18, 1926.)
No. 4682.
1. Courts <@=>289 — Practice of shipowners’ association held not violation of commerce or anti-trust statutes, so as to give federal courts jurisdiction.
Practice of shipowners’ association in refusing to employ seamen not registered held not restraint of interstate or foreign commerce, or violation of Sherman Act (Comp. St. § 8820 et seq.), Clayton Act, § 16 (Comp. St. § 8835o), or other federal act, so as to give federal courts jurisdiction of injunction suit, under Judicial Code, § 24 (8), (23), being Comp. St. § 991 (8), (23).
2. Courts <@=>284 — Practice of shipowners’ association held not violative of statute relative to seamen’s shipping contract, so as to give federal courts jurisdiction.
Practices of shipowners’ association in refusing to employ seamen, not registered held not violative of Rev. St. §§ 4508, 4514, 4515, 4551, 4612 (Comp. St. §§ 8297, 8304, 8305, 8340, 8392), relating to shipping contracts,, so as to give federal courts jurisdiction of suit to enjoin such practice.
Appeal from the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge.
Suit by Cornelius Anderson against the Shipowners’ Association of the Pacific Coast and another. Decree for defendants, and plaintiff appeals.
Affirmed.
Appellant, hereinafter ealled plaintiff, sues on behalf of himself and all other seamen. employed in interstate and foreign commerce by sea on American merchant vessels sailing to and from Pacific Coast ports of the United States. He seeks to enjoin certain practices of appellees, hereinafter called the defendants, in the employment of seamen, on the ground that these practices constitute a restraint of interstate and foreign commerce. The District Court sustained defendants’ motion to dismiss.
H. W. Hutton, of San Francisco, Cal., for appellant.
Chauncey F. Eldridge and George O. Bahrs, both of San Francisco, Cal., for appellees.
Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.
McCAMANT, Circuit Judge
(after stating the facts as above). The practices sought to be enjoined are stated with some fullness in the opinion of this court in the suit brought by Alfred Street against these same defendants, 299 F. 5; also in the opinion of the Supreme Court in the same case, 263 U. S. 334, 44 S. Ct. 119, 68 L. Ed. 326. It is charged that the defendants control every vessel flying the American flag, and engaged in the carrying of passengers and cargo between Pacific Coast ports and other American and foreign ports; that they have established a system for registering seamen, and that it is impossible for a seaman not registered with them to secure employment. Plaintiff alleges that on the 15th of June, 1925, he applied at the offices of the defendants in San Francisco for employment as a seaman, and was refused employment because he did not have the registration papers required by the defendants’ rules. It is alleged that on the 18th of June plaintiff was employed by the mate of the steamship Caddopeak; that defendants interfered with plaintiff’s contract of employment and caused his employer to dispense with his services, to plaintiff’s damage in the sum of $135.
Defendants challenge the jurisdiction of the federal courts. It is conceded that the jurisdiction cannot rest on diversity of citizenship, because the amount in controversy is less than $3,000. Pinel v. Pinel, 240 U. S. 594, 596, 597, 36 S. Ct. 416, 60 L. Ed. 817. Plaintiff relies on section 24 of the Judicial Code (section 991, Comp. Stat.) subds. 8 and 23. These statutes are as follows:
“The District Courts shall have original jurisdiction as follows: * * *
“Eighth. Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court. * * *
“Twenty-third.' Of all suits and proceedings arising under any law to protect trade and commerce against restraints and monopolies.”
Plaintiff also relies on section 16 of the Clayton Act (section 8835o, Comp. Stat.), which is in part as follows:
“Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws.”
It is not alleged that the purpose of the practice complained of is the restraint of interstate or foreign commerce. It is contended that less capable men are employed on vessels than would be employed if the officers of the vessels looked after the employment of seamen. This result is alleged to follow from defendants’ practice of employing seamen in the order in which they apply for work. This is at most an indirect and incidental impediment to the transaction of interstate commerce. The conduct complained of falls without the inhibition of the Sherman Act (Comp. St. § 8820 et seq.), the Clayton Act (Comp. St. § 8835a et seq.), and the federal anti-trust acts generally. Street v. Shipowners’ Association (C. C. A.) 299 F. 5; Tilbury v. Oregon Stevedoring Co., Inc. (C. C. A.) 7 F.(2d) 1. The law applicable to this contention of plaintiff has been stated by this court so clearly and so recently in these decisions that it would serve no good purpose to restate the law and cite in this opinion the cases construing the federal anti-trust laws.
It is sought to distinguish the Street Case on the ground that it was not alleged that plaintiff therein had applied for employment and been refused. This allegation, however, is found in the bill of complaint in the Til-bury Case, which was adjudged insufficient by the District Court for Oregon and by this court.
It is also contended that the practices complained of violate the federal statutes defining the manner in which seamen are to be employed and the nature of the shipping contract. Sections 4508, 4514, 4515, 4551 and 4612, R. S. (sections 8297, 8304, 8305, 8340 and 8392, Co.mp. Stat.). The registration of seamen by the defendants and the arrangements made for their employment are preliminary to the execution of the form of contract required by the statute. It does not appear from the bill that the defendants have taken seamen to sea without the execution before a commissioner of the statutory contract, or that defendants have otherwise violated the above statutes.
If plaintiff has a cause of action, it is not cognizable in the federal courts. The decree is affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
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.
COLE, BOSTON STATE HOSPITAL SUPERINTENDENT, et al. v. RICHARDSON
No. 679.
Decided March 16, 1970
Robert H. Quinn, Attorney General of Massachusetts, Mark L. Cohen, Assistant Attorney General, and Gregor I. McGregor, Deputy Assistant Attorney General, for appellants in No. 679. Messrs. Quinn, Cohen, McGregor, and Walter H. Mayo III, Assistant Attorney General, for appellees in No. 774.
Ernest Winsor and John F. Cogan, Jr., for appellee in No. 679 and appellant in No. 774.
Together with No. 774, Richardson v. Cole, Boston State Hospital Superintendent, et al., also on appeal from the same court.
Per Curiam.
The judgment is vacated and the cases are remanded to the United States District Court for the District of Massachusetts to determine whether these cases have become moot.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_casetyp1_6-3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
NATIONAL LABOR RELATIONS BOARD v. NATIONAL NEW YORK PACKING & SHIPPING CO., Inc.
No. 140.
Circuit Court of Appeals, Second Circuit.
Nov. 2, 1936.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, David A. Moscovitz, Mary L. Schleifer, A. Norman Somers, Gerhard P. Van Arkle, and Philip Levy, ail of Washington, D. C., for petitioner.
Samuel J. Rosensohn, of New York City, for respondent.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
PER CURIAM.
An order issued by the petitioner pursuant to section 10, National Labor Relations Act (49 Stat. 449, 29 U.S.C. § 160 [29 U.S.C.A. § 160]) directed the respondent, after complaint and hearing, to reinstate five employees, in its -place of business in New York with back pay. They were discharged because, as found by the Board, they had joined and assisted a labor organization. The order of reinstatement was based upon a finding that the respondent is engaged in unfair labor practices affecting commerce, as defined in section 8, subsecs. (1) and (3) of the act, 29 U.S. C.A. § 158 (1, 3), and section 2, subsecs. (6) and (7) of the act, 29 U.S.C.A. § 152 (6, 7).
The Board found that the respondent is engaged in interstate commerce and commerce with foreign countries. It made findings that the respondent had discriminated in regard to the hire and tenure of the employment of five employees, thereby discouraging membership in a labor union; that by interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by section 7 of the act (29 U.S.C.A. § 157) it had engaged in unfair labor practices within the meaning of section 8, subsec. 1 (29 U.S.C.A. § 158 (1); further, that such unfair labor practices “occurred in commerce and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.” The findings of the Board, having evidence to support them, are conclusive upon this court. Section 10 (e) of the act (29 U.S.C.A. § 160 (e); National Labor Relations Board v. Associated Press, 85 F.(2d) 56 (C.C.A.2).
Respondent’s business consists of the consolidating and arranging for transportation of packages, which are already on an interstate journey pursuant to a contract of sale between buyer and seller. The purpose is to obtain bulk rates for transportation. Ninety percent of the shipments are to buyers in other states. The only change which occurs in' the transitory stop, that of uniting into single and larger packages, is intended to facilitate and render more economical the shipment of merchandise. Respondent, acting as agent for out-of-state buyers, is engaged in interstate transactions which fall within the sphere of federal power. Texas Transp. & Terminal Co. v. New Orleans, 264 U.S. 150, 44 S.Ct. 242, 68 L.Ed. 611, 34 A.L.R. 907; McCall v. California, 136 U.S. 104, 10 S.Ct. 881, 34 L.Ed. 391.
Undoubtedly, the mere fact that goods are intended to be transported interstate does not bring their production or manufacture under the Commerce Clause (Const, art. 1, § 8, cl. 3). Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160. Nor does an interstate journey justify federal regulation of local activity which follows the termination of that journey. Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R, 947. But there is a region of intrastate activity, tied up with interstate transportation and communication, in which federal power may properly operate and from which state regulation may be barred. Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239; Lemke v. Farmers’ Grain Co., 258 U.S. 50, 42 S.Ct. 244, 66 L.Ed. 458; International Text-Book Co. v. Pigg, 217 U.S. 91, 30 S. Ct. 481, 54 L.Ed. 678, 27 L.R.A.(N.S.) 493, 18 Ann. Cas. 1103.
Moreover, there is a continuity of transit from seller to buyer in which the respondent participates. The transitory stop does not break the interstate journey. Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626. “It was merely halted as a convenient step in the process of getting it to its final destination.” Binderup v. Pathé Exchange, 263 U.S. 291, 309, 44 S.Ct. 96, 99, 68 L.Ed. 308.
The motion for enforcement is granted.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
songer_counsel
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" 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".
The FIRST NATIONAL BANK OF BEAVER, OKLAHOMA, Plaintiff-Appellant, v. Mac J. HOUGH and Leona B. Hough, Defendants-Appellees.
No. 78-1972.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 18, 1980.
Decided March 5, 1981.
M. Ralph Baehr, Wichita, Kan. (John B. Rathmel, Wichita, Kan., with him on brief), Render & Kamas, Wichita, Kan., for plaintiff-appellant.
Donald W. Bostwick, Wichita, Kan. (Laurence A. Stanton, Wichita, Kan., on brief), Adams, Jones, Robinson & Malone, Wichita, Kan., for defendants-appellees.
Before DOYLE, McKAY and LOGAN, Circuit Judges.
McKAY, Circuit Judge.
Plaintiff, a bank, brought this diversity action to recover from defendants a debt due and owing on a promissory note allegedly executed for defendants by their agent. After a trial to the court, judgment was entered for defendants, and the bank appealed to this court.
In 1972, defendants began investing in the cattle operations of the McKinney Cattle Company. For the most part, defendants’ dealings with the McKinney Cattle Company consisted of their delivering money to the company in return for which cattle would be pui’chased, fed, cared for, and sold by the company with a guaranteed profit returned to defendants.
On November 1, 1973, defendants executed powers of attorney which provided in part:
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Wallace G. McKinney and John C. Shaft, residents of the State of Kansas, the true and lawful attorney-in-fact of the undersigned ....
On January 15, 1974, McKinney, acting alone, contacted the bank and executed a one-year note for $150,000 on behalf of defendants. McKinney and the bank treated the note as a line of credit, and on January 15,1975, the due date of the note, a debt of $129,962.72 had been incurred and remained unpaid. The bank notified defendants of the indebtedness, but defendants professed to have no knowledge of the note or of the fact that McKinney had borrowed money in their name. The bank then brought suit against McKinney and defendants. McKinney was subsequently dismissed from the case.
The law of the forum state, Kansas, provides “that the lex loci contractus [the law of the place where the contract is made] governs the construction of contracts.” Fagan v. John Hancock Mutual Life Insurance Co., 200 F.Supp. 142, 143 (D.Kan.1961). Kansas courts also hold that “a contract is considered ‘made’ when and where the last act necessary for its formation is done.” Neumer v. Yellow Freight Systems, Inc., 220 Kan. 607, 556 P.2d 202, 204 (1976). Here, the powers of attorney were signed by defendants and notarized in their home state of North Carolina. Thus, North Carolina law determines whether McKinney had the unilateral power to borrow money on defendants’ behalf.
“One who seeks to enforce against an alleged principal a contract made by an alleged agent has the burden of proving the existence of the agency and the authority of the agent to bind the principal of such contract.” Albertson v. Jones, 42 N.C.App. 684, 257 S.E.2d 656, 657 (1979). In particular, the bank has the burden of proving that McKinnon had the authority, acting alone, to bind defendants to the loan agreement the bank seeks to enforce.
Because we find no North Carolina law which bears directly on the issue, we must assume that that state would apply the well-established general rule of agency that “[u]nless otherwise agreed, authority given in one authorization to two or more persons to act as agents includes only authority to act jointly .. .. ” Restatement (Second) of Agency, § 41(2). Indeed, “when an agency is given to more than one person, it is presumed that the principal intended the agency to be joint and to be exercisable only by the unanimous action of the agents.” Keough v. Kittleman, 74 Wash.2d 814, 447 P.2d 77, 78-79 (Wash.1968). See Unterberg v. Elder, 211 N.Y. 499, 105 N.E. 834 (1914). In the powers of attorney executed by defendants, it is clear and unambiguous that “Wallace G. McKinney and John C. Shaft” (emphasis added) were appointed as defendants’ “attorney-in-fact” (singular). When an instrument is this clear, we will not look to extrinsic evidence to contradict its statement about the principals’ intent. Under the quoted presumption, therefore, McKinney’s unilateral exercise of the power was unauthorized and could not bind defendants.
AFFIRMED.
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Thomas Michael POWELL, Petitioner-Appellee, v. U.S. BUREAU OF PRISONS, John Allman, Superintendent, etc., et al., Respondents, Attorney General of the United States, Respondent-Appellant.
No. 81-1595.
United States Court of Appeals, Fifth Circuit.
Jan. 17, 1983.
James A. Rolfe, U.S. Atty., Cheryl B. Wattley, Asst. U.S. Atty., Dallas, Tex., Patrick J. Glynn, U.S. Parole Com’n, Bethesda, Md., for respondent-appellant.
Eliot Dana Shavin, Houston, Tex. (Court-Appointed), for petitioner-appellee.
Before GOLDBERG, GEE and HIGGIN-BOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A Mexican court convicted Thomas Michael Powell for a drug offense and sentenced him to six years, three months in prison, the term to commence on May 14, 1976, and end on August 13,1982. Because of 336 days of work credits received by Powell during his imprisonment, the Mexican authorities changed the release date to September 8,1981. On April 30,1978, Powell was transferred to the United States pursuant to the Treaty between the United States and Mexico on the Execution of Penal Sentences (Treaty). On September 22, 1978, the United States Parole Commission paroled Powell. During parole, Powell was arrested and convicted for using a communication device to facilitate the importation of marijuana and was given a new two-year sentence. Based on this conviction, the Parole ‘Commission revoked Powell’s parole and ordered that he serve to two years, four months and seventeen days, the aggregate of the new sentence and the parole violation term. The presumptive parole date was extended to March 1, 1982. This order forfeited Powell’s Mexican work credits.
In his habeas petition, Powell argued below that the work credits permanently reduced his original sentence, preventing forfeiture of the credits when his parole was revoked. Rejecting the magistrate’s recommendation that the Mexican courts should determine the issue, the district court granted the writ of habeas corpus and ordered that Powell’s sentence be recomputed to restore the 336 days of work credit. Because we find that credits for work performed in a Mexican prison do not effect a permanent sentence reduction but can be forfeited for a parole violation after transfer, we reverse the finding of the district court.
Mootness of the Case
Powell argues that this court cannot reach the issue of the effect of the work credits on his Mexican sentence because the appeal is moot. Because the full term of the sentence imposed by the Mexican court, without considering the effect of work credits, ended August 13, 1982, Powell asserts that a reversal of the district court’s decision would have no practical effect. Powell’s argument assumes that the time that has passed since his early release as a result of the district court’s order of recomputation would be applied to the full term sentence. Yet the Supreme Court has held that “[m]ere lapse of time without imprisonment or other restraint contemplated by the law does not constitute service of sentence.” Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 44, 68 L.Ed. 247 (1923). See also Caballery v. United States Parole Commission, 673 F.2d 43, 46 (2d Cir.1982). Therefore, a reversal of the decision of the district court would mean that Powell could be made to serve the time remaining on his sentence at the time of his court-ordered early release. See Gill v. Garrison, 675 F.2d 599 (4th Cir.1982).
Powell argues that Article V(3) of the Treaty requires that the time that has elapsed since he was released awaiting appeal in this case be credited to his Mexican sentence. Article V(3) provides:
No sentence of confinement shall be enforced by the Receiving State in such a way as to extend its duration beyond the date at which it would have terminated according to the sentence of the court of the Transferring State.
Powell asserts that under Article V(3), the United States may not enforce his Mexican sentence so as to extend it beyond August 13, 1982, “the date at which it would have terminated according to the sentence of the court of the Transferring State.” We interpret the Treaty to mean that the date at which the sentence would have terminated is the time of expiration of the six-year, three-month period, not the specific date of August 13, 1982. The expiration of that six-year, three-month period would not occur until Powell served the balance of the sentence that remained at the time of his release. As Powell is yet exposed to confinement under the Mexican sentence this case is not moot.
Forfeiture of the Work Credits
Appellants argue that under the Treaty and the implementing legislation, work credits are to be treated as credits in the nature of good time that can be forfeited for parole violations rather than as sentence reductions. The Treaty provides in Article V(2):
Except as otherwise provided in this Treaty, the completion of a transferred offender’s sentence shall be carried out according to the laws and procedures of the Receiving State, including the application of any provisions for reduction of the term of confinement by parole, conditional release, or otherwise....
The treatment of work credits after parole revocation is not “otherwise provided” for in the Treaty, so the laws of the United States apply.
The Treaty’s implementing legislation treats foreign work credits as good time credits. 18 U.S.C. § 4105(c)(1) provides that “all credits for good time, for labor or any other credit” given by the transferring country shall be combined with good time credits subsequently awarded by the United States to provide a release date for the offender under 18 U.S.C. § 4164. This court has held that good time credits do not reduce the sentence imposed by a court; rather, “good time is a conditional right that may be forfeited upon violation of the conditions of the prisoner’s release.” Frierson v. Rogers, 289 F.2d 234, 235 (5th Cir.1961). See also Granville v. Hogan, 591 F.2d 323 (5th Cir.1979); Lambert v. Warden, 591 F.2d 4 (5th Cir.1979). As work credits are treated like good time credits under the implementing legislation, they, too, are forfeitable. 18 U.S.C. § 4105(c)(4) provides that “[a]ll credits toward service of the sentence, other than the credit for time in custody before sentencing, may be forfeited as provided in section 4165 of this title.... ” Section 4105(c)(4) is not directly applicable to Powell because § 4165 refers to forfeiture of credits for violations of the rules of the institution during the time of imprisonment, but it nonetheless demonstrates that the congressional interpretation of the Treaty was that work credits be considered an early release measure in the nature of good time credits, not immutable sentence reductions.
Powell relies on Article VI and Article V(3) to support his argument that the Mexican work credits effected a permanent sentence reduction that cannot be changed by United States authorities. Article VI provides:
The Transferring State shall have exclusive jurisdiction over any proceedings, regardless of their form, intended to challenge, modify or set aside sentences handed, down by its courts.
Article V(3) provides:
No Sentence of confinement shall be enforced by the Receiving State in such a way as to extend its duration beyond the date at which it would have terminated according to the sentence of the court of the Transferring State.
(emphasis added).
Powell’s argument proves too much. Both articles refer to the “sentence of the court.” Powell’s work credits were not part of the sentence of the court of Mexico but were administratively awarded credits for early release from his sentence. Likewise, the Mexican sentence computation document, which sets the release date as September 8, 1981 because of the work credits awarded, is an administrative, not a court document. The work credits recorded in that document are not evidence of modification of the judicially imposed sentence. Powell’s original sentence will “terminate[ ] according to the sentence of the Court” when he has served the six years and three months required by that sentence. As the work credits awarded him did not permanently reduce that sentence but were subject to forfeiture upon parole violation, the judgment of the district court is REVERSED.
. Under the Treaty a citizen of the United States, convicted of a criminal offense in Mexico, is permitted to transfer from Mexican to American custody for the balance of the sentence provided certain conditions are met. The offense for which he has been convicted must be generally punishable in the United States and must be neither a political nor an immigration offense. The transferring offender must be both a national of the United States and not a domiciliary of Mexico. Only prisoners with a minimum of six months remaining on their sentences, and for whom no appeal or collateral attack is currently pending in the Mexican courts, are eligible for transfer. Finally, Mexico, the United States, and the transferring prisoner must each consent to the change in custody.
. The district court opined that if the question were presented to a Mexican court, the decision would be favorable to petitioner, i.e., the 336 days of work credit would operate to reduce permanently the original sentence of the Mexican court. The court concluded, however, that it could not reasonably be expected that a decision could be reached before Powell’s release date.
. Powell relies on Bowers v. United States Board of Parole, 544 F.2d 898 (5th Cir.1977), in which the court determined that the case was mooted by petitioner’s unconditional release. In that case, however, even if the district court’s decision had been reversed, the petitioner would not have been subject to being reincarcerated because the controversy was over the procedures followed by the Parole Board. Here, the controversy is over the length of the sentence, and “the possibility remains that [Powell] can be reincarcerated.” Gill v. Garrison, 675 F.2d at 601.
. An analogous interpretation has been made of the Federal Youth Corrections Act, which provides in 18 U.S.C. § 5017(c):
A youth offender committed under section 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction.
Notwithstanding the reference to unconditional discharge six years from the date of the conviction, such sentences are interrupted and their termination dates correspondingly postponed when the committed youth offender is not actually serving the sentence. See, e.g., Henrique v. United States Marshal, 653 F.2d 1317 (9th Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1452, 71 L.Ed.2d 664 (1982) (abscondence from parole supervision); Ogg v. Klein, 572 F.2d 1379 (9th Cir.1978) (escape from confinement); United States v. Marshall, 532 F.2d 410 (5th Cir.1976) (civil contempt sentence); Frye v. Moran, 302 F.Supp. 1291 (W.D.Tex.1969), aff’d without ruling on issue, 417 F.2d 315 (5th Cir. 1969) (bail pending appeal).
. We observe that, were Mexican law to guide our decision, Article 81 of Mexico’s Penal Code states that there shall be a reduction of a prisoner’s time to be served for every two days work, provided that the prisoner observes good conduct, participates regularly in the educational activities that are organized in the institution and otherwise shows social readjustment, this last condition being indispensable. Thus, the award of work credits is conditional and subject to forfeiture.
. Powell points out that the United States Parole Commission has determined that street credits earned by transferees under the Treaty while on parole in Mexico may not be forfeited for parole violations committed in the United States. See 1977 U.S.Code Cong. & Ad.News 3146, 3157 (time served on parole before revocation must be credited). Street credits are not like work credits, however, because they represent time actually served. A forfeiture of street credits would be a forfeiture of time served and would result in an extension of the time of the sentence. A forfeiture of work credits is not a forfeiture of time served but rather a forfeiture of an early release credit like good time.
. Article VI(7) of the Treaty distinguishes between the sentence computation document and the document recording the sentence of the court and modifications thereof. That article provides:
The Transferring State shall furnish the Receiving State a statement showing the offense of which the offender was convicted, the duration of the sentence, the length of time already served by the prisoner and any credits to which the offender is entitled, such as, but not limited to work done, good behavior or pretrial confinement. Such statement shall be translated into the language of the Receiving State, and duly authenticated. The Transferring State shall also furnish the Receiving State a certified copy of the sentence handed down by the competent judicial authority and any modifications thereof.
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_appel2_1_4
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
GEORGOUSES et al. v. GILLEN et al.
Circuit Court of Appeals, Ninth Circuit.
February 20, 1928.
Rehearing Denied March 19, 1928.
No. 5230.
Bankruptcy <@=>396(5) — Bankrupts’ filing of homestead claims after adjudication held ineffective to create homestead exemption (Bankr. Act, § 47, as amended in 1910, and § 70a [II USCA §§ 75, 110] Civ. Code Ariz. I9I3> pars. 3288, 3289, 3292).
Under Bankruptcy Act, § 70a (11 USCA § 110), bankrupts’ title to their property passed to bankruptcy trustee on date of adjudication, and their subsequent filing of homestead claims under Civ. Code Ariz. 1913, pars. 3288, 3289, 3292, was ineffective to defeat trustee’s title to property involved; such state exemption statutes not being self-executing, but requiring filing of notice of homestead claim to create homestead status, and amendment of 1910 to Bankruptcy Act, § 47 (11 USCA § 75), vesting trustee with all rights and remedies of creditors holding lien on bankrupts’ property, did not diminish title vested in trustee under section 70a (11 USCA § 110).
Appeal from the District Court of the United States for the District of Arizona.
In the matter of John G. Georgouses and others, bankrupts. From an order confirming an order of the referee denying bankrupts’ homestead' exemption claims, bankrupts, opposed by D. M. Gillen, bankruptcy trustee, and others, appeal.
Affirmed.
Samuel White, of Phoenix, Ariz., for appellants.
Thomas W. Nealon and Thomas A. Flynn, both of Phcenix, Ariz., for appellee.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
DIETRICH, Circuit Judge.
On January 11, 1926, the four appellants, residing and engaged in the restaurant business at Phoenix, Ariz., were individually and as co-partners adjudged involuntary bankrupts, upon a petition filed a short time prior thereto. In their schedules, filed 10 days later, each claimed a homestead exemption. Upon a hearing had in proceedings for the withdrawal from administration of the property so claimed, the referee entered an order denying all the claims, which was thereafter confirmed by the District Judge. From the order of confirmation, the bankrupts prosecute this appeal. Two of them, James C. and Tony Georgouses, have abandoned their claims and stipulated that their appeals may be dismissed.
From the stipulation of facts it appears that the property in question, consisting of a single tract of agricultural land near Phcenix, was purchased with the funds of the partnership, and title thereto was, at least up to May 8, 1924, in the name of the appellant John G. Georgouses, who held it in trust for the partnership. The land wa: used by the partnership for dairying purposes, and continued in such use and in the possession of the partnership until it was taken over by a receiver appointed in the bankruptcy proceedings on December 31, 1925. There were, however, received in evidence instruments in the form of deeds, bearing date May 7, 1924, with notarial seal of the same date, and signed by John G. Georgouses, purporting to convey to appellants severally portions of or interests in the premises. These instruments were not placed on public record until December 24, 1925, a week before the institution of the bankruptcy proceeding.
By paragraph 3288 of the Revised Statutes of Arizona (Civ. Code 1913), it is provided that any head of a family residing in the state may hold as a homestead, exempt from execution, land in a compact body not to exceed the value of $4,000. But by paragraph 3289 it is further provided that, to avail himself of this privilege, the claimant must file for record in the office of the recorder of the county in which the property is situated a verified claim of a prescribed form. And paragraph 3292 provides that: “The homestead shall, from the date of the recording the claim of homestead, be exempt from attachment * * * and forced sale, and from sale under any judgment or lien existing prior to the recording of such claim, except a mortgage. * * * No such sale made after the recording of the claim of homestead shall be valid or convey any interest in such homestead, whether made under a judgment existing before or after the recording of such claim.”
No such claim was ever filed by any one of the appellants until January 27, 1926, 16 days after the adjudication, on which date each one of them executed in due form and filed for record a claim for the identical share of or interest in the dairy land conveyed to him by the deed already referred to as bearing date May 7, 1924. Whether, in view of the relation of the property to the partnership estate, the filing of homestead claims before the institution of the bankruptcy proceeding would have operated to defeat the claims of creditors against either the partnership or the individual members thereof, we do not deem it necessary to decide. Admittedly, the state exemption statute is not self-executing, and when the petition in bankruptcy was filed no part of the property had a homestead status.
We find no escape from the view that the case of White v. Stump, 266 U. S. 310, 45 S. Ct. 103, 69 L. Ed. 301, is controlling. True, the Arizona statute is not identical with the state statute there involved, and we are not unmindful that the language of a decision is not infrequently to he understood as qualified by the specific facts and issues under consideration; but in that case the Supreme Court apparently establishes a general standard, the basic principle of which is equally applicable to the instant .ease. Said the court:
“The provisions before cited show — some expressly and others impliedly — that one common point of time is intended and that it is the date of the filing of the petition. The bankrupt’s right to control and dispose of the estate terminates as of that time, save only as to ‘property which is exempt.’ Section 70a [11 USCA §' 110]. The exception, as its words and the context show, is not of property which would or might he exempt if some condition not performed were performed, hut of property to which there is under the state law a present right of exemption — one which withdraws the property from levy and sale under judicial process.”
Citing the amendment of 1910 to section 47 of the Bankruptcy Act (11 USCA § 75), to the effect that a trustee in bankruptcy is deemed to be vested with all the rights and remedies of creditors holding a lien on the bankrupt’s property, etc., appellants argue that the trustee has only a lien upon the property of the estate, and that, therefore, under the Arizona statute, differing in that respect from the Idaho law, the subsequent filing of the homestead claim defeats this as well as other liens. But that is to misapprehend the scope and purpose of the amendment. Under section 70a, the trustee, upon his appointment and qualification, is “vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt,” excepting only exempt property. In other words, without further or other proceeding, upon the trustee’s qualification he steps into the shoes of the bankrupt, taking his title and succeeding to all his rights. In re Britannia Mining Co. (C. C. A.) 203 F. 450. But in the practical administration of the law it was found that for the protection of creditors in certain contingencies it was necessary that the trustee be also invested with the rights and powers which creditors having specific liens might have exercised but for the institution of bankruptcy proceedings. Hence the amendment to section 47, which in no wise diminishes the title vested in him by virtue of section 70a, but under certain conditions places him in a position superior to that which he would occupy merely as a grantee or successor in interest of the bankrupt. 2 Collier on Bankruptcy (13th Ed.) p. 1053.
We are therefore of the opinion that, when the homestead claims here were filed, the title to the- property and the right of possession thereof had passed beyond their reach.
The decree below is affirmed.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Elaine G. PARKER, Appellant, v. SECRETARY, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Appellee.
No. 88-5295.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 23, 1989.
Decided Dec. 8, 1989.
James E. McCollum, Jr., College Park, Md., for appellant.
Diane M. Sullivan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, Michael J. Ryan, Asst. U.S. Attys. and Carol W. Bernstein, Attorney, U.S. Dept, of Housing and Urban Development, Washington, D.C., were on brief for appel-lee.
Before MIKVA, EDWARDS and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
MIKVA, Circuit Judge:
Appellant Elaine Parker appeals the district court’s judgment for the Department of Housing and Urban Development (“HUD”) in this Title VII action. Parker, a former auditor at HUD, alleged that HUD had discriminated against her on the basis of her race and/or sex in its decisions to demote her from a grade GS-13 to GS-11 and to deny her a within-grade pay increase. In addition Parker alleged that her supervisors had subjected her to discriminatory treatment by, inter alia, denying her educational opportunities accorded to others, failing to accord her the respect accorded white male GS-13 auditors in her department, and denying her the opportunity for a weekend return to her home during an extended field audit. The district court concluded that while Parker established a prima facie case of discrimination, she did not meet her burden of proving that the government’s reasons for adverse employment actions were a pretext for discrimination. In reaching this conclusion the district court stated that the evidence of the merit of Parker’s work was immaterial because Parker had not shown that the managers “were so clearly wrong that they, in fact, knew that they were.” We reverse this judgment because the district court did not apply the correct legal standards regarding what Title VII plaintiffs must prove to demonstrate pretext. We remand for further proceedings consistent with this opinion.
I. BackgRound
A. Parker’s Work Experience
Elaine Parker, a black female, began her career with the federal government as a clerk typist in 1964. Through evening education she received her B.A. degree in accounting in 1975 and advanced to the position of auditor, first at the Department of Transportation as a GS-7, progressing to a GS-11. Later she moved to the Department of Commerce to work as a GS-12 Auditor-Manager. In 1979 Parker applied and was selected for a position at HUD. She entered HUD as a GS-13 supervisory auditor in the Technical Services Division of the Office of the Inspector General (“OIG”), which was headed by Glen Dale.
Mr. Dale interviewed Ms. Parker for this position. At trial Parker testified that upon meeting her, Dale appeared startled, stating that he had assumed Parker was white because of her maiden name, Gar-bett. According to Parker, the entire interview proceeded in a discriminatory fashion because Dale: (1) suggested incorrectly that she had falsified her qualifications form; (2) suggested that being a black female was an “asset” that led to Parker’s advancement; and (3) failed to discuss the substance of the job position. Dale testified that he did not recall anything about the interview other than discussing “varying aspects of the job and so forth.” Dale did not recommend Parker for the job, he testified, because, based on her application and the interview, he did not believe she had the necessary writing and oral skills for the position. Dale conceded that he never saw a writing sample. Dale recommended a white female for the job but Dale’s supervisor, Mr. Yazurlo, selected Parker. At the time Parker was the only black, female auditor at HUD in grades 13 through 15.
Parker spent her initial year at HUD working under Dale. The three other GS-13’s in the department were all white males. Parker asserted at trial that Dale initially gave her little work to do and then gave her “above-grade” tasks which the other GS-13’s in her group were not required to complete. Dale denied these allegations. Early in Parker’s tenure with HUD, Dale sent Parker to San Francisco to work on an audit of a mortgage company. Dale testified that this was part of Parker’s “training” and that he sent her to San Francisco, as opposed to a closer location, because ninety percent of the agency’s “Mortgage Review Board” cases came from the San Francisco region. Parker testified that Dale told her that there were three other audits that were geographically closer, including one in Washington D.C., but that he felt she would get the best exposure in California. Parker was assigned to supervise three lower grade employees who, because of her unfamiliarity with the mortgage area, knew more about the audit than she did. The audit took about five weeks to complete.
During the entire audit Parker did not return home for a weekend visit, despite a HUD policy which would have allowed such a visit after two weeks. Parker claims that Dale told her before she left that his budget would not allow such a visit. According to Parker, after her supervisor in California intervened on her behalf, Dale called her two days before the audit was to be completed and told her to “come home” because he was getting heat about her lack of a weekend visit. ■ Parker said she would rather complete the two remaining days before returning home. Dale testified that he called Parker at the end of two weeks to tell her she was entitled to a weekend return, to which Parker replied, “ Tf I come borne now it will just draw the thing out and it will make it longer. I would like to stay and get it over with.’ ” Thus, according to Dale, at the end of four weeks Parker called him saying she' wanted to come home at which point he told her it made no sense with just a few days to go. Parker claimed that no other GS-13’s in the group did field audits while she was in Dale’s department although Dale refuted this claim.
Upon return from California, Dale informed Parker that he was going to give her a warning letter regarding her performance. He admitted, however, (1) that he had not yet reviewed her performance on the California audit; (2) that the audit was in fact a “training function;” and (3) that “[s]he could have improved during that period out there.” Although Dale prepared the warning letter, he never gave it to Parker because Mr. Yazurlo intervened and arranged for Parker’s transfer to the Audit Operations Division under the supervision of George Henderson, a black male.
On two occasions Parker requested Dale’s assistance in getting approval for certain educational opportunities. After Parker had been with HUD for six months, Dale refused to fill out an evaluation form that Parker requested in order to enroll in an executive management program. During the same period Parker requested consideration for a graduate program at American University which HUD sponsored for its employees. Dale also refused to recommend Parker for this program. Dale testified that at that point he did not feel he knew enough about Parker to give her a recommendation. Parker also testified that a white male who assumed the position she had held in Dale’s department, successfully applied under Dale for the American University program within two months of transferring to that department. Dale testified that the male in question had been a HUD employee for several years prior to transferring to his department.
Parker also claims that Dale made derogatory statements to her such as “women like you should be home having babies.” Dale denied having made such remarks or any sexist or racist remarks. Dale’s former secretary testified that she believed Dale preferred men on his staff and that he rated them higher than Parker and another female auditor. Parker claimed that Dale treated her differently than the other GS-13’s he supervised, claiming that Dale was hostile toward her while his other supervi-sees were afforded an open-door rapport with him. Dale denied these assertions.
At trial Parker conceded that she had a good working relationship with her immediate supervisor, Mr. Henderson, during her first six months as an “area audit supervisor” in the Audit Operations Division of HUD’s OIG. Mr. Kirkendall, a white male GS-15, was head of that division and was Parker’s second line supervisor. Once transferred to Audit Operations, Parker immediately was assigned to a complex audit which had been initiated by another GS-13 auditor, with whom Parker had exchanged positions. The assignment was an audit of HUD’s payroll system, “TOPPS.” Parker testified that the audit was in a chaotic state and that within one month of taking it over, Henderson requested that she start compiling her findings in a written report. Parker was supervising three other auditors on the project. She claimed that she repeatedly requested additional time to develop data; in particular she claims that she alerted Henderson to the fact that payroll checks were being sent to persons no longer employed at HUD and that in order to find the source of the problem, a computer test was needed. Henderson agreed but further testified that they decided not to order the test because it would take months to complete. Henderson testified that he, Kirkendall and Parker jointly made this decision.
In October, 1980, Henderson reviewed several of Parker’s early drafts of the TOPPS report and gave her a “fully satisfactory” performance rating. He noted, however, that she needed to improve her writing and data recordation skills. In the months prior to issuing this performance evaluation, Henderson had worked closely with Parker in trying to “beef up” the factual support for the report and get the report in an acceptable form. Parker suggested that he micro-managed her, flooding her with written requests for justification of her actions rather than using oral communication. At some point after the October evaluation, Henderson took Parker off the TOPPS audit and assumed responsibility for finalizing the report. She claimed she was not informed as to why she was taken off the audit. In January of 1981, Henderson conducted a thorough review of the TOPPS audit and another complex audit to which Parker had been assigned, the “GNMA Audit”. He then issued a 60-day warning letter advising Parker that if she did not improve her performance, she would be denied a within-grade increase. Henderson’s chief concern with the TOPPS and GNMA audits was that the data generated during the audits did not support the written findings and conclusions.
Parker testified that prior to this warning letter she was not told of any serious performance problems and she suggested that she was made the “fall guy” for management’s decision not to perform computer testing in the TOPPS audit. Mr. Kirkendall’s superior ordered independent reviews of the GNMA and TOPPS audits, and the reviews criticized the performance of both Parker and Henderson. The report concluded that both Henderson and Parker had performed unsatisfactorily.
After the warning letter, Parker was assigned to two less complex audits to give her a chance to improve her performance. Because he observed little improvement, Kirkendall asserted, he denied Parker’s within-grade increase in May, 1981. In July of 1981, Kirkendall issued to Parker a notice of intention to assign an end-of-year unsatisfactory rating and a 60-day period for improvement. After a determination by Henderson and Kirkendall that there had not been any improvement during the following 60 days, Kirkendall issued to Parker an unsatisfactory rating and proposed to downgrade her from a GS-13 to GS-11. Kirkendall testified that he selected the GS-11 level because Parker had demonstrated performance problems on “contract” audits ordinarily performed by much less senior auditors and because many GS-12 auditors are required to act in significant supervisory capacities. Prior to making a final decision on the downgrade, the Deputy Inspector General, Paul Adams, ordered the independent review of Parker’s work. Adams concluded that the information in this review supported downgrading Parker. At the time, Parker was the only employee in the department who had ever been downgraded, with the exception of a white male who had an acute alcoholism problem.
Another black female who replaced Parker, Dorothy Norwood, was also downgraded from a GS-13 to a GS-11. She filed an EEO claim which HUD settled and is now a GS-12 at another agency.
B. The District Court’s Decision
Prior to initiating this action, Parker appealed HUD’s decision to demote her to the Merit Systems Protection Board (“MSPB”). In December, 1985, the MSPB sustained the demotion without addressing the issue of employment discrimination. In June, 1981 Parker had filed a formal discrimination complaint against HUD alleging that actions were taken against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1982). Prior to receiving a final decision from the EEOC, Parker filed this action in district court, alleging sexual and racial discrimination in violation of Title VII. Parker charged that HUD had discriminated against her because of her race and/or sex by, inter alia: (1) demoting her from Auditor, grade GS-13 to GS-11; (2) denying her a within-grade pay increase; (3) denying her training opportunities accorded to others; (4) deliberately assigning her above-grade duties before she had an adequate opportunity to become trained; (5) failing to follow HUD policies, including an unjustified denial of a weekend home visit from an extended field audit; and (6) failing to accord her the status and treatment accorded white male GS-13 auditors, including subjecting her work to an unusual standard of scrutiny.
After a five-day trial, the District Court entered judgment from the bench immediately after closing argument. In a three page memorandum order, the court apparently concluded that Ms. Parker had established a prima facie case of racial and/or sexual discrimination, stating that the “adverse employment decisions were made respecting her which could conceivably have been motivated by prejudice.” The court reasoned, however, that Parker failed to carry her burden of demonstrating that the legitimate, non-discriminatory reasons given for the adverse employment decisions were pretextual. Although some other blacks and females had “subjective impressions of racial and/or sexual bias permeating the agency’s management,” the court concluded that none of these witnesses were “materially similarly situated” to Parker. The court found Parker to be a “sincere” witness and stated that it believed her, “to the extent that she believes she is a victim of discrimination.” It credited, however, “the testimony of the several managers alleged to be discriminating officials in their denials ... and ... their testimony as to the reasons given for their adverse employment decisions.”
In concluding that Parker had failed to carry the burden of persuasion, the court stated that the plaintiffs evidence with respect to the merits of her work “would only be material if there were evidence to prove that the managers were so clearly wrong that they, in fact, knew that they were, and consequently, another motivation for their decisions must be inferred.” In addition, the court opined that “[i]t is contrary to experience and common sense to expect that any of [the supervisors] would deliberately violate the law of the government in which they serve, and a finding to that effect would have to be based on more than evidence of their personal opinions.”
II. Analysis
A. The Standards for Demonstrating Pretext
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth the basic allocation of burdens and order of presentation of proof in Title VII cases alleging discriminatory treatment. The Court aptly summarized the McDonnell ruling in a later case:
First, -the plaintiff has the burden of proving by the preponderance of evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1980) (citing McDonnell, 411 U.S. at 802-04, 93 S.Ct. at 1824-25). At issue in the instant case is the legal standard governing the means which a plaintiff may employ to demonstrate pretext. As the Supreme Court explained in Texas Dept. v. Burdine, if the defendant carries its burden of rebutting the presumption raised by the prima facie case, i.e. if it raises a genuine issue of fact by offering evidence of legitimate, nondiscriminatory reasons, then “the factual inquiry proceeds to a new level of specificity.” 450 U.S. at 255, 101 S.Ct. at 1094.
The plaintiffs burden of demonstrating pretext merges with the ultimate burden of persuasion, which she retains. She may succeed in demonstrating pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Bur-dine, 450 U.S. at 256 (citing McDonnell, 411 U.S. at 804-05). Evidence relevant to demonstrating pretext might include: (1) a showing that materially similarly situated white or male employees did not receive the same adverse action received by the plaintiff; (2) facts as to the employer’s treatment of the plaintiff during the term of employment; and (3) the employer’s general policy and practice with respect to employment of minorities and women. Statistical information as to an employer’s policies and practices may also be used to help show that the employer's adverse actions conformed with a pattern of discrimination against minorities or women. See McDonnell, 411 U.S. at 804-05, 93 S.Ct. at 1825-26.
B. Application of Standards to Parker’s Case
We note that Parker’s case involves two types of allegations. First, she claims she was discriminated against in being demoted and denied a within-grade pay increase. Second, she asserts that she endured discrimination on the job through adverse actions, e.g. denial of access to educational opportunities, which other non-black and/or non-female employees were not subjected to. Most of the allegations in this second class pertain to the purported actions of Mr. Dale. Turning to the district court’s disposition of this case, we agree with the district court that Parker succeeded in establishing a prima facie case of discrimination with respect to the first class of allegations and to a limited extent regarding the second class. “The burden of establishing a prima facie case of disparate treatment is not onerous.” Texas Dept. v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Parker needed only to prove by a preponderance of the evidence that adverse actions were taken against her under circumstances giving rise to an inference of unlawful discrimination. Thus, her status as a racial minority and a woman, her apparent qualifications for the job which she held, and her singular treatment in being demoted two grades give rise to such inference. See id. at 253 & n. 6, 101 S.Ct. at 1093 & n. 6. (describing an appropriate model for a case of prima facie discrimination). Similarly, the fact that Parker as a black female was denied educational opportunities when another white male employee was not, gives rise to an inference of discriminatory treatment.
To the extent, however, that the record does not establish that other adverse actions were in fact taken against Parker, we are unable to apply the McDonnell analysis. For example, it is not clear from the court’s findings or the record before us that Mr. Dale in fact assigned Parker above-grade work or denied her a home visit during the California audit. The efficacy of these residual allegations turn on credibility determinations which the court was required to make. The court “credit[ed] the testimony of the several managers alleged to be discriminating officials in their denials ... and credited] their testimony as to the reasons for their adverse employment decisions respecting plaintiff.” (emphasis added). This finding, however, does not articulate clearly how the district court intended to dispose of those allegations other than the demotion and pay increase matters — adverse actions which, if taken, could not be justified solely with reasoning tied to Parker’s work performance. If on remand it were established that Dale’s alleged treatment of Parker, e.g. disparate treatment in assigning work, constituted a violation of Title VII, Parker may be entitled to attorneys fees as a form of equitable relief available under the Act. Bundy v. Jackson, 641 F.2d 934, 946 n. 12 (D.C.Cir.1981).
To the extent that adverse actions taken against Parker plausibly relate to work performance, we affirm the district court’s conclusion that HUD offered legitimate, non-discriminatory reasons for such action. With respect to the denial of educational opportunities, it may be that Mr. Dale articulated legitimate reasons for his actions, but the district court must make findings to that effect.
We find that the court erred in its statements of law with respect to Parker's burden of demonstrating that HUD’s reasons for adverse actions were pretextual. The court’s pronouncement as to the immateriality of Parker’s evidence on the merits of her work has no basis in the law. The court claimed that Parker’s evidence of her work performance — more appropriately, her attempt to show that she was singled out for adverse treatment — “would only be material if there were evidence to prove that the managers were so clearly wrong that they, in fact, knew that they were.” The Supreme Court, however, has imposed no such materiality standard on plaintiff’s attempted showings of pretext. Thus, the evidence offered by Ms. Parker is entitled to the full consideration of the trial court for the purpose of determining whether HUD’s reasons for its actions were a pretext or whether they in fact deserved credence.
Equally insupportable is the district court’s pronouncement that “[i]t is contrary to experience and common sense to expect that any of [the supervisors] would deliberately violate the law of the government in which they serve.” If the court intended this proposition to serve as a legal presumption contributing to its analysis of whether Parker carried her burden of persuasion, it is reversible error. Moreover, the proposition can hardly withstand factual scrutiny. See “A System of Failure,” National Law Journal 1 (April 24, 1989) (In 1987, 91 plaintiffs succeeded in discrimination claims against the federal government.).
Because the district court did not articulate the appropriate legal standards in this case, we are unable to discern whether it provided an acceptable basis for its decision. Consequently, we remand for further proceedings. In light of the district court’s incorrect statements of law, we need not review the district court’s remaining factual findings. We emphasize, however, that specific findings of fact are especially useful to a court reviewing the merits of a Title VII claim. This court would have benefitted from a more specific disposition of the allegations traceable to Mr. Dale. In addition, at least one of Parker’s witnesses, Dorothy Norwood, may have been similarly situated to Parker for the purpose of attempting to demonstrate a discriminatory atmosphere at HUD. Norwood, a black female who took over Parker’s position at HUD after Parker left, was also a GS-13 who was subsequently demoted to a GS-11, and was also the only person in the department to receive this treatment. Although neither Henderson nor Kirkendall were involved in demoting Norwood, her demotion may be relevant to establishing the existence of a discriminatory atmosphere, which in turn could serve as circumstantial evidence of individualized discrimination. See Conway v. Electro Switch Corp., 825 F.2d 593, 596-98 (1st Cir.1987). The district court does not explain the basis for its conclusion that Nor-wood and other witnesses testifying to impressions of discrimination were not “materially similarly situated.” Again, more detailed findings of fact would have been useful in providing a clear basis for the court’s reasoning.
III.
For the reasons outlined, we remand this case to the district court for further proceedings consistent with this opinion.
It is so ordered.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
ACORN, Don Davis and Rev. Hosea Ward, Appellants, v. Mayor David WALLIS, Chief of Police Bobby Norman and The City of Pine Bluff, Appellees.
No. 82-2512.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 14, 1983.
Decided Sept. 23, 1983.
Robert Tolson, Jr., City Atty., Pine Bluff, Ark., and Gill, Skokos, Simpson, Buford & Owen, P.A., Little Rock, Ark., for appellees.
Andrew Weltchek, Bachmann & Welt-chek, New Orleans, La., Richard Quiggle, Little Rock, Ark., for appellant.
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
PER CURIAM.
ACORN and two of its officers appeal the order of the district court denying their request for attorney’s fees under 42 U.S.C. § 1988. We affirm.
Appellants brought a civil rights action against various officials of the City of Pine Bluff, Arkansas, alleging that defendants had deprived them of equal protection and their first amendment rights by restricting an activity known as “tagging” or “road blocking,” that is, the solicitation of contributions from and distribution of information to persons in motor vehicles stopped at intersections. Specifically, appellants challenged the application of a city policy allowing only charitable organizations to tag, which resulted in the denial of permission to ACORN members to tag on certain specified occasions. Appellants sought declaratory and injunctive relief, damages, and attorney’s fees. On the same date the complaint was filed they also petitioned the district court for a preliminary injunction.
Defendants/appellees answered the allegations of the complaint by stating as follows:
[W]hile the stated policy of the City of Pine Bluff is to limit road blocking to charitable organizations, in practice there has been no limitation on who may road block and the plaintiffs have themselves be[en] granted the opportunity to road block. The only limitation that the City of Pine Bluff has imposed upon road blocking is that it has limited each charity or other organizations seeking to road block to road blocking only once a year. ... [T]he plaintiff maintained a road block in the City of Pine Bluff in November, 1981 and ... the plaintiffs have been advised that they would be allowed to maintain a road block ... during the Fall of 1982.
Appellees also opposed the request for a preliminary injunction.
On the date scheduled for a hearing on appellants’ motion for a preliminary injunction the parties appeared with their attorneys, who advised the court that the injunction was unnecessary. In this regard counsel for appellants stated,
The City has agreed, without making concessions on the merits, of course, and without us insisting on that, simply to suspend enforcement of their policy with regard to tagging and allow ACORN to tag while the City Council considers the question and undertakes to pass an ordinance or issue some further policy in the matter, which we will then consider on its merits and come back to this Court for leave to amend or dismiss our complaint, depending on the status of the situation at that time.
Counsel for appellees concurred in these remarks.
A few days later counsel for appellees wrote to opposing counsel, advising that the City Council would consider the tagging question at an upcoming public meeting. In responding to this letter, counsel for appellants stated that members of ACORN would “readily accept” an ordinance restricting tagging to specified intersections and allowing only one organization to tag on any given date. Counsel added,
If the City sees fit to attempt to outlaw tagging altogether, we will give very serious thought to litigating that issue. In the meantime, however, since we feel the City is considering the matter in good faith, we see no reason to continue the present lawsuit.
Appellants subsequently dismissed their suit without waiting for definitive action on the tagging question by the City Council. Shortly thereafter, the City Council voted to prohibit all tagging activity conducted at city intersections.
After dismissing the action appellants moved for an award of $368.59 in costs and $8,654.40 in attorney’s fees under 42 U.S.C. § 1988. The district court denied the award, reasoning that appellants had not prevailed on the merits of any of their claims. The court also found that appellants’ action was not a catalyst of change favorable to appellants since the City of Pine Bluff now prohibits tagging altogether.
On appeal, appellants assert that they prevailed on their equal protection claim because they obtained the right to tag when the City suspended enforcement of its policy allowing tagging only by charitable organizations. In countering this argument, appellees contend that appellants were not prevailing parties since no determination or acknowledgement of the merits of their claims was made at any juncture.
We note initially that the district court and the parties correctly framed the fundamental issue for decision in this case, namely, whether appellants are prevailing parties within the meaning of 42 U.S.C. § 1988. In Hensley v. Eckerhart, — U.S. —, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), the Supreme Court stated,
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.’ [Citation omitted].
An earlier Supreme Court decision, Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), elaborates on the standard noted in Hensley. In discussing the propriety of an award of attorney’s fees in a case in which the appellate court reversed the decision of the district court and remanded for a new trial, the Court in Hanrahan stated,
Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney.
Id. at 758, 100 S.Ct. at 1989. Our own formulation of the appropriate standard also emphasizes the need for a favorable determination of a significant issue raised by the party seeking to recover attorney’s fees. E.g., Reel v. Arkansas Department of Correction, 672 F.2d 693, 697 (8th Cir.1982).
In the instant case it is clear that appellants did not prevail. The district court did not determine the merits of either of the constitutional claims asserted. In addition, appellants did not obtain any concessions on the merits of the litigation when appellees agreed to allow ACORN members to tag pending action by the City Council. Appellants contend that their suit was the catalyst that brought about the suspension of tagging restrictions by the City, but this contention is unsupported by the record before us. See United Handicapped Federation v. Andre, 622 F.2d 342 (8th Cir.1980). In light of appellants’ voluntary dismissal without obtaining any concessions on the merits from appellees or a judicial determination of substantial rights, they cannot recover attorney’s fees. See Hensley v. Eckerhart, supra; Hanrahan v. Hampton, supra; Fast v. School District of Ladue, 712 F.2d 379 (8th Cir.1983); Reel v. Arkansas Department of Correction, supra; Fox v. Parker, 626 F.2d 351, 354 (4th Cir.1980) (plaintiff not entitled to award of attorney’s fees for time spent on voluntarily dismissed appeal).
Accordingly, the judgment of the district court is affirmed.
. ACORN is an acronym for the Association of Community Organizations for Reform Now.
. In this regard, counsel for appellants proposed a system under which an organization that wished to tag could reserve a specific date up to one month in advance.
. Appellees maintain that the policy suspended by the City pending City Council action was the “one solicitation per year” policy allegedly invoked on certain prior occasions to disallow tagging by appellants.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_district
|
C
|
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".
Nicola PANICHELLA v. PENNSYLVANIA RAILROAD COMPANY, Appellant WARNER BROTHERS PICTURES, INC., Third-Party Defendant.
No. 12810.
United States Court of Appeals Third Circuit.
Argued May 5, 1959.
Decided June 12, 1959.
Rehearing Denied July 14, 1959.
See also 252 F.2d 452.
John David Rhodes, Pittsburgh, Pa. (Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for appellant.
James P. McArdle, Pittsburgh, Pa. (John A. DeMay, Gene K. Lynch, Pittsburgh, Pa., on the brief), for plaintiff-appellee Nicola Panichella.
J. Lawrence McBride, Pittsburgh, Pa. (Dickie, McCamey, Chilcote & Robinson, Pittsburgh, Pa., on the brief), for appel-lee Warner Bros. Pictures, Inc.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
STALEY, Circuit Judge.
The question posed by this appeal is a narrow one. Is a clear and precise release executed by a railroad employee discharging a named party and all other persons, firms and corporations of and from any and all claims, demands, rights and causes of action whatsoever arising by reason of a specific accident effective to bar the employee’s action under the Federal Employers’ Liability Act (FELA), 45 U.S.C.A. § 51 et seq., against his employer-railroad for damages sustained in the same accident described in the release ?
Plaintiff, Nicola Panichella, brought the action below under the FELA against the defendant-railroad to recover damages for injuries sustained when he fell upon a public sidewalk in Greensburg, Pennsylvania, on December 14, 1950. The railroad filed an answer and joined as third-party defendant Warner Brothers pictures, Inc., the owner-occupant of the property adjoining the sidewalk upon which the accident occurred.
Plaintiff was employed by the railroad as a trackman and on December 13, 1950, reported for work at 7:00 a. m. During-the day he was assigned to sweeping switches clean of the snow that covered: the area. There had been a recent snowfall that, combined with the accumulation from a severe snow storm of a few weeks earlier, necessitated overtime work. As a result of his seniority, plaintiff was given an opportunity to volunteer for overtime work, which he did. Following his second eight-hour shift, the plaintiff continued to work up until the time the accident occurred at approximately 7:00 a. m. December 14, 1950. The railroad supplied plaintiff an evening meal at the Palace Restaurant and a packaged lunch which he ate during the night of December 13.
The following morning at about 7:00 a. m. plaintiff was directed to return to the same restaurant, about a mile distant from his place of work, for the purpose of having breakfast and bringing back lunch for himself and his foreman. To reach the restaurant he had to walk through a public park and along public sidewalks. While en route plaintiff slipped and fell on the sidewalk abutting the Warner property. The condition of the sidewalk was variously described as rough ice topped with light snow; ice in ridges, wavy-like and a little rough; and as covered with a very thin slush. There had been some overnight snowfall.
The injury sustained by the plaintiff was a transverse fracture of the first lumbar vertabra. Hospitalization for about a month followed, and plaintiff remained in a body cast for twelve weeks. He lost about six months employment as a result of the injury and upon return to his former work claimed residual pain. At the time of trial plaintiff was 65 years of age.
Prior to the institution of the instant action, plaintiff engaged an Irwin, Pennsylvania, attorney to represent him. The attorney negotiated a settlement with The Travelers Insurance Company, liability carrier for Warner. The settlement called for payment of $1,375, and prior to execution of the release it was explained to plaintiff by his attorney. It was executed on October 28, 1952, twenty-two months after the accident. The railroad paid none of the consideration for the release, and was not a party to it, nor in fact was it aware of the settlement until November 4, 1952.
At the trial, both the railroad and the third-party defendant relied upon the release, which is set forth in the margin. After some deliberation, the trial court concluded that the release was clear and unambiguous and to be construed as a matter of law, and the jury was never advised of its existence. The court denied the railroad’s motion for directed verdict. The jury returned special findings as follows: the railroad was 55% negligent; plaintiff was 45% negligent; damages were in the amount of $30,000; Warner was not guilty of negligence which was the proximate cause of the accident. Accordingly, judgment was entered in favor of the plaintiff in the amount of $16,500 and credit subsequently allowed for $1,375, the amount plaintiff received from Travelers in consideration for the release to Warner. The railroad’s motions for judgment n. o. v. or a new trial were denied.
The main contention of the defendant-railroad on this appeal is that the trial court erred in failing to hold that the release obtained by Travelers Insurance Company, on behalf of Warner, inured to its benefit and therefore precluded recovery. Plaintiff, while admitting the validity of the release as such, contends that the railroad’s attempt to utilize or gain the benefit of the release is an artifice and prohibited by Section 5 of the Act of April 22, 1908, 35 Stat. 66, 45 U.S.C.A. § 55.
Although the railroad has expressed some doubt as to whether federal or state law should apply in regard to the effect of this release, we agree with the plaintiff that this is a case for the application of federal law. The right was created by federal law, and whether subsequent acts of the plaintiff have extinguished it should be determined by federal law. As the Supreme Court stated when considering this question in South Buffalo Railway Co. v. Ahern, 1953, 344 U.S. 367, 372, 73 S.Ct. 340, 343, 97 L.Ed. 395, “ * * * peculiarities of local law may not gnaw at rights rooted in federal legislation.” This admonition is especially apropos in considering rights granted to railroad employees by Congress under the FELA. Also see Dice v. Akron, C. & Y. R. R. Co., 1952, 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398.
As the plaintiff readily admits, Section 5 of the Act of April 22, 1908, was never intended to forbid bona fide agreements of release. The Supreme Court considered an attack upon releases per se in Callen v. Pennsylvania R. R. Co., 1948, 332 U.S. 625, 631, 68 S.Ct. 296, 298, 92 L.Ed. 242, and held that “ * * * a release is not a device to exempt from liability but is a means of compromising a claimed liability and to that extent recognizing its possibility. Where controversies exist as to whether there is liability, and if so for how much, Congress has not said that parties may not settle their claims without litigation.” Accord, South Buffalo Railway Co. v. Ahern, supra; cf. Dura Electric Lamp Co. v. Westinghouse Electric Corp., 3 Cir., 1957, 249 F.2d 5.
The release in question is conceded to be bona fide in and of itself. The plaintiff could hardly contend otherwise, for it was negotiated by his then attorney, for a substantial consideration, twenty-two months after the accident, signed only after a thorough explanation by his attorney and a complete disclosure by Travelers Insurance Company of its contents. There has been no allegation of overreaching and none can be discerned.
However, plaintiff contends that although a bona fide release negotiated and paid for by a railroad is a valid defense in an FELA case, the use of an admittedly bona fide release not obtained by the railroad and not paid for by it is invalid under the terms of Section 5 of the Act of April 22, 1908. He admits that the broad terms of the release would cover the railroad but contends that its use of it, without any connivance or agreement with Warner whatsoever, is a prohibited artifice. We fail to discern the rationality of this argument, for it was the act of the employee who voluntarily, knowingly, and advisedly entered into the release which extinguished his rights and not any act of the railroad. The railroad merely brought the fact of the release to the attention of the court in order to have the law operate thereon. In effect this is no different than the act of the railroad in bringing to the attention of the court a release it had negotiated. Assuming a bona fide release in either case, there is no artifice. It is indeed far-fetched to contend that the mere act of bringing to the attention of a court facts which are relevant to the defense of a suit is an artifice.
The only other case in which this problem has been considered, Falco v. Pennsylvania R. R. Co., 1951, 202 Misc. 769, 109 N.Y.S.2d 279, concluded that since a general release to the employer-railroad is not proscribed, the reasoning underlying that holding is even more cogent when the employer is not a party to the release. For, in the latter case, there is less danger that the disparity of bargaining power will adversely affect the negotiation.
The judgment in the main action will be reversed.
Appeal was also taken by the railroad from the judgment in favor of the third-party defendant. In view of what we have heretofore said, the judgment in favor of Warner Brothers Pictures, Inc., will be affirmed.
. “General Release — Individual
“Know All Men by These Presents :
“That I, Nicholo Panichelli, residing at 409 White Street, Greensburg, Penna., being of lawful age, for the sole consideration of One thousand three hundred seventy five & no dollars ($1,375.00) to me in hand paid, receipt whereof is hereby acknowledged, have remised, released, and forever discharged, and. for my heirs, executors, administrators, and assigns do hereby remise, release, and forever discharge Warner Brothers Pictures, Incorporated and his, her, their, and its successors and assigns, heirs, executors, administrators, and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property, and the consequences thereof, resulting, and to result, from a certain accident which happened on or about the 14th day of December 1950, for which I have claimed the said Warner Brothers Pictures, Incorporated to be legally liable, which liability is hereby expressly denied.
“In Witness Whereof, I have hereunto set my hand and seal the 28th day of October in the year one thousand nine hundred fifty-two (1952).
“Sealed and delivered in the presence of
“[Sgd.] Nicholo Panichelli Nicholo Panichelli
“Witness [Sgd.] Max M. Ber&ad Address Irwin Pa.
Witness [Sgd.] Edmund J. McDonald
Address 309 Main St., Irwin Pa.
“State of Pennsylvania 1
County of Westmoreland j
ss*
“On this 28th day of October 1952 before me personally appeared Nicholo Panichelli to me known, and known to me to be the same person described in and who executed the above instrument and he (or she) acknowledged to me that he (or she) executed the same.
“[Sgd.] Edmund J. McDonald
Justice of the Peace
“My Commission Expires First Monday in January, 1958”
(Seal)
The difference in spelling of the plaintiff’s name in the release and in the caption of the case is of no significance.
. Panichella v. Pennsylvania Railroad Co., D.C.W.D.Pa.1958, 167 F.Supp. 345.
. “Contract, rule, regulation, or device exempting from liability; set-off.
“Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.” 45 U.S.C.A. § 55.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_adminaction_is
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
UNITED STATES v. JEFFERS.
No. 3.
Argued October 15, 1951.
Decided November 13, 1951.
Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Perlman, Assistant Attorney General Mclnerney and John F. Davis.
T. Emmett McKenzie argued the cause for respondent. With him.-on the brief was James K. Hughes.
Mr. Justice Clark
delivered the opinion of the Court.
Here we are faced with troublesome questions as to the exclusion from evidence, on motion of the accused, of contraband narcotics claimed by him which were seized on the premises of other persons in the course of a search without a warrant. On the basis of the seized narcotics, the accused, respondent here, was convicted of violation of the narcotics laws, 26 U. S. C. § 2553 (a) and 21 U. S. C. § 174. Prior to trial the District Court had denied respondent’s motion to suppress, as evidence at the trial, the property seized. The Court of Appeals reversed the conviction by a divided court, '88 U. S. App. D. C. 58, 187 F. 2d 498. Since a determination of the question is important in the administration of criminal justice, we brought the case here. 340 U. S. 951.
The evidence showed that one Roberts came to the Dunbar Hotel in the District of Columbia on Monday, September 12, 1949, at about 3,p. m., sought out the house detective, Scott, and offered him $500 to let him into a room in the hotel occupied by respondent’s two aunts, the Misses Jeffries. Roberts told Scott that respondent had “some stuff stashed” in the room. The house detective told Roberts to. call back later in the evening and he would *see about it. He then immediately reported the incident to Lieut. Karper, in charge, of the narcotics squad of the Metropolitan Police, who came to the hotel about 4 p. m. Karper went with Scott to the room occupied by the Missed Jeffries. When there was no answer to their knock on the door the two officers then went to the assistant manager, and obtained a key to the room. Although neither officer had either a search or an arrest warrant they unlocked the door, entered the room and, in the absence of the Misses Jeffries as well as the respondent, proceeded to conduct a detailed search thereof. On the top shelf of a closet they discovered a pasteboard box containing 19 bottles of cocaine, of which only two had U. S. tax stamps attached, and one bottle, of codeine, also without stamps. The bottles were seized and taken to Scott’s office, where Lieut. Karper telephoned the federal narcotics agent and upon the latter’s arrival turned the seized articles over to him. Respondent was arrested the following day on the charges before us, at which time he claimed ownership of the narcotics seized.
It appeared from the evidence at the pretrial hearing that the Misses Jeffries had given respondent, a key to their room, that he had their permission to use the room at will, and that, he often entered the room for various purposes. They had not given him permission to store narcotics there and had no knowledge that any were so stored. The hotel records reflected that the room was assigned to and paid for by them alone.
We agree with the Court of Appeals that the seizure was made in violation of the Fourth Amendment and on motion of respondent its fruits should have been excluded as evidence on his trial.
The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both “houses” and “effects.” Over and again this Court has "emphasized that the mandate of the Amendment requires adherence to judicial processes. See Weeks v. United States, 232 U. S. 383 (1914); Agnello v. United States, 269 U. S. 20 (1925). Only where incident to a valid arrest, United States v. Rabinowitz, 339 U. S. 56 (1950), or in “exceptional circumstances,” Johnson v. United States, 333 U. S. 10 (1948), may an exemption lie, and then the burden is on those seeking the exemption to show the need for it, McDonald v. United States, 335 U. S. 451, 456 (1948). In so doing the Amendment does not place an unduly oppressive weight on law enforcement officers but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended. Johnson v. United States, supra. Officers instead of obeying this mandate have too often, as shown by the numerous cases in this Court, taken matters into their own hands and invaded the security of the people against unreasonable search and seizure.
The law does not prohibit evéry entry, without a warrant, into a hotel room. Circumstances might make exceptions and certainly implied or express permission is given to sueh persons as maids, janitors or repairmen in the performance of their duties. But here the Government admits that the search of the hotel room, as to the Misses Jeffries, was unlawful. They were not even present when the entry, search and seizure were conducted; nor were exceptional circumstances present to justify the action of. the officers. There was no question of violence, no movable vehicle was involved, nor was there an arrest or imminent destruction, removal, or concealment of the property intended to be seized. In fact, the officers admit they could have easily prevented any such destruction or removal by merely guarding the door. Instead, in entering the room and making the search for the sole purpose of seizing respondent’s narcotics, the officers not only proceeded without a warrant or other legal authority, but their intrusion was conducted surreptitiously and by mearis denounced as criminal.
The Government argues, however, that the search did not invade respondent’s privacy and that he, therefore, lacked the necessary standing to suppress the evidence seized. The significant act, it says, is the seizure of the goods of the respondent without a warrant. We do not believe the events are so easily isolable. Rather they are bound together by one sole purpose — to locate and seize the narcotics of respondent. The search and seizure are, therefore, incapable of being untied. To hold that this search and seizure were lawful as to the respondent would permit a quibbling distinction to overturn a principle which was designed to protect a fundamental right. The respondent unquestionably had standing to object to the seizure made without warrant or arrest unless the contraband nature of the narcotics seized precluded his assertion, fof purposes of the exclusionary rule, of a property interest therein.
It is urgently contended by the Government that no property rights within the meaning of the Fourth Amendment exist in the narcotics seized here, because they are contraband goods in which Congress has declared that “no property rights shall exist.” The Government made the same contention in Trupiano v. United States, 334 U. S. 699 (1948). See Brief for the United States, pp. 24-45. This Court disposed of the contention saying:
“It follows that it was error to refuse petitioners’ motion to exclude and suppress the property which was improperly seized. But since this property was contraband, they have no right to have it returned to them.” 334 U. S. at 710.
The same section declaring that “no property rights shall exist” in contraband goods provides for the issuance of search warrants “for the seizure” of such property. The Government’s view in Trupiano was that the latter provision applies “when the entry must be made to seize”; but not “where, after a lawful entry for anothSr purpose, the contraband property is before the eyes of the enforcing officers.” This construction would make it necessary for the officers to have a search warrant here. We are of the opinion that Congress, in abrogating property rights in such goods,, merely intended to aid in their forfeiture and thereby prevent the spread of the traffic in drugs rather than to abolish the exclusionary rule formulated by the courts in furtherance of the high purposes of the Fourth Amendment. See In re Fried, 161 F. 2d 453 (1947).
Since the evidence illegally seized- was contraband the respondent was not entitled to have it returned .to him. It being his property, for purposes of the exclusionary rule, he was entitled on motion to have.it suppressed as evidence on his trial.
Affirmed.
The Chief Justice and Mr. Justice Reed dissent.
Mr. Justice Minton took no part in the consideration or decision of this case.
“It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the drugs mentioned in section 2550 (a) except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid' stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession same may be found; . . . .” 26 U. S. C. § 2553 (a).
“If any person fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or assists in so doing or receives, conceals, buys, sells or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall, upon conviction, be fined not more than $5,000 and imprisoned for not more than ten years. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.” 21 U. S. C. § 174.
“The right of the people to be secure in their, persons, houses; papers, and effects, .against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
“It shall be unlawful to have or possess any liquor or property intended for use in violating the provisions of this part, „or the internal-revenue laws, or regulations prescribed under such part, or laws, .or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in Title XI of the act of June 15, 1917, 40 Stat. 228 (U. S. C., Title 18, §§ 611-633) [since superseded by Fed. Rules Crim. Proc. 41], for the seizure of such liquor or property. Nothing in this section shall in any manner limit or affect any criminal or forfeiture provision of the internal-revenue laws, or of any other law. The seizure and forfeiture of any liquor or property under the provisions of this part, and the .disposition of such liquor or property subsequent to seizure and forfeiture, or the disposition of the proceeds from the sale of such liquor or property, shall be in accordance with existing laws or those hereafter in existence relating to seizures, forfeitures, and disposition of property or proceeds, for violation of the internal-revenue laws.” 26. U. S. C. § 3116.
Brief for the United States, pp. 35-36 (emphasis added).
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_juryinst
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" 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".
OAK MANUFACTURING CO., Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.
No. 13520.
United States Court of Appeals Seventh Circuit.
April 4, 1962.
Peter B. Atwood, Chicago, 111., for appellant.
James P. O’Brien, U. S. Atty., Chicago, 111., Louis F. Oberdorfer, Asst. Atty. Gen., John A. Bailey, Atty., Tax Division, Lee A. Jackson, I. Henry Kutz, Attys., Dept, of Justice, Washington, D. C., for appellee. Robert A. Maloney, Asst. U. S. Atty., of counsel.
Before DUFFY, SCHNACKENBERG and SWYGERT, Circuit Judges.
DUFFY, Circuit Judge.
This appeal involves a claim for refund of federal income taxes for the years 1954, 1955 and 1956. There is no dispute as to the facts. The question involved is whether amounts received by plaintiff (Oak) under an agreement executed November 9, 1936, with British N.S.F. Company, Ltd. (N.S.F.), as licensee, are taxable as long-term capital gains or as ordinary income. Oak contends that the amounts received by it under Paragraph 5 of the 1936 agreement were installment payments in respect to the sale of capital assets, namely, the patents referred to in the agreement. However, the District Court held the receipts from N.S.F. were ordinary royalty income. The Court emphasized the agreement contained no language of sale.
To determine its legal effect, a somewhat detailed examination of the provisions of the 1936 agreement seems necessary. This agreement purports, in paragraph 1, to be a grant or license by Oak to N.S.F. of “exclusive rights to manufacture and sell all Oak products within all European countries and within all the units of the British Empire including the Irish Free State, with the exception of Canada, in which country Oak reserves the rights to manufacture and sell for itself therein in competition with N.S.F.”
The agreement recites that Oak manufactures switches, vibrators and other electrical parts and designs such parts, and that “ * * * N.S.F. is desirous of establishing a vibrator and switch business and selling such parts and devices or of making such parts and devices themselves and selling them. * * * ”
In paragraph 2 of the agreement, Oak agreed to “ * * * disclose and furnish to N.S.F. all of its products and improvements thereon together with manufacturing methods and processes in connection therewith * * * ” as well as “ * * * all required engineering assistance.”
In paragraph 3, Oak agreed to sell all component parts of Oak products to N. S.F. at cost plus twenty-five percent profit.
In paragraph 4, Oak agreed “ * * * to apply for patent protection in whatever countries it may consider necessary * * * to protect N.S.F. * * Upon Oak’s failure to do so, N.S.F. was given the right to apply for patents in the various countries.
Under paragraph 5, N.S.F. agreed to pay Oak a royalty of five percent of the net selling price of switches and vibrators. Under paragraph 6, the royalties were payable quarterly. Pursuant to the agreement, Oak received from N.S.F. in 1954 the sum of $27,701.81; in 1955, $52,719.36 and in 1956, $62,607.84.
■In paragraph 7, the agreement provided, in part, that N.S.F. would use its best efforts to promote the manufacture and sale of Oak vibrators and switches within its territory, and to disclose to • Oak all engineering processes and all improvements which it may have on Oak parts or products, and agreed at the expense and upon demand by Oak, to execute and assign United States applications for patents covering such improvements.
Paragraph 8 provided, in part, “It Is Understood and Agreed That with respect to complete products N.S.F. occupies the position of an expert sales organization and that it assumes all risks with regard to customers.”
Paragraph 11 provided that N.S.F. might bring patent infringement suits in the name of Oak, paying Oak a royalty on sums recovered. However, Oak could, if it wished, control the prosecution of such suits. It was further provided that the agreement was not assignable by N.S.F. without written permission of Oak, but N.S.F. was permitted to sub-license. The agreement was to last for the duration of any of the English patents and for at least fifteen years.
The 1936 agreement did not describe the patents referred to either by name or number. However, Joint Exhibits 2 and 3 received in evidence do identify each of the patents. There were a number of American patents without any corresponding English patents, but most of the English patents did have corresponding United States patents.
It was stipulated that each of the patents set out in Joint Exhibits 2 and 3 constituted capital assets within the meaning of Sec. 1231 of the 1954 Internal Revenue Code, as amended, 26 U.S.C. § 1231, and had been owned and held by Oak more than six months before licensing same to N.S.F.
It was also stipulated and agreed that neither the license agreement nor the patents constituted property of a kind which would properly be includable in the inventory of Oak within the meaning of Sec. 1231(b) (1) (A) of the 1954 Internal Revenue Code, as amended, nor property held by Oak primarily for sale to customers in the ordinary course of its trade or business.
The District Court stressed the point that the agreement herein did not contain the language of sale. We do not consider this fact controlling. The transfer of substantially all the rights under the patent or invention is all that is necessary.
The Government points out that the agreement itself characterizes it as a “license agreement” and the amounts payable thereunder to Oak are referred to as “royalties.” Granted this language is a relevant consideration, yet, as stated in Merck & Co. Inc. v. Smith (D.C.1957), 155 F.Supp. 843, 845, aff’d., 3 Cir., 261 F.2d 162, it “ * * * is not controlling and, as a matter of fact, appears to have been given very little weight by the courts.”
Numerous decisions have expressed the same idea. To illustrate: “The fact that the terms ‘licensee,’ ‘sublicense,’ and ‘royalty’ are used is not determinative.” Holcomb v. Commissioner (1958), 30 T. C. 354, 358. Also, “* * * nomenclature of that kind has little if any significance in resolving the question whether the instrument amounted to an assignment or was a license. * * * ” Watson v. United States, 10 Cir., 222 F.2d 689, 691. However, other courts have accorded substantial weight to the parties’ own characterization and treatment of the agreement as indicative of what the parties intended. Commissioner of Internal Revenue v. Celanese Corp. of America, 78 U.S.App.D.C. 292, 140 F.2d 339, 340-341; Commissioner of Internal Revenue v. Hopkinson, 2 Cir., 126 F.2d 406, 408-410; Kimble Glass Co. v. Commissioner (1947), 9 T.C. 183, 185-186, 190.
A patent is an intangible asset. It is usually transferred by an assignment. If there is a transfer of all the substantial rights in a patent, it is considered an assignment and qualifies the transferor for capital gains treatment. A transfer of anything less is called a license with the resultant assessment of the tax at ordinary income rates. Merck & Co. Inc. v. Smith, 3 Cir., 261 F.2d 162, 164.
The opinions of the courts which have passed on the issue before us are not entirely harmonious. However, certain principles seem to be established. The entire agreement must be examined and analyzed to determine whether substantially all of the rights of the owner of the patent have been assigned and released to the transferee. The retention of the bare legal title may not represent the retention of a substantial right in some cases. See Lawrence v. United States, 5 Cir., 242 F.2d 542. Title 26 U.S.C. § 1235 specifically provides that for a transferor to receive favorable capital gain treatment, “ * * * all substantial rights to a patent” must be transferred.
The United States cites many provisions of the “license” agreement to show that it did not amount to a sale or transfer of the patents. Among these are, 1) certain patents from which “royalties” were received were not in existence at the date of the agreement and hence could not have been sold or transferred; 2) the United States patents conferred no rights in England; 3) the right to “use” the patents covered by the license was omitted; 4) the right to assign the agreement was omitted; 5) Oak retained control over infringement litigation; 6) N.S.F. had only a non-exclusive license in Canada; and 7) the agreement was not for the full period of the patents.
The primary consideration moving from Oak was the promise “ * * * to disclose and furnish to N.S.F. all of its products and improvements thereon together with manufacturing methods and processes in connection therewith * * ” and the promise “ * * * to furnish all required engineering assistance.”
The terms of the agreement contemplated a continuing business relation in the nature of a franchise for the distribution of Oak products in new markets. It was, in reality, the establishment of an agency relationship. There was no intent to transfer the ownership of the patents. At most, Oak merely licensed to N.S.F. certain rights thereunder.
The 1936 agreement provided; “This Agreement is not assignable by N.S.F. without the written permission of Oak.” The subsequent provision for a qualified right to “sublicense others hereunder” makes it clear the prohibition against assignment was a substantial right. The Supreme Court has said that the power to dispose of property is the “equivalent of ownership.” Harrison v. Schaffner, 312 U.S. 579, 580, 61 S.Ct. 759, 85 L.Ed. 1055. The phrase “sublicense others hereunder” and the remainder of the paragraph, is further evidence of the parties’ intent that N.S.F. was not a purchaser or assignee but rather a licensee.
We think the right to control the prosecution of infringement suits was another item in the substantial “bundle of sticks” retained by Oak which prevents the agreement from being considered a sale or transfer. N.S.F. was permitted to sue only in Oak’s name for the infringement of “Oaks Patents.”
Significant also is the provision whereby Oak agreed to apply for patent protection in whatever countries it may consider necessary in order to protect N.S.F. against unauthorized competition. This clause would indicate Oak considered itself to be the complete owner of the patents and N.S.F. to be merely its European licensee or representative.
The provision that the agreement would last for the duration of any English Oak patent and at least fifteen years, indicates that Oak made no attempt to make certain the agreement would continue for the full life of all the patents involved. The life of a United States patent is seventeen years. Again, this is an indication that the agreement was, in fact, a license rather than a sale or transfer.
We hold the District Court reached the correct result. The judgment of the District Court is
Affirmed.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
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".
LLOYD-SMITH v. COMMISSIONER OF INTERNAL REVENUE.
No. 12.
Circuit Court of Appeals, Second Circuit.
Jan. 6, 1941.
Wright, Gordon, Zachry & Parlin, of New York City - (Charles C. Parlin and James A. Fowler, Jr., both of New York City, of counsel), for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Norman D. Keller and Maurice J. Ma-honey, Sp. Assts. to Atty. Gen., for respondent.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
In 1932 the above taxpayer, Marjorie Fleming Lloyd-Smith, transferred to Jorwil Corporation certain assets belonging to her which had a cost basis of $2,636,778.-49, and a fair market value at the time of tránsfer of $477,606.19. In exchange Jorwil Corporation issued to her its capital stock of the par value of $15,000 and its unsecured two year 6% promissory note for $303,000. In 1933 the note was split into two notes, one for $70,000 and the other for $233,000. In the same year the $70,-000 note was sold for $70,000 in cash. Both the Commissioner and the Board of Tax Appeals held that the cost basis to be used for computing income taxes on the sale of the note was $70,000 and that on that basis the sale resulted in no loss which could be deducted for tax purposes. The taxpayer, however, says that the note represented a part of a total consideration of stock and notes received in exchange for assets valued at $477,606.19, but which had a cost basis of $2,636,778.49. She accordingly argues that the note should be given a proportionate cost basis of $386,458 and that its sale at $70,000 involved a loss of $316,458. The disallowance by the Board of this alleged loss resulted in an order determining a deficiency of $21,299.17. We think the order was right and should be affirmed.
The question before us on this appeal is what was the proper basis' for tax purposes to be applied on the sale of the $70,000 two year unsecured note of Jorwil Corporation which was disposed of for its face value in the year 1933.
The consequences of such a transfer of property as the taxpayer made to Jorwil are set forth in Section 112 (b) (5) and (e) and Section 113 (a) (6) of the 1932 Revenue Act, 26 U.S.C.A. Int.Rev.Acts, pages 511, 513, 515:
Sec. 112 (b) (5):
“* * * No gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation, and immediately after the exchange such person or persons are in control of the corporation; * * * ”
“(e) Loss from Exchanges Not Solely in Kind. If an exchange would be within the provisions of subsection (b) (1) to (5), inclusive, of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain or loss, but also of other property or money, then no loss from the exchange shall be recognized.”
Sec. 113 (a) (6): “Tax-free exchanges generally. If the property was acquired upon an exchange described in section 112 (b) to (e), inclusive, the basis shall be the same as in the case of the property exchanged, decreased in the amount of any money received by the taxpayer and increased in- the amount of gain or decreased in the amount of loss to the taxpayer that was recognized upon such exchange under the law applicable to the year in which the exchange was made. If the property so acquired consisted in part of the type of property permitted by section 112 (b) to be received without the recognition of gain or loss, and in part of other property, the basis provided in this paragraph shall be allocated between the properties (other than money) received, and for the purpose of the allocation there shall be assigned to such other property an amount equivalent to its fair market value at the date of the exchange. * * * ”
According to the above provisions no gain or loss shall be recognized where property is transferred in exchange for stock or securities of a corporation controlled by the transferor; and where as in 112 (e), the property received in exchange includes money or “other property” as well as the stock and securities referred to in 112 (b) (5), “no loss from the exchange shall be recognized”. Section 112 (e) also provides that no loss shall be recognized where similar exchanges accompany socalled reorganizations. Now, if the $70,000 note received in partial exchange for the assets transferred,came within the meaning of the word “securities” as used in 112 (b) (5), the taxpayer was entitled to claim a loss based on that proportion of the cost of the assets transferred which the note bore to the total value of the assets received. If, on the other hand, the note came within the description of “other property” then under Section 113 (a) (6) no 'loss from the exchange involved in the case at bar would be recognized because, under subdivision (a) (6), the basis for the note sold by the taxpayer was its value when received. That value was $70,000 and the selling price was $70,000. Therefore, both under 113 (a) (6) and 112 (e) no loss is to be recognized.
In reorganizations which are dealt with in Section 112 (b) (3) and (4) it has been held that there must be a continuity of interest, resembling that found in consolidations or mergers, in order that gain or loss shall not be recognized. Accordingly unsecured short time obligations have been regarded as not coming within the meaning of “securities” since they do not furnish any such continuity of interest as is required to satisfy that term. LeTulle v. Scofield, 308 U.S. 415, 60 S.Ct. 313, 84 L.Ed. 355; Helvering v. Tyng and Helvering v. Buchsbaum, 308 U.S. 527, 60 S.Ct. 378, 84 L.Ed. 445; Pinellas Ice Co. v. Commissioner, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428; Cortland Specialty Co. v. Commissioner, 2 Cir., 60 F.2d 937, certiorari denied 288 U.S. 599, 53 S.Ct. 316, 77 L.Ed. 975; L. & E. Stirn, Inc. v. Commissioner, 2 Cir., 107 F.2d 390.
We see no justification for supposing that the word “securities” had different meanings when used in the reorganization subdivisions and in those relating to transfers. Continuity of interest if required to satisfy the term as used in subdivisions 112 (b) (3) and (4) ought to be required for 112 (b) (5).
The opinion in LeTulle v. Scofield, 308 U.S. 415, 60 S.Ct. 313, 84 L.Ed. 355, makes it plain that a continuity of stock interest is necessary to prevent the recognition of gain or loss in a reorganization or non-taxable transfer, but it did not attempt to say that all debts accompanying shares of stock are “securities”, or to include evidences of debt within the term which the courts had not been accustomed to classify as “securities” under 112 (b) (3), (4) or (5). It only said that “where the consideration'is represented by a substantial proportion of stock, and the balance in bonds, the total consideration received is exempt from tax under Sec. 112 (b) (4) and 112 (g), 26 U.S.C.A. Int.Rev.Acts, pages 377, 379”. LeTulle v. Scofield, 308 U.S. at page 420, 60 S.Ct. at page 316, 84 L.Ed. 355.
We do not think it meant to say that what the court in Pinellas Ice Co. v. Commissioner, 287 U.S. 462, 470, 53 S.Ct. 257, 260, 77 L.Ed. 428, called “short-term purchase-money notes” are to be regarded as “securities”. These notes represented no such continuity of interest as the courts have generally found necessary to satisfy that term and they differed little from cash or credit received in'the course of a sale.
The decision in Helvering v. Watts, 296 U.S. 387, 56 S.Ct. 275, 80 L.Ed. 289, is cited by the taxpayer in support of her contention. There bonds. secured by a mortgage, which ran for a considerably longer average period than the notes we are dealing with were held to be “securities”. But we adhere in general to the view we expressed as to the meaning of “securities” when we discussed Helvering v. Watts, supra, in L. & E. Stirn, Inc. v. Commissioner, 107 F.2d at page 392. The short term unsecured note of the case at bar which ran for but two years is still farther from the mortgage bonds involved in Helvering v. Watts, supra, than were the bonds in L. & E. Stirn, Inc. v. Commissioner, supra. We think the sale of the note resulted in no taxable deduction.
Order 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_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Gerard Gary GARCIA, Defendant-Appellant.
No. 88-2557.
United States Court of Appeals, Tenth Circuit.
Dec. 29, 1989.
Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.
Joe M. Romero, Jr., Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-ap-pellee.
Before ANDERSON and EBEL, Circuit Judges, and RUSSELL, District Judge.
The Honorable David L. Russell, United States District Judge for the Western District of Oklahoma, sitting by designation.
EBEL, Circuit Judge.
This case requires us to consider whether the guidelines promulgated by the United States Sentencing Commission apply to violations of the Assimilative Crimes Act. We conclude that the sentencing guidelines apply to assimilative crimes, but that the sentence imposed may not exceed any maximum sentence and may not fall below any mandatory minimum sentence that is required under the law of the state in which the crimes occur. We further hold that the commentary to § 2X5.1 of the sentencing guidelines, which “requirefs]” courts to apply guidelines applicable to analogous federal crimes in determining sentences for assimilative crimes, has no legal effect to the extent that it exceeds the less-restrictive mandate of the Sentencing Reform Act of 1984 to give only “due regard” to analogous federal sentencing guidelines. Finally, we conclude that the district court’s guidelines sentence in this case is permissible because it is within the range permitted under New Mexico law.
Facts
On December 7, 1987, defendant Gerard Gary Garcia, an American Indian, struck and killed an American Indian pedestrian while driving a pickup truck on the Acoma Pueblo Reservation. The accident was caused, at least in part, by defendant’s use of alcohol. R. Vol. II at 9. Defendant pled guilty to the assimilative New Mexico crime of involuntary manslaughter, in violation of 18 U.S.C. § 13 (1982). Prior to the entry of his guilty plea, defendant filed a motion asking the court to declare unconstitutional the Sentencing Reform Act of 1984, as amended, 18 U.S.C. §§ 3551-3586 (Supp. IV 1987) (current version at 18 U.S.C. §§ 3551-3586 (1988)) & 28 U.S.C. §§ 991-998 (Supp. IV 1987). R. Doc. 7. The district court granted the motion, concluding that the Sentencing Reform Act violated the constitutional principle of separation of powers and expressing an additional concern that the guidelines violated the Due Process Clause. R. Doc. 40. The district court then sentenced defendant to an 18-month prison term pursuant to the sentencing law in effect prior to the Sentencing Reform Act of 1984. However, the district court also imposed an alternative sentence pursuant to the Sentencing Reform Act, to take effect if the Act was found to be constitutional. The alternative sentence was a prison term of 18 months, plus one year of supervised release, during which defendant would be required to undergo rehabilitation for alcohol abuse. R. Doc. 41. Because the guidelines have been held to be constitutional, the alternative guidelines sentence is the sentence that must be applied against defendant.
Discussion
I. The Purposes of the Assimilative Crimes Act and the Sentencing Reform Act of 1984
The Assimilative Crimes Act applies to offenses committed on Indian reservations. United States v. Pinto, 755 F.2d 150, 154 (10th Cir.1985). “The purpose of the Assi-milative Crimes Act is to provide a method of punishing a crime committed on government reservations in the way and to the extent that it would have been punishable if committed within the surrounding jurisdiction. The Act fills in gaps in federal criminal law by providing a set of criminal laws for federal enclaves.” United States v. Sain, 795 F.2d 888, 890 (10th Cir.1986) (citation omitted). See also United States v. Sharpnack, 355 U.S. 286, 293, 78 S.Ct. 291, 295, 2 L.Ed.2d 282 (1958); James Stewart & Co. v. Sadrakula, 309 U.S. 94, 101, 60 S.Ct. 431, 434, 84 L.Ed. 596 (1940); United States v. Press Publishing Co., 219 U.S. 1, 10, 31 S.Ct. 212, 214, 55 L.Ed. 65 (1911).
The Sentencing Reform Act of 1984 was enacted to achieve greater uniformity in the sentencing of federal crimes. Its provisions “are designed to structure judicial sentencing discretion, eliminate indeterminate sentencing, phase out parole release, and make criminal sentencing fairer and more certain.” S.Rep. No. 225, 98th Cong., 2d Sess. 65, reprinted in 1984 U.S. Code Cong. & Admin.News 3182, 3248. The Sentencing Reform Act provides that “[ejxcept as otherwise specifically provided, a defendant who has been found guilty of an offense described in any Federal statute ... shall be sentenced in accordance with the provisions of this chapter.” 18 U.S.C. § 3551(a) (Supp. V 1987) (current version at 18 U.S.C. § 3551(a) (1988)). In the case of assimilative crimes, it is difficult to achieve fully the Sentencing Reform Act’s goal of federal sentencing uniformity because the punishments for particular state offenses often vary significantly among the states. Therefore, it is not always possible to achieve uniformity in federal sentences for similar assimilative crimes that are committed in different states, and, at the same time, promote the Assimilative Crime Act’s goal of intrastate sentencing uniformity.
The guidelines adopted pursuant to the Sentencing Reform Act do not adequately take into account the tension between the two policies of federal sentencing uniformity and intrastate sentencing uniformity. The guidelines focus primarily on the goal of federal sentencing uniformity. The commentary to § 2X5.1 of the guidelines provides that in the case of assimilative crimes, the court imposing the sentence “is required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous.” Although applying analogous federal guidelines in determining sentences for assimilative crimes promotes federal sentencing uniformity, it ignores entirely the objective of intrastate sentencing uniformity underlying the Assimilative Crimes Act.
Where two statutes are “ ‘ “capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” ’ ” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 2881, 81 L.Ed.2d 815 (1985) (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34, 95 S.Ct. 335, 353-54, 42 L.Ed.2d 320 (1974) (quoting Morton v. Mancan, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974))). See also 2A J. Sutherland, Statutes and Statutory Construction § 51.02 (C. Sands 4th ed. rev. 1984). Here, the Sentencing Reform Act expressly authorizes courts to interpret it so as to achieve harmony, to the extent possible, with other statutes. The Sentencing Reform Act states that its provisions apply “[ejxcept as otherwise specifically provided.” 18 U.S.C. § 3551(a). We conclude that the Assimilative Crimes Act “specifically provide[sj,” within the meaning of 18 U.S.C. § 3551(a), that the sentencing for assimilative crimes is to be determined in accordance with state law so that the defendant is “subject to a like punishment.” 18 U.S.C. § 13.
However, state law generally specifies only the outer maximum and minimum sentences that a judge may impose and vests with the judge considerable discretion to determine an appropriate sentence within those limits. Within the permitted range, it is impossible to determine with certainty the sentence that a state judge would impose. As a result, the Assimilative Crimes Act’s goal of intrastate sentencing uniformity is inherently limited by the lack of specificity of state sentencing law. It is within this permitted range that the Sentencing Reform Act of 1984 and the sentencing guidelines may act to promote federal uniformity.
Federal judges, like their state counterparts, can only be required to impose sentences for assimilative crimes that fall within the maximum and minimum terms permitted under state law. Efforts to duplicate every last nuance of the sentence that would be imposed in state court has never been required. For example, federal courts need not follow state parole policies, including provisions for good time credits. See, e.g., United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985); Pinto, 755 F.2d at 154; United States v. Vaughan, 682 F.2d 290, 294-95 (2d Cir.), cert. denied, 459 U.S. 946, 103 S.Ct. 261, 74 L.Ed.2d 203 (1982); United States v. Smith, 574 F.2d 988, 992-93 (9th Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978). In addition, Congress has expressly made applicable to assimilative crimes the federal provision requiring that a special monetary assessment be imposed on convicted persons. 18 U.S.C. § 3013(d) (Supp. V 1987) (current version at 18 U.S.C. § 3013(d) (1988)). Therefore, we hold that the Assimilative Crimes Act requires courts to impose sentences for assimilative crimes that fall within the maximum and minimum terms established by state law. However, within the range of discretion permitted to a state judge, a federal judge should apply the federal sentencing guidelines to the extent possible.
In addition to the exception clause of § 3551(a), discussed above, the Sentencing Reform Act also provides that where there is no applicable sentencing guideline, the court is to have “due regard” for sentences prescribed by the guidelines for similar offenses and offenders. 18 U.S.C. § 3553(b) (Supp. V 1987) (current version at 18 U.S.C. § 3553(b) (1988)). The use of the phrase “due regard” suggests that Congress recognized that, in the absence of an applicable guideline for a particular crime, courts should not automatically apply the guidelines for similar offenses. In contrast, the commentary to § 2X5.1 of the guidelines requires courts to apply “sufficiently analogous” guidelines. The commentary is too restrictive and is not authorized by the statute. Therefore, we hold that to the extent the commentary to § 2X5.1 exceeds the statutory mandate to have “due regard” for analogous sentencing guidelines, the commentary is of no legal effect.
Our views expressed herein are in agreement with the few cases that have considered similar issues. Two cases have agreed that the Sentencing Reform Act does not manifest a clear intent to repeal the “like punishment” clause of the Assimi-lative Crimes Act. United States v. Richards, No. 88-9005M-01 (D.Kan. Oct. 21, 1988) (magistrate’s memorandum and order) (available on Westlaw at 1988 WL 123140; available on Lexis at 1988 U.S. Dist.LEXIS 15101); United States v. Policastro, No. 89-244M-3 (E.D.N.C. July 11, 1989) (magistrate’s memorandum and order). A third case has noted that “while the reforms enacted by the Sentencing Reform Act are broad, there are circumstances in which a defendant convicted in a federal district court is not properly sentenced under the guidelines.” United States v. Norquay, 708 F.Supp. 1064, 1066 (D.Minn.1989) (concluding that the Sentencing Reform Act does not clearly express an intent for defendants convicted of crimes under the Indian Major Crimes Act to be sentenced under the federal sentencing guidelines instead of the provisions of the Major Crimes Act).
This court considered a similar situation in United States v. Dunn, 545 F.2d 1281 (10th Cir.1976). In Dunn, the court considered whether state sentencing law or the Youth Corrections Act, 18 U.S.C. § 5010 (repealed 1984), governed the sentencing of an assimilative crime committed by a youth offender. The court concluded that a federal court may apply the Youth Correction Act in determining the sentence for an assimilative crime, but, in order to ensure that the purposes underlying the Assimilative Crimes Act are honored, the sentence may not exceed the maximum period allowed under relevant state law. Dunn, 545 F.2d at 1283. By following that approach, the court was able to “give[] maximum comfort to the basic intent of Congress as contained in” the Youth Corrections Act and the Assimilative Crimes Act. Id.
II. The District Court’s Guidelines Sentence
In light of our earlier holding that the sentences for assimilative crimes must fall within the maximum and minimum terms provided for under state law, we now proceed to consider whether the district court’s guidelines sentence in this case is within the range permitted under New Mexico law. New Mexico law provides for a “basic sentence” of 18 months for involuntary manslaughter. N.M.Stat.Ann. § 31-18-15(A). However, New Mexico judges are authorized to alter the basic sentence based on “any mitigating or aggravating circumstances surrounding the offense or concerning the offender.” N.M. Stat.Ann. § 31-18-15.1(A). The amount of that alteration cannot exceed one-third of the basic sentence. N.M.Stat.Ann. § 31-18-15.1(0). The guideline for the federal crime of involuntary manslaughter, which was apparently applied by the district court in determining its alternative guidelines sentence, provides for a base offense level of 14 for involuntary manslaughter resulting from conduct that was reckless. The sentences for crimes with a base offense level of 14 range from 15 months to 46 months, depending on various aggravating and mitigating factors.
Although New Mexico does preclude the consideration of certain aggravating circumstances in imposing sentence, appellant has made no showing here that the district court improperly considered any of those circumstances in computing his sentence under the guidelines. The district court in this case applied the mitigating and aggravating factors provided in the Sentencing Reform Act and the guidelines in determining the guidelines sentence and arrived at a sentence of 18 months, plus one year of supervised release. Because the 18-month sentence is clearly within the range permitted under New Mexico law, it is consistent with the policy of intrastate sentencing uniformity underlying the Assimilative Crimes Act. Because the sentence is based on an application of the sentencing guidelines, it also furthers the objectives of federal uniformity underlying the Sentencing Reform Act. Further, New Mexico law provides for a mandatory one-year parole term for persons convicted of involuntary manslaughter. See N.M.Stat.Ann. § 30-2-3(B) (defining involuntary manslaughter as a fourth-degree felony); N.M. Stat.Ann. 31-21-10(C) (requiring one-year parole term for persons convicted of a fourth-degree felony). Therefore, the guidelines sentence imposed by the district court was lawful.
In sum, we hold that the Assimilative Crimes Act falls within the exception clause of 18 U.S.C. § 3551(a). Therefore, a sentence for an assimilative crime must satisfy the “like punishment” clause of the Assimilative Crimes Act, which requires that the sentence fall within the maximum and minimum terms provided under state law. We further hold that the commentary to § 2X5.1 of the guidelines, which “require[s]” courts to apply analogous guidelines in sentencing assimilative crimes, has no legal effect to the extent that it exceeds the less-restrictive mandate of the Sentencing Reform Act to have “due regard” for analogous sentencing guidelines. Finally, we conclude that the district court’s guidelines sentence in this case was permissible because it is within the range permitted under New Mexico law and because it is apparently based on analogous guidelines and falls within the range of discretion permitted by state law. Therefore, the September 23, 1988 judgment of the district court is AFFIRMED.
. The Assimilative Crimes Act provides:
Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punished if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
18 U.S.C. § 13 (1982) (current version at 18 U.S.C. § 13(a) (1988)).
. N.M.Stat.Ann. § 30-2-3(B).
. Defendant’s guilty plea and the July 15, 1988 information upon which his guilty plea is based state that defendant's conduct also amounted to a violation of the Indian Major Crimes Act, 18 U.S.C. § 1153. Section 1153 provides, in relevant part:
(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, ..., and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
(b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.
18 U.S.C. § 1153 (Supp. V 1987) (current version at 18 U.S.C. § 1153 (1988)).
We are unable to determine whether the district court based its sentence on the Indian Major Crimes Act or on the Assimilative Crimes Act, since the sentence refers to both. However, both parties treat the sentence as having been based on the Assimilative Crimes Act. We accept that characterization for purposes of this opinion because of our conclusion that the sentencing guideline for the federal crime of involuntary manslaughter would be appropriately applied to determine the sentence for the assimila-tive New Mexico crime of involuntary manslaughter. Thus, the sentence would be the same under either 18 U.S.C. § 13 or 18 U.S.C. § 1153.
. The Government argues that this case may be moot because the Bureau of Prisons had issued an Operations Memorandum dated February 2, 1989, which suggested that the Bureau would, on an interim basis, apply the non-guidelines sentence in a situation where a court had imposed both a non-guidelines sentence and an alternative guidelines sentence. Appellee’s Br. at 4. However, the district court's judgment in this case explicitly provided that the alternative guidelines sentence would apply "in the event the Sentencing Reform Act of 1984 is found to be constitutional." R.Doc. 41. In light of the Supreme Court’s decision that the Sentencing Reform Act does not violate the separation-of-powers principle, Mistretta v. United States, - U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), and this court's holding that the Act does not violate the Due Process Clause, United States v. Thomas, 884 F.2d 540 (10th Cir.1989), the alternative guidelines sentence is the one that must be applied under the express terms of the district court’s judgment. Therefore, the case is not moot. Moreover, a memorandum dated February 1, 1989, from Assistant Attorney General Edward S.G. Dennis, Jr., the head of the Criminal Division of the United States Department of Justice, indicated that a consensus had been reached within the Department of Justice, including the Bureau of Prisons, to the effect that if a court imposed an alternative sentence based on the guidelines, the Bureau of Prisons would apply that alternative guidelines sentence.
. The commentary to § 2A1.4 provides that “[a] homicide resulting from driving ... while under the influence of alcohol or drugs ordinarily should be treated as reckless.”
. N.M.Stat.Ann. § 31-18-15.1(B) provides that the sentencing judge “shall not consider the use of a firearm or prior felony convictions as aggravating circumstances for the purpose of altering the basic sentence." Presumably, the purpose of § 31-18-15.1(B) is to take into account the fact that other New Mexico statutory provisions provide for specific sentence enhancements based on the use of a firearm and prior felony convictions. See N.M.Stat.Ann. §§ 31-18-16, 31-18-16.1, 31-18-17. Appellant was not charged here with any assimilative crime based on those specific enhancement provisions.
. We note that defendant raised the issue of whether the sentencing guidelines apply to assi-milative crimes for the first time on appeal. Therefore, if we had concluded that the district court erred in sentencing defendant, we would have had to address whether the district court committed a “plain error[ ]” that would warrant reversal under Fed.R.Crim.P. 52(b). However, in light of our conclusion that the district court did not err in sentencing defendant, there is no plain-error issue to decide.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_whlaws
|
D
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court's discussion of which state's laws should control their ruling in the case support the position taken by 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".
UNITED STATES of America, Plaintiff-Appellee, v. Alvin Harrison PETERSON, Defendant-Appellant.
No. 25909.
United States Court of Appeals, Ninth Circuit.
Jan. 18, 1971.
Rehearing Denied March 22, 1971.
James A. Alfieri, of McDonell & Alfieri, Seattle, Wash., for appellant.
Stan Pitkin, U. S. Atty., William H. Rubidge, J. Byron Holcomb, Asst. U. S. Attys., Seattle, Wash., for appellee.
Before KOELSCH, CARTER and WRIGHT, Circuit Judges.
PER CURIAM:
The “concurrent sentences” rule first announced in Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692 (1929) and consistently adhered to by the Supreme Court (Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), Greene v. United States, 358 U.S. 326, 330, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959)) makes unnecessary any examination into appellant’s sole assignment of error which attacks the validity of one of several convictions under a multi-count indictment.
We have nevertheless considered the assignment; granted the criticized instruction should not have been given, the conclusion is manifest that the error was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Affirmed.
Question: Did the court's discussion of which state's laws should control their ruling in the case support the position taken by the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_state
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
Cleophas L. COX and Rose M. Cox, Petitioners-Appellants, v. Manuel CHACO, Director of Revenue and Taxation, and Government of Guam, Respondents-Appellees.
No. 78-2208.
United States Court of Appeals, Ninth Circuit.
Submitted June 11, 1980.
Decided Feb. 2, 1981.
As Amended on Denial of Rehearing and Rehearing En Banc June 22, 1981.
Gerald E. Stinson, Crain & Shoecraft, Agana, Guam, for petitioners-appellants.
Roger E. Willmeth, Agana, Guam, for respondents-appellees.
Before CHOY and NELSON, Circuit Judges, and SCHNACKE, District Judge.
The Honorable Robert H. Schnacke, United States District Judge for the Northern District of California, sitting by designation.
CHOY, Circuit Judge: ,
Cleophas and Rose Cox, taxpayers, petition from a judgment of the district court denying their claim for a tax refund. We find that the district court correctly held that the taxpayers could not exclude certain rental payments from their gross income, and accordingly we affirm the judgment below.
I. FACTS
Mr. Cox was an employee of the Federal Aviation Administration (“FAA”) during the relevant tax year. He was assigned to the Guam region and he and his family lived in FAA housing there. Cox was the FAA Resident Director for Guam, and his responsibilities included air traffic control and crash investigations, as well as overseeing day-to-day housing matters. He received a standard FAA salary for such a position, and from that salary the Government deducted a portion for rental of Cox’s FAA quarters. Thus Cox never physically handed over his rent payments to the FAA and his take-home pay did not include the amount allocated to rent.
Cox’s home is eight-tenths of a mile from his office. Both the home and office are within the FAA complex. Cox testified that he would not be able to manage the FAA complex “long distance” and that his job required his physical presence in the complex at all hours. He received long distance business phone calls at night and on weekends because of date and time differences; other FAA employee-residents would come to Mr. Cox with housing complaints, although there was a housing director who had primary responsibility for housing matters. Cox’s superior testified that Cox was required to live in the FAA complex.
The district court found, inter alia, that the evidence was insufficient to show that Cox was required to live in the FAA complex as a condition of employment. The district court noted that answering phone calls and handling housing complaints were a minor part of Cox’s overall responsibilities.
There is no evidence in the record that non-government housing was not available, or that Cox’s salary would be reduced if he did not live in the FAA complex. Cox told a government auditor that he would not be fired if he chose to live elsewhere.
II. ISSUES
Cox’s unique living and working arrangement gives rise to the question here. Cox claims that under 26 U.S.C. § 119, he is entitled to exclude the amount of his salary allocated to rent from his gross income since he is required to live on FAA premises as a condition of employment. The Guam Director of Taxation, on the other hand, contends that § 119 does not apply in this case because Cox pays rent for his housing, rather than receiving housing in kind; and that even if § 119 does apply, Cox has failed to prove the elements of a § 119 exclusion.
III. DISCUSSION
Cox claims that the amount withheld from his salary for rent should be excluded from his gross income. Such exclusion would have the effect of taxing Cox as if he made less than other FAA directors, since the amounts withheld for rent would not be treated as income.
In order to receive this obviously advantageous tax treatment under § 119, the taxpayer must prove three elements:
(1) that such lodging be furnished for the convenience of the employer; (2) that it be located on the business premises of the employer; and (3) that the employee be required to accept such lodging as a condition of his employment.
Commissioner v. Anderson, 371 F.2d 59, 63 (9th Cir. 1966), cert. denied, 387 U.S. 906, 87 S.Ct. 1687, 18 L.Ed.2d 623 (1967).
In this case, the district court found to be lacking the third element which requires that lodging be furnished as a condition of employment. A review of the record reveals that Cox and his superior stated that Cox was required to reside in the FAA complex, but their statements were not supported by independent evidence or by a detailed explanation indicating why such residency was necessary. When pressed on cross-examination, Cox’s explanation was ambiguous. His statements were not uncontroverted. The trial judge observed the demeanor of the witnesses and could have discounted their testimony as self-serving and tax motivated. On the face of this record, the trial court was not clearly erroneous in its finding that Cox was not required to live in the FAA complex as a condition of employment. Compare Caratan v. Commissioner, 442 F.2d 606 (9th Cir. 1971), (“condition of employment” finding reversed where the court was “left with the definite and firm conviction” that a mistake had been committed and where the tax court erroneously relied on its own business judgment as to whether the taxpayer’s job required his presence at all times).
Because we find that Cox failed to prove an essential element of a § 119 exclusion, we need not reach the question of whether § 119 applies at all where the FAA housing was furnished but paid for by a salary deduction.
IV. CONCLUSION
The trial court’s finding that Cox was not required to accept government housing as a condition of employment was not clearly erroneous. The decision is
AFFIRMED.
. Treas.Reg. § 1.119 — 1(b) permits the exclusion for lodging to be claimed where the three stated tests are met “irrespective of whether a charge is made” for the lodging. The regulation follows Boykin v. Commissioner, 260 F.2d 246 (8th Cir. 1958). The Director suggests that the recent Supreme Court decision in Commissioner v. Kowalski, 434 U.S. 77, 98 S.Ct. 315, 54 L.Ed.2d 252 (1977), which disallowed § 119 exclusion for cash meal allowances paid to state troopers in lieu of meals, would likewise bar an exclusion for lodging where, as here, a rental payment is deducted from the taxpayer’s salary. We need not, however, reach this question here.
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_direct2
|
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 interest of person asserting due process rights violated. 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.
Betty G. BROWNING v. CLERK, U.S. HOUSE OF REPRESENTATIVES, et al., Appellants.
No. 85-5144.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 8, 1986.
Decided April 25, 1986.
Rehearing En Banc Denied July 8,1986.
Steven R. Ross, with whom Charles Tiefer, Washington, D.C., was on brief, for appellants.
Linda Huber, Washington, D.C., for ap-pellee.
Before WALD and SILBERMAN, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge MacKINNON.
MacKINNON, Senior Circuit Judge:
Browning, the first black Official Reporter employed by the United States House of Representatives, was discharged after seven years for gross errors and omissions in a particular committee reporting assignment and generally for the low quality of her reporting. Browning admitted these errors below, but alleged that the true reason behind her dismissal was racial animus, that the reasons given were pretextual, and that her discharge violated her rights under the equal protection/due process protections of the Fifth Amendment. The congressional defendants moved to dismiss the suit asserting, inter alia, that Browning’s claim was nonjusticiable under the immunity guaranteed by the Speech or Debate Clause of Article I.
The district court, claiming reliance upon this court’s decision in Walker v. Jones, 733 F.2d 923 (D.C.Cir.), cert, denied, — U.S. -, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984), ruled that the Speech or Debate Clause did not shield congressional personnel actions affecting Official Reporters from judicial scrutiny. Because we find that the district court misapplied this court’s holding in Walker and that the Speech or Debate Clause does shield this congressional personnel action from judicial scrutiny, we reverse the district court and remand with instructions to dismiss Browning’s suit.
I. BACKGROUND
This case comes to us on appeal from the district court’s denial of a motion to dismiss for lack of subject matter jurisdiction. For purposes of this review, therefore, we must assume the truth of Browning’s allegations. Moreover, as the Supreme Court has instructed, “the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
Browning was employed by the United States House of Representatives as an Official Reporter from August 1974 until October 1,. 1981. Complaint 117 (Joint Appendix (“JA”) 5). While an Official Reporter, Browning’s direct supervisor was appellant Geraldine Lyda, the Director of the Office of Official Reporters for the House of Representatives, who in turn was supervised by the Assistant to the Clerk of the House of Representatives, appellant Thomas Ladd. Overall responsibility for the administrative affairs of the House of Representatives rested with the Clerk of the House of Representatives, appellant Edmund L. Henshaw, who in turn was responsible to the appellant Speaker of the House of Representatives, the Honorable Thomas P. O’Neill. All such congressional personnel were named as defendants.
Browning was the first black person hired by the House of Representatives as an Official Reporter and was the only black Official Reporter during her tenure. Complaint 117 (JA 5). Her duties as an Official Reporter entailed primarily the verbatim stenotype transcription of committee and subcommittee hearings. Affidavit of Betty G. Browning 11 2 (JA 13). .Browning alleges that she carried out her duties diligently and competently, although at the same time admitting incidents of poor performance. Browning alleges that her termination was motivated by racial animus, Browning Affidavit If 10 (JA 17), and that appellant Lyda engaged in a “campaign of hostility” against Browning that was racially motivated. Id. 15 (JA 14). For example, Browning alleges that Lyda would often assign her to cover hearings that would produce little testimony, and then complain of Browning’s low production. Id. H 6 (JA 15). Other alleged incidents include one in which Lyda made cruel and derogatory remarks about Browning in the presence of her coworkers. Id. Lyda also allegedly solicited complaints regarding Browning’s performance, but would not permit Browning to examine these complaints or rebut them. Id. If 7 (JA 15-16).
Browning further asserts that Lyda was able to enlist the aid of defendants Ladd and Henshaw in discharging Browning. Both Ladd and Henshaw, in communications with Browning, refer to a particular incident where her performance was poor, but Browning alleges that this incident was a mere pretext for her discharge. Browning Affidavit If 10 (JA 17). A disciplinary warning from Ladd describes this incident as follows:
In addition to these problems associated with the manner and quality of the reporting you perform for the Clerk, your record of page production is consistently the lowest of the reporting corps.
The most recent incident concerns your failure to accurately and thoroughly report a committee hearing of the Subcommittee on Oversight and Investigations, Committee on Interstate and Foreign Commerce, on Involvement of Organized Crime in the Hazardous Waste Disposal Industry, December 16, 1980. By letter from the Chairman, we were advised that large gaps existed in the transcript, in some cases comprising omissions of whole paragraphs of testimony. Testimony during this hearing was taken under oath to insure veracity and for possible use in judicial proceedings in the event that responses by witnesses were determined to be false or perjurious. The subsequent release and review of the tape-recorded version of the hearing has revealed gross errors and omissions and has resulted in embarrassment to this office, as the supervisory office for official reporters, and to the U.S. House of Representatives. The failure to provide an accurate transcription of the hearing to the committee has damaged the investigative process of the subcommittee and may subject the subcommittee and/or House to possible legal action.
Browning admits these errors, but denies their significance. Browning Affidavit H 8 (JA 16). Finally, Browning alleges that the Speaker of the House of Representatives participated in her discharge in that he “permitted and authorized the other defendants, over whom he had supervisory authority, to engage in the discriminatory conduct complained of ... and refused to take corrective action when the wrongful conduct was brought to his attention.” Complaint H 13 (JA 6-7).
In the district court, the congressional defendants moved to have the complaint dismissed under Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure. The district court, claiming reliance upon this court’s decision in Walker v. Jones, 733 F.2d 923 (D.C.Cir.), cert. denied, — U.S. -, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984), denied the motion. See Browning v. Clerk, U.S. House of Representatives, No. 84-1637 (D.D.C. filed Dec. 17, 1984). The congressional defendants then immediately brought this appeal.
II. ANALYSIS
This case presents the question of the proper scope of the immunity guaranteed by the Speech or Debate Clause in the context of congressional personnel decisions. Although our analysis is informed by this court’s recent decision in Walker v. Jones, the instant appeal concerns activities within the legislative core. We approach our task with some caution in light of the importance of the Speech or Debate Clause to the separation of powers which is central to our constitutional form of government.
A.
The Speech or Debate Clause provides that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const, art. I, § 6, cl. 1. The relatively short judicial history of this clause has witnessed considerable interpretation as Congress has changed the way in which it performs its duties. Although the literal scope of this clause is limited, it is well-settled that the clause protects more than simply speeches and debates by Representatives and Senators on the floors and in the committees of the Congress. For example, the Supreme Court has held that the clause protects all “things generally done in a session of the House by one of its members in relation to the business before it.” Kilb-oum v. Thompson, 13 Otto 168, 103 U.S. 168, 204, 20 L.Ed. 377 (1881). It is equally clear that the clause protects Members’ aides or assistants insofar as their conduct would be protected if performed by the Member himself. See Gravel v. United States, 408 U.S. 606, 618, 92 S.Ct. 2614, 2623, 33 L.Ed.2d 583 (1972).
Congressional personnel decisions present difficult questions of Speech or Debate Clause immunity because the congressional action at issue may be slightly removed from the direct legislative process. In construing the Speech or Debate Clause in this context, we are mindful of James Madison’s advice that “[i]n the application of the [Speech or Debate Clause] to emerging cases ... the reason and necessity of the privilege must be the guide.” 4 Writings of James Madison 221 (1865). Thus, we employ a functional approach to interpreting the Speech or Debate Clause, being further influenced by the view that the clause “ought not be to construed strictly, but liberally, that the full design of it may be answered.” Coffin v. Coffin, 4 Mass. 1 (1808), quoted in Kilbourn, 13 Otto 168, 103 U.S. at 203. See United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966); McSurely v. McClellan, 553 F.2d 1277, 1284 (D.C.Cir. 1976), cert. dismissed, 438 U.S. 189, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978).
The Speech or Debate Clause is intended to protect the integrity of the legislative process by restraining the judiciary and the executive from questioning legislative actions. United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972). In so shielding the legislative branch from judicial scrutiny, the clause seeks to protect legislators “not only from the consequences of litigation’s results, but also from the burden of defending themselves.” Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967). Without this protection legislators would be both inhibited in and distracted from the performance of their constitutional duties.
Both of these interests are embodied in the Supreme Court’s oft-quoted test of Speech or Debate Clause immunity:
The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in Committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.
Gravel, 408 U.S. at 625, 92 S.Ct. at 2627 (emphasis added). See Eastland v. United States’ Servicemen’s Fund, 421 U.S. 491, 504, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 314, 93 S.Ct. 2018, 2025, 36 L.Ed.2d 912 (1973); Consumers Union v. Periodical Correspondents’ Association, 515 F.2d 1341, 1350 (D.C.Cir.1975). In a case decided contemporaneously with Gravel, the Supreme Court clarified its reading of the Speech or Debate Clause, stating: “The only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself.” United States v. Brewster, 408 U.S. 501, 528, 92 S.Ct. 2531, 2545, 33 L.Ed.2d 507 (1972).
B.
In Walker v. Jones, this court considered the scope of the Speech or Debate Clause immunity in the context of a congressional personnel decision. The plaintiff in Walker sued the congressional defendants alleging that she was discharged as general manager of the House of Representatives Restaurant System because she was a woman. See Walker, 733 F.2d at 925-26. The congressional defendants asserted that their actions were protected from judicial inquiry by the Speech or Debate Clause. Id. at 925.
By a divided panel, this court ultimately held that the congressional defendants could not avail themselves of the Speech or Debate Clause immunity. Id. at 928-32. In holding that the discharge of the restaurant manager fell outside the scope of the Speech or Debate Clause, this court identified the ultimate issue to be the duties of the employee. Id. at 930-31. Where the duties of the employee implicate Speech or Debate Clause concerns, so will personnel actions respecting that employee.
Judicial inquiry into the motivations behind Walker’s discharge implicated none of the concerns of the Speech or Debate Clause. The decision recites two possible tests, both of which characterize Walker’s position as nonlegislative and suggest that the Speech or Debate Clause immunity should not apply. One test provided that the Speech or Debate Clause immunity would apply whenever the employee’s duties reasonably could be described “as work that significantly informs or influences the shaping of our nation’s laws.” Id. at 931. This test suggests that the immunity attaches to personnel decisions where the employee has “meaningful input into ... legislative decisionmaking.” Id. at 930 (quoting Davis v. Passman, 544 F.2d 865, 880-81 n. 25 (5th Cir.1977), rev’d on other grounds, 571 F.2d 793 (5th Cir.1978) (en banc), rev’d, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (see supra note 10)). The second test provided that Speech or Debate immunity would protect any personnel decision involving an employee whose duties were “peculiar to a Congress member’s work qua legislator,” or, stated differently, “ ‘intimately cognate’ ... to the legislative process.” Walker, 733 F.2d at 931 (quoting Davis, 544 F.2d at 879).
In Walker these alternative tests served to suggest that personnel actions in the course of superintending congressional food services facilities were not shielded by the Speech or Debate Clause even though such facilities were great time savers for members of Congress and their staffs. Food services as well as other services catering to human needs are neither intimately cognate to the legislative process nor work that significantly informs the shaping of our Nation’s laws. In the instant case, by contrast, there can be little doubt that an Official Reporter, performing duties such as the recording of sworn testimony of witnesses in a congressional investigation entitled “Involvement of Organized Crime in the Hazardous Waste Disposal Industry,” plays a role that is “intimately cognate to the legislative process.” Id. Nevertheless, the district court below held that the Speech or Debate Clause immunity does not apply to congressional personnel decisions involving the Official Reporters. The district court’s holding seems to rest on an interpretation of the first test recited in Walker — the “meaningful input” test — which requires that before immunity will apply, the congressional employee’s duties must entail discretionary input into the legislative process. This court’s holding in Walker was not meant to be so restrictive, however, and we attempt below to express a clearer test of the Speech or Debate Clause immunity.
C.
The touchstone to determining whether the Speech or Debate Clause immunity attaches is whether the activities at issue were “an integral part of the deliberative and communicative processes [of Congress],” Gravel, 408 U.S. at 625, such that the activity is legislative in character. Personnel decisions are an integral part of the legislative process to the same extent that the affected employee’s duties are an integral part of the legislative process. Cf. Agromayor v. Colberg, 738 F.2d 55 (1st Cir.), cert. denied, — U.S.-, 105 S.Ct. 515, 83 L.Ed.2d 405 (1984). Thus, if the employee’s duties are an integral part of the legislative process, such that they are directly assisting members of Congress in the “discharge of their functions,” personnel decisions affecting them are correspondingly legislative and shielded from judicial scrutiny.
To limit the scope of the Speech or Debate Clause immunity to personnel actions where the employee has discretionary input into the legislative process is far too restrictive a view. The Speech or Debate Clause is designed to preserve the integrity of the legislative process by preventing “intimidation by the executive and accountability before a possibly hostile judiciary.” United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966). It is intended to shield legislators from “the hazard of a ... jury’s speculation as to motive,” Tenney v. Brandhove, 341 U.S. at 377, 71 S.Ct. at 788, and thus must shield from judicial inquiry all matters within the legislative sphere. “The claim of an unworthy purpose does not destroy the privilege.” Id.
On the other hand, it is equally important that this immunity not be understood to protect any matter however remotely related to the legislative process. The protected activity must be a part of “the due functioning of the legislative process.” Brewster, 408 U.S. at 516, 92 S.Ct. at 2539. The clause cannot be read to include all things in any way- related to the legislative process because “[gjiven such a sweeping reading, we have no doubt that there are few activities in which a legislator engages that he would be unable somehow to ‘relate’ to the legislative process.” Id. With these parameters in mind, we hold that the standard for determining Speech or Debate Clause immunity, is best expressed as whether the employee’s duties were directly related to the due functioning of the legislative process.
There can be little doubt that Browning’s duties as an Official Reporter were directly related to the legislative process. The Official Reporters record floor and committee proceedings both for later use in forming legislation and to create a permanent record of the proceedings. Indeed, the accurate reporting of a committee investigation, because of the possibility of actions for contempt and perjury, could be more important than the reporting of speeches on the floor of Congress, which are submitted to Members prior to publication for correction, revision, and extension. A cursory look through the record of the instant case reveals the integral role fulfilled by the Official Reporters. Letters written on behalf of Browning, included in the record for other reasons, refer to her duties in recording testimony before House committees both locally and “in the field” involving , such matters as the Voting Rights Act extension, see JA 33, frauds against the elderly, see JA 34, and narcotics and drug abuse, see JA 35. As noted above, at Browning’s dismissal both Ladd and Henshaw referred to a particular assignment which Browning failed to execute properly concerning hearings before the House Subcommittee on Oversight and Investigations, Committee on Interstate and Foreign Commerce, on Involvement of Organized Crime in the Hazardous Waste Disposal Industry. The testimony was taken under oath to ensure veracity and for possible use in judicial proceedings should any of the testimony prove false or perjurious. See JA 11. Surely the recordation of these proceedings was directly related to the proper execution of this legislative investigation. It is equally well-recognized that such an investigation is part of the due functioning of the House of Representatives. Along with the power to formulate legislation and the power to communicate within the legislature, the power to investigate clearly falls within the legislative sphere. See Eastland, 421 U.S. at 504, 95 S.Ct. at 1822. Thus, the Speech and Debate Clause applies to shield the congressional action at issue here from judicial scrutiny.
Consideration of some of the questions a court would be required to pose in considering Browning’s claim further illustrates the necessity of Speech or Debate Clause immunity here. Cf. United States v. Johnson, 383 U.S. 169, 184-85, 86 S.Ct. 749, 757-58 (1966) (a criminal prosecution dependent on inquiries into legislative matters contravenes the Speech or Debate Clause). For example, in assessing the adequacy of Browning’s performance a court would necessarily have to inquire about matters at the very heart of the legislative process, such as the nature of the hearings to which Browning was assigned, the purposes underlying those hearings, and whether Browning’s performance frustrated those purposes. But this sort of intrusion into the legislative sphere is exactly the sort of intrusion that the Speech or Debate Clause is designed to prevent. This is very different from a case like Walker, where Congressmen would be required to testify, if at all, only with respect to the operation of the House restaurants.
D.
In concluding that the nature of Browning’s duties place this personnel action within the legislative sphere and therefore beyond the cognizance of the judiciary, we are not unmindful that Congress has provided for the resolution of its internal disputes. Although we are not suggesting that a lack of alternative remedies would alter our decision today, we note that Congress has provided for internal procedures to address complaints such as Browning’s.
The Rules of the House of Representatives authorize the Committee on Standards of Official Conduct to investigate alleged violations of the House of Representatives’ Code of Official Conduct or of any law, rule, or regulation by any member, officer or employee of the House. See Rules of the House of Representatives, 97th Cong., Rule X, cl. 4(e)(1)(B). Under these rules an investigation may be conducted either upon the complaint of a member of the House, or by an individual not a member of the House whose complaint is accompanied by three written refusals by Representatives to transmit the complaint. Id., cl. 4(e)(2)(B)(i) & (ii). These procedures have previously been invoked by non-members. See, e.g., In the Matter of Representative Geraldine A. Ferraro, H.R.Rep. No. 1169, 98th Cong., 2d Sess. (1984) (where a non-member brought a complaint seeking an investigation of alleged discrep-andes in Representative Ferraro’s finandal disdosures).
The Rules of the Committee on Standards of Offidal Conduct set forth the procedures to be followed in considering such complaints. See Rules of the Committee on Standards of Official Conduct, 97th Cong., Rules 9-21. These Rules provide that for violations by Representatives, the Committee may recommend to the House that the member be expelled, censured, reprimanded, fined, denied privileges, and assessed “[a]ny other sanction determined by the Committee to be appropriate.” Id., Rule 17(b)(l)(A)-(F) (emphasis added). Violations by employees may be punished by dismissal, fine, and “[a]ny other sanction determined by the Committee to be appropriate.” Id., Rule 17(b)(2)(A)-(C). It is not clear from these Rules whether Browning could obtain damages for violation of her constitutional rights. But it is clear that significant redress is available to her within the Congress. The authority to impose an “appropriate ... sanction” is a broad grant of power to redress grievances.
III. CONCLUSION
We hold that Browning’s duties as an Official Reporter were directly related to the due functioning of the legislative process, and as such the personnel decision in her case is nonjusticiable under the Speech or Debate Clause. We do not reach this conclusion lightly, as we are mindful of the conflict between Browning’s constitutional rights and the important separation-of-powers concerns embodied in the Speech or Debate Clause. The framers of the Constitution were aware of the potential risks that this immunity created, however, and the free and unreserved exercise of the duties of a representative “was the conscious choice of the Framers.” Brewster, 408 U.S. at 516, 92 S.Ct. at 2539. “In the American governmental structure the clause serves the additional function of reenforcing the separation of powers so deliberately established by the Founders.” United States v. Johnson, 383 U.S. 169, 178, 86 S.Ct. 749, 754, 15 L.Ed.2d 681 (1966).
For the foregoing reasons, we reverse the order of the district court and remand this case with instructions to dismiss the complaint for want of subject matter jurisdiction.
Judgment Accordingly.
. Browning Affidavit. ¶ 8 (JA 16).
. The congressional appellants are Geraldine Lyda, the Director of the Office of Official Reporters for the House of Representatives; her supervisor, the Assistant to the Clerk of the House of Representatives, appellant Thomas Ladd; the Clerk of the House of Representatives, appellant Edmund L. Henshaw; and the ■ Speaker of the House of Representatives, the Honorable Thomas P. O’Neill.
. United States Constitution, Art. 1, Sec. 6, Clause 2 provides:
... for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.
. Browning asserted that as a general matter she "diligently and competently carried out her assigned tasks____" Browning Affidavit f[ 8. She also admits, however, that on several occasions her performance was poor, which she sought to excuse because these incidents “oc-curr[ed] at a time of extreme difficulties in her family ...," Complaint fl 11, and while she was "under great stress____" Browning Affidavit if 8. The significance of these facts rests with their importance in demonstrating that the focus of a trial on the merits would concern Browning’s performance as it touches the legislative process.
. In addition to their assertion of Speech or Debate Clause immunity, the defendants raised claims of official immunity, judicial restraint/separation-of-powers, and failure to state a claim upon which relief can be granted. See House Defendants' Motion to Dismiss and Memorandum of Points and Authorities in Support of House Defendants’ Motion to Dismiss, No. 84-1637 (D.D.C. filed Aug. 10, 1984).
. Although the district court has not entered final judgment in this case, this appeal was nevertheless properly taken under 28 U.S.C. § 1291 (1982). Issues of Speech or Debate Clause immunity may be immediately appealed. See Helstoski v. Meanor, 442 U.S. 500, 506, 99 S.Ct. 2445, 2448, 61 L.Ed.2d 30 (1979). The rationale underlying this rule is that the Speech or Debate Clause was intended not only to protect legislators from liability, but also to protect them from the time-consuming burden of defending their actions in court and diverting their efforts from their congressional duties. In Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951), concerning a state legislator’s immunity from suit under the federal civil rights law granting a damage remedy for violation of a person’s civil rights, the Supreme Court stated:
Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motive.
Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). See Helstoski, 442 U.S. at 507-08, 99 S.Ct. at 2448-49.
. Because we decide that the district court should have dismissed this lawsuit upon Speech or Debate Clause grounds, we need not reach the other issues raised in this appeal, viz., official immunity, judicial restraint/separation-of-powers, and failure to state a claim, see supra note 5.
. [I]n order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive.... 8 Works of Thomas Jefferson 322-23 (Ford ed. 1904).
. See supra note 6.
. A similar opportunity for the Supreme Court arose in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). In Davis, the Supreme Court was called upon to review a Congressman’s discharge of his deputy administrative assistant because she was a woman. The Supreme Court ultimately implied a cause of action under the Fifth Amendment in favor of the discharged employee. The Supreme Court refused, however, with the case in that posture, to consider the claim that the discharge was protected from judicial scrutiny by Speech or Debate Clause immunity. Id. at 235-36 n. 11, 99 S.Ct. at 2271-72 n. 11.
. It is unclear from the district court’s opinion how the district court interpreted Walker. The court's one-paragraph order fails to explain its holding. See Browning v. Clerk, U.S. House of Representatives, No. 84-1637 (D.D.C. filed Dec. 17, 1984). But at oral argument, the district court did note the following, which suggests that the court understood Walker to apply the Speech or Debate Clause only to congressional personnel actions involving employees with discretionary input into the legislative process:
The Court: ... it seems to me that there is a fundamental difference between a member reporter who selectively records, as a Recording Secretary, the minutes of a meeting and makes editorial judgments, if you will, as to what is going into the official record, and a verbatim transcript, which is the human equivalent of a tape recorder.
Trial Transcript at 29 (emphasis added).
. See supra at 925.
. The history of the Official Reporters further indicates their integral role in the legislative process. Prior to the middle of the nineteenth century, the House of Representatives made no formal provision for stenographic reporting of committee hearings or floor debates. Only beginning about the time of the Civil War did Congress begin to employ Official Reporters. Notes had previously been taken by the individual Congressmen themselves. See L. McCona-chie, Congressional Committees: A Study of the Origins and Development of Our National and Local Legislative Methods 65 (1898).
Congress initially hired private reporters, but the lack of control over them persuaded Congress in 1866 to employ Official Reporters. See Cong. Globe, 38th Cong., 1st Sess. 300 (1866). This was the beginning of the House of Representatives’ Office of Official Reporters.
. It is not suggested that the House Rules constitute an exhaustion requirement prior to litigation. The question of exhaustion is not before the court because on this interlocutory appeal the only question properly before the court is the question of Speech or Debate Clause immunity. See 28 U.S.C. § 1291; Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977). The question of exhaustion is saved for another case.
. This is broad enough to include constitutional violations. Moreover, the acts of the congressional defendants here, if true, would also constitute a violation of House of Representatives Rule XLIII, the Code of Official Conduct, which provides that ‘‘[a] Member, officer or employee of the House of Representatives shall not discharge or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Rules of the House of Representatives, 97th Cong., Rule XLIII, cl. 9.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_adminaction_is
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
HUNT, GOVERNOR OF NORTH CAROLINA, et al. v. WASHINGTON STATE APPLE ADVERTISING COMMISSION
No. 76-63.
Argued February 22, 1977
Decided June 20, 1977
BurgeR, C. J., delivered the opinion of the Court, in which all Members joined except RehNQuist, J., who took no part in the consideration or decision of the case.
John R. Jordan, Jr., argued the cause for appellants. With him on the brief were Rufus L. Edmisten, Attorney General of North Carolina, and Millard R. Rich, Jr., Deputy Attorney General.
Slade Gorton, Attorney General of Washington, argued the cause for appellee. With him on the brief were Edward B. Mackie, Deputy Attorney General, and James Arneil, Special Assistant Attorney General.
Me. Chief Justice Burgee
delivered the opinion of the Court.
In 1973, North Carolina enacted a statute which required, inter alia, all closed containers of apples sold, offered for sale, or shipped into the State to bear “no grade other than the applicable TJ. S. grade or standard.” N. C. Gen. Stat. § 106-189.1 (1973). In an action brought by the Washington State Apple Advertising Commission, a three-judge Federal District Court invalidated the statute insofar as it prohibited the display of Washington State apple grades on the ground that it unconstitutionally discriminated against interstate commerce.
The specific questions presented on appeal are (a) whether the Commission had standing to bring this action; (b) if so, whether it satisfied the jurisdictional-amount requirement of 28 U. S. C. § 1331; and (c) whether the challenged North Carolina statute constitutes an unconstitutional burden on interstate commerce.
(1)
Washington State is the Nation's largest producer of apples, its crops accounting for approximately 30% of all apples grown domestically and nearly half of all apples shipped in closed containers in interstate commerce. As might be expected, the production and sale of apples on this scale is a multimillion dollar enterprise which plays a significant role in Washington's economy. Because of the importance of the apple industry to the State, its legislature has undertaken to protect and enhance the reputation of Washington apples by establishing a stringent, mandatory inspection program, administered by the State’s Department of Agriculture, which requires all apples shipped in interstate commerce to be tested under strict quality standards and graded accordingly. In all cases, the Washington State grades, which have gained substantial acceptance in the trade, are the equivalent of, or superior to, the comparable grades and standards adopted by the United States Department of Agriculture (USDA). Compliance with the Washington inspection scheme costs the State’s growers approximately $1 million each year.
In addition to the inspection program, the state legislature has sought to enhance the market for Washington apples through the creation of a state agency, the Washington State Apple Advertising Commission, charged with the statutory duty of promoting and protecting the State’s apple industry. The Commission itself is composed of 13 Washington apple growers and dealers who are nominated and elected within electoral districts by their fellow growers and dealers. Wash. Rev. Code §§ 15.24.020, 15.24.030 (1974). Among its activities are the promotion of Washington apples in both domestic and foreign markets through advertising, market research and analysis, and public education, as well as scientific research into the uses, development, and improvement of apples. Its activities are financed entirely by assessments levied upon the apple industry, § 15.24.100; in the year during which this litigation began, these assessments totaled approximately $1.75 million. The assessments, while initially fixed by statute, can be increased only upon the majority vote of the apple growers themselves. § 15.24.090.
In 1972, the North Carolina Board of Agriculture adopted an administrative regulation, unique in the 50 States, which in effect required all closed containers of apples shipped into or sold in the State to display either the applicable USDA grade or a notice indicating no classification. State grades were expressly prohibited. In addition to its obvious consequence — prohibiting the display of Washington State apple grades on containers of apples shipped into North Carolina, the regulation presented the Washington apple industry with a marketing problem of potentially nationwide significance. Washington apple growers annually ship in commerce approximately 40 million closed containers of apples, nearly 500,000 of which eventually find their way into North Carolina, stamped with the applicable Washington State variety and grade. It is the industry’s practice to purchase these containers preprinted with the various apple varieties and grades, prior to harvest. After these containers are filled with apples of the appropriate type and grade, a substantial portion of them are placed in cold-storage warehouses where the grade labels identify the product and facilitate its handling. These apples are then shipped as needed throughout the year; after February 1 of each year, they constitute approximately two-thirds of all apples sold in fresh markets in this country. Since the ultimate destination of these apples is unknown at the time they are placed in storage, compliance with North Carolina’s unique regulation would have required Washington growers to obliterate the printed labels on containers shipped to North Carolina, thus giving their product a damaged appearance. Alternatively, they could have changed their marketing practices to accommodate the needs of the North Carolina market, i. e., repack apples to be shipped to North Carolina in containers bearing only the USD A grade, and/or store the estimated portion of the harvest destined for that market in such special containers. As a last resort, they could discontinue the use of the preprinted containers entirely. None of these costly and less efficient options was very attractive to the industry. Moreover, in the event a number of other States followed North Carolina’s lead, the resultant inability to display the Washington grades could force the Washington growers to abandon the State’s expensive inspection and grading system which their customers had come to know and rely on over the 60-odd years of its existence.
With these problems confronting the industry, the Washington State Apple Advertising Commission petitioned the North Carolina Board of Agriculture to amend its regulation to permit the display of state grades. An administrative hearing was held on the question but no relief was granted. Indeed, North Carolina hardened its position shortly thereafter by enacting the regulation into law:
“All apples sold, offered for sale or shipped into this State in closed containers shall bear on the container, bag or other receptacle, no grade other than the applicable U. S. grade or standard or the marking ‘unclassified,’ ‘not graded’ or ‘grade not determined.’ ” N. C. Gen. Stat. § 106-189.1 (1973).
Nonetheless, the Commission once again requested an exemption which would have permitted the Washington apple growers to display both the United States and the Washington State grades on their shipments to North Carolina. This request, too, was denied.
Unsuccessful in its attempts to secure administrative relief, the Commission instituted this action challenging the constitutionality of the statute in the United States District Court for the Eastern District of North Carolina. Its complaint, which invoked the District Court’s jurisdiction under 28 U. S. C. §§ 1331 and 1343, sought a declaration that the statute violated, inter alia, the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3, insofar as it prohibited the display of Washington State grades, and prayed for a permanent injunction against its enforcement in this manner. A three-judge Federal District Court was convened pursuant to 28 U. S. C. §§ 2281 and 2284 to consider the Commission’s constitutional attack on the statute.
After a hearing, the District Court granted the requested relief. 408 F. Supp. 857 (1976). At the outset, it held that the Commission had standing to challenge the statute both in its own right and on behalf of the Washington State growers and dealers, and that the $10,000 amount-in-controversy requirement of § 1331 had been satisfied. 408 F. Supp., at 858. Proceeding to the merits, the District Court found that the North Carolina statute, while neutral on its face, actually discriminated against Washington State growers and dealers in favor of their local counterparts. Id., at 860-861. This discrimination resulted from the fact that North Carolina, unlike Washington, had never established a grading and inspection system. Hence, the statute had no effect on the existing practices of North Carolina producers; they were still free to use the USDA grade or none at all. Washington growers and dealers, on the other hand, were forced to alter their long-established procedures, at substantial cost, or abandon the North Carolina market. The District Court then concluded that this discrimination against out-of-state competitors was not justified by the asserted local interest — the elimination of deception and confusion from the marketplace — arguably furthered by the statute. Indeed, it noted that the statute was “irrationally” drawn to accomplish that alleged goal since it permitted the marketing of closed containers of apples without any grade at all. Id., at 861-862. The court therefore held that the statute unconstitutionally discriminated against commerce, insofar as it affected the interstate shipment of Washington apples, and enjoined its application. This appeal followed and we postponed further consideration of the question of jurisdiction to the hearing of the case on the merits sub nom. Holshouser v. Washington State Apple Advertising Comm’n, 429 U. S. 814 (1976).
(2)
In this Court, as before, the North Carolina officials vigorously contest the Washington Commission’s standing to prosecute this action, either in its own right, or on behalf of that State’s apple industry which it purports to represent. At the outset, appellants maintain that the Commission lacks the “personal stake” in the outcome of this litigation essential to its invocation of federal-court jurisdiction. Baker v. Carr, 369 U. S. 186, 204 (1962). The Commission, they point out, is a state agency, not itself engaged in the production and sale of Washington apples or their shipment into North Carolina. Rather, its North Carolina activities are limited to the promotion of Washington apples in that market through advertising. Appellants contend that the challenged statute has no impact on that activity since it prohibits only the display of state apple grades on closed containers of apples. Indeed, since the statute imposed no restrictions on the advertisement of Washington apples or grades other than the labeling ban, which affects only those parties actually engaged in the apple trade, the Commission is said to be free to carry on the same activities that it engaged in prior to the regulatory program. Appellants therefore argue that the Commission suffers no injury, economic or otherwise, from the statute’s operation, and, as a result, cannot make out the “case or controversy” between itself and the appellants needed to establish standing in the constitutional sense. E. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 260-264 (1977); Warth v. Seldin, 422 U. S. 490, 498-499 (1975).
Moreover, appellants assert, the Commission cannot rely on the injuries which the statute allegedly inflicts individually or collectively on Washington apple growers and dealers in order to confer standing on itself. Those growers and dealers, appellants argue, are under no disabilities which prevent them from coming forward to protect their own rights if they are, in fact, injured by the statute’s operation. In any event, appellants contend that the Commission is not a proper representative of industry interests. Although this Court has recognized that an association may have standing to assert the claims of its members even where it has suffered no injury from the challenged activity, e. g., Warth v. Seldin, supra, at 511; National Motor Freight Assn. v. United States, 372 U. S. 246 (1963), the Commission is not a traditional voluntary membership organization such as a trade association, for it has no members at all. Thus, since the Commission has no members whose claims it might raise, and since it has suffered no “distinct and palpable injury” to itself, it can assert no more than an abstract concern for the well-being of the Washington apple industry as the basis for its standing. That type of interest, appellants argue, cannot “substitute for the concrete injury required by Art. III.” Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 40 (1976).
If the Commission were a voluntary membership organization — a typical trade association — its standing to bring this action as the representative of its constituents would be clear under prior decisions of this Court. In Warth v. Seldin, supra, we stated:
“Even in the absence of injury to itself, an association may have standing solely as the representative of its members. . . . The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.... So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.” 422 U. S., at 511.
See also Simon v. Eastern Ky. Welfare Rights Org., supra, at 39-40; Meek v. Pittenger, 421 U. S. 349, 355-356, n. 5 (1975); Sierra Club v. Morton, 405 U. S. 727, 739 (1972); National Motor Freight Assn. v. United States, supra. We went on in Worth to elaborate on the type of relief that an association could properly pursue on behalf of its members:
“[W]hether an association has standing to invoke the court’s remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper ease the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind.” 422 U. S., at 515.
Thus we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
The prerequisites to “assoeiational standing” described in Warth are clearly present here. The Commission’s complaint alleged, and the District Court found as a fact, that the North Carolina statute had caused some Washington apple growers and dealers (a) to obliterate Washington State grades from the large volume of closed containers destined for the North Carolina market at a cost ranging from 5 to 15 cents per carton; (b) to abandon the use of preprinted containers, thus diminishing the efficiency of their marketing operations; or (c) to lose accounts in North Carolina. Such injuries are direct and sufficient to establish the requisite “case or controversy” between Washington apple producers and appellants. Moreover, the Commission’s attempt to remedy these injuries and to secure the industry’s right to publicize its grading system is central to the Commission’s purpose of protecting and enhancing the market for Washington apples. Finally, neither the interstate commerce claim nor the request for declaratory and injunctive relief requires individualized proof and both are thus properly resolved in a group context.
The only question presented, therefore, is whether, on this record, the Commission’s status as a state agency, rather than a traditional voluntary membership organization, precludes it from asserting the claims of the Washington apple growers and dealers who form its constituency. We think not. The Commission, while admittedly a state agency, for all practical purposes performs the functions of a traditional trade association representing the Washington apple industry. As previously noted, its purpose is the protection and promotion of the Washington apple industry; and, in the pursuit of that end, it has engaged in advertising, market research and analysis, public education campaigns, and scientific research. It thus serves a specialized segment of the State’s economic community which is the primary beneficiary of its activities, including the prosecution of this kind of litigation.
Moreover, while the apple growers and dealers are not “members” of the Commission in the traditional trade association sense, they possess all of the indicia of membership in an organization. They alone elect the members of the Commission; they alone may serve on the Commission; they alone finance its activities, including the costs of this lawsuit, through assessments levied upon them. In a very real sense, therefore, the Commission represents the State’s growers and dealers and provides the means by which they express their collective views and protect their collective interests. Nor do we find it significant in determining whether the Commission may properly represent its constituency that "membership” is “compelled” in the form of mandatory assessments. Membership in a union, or its equivalent, is often required. Likewise, membership in a bar association, which may also be an agency of the State, is often a prerequisite to the practice of law. Yet in neither instance would it be reasonable to suggest that such an organization lacked standing to assert the claims of its constituents.
Finally, we note that the interests of the Commission itself may be adversely affected by the outcome of this litigation. The annual assessments paid to the Commission are tied to the volume of apples grown and packaged as “Washington Apples.” In the event the North Carolina statute results in a contraction of the market for Washington apples or prevents any market expansion that might otherwise occur, it could reduce the amount of the assessments due the Commission and used to support its activities. This financial nexus between the interests of the Commission and its constituents coalesces with the other factors noted above to “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U. S., at 204; see also NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459-460 (1958).
Under the circumstances presented here, it would exalt form over substance to differentiate between the Washington Commission and a traditional trade association representing the individual growers and dealers who collectively form its constituency. We therefore agree with the District Court that the Commission has standing to bring this action in a representational capacity.
(3)
We turn next to the appellants' claim that the Commission has failed to satisfy the $10,000 amount-in-controversy requirement of 28 U. S. C. § 1331. As to this, the appellants maintain that the Commission itself has not demonstrated that its right to be free of the restrictions imposed by the challenged statute is worth more than the requisite $10,000. Indeed, they argue that the Commission has made no real effort to do so, but has instead attempted to rely on the actual and threatened injury to the individual Washington apple growers and dealers upon whom the statute has a direct impact. This, they claim, it cannot do, for those growers and dealers are not parties to this litigation. Alternatively, appellants argue that even if the Commission can properly rely on the claims of the individual growers and dealers, it cannot establish the required jurisdictional amount without aggregating those claims. Such aggregation, they argue, is impermissible under this Court’s decisions in Snyder v. Harris, 394 U. S. 332 (1969), and Zahn v. International Paper Co., 414 U.S.291 (1973).
Our determination that the Commission has standing to assert the rights of the individual growers and dealers in a representational capacity disposes of the appellants’ first contention. Obviously, if the Commission has standing to litigate the claims of its constituents, it may also rely on them to meet the requisite amount in controversy. Hence, we proceed to the question of whether those claims were sufficient to confer subject-matter jurisdiction on the District Court. In resolving this issue, we have found it unnecessary to reach the aggregation question posed by the appellants for it does not appear to us “to a legal certainty” that the claims of at least some of the individual growers and dealers will not amount to the required $10,000. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 288-289 (1938).
In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation. E. g., McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 181 (1936); Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U. S. 121, 126 (1915); Hunt v. New York Cotton Exchange, 205 U. S. 322, 336 (1907); 1 J. Moore, Federal Practice ¶¶ 0.95, 0.96 (2d ed. 1975); C. Wright, A Miller, & E. Cooper, Federal Practice & Procedure § 3708 (1976). Here, that object is the right of the individual Washington apple growers and dealers to conduct their business affairs in the North Carolina market free from the interference of the challenged statute. The value of that right is measured by the losses that will follow from the statute’s enforcement. McNutt, supra, at 181; Buck v. Gallagher, 307 U. S. 95, 100 (1939); Kroger Grocery & Baking Co. v. Lutz, 299 U. S. 300, 301 (1936); Packard v. Banton, 264 U. S. 140, 142 (1924).
Here the record demonstrates that the growers and dealers have suffered and will continue to suffer losses of various types. For example, there is evidence supporting the District Court’s finding that individual growers and shippers lost accounts in North Carolina as a direct result of the statute. Obviously, those lost sales could lead to diminished profits. There is also evidence to support the finding that individual growers and dealers incurred substantial costs in complying with the statute. As previously noted, the statute caused some growers and dealers to manually obliterate the Washington grades from closed containers to be shipped to North Carolina at a cost of from 5 to 15 cents per carton. Other dealers decided to alter their marketing practices, not without cost, by repacking apples or abandoning the use of preprinted containers entirely, among other things. Such costs of compliance are properly considered in computing the amount in controversy. Buck v. Gallagher, supra; Packard v. Banton, supra; Allway Taxi, Inc. v. New York, 340 F. Supp. 1120 (SDNY), aff’d, 468 F. 2d 624 (CA2 1972). In addition, the statute deprived the growers and dealers of their rights to utilize most effectively the Washington State grades which, the record demonstrates, were of long standing and had gained wide acceptance in the trade. The competitive advantages thus lost could not be regained without incurring additional costs in the form of advertising, etc. Cf. Spock v. David, 502 F. 2d 953, 956 (CA3 1974), rev’d on other grounds, 424 U. S. 828 (1976). Moreover, since many apples eventually shipped to North Carolina will have already gone through the expensive inspection and grading procedure, the challenged statute will have the additional effect of causing growers and dealers to incur inspection costs unnecessarily.
Both the substantial volume of sales in North Carolina— the record demonstrates that in 1974 alone, such sales were in excess of $2 million — and the continuing nature of the statute’s interference with the business affairs of the Commission’s constituents, preclude our saying “to a legal certainty,” on this record, that such losses and expenses will not, over time, if they have not done so already, amount to the requisite $10,000 for at least some of the individual growers and dealers. That is sufficient to sustain the District Court’s jurisdiction. The requirements of § 1331 are therefore met.
(4)
We turn finally to the appellants’ claim that the District Court erred in holding that the North Carolina statute violated the Commerce Clause insofar as it prohibited the display of Washington State grades on closed containers of apples shipped into the State. Appellants do not really contest the District Court’s determination that the challenged statute burdened the Washington apple industry by increasing its costs of doing business in the North Carolina market and causing it to lose accounts there. Rather, they maintain that any such burdens on the interstate sale of Washington apples were far outweighed by the local benefits flowing from what they contend was a valid exercise of North Carolina’s inherent police powers designed to protect its citizenry from fraud and deception in the marketing of apples.
Prior to the statute’s enactment, appellants point out, apples from 13 different States were shipped into North Carolina for sale. Seven of those States, including the State of Washington, had their own grading systems which, while differing in their standards, used similar descriptive labels (e. g., fancy, extra fancy, etc.). This multiplicity of inconsistent state grades, as the District Court itself found, posed dangers of deception and confusion not only in the North Carolina market, but in the Nation as a whole. The North Carolina statute, appellants claim, was enacted to eliminate this source of deception and confusion by replacing the numerous state grades with a single uniform standard. Moreover, it is contended that North Carolina sought to accomplish this goal of uniformity in an evenhanded manner as evidenced by the fact that its statute applies to all apples sold in closed containers in the State without regard to their point of origin. Nonetheless, appellants argue that the District Court gave “scant attention” to the obvious benefits flowing from the challenged legislation and to the long line of decisions from this Court holding that the States possess “broad powers” to protect local purchasers from fraud and deception in the marketing of foodstuffs. E. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963); Pacific States Box & Basket Co. v. White, 296 U. S. 176 (1935); Corn Products Refining Co. v. Eddy, 249 U. S. 427 (1919).
As the appellants properly point out, not every exercise of state authority imposing some burden on the free flow of commerce is invalid. E. g., Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U. S. 366, 371 (1976); Freeman v. Hewit, 329 U. S. 249, 252 (1946). Although the Commerce Clause acts as a limitation upon state power even without congressional implementation, e. g., Great Atlantic & Pacific Tea Co., supra, at 370-371; Freeman v. Hewit, supra, at 252; Cooley v. Board of Wardens, 12 How. 299 (1852), our opinions have long recognized that,
“in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.” Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 767 (1945).
Moreover, as appellants correctly note, that “residuum” is particularly strong when the State acts to protect its citizenry in matters pertaining to the sale of foodstuffs. Florida Lime & Avocado Growers, Inc., supra, at 146. By the same token, however, a finding that state legislation furthers matters of legitimate local concern, even in the health and consumer protection areas, does not end the inquiry. Such a view, we have noted, “would mean that the Commerce Clause of itself imposes no limitations on state action . . . save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods.” Dean Milk Co. v. Madison, 340 U. S. 349, 354 (1951). Rather, when such state legislation comes into conflict with the Commerce Clause's overriding requirement of a national “common market,” we are confronted with the task of effecting an accommodation of the competing national and local interests. Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970); Great Atlantic & Pacific Tea Co., supra, at 370-372. We turn to that task.
As the District Court correctly found, the challenged statute has the practical effect of not only burdening interstate sales of Washington apples, but also discriminating against them. This discrimination takes various forms. The first, and most obvious, is the statute’s consequence of raising the costs of doing business in the North Carolina market for Washington apple growers and dealers, while leaving those of their North Carolina counterparts unaffected. As previously noted, this disparate effect results from the fact that North Carolina apple producers, unlike their Washington competitors, were not forced to alter their marketing practices in order to comply with the statute. They were still free to market their wares under the USDA grade or none at all as they had done prior to the statute’s enactment. Obviously, the increased costs imposed by the statute would tend to shield the local apple industry from the competition of Washington apple growers and dealers who are already at a competitive disadvantage because of their great distance from the North Carolina market.
Second, the statute has the effect of stripping away from the Washington apple industry the competitive and economic advantages it has earned for itself through its expensive inspection and grading system. The record demonstrates that the Washington apple-grading system has gained nationwide acceptance in the apple trade. Indeed, it contains numerous affidavits from apple brokers and dealers located both inside and outside of North Carolina who state their preference, and that of their customers, for apples graded under the Washington, as opposed to the USDA, system because of the former’s greater consistency, its emphasis on color, and its supporting mandatory inspections. Once again, the statute had no similar impact on the North Carolina apple industry and thus operated to its benefit.
Third, by prohibiting Washington growers and dealers from marketing apples under their State’s grades, the statute has a leveling effect which insidiously operates to the advantage of local apple producers. As noted earlier, the Washington State grades are equal or superior to the USDA grades in all corresponding categories. Hence, with free market forces at work, Washington sellers would normally enjoy a distinct market advantage vis-a-vis local producers in those categories where the Washington grade is superior. However, because of the statute’s operation, Washington apples which would otherwise qualify for and be sold under the superior Washington grades will now have to be marketed under their inferior USDA counterparts. Such “downgrading” offers the North Carolina apple industry the very sort of protection against competing out-of-state products that the Commerce Clause was designed to prohibit. At worst, it will have the effect of an embargo against those Washington apples in the superior grades as Washington dealers withhold them from the North Carolina market. At best, it will deprive Washington sellers of the market premium that such apples would otherwise command.
Despite the statute’s facial neutrality, the Commission suggests that its discriminatory impact on interstate commerce was not an unintended byproduct and there are some indications in the record to that effect. The most glaring is the response of the North Carolina Agriculture Commissioner to the Commission’s request for an exemption following the statute’s passage in which he indicated that before he could support such an exemption, he would “want to have the sentiment from our apple producers since they were mainly responsible for this legislation being passed . . . .” App. 21 (emphasis added). Moreover, we find it somewhat suspect that North Carolina singled out only closed containers of apples, the very means by which apples are transported in commerce, to effectuate the statute’s ostensible consumer protection purpose when apples are not generally sold at retail in their shipping containers. However, we need not ascribe an economic protection motive to the North Carolina Legislature to resolve this case; we conclude that the challenged statute cannot stand insofar as it prohibits the display of Washington State grades even if enacted for the declared purpose of protecting consumers from deception and fraud in the marketplace.
When discrimination against commerce of the type we have found is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake. Dean Milk Co. v. Madison, 340 U. S., at 354. See also Great Atlantic & Pacific Tea Co., 424 U. S., at 373; Pike v. Bruce Church, Inc., 397 U. S., at 142; Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S. 361, 375 n. 9 (1964); Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 524 (1935). North Carolina has failed to sustain that burden on both scores.
The several States unquestionably possess a substantial interest in protecting their citizens from confusion and deception in the marketing of foodstuffs, but the challenged statute does remarkably little to further that laudable goal at least with respect to Washington apples and grades. The statute, as already noted, permits the marketing of closed containers of apples under no grades at all. Such a result can hardly be thought to eliminate the problems of deception and confusion created by the multiplicity of differing state grades; indeed, it magnifies them by depriving purchasers of all information concerning the quality of the contents of closed apple containers. Moreover, although the statute is ostensibly a consumer protection measure, it directs its primary efforts, not at the consuming public at large, but at apple wholesalers and brokers who are the principal purchasers of closed containers of apples. And those individuals are presumably the most knowledgeable individuals in this area. Since the statute does nothing at all to purify the flow of information at the retail level, it does little to protect consumers against the problems it was designed to eliminate. Finally, we note that any potential for confusion and deception created by the Washington grades was not of the type that led to the statute’s enactment. Since Washington grades are in all cases equal or superior to their USDA counterparts, they could only “deceive’’ or “confuse” a consumer to his benefit, hardly a harmful result.
In addition, it appears that nondiscriminatory alternatives to the outright ban of Washington State grades are readily available. For example, North Carolina could effectuate its goal by permitting out-of-state growers to utilize state grades only if they also marked their shipments with the applicable USDA label. In that case, the USDA grade would serve as a benchmark against which the consumer could evaluate the quality of the various state grades. If this alternative was for some reason inadequate to eradicate problems caused by state grades inferior to those adopted by the USDA, North Carolina might consider banning those state grades which, unlike Washington’s, could not be demonstrated to be equal or superior to the corresponding USDA categories. Con-cededly, even in this latter instance, some potential for “confusion” might persist. However, it is the type of “confusion" that the national interest in the free flow of goods between the States demands be tolerated.
The judgment of the District Court is
Affirmed.
Mr. Justice Rehnquist took no part in the consideration or decision of the case.
Section 1331 provides in pertinent part:
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
THE NAVEMAR. COMPANIA ESPANOLA DE NAVEGACION MARITIMA, S. A., v. CRESPO et al. (DE LOS RIOS, Spanish Ambassador to U. S., Intervener).
No. 208.
Circuit Court of Appeals, Second Circuit.
April 18, 1939.
Bigham, Englar, Jones & Houston, of New York City (James W. Ryan, of New York City, of counsel), for libellant-appellee, for the motion.
Before L. HAND; SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
On March 6, 1939, we filed our opinion in the above cause reversing the decree of the court below, dismissing the libel and ordering that the “Navemar” be released from arrest and attachment and delivered to the Acting Consul General of Spain at New York pursuant to the prayer of the then Spanish Ambassador Fernando de los Rios. 102 F.2d 444. Since that date an order was made by this court in conformity with o.ur opinion. After our decision the United States recognized the new Spanish government. Thereafter a document was filed with this court, of which the following is a copy:
“To the Honorable the Judges of the United States Circuit Court of Appeals for the Second Circuit:
“The Spanish Government does not desire to appear as a party to the" cause pending in your court under the title:
“Compañía Española de Navegación Marítima, S. A., owner of the Spanish Steamship ‘Navemar’, Libellant-Appellee, against Spanish Steamship ‘Navemar’, her engines, etc., and Rafael Crespo, Jose Arana, Manuel Freire, Gaspar Lopez and Antonio Sanchez, Respondents, Fernando de los Rios, Spanish Ambassador to the United States of America, Appellant.
“Neither it nor I in my capacity as its Charge d’Affaires in the United States have authorized any lawyer to • represent the Spanish Government in any way in this case.
“In accordance with specific instructions from my Government with respect to the above-named cause I am authorized to say that the Spanish Government has no objection to the dismissal of the appeal therein nor to the delivery by the court at the earliest possible moment of the Navemar to Messrs. Garcia & Diaz, 17 Battery Place, New York City, agents of the libellant-appellee herein. On Monday last on my instructions the Acting Consul General of Spain in New York appeared personally in your court and made a statement to the above effect.
“I note in the caption of the suit the name of Fernando de los Rios, who no longer represents the Spanish Government, as clearly indicated by the Certificate of the Secretary of State of the United States, No. 1892, dated April 3, 1939, and filed in the above .cause.
“April 12, 1939
“Jaun F2 de Cardenas
“Charge d’Affaires of Spain to the United States of America.
“[Seal of Embajada de España en Washington]”
The document was accompanied by the certificate of the Secretary of State of the United States under the seal of the Department of State which certified that Señor Don Juan Francisco de Cardenas, whose name-was subscribed to the document, was Charge d’Affaires of Spain at Washington.
Proctors for the libellant-appellee have moved in this court for an order dismissing this appeal. In aid of this motion they have submitted the certificate of the Secretary of State and the above accompanying document signed by the Charge d’Affaires of Spain, a letter signed by the said Charge d’Affaires and the affidavit of Manuel Diaz praying that an order be entered dismissing the appeal and directing that the Spanish Steamship Navemar be delivered to Garcia & Diaz as agents of the libellant Compania Española de Navegación Marítima, S. A.
In Ex parte Muir, 254 U.S. 522, 41 S. Ct. 185, 65 L.Ed. 383, the Supreme Court held that a foreign government might appear in a suit, propound its claim to a vessel and raise the question as to the jurisdiction of the court, or that its accredited and recognized representative might thus appear and take the same steps in its interest. It was likewise stated in Ex parte Muir that if there was objection on the part of the foreign government to appearing as a suitor in a foreign court it was open to it to make the asserted public status and immunity of the vtessel the subject of diplomatic representations to the end, that if the claim was recognized by the Executive Department of this government, it might he set forth and supported in an appropriate suggestion to the court by the Attorney General.
It is evident from the documents that have been presented that the Spanish government has not appeared or authorized its Charge d’Affaires to appear in the cause. In fact it has declined to take this step. Accordingly the motion is denied, with leave, however, to renew upon papers in which the Charge d’Affaires asks leave to intervene and prays upon such intervention to have the order reversing the decree of the court below vacated and the appeal to this court dismissed.
On the suggestion dated April 21, 1939, filed in the above cause by the United States Attorney for the Eastern District of New York, and on the representation of the Attorney General and of the Secretary of State to the Circuit Court of Appeals for the Second Circuit, likewise filed therein, and on the diplomatic representation or request of Juan Francisco de Cardenas, Charge d’Affaires of Spain to the United States, dated April 20, 1939, and annexed as part of the representation of the Secretary of State, the Circuit Court of Appeals ordered that its decree filed on March 31, 1939, be vacated and that the appeal taken by Fernando de los Rios, former Ambassador of the Republic of Spain, from the District Court for the Eastern District of New York be dismissed and that the cause be remanded with instructions to direct the United States Marshal for the Eastern District of New York to deliver the Navemar to Messrs. Garcia & Diaz, agents for the libellant-appellee, as requested and represented in the above mentioned representations and suggestion of the Secretary of State, the Attorney General and the United States Attorney for the Eastern District of New York.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Victor SURPITSKI, Plaintiff, Appellant, v. HUGHES-KEENAN CORPORATION, etc., et al., Defendants, Appellees.
No. 6689.
United States Court of Appeals First Circuit.
Heard May 2, 1966.
Decided June 6, 1966.
Edward D. Tarlow, Boston, Mass., with whom John Lecomte, Princi & Lecomte, and Bradley, Barry & Tarlow, Boston, Mass., were on brief, for appellant.
Mark A. Michelson, Boston, Mass., with whom Will J. Bangs and Choate, Hall & Stewart, Boston, Mass., were on brief, for Hughes-Keenan Corp., etc., ap-pellees.
Paul Fulton, Boston, Mass., with whom John J. Tannian, Arlington, Mass., was on brief, for Aerial-Lift Repair, Inc., appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
OPINION OF THE COURT.
PER CURIAM.
The sole question to which we will address ourselves in this case is one of practice — how quickly may the whistle be sounded on a plaintiff who is seeking to show that a foreign defendant is subject to service within the jurisdiction. Plaintiff’s complaint was filed on August 31, 1965 and served the same day on the Massachusetts Secretary of State as alleged agent for defendant United States Air Conditioning Corp., hereafter Air, and Aerial-Lift Repair, Inc., hereafter Aerial. Air is a Delaware corporation, with its principal place of business in Ohio. Aerial is of Connecticut. A further named defendant, who was not served and did not appear, is one Gould, alleged to be a citizen of Connecticut. Plaintiff is a citizen of Massachusetts. The complaint alleges that the plaintiff sustained personal injuries while working in a “Sky-worker,” a sort of derrick-operated crow’s-nest, because of negligent manufacture by Air and maintenance by Aerial.
On September 17 plaintiff granted Air an extension of time to plead. On October 1 Air moved to quash service and dismiss for lack of jurisdiction. Plaintiff filed interrogatories to Air on October 14, addressed to jurisdictional issues, and filed a request for admission of facts on October 26. Instead of answering the interrogatories Air filed extensive affidavits and a memorandum in support of its motion to dismiss.
On November 1, on whose instigation does not appear, a hearing was called on Air’s motion to dismiss. Plaintiff reported to the court the state of the record. The court’s response was that plaintiff must file affidavits in one week. On November 4 Air filed answers and objections to plaintiff’s demand for admission of facts. On November 8 plaintiff filed affidavits. On November 12 Air finally answered the interrogatories, accompanied by a supplementary memorandum in support of its motion to dismiss.
Meanwhile, on November 3, defendant Aerial had filed a similar motion to dismiss. Both of these motions came on for hearing on November 15. Plaintiff apparently expected that this was to be an evidentiary hearing, and had a number of witnesses present under subpoena. The court stated that it would not take testimony, that plaintiff would have “48 hours to file some sort of a motion,” and that the court would “take the matter under advisement.”
On November 17, plaintiff moved to be allowed to file further interrogatories to Air, to be allowed to examine witnesses, and for a continuance to prepare further his case on jurisdiction. On the same date, he filed more affidavits, and on December 8, he filed interrogatories to both Air and Aerial. On December 20, without further hearing, the court granted defendants’ motions to dismiss. In an accompanying opinion it stated that, insofar as there was conflict in the affidavits, it had resolved differences in defendants’ favor. In its ruling, the court denied all plaintiff’s pending motions, and stated that “further interrogatories, or another hearing, would merely entail a fishing expedition * *
Without our deciding on the question whether, on the present record, Air should have been found subject to process in Massachusetts, plaintiff had at least made good headway, and shown his position not to be frivolous. A plaintiff who is a total stranger to a corporation should not be required, unless he has been undiligent, to try such an issue on affidavits without the benefit of full discovery. If the court did not choose to hear witnesses, this may well have been within its province, but in such event plaintiff was certainly entitled to file such further interrogatories as were reasonably necessary and, if he wished, to take depositions. The condemnation of plaintiff’s proposed further activities as a “fishing expedition” was unwarranted. When the fish is identified, and the question is whether it is in the pond, we know no reason to deny a plaintiff the customary license.
This error was magnified as to the defendant Aerial. This defendant first contested jurisdiction on November 3. Yet on November 15 plaintiff was, in essence, faced with a demand to show jurisdiction within 48 hours “or else.” No possible reason for such precipitateness was shown in the court below, or suggested here.
Judgment will be entered vacating the judgment of the District Court ánd remanding the action for further proceedings not inconsistent herewith.
. A third named defendant, Hughes-Keenan Corporation, subsequently represented itself to be but a “division” of Air, and on that representation plaintiff dismissed against it. We assume that Air joined in that representation.
. We will observe that the district court appears to have over-emphasized the eir-cumstance that title to the machines passed through Gould, and the significance of Aro Manufacturing Co. v. Automobile Body Research Corp., 1 Cir., 1965, 352 F.2d 400, cert. den. 383 U.S. 947, 86 S. Ct. 1199.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_diverse
|
B
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the parties were truly diverse? 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".
Kenneth G. LLOYD, Plaintiff-Appellee, v. Irma LOEFFLER and Alvin F. Loeffler, Defendants-Appellants.
No. 82-1824.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 5, 1982.
Decided Nov. 30, 1982.
Mark J. Rogers, Milwaukee, Wis., for defendants-appellants.
Carole S. Gailor, Raleigh, N.C., for plaintiff-appellee.
Before PELL, ESCHBACH and POSNER, Circuit Judges.
POSNER, Circuit Judge.
This is an appeal from a judgment in favor of the plaintiff in a diversity suit for tortious interference with the custody of a child. The child, Carol Lloyd, was born in 1978, in Washington, D.C., to Kenneth Lloyd, the plaintiff below and the appellee in this court, and Bonnie Loeffler, now Bonnie McMahan, who was named as a defendant but, for reasons that will appear, is not an appellant. Kenneth and Bonnie have never been married. In 1979 a Maryland state court awarded Kenneth custody of Carol in a contested proceeding but gave visitation rights to Bonnie who by then was married to Earl McMahan, also a defendant below but not an appellant in this court.
On July 20, 1979, the McMahans, ostensibly in the exercise of Bonnie’s summer visitation rights, picked up Carol from Kenneth Lloyd’s babysitter in Virginia (where Lloyd lived) to take her to Wisconsin to visit Bonnie’s parents, the Loefflers, who were defendants below and are the appellants here. The McMahans were to return Carol to her father in Virginia on August 5, but when they arrived at the Loefflers’ house they told the Loefflers they would never return the child to her father — and they never have. Apart from brief clandestine visits by the McMahans and Carol to the Loefflers’ house in November 1979 and April 1980, the whereabouts of the three of them have been and are unknown. Kenneth Lloyd got a contempt judgment against Bonnie, and arrest warrants, from the Maryland state court that had issued the custody decree, and he has spent thousands of dollars on private detectives to locate the McMahans and Carol, but all to no avail.
In June 1980 Kenneth Lloyd brought this suit in a Wisconsin federal district court against the McMahans and the Loefflers. Lloyd is a citizen of Virginia and the Loefflers citizens of Wisconsin, but the domicile of the McMahans is uncertain; if it is Virginia, the “complete” diversity of citizenship required for jurisdiction under 28 U.S.C. § 1332, see Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), would be lacking. Until their abduction of Carol the McMahans were citizens of Maryland. Lloyd believes they are now living in Wisconsin because the Loefflers have received some correspondence from the McMahans postmarked Milwaukee.
We have found no case involving the question of the domicile for diversity purposes of a fugitive from justice. It seems absurd to hold that since a fugitive might be domiciled anywhere or maybe even nowhere (cf. Pannill v. Roanoke Times Co., 252 Fed. 910, 913-15 (W.D.Va.1918)), the act of becoming a fugitive puts a person beyond the jurisdiction of the federal courts. Probably the last domicile of the fugitive before he fled should be his domicile for diversity purposes. Cf. Gregg v. Louisiana Power & Light Co., 626 F.2d 1315 (5th Cir.1980). That would be Maryland in this case, and would not destroy diversity. This is a simple rule, and avoids rewarding the fugitive for his elusiveness. But in any event the probability that the McMahans were citizens of Virginia when this suit was filed is too slight to make us worry that there may not in fact be complete diversity.
After a bench trial, the district court, 539 F.Supp. 998, found that the McMahans and the Loefflers had committed a tort under the common law of Wisconsin by interfering with Kenneth Lloyd’s custody of Carol. The Loefflers’ liability was based on conspiracy. Aware at all times of the custody decree and of the fact that the McMahans were in contempt of it, the Loefflers helped the McMahans conceal the child’s whereabouts from Kenneth. Among other things they let the McMahans give the Loefflers’ address to the federal government, which owed the McMahans (former federal employees) refunds of their retirement contributions; and when the money arrived the Loefflers forwarded it to the McMahans without revealing the McMahans’ whereabouts to Kenneth. The Loefflers testified that they tried to persuade the McMahans to return the child to Kenneth, but the district court found their testimony unconvincing and instead credited testimony that Mrs. Loeffler had told a detective: “just tell that son-of-a-bitch that he will never see that child again.” Mrs. Loeffler admitted that she thought Kenneth “physically incapable of taking care of this child.”
The district court awarded Kenneth $70,-000 in compensatory damages for which all the defendants were to be jointly and severally liable and $25,000 in punitive damages for which the McMahans alone were to be liable because of their greater culpability. The judgment provides that the award of punitive damages is to grow by $2,000 every month until Carol is returned to her father’s lawful custody. The McMahans entered no appearance in the district court or this court.
Before reaching the merits we must decide whether this suit is within the exception to the diversity jurisdiction for domestic relations matters, including disputes over who should have custody of a child. Recently two circuits have held that tort suits for interference with custody are not within the exception. See Wasserman v. Wasserman, 671 F.2d 832 (4th Cir.1982); Bennett v. Bennett, 682 F.2d 1039 (D.C.Cir.1982). A third has upheld a damage award in such a case without discussing jurisdiction. See Fenslage v. Daukins, 629 F.2d 1107 (5th Cir.1980). But it is a question of first impression in this circuit, though Daily v. Parker, 152 F.2d 174 (7th Cir.1945), could be likened to Fenslage. The short but perhaps incomplete answer to the question is that such cases do not involve an actual dispute over custody. The McMahans have not challenged the decree of the Maryland court awarding custody of Carol to Kenneth Lloyd; they have defied it. This answer would be conclusive if the McMahans and the Loefflers were strangers who had kidnapped Carol. But because Bonnie McMahan is Carol’s mother and the Loefflers her maternal grandparents the abduction is in a sense a continuation of the custody fight that the Maryland court thought it had resolved when it awarded custody to Kenneth and visitation rights to Bonnie. Cf. 18 U.S.C. § 1201(a) (the exception in the federal kidnapping statute for the kidnapping of a minor by a parent).
The usual account of the domestic relations exception, as of the probate exception discussed recently in Dragan v. Miller, 679 F.2d 712 (7th Cir.1982), is a historical one. The first judiciary act gave the federal courts diversity jurisdiction of “all suits of a civil nature at common law or in equity,” Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 78 (simplified in the present diversity statute, but without change of meaning, see Reviser’s Note to 28 U.S.C. § 1332 (1976), to “all civil actions,” 28 U.S.C. § 1332(a)); and divorce, custody, and related matters were in England the province of the ecclesiastical courts (on which see 3 Blackstone, Commentaries on the Laws of England 87-103 (1768)) rather than of the common law and equity courts. The historical account is unconvincing. See Spindel v. Spindel, 283 F.Supp. 797, 802-03, 806-09 (E.D.N.Y.1968). It exaggerates the nicety with which the jurisdictional distinctions among the English courts were observed. Applied to this case, it overlooks the extensive custody jurisdiction of the Court of Wards and Liveries, a royal court distinct from the ecclesiastical courts. See Bell, An Introduction to the History and Records of the Court of Wards & Liveries 112-32 (1953). And it assumes without discussion that the proper referent is English rather than American practice, though if only because there was no ecclesiastical court in America American law and equity courts had a broader jurisdiction in family-law matters than their English counterparts had. Probably the reference to law and equity in the first judiciary act is mainly to English practice rather than to the diverse judicial systems of the colonies and states; but it would be odd if the jurisdiction of England’s ecclesiastical courts, theocratic institutions unlikely to be well regarded in America, should have been thought to define the limits of the jurisdiction of the new federal courts.
The historical account would be of little assistance in this case even if it were sound. The tort of wrongful interference with a child’s custody did not exist at the time the first judiciary act was passed, and it would strain our historical imagination to the breaking point to try to determine whether, had there been such a tort then in England, it would have been within the exclusive jurisdiction of the ecclesiastical courts.
However dubious and unhelpful its historical pedigree, the domestic relations exception is too well established to be questioned any longer by a lower court. See e.g., Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 512-14 (2d Cir.1973); Solomon v. Solomon, 516 F.2d 1018, 1021-26 (3d Cir.1975). This is so even though one might question, see Dragan, supra, 679 F.2d at 713, the suggestion in Rosenstiel, supra, 490 F.2d at 514, that a century of congressional silence constitutes legislative adoption of what was originally, and maybe still is today, a purely judge-made exception to the diversity jurisdiction. The boundaries of the exception are uncertain, however; and to fix them we must consider what contemporary function the exception might be thought to serve.
At its core are certain types of cases, well illustrated by divorce, that the federal courts are not, as a matter of fact, competent tribunals to handle. The typical divorce decree provides for alimony payable in installments until the wife remarries, and if there are children it will provide for custody, visitation rights, and child support payments as well. These remedies — alimony, custody, visitation, and child support— often entail continuing judicial supervision of a volatile family situation. The federal courts are not well suited to this task. They are not local institutions, they do not have staffs of social workers, and there is too little commonality between family law adjudication and the normal responsibilities of federal judges to give them the experience they would need to be able to resolve domestic disputes with skill and sensitivity.
The present case, a tort suit that does not — not overtly anyway — seek one of the distinctive remedies provided by family courts, is not within the core of the domestic relations exception as we have described it. But there is also a periphery to be considered. When a case must begin in state court, as a divorce or custody case must, retention of any ancillary litigation in the same court is supported by considerations of judicial economy, and also by considerations of relative expertness since the issues in an ancillary proceeding may be the same as those in cases that are within the core of the domestic relations exception and hence within the exclusive jurisdiction of the state courts. Cf. Dragan, supra, 679 F.2d at 714-15. In this vein Judge Friendly suggested in Rosenstiel that if the plaintiff had been seeking attorney’s fees for work performed in connection with his client’s divorce action the federal court should have declined jurisdiction. See 490 F.2d at 515.
The concept of ancillarity may explain decisions which hold that actions to enforce an alimony or custody decree are outside the diversity jurisdiction if the decree remains subject to modification by the court that entered it, see Morris v. Morris, 273 F.2d 678, 681-82 (7th Cir.1960); Hernstadt v. Hernstadt, 373 F.2d 316 (2d Cir.1967); Sutter v. Pitts, 639 F.2d 842 (1st Cir.1981), though it is true that in such cases the risk of inconsistent state and federal decrees is substantial and presents an even stronger reason than judicial economy for federal abstention. At the other extreme is Crouch v. Crouch, 566 F.2d 486 (5th Cir.1978), where the federal court was asked simply to enforce the monetary provisions of a separation agreement between persons long divorced. There the connection with the original matrimonial action was tenuous, the danger of inconsistent decrees trivial. Alimony decrees that have become final are sometimes enforced in diversity cases on similar grounds. See 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3609 at pp. 673-74 (1975). But Rosenstiel suggests, sensibly in our view, that the question is not only whether the exercise of federal jurisdiction will create a potential for inconsistent decrees but also whether it will result in piecemeal, duplicative, or inexpert handling of what is substantially a single controversy.
On this analysis, if under Maryland law a tort action arising out of a custody decree had to be tried in a proceeding ancillary to the custody proceeding, this would be a strong'argument against federal jurisdiction. Cf. Dragan, supra, 679 F.2d at 716. But though we have found no Maryland case dealing with the tort of wrongful interference with custody, it is clear that such a case if it arose would be litigated as an independent civil action and not as an appendix to the custody proceeding, which is strictly equitable. See Md.Code § 3-602(a), as interpreted in Kapneck v. Kapneck, 31 Md.App. 410, 356 A.2d 572 (1976). In addition, of course, a Maryland court might not be able to obtain personal jurisdiction over the Loefflers, even though the new federal Parental Kidnapping Prevention Act of 1980, codified in 18 U.S.C. § 1073, 28 U.S.C. § 1738A, and 42 U.S.C. § 663, makes it easier for states to enforce their state custody decrees against parental abductors who cross state lines. Incidentally, by declining to create federal judicial remedies for parental abductions, the Act confirms the primacy of the states in custody matters. But it cannot we think be read to express a federal policy against the exercise of federal jurisdiction in a case such as this if the ordinary requirements of diversity jurisdiction are satisfied.
There is thus no issue of judicial economy here. The choice is not between one Maryland action and two actions — the custody action in Maryland and a tort action in a state or federal court in Wisconsin — but between a tort action in a Wisconsin state court and this suit in a federal district court in Wisconsin. And since the Loefflers do not contest the validity of the Maryland custody decree, the tort issues in this case are not entangled with issues that only state courts are competent to resolve. The federal court is being asked to decide not who should have custody over Carol but only whether the McMahans and the Loefflers have violated or (in the case of the Loefflers) conspired to violate the custody decree by taking Carol away from her father, and if so what damages he has suffered. The resolution of these issues requires no special experience with the business of domestic relations courts; the requisite empathy, if any is required, is possessed by any parent. Finally, this is not a case like Rosenstiel where the plaintiff’s invocation of the diversity jurisdiction has no basis in the concern with prejudice to out-of-state litigants that underlies that jurisdiction. The plaintiff is not a resident of Wisconsin, where the case was tried; the Loefflers, the only appearing defendants, are Wisconsin residents.
One feature of the decree, though, raises a serious question under the domestic relations exception: the provision that makes the award of punitive damages against the McMahans grow by $2,000 a month until they restore Carol to Kenneth Lloyd’s lawful custody. That provision may not, strictly speaking, be before us since the only people who could complain about it, the McMahans, are not before us. But to pass over it in silence might leave the impression that there are no problems with the district court’s jurisdiction to issue such a decree, and there are; and as they may affect a child’s welfare we shall discuss them.
In a case of, a continuing tort a variable award of punitive damages, though unprecedented so far as we are able to determine and seemingly not contemplated by the Federal Rules of Civil Procedure, see Rule 58, is perfectly logical; the enormity of the wrong that the McMahans have committed against Kenneth Lloyd grows with every day that they fail to return Carol to his custody. But the variable award is also the practical equivalent of an injunction ordering the McMahans to return Carol. It is as if the district court had issued an injunction, the McMahans had disobeyed it, and the court had then found them in civil contempt of its decree and ordered them to pay the plaintiff $2,000 a month until they complied. Of course there was no injunction and no finding of contempt and perhaps that is reason enough to doubt the propriety of the relief. But in any event it would seem that, before entering the kind of judgment it did, the district court should have considered whether it had the power to enjoin the McMahans directly.
An affirmative answer would produce a collision with the recent decision of the District of Columbia Circuit in Bennett v. Bennett, supra. The court allowed the plaintiff in a tortious interference with custody suit to obtain damages but held that the grant of an injunction directing that the child be returned to the plaintiff was barred by the domestic relations exception to the diversity jurisdiction. The court was concerned that enforcing such an injunction would be the equivalent of issuing a custody decree. The basis of its concern is illustrated by the facts of the present case. It is three years since Carol was abducted. She is now four and a half years old. She probably does not remember her father. No matter how egregiously the McMahans have behaved, it might be a terrible thing today to wrench Carol from their custody and return her to her father — and all the more terrible at some hypothetical future date when the McMahans, finally intimidated by the mounting costs of their contumacy, as the district court intended they be intimidated, surrender Carol. The district court can try to compensate Kenneth Lloyd for his loss. But to put pressure on the McMahans to return the child, by means of an escalating damage award bearing no necessary relationship to Kenneth’s loss, is implicitly to answer the question who should have custody of Carol today. True, the escalating damage award is contingent on Kenneth’s retaining lawful custody of Carol, so it is open to the McMahans to go back to the Maryland court and ask for a modification of the decree in light of changed circumstances — the growing attachment, as we may assume, of Carol to her mother and her mother’s husband. But this would be a costly option for the McMahans to pursue; every month that passed while the Maryland court was deciding whether to modify the decree would cost them another $2,000.
Against all this it may be said that so long as Kenneth is free to bring fresh suits against the Loefflers and the McMahans for damages incurred by him after the date of the judgment below, the same financial pressure will be brought to bear on the McMahans to return the child regardless of what is best for her. But it will not be quite the same. We do not know whether Kenneth will bring another suit, or if he does whether he will be able to prove substantial damages beyond what he has already incurred. If there is another suit, we do not know whether the McMahans will again be joined as defendants along with the Loefflers, and if they are whether Kenneth will try to collect any part of the judgment from the McMahans, assuming that they and the Loefflers are held to be jointly and severally liable for that judgment as they were for the compensatory damages awarded in this case. So there is a difference, and though it is one of degree rather than of kind it is sufficient in our judgment to raise a substantial question whether the escalating punitive damage award in the district court’s decree was within the court’s subject-matter jurisdiction. As no party to this appeal is challenging this portion of the decree we doubt that we have the power to vacate it, but we should not like our affirmance of the judgment to be interpreted as approval of the decree in its entirety.
Still another threshold issue in this case is choice of law. The court below held that the applicable substantive law was that of Wisconsin. The only basis it gave for this conclusion was a citation to Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). But Erie did not hold, as the district court’s citation may seem to imply, that in common law diversity cases the substantive law to be applied is that of the state in which the case is tried. On the contrary, Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941), deduced from Erie that the proper choice of law rule to apply in a diversity suit is the rule of the forum state. The district court should have determined whether under Wisconsin conflict of laws principles the substantive law applicable to this case is that of Wisconsin or that of some other state, such as Maryland where the custody decree was issued, or Virginia where Lloyd resides and where the tort might be said to have occurred if the McMahans formed the intent not to return Carol before they picked her up from the babysitter. There is no indication that the district court made such a determination.
In a supplementary brief the Loefflers argue that Maryland rather than Wisconsin substantive law should be applied under Wisconsin’s choice of law rules. But they did not raise this issue in their main brief or even, it appears, in the district court. At the oral argument of this appeal both counsel stated that the parties had stipulated in the district court that Wisconsin substantive law applied to the case, and though we do not find a written stipulation in the record we cannot see what difference it makes whether it is written or oral. So there is no conflict of laws issue before us unless the issue goes to our subject-matter jurisdiction.
We hesitate to say that a conflicts question never can affect jurisdiction. If the parties had stipulated that the substantive law to be applied was the Code of Hammurabi, we think the district court should have said that it did not have the power to render a decision on that basis. Such a decision could not have any value as precedent, and the production of precedents is a major function of judicial decision-making. Stipulations of law, as distinct from fact, thwart that function; maybe that is why they have no binding force. See, e.g., Sanford’s Estate v. Commissioner of Internal Revenue, 308 U.S. 39, 51, 60 S.Ct. 51, 59, 84 L.Ed. 20 (1939). But reasonable stipulations of choice of law are honored in contract cases, see Weintraub, Commentary on the Conflict of Laws 355-56 (2d ed. 1980), and we do not see why the same principle should not apply in tort cases, though the issue has not to our knowledge arisen in such a case. There is no necessary inconsistency between this principle and cases like Sanford’s Estate. A court has an interest as we have said in applying a body of law that is in force somewhere, but less interest in which such body of law to apply.
The stipulation of Wisconsin law was reasonable here — indeed, if the parties, rather than so stipulating, had not raised any choice of law issue, and had litigated the ease under Wisconsin law, that would have been proper. An implicit rule of Wisconsin conflicts law is that in the absence of objection the substantive law to be applied to a suit tried in a Wisconsin state court is that of Wisconsin. Central Soya Co. v. Epstein Fisheries, Inc., 676 F.2d 939, 941 (7th Cir.1982); cf. Electronic Associates, Inc. v. Automatic Equipment Development Corp., 440 A.2d 249, 251 n. 3 (Conn.1981). Klaxon makes this rule equally applicable to suits brought in federal court in Wisconsin under the diversity jurisdiction. Central Soya Co., supra, 676 F.2d at 941.
We arrive finally at the merits, where the principal issue is whether Wisconsin recognizes the tort of wrongful interference with a child’s custody — more precisely, whether it would recognize it if the question arose in a Wisconsin state court case, as it has not yet done. The appellants pitch their whole case that Wisconsin would not recognize such a tort on In re Pierce, 44 Wis. 411 (1878). Pierce had been divorced from her husband, and custody of their child had been awarded to him. She abducted the child, was imprisoned for contempt of the decree, and petitioned for habeas corpus. The court believed that she could not properly be adjudged in contempt unless her conduct had caused “a loss or injury which would entitle the injured party [her husband] to maintain an action against the offender to recover damages for his misconduct,” id. at 424, and the court thought her husband could not maintain such an action because a father’s status under a divorce and custody decree “is not that of father and child, nor yet that of master and servant. It is more nearly like that of guardian of the person and ward. In that relation the guardian is not entitled to the services of the ward.” Id. at 425. Portions of In re Pierce have been overruled, see Emerson v. Huss, 127 Wis. 215, 226, 106 N.W. 518, 522 (1906); Larson v. State ex rel. Bennett, 221 Wis. 188, 194, 266 N.W. 170, 173 (1936), but not the analysis of the father’s right to maintain a damage action for the abduction of a child.
Nevertheless, we are pretty confident it would not be followed today. The analysis assumes that a parent can complain about a child’s being disabled (or what amounts to the same thing, abducted) only if the parent has lost money in the quite literal sense that the child’s earnings, which at common law belong to the parents during the child’s minority, are impaired. That was the common law rule when In re Pierce was decided. See, e.g., Callies v. Reliance Laundry Co., 188 Wis. 376, 380, 206 N.W. 198, 200 (1925). Since a father who had custody under a divorce decree had no right to the child’s earnings — unlike a married parent but like a guardian — he had no basis for maintaining a damage action against the abductor. This is the entire premise of In re Pierce so far as is relevant to this case and it was destroyed in 1975 when the Supreme Court of Wisconsin, in Shockley v. Prier, 66 Wis.2d 394, 225 N.W.2d 495 (1975), overruled Callies and held that parents are entitled to recover damages for loss of the companionship of a minor child who has been injured by someone’s negligence. The fact that as in Pierce there is no pecuniary loss is now irrelevant under Wisconsin law.
Pierce is therefore no obstacle to Wisconsin’s recognizing a tort of wrongful interference with a child’s custody; and Shockley fairly requires such recognition, for it can make no logical or practical difference, so far as a parent’s action for loss of companionship is concerned, whether the child is physically injured by a third party’s negligence or abducted by the third party. At least this is clear where the abductor is a stranger rather than, as is more common, a relative. Although these two eases are not identical, those states that recognize a tort of wrongful interference with custody make no distinction based on the relationship between the abductor and the child, provided of course that the abductor does not have lawful custody of the child. See, e.g., McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978); Kipper v. Vokolek, 546 S.W.2d 521 (Mo.App.1977); Restatement of Torts (Second) § 700 (1981). As no other state has made such a distinction we think it unlikely that Wisconsin would. The only question therefore is whether it would draw the line at physical injury and refuse to recognize any tort liability for abduction even though the effect on the parent’s interest in the companionship of the child is the same. This would be an arbitrary distinction, and we doubt very much that Wisconsin would make it. We know of no state that, having swallowed the camel of allowing parents to sue for intangible loss of companionship as well as pecuniary loss, has strained at the gnat of allowing that loss to be recovered when it is caused by abduction rather than by physical injury. Moreover, since abductions are always deliberate and physical injuries usually, as in Shockley, merely negligent, it would be anomalous to allow liability only in the latter case. Consistently with this distinction, California allows it only in the former. See Baxter v. Superior Ct. of Los Angeles Cty., 19 Cal.3d 461, 466 and n. 3, 138 Cal.Rptr. 315, 318 and n. 3, 563 P.2d 871, 874 and n. 3 (1977).
The Loefflers argue, finally, that even if Wisconsin would recognize a tort of wrongful interference with a child’s custody, their role in the abduction by the McMahans was too small to make them guilty of conspiracy. This argument raises only an evidentiary issue, which the district court resolved against them, and we cannot say that its finding was clearly erroneous. Without the active cooperation of the Loefflers the McMahans would have found it much more expensive to conceal Carol’s whereabouts, as the McMahans would have been afraid to give their address to any creditor lest Kenneth Lloyd’s detectives get hold of it and track them down. The Loefflers, fully aware of, and we may infer from the “son of a bitch” remark sharing, the McMahans’ purpose of concealing Carol, provided them with a discreet mail drop and other assistance.
It is true, as we observed in a recent case, that conspiracy has a somewhat anomalous status under tort law, since a tort, to be actionable, requires that an injury actually be suffered, while conspiracies are no less unlawful for being nipped in the bud. See Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.1982). But that observation has no relevance where the conspiracy achieves its object, as it did here. The purpose of the conspiracy concept in such a case is not to punish merely preparatory conduct — a more suitable function for criminal law than for tort law — but to identify the tortfeasors. By helping the McMahans conceal Carol the Loefflers became joint tortfeasors in the original sense of the term. See, e.g., Brown v. Brown, 338 Mich. 492, 503-04, 61 N.W.2d 656, 661-62 (1953); Prosser, Handbook of the Law of Torts 291 (4th ed. 1971).
Affirmed.
Question: Did the court conclude that the parties were truly diverse?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_casetyp1_7-3-3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
DIXIE TANK & BRIDGE CO., a corporation, Appellant, v. COUNTY OF ORANGE, a county of the State of CALIFORNIA, and Willis H. Warner, Appellees.
No. 15886.
United States Court of Appeals Ninth Circuit.
March 4, 1959.
Rehearing Denied April 8, 1959.
James C. R. McCall, Los Angeles, Cal., for appellant.
Joel E. Ogle, County Counsel, Stephen K. Tamura, Adrian Kuyper, Asst. County Counsel, County of Orange, Santa Ana, Cal., for appellee.
Before STEPHENS, CHAMBERS and BARNES, Circuit Judges.
CHAMBERS, Circuit Judge.
In late August, 1956, the 100,000 gallon water tank at the Orange County Hospital needed repairing in its rivets and its seams and needed repainting on its outside and relining with an asphalt preparation on the inside. Dixie Tank and Bridge Company specializes in doing just such work. It did the work. No contention is made that the work was not satisfactory, but the Board of Supervisors of Orange County now will not pay the sum of $7,511.60 (or any part of it) which Dixie claims is due it for the work which it completed November 21, 1956. The defense, on which the county has been sustained on a motion for judgment on the pleadings in this diversity case, is that the work was a single job in excess of $4,000 and that there were no real plans and specifications or advertising in newspapers for bids as required by the California statutes. Then a holding followed that the contract or contracts for the work were absolutely void and, further, that there is no recovery on quantum meruit. The decision was based on the district court’s view of pertinent California cases.
A listing of the “paper work” backing up this “job” is desirable. Officials of the hospital, a county agency, sent one requisition to the county board of supervisors’ purchasing agent. It is dated August 23, 1956, and lists the work to be done on the tank in eight items, estimates the price on the first item as $585 and the price for the other seven items in the one figure of $5,915, or a gross total of $6,500. Matching this requisition is a resolution on August 28, 1956, of the board of supervisors “authorizing the (county) purchasing agent to arrange for the repair of the high tank at the Orange County Hospital as requested by R. D. Powell, * * * Director. Estimated cost per requisition No. M2946A is $6,500.”
Following this resolution, the purchasing agent issued a written invitation calling for bids. This went to five concerns. Bidders were to separately bid on five items such as exterior painting, interior scaling and painting. Then they were asked to give unit prices for filling pits, replacing rusted rivets, and welding deteriorated seams. (Obviously the total amount of work on the last three items could not be known until the inside of the tank was scaled — at which time the county’s inspector would ascertain how many units of the work had to be done.)
Dixie responded with an itemized bid for each of the five items certain. Also, in the same bid it listed unit prices for the three items uncertain as to quantity. The five definite items totaled $2,850.00. When finally ascertained, the price for the three items bid upon as units totaled $4,661.60. (One other firm submitted a bid. It was much lower than Dixie’s and it was withdrawn.)
Following receipt of the bid from Dixie, the board of supervisors met on October 2, 1956, and unanimously authorized the chairman to enter into a contract (form submitted) “for the cleaning, scaling and repairing, etc., the 100,000 gallon water tank at the Orange County Hospital.” The chairman, Willis H. Warner, (named herein as a defendant in his individual capacity) signed the contract on that date, Dixie having previously signed it on September 21. This was the first of two contracts.
We note several features of the contract of October 2. First, it recites it was for emergency repairs. It actually only bound the contractor to do three things: 1. Scale the inside of the tank. 2. Apply asphalt to the inside. 3. Paint the outside. For this, a total price of $1,800 was required to be paid by the county. (The contract ignored the replacing of catwalks and tightening of loose sway rods upon which Dixie had made respective itemizations of $850.00 and $150.00 in its bid). As to the unit items, the contract said:
“After tank has been [cleaned and] inspected, company will submit a flat sum bid for all such repairs as may be necessary. This bid will be submitted to first party and a written repair contract embodying the specific work to be done, and the entire price to be paid shall be entered into before any repair work is done.”
The penultimate paragraph of the contract read:
“Parties signing this contract in behalf of First Party Covenant and agree that they are fully authorized and empowered to sign, seal, deliver and execute the same and that all legal requirements have been fully complied with.”
It would seem that this paragraph referred to Chairman Warner personally when he signed the contract for the board (and the hospital) as chairman of the board of supervisors.
Three days later, October 5, the county’s purchasing agent dispatched a purchase order to Dixie separately listing and ordering the five items for which Dixie had given fixed and definite prices and the three items for which unit prices had been submitted. This order recited, “as per agreement on file in county clerk’s office.” If the foregoing words referred to the "emergency contract” signed by Chairman Warner, then the order went beyond the contract.
Next in the chronology of papers is a “Standard Form of Contract for Emergency Repairs” dated November 7, 1956. On the same day, the board had authorized the expenditure of an “additional amount of $1,011.60 covering labor and material necessary to repair high water tank, 100,000 gallons, at the County Hospital.” Also, the signing of this particular contract had been authorized by another motion of the same date. This contract of November 7 covered all of the items of refurbishing and repair on the tank, the amount of welding and riveting necessary having been ascertained after the scaling of the inside of the tank. Again, this agreement recited in the text that it was for “emergency repairs.” Further, it provided that all previous contracts were merged into it. All work, that to be done and that already done, was listed. No separate prices for items appear, but the single price of $7,511.60 was fixed. This figure would conform in total to Dixie’s original bid, using its unit bid prices for welding and riveting, multiplying them by the now ascertained number of units required, and adding the result of such multiplication to the five items on which fixed prices had been offered in the bids.
Six days later, on November 13, the purchasing agent, followed through with a second purchase order to Dixie for “additional labor and material necessary to repair 300,000 gallon high tank, $1,011.-60.” Thus, in all, we had a requisition from the hospital for $6,500 and a purchase order for $1,011.60, for a total of $7,511.50, resolutions of the board for the same total and a final contract for the same total.
It would appear that as soon as the work was done an issue arose as to whether the contract was void under California statutes because of failure to have adequate plans and specifications and failure to advertise in a newspaper for bids. In counties of population under 500,000, contracts involving over $4,000 require advertising for bids in a newspaper as a condition precedent to the signing. Failure to comply makes the contract void. And the Supreme Court of California has been strict in holding void means void and has been unfriendly to quantum meruit.
Dixie, seeking a way out of its legal box, sought refuge in fractions. It filed four claims with the board as follows;
1. A claim for $1,850.00 for three items covered by its first contract of October 2. There these items had the definite total price tag of $1,850.00.
2. A claim for $1,000.00 for the two items with definite priees bid (the replacement of catwalk plates and tightening of rods) which were not in the contract of October 2, but were in the purchase order of October 5.
3. A claim for $4,661.60 for the welding and riveting, the final price which had not been fixed until after the cleaning and inspection, and which sum by calculation only turns up as a fixed amount in the contract of November 7, the all inclusive contract.
4. An all inclusive claim for $7,511.60, the total amount of the contract of November 7 or the total amount of claims (1), (2) and (3) above.
All of the claims were rejected by the board on May 28, 1957, and this action was filed on July 22, 1957.
On a second amended complaint which set forth in great detail the facts hereinabove detailed (which had been required by the district judge when he ruled on the sufficiency of the first amended complaint) judgment was entered in favor of the defendants on a motion for judgment on the pleadings. As to Orange County, the trial court relied on Miller v. McKinnon, 20 Cal.2d 83, 124 P.2d 34, 140 A.L.R. 570, and County of San Diego v. California Water & Telephone Company, 30 Cal.2d 817, 186 P.2d 124, 175 A.L.R. 747. As to the separately stated claim, against Chairman Warner individually, the district court gives no reason for its decision and cites no applicable authority. However, the defense counsel had cited 4 McQuillin on Municipal Corporations 163, Section 12.214.
We take a somewhat different view of the situation. This requires a reversal.
First, while no really applicable California law has been cited or found, it is difficult to see just why Chairman Warner, who twice “covenant [ed] and agree [d]” that he “was fully authorized to sign, execute and deliver the same, and that all legal requirements have been fully complied with” should escape, if the county's contentions as to it are good and no recovery can be had against it. Dixie is a tank company. It repairs tanks. The board of supervisors is charged with running the county according “to the book.” No doubt Dixie has had trouble elsewhere when pay day came about local legal requirements. So it has chosen to throw this responsibility on the local authority in an individual capacity when it can get a local citizen willing to take it. Chairman Warner didn’t have to sign any contract with the “warranty” he gave. So we think that there was at the very least a genuine issue of fact as to whether he was liable. Perhaps, as a matter of law, he was liable if his “warranty” was incorrect in its assumptions as to legality.
And, we are not in agreement as to the disposition made otherwise by the district court. The contracts recite that the repair was an emergency. The resolution of November 7 recites there was an emergency. It would appear to us that there was a question of fact as to whether a great emergency existed on October 2, the date of the first contract, or on November 7, the date of the second contract. Maybe the facts would establish this or maybe the facts would make this point evaporate. See Government § 25458, West’s Ann. California Code.
Also, if one should conclude that the contract of November 7 was void as to the county, where does that leave the contract of October 2 ? That was a definite self-sufficient contract for $1,850. It contemplated the submission of an additional bid for the rivets and welding, and a new contract being let therefor. It prohibited welding and riveting without a further contract therefor. This would seem to vitiate that part of the purchasing agent’s order on October 5 for welding and rivets. But did it vitiate that part of the purchasing agent’s order which covered the replacing of the catwalk plates and the tightening of the rods for a total price of $1,000.00, and which was not included in the contract of October 2?
Also, Section 25450.5 of the West’s Ann. California Government Code must be taken into account. It prohibits splitting of contracts in counties with more than (larger than Orange County in 1956 ) a specified population, if the purpose is to avoid the limitation as to advertising for bids. It must be a corollary that such splitting is not legally so bad in counties the size of Orange. It is difficult to see how the county could be held on the two items of $2,492.00 for welding and $2,169.60 for rivets for a total of $4,661.60 unless an emergency can be sustained. However, emergency or not, the issue would seem to be one of fact.
The judgment is reversed for further proceedings consistent with this opinion.
. Dixie bid 60 cents per unit to weld rusted out rivets, $3.50 per lineal foot to weld deteriorated seams, and 60 cents per unit to weld all pits in tank. The inspection after scaling revealed no pits. However, 712 feet of welded seams at the bid price of $3.50 per foot at a total price of $2,492.00 and 3,616 new rivets at 60 cents each at a total price of $2,169.60 were required.
. Sections 25450 and 25451 and 25452 of the West's Ann.Oalifornia Government Code provide:
Ҥ 25450. Contract for construction or repairs exceeding $4,000
“Whenever the estimated cost of construction of any wharf, chute, or other shipping facility, or of any hospital, almshouse, courthouse, jail, historical museum, aquarium, county free library building, branch library building, art gallery, art institute, exposition building, stadium, coliseum, sports arena or sports pavilion or other building for holding sports events, athletic contests, contests of skill, exhibitions, spectacles and other public meetings, or other public buildings or the cost of any repairs thereto exceeds the sum of four thousand dollars ($4,000), inclusive of the estimated cost of materials or supplies to be furnished pursuant to Section 25457, the work shall be done by contract. Any such contract not let pursuant to this article is void.”
Ҥ 25451. Plans and specifications
“The board of supervisors shall adopt plans, specifications, strain sheets, and working details for the work.”
Ҥ 25452. Advertisement for bids; requisite of publication
“The board shall cause an advertisement for bids for the performance of the work to be published for at least 10 consecutive times in a daily newspaper, or for at least two consecutive times in a weekly newspaper, of general circulation published in the county. If there is no such newspaper published in the county, the notice shall be given by posting in three public places for at least two weeks.”
Comment: Any doubt that a tank is a building is removed by the California case of Miller v. McKinnon cited infra.
. For a more charitable state view toward failure to comply with bidding statutes see Gamewell v. City of Phoenix, 9 Cir., 216 F.2d 928; Id., 9 Cir., 219 F.2d 180, and Greenlee County v. Webster, 30 Ariz. 245, 246 P. 543.
. The contract of November 7 recited that it was made “by and between authorized agent County of Orange Hospital Purchasing Department * * * ” Warner signed: “Willis H. Warner, Chairman, Orange County Board of Supervisors.” It is clear that except as to his warranty he was signing for Orange County.
. All through the cases runs the statement: “Officers are not personally liable on contracts entered into by them acting in their official capacity unless the contract shows that the officer clearly intended to assume personal liability.” See Bowden v. Eubanks, 57 Ga.App. 414, 195 S.E. 582, 584; Lawrence v. Toothaker, 75 N.H. 148, 71 A. 534, 23 L.R.A.,N.S., 428; Murphy v. Panther Oil & Grease Mfg. Co., 181 Miss. 882, 883, 179 So. 879; Sims Printing Co. v. Kerby, 56 Ariz. 130, 106 P.2d 197; Hupe v. Sommer, 88 Kan. 561, 129 P. 136, 43 L.R.A.,N.S„ 565; New York & Charleston Steamship Co. v. Harbison, C.C., 16 F. 688; Rogers v. French, 214 Mass. 337, 101 N.E. 988; Coberly v. Gainer, 69 W.Va. 699, 72 S.E. 790.
Practically none of the cases end up with liability on the part of the public official, but there seems to be no reported case where the text of the obligation points so strongly to an undertaking to be liable as the words in these contracts above Mr. Warner’s signature.
One may wonder if Warner’s undertaking could be held to be against public policy. The only case considering this particular point seems to be Lapsley v. McKinstry, 1866, 38 Mo. 245, 246. Therein it is said:
“In cases of officers acting for and on behalf of the government, the general rule is, that they are not bound personally by contracts made in an official capacity even though they would be by the terms of the contract, if it were an agency of a private nature — Sto. Agency § 302. This rule is established from motives of public policy. But although this is the general rule in relation to public agents, yet it is founded upon a mere presumption, and is liable to be rebutted by circumstances which clearly establish an intention between the parties to the contract to create and rely upon a personal responsibility on the part of a public agent; for there is nothing in the general principles or policy of the law which forbids an agent from waiving his official immunity, and making himself personally responsible. Id. § 308 ”
While the foregoing case is old and may have been written with a quill or an early metal pen, still its logic is compelling. It appeals to us and we believe it would appeal to the California courts.
. The record does not indicate whether the water system was a self contained unit with its own well or whether the system was connected to an outside source. We cannot say on the record that an emergency existed, but we presume that any urgency would be mainly related to fire hazard at the hospital or the necessity of a reserve supply if the source were temporarily lost.
It is quite conceivable that no emergency existed until Dixie finished scaling the inside of the tank under the first contract. However, whether the welding and riveting work could be treated as a great emergency would be a question of fact.
It does appear that at one time after the work was done, the board itself suggested that Dixie could be paid according to the emergency formula which is a cost plus basis.
. West’s Ann.Cal.Government Code § 25458, in 1956, read as follows:
“Repair or replacement of structures in emergency; cost-plus contract
“By the unanimous consent of the whole board in cases of great emergency, it may proceed at once to replace or ropair any and all structures without adopting the plans, specifications, strain sheets, or working details or giving notice for bids to let contract. The work may be done by day labor under the direction of the board, by contract, or by a combination of the two. If the work is done wholly or in part by contract, the contractor shall be paid the actual cost of material and labor expended by him in doing the work, plus not more than 15 per cent to cover all profits, supervision, use of machinery and tools, and other expenses. No more than the lowest current market prices shall be paid for materials.”
. The West’s Ann.Cal.Government Code, No. 25450.5 provides as follows:
“Splitting work under contracts to avoid statute prohibited
“In any county containing a population of 500,000 or over, it is unlawful to split or separate into smaller work orders or projects any public work project for the purpose of evading the provisions of this article requiring public work to be done by contract after competitive bidding. Every person who wilfully violates the provisions of this section is guilty of a misdemeanor.”
Apparently this section first appeared in California in 1947. See Cal.Stats. 1947, c. 857, § 2. Most of the California cases on advertising for bids antedate 1947.
. The official population of Orange County in 1956 was 216,224. West’s Ann.CaL Government Code, § 28020.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
sc_lcdisagreement
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
PURKETT, SUPERINTENDENT, FARMINGTON CORRECTIONAL CENTER v. ELEM
No. 94-802.
Decided May 15, 1995
Per Curiam.
Respondent was convicted of second-degree robbery in a Missouri court. During jury selection, he objected to the prosecutor’s use of peremptory challenges to strike two black men from the jury panel, an objection arguably based on Batson v. Kentucky, 476 U. S. 79 (1986). The prosecutor explained his strikes:
“I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury . . . with the facial hair .... And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.” App. to Pet. for Cert. A-41.
The prosecutor further explained that he feared that juror number 24, who had had a sawed-off shotgun pointed at him during a supermarket robbery, would believe that “to have a robbery you have to have a gun, and there is no gun in this case.” Ibid.
The state trial court, without explanation, overruled respondent’s objection and empaneled the jury. On direct appeal, respondent renewed his Batson claim. The Missouri Court of Appeals affirmed, finding that the “state’s explanation constituted a legitimate ‘hunch’” and that “[t]he circumstances fail[ed] to raise the necessary inference of racial discrimination.” State v. Elem, 747 S. W. 2d 772, 775 (Mo. App. 1988).
Respondent then filed a petition for habeas corpus under 28 U. S. C. § 2254, asserting this and other claims. Adopting the Magistrate Judge’s report and recommendation, the District Court concluded that the Missouri courts’ determination that there had been no purposeful discrimination was a factual finding entitled to a presumption of correctness under § 2254(d). Since the finding had support in the record, the District Court denied respondent’s claim.
The Court of Appeals for the Eighth Circuit reversed and remanded with instructions to grant the writ of habeas corpus. It said:
“[Wjhere the prosecution strikes a prospective juror who is a member of the defendant’s racial group, solely on the basis of factors which are facially irrelevant to the question of whether that person is qualified to serve as a juror in the particular case, the prosecution must at least articulate some plausible race-neutral reason for believing those factors will somehow affect the person’s ability to perform his or her duties as a juror. In the present case, the prosecutor’s comments, T don’t like the way [he] look[s], with the way the hair is cut. . . . And the mustach[e] and the bear[d] look suspicious to me,’ do not constitute such legitimate race-neutral reasons for striking juror 22.” 25 F. 3d 679, 683 (1994).
It concluded that the “prosecution’s explanation for striking juror 22 . . . was pretextual,” and that the state trial court had “clearly erred” in finding that striking juror number 22 had not been intentional discrimination. Id., at 684.
Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. Hernandez v. New York, 500 U. S. 352, 358-359 (1991) (plurality opinion); id., at 375 (O’Connor, J., concurring in judgment); Batson, supra, at 96-98. The second step of this process does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez, 500 U. S., at 360 (plurality opinion); id., at 374 (O’Connor, J., concurring in judgment).
The Court of Appeals erred by combining Batson’s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i.e., a “plausible” basis for believing that “the person’s ability to perform his or her duties as a juror” will be affected. 25 F. 3d, at 683. It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. Batson, supra, at 98; Hernandez, supra, at 359 (plurality opinion). At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Cf. St. Mary’s Honor Center v. Hicks, 509 U. S. 502, 511 (1993).
The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike “must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges,” Batson, supra, at 98, n. 20 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 258 (1981)), and that the reason must be “related to the particular case to be tried,” 476 U. S., at 98. See 25 F. 3d, at 682, 683. This warning was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. See Hernandez, supra, at 359; cf. Burdine, supra, at 255 (“The explanation provided must be legally sufficient to justify a judgment for the defendant”).
The prosecutor’s proffered explanation in this case — that he struck juror number 22 because he had long, unkempt hair, a mustache, and a beard — is race neutral and satisfies the prosecution’s step two burden of articulating a nondiscriminatory reason for the strike. “The wearing of beards is not a characteristic that is peculiar to any race.” EEOC v. Greyhound Lines, Inc., 635 F. 2d 188, 190, n. 3 (CA3 1980). And neither is the growing of long, unkempt hair. Thus, the inquiry properly proceeded to step three, where the state court found that the prosecutor was not motivated by discriminatory intent.
In habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are “not fairly supported by the record.” 28 U. S. C. § 2254(d)(8). See Marshall v. Lonberger, 459 U. S. 422, 432 (1983). Here the Court of Appeals did not conclude or even attempt to conclude that the state court’s finding of no racial motive was not fairly supported by the record. For its whole focus was upon the reasonableness of the asserted nonracial motive (which it thought required by step two) rather than the genuineness of the motive. It gave no proper basis for overturning the state court’s finding of no racial motive, a finding which turned primarily on an assessment of credibility, see Batson, 476 U. S., at 98, n. 21. Cf. Marshall, supra, at 434.
Accordingly, respondent’s motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
songer_adminrev
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
SIMMONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 5950.
United States Court oí Appeals First Circuit.
Heard Feb. 2, 1965.
Decided Feb. 23, 1965.
Eduardo Negron Rodriguez, San Juan, P. R., with whom Fiddler, Gonzalez & Rodriguez, San Juan, P. R., was on brief, for petitioner.
Gary Green, Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel,
Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Washington, D. C., were on brief, for respondent.
Before ALDRICH, Chief Judge, MARIS, Circuit Judge, and FORD, District Judge.
Sitting by designation.
PER CURIAM.
In Simmons, Inc. v. NLRB, 1 Cir., 1963, 315 F.2d 143, we held, reversing the Board in part, that the discharge on March 24, 1959 of a group of employees, known as the Comite, for inducing a strike to obtain recognition of the Comite when the employees were already lawfully represented, was not an unfair labor practice as to the majority of the Comite, but was as to one Aviles Padilla who had not taken part. We further held that the continuation of the strike to protest, these discharges became unprotected after the lawful representative executed a no-strike agreement on April 10, and that strikers after that date were not entitled to reinstatement. We excepted, and left open, the rights of Aviles Padilla, and returned the case to the Board for consideration of whether he was entitled to special treatment.
Finding that Aviles Padilla’s participation in the strike after April 10 was minimal and peaceful, and carrying to the limit our suggestion that he was in a special category because his discharge had been a clear unfair labor practice, the Board concluded that, on balance, the policies of the Act would be best advanced by requiring his reinstatement with back pay in spite of his post-April 10 activities.
On the facts found it seems to us that this is a typical matter in which we should not interfere with the Board’s decision. The fact that an employee who was clearly unlawfully discharged made an appearance to witness and perhaps passively encourage a strike in part initiated by his discharge, (see Simmons, Inc. v. NLRB, supra) need not cut off the rights which accrued to him by his wrongful discharge even though the strike itself was unprotected.
A decree must be entered enforcing the order of the Board, if 2(a), as it pertains to Aviles Padilla. The scope of the actual relief, in terms both of back pay and reinstatement in the light of certain allegedly changed circumstances, will be for the Board to determine in subsequent proceedings in accordance with its usual practice. See National Labor Relations Board v. Deena Artware, Inc., 1960, 361 U.S. 398, 411, 80 S.Ct. 441, 4 L.Ed.2d 400 (concurring opinion); NLRB v. Trinity Valley Iron & Steel Co., 5 Cir., 1961, 290 F.2d 47.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
Zoilo LINARES and David Munoz, Petitioners-Appellants, v. Daniel SENKOWSKI, Superintendent of the Clinton Correctional Facility, and John P. Keane, Superintendent of the Sing Sing Correctional Facility, Respondents-Appellees.
Nos. 1320, 1321, Docket 91-2605, 92-2001.
United States Court of Appeals, Second Circuit.
Argued April 8, 1992.
Decided May 26, 1992.
John J. Kenney, New York City (Simpson Thacher & Bartlett, Andrew S. Amer, Steven R. Chabinsky, of counsel), for petitioners-appellants.
Paul Shechtman, New York City, Asst. Dist. Atty., (Robert M. Morgenthau, Dist. Atty., Mark Dwyer, Asst. Dist. Atty., of counsel), for respondents-appellees.
Before: FEINBERG, WINTER and ALTIMARI, Circuit Judges.
FEINBERG, Circuit Judge:
Appellants, two of six individuals charged in connection with the criminal sale and possession of a controlled substance, appeal from orders of the United States District Court for the Southern District of New York, Louis J. Freeh, J., dated November 4, 1991, denying their petitions for writs of habeas corpus. Appellants claim that their convictions violated the Due Process Clause of the Fourteenth Amendment because the prosecutor fraudulently represented himself as an admitted attorney when he was in fact never admitted to the bar. For the reasons given below, we affirm.
Background
This appeal arises from the November 1985 indictment of appellants Zoilo Linares and David Munoz and their co-defendants, Elmer Sanchez-Medina, Edimer Rosero, Livia Del-Rosario and Irma Posada, for the criminal sale and possession of cocaine. Munoz v. Keane, 777 F.Supp. 282, 283 (S.D.N.Y.1991). Two of the original defendants pled guilty, and the remaining four, including appellants, were tried in May 1986. Id. at 283. At trial, the evidence that Linares and Munoz sold and possessed 3.6 pounds of cocaine was overwhelming, and they were convicted in June 1986. Linares was sentenced to concurrent prison terms of 17 years to life, and Munoz was sentenced to concurrent prison terms of 20 years to life. Id.
Daniel J. Penofsky, a former assistant district attorney in the Special Narcotics Prosecutor’s Office, had presented the case against appellants to the grand jury, handled pre-trial discovery and tried the case. In March 1989, an investigation conducted by the District Attorney's office revealed that Penofsky was not admitted to practice law in New York, that he had either never sat for or never passed the New York State bar examination, and that he had never submitted documentation to the Character Committee of any New York Judicial Department in an effort to be admitted upon waiver of the bar examination due to reciprocity with another state. See People v. Munoz, 153 A.D.2d 281, 550 N.Y.S.2d 691, 692 (1st Dep’t 1990), appeal denied, 75 N.Y.2d 922, 555 N.Y.S.2d 41, 554 N.E.2d 78 (1990). After Penofsky’s fraud came to light, he was dismissed as an assistant district attorney, People v. Munoz, 550 N.Y.S.2d at 692, and in January 1991, following a plea of guilty, he was convicted of one count of defrauding the government and of one count of practicing law without a license.
Upon learning of Penofsky’s fraud, appellants sought to have their convictions reversed. While appellants’ case was pending in the state courts, the New York Court of Appeals had occasion to consider the same issue as that raised by appellants, see People v. Carter, 77 N.Y.2d 95, 564 N.Y.S.2d 992 (1990), cert. denied, — U.S. -, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991), and appellants were given the opportunity to renew their applications for leave to appeal their convictions pending the outcome of that case. Munoz v. Keane, 777 F.Supp. at 284 n. 5. The New York Court of Appeals rejected the defendants’ claim in Carter that their prosecution by an unlicensed attorney (also Penofsky) denied them Due Process under the Federal and State Constitutions.
After exhausting their state-court remedies, appellants petitioned the district court for writs of habeas corpus. Their petitions were denied on the merits, Munoz v. Keane, 777 F.Supp. at 289, and this appeal followed.
Discussion
Appellants argue that criminal defendants have a constitutional right to be prosecuted by attorneys who do not falsely hold themselves out to be admitted attorneys. Appellants contend that trials in which prosecutors pretend to be what they are not violate the Due Process Clause by denying defendants “[a] fair trial in a fair tribunal.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Although appellants cannot point to any particular act of the prosecutor during the proceedings that prejudiced them, they assert that where a prosecutor, a “quasi-judicial officer,” has falsely represented that he is an attorney, as Penofsky has, the defendants need not demonstrate prejudice to have their convictions vacated.
Because this case does not come to us on direct appeal from a federal conviction but on an appeal from the denial of habeas corpus to state prisoners, we are required to consider whether the argument pressed by appellants, if accepted, would establish a new constitutional rule of criminal procedure. Teague v. Lane, 489 U.S. 288, 299, 109 S.Ct. 1060, 1069, 103 L.Ed.2d 334 (1989). If such a holding would create a new rule, then we may not reach the merits of appellants’ argument because new rules may not be applied or announced in a habeas corpus proceeding. Id. at 310, 109 S.Ct. at 1075; Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193 (1990).
New Rules
The standard for determining whether the right asserted by appellants is a “new rule” under Teague involves an assessment of whether or not the rule is “dictated by precedent existing at the time the defendant’s conviction became final.” 489 U.S. at 301, 109 S.Ct. at 1070. In examining the precedents, we have reviewed a rule related to that proposed by appellants. The rule holds that a prosecutor who knowingly allows a government witness to commit perjury deprives the defendant of Due Process. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). We have concluded, however, that a reasonable interpretation of this rule might limit it to situations in which a prosecutor has allowed perjury to be presented to the trier of fact determining the guilt or innocence of the defendant. Where, as in our case, the only perjury committed was the prosecutor’s signing of documents as an admitted attorney, documents that the trier of fact—the jury—did not see, a state court could reasonably distinguish Giglio and Napue and find no rule requiring reversal of appellants’ convictions.
We simply cannot find that the federal constitutional right asserted is dictated by precedent. Indeed, appellants do not cite even one federal case that closely resembles ours. Of course, as appellants correctly point out, every defendant has the right to a fair trial. Obviously, this right does not constitute a new rule. But, if a habeas corpus petitioner can describe the right sought at so high a level of generality, it is difficult to see how anything could be termed a new rule. This result is clearly inconsistent with Teague and its progeny. If we instead, and more reasonably, describe what appellants seek as a rule holding unconstitutional those proceedings in which a prosecutor fraudulently represents that he or she is licensed to practice law, such a rule is not required by any prior decision. We conclude therefore that the rule appellants ask us to announce would constitute a “new rule” under Teague.
New Rules That Apply On Habeas Corpus
That appellants ask this court to announce a new rule in a habeas corpus proceeding does not itself resolve our inquiry. The Supreme Court has articulated two “narrow exceptions” to Teague, Saffle v. Parks, 494 U.S. 484, 486, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), describing circumstances under which a new rule may be applied on collateral review: “The first of these applies to new rules that place an entire category of primary conduct beyond the reach of the criminal law..., or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense ____ The second ... applies to new ‘watershed rules of criminal procedure’ that are necessary to the fundamental fairness of the criminal proceeding.” Sawyer v. Smith, 110 S.Ct. at 2831 (citations omitted). Because the first exception has no application here, we turn to appellants’ argument that the rule they advocate in this case is a “watershed” rule of criminal procedure.
In considering this issue, it should first be noted that there is a long-standing tradition of lay prosecutions for misdemeanor offenses in New York. See, e.g., People v. Van Sickle, 13 N.Y.2d 61, 63, 242 N.Y.S.2d 34, 192 N.E.2d 9 (1963) (Van Voorhis, J., concurring) (noting that “petty crimes or offenses of this nature may be prosecuted by administrative officers”); People v. Black, 156 Misc. 516, 519, 282 N.Y.S. 197 (Co.Ct. Oswego Co. 1935); cf. N.Y. Judiciary Law § 484(2) (McKinney Supp.1992).
Appellants claim that the entire criminal process was infected by the fact that Penofsky was engaged in a fraud. They argue that “a valid prosecution may not be based on a fraud perpetrated on the court and the People from its inception.” We must examine appellants’ claims in light of what the Supreme Court has stated regarding the second exception to the Teague doctrine: “Because we operate from the premise that such procedures [new rules not barred by Teague ] would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge.” Teague, 489 U.S. at 313, 109 S.Ct. at 1077. Further guidance with respect to determining which new rules apply in a habeas corpus proceeding emerges from a consideration of the new rules that the Supreme Court has itself refused to designate under this exception. In Teague, for example, the Supreme Court refused to apply Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in reviewing a petition for habeas corpus challenging convictions that became final prior to Batson. See Teague v. Lane, 489 U.S. at 315, 109 S.Ct. at 1077-78. The Court in Batson found a violation of Equal Protection where a prosecutor used peremptory challenges to exclude members of the defendant’s race from the petit jury, and the Court there articulated the standard for assessing such a violation. In Sawyer v. Smith, 110 S.Ct. at 2832-33, the Supreme Court held that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), could not be applied in a habeas corpus proceeding in which the underlying conviction became final before the Court decided Caldwell. The Court in Caldwell announced that it was constitutionally impermissible under the Eighth Amendment to rest a death sentence on a determination by a jury that had been led by the prosecutor to believe that it did not bear ultimate responsibility for determining the propriety of the defendant’s death sentence. 472 U.S. at 328-29, 105 S.Ct. at 2639.
Both the Batson and Caldwell rules implicate the accuracy of a jury’s determinations at least to the same extent as does the honesty of a prosecutor: Both the exclusion of members of a defendant’s race from a petit jury and the diminishing of a jury’s sense of responsibility for imposing the death sentence raise the possibility that the outcome of a case reflects something other than a thorough and proper assessment of the evidence. The Supreme Court, however, did not see fit to consider either new rule a Teague exception. Neither rule qualified as a bedrock or watershed principle. While we express no view on whether we would adopt the rule suggested by appellants if it were presented to us on direct appeal from a federal conviction, we cannot say that the rule is so fundamental to Due Process that it satisfies the narrow Teague exception for “ ‘watershed rules of criminal procedure’ ” that “ ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Sawyer v. Smith, 110 S.Ct. at 2831 (citations omitted).
Because appellants seek the benefits of a new rule that does not come within either of the Teague exceptions, their claims for habeas corpus relief are without merit.
The judgment of the district court is therefore affirmed.
. Appellants do present specific instances of alleged misconduct on the part of the prosecutor during their trial. But appellants do not allege specifically how this misconduct prejudiced the outcome of the case. Appellants claim that if they must demonstrate prejudice, then they are entitled to discovery. However, since appellants only speculate that the outcome was prejudiced and present only general allegations in support of this speculation, they are not entitled to a remand for discovery. Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 1091, 22 L.Ed.2d 281 (1969).
. There are two exceptions to this doctrine, under which a new rule may be applied in a habeas corpus proceeding, see infra.
. Appellants do cite People v. Munson, 319 Ill. 596, 150 N.E. 280 (1925), which vacated a conviction obtained by an unlicensed prosecutor. This decision, however, was based on state rather than federal law.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
William J. SMITH, Plaintiff, Appellant, v. Gilbert J. PASQUALETTO, Defendant, Appellee.
No. 5205.
United States Court of Appeals First Circuit.
July 1, 1957.
Alfred Sigel, Boston, Mass., with whom Hubert Thompson, Boston, Mass., was on brief, for appellant.
Thomas F. Maher,n Boston, Mass., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
The plaintiff-appellant, Smith, a citizen of Massachusetts, brought this action sounding in tort for negligence against the defendant-appellee, Pasqualetto, a citizen of Illinois, in the United States District Court for the District of Massachusetts, under the diversity of citizenship jurisdiction conferred by Title 28 U.S.C. § 1332. The court below entered judgment for the defendant on the ground that the action was barred by the Massachusetts statutes governing limitation of actions.
Insofar as relevant the facts of the case are as follows. Plaintiff-appellant was injured when an automobile he was driving and one owned and operated by the defendant collided at a street intersection in Boston in June, 1953. The plaintiff filed his complaint on June 21, 1854, in which he alleged that the collision and his injury occurred on June 24, 1953. However, during the course of the trial it was established without contradiction that the actual date of the injury was June 20, 1953. At the close of the evidence the defendant moved for a directed verdict on the ground that the action was barred by Mass.G.L.(Ter.Ed.) c. 260, § 4 which provides: “actions of tort for bodily injuries * * *' the payment of judgments in which is required to be secured by chapter ninety * * * shall be commenced only within one year next after the cause of action accrues.” The District Court denied the motion and submitted the case to the jury which returned a verdict for the plaintiff. Thereupon, the defendant moved for judgment notwithstanding the verdict and the court granted the motion. In the course of a bench conference following the return of the verdict the court noted on its own initiative that the 20th of June, 1954, was a Sunday, which fact might afford some basis for arguing that that day should be excluded in determining the statutory period. However, the court passed over the point by further noting that “[t]he usual Massachusetts rule, where more than seven days is involved, is not to exclude Sunday.”
The appellant had made no mention of this “Sunday factor” in his pleadings nor did his counsel advert to it at the trial. Now on this appeal he for the first time argues the applicability of Mass.G.L. (Ter.Ed.) c. 4, § 9 which provides as follows :
“Except as otherwise provided, when the day or the last day for the performance of any act, including the making of any payment or tender of payment, authorized or required by statute or by contract, falls on Sunday or a legal holiday, the act may, unless it is specifically authorized or required to be performed on Sunday or on a legal holiday, be performed on the next succeeding business day.”
Certainly a federal court may on its own initiative take notice of relevant rules of state law. Bowen v. Johnston, 1939, 306 U.S. 19, 23, 59 S.Ct. 442, 83 L.Ed. 455. Perhaps in some circumstances it is required to do so. See Am. Law Inst. Model Code of Evidence, Rule 801. However, occasionally as here an applicable rule of law eludes not only counsel, but also, since omniscience can hardly be expected, of the trial judge. Although there are situations in which the overall needs of justice require that parties on appeal be denied recourse to rules of law to which the attention of the trial court has not been specifically directed, see Fed.R.Civ.P. 51, 28 U.S.C. (objections to instruction to jury) and Fed.R.Civ.P. 46 (objections to evidence), appellate courts are understandably reluctant to impose injustice upon a party by affirming a judgment which would have no legal basis were it not for the laxity of his counsel. See Fourth National Bank v. Francklyn, 1887, 120 U.S. 747, 751-752, 7 S.Ct. 757, 30 L.Ed. 825; Keene Lumber Co. v. Leventhal, 1 Cir., 1948, 165 F.2d 815. In this case we will consider the appellant’s rights under the Massachusetts “Sunday statute,” for to do so imposes no substantial injustice upon either the appellee, or other litigants awaiting access to the courts, since no further proceedings of any significant duration will result which would be otherwise unnecessary were it not for the laxity of appellant’s trial counsel. To the extent that appellee may have suffered the expense of the appeal solely because of the appellant’s delay in raising the critical issue, appropriate compensation can be made by awarding costs on appeal to the appellee. Murdock v. Ward, 1900, 178 U.S. 139, 149, 20 S.Ct. 775, 44 L.Ed. 1009.
Proceeding now to the merits of appellant’s argument with respect to the applicability of the so-called “Sunday statute,” Mass.G.L.(Ter.Ed.) c. 4, § 9, we conclude that said legislation, is effective to extend the expiration date of the period of limitations to Monday, June 21, 1954, on which date the complaint was properly filed.
While there are no Massachusetts cases directly in point, the so-called “Sunday statute” expressly provides that “[e]xcept as otherwise provided, when * * * the last day for the performance of any act * * * required by statute * * * falls on Sunday * * * the act may, unless it is specifically authorized or required to be performed on Sunday * * *, be performed on the next succeeding business day.” Mass.G.L.(Ter.Ed.) c. 4, § 9.
In disputing the applicability of this statute to the case at bar appellee; makes several arguments, none of which appear to us to have sufficient weight to counteract the clear language of the statute. Appellee’s arguments are directed to the “except as otherwise provided” clauses with the assertions that 1. the common law rule cited by the court below, and 2. the language of the “short statute,” Mass.G.L. (Ter.Ed.) c. 260, § 4, do “otherwise provide.”
Gonsidering the latter statutory provision first we note that the allegedly applicable language reads as follows:
“[Ajctions of tort for bodily injuries or for death the payment of judgments in which is required to be secured by chapter ninety * * * shall be commenced only within one year next after the cause of action accrues.” Mass.G.L.(Ter.Ed.) c. 260 §4.
Appellee contends that the phrase “only within one year next” must be strictly construed as providing that without exception the action must be brought by the first anniversary date of the accrual thereof or be barred. We do not agree that such a strict construction is required in order to give effect to the phrase in question. Rather, in view of the fact-that the short statute is an exception carved out of the longer two year statute of limitations for torts in general, we consider that a more natural construction of the language places the emphasis upon the word ’’one” in recognizing an intention to set off “one year” as against “two years.” It seems to us an excessively strained interpretation of both language and legislative intent to place predominant emphasis upon the word “only” in order to effectuate an alleged purpose to disallow the extra day provided in certain situations by the previously enacted “Sunday statute.”
Therefore we conclude that the statute does not “otherwise provide” and*, proceed to consider the possible applicability of the common law rule invoked by the court below, which rule purports to restrict the exclusion of Sundays in computation of expiration date to periods shorter than seven days. See Haley v. Young, 1883, 134 Mass. 364; Stevenson v. Donnelly, 1915, 221 Mass. 161, 163, 108 N.E. 926. First we must point out that the common law rule in question is not necessarily inconsistent with the “Sunday statute.” The “Sunday statute” relates only to situations where Sunday (or any other legal holiday) is the last day of the period, whereas the common law rule extends to situations where Sunday falls within the period. To the slight extent that the two rules might be considered contradictory we are obliged to give force to the statute. To give force to the statute undercuts but slightly the application of the common law rule, whereas to give full force to the common law rule would thoroughly frustrate the purpose of the statute. In concluding that the statute rather than the common lav/ provision governs this case we consider it further significant that the Massachusetts cases applying the common law rule to terminal dates falling on Sunday, see e. g., Cooley v. Cook, 1878, 125 Mass. 406, antedate the enactment of the statute in 1907, and in the subsequently decided case of Grant v. Pizzano, 1928, 264 Mass. 475, 163 N.E. 162, the Supreme Judicial Court of Massachusetts recognized that the “Sunday statute” effectively modified the common law rule.
A judgment will be entered vacating the judgment of the District Court and remanding the case to that Court for further proceedings not inconsistent with this opinion. Costs on appeal to the appellee.
. Under the rule of Erie RR. v. Thompkins, 1938, 304 U.S. 64, 58 S.Ct, 817, 82 L.Ed. 1188, as evolved in subsequent Supreme Court decisions, the District Court in this case would clearly be obliged to apply the state statute of limitations if the action would be barred thereunder were it brought in the state court. See Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. Whatever reservations might be entertained concerning the scope of the holding in Guaranty Trust Co. v. York, see Hart & Wechsler, Federal Courts and the Federal System, 659-00, do not apply here since this cause arises solely under the laws of Massachusetts and the Massachusetts “short statute” of limitations here involved appears to be directed primarily at protecting defendants from extended uncertainty as to liability rather than reducing the burden of stale litigation upon courts of the state.
. Whether actions against non-resident motorists are among those “the payment of judgments in which [are] required to be secured by chapter ninety” and thereby subject to the special one year rather than the general two year statute of limitations, Mass.G.L.(Ter.Ed,) c. 260, § 2A, is a difficult question of statutory interpretation, as yet unresolved by Massachusetts cases, which we do not reach since it is not necessary to the decision in this case.
. Since wo are here largely concerned with the extent to which the federal judicial system should be protected from ■relitigation necessitated by laxity of counsel, we consider it proper in a diversity case, as in any other, to refer to federal rather than state precedent. Cf. footnote 1, supra.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_r_natpr
|
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 "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.
Robert DAILEY; Reggie Leach, on behalf of themselves and all others similarly situated v. THE NATIONAL HOCKEY LEAGUE; The National Hockey League Pension Society; The Manufacturers Life Insurance Company; John Ziegler; Boston Professional Hockey Association, Inc.; Calgary Flames Hockey Club; Chicago Blackhawk Hockey Team, Inc.; Detroit Red Wings, Inc.; Edmonton Oilers Hockey, Ltd.; 8 Hockey Ventures, Inc.; Hartford Whalers Hockey Club; Le Club De Hockey Canadien, Inc.; Le Club De Hockey Les Nordiques; L.A. Kings, Ltd.; Maple Leaf Gardens Limited; Meadowlanders, Inc.; Nassau Sports; New York Rangers Hockey Club, a Division of Madison Square Garden Center, Inc.; Niagara Frontier Hockey, L.P.; Northstar Hockey Club; Philadelphia Flyers Limited Partnership; Pittsburgh Penguins, Inc.; St. Louis Blues Hockey Club, L.P.; Vancouver Hockey Club, Ltd.; Washington Hockey Limited Partnership, Appellants.
No. 92-5156.
United States Court of Appeals, Third Circuit.
Argued Sept. 21, 1992.
Decided Feb. 18, 1993.
Sur Petition for Rehearing March 19, 1993.
Richard P. McElroy (Argued), Stephen M. Orlofsky, Ann B. Laupheimer, Jane C. Silver, Blank, Rome, Comisky & McCauley, Philadelphia, PA, for all appellants except The Manufacturers Life Ins. Co.
Daniel Segal, Claire Rocco, Hangley, Connoly, Epstein, Chiceo, Foxman & Ewing, Philadelphia, PA, Steuart Thomsen, Sutherland, Asbill & Brennan, Washington, DC, for The Manufacturers Life Ins. Co.
Joseph H. Kenney (Argued), Mark Schwartz, Kenney & Kearney, Cherry Hill, NJ, Edwin T. Ferren, III, Richman & Fer-ren, David E. Ferguson, Haddonfield, NJ, for appellees.
Before: HUTCHINSON, ALITO and SEITZ, Circuit Judges.
Hon. Collins J. Seitz, United States Circuit Judge, was limited to voting for panel rehearing.
OPINION OF THE COURT
SEITZ, Circuit Judge.
This is a permitted interlocutory appeal by defendants pursuant to 28 U.S.C. § 1292(b) from an order of the district court denying their motion to dismiss. The district court granted defendants’ motion to certify the following question:
Does the assertion by the plaintiff of a claim under ERISA over which there is exclusive jurisdiction in federal court preclude dismissal under the doctrine of forum non conveniens and likewise preclude dismissal based on lack of subject matter jurisdiction under Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285 (1939)?
I. Factual Background
This class action was instituted in the district court by a group of former hockey players (“Players” or “plaintiffs”) in the National Hockey League (“NHL”). It was filed against the NHL; the National Hockey League Pension Society (“Pension Society”); the Manufacturers Life Insurance Company (“Manulife”); John Ziegler, the president of the NHL; and all member clubs of the NHL (collective! y, the “League” or “defendants”).
The Players alleged that the League breached the fiduciary duties it owed them as well as terms of the NHL Pension Plan and Trust Agreement (“trust” or “agreement”). They also alleged violations of various provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq., involving the funding, administration, and management of the National Hockey League Pension Plan and Trust (“pension plan”).
The NHL established a pension plan in 1947 and first embodied it in a written agreement in 1967. It was amended several times between 1967 and 1986. Under the original agreement, both players and their respective member clubs were to make contributions to the plan. After the first amendment, players were no longer required to make contributions. Instead, the member clubs provided full funding for the plan. Funds in the plan were invested in a group annuity contract with defendant Manulife. It is the surplus generated under this contract and the League’s treatment of it which forms the basis for the two suits.
The pension plan contained provisions which required that all surplus funds generated by the plan be used solely for the benefit of the participating players and their beneficiaries. Any surplus generated was to be allocated to the participating players’ accounts at five-year intervals. The plan also prohibited amendments of the agreement to the detriment of the participants prior to the satisfaction of all liabilities under the plan.
The League moved to dismiss this action for lack of subject matter jurisdiction based on the existence of a case pending in a Canadian court at the time this action was commenced. It also moved to dismiss on forum non conveniens grounds.
The Canadian action was made a “representative” action by the Canadian court (analogous to our class action). The Canadian class represents only those players who retired before July of 1982, whereas the class in this action includes those players who retired prior to 1988. The defendants in both actions are identical except that the NHL is not named as a defendant in the Canadian action.
Although the claims asserted in the action before this court are based primarily on ERISA, whereas the claims in the Canadian action are based on Canadian law, both actions allege the same wrongdoing and seek similar relief.
The applicants (plaintiffs) in the Canadian action seek:
1. A declaration that all pension surpluses accruing between 1947 and December 9, 1983 are to be allocated among the plan participants and their beneficiaries.
2. An order that the surpluses transferred to the member clubs and the Pension Society be allocated to the plan participants and their beneficiaries.
3. A declaration that the Pension Society and the NHL are in breach of their legal and fiduciary duties for their actions in contravention of the plan agreement relating to the use of and allocation of surplus.
4. A declaration that any amendments to the pension plan are null and void to the extent they allocate surplus to persons other than plan participants and their beneficiaries.
5. An order that the Pension Society allocate surplus currently held to the plan participants and their beneficiaries and that the member clubs make restitution of any shortfalls arising from their improper receipt of funds from the pension plan.
6. An accounting of funds allocated or to be allocated among the plan participants and their beneficiaries.
7. An order replacing the Pension Society as trustee and appointing a new trustee.
8. An award of costs on a solicitor-and-his-own-client basis.
As noted, the plaintiffs in this action seek essentially the same relief. No liquidated damages issue is involved in the present context.
The district court denied the League’s motion to dismiss. In doing so, it rejected defendants’ argument that dismissal was warranted under the Princess Lida doctrine and on grounds of forum non conveniens. Our review here under 28 U.S.C. § 1292(b) is limited to questions of law raised by the order. United States v. Stanley, 483 U.S. 669, 677, 107 S.Ct. 3054, 3060, 97 L.Ed.2d 550 (1987); Ivy Club v. Edwards, 943 F.2d 270, 275 (3d Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1282, 117 L.Ed.2d 507 (1992). In deciding these questions, however, we are not constrained by the question certified, rather “we may address any issue necessary to decide the appeal before us.” Ivy Club, 943 F.2d at 275 (citing Morse/Diesel, Inc. v. Trinity Indus., Inc., 859 F.2d 242, 249 (2d Cir.1988)). Because the Supreme Court in Princess Lida formulated its doctrine in terms of subject matter jurisdiction, we will first address that issue.
The principal certified question is whether the assertion of a claim under ERISA, which is subject to exclusive federal court jurisdiction, precludes dismissal under the Princess Lida doctrine. However, we think it is preferable to consider first whether Princess Lida is applicable without regard to ERISA. We proceed to that task.
II. Princess Lida
In Princess Lida, trustees of a fund in which Lida and her sons were beneficiaries brought an accounting action in the Common Pleas Court of Fayette County, Pennsylvania. Thereafter, Lida and one of her sons brought suit in the district court alleging that the trustees had mismanaged the trust funds and praying for a removal of the trustees and a restoration of corpus. Princess Lida v. Thompson, 305 U.S. 456, 458-60, 59 S.Ct. 275, 277-78, 83 L.Ed. 285 (1938). The Supreme Court held that the earlier accounting action was quasi in rem and that the district court lacked subject matter jurisdiction. Id. at 465-68, 59 S.Ct. at 280-81. This holding was based on the doctrine which prevents a court in which an action is filed from exercising jurisdiction when a court in a previously filed action is exercising control over the property at issue and the second court must exercise control over the same property in order to grant the relief sought. As the Court said in Princess Lida:
We have said that the principle applicable to both federal and state courts that the court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, is not restricted to cases where property has been actually seized ... but applies as well where suits are brought to marshal assets, administer trusts, or liquidate estates, and in suits of a similar nature where, to give effect to its jurisdiction, the court must control the property.
Id. at 466, 59 S.Ct. at 280 (footnote and citations omitted). Our future reference to the Princess Lida doctrine will embrace only the quoted language of the opinion.
The quoted principle of Princess Lida was well established in prior Supreme Court precedents. See United States v. Bank of N.Y. & Trust Co., 296 U.S. 463, 477-78, 56 S.Ct. 343, 347-48, 80 L.Ed. 331 (1936); Penn Gen. Casualty Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 389, 79 L.Ed. 850 (1935). Its continuing validity is undisputed. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (citing Princess Lida, among other cases, and stating that “[a] court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts”); Chesley v. Union Carbide Corp., 927 F.2d 60, 66 (2d Cir.1991) (stating, in an in rem context, that the rule of Princess Lida is “equally applicable to requested interference by American courts with a res under the jurisdiction of a foreign court”).
The district court recognized that “the instant actions do involve the administration of a trust” but then went on to conclude that “every suit that involves the administration of a trust fund does not invoke the Princess Lida doctrine” and that the doctrine was inapplicable in this case. Dailey v. National Hockey League, 780 F.Supp. 262, 267 (D.N.J.1991). This conclusion was based, in part, on the court’s determination that the suit brought in Princess Lida required “far more comprehensive control by the court over the administration of the trust than is sought in the cases at issue here.” Id. In finding Princess Lida inapplicable, the district court concluded that the two actions, to the extent they sought money damages from third parties, specifically the member clubs and Manulife, were in personam actions. Id. at 267-68. The district court, applying what it termed a “pragmatic” approach, concluded that, despite the fact that injunc-tive relief is sought in both suits, there was no danger of conflicting orders arising between the two courts and therefore it was unnecessary to apply the doctrine in this case. Id. at 268. The court reached this conclusion by relying on its view that a decision in the Canadian action would be rendered “well before this court has reached a stage at which we could consider ordering relief.” Id. The court stated “[w]e will therefore have the benefit of knowing what relief has been ordered by the Canadian court and will be able to tailor our own order accordingly.” Id.
We find that the district court’s approach is flawed at the outset. Princess Lida is a “mechanical rule” which requires that the court in which the second suit is brought yield its jurisdiction if the requisite “property” showing is made. See PPG Indus., Inc. v. Continental Oil Co., 478 F.2d 674, 677 (5th Cir.1973) (stating that Princess Lida is a “virtually mechanical in rem rule”); Crawford v. Courtney, 451 F.2d 489, 492 (4th Cir.1971) (stating that Princess Lida-type abstention is “compulsory,” not discretionary); Ewald v. Citizens Fidelity Bank & Trust Co., 242 F.2d 319, 322 (6th Cir.1957) (stating that where Princess Lida applies the court where the action is first filed has “exclusive jurisdiction, and the federal court [has] no right to interfere with the pending litigation”). Thus, the district court erred in justifying its jurisdictional decision by reliance in part on future developments. That approach would leave the subject matter jurisdiction of the district court in a judicial limbo.
Princess Lida applies when: (1) the litigation in both the first and second fora are in rem or quasi in rem in nature, and (2) the relief sought requires that the second court exercise control over the property in dispute and such property is already under the control of the first court. Princess Lida v. Thompson, 305 U.S. at 466, 59 S.Ct. at 280.
As to the first requirement, the parties tacitly agree that the actions are not in rem.. However, both actions, in part, involve the “administration and restoration of corpus” and are not “merely an adjudication of [a party’s] right or ... interest” nor “strictly in personam.” Id. at 466-67, 59 S.Ct. at 280-81. They intimately involve the validity of terms of the pension plan and their general application to the trust funds. We, therefore, conclude that the actions are quasi in rem within the meaning of Princess Lida. See Shaw v. First Interstate Bank of Wis., N.A., 695 F.Supp. 995, 999 (W.D.Wis.1988) (stating that the phrases in rem and quasi in rem are “of little use by themselves in determining [jurisdiction.] The important question is whether th[e] action falls within the term quasi in rem as it was used by the U.S. Supreme Court in Princess Lida”). The primary relief sought in both actions is the restoration of trust funds which were allegedly misappropriated. This is precisely the situation which was at issue in Princess Lida and which the court stated was encompassed within the term quasi in rem. See In re Solar Mfg. Corp., 200 F.2d 327, 332 (3d Cir.1952) (stating that an action for the restoration of trust funds is quasi in rem), cert. denied, 345 U.S. 940, 73 S.Ct. 831, 97 L.Ed. 1366 (1953). We therefore turn to the question of whether the claims are essentially the same.
The applicants in thé Canadian suit seek both restoration of corpus and injunctive relief prohibiting the continued improper use of surplus funds and requiring proper allocation of the diverted funds by the pension fund. They also seek an accounting and removal of the trustee. Similar relief is sought by the plaintiffs in this case. Thus, the relief sought in the district court at the time the action was filed would require the district court to exercise control over the same property that is subject to the control of the Canadian court as well as requiring it to determine the future status of the incumbent Canadian trustee. To us, this is assuredly the type of legal disharmony the Princess Lida Court sought to avoid. Having found that both requirements are met, we conclude that the district court “must yield” its jurisdiction, unless ERISA dictates otherwise. We address that frontier issue.
III. Impact of ERISA
The district court based its decision, in part, upon its conclusion that application of the Princess Lida doctrine would result in the loss of plaintiffs’ ERISA claims, claims which are subject to the exclusive jurisdiction of the United States federal courts.
The district court relied primarily on Levy v. Lewis, 635 F.2d 960 (2d Cir.1980), for the proposition that Princess Lida is inapplicable when dismissal would result in the loss of ERISA claims which are subject to the federal courts’ exclusive jurisdiction.
The district court’s reliance on Levy is misplaced. In Levy, the court found that abstention as to certain ERISA claims which were subject to concurrent federal and state jurisdiction was appropriate under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
It was in this context that the Second Circuit cited Princess Lida. Though the court went on to conclude that abstention was inappropriate as to additional ERISA claims which were subject to the exclusive jurisdiction of the federal courts, this discussion was limited to abstention under Younger [v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)] and Colorado River. Levy, 635 F.2d at 967 (“The ability to raise federal claims in state proceedings has always been a prerequisite to Younger abstention, and it is clear as well that abstention for purposes of judicial economy under Colorado River applies only where concurrent federal-state jurisdiction exists.”). The court’s conclusion in Levy, based on discretionary abstention doctrines, has no application to the question of the district court’s jurisdiction under the mandatory rule of Princess Lida.
Relying on the exclusive jurisdictional provisions of ERISA, the district court concluded that “plaintiffs’ ERISA claims would be lost if they were forced to press their grievances only before a Canadian Court, and ... such loss could be of material significance to plaintiffs’ case.” Dailey, 780 F.Supp. at 271. It concluded that this consequence, in conjunction with its finding that the actions were not in rem or quasi in rem within the meaning of Princess Lida, did not compel dismissal under Princess Lida. Id.
We observe as a preliminary matter that we are not involved with the continuing viability of the Princess Lida doctrine in a situation involving ERISA and concurrent proceedings in two United States’ courts. We are, however, concerned with the continuing applicability of that doctrine in a quasi in rem context where a district court has jurisdiction but a foreign court also has jurisdiction to entertain claims over the same alleged wrongdoing and can grant similar relief. We have been unable to find any caselaw, other than the district court’s opinion in this case, addressing this issue in a Princess Lida context.
The considerations that dictate the proper result are far from clear. In conducting our analysis we recognize the strong public policy reflected in ERISA designed to protect pension rights. However, the potential for conflicting determinations clearly exists here as to some aspects of the “property” issues involved. This possibility calls into play the considerations that in part prompted the formulation of the Princess Lida doctrine. We therefore conclude that ERISA does not negate the continuing applicability of Princess Lida under the present facts.
We believe our determination is consistent with decisions of other courts that have upheld the dismissal of claims subject to the exclusive jurisdiction of the federal courts. In Howe v. Goldcorp Investments, Ltd., 946 F.2d 944, 952 (1st Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1172, 117 L.Ed.2d 418 (1992), the court upheld the district court’s dismissal of plaintiff’s private securities law action against a Canadian corporation under the doctrine of forum non conveniens despite the fact that these claims were subject to the exclusive jurisdiction of the federal courts. The court stated that “Canadian courts will either apply American law ... or they .will apply Canadian laws that offer ... somewhat similar protections.... ” Id. In reaching this conclusion that court relied on Supreme Court precedent which requires that the “possibility of an unfavorable change in law” not be considered unless “the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254, 102 S.Ct. 252, 265, 70 L.Ed.2d 419 (1981). See Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 768-69 (9th Cir.1991) (relying on Piper and stating that the possible loss of statutory claims (RICO and Lanham Act) did “not furnish a sufficient reason to preclude dismissal”).
The district court, in its discussion of forum non conveniens, found that the “uniqueness of plaintiffs’ ERISA claims” made Howe inapplicable. Dailey, 780 F.Supp. at 272. We find Howe to be persuasive in its treatment of the loss of claims subject to the exclusive jurisdiction of the federal courts and we think its approach is equally applicable to the question of dismissal under the Princess Lida doctrine. We say this because it is difficult to see how dismissal could be possible under forum non conveniens but at the same time not an available remedy under Princess Lida.
Given our conclusion, the certified question requires us to go no further at this point. Our conclusion also renders it unnecessary to consider the certified question dealing with the forum non conveniens ruling of the district court.
The order of the district court will be reversed.
. The plan, under United States tax law, is designated as a "foreign situs” trust. See, e.g., 42 U.S.C.A. § 404(a)(4) (West Supp.1992).
. The parties make no point of this distinction in connection with arguments directed to the application of Princess Lida. We will do the same.
. The district court relies, in part, on Levy v. Lewis, 635 F.2d 960 (2d Cir.1980) in its discussion of ERISA and Princess Lida. Though the district court does not appear to rely on Levy in adopting its discretionary approach to the application of Princess Lida, it may have read language in Levy as establishing such an approach. See Levy, 635 F,2d at 965-66 (stating that “[Princess Lida ] is more accurately described as a prudential doctrine in which a second court with concurrent jurisdiction will exercise its discretion to defer to another court_’’). This language is inconsistent with earlier Second Circuit precedent which establishes that Princess Lida is not a discretionary doctrine. See Beach v. Rome Trust Co., 269 F.2d 367, 371 (2d Cir.1959) ("[Princess Lida] requires a federal court to dismiss any claim with regard to the property where the adjudication would interfere with the proceedings in [another] court_ This principle is so firmly rooted in our law as to have required and not merely permitted [dismissal]." (citations omitted)).
.Since this appeal was argued, the Canadian trial court has granted essentially all the relief requested in that action except the removal of the trustee. We are advised that there will be an appeal. Thus, the Ontario Court of Justice declared that "[a] II excess Plan funds ... are to be allocated exclusively among the applicable participants to purchase for them additional pension benefits[.]” Bathgate v. National Hockey League Pension Soc’y, 1992 Ont.C.J. LEXIS 1830, at *186 (Oct. 21, 1992). The court ordered that an accounting be made and that the action be referred to a master who would determine “the actual amount of excess funds ... and the manner and timing of distribution of such funds_” Id. at *188. Though we have reached our decision in this case by looking to what was sought in the Canadian action, the same conclusion would follow from looking to the relief which was granted by the Ontario Court of Justice. Despite that decision, both sides press us to decide this appeal.
. Both parties concede that the ERISA claims, as suclt cannot be tried in the Canadian action.
. Plaintiffs alleged that defendants' conduct was a breach of the fiduciary duty owed them under ERISA, 29 U.S.C. § 1104 and violated the exclusive use provisions of 29 U.S.C. § 1 ICC (c)(1).
. In Colorado River, the Supreme Court noted that in limited circumstances where two courts are contemporaneously exercising concurrent jurisdiction abstention is appropriate for "[wjise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation." Id. 424 U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)).
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_casesource
|
158
|
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.
YELLOW TRANSPORTATION, INC. v. MICHIGAN et al.
No. 01-270.
Argued October 7, 2002
Decided November 5, 2002
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scaua, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 48.
Charles A. Rothfeld argued the cause for petitioner. With him on the briefs were Evan M. Tager, Robert L. Bron-ston, John W. Bryant, and R. Ian Hunter.
Austin C. Schlick argued the cause for the United States as amicus curiae in support of petitioner. With him on the brief were Solicitor General Olson, Assistant Attorney General McCollum, Deputy Solicitor General Wallace, Michael Jay Singer, Bruce G. Forrest, Kirk K. Van Tine, Paul M. Geier, Dale C. Andrews, and Laura C. Fentonmiller.
Thomas L. Casey, Solicitor General of Michigan, argued the cause for respondents. With him on the briefs were Jennifer M. Granholm, Attorney General, Susan I. Leffler, Assistant Solicitor General, and David A. Voges and Henry J. Boynton, Assistant Attorneys General.
Roy T. Englert, Jr., Sherri Lynn Wolson, Beth L. Law, and Robert Digges, Jr., filed a brief for the American Trucking Associations, Inc., et al. as amici curiae urging reversal.
Justice O’Connor
delivered the opinion of the Court.
We granted certiorari in this case, 534 U. S. 1112 (2002), to determine whether the Michigan Supreme Court erred in holding that, under 49 U. S. C. § 14504(e)(2)(B)(iv)(III), only a State’s “generic” fee is relevant to determining the fee that was “collected or charged as of November 15, 1991.”
I
A
Beginning in 1965, Congress authorized States to require interstate motor carriers operating within their borders to register with the State proof of their Interstate Commerce Commission (ICC) interstate operating permits. Pub. L. 89-170, 79 Stat. 648, 49 U. S. C. § 302(b)(2) (1970 ed.). Congress provided that state registration requirements would not constitute an undue burden on interstate commerce so long as they were consistent with regulations promulgated by the ICC. Ibid.
Prior to 1994, the ICC allowed States to charge interstate motor carriers annual registration fees of up to $10 per vehicle. See 49 CFR § 1023.33 (1992). As proof of registration, participating States would issue a stamp for each of the carrier’s vehicles. § 1023.32. The stamp was affixed on a “uniform identification cab car[d]” carried in each vehicle, within the square bearing the name of the issuing State. §§ 1023.32(d)-(e). This system came to be known as the “bingo card” system. Single State Insurance Registration, 9 I. C. C. 2d 610 (1993).
The “bingo card” regime proved unsatisfactory to many who felt that the administrative burdens it placed on carriers and participating States outweighed the benefits to those States and to the public. H. R. Rep. No. 102-171, pt. I, p. 49 (1991); H. R. Conf. Rep. No. 102-404, pp. 437-438 (1991). In the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Congress therefore directed the ICC to implement a new system to replace the “bingo card” regime. See Pub. L. 102-240, §4005, 105 Stat. 1914, 49 U. S. C. § 11506(c) (1994 ed.). Under the new system, called the Single State Registration System, “a motor carrier [would be] required to register annually with only one State,” and “such single State registration [would] be deemed to satisfy the registration requirements of all other States.” §§ 11506(c)(1)(A) and (C). Thus, one State would — on behalf of all other participating States — register a carrier’s vehicles, file and maintain paperwork, and collect and distribute registration fees. § 11506(c)(2)(A). Participation in the Single State Registration System was limited to those States that had elected to participate in the “bingo card” system. § 11506(c)(2)(D).
ISTEA also capped the per-vehicle registration fee that participating States could charge interstate motor carriers. Congress directed the ICC to
“establish a fee system . .. that (I) will be based on the number of commercial motor vehicles the carrier operates in a State and on the number of States in which the carrier operates, (II) will minimize the costs of complying with the registration system, and (III) will result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991.” § 11506(c)(2)(B)(iv).
Congress provided that the charging or collection of any fee not in accordance with the ICC’s fee system would “be deemed to be a burden on interstate commerce.” § 11506(c)(2)(C).
The ICC issued its final implementing regulations in May 1993 after notice-and-comment proceedings. Single-State Insurance Registration, supra. The rulemaking gave rise to the central question in this case: whether, under the Single State Registration System, States were free to terminate “reciprocity agreements” that were in place under the “bingo card” regime. Id., at 617-619. Under these agreements, in exchange for reciprocal treatment, some States discounted or waived registration fees for carriers from other States. Id., at 617.
In issuing a set of proposed rules and soliciting further comments, the ICC questioned whether it had the power to require States to preserve pre-existing reciprocity agreements. Single State Insurance Registration, No. MC-100 (Sub-No. 6), 1993 WL 17833, *12 (Jan. 22, 1993); see Single State Insurance Registration—1993 Rules, 9 I. C. C. 2d 1, 11 (1992). It noted that these agreements were voluntary and mutually beneficial and commented that “as long as no carrier is charged more than [a State’s] standard November 15, 1991, fee for all carriers (subject to the $10 limit), the requirements of [ISTEA] are satisfied.” 1993 WL 17833, *12.
In its final implementing regulations, however, the ICC concluded, in light of further comments, that its preliminary view on reciprocity agreements was inconsistent with ISTEA’s fee-cap provision and with “the intent of the law that the flow of revenue for the States be maintained while the burden of the registration system for carriers be reduced.” Single State Insurance Registration, 9 I. C. C. 2d, at 618. The agency therefore determined that States participating in the Single State Registration System “must consider fees charged or collected under reciprocity agreements when determining the fees charged or collected as of November 15, 1991, as required by § 11506(c)(2)(B)(iv).” Id., at 618-619; see also American Trucking Associations — Petition for Declaratory Order—Single State Insurance Registration, 9 I. C. C. 2d 1184, 1192, 1194-1195 (1993). The National Association of Regulatory Utility Commissioners (NARUC) and 18 state regulatory commissions sought review of the ICC’s determination and certain provisions of the Single State Registration System regulations. NARUC v. ICC, 41 F. 3d 721 (1994). The United States Court of Appeals for the District of Columbia concluded that the plain language of the statute supported the ICC’s determination that States participating in the new system must consider reciprocity agreements under 49 U. S. C. § 11506(c)(2)(B)(iv). 41 F. 3d, at 729.
B
Prior to the implementation of the Single State Registration System, Michigan had participated in the “bingo card” regime. See App. 5 (Affidavit of Thomas R. Lonergan, Director, Motor Carrier Regulation Division of the Michigan Public Service Commission ¶ 3e) (hereinafter Lonergan Affidavit). The Michigan Legislature had directed the Michigan Public Service Commission to levy an annual registration fee of $10 per vehicle on interstate motor carrier vehicles and simultaneously endowed the commission with authority to “enter into a reciprocal agreement with a state.” Mich. Comp. Laws Ann. § 478.7(4) (West 1988). Pursuant to such reciprocal agreements, the commission was empowered to “waive the fee [otherwise] required.” Ibid.
Petitioner in this case is an interstate trucking company headquartered in Kansas. For calendar years 1990 and 1991, the Michigan Public Service Commission did not levy a fee for petitioner’s trucks that were licensed in Illinois pursuant to its policy “not to charge a fee to carriers with vehicles registered in states ... which did not charge Michigan-based carriers a fee.” App. 6 (Lonergan Affidavit ¶ 3i). In 1991, however, the Michigan Public Service Commission announced a change in its reciprocity policy to take effect on February 1, 1992. Under the new policy, the commission granted reciprocity treatment based on the policies of the State in which a carrier maintained its principal place of business rather than the State in which individual vehicles were licensed. Because Michigan had no reciprocal arrangement with Kansas, the Michigan Public Service Commission sent petitioner a bill in September 1991, levying a fee of $10 per vehicle for the 1992 registration year on petitioner’s entire fleet, with payment due on January 1,1992.
Petitioner paid the fees in October 1991 under protest and later brought suit in the Michigan Court of Claims seeking a refund of the fees it paid for its Illinois-licensed vehicles after the Single State Registration System came into effect. See 49 U. S. C. § 11506(c)(3) (1994 ed.) (setting effective date of January 1, 1994). Petitioner alleged that, because Michigan had not “collected or charged” a fee for the 1991 registration year for trucks licensed in Illinois, ISTEA’s fee-cap provision prohibits Michigan from levying a fee on Illinois-licensed trucks.
On cross motions for summary disposition, the Michigan Court of Claims ruled in favor of petitioner. Yellow Freight System, Inc. v. Michigan, No. 95-15706-CM (Mar. 13, 1996) (Yellow Freight System I). The Court of Claims’ holding relied on an ICC declaratory order in which the agency held that ISTEA’s fee-cap provision caps fees at the level “collected or charged” for registration year 1991, not those fees levied for registration year 1992 in advance of the statutory cutoff date. Id., at 3-4; see American Trucking Associations, supra, at 1192, 1195.
The Michigan Court of Appeals affirmed on similar grounds. Yellow Freight System, Inc. v. Michigan, 231 Mich. App. 194, 585 N. W. 2d 762 (1998) (Yellow Freight System II). The Court of Appeals also rejected Michigan’s argument that States need not consider reciprocity agreements in determining the level of fees “charged or collected as of November 15, 1991,” noting that the ICC had determined reciprocity agreements must be considered, and that the agency’s decision had been upheld in NARUC v. ICC, supra. Yellow Freight System II, supra, at 202-203, 585 N. W. 2d, at 766.
The Michigan Supreme Court reversed. Yellow Freight System, Inc. v. Michigan, 464 Mich. 21, 627 N. W. 2d 236 (2001) (Yellow Freight System III). The court concluded that “reciprocity agreements are not relevant in determining what fee [a State] ‘charged or collected’ as of November 15, 1991.” Id., at 33, 627 N. W. 2d, at 242. The court expressly rejected the District of Columbia Circuit’s contrary conclusion. Id., at 29, 627 N. W. 2d, at 240 (citing NARUC v. ICC, supra). The Court applied Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), but determined that the statute unambiguously forbids the ICC’s interpretation. Yellow Freight System III, 464 Mich., at 29-31, 627 N. W. 2d, at 240-241. Reasoning that “[t]he new ‘fee system’ is based not on the fees collected from one individual company, but on the fee system that the state had in place on November 15, 1991,” the court concluded that “[w]e must look not at the fees paid by [petitioner] in any given year, but at the generic fee Michigan charged or collected from carriers as of November 15, 1991.” Id., at 31, 627 N. W. 2d, at 241 (emphasis added). Two justices dissented, finding ISTE A’s fee-cap provision ambiguous, the ICC’s construction reasonable, and deference therefore due. Id., at 33-43, 627 N. W. 2d, at 242-247 (opinions of Kelly and Cavanagh, JJ.).
The Michigan Supreme Court did not consider respondents’ argument that the fees petitioner paid Michigan for the 1992 registration year were “collected or charged as of November 15, 1991.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III). Nor did that court reach the question whether Michigan had “canceled its reciprocity agreements with other States in 1989.” Brief for United States as Amicus Curiae 23. The only issue before this Court, therefore, is whether States may charge motor carrier registration fees in excess of those charged or collected under reciprocity agreements as of November 15, 1991.
II
Neither party disputes that Chevron, supra, governs the interpretive task at hand. In ISTEA, Congress made an express delegation of authority to the ICC to promulgate standards for implementing the new Single State Registration System. 49 U. S. C. § 11506(c)(1) (1994 ed.). The ICC did so, interpreting ISTEA’s fee-cap provision subsequent to a notice-and-comment rulemaking. See United States v. Mead Corp., 533 U. S. 218, 229 (2001) (“[A] very good indicator of delegation meriting Chevron treatment [is an] express congressional authorizatio[n] to engage in the process of rule-making or adjudication that produces regulations or rulings for which deference is claimed”). The Federal Highway Administration adopted the ICC’s regulations, see supra, at 39, n., and the Single State Registration System is now administered by the Federal Motor Carrier Safety Administration. 49 U.S. C. §113.
Accordingly, the question before us is whether the text of the statute resolves the issue, or, if not, whether the ICC’s interpretation is permissible in light of the deference to be accorded the agency under the statutory scheme. If the statute speaks clearly “to the precise question at issue,” we “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U. S., at 842-843. If the statute is instead “silent or ambiguous with respect to the specific issue,” we must sustain the agency’s interpretation if it is “based on a permissible construction of the statute.” Id., at 843; see Barnhart v. Walton, 535 U. S. 212, 217-218 (2002).
ISTEA’s fee-cap provision does not foreclose the ICC’s determination that fees charged under States’ pre-existing reciprocity agreements were, in effect, frozen by the new Single State Registration System. The provision requires that the new system “result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III). The language “collected or charged” can quite naturally be read to mean fees that a State actually collected or charged. The statute thus can easily be read as the ICC chose, making it unlawful “for a State to renounce or modify a reciprocity agreement so as to alter any fee charged or collected as of November 15, 1991, under the predecessor registration system.” American Trucking Associations, 9 I. C. C. 2d, at 1194; see Single State Insurance Registration, 9 I. C. C. 2d, at 618-619.
The Michigan Supreme Court held that the language of ISTEA’s fee-cap provision compels a different result. Although it acknowledged that ISTEA is silent with respect to reciprocity agreements, the court nonetheless concluded that the fee-cap provision mandates that those agreements have no bearing in the determination of what fee a State “collected or charged” as of November 15, 1991. Yellow Freight System III, 464 Mich., at 31, 627 N. W. 2d, at 241. The court reasoned that the Single State Registration System was “based not on the fees collected from one individual company, but on the fee system that the state had in place.” Ibid. (emphasis added). While such a reading might be reasonable, nothing in the statute compels that particular result.
The fee-cap provision refers not to a “fee system,” but to the “fee . . . collected or charged.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III). Under the ICC’s rule, where a State waives its registration fee, its “fee . . . collected or charged” is zero and must remain zero. The ICC’s interpretation is a permissible reading of the language of the statute. And, because there is statutory ambiguity and the agency’s interpretation is reasonable, its interpretation must receive deference. See Chevron, supra, at 843.
As commenters to the ICC during the rulemaking pointed out, to allow States to disavow their reciprocity agreements so as to alter any fee charged or collected as of November 15, 1991, would potentially permit States to increase their revenues substantially under the new system, a result that the ICC quite reasonably believed Congress did not intend. See Single State Insurance Registration, 9 I. C. C. 2d, at 618. The ICC concluded that its rule best served the “intent of the law that the flow of revenue for the States be maintained while the burden of the registration system for carriers be reduced.” Ibid. The agency considered that allowing States to disavow reciprocity agreements and charge a single, uniform fee might reduce administrative burdens, but expressed concern that carriers’ registration costs, and state revenues, would balloon. Ibid, (noting that some carriers’ fees “assertedly could increase as much as 900%,” and that one commenter presented a “worst case scenario” in which “State revenues could increase from $50 million to $200 million”).
Respondents argue that Congress intended for each State to set a single, uniform fee. While such a mandate would, indeed, have simplified the new system, it is not compelled by the language of the statute, which instructs the ICC to implement a system under which States charge a fee, not to exceed $10 per vehicle, that is equal to the fee such States “collected or charged as of November 15, 1991.”
Respondents also contend that, by freezing the fees charged under reciprocity agreements as part of the fee cap, the ICC added a constraint not within the express language of the statute. The Michigan Supreme Court expressed a similar concern, stating that “[i]t is not for the ICC ... to insert words into the statute.” 464 Mich., at 32, 627 N. W. 2d, at 241-242. It was precisely Congress’ command, however, that the ICC promulgate standards to govern the Single State Registration System, 49 U. S. C. § 11506(c) (1994 ed.), and it was thus for that agency to resolve any ambiguities and fill in any holes in the statutory scheme. See Mead Corp., supra, at 229; Chevron, supra, at 843-844. To hold States to the fees they actually collected or charged seems to us a reasonable interpretation of the statute’s command that state fees be “equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III).
Respondents argue that the ICC’s rule contravenes ISTEA’s fee-cap provision by limiting
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_appel1_3_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. 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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SERV-AIR, INC., Respondent.
No. 70-70.
United States Court of Appeals, Tenth Circuit.
Sept. 9, 1970.
Glen Bendixsen, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore and Robertamarie Kiley, Attys., N. L. R. B., on the brief), for petitioner.
Frank Carter, Enid, Okl. (Stephen Jones, Enid, Okl., on the brief), for respondent.
Before BREITENSTEIN, HILL and HOLLOWAY, Circuit Judges.
HILL, Circuit Judge.
The National Labor Relations Board is before this court petitioning for enforcement of its supplemental order issued against Serv-Air, Inc., requiring the latter to reinstate R. A. Chodrick to his former position. The order was made on a finding of an unfair labor practice by Serv-Air, in violation of section 8(a) (3) and (1) of the Act. The familiar issue posed is whether substantial evidence supports the decision that Serv-Air suspended and demoted Chodrick in violation of the Act.
R. A. Chodrick was first employed by the Company in 1960 as a hand lineman at Vance Air Force Base. About six months later he was advanced to crew chief of fire fighters. In 1964 the firemen were unionized; Chodrick joined and became a shop steward.
Chodrick has undeniably been a union activist. Since June, 1964, he has served on the union’s negotiation committee; in September, 1964, he led a union walkout; and in February, 1966, he was a leader of a group attempting to present the company with a written grievance over the training schedule. The latter incident resulted in the firing of Chodrick and six others when they refused to drill. Chodrick’s discharge was reduced to a suspension but there has been continued friction between the crew chief and his superiors.
Out of this background arose the incident relevant to this petition for enforcement. In July, 1966, the Company altered its pay procedures by depositing employee salaries in a bank rather than paying the sum directly to each employee. Because of the obvious inconvenience resulting from the change, many of the employees became upset; most considered it to be a thinly veiled attempt to coerce them into opening accounts in the bank because Serv-Air’s president was a stockholder and board member of that bank.
On August 6, 1966, two fire fighters (union members) at Vance Air Force Base left their jobs without permission, apparently to protest the change in pay procedures. For leaving their duty post each was immediately suspended. The next day Chodrick’s crew went on duty. Because men on the earlier shift had reported being bitten by bugs Chodrick’s crew, with his permission, decided to scrub down their sleeping quarters and air out their mattresses. The mattresses were taken outside — two were passed through a window resulting in about $8.00 damage — and laid out to air. The crew then went to chow.
Meanwhile, Terrell, the Assistant Fire Chief, was notified and went to the crash station. After observing the situation and apparently assuming it was a protest related to the suspension of the two union men on the previous day, he called Moxley, the Fire Chief, saying he thought he had “an incident” on his hands. Moxley told Terrell to get the Air Force Security Police, have photographs taken, and a report made. Next Terrell sought out Chodrick and requested an explanation. The reply was that the men were simply attempting to air out the mattresses to rid them of bugs.
Subsequently, Cumpston, director of base operations, asked Moxley what had caused the incident and Moxley answered: “You know as well as I know.” Then, referring to Crew Chief Chodrick, he said: “It looks like this man is continually giving us trouble. It looks like he’s come to the final point. We are going to have to take some action on the individual.” Thereafter Chodrick was suspended for a day and demoted to crash-fireman.
The Company argues that Chodrick’s union activities had nothing to do with the discipline. In their words, “he was laid off because of failure to perform as Crew Chief, his arrogant attitude, his unwillingness to follow prescribed rules and regulations established by Serv-Air, Inc., and the United States Air Force and his callous disregard for the safety of his men.”
Chief Moxley, by his testimony, presented a good case for the Company. But that testimony notwithstanding, the Examiner’s findings are supported by substantial evidence. The Examiner’s observations are clear, pertinent, and concise, and the following excerpts summarize our own conclusions.
“[Ajlthough the purport of Moxley's testimony is that in his opinion Chod-rick had been an unsatisfactory crew chief over a long period of time, Mox-ley was unable to advert to any specific misconduct or act of misfeasance on the part of Chodrick occurring later then [sic] April, 1965 (except for incidents which the Board in prior proceedings found were within the protection of the Act) other than matters which had been continuing for long periods of time.”
“The strenuous effort on the part of respondent to create the appearance of a serious dereliction by Chodrick and members of his crew from something so trivial suggests that Respondent was looking for an opportunity (and judging from the incident onto which it lached — no matter how slight or trivial) for demoting Chodrick. To the argument that the August 7 incident was merely the last straw that broke the camel’s back, it is noted that Respondent was able only to point to outdated misdeeds on the part of Chodrick to demonstrate his unfitness for his job, and several of those matters were incidents with respect to which the Board has found that the Respondent had acted unlawfully. Accordingly, I find no merit to Respondent’s defense that Chodrick was disciplined on August 7, 1966, for ‘good and just cause.’ ”
Serv-Air also charges that the Board violated its rules and regulations in denying the Company’s motions for reopening, reconsideration and rehearing of the case to permit introduction of new and material evidence. A bit of background information is necessary to fully comprehend the argument. The Board’s initial decision in this case issued June 27, 1967. On January 17, 1968, this court issued its decision in a related case, Serv-Air, Inc. v. N. L. R. B., 395 F.2d 557 (10th Cir. 1968), reversing a part of the Board’s decision and remanding that case to the Board for reconsideration. Inasmuch as some of the Board’s findings in the instant case were based on the earlier decision, enforcement proceedings were held in abeyance while the earlier decision was reconsidered. On September 4, 1969, following modification by the Board of its earlier decision, the Board sought the position of the parties as to the effect of such modification on the instant decision. On October 21, 1969, the Board issued a supplemental decision in the present case, reversing it with respect to the discharge of another employee, but reaffirming with respect to the suspension and demotion of Chodrick.
On November 21, 1969, the motions for reconsideration, rehearing and reopening of the record were filed by Serv-Air. The substance of those motions concerns findings by a federal district court in an independent civil proceeding which Serv-Air claims to be related to the same incident over which Chodrick was suspended and demoted.
Under section 10(e) of the Act we are empowered to order a remand where it is shown that the “evidence is material and there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board.” That is the same test contained in the Board’s regulations.
Without considering the reasonableness of the failure to adduce the alleged new evidence, we do not consider the district court findings to be of sufficient materiality to the instant suit to call for a reopening, reconsideration or rehearing. The incident over which the civil suit was litigated occurred more than one year prior to Chodrick’s suspension and demotion. Moreover, the primary reason given for the demotion and suspension concerned only the mattress incident and not the June, 1965, occurrence. And it is of more than casual interest to us that although the Company now attaches great significance to the June, 1965, incident, the record reveals that no disciplinary action whatsoever was taken against Chief Chodrick at the time of the June, 1965, fire, or subsequently. On this state of the record we cannot justify Serv-Air’s motions and conclude that the Board was within its discretion in denying same.
Enforcement of the order of the National Labor Relations Board is hereby granted.
Question: This question concerns the first listed appellant. 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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
LEMIEN v. UNITED STATES.
No. 11632.
Circuit Court of Appeals, Fifth Circuit.
Dec. 23, 1946.
Rehearing Denied Feb. 5, 1947.
Robert D. Wigginton, of Gulfport, Miss., for appellant.
Toxey Hall, U. S. Atty., and Robert E. Hauberg, Asst. U. S. Atty., both of Jackson, Miss., for appellee.
Before SIBLEY, HOLMES, and WALLER, Circuit Judges.
HOLMES, Circuit Judge.
The appellant was convicted by a jury of willfully failing to report for induction into the armed forces of the United States, in violation of the Selective Training & Service Act of 1940. He appealed from the judgment that was entered upon the verdict, and seeks reversal thereof upon the ground that he was a regular minister of religion who was exempt from military training and service.
Appellant was not represented by counsel in the court below; and he stated, in response to questions by the court, that he preferred not to have an attorney, although he was able to employ one. The court offered to appoint ari attorney to represent him, hut he declined the offer. No point is raised here as to the absence of counsel, because it is apparent that the right to have the assistance of counsel for his defense was intelligently waived by the accused. He is, however, represented by a competent attorney on this appeal.
The United States Attorney, on cross-examination in the court below, put before the jury the only defense that was available to the defendant. He claimed exemption as a minister of religion under Section 5(d) of the above-cited Act, 50 U.S.C.A.Appendix, § 305(d). The court below charged the jury fully and fairly upon the law as announced m Estep v. United States, 327 U.S. 114, 66 S.Ct. 423. No exception was taken to the charge by either side. The decisive question before us is whether there was sufficient evidence to support the verdict of guilty, and we shall turn our attention to that issue.
Three witnesses testified on behalf of the Government. From their testimony and the official records produced, the following appears: The appellant was born on July 14, 1925; he registered with his local draft board on July 14, 1943, which was his 18th birthday. He was given a classification of 1-A by the appeal board. He was ordered to report for induction on July 30, 1945. No appeal was pending in his case on the date of entry of this order. He failed to report, but requested a personal appearance before the board, which request was granted. He came before the local board and was given a hearing that lasted about 15 minutes, but his classification was not changed. He then received his preinduction physical examination and was found qualified for service. He was again ordered to report for induction. This order commanded him to report on August 23, 1945. He says that he did not report because “he was not supposed to report under the law.”
At the time appellant testified in the court below, he was 20 years of age and claimed to have been a minister of Jehovah’s Witnesses since he was 11. He said he was ordained by God. He had no certificate of authority except a representative card signed by himself. There was no proof as to his means of livelihood, as to the amount of time devoted to his ministry, as to his compensation as a minister, or as to the time devoted by him to any other business or calling.
The questions before the court below were as to whether the local board had given him a fair hearing; and, if it had, whether there was a reasonable basis in fact for his classification in 1-A. The second question depends in turn upon whether there was a rational basis for the board’s finding that the registrant was neither a regular nor duly ordained minister of religion.
First, the burden of proving that he had not been given a fair hearing and was a regular or duly ordained minister of religion was upon the defendant, and he failed to meet it in any respect. The registrant did not request a hearing before the local board until after an order to report for induction had been mailed to him. His request was granted and a hearing was had, but the board was forbidden to reopen the classification after it had mailed the registrant an order to report for induction, unless the board first specifically found that there had been a change in his status resulting from circumstances over which the registrant had no control. There was no such finding by the board arid could not have been, because there was no proof of a change in his status. The appellant invoked the hearing, and is not contending that it ought not to have been granted. He is complaining that it was inadequate and unavailing. He was not affected by this hearing, either beneficially or prejudicially, and we find no merit in his contention with respect to it.
As to the second point, there was substantial evidence to support the board’s finding that the appellant was not a regular or duly ordained minister of religion. If it be conceded that the evidence would have sustained a contrary finding, nevertheless the determination of the issue was within the jurisdiction of the local board, and its decision was final unless reversed on appeal. We have seen that the appeal board sustained the local board, and no appeal was taken to the President.
Under the scheme of the selective service law, as construed by the Supreme Court, the claim for exemption is decided first by an administrative board of local citizens who are familiar with the common acceptation of ordinary words; and upon judicial revi'ew in a criminal prosecution the issues of fact are submitted to a jury who are also presumed to know the meaning of words in common use, such as “regular or duly ordained ministers of religion.” This interpretation avoids a metaphysical discussion, and puts the decision of the question as to who are ministers of religion upon a practical basis.
It appears, therefore, that both local and appeal boards, judge and jury, in administrative hearings and by judicial review, have decided against appellant the respective issues submitted to them. The latter has wholly failed to prove that either his classification or induction was void. Resolving all conflicts in the evidence, and all conflicting inferences therefrom, against the registrant, an appellate court must affirm the judgment of the district court in this case unless a fair and impartial tribunal was in reason bound to find as a fact that he was a regular or duly ordained minister of religion within the usual and ordinary meaning of those words.
After an examination of the entire record, we find no reversible error therein, and the judgment appealed from is affirmed.
54 Stat. 894, Sec. 11, 50 U.S.C.A. Appendix, § 311
“Q. Let me ask you this question. Who ordained you? Who ordained you as a minister? A. We are ordained by God.
“Q. What is your certificate of authority or degree or whatever else you have to show you are an ordained minister? A. I have my representative card, but I haven't got it in my possession at present.
“Q. What does it state? A. That we are ordained ministers.
“Q. By whose authority is that issued? A. It is issued by God.
“Q. Your God issued you that card? A. According to the Scriptures.
“Q. Who signed that card? A. I signed it. It is issued by the Watch Tower Bible & Tract Society.
“Q. You signed your own card delegating yourself as a minister? A. It has to be signed to show I am not an impostor.
“Q. You signed that card yourself stating you were a minister? A. I stated that at the bottom of it.
“Q. How long have you had such a card as an ordained minister? A. I have had it for a number of years.
“Q. Have you had it since yon were eleven? A. Yes, sir.
“Q. What kind of preaching did you do at eleven? A. Evangelical preaching.” (Testimony of appellant on cross-examination, p. 83 of transcript.)
Harris v. Ross, 5 Cir., 146 F.2d 355.
Section 626.2 of Selective Service Regulations.
See 50 U.S.C.A.Appendix, § 305(d), as follows: “Regular or • duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act”
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CADICK MILLING CO. v. HAUCK MILLING CO.
Court of Appeals of District of Columbia.
Submitted March 16, 1927.
Decided April 4, 1927.
No. 1934.
Trade-marks and trade-names and unfair competition <©=>93(3) — Unsupported testimony, of two> men regarding events occurring more than 60 years previously held insufficient to establish priority in use of trade-mark.
Unsupported! testimony of two old men as to events occurring more than 60 years previously held insufficient to establish priority in use of word “Snowflake” as trade-mark for flour.
Appeal from Decision of Commissioner of Patents.
Trade-mark interference proceeding between the Cadick Milling Company and the Hauek Milling Company. From a decision of the Commissioner of Patents, awarding priority to the latter, the former appeals. Affirmed.
Jas. Atkins, of Washington, D. C., for appellant.
H. A. Toulmin and H. A. Toulmin, Jr., both of Dayton, Ohio, for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
ROBB, Associate Justice.
Appeal from a decision of the Commissioner of Patents in a trade-mark interference proceeding, awarding priority of adoption and use of the word “Snowflake,” as a trade-mark for wheat flour, to the Hauek Milling Company, appellee here.
The Hauek Milling Company has conclusively established adoption and use of this mark since 1866. Supplementing the oral testimony, it produced contemporaneous documentary evidence of a convincing character. This documentary evidence, which includes a sales book kept when the business was founded by appellee’s predecessor in title, is not challenged.
Appellant relies solely upon the testimony of two witnesses to establish an earlier date of adoption and use of this mark. One of these witnesses, about 90 years of age when he testified, stated that he was bom and always lived at Grandview, Ind., and remembered the erection of a flour mill there by a Mr. Wilbem. Asked when that was, he replied : “I think it was in 1858; possibly about that time.” He had never worked in the mill. He then was asked what kinds of flour the mill sold, and stated: “Well, I used the flour. I bought what they called Snow Flake put up in cotton sacks, mostly in barrels. Before that they retailed in cotton sacks here in the country, 50 pounds to a sack.” He was also asked, “When did you begin to buy this flour?” and his answer was: “Soon as they made it. I couldn’t give any date. I think in the fall of ’58.' I couldn’t give the day of the month.” He subsequently stated that the mill was run by Mr. Wilbem until his death. Asked when that was, he replied: “That was in 1882 or ’83. I don’t remember the date.” On cross-examination, he again was asked whether the mill made any other brands of flour, and answered: “I think they did, but I can’t remember, for I didn’t use it.”
Appellant’s other witness, Henry Riley, was 70 years of age when he testified, and also a resident of Grandview, having moved there in 1860. He testified that he went to work in the Wilbem mill in 1864, and that the mill then was making several brands of flour, including . “Snow Flake.” He was connected with the mill until 1883, the date when he thought the sale to Cadick took place.
Appellant introduced documentary evidence of sales from 1900 to the date when the testimony was. taken, but there was no attempt either to introduce such evidence as to sales prior to that date or to account for the failure to do so. The evidence shows that the original mill was standing, and that, for aught that appeared, the original Wilbern books were in existence and available.
We agree with the Commissioner that the unsupported testimony of these two old men, as to events occurring more than 60 years previously, is not sufficient to establish priority. Gaines & Co. v. Rock Spring Distilling Co. (C. C. A.) 226 F. 531, 544; American Stove Co. v. Detroit Stove Works, 31 App. D. C. 304; Barbed Wire Patent Case, 143 U. S. 275, 12 S. Ct. 443, 450, 36 L. Ed. 154; Eibel Co. v. Paper Co., 261 U. S. 45, 60, 43 S. Ct. 322, 67 L. Ed. 523. In the Gaines Case,, the court said of the testimony of witnesses as to prior use of the mark involved:
“There is considerable volume of this testimony, but it consists almost wholly of unaided recollections of dates 40 years old, and it is that class of testimony which, by decisions familiar in patent cases, the Supreme Court has refused to accept. True, there is in a, trade-mark case no initial presumption of validity to be overcome; but the principles for determining the evidential value of testimony cannot differ according to the subject-matter of the case.”
The decision is right and is affirmed.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_adminrev
|
N
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
Procio Rivero PILAPIL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 270-69.
United States Court of Appeals, Tenth Circuit.
March 20, 1970.
Rehearing Denied April 27, 1970.
John A. Kintzele, Denver, Colo., for petitioner.
Leonard W. D. Campbell, Denver, Colo. (James L. Treece, U. S. Atty., and Gordon L. Allott, Jr., Asst. U. S. Atty., Denver, Colo., with him on the brief) for respondent.
Before HICKEY and HOLLOWAY, Circuit Judges, and EUBANKS District Judge.
Sitting by designation.
HICKEY, Circuit Judge.
This case arises out of a petition to review an order of The Board of Immigration Appeals as provided for by Section 106(a) of the Naturalization and Immigration Act of 1952 (hereinafter the Act), 8 U.S.C. § 1105a as amended (1961). The Board order dismissed an appeal from the decision of a Special Inquiry Officer in a deportation proceeding which found that “after admission as a nonimmigrant [student] under Section 101(a) (15) of said act [he] failed to comply with the conditions of the nonimmigrant’s status under which he was admitted,” that he was therefore de-portable pursuant to Section 241(a) (9) of the Act, and that he was not eligible for requested permission to remain permanently as an immigrant with a worldwide quota preference. The officer also denied Pilapil’s application for voluntary departure.
Pilapil conceded his deportability under Section 241 of the Act and does not here contest this aspect of the officer’s finding. Likewise, he does not argue that the Special Inquiry Officer and the Board of Immigration Appeals abused their discretion in denying him the right of voluntary departure from the country. Instead, Pilapil has consolidated the twelve points relied on in his petition for review to the following four issues:
1. Whether petitioner had a right to counsel in the deportation hearing and whether that right was violated ?
2. What evidence of, or notice of, the conditions allegedly- not complied with must be taken at the administrative hearing or made part of the record?
3. Whether the statutory subsection [8 U.S.C. § 1251(9)] is too vague and does it involve an unconstitutional delegation?
4. Does it violate due process to prohibit a lawfully admitted “nonim-migrant” student from working without first obtaining permission to do so from the Immigration and Naturalization Service?
None of these issues were specifically raised in the hearing which was conducted pursuant to the provisions contained in 8 U.S.C. § 1252(b) and consequently are not specifically reflected in the record upon which the order is based. 8 U.S.C. § 1105a(a) (4) limits us to consideration of the administrative record in ruling on the petition. Thus, we must decide initially whether or not under the limited review statute issues not presented in the administrative record to the executive officer to whom authority has been delegated is outside the record and not reviewable by us.
At the outset it is clear that Pilapil could get judicial review of these issues by writ of habeas corpus when taken into custody pursuant to the deportation order. 8 U.S.C. § 1105a(a) (9). Foti v. Immigration and Naturalization Service, 375 U.S. 217, 231, 84 S. Ct. 306, 11 L.Ed.2d 281 (1963). It is not clear, however, that the availability of habeas corpus takes consideration of these issues beyond our reach.
The jurisdictional reach of § 1105a has been considered on three occasions by the Supreme Court. Acknowledging the statutory language “[t]he procedure * * * shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation * * * made against aliens within the United States * * * except that — ,” the court expanded the reach of the exclusive jurisdiction in the Court of Appeals to include a request made in the course of a section 242(b) deportation proceeding, 8 U.S.C. § 1252(b), for a suspension of deportation under section 244(a) (5), 8 U.S.C. § 1254(a) (5), (1&64). Foti, supra. Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) decided that the Court of Appeals also has exclusive jurisdiction to review a denial of a motion to reopen a section 242(b) proceeding. In Cheng Fan Kwok v. Immigration & Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968) it was held that the exclusive jurisdiction of the Court of Appeals was limited to orders arising from the proceedings for deportation provided in section 242(b). We are limited by these to review of questions arising from the proceedings as reflected in the administrative record.
Thus, if Pilapil were protesting the factual determination that he is deportable or the refusal to grant him the privilege of voluntary departure, our jurisdiction would be clear. In that case, the petitioner, to have the decision overturned, would have to show that the decision is without rational basis and is arbitrary, capricious or an abuse of discretion. Foti, supra.
The tenor of the issues raised by Pilapil, however, is not that the deportation order is not called for by the facts given, but rather that to deport him under the circumstances here would be unconstitutional. Recognizing that these issues could be raised in a habeas corpus proceeding, we do not feel that this precludes the court from considering them.
As was stated by the Ninth Circuit in reviewing an exercise of discretion by an immigration official, “the function of this court is limited to insuring that this discretion is not abused, and that petitioner has been afforded a full and fair hearing that comports with due process.” Antolos v. Immigration and Naturalization Service, 402 F.2d 463, 464 (9th Cir. 1968). See also, Jarecha v. Immigration and Naturalization Service, 417 F.2d 220, 225 (5th Cir. 1969), Yiannopoulos v. Robinson, 247 F.2d 655, 656-657 (7th Cir. 1957).
The facts needed to treat the issues raised by Pilapil are set out in the administrative record. Nothing in the limited jurisdictional statute is explicit in directing that only issues raised at the hearing may be raised on a petition for review. While the issues raised do not question Pilapil’s deportability under the statute, if they are well taken, the order itself would be voided. See Ferrante v. Immigration and Naturalization Service, 399 F.2d 98, 103 (6th Cir. 1968) and cases cited. Because constitutional issues are concerned and because of the outcome we reach, we hold that we are not precluded from considering the issues raised by Pilapil.
The administrative record reflects that Pilapil appeared without counsel for a deportation hearing on January 28, 1969. He was advised he had a right to counsel at his own expense and exercised the right. The hearing was postponed for the purpose of permitting him to obtain a lawyer. Approximately 30 days thereafter, on February 25, 1969, petitioner appeared with Mr. Daniel H. Schoedinger, who identified himself as follows: “I am a law student at the University of Denver. I am here on behalf of the Legal Aid Society for Mr. Pilapil.”
Section 242(b) (2) of the Act provides “the alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as he shall choose; * * It is contended by petitioner that Schoedinger did not satisfy the requirements of a “counsel” because he was not authorized to act as an attorney in a deportation hearing.
2 Colo.Rev.Stat. § 12-1-19 (1963): “Students of any law school which has been continuously in existence for at least ten years prior to the passage of this section and which maintains a legal aid dispensary where poor persons receive legal advice and services, shall when representing said dispensary and its clients and then only be authorized to appear in court as if licensed to practice.”
Pilapil argues that the foregoing provision does not qualify the law student to act as counsel in Federal Immigration proceedings. The contention may be true because deportation proceedings are administrative rather than judicial. Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082 (1939).
8 C.F.R. § 292.1(c) (1958) provides: “Accredited representatives. A person may be represented by an accredited representative of an organization described in section 1.1 (j) of this chapter.”
8 C.F.R. 1.1 (j) (1965) provides: “The term ‘representative’ means a person representing a religious, charitable, social-service, or similar organization established in the United States and recognized as such by the Board, or a person described in § 292.1(b), (d), or (h) of this chapter.” At the hearing now questioned the petitioner’s representative identified himself in the record as being there “on behalf of the Legal Aid Society.”
Legal Aid Society is “[a]n organization providing free help in legal guidance and service to persons who cannot afford a lawyer.” Random House Dictionary, p. 818 (Unabridged ed. 1966). Thus, Pilapil’s representative qualifies.
The thrust of present counsel’s complaint against “the law student” is that he permitted an admission of deportability. However, the Supreme Court in Foti, supra, 375 U.S. at 227, 84 S.Ct. at 313 footnote 13, recognized “[djeportability is conceded in about 80% of the cases.” It is therefore evident that the strategy of the petitioner's counsel in representing his client places him with the great majority of experienced representatives. The argument is without merit in view of the record made by the petitioner’s legal aid counsel, and in view of the fact that Pilapil himself when testifying conceded the elements of deportability.
The specifics of the order to show cause answer the second issue above set forth. In the order, Pilapil is identified as a native and citizen of the Philippines, not a citizen or national of the United States. Violation of section 241(a) (9) of the Immigration and Naturalization Act is charged, “in that after admission as a nonimmigrant under section 101(a) (15) of said act you failed to comply with the conditions of the nonimmigrant status under which you were admitted. You have been employed without permission as a busboy for the Cherry Creek Inn, Denver, Colorado, as of October 29, 1968, at $1.25 an hour.” After the foregoing had been read to petitioner in the presence of his representative, he replied, “I think I understand. Q. You think so? A. Yes.” This, together with the documentary evidence contained in the record, is convincing that evidence and actual notice of the conditions are a part of the record under review. Therefore the second contention is without merit.
It is next claimed that the section under which the charge in the order to show cause is alleged is vague and involves an unconstitutional delegation.
This claim is premised on the presumption that the statute as it relates to deportation is penal and therefore the criminal standards should be applied. A deportation proceeding is not a criminal prosecution. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S. Ct. 512, 96 L.Ed. 586 (1952). The assertion was reiterated and confirmed in Woodly v. Immigration Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).
Fed.R.Civ.P. 12(e) provides a remedy for vague or uncertain pleading. If the order to show cause presented a question of the condition that had been violated, a more definite or precise statement could have been obtained. We can conceive of no more definite and precise allegation in the order than that set forth above that petitioner had been employed without obtaining permission, a condition to continued status as a nonimmi-grant student.
The delegation of authority is also questioned. 8 U.S.C. § 1184(a) provides in part: “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations proscribe, including * * The regulations, particularly 8 C.F.R. § 214.2(f) (3) which deals with special requirements for the admission of students, spell out the conditions that a student alien must maintain to continue in the nonimmigrant alien status granted at the time of admission. The record is replete with requests to allow employment made by petitioner and denied by the Director. These are convincing that petitioner was aware of these conditions and the loss of status effected by the breach of them. “The rule as to a definite standard of action is not so strict in cases of the delegation of legislative power to executive boards and officers.” Mahler v. Eby, 264 U.S. 32, 41, 44 S.Ct. 283, 287, 68 L.Ed. 549 (1924).
“The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, ‘with such opportunity for judicial review of their action as congress may see fit to authorize or permit.’ ” Carlson v. Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 532, 96 L.Ed. 547. Cf. Jarecha v. Immigration and Naturalization Service, 417 F.2d 220 (5th Cir. 1969).
The delegation is not constitutionally proscribed.
The final contention urged is that alien petitioner had a constitutional right to work without authorization. The authorities cited by petitioner concern immigrants lawfully residing in the United States. These cases are the key to the contention. Petitioner admits he is a nonimmigrant with alien status for the sole purpose of being a student in the United States admitted subject to specific conditions.
Before this limited status was granted to respondent, he had no rights under the Constitution, laws or government of the United States. As a citizen and national of another country his rights were established by the alien law peculiar to his native domicile. The limited status given him as an alien student had some specific conditions attached. One was that he had sufficient money to insure that he would not become a public charge nor be required to enter into the labor market of this country. He agreed to these conditions to obtain the privilege accorded the limited status. He was not coerced to forego rights he otherwise would have had. He acquired only the limited status established by the conditions. 8 U.S.C. § 1251(a) provides :
“Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who * * * (9) was admitted as a nonim-migrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 1258 of this title, or to comply with the conditions of any such status
In addition, 8 C.F.R. § 214.1(a) provides, in relation to maintenance of non-immigrant status, that:
“Every nonimmigrant alien applicant for admission or extension of stay in the United States shall * * * agree that he will abide by all the terms and conditions of his admission or extension, and that he will depart at the expiration of the period of his admission or extension or on abandonment of his authorized nonimmigrant status. * * * ”
Therefore no rights under the Constitution of the United States relative to equal opportunity of employment are involved. Wei v. Robinson, 246 F.2d 739 (7th Cir.), cert. denied, 355 U.S. 879, 78 S.Ct. 144, 2 L.Ed.2d 109 (1957).
Affirmed.
. 8 U.S.C. § 1105a provides: “The procedure described by, and all the provisions of sections 1031-1042 of Title 5, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or comparable provisions of any prior Act, except that * *
. 8 U.S.C. § 1105a(a) (4) provides: “except as provided in clause (B) of paragraph (5) of this subsection, the petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General’s findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive
. 8 U.S.C. § 1105a(a) (9) provides: “any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.”
. 8 U.S.C. § 1251(9) provides: “* * * was admitted as a nonimmigrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 1258 of this title, or to comply with the conditions of any such status
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_circuit
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Charles SCHOONOVER, Appellee, v. NATIONAL CABLE COMMUNICATIONS CORPORATION, a foreign corporation, Appellant.
No. 85-1708.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 31, 1985.
Decided Feb. 20, 1986.
John Wesley Hall, Jr., Little Rock, Ark., for appellant.
William Gary Holt, Little Rock, Ark., for appellee.
Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
PER CURIAM.
National Cable Communications Corporation (NCC) appeals from an order entered in the United States District Court for the Eastern District of Arkansas denying its motion for judgment notwithstanding the verdict or new trial. This case is a result of a December 2, 1982 auto accident in which a truck driven by Joe Ferrell struck from the rear a car driven by Charles Schoonover. Schoonover brought this negligence action against NCC on the theory of respondeat superior. The jury returned a verdict for Schoonover in the amount of $43,500.00 compensation for his injuries as well as interest and costs. We affirm.
On appeal, NCC challenges submission of the following instruction:
National Cable Communications Corporation asserts that Joe D. Ferrell was an independent contractor for whose conduct it is not responsible, instead of an employee for whose conduct it would be responsible.
Since National Cable Communications Corporation admits having employed Joe D. Ferrell in some capacity, National Cable Communications Corporation has the burden of proving that Joe D. Ferrell was an independent contractor.
NCC argues that the instruction improperly allocated the burden of proof. The instruction is based on Arkansas Model Jury Instruction 209. Under Arkansas law,
when it is shown that the person causing the injury was at the time rendering a service for the defendant and being paid for that service, and the facts presented are as consistent with the master-servant relationship as with the independent contractor relationship, then the burden is on the one asserting the independence of the contractor to show the true relationship of the parties.
Phillips Coop. Gin Co. v. Toll, 228 Ark. 891, 893, 311 S.W.2d 171, 172 (1958). See also Rubly v. Arkansas Louisiana Gas Co., 219 Ark. 912, 914, 245 S.W.2d 401, 402 (1952); St. Louis, I.M. & S. Ry. v. Davenport, 80 Ark. 244, 245, 96 S.W. 994 (1906).
Ferrell was a cable installer for NCC. Without objection Schoonover testified that Ferrell had said at the scene of the accident that he was an employee of NCC and that he was transporting cable for the company. A former NCC cable installer testified that he was trained by NCC and NCC gave him daily instructions. He also testified that a sign on his truck and a shirt he wore had NCC’s name on them. NCC purchased workers’ compensation insurance for its installers and provided Ferrell with a W-2 form. By virtue of this evidence, Schoonover satisfied his initial burden and the jury instruction properly reflected NCC’s burden to go forward and prove that Ferrell was an independent contractor.
Relatedly NCC argues that insufficient evidence existed for the jury’s finding that Ferrell was its employee. The district court held that the jury could reasonably conclude that Ferrell was not an independent contractor and denied NCC’s motion for judgment notwithstanding the verdict on the issue. The standards for granting a judgment notwithstanding the verdict are the same under federal and Arkansas law. Compare Brown v. Missouri Pacific R.R., 703 F.2d 1050,1052 (8th Cir.1983) with Crail v. Northwestern National Ins. Co., 282 Ark. 175, 176, 666 S.W.2d 706, 707 (1984). After viewing the evidence in a light most favorable to Schoonover, we find that substantial evidence supported the jury’s verdict and the district court properly denied NCC’s motion. As indicated, there was evidence that Ferrell had said at the scene of the accident that he was employed by NCC and was transporting cable for the company. Considering in addition testimony given by the former NCC cable installer and by the President of NCC regarding the nature of NCC’s relationship with its workers, the jury reasonably could have concluded that Ferrell was an employee of NCC.
No reversible error appearing, the judgment of the district court is affirmed.
. The Honorable Elsijane T. Roy, United States District Judge, Eastern and Western Districts of Arkansas.
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_state
|
26
|
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".
INTERCO INCORPORATED, Appellant, v. NATIONAL SURETY CORPORATION; Federal Insurance Company, Appellees.
No. 89-1607.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 13, 1989.
Decided April 13, 1990.
Lynn Chipperfield, St. Louis, Mo., for appellant.
Robyn Griefzu Fox, Charles E. Reis, IV, St. Louis, Mo., for appellees.
Before ARNOLD and MAGILL, Circuit Judges, and HEANEY, Senior Circuit Judge.
MAGILL, Circuit Judge.
Appellant, Interco Incorporated (Interco), brought a declaratory judgment action to determine the liability of second- and third-tier excess liability carriers as a result of the insolvency of a first-tier excess carrier. Appellee, National Surety Corporation (National), moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted, and Interco moved for summary judgment, pursuant to Fed.R.Civ.P. 56, against National. The district court found that neither National nor Federal Insurance Company (Federal) was obligated to pay any loss within the policy limits of the insolvent first-tier excess carrier and granted National’s Rule 12(b)(6) motion to dismiss after converting it, pursuant to Fed.R.Civ.P. 12(b)(6), into a summary judgment motion. Interco’s motion for summary judgment was denied. Finally, the district court granted summary judgment sua sponte and entered judgment in favor of Federal. We affirm.
I. FACTS
In 1984 Interco maintained $100 million in blanket excess public liability insurance coverage spread among three carriers. Mission Insurance Company (Mission), the first-tier excess liability carrier, became insolvent on February 24, 1987. Mission would have been liable for $450,841 in excess liability incurred by Interco in 1987. Interco requested that the district court interpret the operative language in the second-tier excess liability policy (the National policy) and the third-tier excess liability policy (the Federal policy) to determine whether “drop down” was triggered by the insolvency of Mission.
A. The National Policy Language
The National policy provided $40 million in excess coverage “[t]o indemnify the Insured for the Insured’s ultimate net loss in excess of the insurance afforded under the Blanket Excess Liability or ‘Umbrella’ policies specified in Item 7 of the Declarations (the Mission policy), hereafter called underlying insurance,” for an annual minimum premium of $12,000. Blanket Excess Liability Policy, dated March 8, 1984, between Interco and National, Insuring Agreement 1, as amended (emphasis and parenthetical added) (hereinafter referred to as the National coverage clause). The scope of coverage was limited under the terms of the policy, in that
[t]he Company shall be liable only for the limit of liability stated in Item 3 of the Declarations ($40 million) in excess of the limit or limits of liability of the applicable underlying insurance policy or policies (Item 4: $30 million) all as stated in the declarations of this policy.... provided, however, in the event of reduction or exhaustion of the applicable aggregate limit or [sic] limits of liability under said underlying policy or policies solely by reason of losses paid thereunder on account of occurrences during this policy period, this policy shall in the event of reduction, apply as excess of the reduced limit of liability thereunder.
Id. at Insuring Agreement 2, as amended (emphasis and parentheticals added) (hereinafter referred to as the National limit of liability clause). In addition, Condition 1 of the National policy, entitled “Maintenance of Primary Insurance,” provided in pertinent part that Interco, the insured, warranted that it would maintain the scheduled underlying insurance
... except for reduction of aggregate limits solely as a result of payment of claims arising out of occurrences during this policy period. If such underlying insurance is not maintained in full effect by the Insured or if there is any change in the scope of coverage under any underlying insurance, the insurance afforded by this policy shall apply in the same manner as though such underlying policies had been so maintained and unchanged.
Id. at Conditions 1 (emphasis added) (hereinafter referred to as the National maintenance clause).
B. The Federal Policy Language
The Federal policy provided $30 million in third-tier excess liability coverage and provided that:
In consideration of the payment of the required premium [$7,500] and subject to all the terms of this policy, the Company agrees to pay on behalf of the insured LOSS resulting from any occurrence insured by the terms and provisions of the First UNDERLYING INSURANCE policy scheduled in Item 6 of the Declarations [the Mission policy] (except for the Limits of Liability and defense provisions, if any). The insurance afforded by this policy shall apply only in excess of and after all UNDERLYING INSURANCE [the National policy] (as scheduled in Item 6 of the Declarations) has been exhausted.
Excess Liability Policy, dated March 6, 1984, between Interco and Federal, Policy Provisions, Insuring Agreement 1 (emphasis and brackets added) (hereinafter referred to as the Federal coverage clause). The Federal policy explicitly provided for “drop down”
[i]n the event of reduction or exhaustion of the aggregate limit or limits designated in the underlying policy or policies solely by payment of losses in respect to (accidents) or (occurrences) during the period of such underlying policy or policies, it is hereby understood and agreed that such insurance as is afforded by this policy shall apply in excess of the reduced underlying limit or, if such limit is exhausted, shall apply as underlying insurance, notwithstanding anything to the contrary in the terms and conditions of this policy.
Id. at Endorsement 3 (emphasis added) (hereinafter referred to as the Federal endorsement clause). Like the National policy, the Federal policy included a maintenance of underlying insurance clause which provided that:
[T]he Insured agrees that the First UNDERLYING INSURANCE policy, and other UNDERLYING INSURANCE following the terms and provisions of the First UNDERLYING INSURANCE policy (except for limit of liability and defense provisions, if any), shall be maintained in full effect during the currency of this policy except for any reduction of the aggregate limit or limits contained therein solely by payment of claims in respect of occurrences happening during the period of this policy. The failure of the Insured to comply with the foregoing shall not invalidate this policy but in the event of such failure the Company shall only be liable to the same extent as if the Insured had complied with this condition.
Id. at Policy Provisions, Maintenance of Underlying Insurance 5 (hereinafter referred to as the Federal maintenance clause).
II. DISCUSSION
Interco requested that the district court interpret the National and Federal policy language to ascertain the potential obligations of its second- and third-tier excess liability carriers as a result of the insolvency of its first-tier excess liability carrier. State law is controlling regarding the rules for construction of insurance contracts. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Insurance contracts must be construed to afford plain meaning to unambiguous language and read ambiguous terms against the insurer. Fremont Indem. v. Lawton-Byrne-Bruner Ins. Agency Co., 701 S.W.2d 737 (Mo.App.1985). Under Missouri law, an allegedly ambiguous phrase must be considered in the context of the policy as a whole. Nixon v. Life Investors Ins. Co., 675 S.W.2d 676 (Mo.App.1984). Ambiguity exists in an insurance contract if duplicity, indistinctness or uncertainty of meaning is evident. Id. For example, if there is doubt or uncertainty regarding the meaning of policy language and the language is fairly susceptible to two interpretations, then the language is ambiguous.
A. National Policy Coverage
Interco takes issue on appeal with the district court’s conclusion that the National policy language in the coverage clause, “in excess of the insurance afforded ...” (under the Mission policy) (emphasis added), was unambiguous as a matter of law. Interco contends that the policy language, specifically the word “afforded,” is susceptible to two reasonable interpretations. Interco believes the clause could be fairly and reasonably interpreted to cover insolvency because the use of the term “afforded” could indicate an agreement by National to pay in excess of insurance payments actually furnished. Interco theorizes that since Mission was insolvent, it was incapable of making payments to satisfy its excess liability. Therefore, Mission “afforded” zero insurance and National should drop down and incur liability for any excess liability incurred by Mission.
In United States Fire Ins. Co. v. Coleman, 754 S.W.2d 941 (Mo.App.1988), the Missouri court of appeals considered the following coverage clause:
[T]he company’s liability shall be only for the ultimate net loss in excess of the insured’s retained limit defined as ...
(a) the total of the applicable limits of the underlying policies listed in Schedule A hereof, and the applicable limits of any other insurance collectible by the insured; ...
and concluded that “collectible” could only reasonably be interpreted to modify “any other insurance,” and not “the underlying policies” indicating a drop down obligation. The National coverage clause exhibited even less of a potential for ambiguity. There is no indication that “afforded” could reasonably mean anything but “covered.”
Interco attempts to distinguish Coleman by classifying it as a case where coverage was restricted to amounts in excess of specific dollar amounts. Appellant cites the fact that the National and Federal policies indicate no amount certain as a minimum threshold for coverage. However, the National clause required indemnification for losses “in excess of the insurance afforded” under specific umbrella policies incorporated by reference. In addition, the limit of liability clause tied coverage to the specific underlying limits of the Mission policy. Finally, the “not recoverable” or analogous language, like that considered in Coleman, was omitted. Therefore, no specific intent existed to provide for coverage in the event of the insolvency of an underlying insurer.
There is a difference between the fact of coverage and the extent of coverage. Garmany v. Mission Ins. Co., 785 F.2d 941 (11th Cir.1986). Excess coverage is liability that attaches only after a predetermined amount of primary coverage is exhausted. Ordinarily, excess insurers are not deemed to have provided drop down coverage in the event of an underlying insurer’s insolvency. Highlands Ins. Co. v. Gerber Prods. Co., 702 F.Supp. 109 (D.Md.1988). Therefore, we must examine the triggering language in the excess policies to determine whether the excess insurer could reasonably be said to have insured against the insolvency of the underlying insurer.
If an excess insurance policy requires the excess insurer to indemnify the insured for losses in excess of the amount specified in an underlying policy, the insolvency of the underlying insurer should not create a lower minimum threshold triggering liability on the part of the excess insurer. In Continental Marble & Granite v. Canal Ins. Co., 785 F.2d 1258 (5th Cir.1986), the court of appeals held that the insolvency of the primary insurer did not render the primary insurance “inapplicable.”
Construing the National policy to require indemnification would essentially make the policy a guaranty of the solvency of Mission. Excess policies are intended to provide low cost coverage for catastrophic losses beyond the bounds of ordinary primary limits, and the insurer must be able to ascertain the point at which its liability will attach in order to evaluate the insurable risk and its cost of coverage. Fried v. North River Ins. Co., 710 F.2d 1022 (4th Cir.1983). We should not construe a policy to subject the insurer to unforeseeable and variable risks. Therefore, the National coverage clause should not be read to create an obligation to pay losses within the policy limits of the insolvent underlying insurer.
Appellant interprets Insuring Agreement 2, which indicates that underlying insurance must be “exhausted,” to require that underlying coverage be unavailable for payment for any reason whatsoever. This interpretation is contrary to the plain meaning of the National limit of liability clause. The clause provides for drop down in the event of exhaustion “solely by reason of losses paid.” The limit of liability clause must be read in conjunction with the National maintenance clause which precludes drop down in other instances. An instance of insolvency would be governed by the maintenance clause. It is clear that the parties intended “exhaustion” to mean payment and not insolvency. Therefore, the insolvency of an underlying carrier like Mission does not constitute exhaustion of underlying insurance within the meaning of the National policy triggering drop down.
A federal district court in Maryland has considered the issue of whether second-tier excess insurers were required to drop down when the first-tier excess insurer became insolvent. Highlands, 702 F.Supp. 109. The Highlands court interpreted four standard second-tier excess liability policies and granted summary judgment to the second-tier excess insurers because (1) the policies specifically limited liability to situations where losses exceeded a sum certain, (2) the maintenance provisions directly tied exhaustion to the triggering limit, and (3) the limit of liability provisions clearly indicated that excess liability would apply only in addition to the limits of the underlying insurance and addressed reduction or exhaustion by expressly referring to “losses paid thereunder.” The Highlands court considered the same language that Interco requested the district court to interpret. We believe the analysis employed by the Highlands court in interpreting each policy as a whole to determine potential ambiguity was sound. When we interpret the National policy as a whole, we are compelled to conclude that the district court did not err in finding that the policy was unambiguous as a matter of law.
B. Federal Policy Coverage
The Federal coverage clause states that “insurance afforded by this policy shall apply only in excess of and after all UNDERLYING INSURANCE ... has been exhausted” (emphasis added). The Federal endorsement clause indicates that Federal coverage would only be triggered by the exhaustion of underlying insurance through the payment of claims. A similar clause was interpreted by the Seventh Circuit to mean that an excess insurer will only drop down “when exhaustion occurs by reason of losses paid under the policy.” Zurich Ins. Co. v. Heil Co., 815 F.2d 1122, 1126 (7th Cir.1987) (citing Mission Nat’l. Ins. Co. v. Duke Transp. Co., 792 F.2d 550, 553 (5th Cir.1986)).
Further analysis involving the Federal maintenance clause leaves no question that drop down was precluded. The clause provides that if Interco failed to maintain underlying insurance, by reason other than payment of claims, the excess insurers would be liable to the same extent as if the underlying insurance had been maintained. Read as a whole, the Federal policy prevented drop down to cover a reduced limit by reason of insolvency of the underlying insurer.
C. Summary Judgment Sua Sponte
Appellant argues on appeal that the district court’s sua sponte grant of summary judgment in favor of Federal was improper. Interco claims that the lack of notice, analysis, briefing or argument regarding the language of the Federal policy precluded a grant of summary judgment in the absence of a motion by a party. Citing differences in policy language between the National and Federal policies, Interco contends that the Federal policy presented separate issues for interpretation.
A federal district court may grant summary judgment, pursuant to Fed.R.Civ.P. 56, sua sponte, provided that the party against whom judgment will be entered was given sufficient advance notice and an adequate opportunity to demonstrate why summary judgment should not be granted. 10A C.A. Wright, A.R. Miller & M.K. Kane, Federal Practice and Procedure § 2720, p. 27 (2d ed. 1983). The granting of summary judgment sua sponte is consistent with the expeditious disposition of cases, a primary objective of Rule 56.
Federal correctly contends that the district court properly granted summary judgment. The issue on which judgment was granted, that no genuine issue of material fact as to an excess liability insurer’s obligation to drop down and afford coverage provided by an insolvent underlying insurer existed, was presented and argued by In-terco. Interco brought the original action requesting declaratory relief from the district court. In addition, in response to National’s motion to dismiss, Interco alternatively moved for summary judgment against National. In its motion, Interco asserted that no genuine issue of material fact existed and that the only issue was the interpretation of policy language, a question of law for the court. The district court reasonably applied this assertion to Inter-co’s claim against Federal and properly granted summary judgment sua sponte in favor of Federal.
Federal also asserts that Interco had no basis for a claim after summary judgment was granted in favor of National, and therefore the district court’s grant of summary judgment sua sponte in favor of Federal was proper. See Union Nat’l Bank of Little Rock v. F.N.M.A., 860 F.2d 847 (8th Cir.1988). Any obligation on the part of Federal to drop down would be contingent upon the finding of such liability on the part of National. Therefore, the district court was correct in granting summary judgment on a claim dependency theory.
We have consistently required strict compliance with the Rule 56 motion, opportunity for service of opposing affidavits, and hearing requirements. See, e.g., Williams v. City of St. Louis, 783 F.2d 114 (8th Cir.1986); Denton v. Mr. Swiss of Missouri, Inc., 564 F.2d 236 (8th Cir.1977); Twin City Fed. Savs. & Loan Ass’n v. Transamerica Ins. Co., 491 F.2d 1122 (8th Cir.1974). Our concern in the above-mentioned cases was a district court’s tendency to engage in issue determination rather than issue identification, when granting summary judgment sua sponte. However, in the instant case there was no genuine issue of material fact as to Federal’s potential drop down obligation because summary judgment was granted to National from whom Federal’s liability would have been derived. In granting summary judgment in favor of Federal, the district court did not posit an issue and proceed to determine it, but rather properly concluded that no genuine issue of material fact existed.
CONCLUSION
We believe the district court properly found that the National second-tier and the Federal third-tier excess liability policies were unambiguous as a matter of law in precluding drop down coverage in the event of the insolvency of Mission, the first-tier excess liability carrier. No genuine issue of material fact existed regarding coverage. Therefore, we affirm the district court’s granting of summary judgment in favor of National pursuant to motion and Federal sua sponte.
. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.
. Interco’s insurance carriers were as follows:
Tier Insurance Premium Coverage
Primary $500,000
1 Mission $27,000 $30
2 National $12,000 $40 million
3 Federal $ 7,500 $30 million
.Interco settled a lawsuit for $779,797, and recovered $500,000 from its primary carrier. The remaining $279,797 was payable by Mission as Interco's first-tier excess liability carrier. On June 19, 1987, Interco obtained an unrelated judgment against Mission for $147,639, payable under the first-tier excess liability policy. On or about May 1, 1987, Interco paid a judgment of $23,405 recoverable under the Mission policy.
. See, e.g., Transco Exploration Co. v. Pacific Employers Ins. Co., 869 F.2d 862 (5th Cir.1989); Molina v. United States Fire Ins. Co., 574 F.2d 1176 (4th Cir.1978); Zurich Ins. Co. v. Heil Co., 815 F.2d 1122 (7th Cir.1987); Rapid City Regional Hosp., Inc. v. South Dakota Ins. Guar. Ass'n, 436 N.W.2d 565 (S.D.1989); Seaway Port Auth. of Duluth v. Midland Ins. Co., 430 N.W.2d 242 (Minn.Ct.App.1988).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_appel1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Franklin M. MASSEY, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
No. 11131.
United States Court of Appeals Fourth Circuit.
Argued May 30, 1967.
Decided June 1, 1967.
Franklin W. Kern, Charleston, W. Va., for appellant.
Jack H. Weiner, Attorney, Department of Justice (Barefoot Sanders, Asst. Atty. Gen., Kathryn H. Baldwin, Attorney, Department of Justice, and Milton J. Ferguson, U. S. Atty., on brief), for ap-pellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and WINTER, Circuit Judges.
PER CURIAM.
The order settling the fee of the lawyer in this social security case is vacated and the cause remanded for further consideration in light of Redden v. Celebrezze, 4 Cir,, 370 F.2d 373, and McKittrick v. Gardner, 4 Cir., 378 F.2d 872 (decided May 30, 1967).
Vacated and remanded.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
CITY OF CHICAGO v. JOSEPH.
Nos. 6246, 6247.
Circuit Court of Appeals, Seventh Circuit.
March 7, 1938.
Barnet Hodes, of Chicago, Ill. (Joseph F. Grossman and J. Herzl Segal, both of Chicago, Ill., of counsel), for City of Chicago.
Emmett J. McCarthy, Robert F. Carey, and Robert R. Hanley, all of Chicago, Ill., for Harry Joseph, receiver.
Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
Writ of certiorari denied 58 S.Ct. 1049, 82 L.Ed. —.
LINDLEY, District Judge.
The defendant seeks to reverse a judgment of the District Court rendered upon plaintiff’s complaint, after denial of a motion to strike, defendant having abided by the motion.
The averments of the complaint are substantially as follows: Plaintiff was appointed receiver of the West Side-Atlas-National Bank of Chicago when it closed on October 8, 1931. On April 13, 1931, defendant deposited $160,000 in the bank and, in order to secure the deposit, the bank and certain individuals as sureties executed and delivered to defendant a bond in the sum of $330,000 containing, among others, a recital relied upon by defendant, as follows : “ * * * said surety has deposited with the Comptroller of the City of Chicago-bonds of the face value of -— Dollars, as collateral security for the amount of such deposit.” Simultaneously certain persons, at that time officers of the bank and purporting to act in its behalf, delivered to defendant as collateral security anticipation warrant certificates of the City of Chicago and of the Sanitary District of Chicago, of the face value of $155,000 and bonds of the Sanitary District of Chicago, of the face value of $6,-000. These securities, “as defendant well knew, were property and assets of the bank,” which neither it nor its officers and agents were authorized by law to pledge to secure deposits. The delivery thereof was wholly beyond the legal corporate powers of the bank. On October 30, 1931, following the closing of the bank, defendant sold at private sale the securities realizing $154,070. In the administration of the bank’s affairs, dividends had been declared, as a result of which, after crediting to defendant its proportionate amount thereof and deducting the same from the $154,070 realized by defendant from the sale of securities, there remained due plaintiff $77,-375.61, for which judgment was prayed with interest at the rate of 5 per cent, from April 2, 1936, the date of demand.
• Defendant’s motion to strike asserted that the complaint was insufficient, because the securities were by the bond impliedly warranted to be the property of the sureties and because plaintiff is, by reason of the recital mentioned, estopped from claiming that the securities were those of the bank. The parties stipulated that upon the hearing the court should consider that at the time the bond was given there were in full force and effect in the City of Chicago certain ordinances which provided that a bank might be designated as a city depository upon filing a joint indemnifying bond of the depository and a personal surety of one or more persons, such surety to deposit as collateral security therefor the bonds of governmental agencies.
The court overruled the motion. Defendant elected to abide by its motion, and the court entered judgment in the sum of $77,375.61, but denied the prayer for interest. ' Defendant has appealed from the judgment against it and.the plaintiff from the judgment denying interest.
Under Marion v. Sneeden, 291 U.S. 262, 54 S.Ct. 421, 78 L.Ed. 787; Texas & Pac. R. Co. v. Pottorff, 291 U.S. 245, 54 S.Ct. 416, 78 L.Ed. 777; Sneeden v. City of Marion, 7 Cir., 64 F.2d 721; Granzow v. Village of Lyons, 7 Cir., 89 F.2d 83, 85, if we are permitted to accept the averment that the securities were those of the bank and that defendant was so advised, the pledge was invalid, and, as we said, in the last mentioned case, “being void the transaction could not be confirmed, ratified, enforced or rendered enforceable by the application of any doctrine of estoppel or otherwise. California Bank v. Kennedy, 167 U.S. 362, 17 S.Ct. 831, 42 L.Ed. 198; McCormick v. Market [Nat.] Bank, 165 U. S. 538, 17 S.Ct. 433, 41 L.Ed. 817; Central Transportation Co. v. Pullman’s Palace-Car Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55. This is because, not merely that the bank ought, not to make the contract, but that it could not legally make it. Ratification is impossible if there is no power to contract. Central Transportation Co. v. Pullman’s Palace-Car Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55. And knowledge of the lack of existence of authority is conclusively presumed. McCormick v. Market Bank, 165 U.S. 538, 17 S.Ct. 433, 41 L.Ed. 817.” And as the Supreme Court observed, in Texas & Pac. R. Co. v. Pottorff, supra, the illegal result . of such pledge may not be achieved by circumvention.
Consequently the sole question upon defendant’s appeal is whether an estoppel was created, by the language of the bond, to deny that the securities were those of the sureties and to assert that they were in fact those of the bank. It is undoubtedly the law that, if a recital in a bond is definite, specific, and clear, it may not be denied, and knowledge of the obligee that it is untrue is immaterial, for one may not deny his solemn affirmation of a fact upon which another has relied. But, if the recital is not of definite and clear character, an estoppel does not result, for it is essential to the creation of such a bar to assert the truth that it appear that the parties understood and accepted an unambiguous statement of fact. Such is not the case here.
In the first place, the recital relied upon is part of a provision in a printed blank which has not been filled. There is no recital that the securities actually pledged have been deposited or that any specific securities have been deposited. There is merely the incomplete recital that bonds of the “face value of - dollars” have been deposited by the '“surety” and the averments of the complaint, which must be accepted as true, show, that of the securities deposited $155,000 were not bonds but were anticipation warrants and that only $6,000 were bonds. Furthermore, there was no recital that the bonds were the property of the sureties or that anything was done by the sureties other than deposit “-bonds.” There were sureties upon the bond but only a single surety is included in the recital. The bond provides that upon default and sale defendant shall deliver to the principal any surplus of the proceeds of the sale “and the remaining unsold collateral bonds deposited by said principal, if any,” provided, however, that the surety shall return its receipt for the bonds.
Defendant contends that these facts compel a finding that the plaintiff is es-topped to deny that $160,000 worth of securities mentioned in the complaint -were the property of the surety, even though defendant knew the contrary was true. We do not believe that the recital can be so construed or justifies such a conclusion. It is not sufficiently clear, explicit, and definite. To work an estoppel, a recital must clearly, with particularity, beyond doubt and without ambiguity, affirm or deny some present or past fact or admit some liability definitely stated. It must be certain to every intent and cannot be taken by argument or inference; and, if the fact he not directly or precisely affirmed or recited, it shall not he an estoppel. Before an admission or recital can have such an effect, it must be so certain as to admit of no other conclusion. Courts are not permitted to indulge in supposition or to draw inferences from the language employed. Zimmler v. San Luis Water Co., 57 Cal. 221; Calkins v. Copley, 29 Minn. 471, 13 N.W. 904; Bigelow on Estoppel, 6th Ed., p. 399; Kerns v. Brockway, 96 Ill.App. 273; Independent School Dist. v. Stone, 106 U.S. 183, 1 S.Ct. 84, 27 L.Ed. 90; 21 C.J. 1099; Royal A. B. Mills v. Graves, 38 Ill. 455, 87 Am.Dec. 314; Claflin v. B. & A. Ry. Co., 157 Mass. 489, 32 N.E. 659, 20 L.R.A. 638; Wallace et al. v. McClung et al., 4 Cir., 74 F. 376; 21 C.J. p. 1090 § 69, p. 1091 § 72; Farmers’ Bank & Trust Co. et al. v. Southern Granite Co., 96 S.C. 106, 79 S.E. 985.
The District Court found that in view of Conway v. City of Chicago, 237 Ill. 128, 86 N.E. 619, it could allow to plaintiff no interest. That case holds that, where money is wrongfully obtained or unlawfully or wrongfully withheld, a city is held for interest to the same extent as a private person. The applicable statute is SmithHurd’s Rev.Stat. of Ill.1935, § 2, c. 74, which provides that creditors shall receive interest at 5 per cent, per annum “for all moneys after they become due * * * on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; * * * on money received to the use of another and obtained- without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” The court found the instant demand governed by the latter clause and concluded there had been no unreasonable delay.
We have seen that the sale of securities by defendant was a conversion of the bank’s property. It was the sale without right, of securities wrongfully pledged. This, defendant was bound to know. Consequently, when it converted the same to its own use, it became liable to plaintiff for the conversion. Plaintiff, by its action in assumpsit, waived the tort, but it did not thereby necessarily waive its right for interest. There having been a wrongful conversion of the securities and withholding of the proceeds after demand, the city became liable for the interest upon the sum withheld. This is clearly within the statute as interpreted by the Supreme Court of Illinois. Thus, in Leigh v. American Brake-Beam Co., 205 Ill. 147, 68 N.E. 713, it was held that, where a contract is ultra vires and one receives money under it which in equity and good conscience belongs to another and which it ought to pay over, it is liable in an action for money had and received, with interest after demand. See, also, Brennan v. Gallagher, 199 Ill. 207, 65 N.E. 227; United States Brewing Co. v. Dolese & S. Co., 282 Ill. 588, 118 N.E. 1006, and Conway v. City of Chicago, 237 Ill. 128, 86 N.E. 619. When the city wrongfully retained the property of plaintiff and converted it into money, it committed a wrongful act and is chargeable with interest from the time of demand.
The jüdgment is reversed, with directions to the District Court to enter one for the same amount with interest at 5 per cent, from the date of demand and the costs in that court. Plaintiff will recover costs in this court on its appeal and also on the appeal of defendant.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_counsel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
MARTIN v. HIATT, Warden.
No. 12666.
United States Court of Appeals Fifth Circuit.
May 9, 1949.
Rehearing Denied May 25, 1949.
Joe Freels Martin, of Atlanta, Ga., in prop. per.
Walter G. Cooper, of Atlanta, Ga., for amicus curiae Robt. Clayton St. Clair.
J. Ellis Mundy, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.
Before HOLMES, McCORD, and WALLER, Circuit Judges.
WALLER, Circuit Judge.
This is another of the more than 1500 petitions for habeas corpus that have been filed in recent years in the Atlanta Division of the United States District Court for the Northern District of Georgia, wherein release from the custody of 'the United States Penitentiary at Atlanta has been sought
The petitioner here, who was sentenced to imprisonment for three years for violation of the National Motor Vehicle Theft Act, Title 18, U.S.C., Sec. 408 [now §§ 2311-2313], by the United State's District Court for the Eastern District of Kentucky, alleges that he was illegally held in custody without arraignment or bail from May 7 to May 21, 1948, contrary to the Fifth and Fourteenth Amendments of the Federal Constitution; that between these dates petitioner was subjected to repeated and protracted questioning by members of the Kentucky State Highway Patrol and of the Federal Bureau of Investigation, during which “petitioner was threatened and coerced by use of reference to his past record and threatened’ reprisal against a you'ng lady in company of petitioner at the time of his arrest”; that he was advised that if he would sign a confession, the young lady in question would be released and he would be given an early trial rather than having to wait until the October term of the Court; that petitioner took notice of thi-s advice and having the welfare of the young lady in mind, as well as the threats of irrelevant matters, and being ignorant and untutored and without the advice of counsel or friends, he agreed to, and did, sign a confession, waive indictment, and plead guilty, in consequence of which he was sentenced. In short, he alleges violation of due process in being held without bail or arraignment between May 7 and May 21, 1948, and in being intimidated into signing a statement while being so held for such period.
The writ issued and upon final hearing the petitioner’s application was denied and he was remanded to the custody of the respondent because of the failure of the petitioner to comply with Sec. 2255 of Title 28 U.S.C.A., which reads in part as follows:
Ҥ 2255. Federal custody; remedies on motion attacking sentence
“A prisoner in custody under sentence of a court of Che United States claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
“A motion for such relief -may be made ■at any time.”
* * * * * *
“An application for a writ of 'habeas-corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to-the court which sentenced him, or that such court has denied 'him relief, unless it also appears that the remedy by motion is-inadequate o-r ineffective to test the legality of his detention.”
Petitioner, -appealing here, asserts that Sec. 2255 is in violation of Article 1, Sec. 9, Clause 2, of the Federal Constitution,, which provides that:
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Concededly the great writ of habeas corpus has not been, and could not be, suspended by Congress in the absence of a rebellion or invasion, and the sole question presented to us is whether o-r not Sec. 2255 is tantamount to a suspension of the writ.
The great writ is of such -antiquity that its origin is unknown, but from its inception as a writ designed to put people in jail rather than to get them out its status-has been far from static.
No attempt will be made here to trace its development through the ages, but it is interesting to note that since the First Judiciary Act of 1789 the statutes have provided that judges of the Supreme and District Courts of the United States should have the right to issue writs of habeas corpus, etc., “which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”
From time immemorial it was thought that trial courts, State and Federal, had been invested with the primary duty of safeguarding the constitutional rights of defendants, and from the time of the enactment of the statute of 1789 until the present the courts have held in at least half a thousand cases that the writ of (habeas corpus cannot be used as a substitute for a writ of error or an appeal.
But for some reason, not readily discernible, there seems to 'have grown up the notion that final judgments in criminal trials in the lower courts should be attended by no favorable presumptions, and that only in the higher courts of the United States does constitutional justice really abide. In drawing to such courts the power through 'habeas corpus to supervise the “intrinsic fairness” of criminal trials in both State and Federal courts, there has been not only a disinclination to accord full faith and credit to final judgments of trial courts of competent jurisdiction but also a readiness to grant permission to petitioners, admittedly guilty of serious offenses, to dispute, orally, collaterally, and as often as they chose, the solemn records and final judgments of the courts.
It is not subject to argument that the great writ cannot be suspended in times of peace, but the proposition is also undebatable that it ought not to be abused in times of war or peace. It was doubtless to these ends that Congress .passed Chap. 153, Title 28 U.S.C.A., §§ 2241 to 2255, inclusive, whereby to provide that an -attack upon a final judgment of conviction by a Federal court in a criminal case ought usually to be made first in the court that rendered such judgment, proximate to which the records, the witnesses, and the alleged despoilers of constitutional rights generally reside. It was doubtless believed that there the petitioners could get at these despoilers in frontal, rather than collateral, attacks, no more handicapped by estoppels of records or judgments than if the attacks were made in places far remote if they also alleged that the violated Constitution or “intrinsic fairness” was on their side. Then, if sudh a petitioner’s effort were an ineffective test or if he failed to succeed in the court that had cast the yoke upon him, the right of appeal would still be his; and if either or' both of these efforts should prove inadequate, then he should still have access to the great, age-old, and grossly abused writ of habeas corpus ad subjiciendum.
The right to the writ has never been absolute. The statute from 1789 until the present has required that for the writ to issue it must be “agreeable to the principles and usages of law.” The petition must be in writing and under oath. Section 454 [now § 2242], Title 28 U.S.C.A. If the petitioner be held under a judgment of a State court, a showing that he has exhausted his State remedies or that the State affords him no remedy is a condition precedent to maintaining the writ in the Federal court. If petitioner appeal's from a judgment of a court of the United States in a proceeding where the detention complained of is by virtue of process issued out of a State court, Sec 466 [now § 2253], Title 28 U.S.C.A., provides that no appeal will be allowed unless the judge of the United States court who rendered the final decision, or a judge of the appellate court, certifies that there is probable cause for the appeal.
The procedure in habeas corpus has been the subject of change by legislation down through the centuries but the intent and purpose of the writ have remained substantially unchanged. In the passage of Chapter 153, supra, Congress has not undertaken to suspend the writ but has set up procedure that is designed to supply a more appropriate remedy to those -unlawfully detained as well as to preserve the 'writ for those who are entitled to it and at the same time to protect it from abuse by those who do not deserve it, but who clamor for it incessantly. The additional remedy provided above has not ended or suspended the writ of habeas corpus although it may have lessened its abuse by placing some emphasis on the finality of final judgments against collateral attacks without limit, thereby rendering perjury less tempting to tho-se of little veracity, convenient memory, or evil purpose.
The Act in question has had the approval of the Judicial Conference of Senior Circuit Judges, the Congress of the United States, and United States District Courts in the cases of Lowe v. Humphrey, Warden, 80 F.Supp. 442, and Wong v. Vogel, 80 F.Supp. 723. Moreover, a presumption of constitutionality attends the Act. The provisions of Sec. 2255 — which are the only provisions of the chapter here under consideration — whether viewed as an additional method of testing the validity of a detention or as conditions precedent to the issuance of a writ, appear not only to he reasonable and valid but also as a highly desirable means of lessening the abuse of the writ.
The judgment of the lower Court is affirmed.
The order of the Court erroneously refers to the section as 2455 of Title 28 U.S.C.A. but the record clearly shows that the section involved was 2255 of Title 28 U.S.C.A.
Jenks, 18 Quarterly Law Review (1902), p. 64, et seq.
See 1 Stat. 81, Sec. 377, Title 28 U. S.C.A.; § 1651, Title 28 U.S.Code Annotated Judiciary and Judicial Procedure.
Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172.
Carter v. Illinois, supra.
Question: What is the nature of the counsel for the appellant?
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
MISSOURI PAC. R. CO. et al. v. BALDWIN.
No. 11796.
Circuit Court of Appeals, Eighth Circuit.
Feb. 10, 1941.
Rehearing Denied March 11, 1941.
Richard M. Ryan, of Hot Springs, Ark. (Henry Donham, of Little Rock, Ark., on the brief), for appellants.
Fred A. Isgrig, of Little Rock, Ark. (Gibson Witt and H. A. Tucker, both of Hot Springs, Ark., and John S. Gatewood, of Little Rock, Ark., on the brief), for appel-lee.
Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.
WOODROUGH, Circuit Judge.
The Missouri Pacific Railroad Company appeals from a judgment recovered by John Baldwin as father and next friend of his minor son, Jewell Baldwin, who was injured when a truck driven by one James Cox, in which Jewell was riding, was struck by a Missouri- Pacific passenger train at a grade crossing in Hot Springs, Arkansas.
The accident occurred on the-main line track in the railroad yards within the city limits, at the point where the main line track crosses Gaines Avenue. The trains coming from Little Rock proceed in a southwesterly direction into the railroad yards of Hot Springs and go on across Gaines Avenue to a switch about 190 feet beyond the avenue and then back up in a northwesterly direction to the city depot. With James Cox at the steering wheel and Jewell Baldwin sitting on the driver’s seat beside him, the truck, which had an unloaded trailer on behind, started from the home of Cox at the top of a little hill rising about forty feet higher than the railroad tracks and about two hundred and fifty or sixty feet distant from the crossing. The road they travelled down the hill was a gently curving, roughly gravelled, single car width road called Fairview Street or Adams Street, which runs into Gaines Avenue about twenty or twenty five feet before that avenue crosses the tracks. Gaines Avenue is gravelled and of two car widths. There was a sizable mud puddle in Fair-view Street just ahead of where that street runs into Gaines Avenue.
The truck and trailer came down the hill in low gear to save the brakes and came almost to a dead stop at the mudhole, then proceeded in second gear into Gaines Avenue and onto the track just ahead of the passenger train. The train struck the back end of the truck where the trailer was attached, knocking the trailer to the south and the truck to the north of the track. James Cox, the driver, was not injured, but the truck and trailer which belonged to John Baldwin, Jewell’s father, were wrecked, and Jewell received personal injuries.
He was about 17 or 18 years of age at the time of the accident and was helping James Cox to carry on the business of hauling wood. They were going to pick up a load at the time of the accident. The day was bright and sunny and the time was between 12:30 and 1 o’clock P. M. Both knew the crossing. Cox had already crossed it three times that day and Jewell lived north of the track. Both knew a passenger train was due at about that time of day, although Jewell did not know what the exact hour of the day was at the time they approached the crossing.
As they drove very slowly through the mudhole both Cox and Jewell say they looked to the right for trains, but saw none and heard no warnings, such as whistles or bells. Cox shifted into second gear and they continued past a conspicuous railroad crossing warning post and onto the tracks, Cox meanwhile looking to the left. When on the tracks they both glanced again to the right and saw No. 219, a four coach passenger train approaching in dangerous proximity to them. The engineer of the train attempted unsuccessfully to avoid collision by applying emergency air brakes and succeeded in stopping the‘train in less than its length, one coach remaining on the northeast side of the pressing and one on the crossing after the train was stopped. Cox also tried unsuccessfully to speed up to get across. There was substantial evidence that Jewell sustained injuries of a permanent nature, described by some doctors as spondylolisthesis, or slipping of the fifth spinal vertebra, and also a fracture. He also had a spina bifida, or condition where from birth the neural arch or lumen had failed to heal, and he became crippled in consequence of his injuries.
At the trial, witnesses differed as to what view of the railroad tracks was obtainable from Fairview Street over which the truck had travelled. At the crossing itself, however, there was a clear and open view of the tracks for some 1,050 feet, at least. A picture taken from a Chevrolet sedan standing fifty five feet back from the tracks on Fairview Street shows that anyone in the car at that point could plainly see all of a train for a distance exceeding 600 feet down the track. Cox and Jewell Baldwin stated that they looked for a train when they were at the mudhole, some 20' to 30 feet before they got to the crossing. At this point one witness said the view was limited to 100 feet, another said 600 feet. Other witnesses stated the view extended distances intermediate between these figures; Jewell Baldwin said that at the point where he looked he could see 400 feet along the tracks in the direction from which the train came. Having failed to see a train within that distance, he did not look again until on the tracks. The engineer and fireman stated, concerning the speed of the train, that the yard speed limit was 15 miles per hour and that the engineer had put on air brakes to slow to that speed at a wye connection, more than a thousand feet northeast of the crossing. The fireman was on the left side of the train towards the approaching truck. He saw the truck slowing down and thought it was going to stop. When the truck failed to stop and continued on, he yelled at the engineer, who applied the emergency brakes and stopped the train in some % of its length in spite of the fact its air pressure was low from the train’s previous slowing down. Both the engineer and the fireman testified that the engine’s bell had been ringing on pull of an automatic switch turned on as the train entered the yards. They and other witnesses testified that the whistle had been continuously tooted from a point near the passed wye intersection.
There were several grade crossings before the Gaines Avenue crossing was reached. Several witnesses for plaintiff did not attempt to estimate the rate of speed at which they observed the train to approach the crossing. One witness for plaintiff stated that the train was “coasting”. She later stated that it was going “fast”. “About how fast?”. “I couldn’t say. It was going fast enough”. Another said “It was coming in fast.” Neither gave the criterion which to her or him differentiated between what was fast, what slow. Although plaintiff alleged in his petition that the train at the time of the accident “was travelling down grade upon its own momentum and at a high, excessive and dangerous rate of speed”, his evidence failed to establish any definite rate. There was no direct evidence that the fireman was not keeping a lookout, as he said he was. The principal count of negligence which plaintiff relied on was the allegation that the train failed to give warning of its approach as required by Arkansas statute. Pope’s Digest, Laws of Arkansas, § 11135.
At the close of all the evidence the railroad company moved for directed verdict, which was denied, and the case was submitted to the jury on the theory that the Arkansas comparative negligence statute was applicable. -The jury returned a verdict for plaintiff in the amount of $5,500. The railroad company thereafter moved fór a new trial, but it did not move for judgment notwithstanding the verdict or renew its motion for a directed verdict. The motion for new trial was denied and the railroad company appeals from the judgment upon several grounds, including the ground that the evidence was not sufficient to sustain the verdict.
The grounds of negligence submitted to the jury were the alleged failure to give a signal, failure to keep a lookout, and running at a speed faster than that justified by public need and necessity. We •hink that under the law of Arkansas the issues as to the alleged failure to keep a lookout, or as to the alleged excessive speed, should not have been submitted.
In the recent case of Missouri Pac. R. Co. v. Moore, 199 Ark. 1035, 138 S.W.2d 384, where an automobile and train collided at a crossing, the fireman testified that he was keeping a lookout and gave warning to the engineer as soon as it became apparent that the automobile was in danger. The Supreme Court of Arkansas held that a jury could not disregard this undisputed evidence. In the present case we find no evidence in the record which contradicts the fireman’s statement that he was keeping a lookout and warned the engineer when it appeared the truck was not going to stop. The fireman’s testimony is consistent with other facts proven. We think that Missouri Pac. R. Co. v. Moore, supra, is controlling on this issue and that the issue of failure to keep a lookout should not have been submitted to the jury.
The issue of excessive speed stands in much the same situation, since plaintiff’s witnesses were not requested to establish either a rate of speed for the train or some criterion as to what they considered “fast.” Plaintiff’s attorneys established on cross-examination of train employees that they would be docked, or given demerits, possibly discharged, if they operated the train in violation of rules, that is, ran the train through the yards in which they were operating faster than 15 miles per hour. It was undisputed that the train’s movement required it to stop a short distance beyond the Gaines Avenue crossing and then to back up to the Hot Springs depot, arid it was the plaintiff’s theory that at the time of accident the train was coming down the track on its own momentum rather than operating under steam power. Under the circumstances, an uncertain use of the adjective “fast”, used without setting a rate of speed or statement whether the train was merely “fast” within yard rules,— which would mean travelling at the full authorized rate of 15 miles per hour,— could not overcome the definite uncontra-dicted testimony of the engineer and fireman that the train was going 15 miles an hour, especially in view of the fact that the train was close to the point where it was to stop and back up. Excessive speed was not proved by substantial evidence.
It does appear, however, that there was some evidence in the case tending to prove that there -was no warning signal given by the trainmen, although there was very strong contradiction. The briefs contain full discussion of the question whether the evidence on the whole was sufficient to take the case to the jury.
To sustain its contention that the trial court erred in refusing to direct a verdict in its favor, the railroad company has presented numerous decisions of the Supreme Court of Arkansas, including Missouri Pac. R. Co. v. Davis, 197 Ark. 830, 125 S.W.2d 785; Missouri Pac. R. Co. v. Hood, 198 Ark. 792, 131 S.W.2d 615; Missouri Pac. R. Co. v. Price, 199 Ark. 346, 133 S.W.2d 645; Jemell v. St. Louis-Southwestern Railroad Co., 178 Ark. 578, 11 S.W.2d 449; St. Louis-San Francisco Ry. Co. v. McClinton, 178 Ark. 73, 9 S.W.2d 1060; Chicago, R. I. & P. R. Co. v. Batsel, 100 Ark. 526, 140 S.W. 726; Missouri Pac. Ry. Co. v. Moore, 199 Ark. 1035, 138 S.W.2d 384. It also cites Bradley v. Missouri Pac. R. Co., 8 Cir., 288 F. 484. All of these decisions relate to railroad crossing accident cases and in our examination of them we find much to support the appellant’s contention that the evidence here is insufficient. The decisions indicate that the Arkansas court •has reached conclusions and has made declarations which would justify holding that there was no case here for the jury. On the other hand, the appellee has cited and argued from the following decisions to support his judgment: Missouri Pac. R. Co. v. Barham, 198 Ark. 158, 128 S.W.2d 353; Missouri Pac. R. Co. v. Huffman, 194 Ark. 456, 108 S.W.2d 479; Chicago, R. I. & P. R. Co. v. Thomas, 184 Ark. 457, 42 S.W.2d 762; Baldwin v. Brim, 192 Ark. 252, 91 S.W.2d 255; Missouri Pac. R. Co. v. Creekmore, 193 Ark. 722, 102 S.W.2d 553; Missouri Pac. R. Co. v. Taylor, 200 Ark. 1, 137 S.W.2d 747; Missouri Pac. R. Co. v. Eubanks, 200 Ark. 483, 139 S.W.2d 413. In these decisions, which also relate to railroad crossing accident cases, there are declarations or conclusions or both which would tend to support the judgment for the appellee.
We had occasion to examine the Arkansas railroad crossing accident cases in Kansas City Southern R. Co. v. Ray, 8 Cir., 109 F.2d 708, but on this appeal we are bound to notice additional relevant decisions of the state court handed down since the trial of this case in the federal district court. Vandenbark v. Owens-Illinois Glass Co., 61 S.Ct. 347, 85 L.Ed. -, decided January 6, 1941. Two such decisions, Crossett Lumber Co. v. Cater, Ark., 144 S.W.2d 1074, decided November 25, 1940, and Missouri Pac. R. Co. v. King, 200 Ark. 1066, 143 S.W.2d 55, decided September 30, 1940, are called to our attention. Although the facts involved in these last cases are not the same as in the case at bar, they make it clear that notwithstanding the comparative negligence statute of Arkansas, Pope’s Dig.Ark. § 11153, there can be no recovery against a railroad for negligent operation of its trains in cases where the only reasonable inference from the evidence is that the negligence of the plaintiff was the sole proximate cause of the injury, and that negligence of the railroad was not a proximate cause.
In Crossett Lumber Co. v. Cater, supra [144 S.W.2d 1076], the court said:
“Proximate cause of the injury was inattention upon the part of occupants of the car, and faulty brakes. The fireman was not negligent, after observing that the automobile was approaching at a low rate of speed, in assuming it would come to a stop before entering the crossing. We said in Blytheville, Leachville & Arkansas Southern Railway Company v. Gessell, 158 Ark. 569, 250 S.W. 881, 882: ‘The operatives of trains have the right to assume that a •traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precautions begins only when it becomes apparent that the traveler at a crossing will not do so’.
“This declaration of the law does not, of course, relieve operators of a railroad or those permissively using its facilities from exercising that degree of care imposed in a given case by statute or arising under the common law, but it is authority for the practical, common sense proposition that when those in control of a slow-moving locomotive see an automobile or other vehicle approaching a crossing, and the manner of approach in respect of speed and control is such that, in view of attending physical conditions (such as grade, relation of track to roadway, visibility, etc.) a normal person could, and a reasonably prudent person would, see the. train and stop, responsibility for disaster will not be shifted to a non-offending defendant. Missouri Pacific Railroad Co. v. Harden, 197 Ark. 899, 125 S.W.2d 466.”
In Missouri Pac. R. Co. v. King, supra [200 Ark. 1066, 143 S.W.2d 58], the court said:
“Prior to the passage of our comparative negligence statute, Section 11153, Pope’s Digest, any negligence on the part of a traveler contributing to his injury would have defeated a recovery of damages on his part; but the effect of this statute is to permit a recovery, notwithstanding the negligence of the person injured, if that negligence is of less degree than that of the operatives of the train. % ijc
“Negligence on the part of the railroad company, although it contributes to the injury, does not alone suffice. It is essential that this negligence be of a greater degree than that of the person injured.”
The application of these declarations to the evidence in this case compels the conclusion that the evidence as a whole was not sufficient to make a case for the jury. It was established so clearly that reasonable minds could not differ that the truck in which Jewell Baldwin was riding came to a stop, or nearly so, at a point from which the railroad tracks and the approaching train were in plain view; that the train remained within the scope of vision while the truck proceeded slowly in second gear onto the crossing in front of it; that the train operatives were not at fault in failing to stop the train before they did stop it, and that the negligent operation of the' truck was the sole proximate cause of the accident. The court erred in refusing to direct a verdict.
But as the only motion of the railroad company after the verdict was for a new trial, the judgment is reversed for the errors we have pointed out and the cause is
Remanded for new trial.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_appel1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America v. Pasquale FALCONE et al. Appeal of Pasquale FALCONIO in No. 73-2013. Appeal of Wally BERGER in No. 73-2109.
Nos. 73-2013, 73-2109.
United States Court of Appeals, Third Circuit.
Argued May 28, 1974.
Decided Sept. 30, 1974.
Certiorari Denied Feb. 24, 1975.
See 95 S.Ct. 1338, 1339.
See also, D.C., 364 F.Supp. 877.
Jonathan L. Goldstein, U. S. Atty., Newark, N. J., John J. Robinson, James A. Rothschild, Dept, of Justice, Washington, D. C., for appellee.
Kenneth J. McGuire, Stein, Bliabliss & Goldman, Newark, N. J., for appellant, Pasquale Falconio.
Graham Roskein, Newark, N. J., for appellant, Wally Berger.
Before ROSENN and HUNTER, Circuit Judges, and HANNUM, District Judge.
. Title 21 U.S.C. § 841.
OPINION OF THE COURT
HANNUM, District Judge.
Appellants, Pasquale Falconio and Wally Berger, were convicted in the United States District Court for the District of New Jersey on multiple counts of conspiracy to import and distribute heroin, violations of the Travel Act, and use of interstate facilities in the furtherance of these conspiracies.
The Government’s proof at trial revealed that the appellants participated in a scheme to smuggle twenty pounds of heroin into the United States from Canada. The scheme was foiled by Royal Canadian Mounted Police working in league with United States authorities.
This appeal alleges numerous grounds for reversal of the convictions below. For the sake of clarity, they can be grouped into two general categories: wiretap violations and trial errors.
I. WIRETAP VIOLATIONS
Appellants contend that damaging evidence introduced at trial and obtained through the interception of telephonic communications (wiretaps) should have been suppressed. Eight reasons are assigned for this contention: the federal wire interception statute, 18 U.S.C. §§ 2510-2520, (Title III Omnibus Crime Control and Safe Streets Act of 1968) is unconstitutional; the authorization of the application for the wiretap by the Attorney General for submission to the Court was defective; the finding of probable cause for the wiretap was insufficient; the finding of necessity for the wiretap was insufficient; the Government failed to minimize non-relevant conversations; the Government failed to secure independent authorization for a pen register; the Government failed to seal promptly the tape recordings of the wiretaps; and the Government failed to comply with the delimiting Manual for the Conduct of Electronic Surveillance promulgated by the Attorney General.
We note at the outset that this Court has held the federal wire interception statute, 18 U.S.C. §§ 2510-2520, (Title III Omnibus Crime Control and Safe Streets Act of 1968) to be constitutional: United States v. Cafero, 473 F.2d 489 (3d Cir. 1972). That holding stands. So far as the finding of necessity for the wiretap, the Government’s minimization of non-relevant conversations, and the Government’s compliance with the delimiting Manual for the Conduct of Electronic Surveillance promulgated by the Attorney General, we affirm the thoughtful and thorough opinion of the district court on these issues. The remaining issues merit discussion.
AUTHORIZATION
The appellants contend that the wiretaps in the instant case were not properly authorized since the Attorney General’s signature was affixed by Sol Lindenbaum, his Executive Assistant. 18 U.S.C. § 2516, the authorization provision, states that the Attorney General, or any Assistant Attorney General specifically designated by the Attorney General, may authorize applications for wiretaps. The recent companion cases of United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), examined this provision and set forth guidelines for what constitutes proper authorization.
In Giordano, the Court held that Title III does not permit the authorization of wiretap applications by the Attorney General’s Executive Assistant, and that evidence secured through wiretaps so authorized should be suppressed.
In Chavez, the Court held that misidentifying the Assistant Attorney General as the official authorizing the wiretap application when the Attorney General, himself, had given the approval does not run afoul of Title III, and, therefore, does not require suppression of evidence so obtained.
It is clear from a reading of these cases that the important consideration is not whose name appears on the authorization, and certainly not who signed the authorization. Rather, the important consideration is who actually granted the authorization for the wiretaps.
Turning to the instant case, Sol Lindenbaum, Executive Assistant to the Attorney General, signed the name of the then Attorney General, Richard G. Kleindienst, to the authorization for the wiretap. This act, however, was preceded by a telephone conversation between Lindenbaum and the Attorney General during which the former advised the latter of the contents of a memorandum, recommending that the authorization be granted, prepared by the Assistant Attorney General in charge of the Criminal Division, Henry Peterson. The Attorney General approved the request and directed Mr. Lindebaum to sign the Attorney General’s name to the authorization and to. inform the Assistant Attorney General of the approval. Three days later the Attorney General, himself, entered a file memorandum verifying the verbal authorization he had given to Mr. Lindenbaum.
From these facts, viewed in the light of Giordano and Chavez, we conclude that the authorization here was proper. Crucial to this conclusion is the fact that the Attorney General, fully aware of the facts of the specific case, had personally authorized the wiretap.
PROBABLE CAUSE
The appellants contend that probable cause was lacking for the issuance of the order for the wiretaps. In support of this contention, appellants submit that Berger v. New York, 388 U. S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1966) require a more vigorous degree of probable cause for a wiretap than ordinarily required for a search warrant, and that this more vigorous degree of probable cause was lacking. We reject this submission and, in addition, hold that the facts contained in the wiretap applications meet the standards for what constitutes probable cause. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
Probable cause is not a matter of degree. Although Berger and Katz call for extra vigilance in the supervision of electronic eavesdropping, neither case separates probable cause into degrees. Moreover, no special probable cause requirement can be found in the statutory scheme. 18 U.S.C. § 2518(3) (a), (b) and (d). Certainly if a higher degree of probable cause were intended, Congress would have so stated.
PEN REGISTER
The next question presented for resolution is whether a separate order authorizing the use of a pen register is required when a valid order authorizing a simultaneous wiretap has issued ? That is to say, is the authorization for a wiretap sufficient to permit the concomitant implementation of a pen register ?
In the instant case, the Government, after securing an order for a wiretap on Falconio’s telephone, installed both a tape recorder and a pen register. Separate authorization for the pen register was never obtained. Appellants contend that the use of the pen register under these circumstances requires suppression of evidence so obtained. For the reasons which follow we find this contention unpersuasive.
The threshold issue is whether use of a pen register is subject to the provisions of 18 U.S.C. § 2518 which requires authorization for the interception of wire or oral communications? “Intercept” means the “. . . aural acquisition of the contents of any wire or oral communication. . . ” 18 U.S.C. § 2510(4). An “aural acquisition” by definition engages the sense of hearing. Since a pen register does not possess this sense, it is not an interception within the meaning of 18 U.S.C. § 2510(4), and therefore not subject to the authorization provisions of 18 U.S.C. § 2518. United States v. Giordano, 416 U.S. 553, 94 S.Ct. 1845 (1974) (dissenting opinion); United States v. Focarile, 340 F.Supp. 1033 (D.Md.1972), aff’d sub. nom., United States v. Giordano, 469 F.2d 522 (4th Cir. 1972) rev’d on other grounds, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Escandar, 319 F.Supp. 295 (S.D.Fla.1970), rev’d on other grounds, 472 F.2d 973 (5th Cir. 1973).
The next issue to be determined is whether 47 U.S.C. § 605 prohibits the use of a pen register. For two reasons we hold that it does not. First, § 605 was amended in 1968 to proscribe the interception of “any radio communication”, this amendment clearly omits telephonic communications. Second, the legislative history of the 1968 Amendment to § 605 reveals that Congress intended to shift all control of electronic surveillance operations to 18 U.S.C. §§ 2510-2520. 1968 U.S.Code Cong. & Admin.News, p. 2178. Thus, having concluded that § 605 does not now control the use of pen registers, we set to one side those cases antecedent to the 1968 amendment which held otherwise and upon which the appellants mistakenly rely. We do not conclude from this analysis that no authorization for the use of pen registers is required. We only conclude that pen registers are neither prohibited by § 605 nor require authorization under § 2518.
Nor must we decide, under the facts of this case, what authorization is necessary when a pen register is used alone. However, when used in conjunction with a wiretap, we conclude that an order permitting interception under Title III for a wiretap provides sufficient authorization for the use of a pen register, and no separate order for the latter is necessary. The reasoning for this conclusion is based on an analysis of the operation of a pen register.
A telephone number is only a symbol for a series of electrical impulses. When a telephone number is dialed from a wiretapped phone, the pen register and the tape recorder are activated simultaneously. Both record the dialing of the phone. And both can be used to determine the telephone number dialed. The pen register records the electrical impulse and automatically translates it back into the number dialed. The tape recorder records the aural manifestation of the electrical impulse which also discloses, if played at a slower speed and examined by an expert, the telephone number dialed. A pen register functions to facilitate the decipherment of the number dialed. It is a mechanical refinement which translates into a different “language” that which has been monitored already. Simply stated, the pen register avoids a mechanical step; it translates automatically and avoids the interpreter.
We hold for the aforementioned reasons that where a valid wiretap order has issued, use of a pen register is comprehended within the terms of that order.
DELAY IN SEALING THE TAPES
Appellants finally contend that the wiretap evidence should not have been admitted because it was not promptly sealed as required by 18 U.S.C. § 2518(8) (a). This section provides that “. . . [¡Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions . . .”.
There is no doubt but that the tapes were not sealed in accordance with the statute. However, it does not follow therefrom that the evidence obtained must be suppressed. As in United States v. Giordano, supra, and United States v. Chavez, supra, we must look to the statutory scheme to determine if Congress has provided that suppression is required for this procedural error.
18 U.S.C. § 2515 provides that wiretap evidence may not be introduced at a criminal trial, “if the disclosure of that information would be in violation of this chapter.” Those violations requiring suppression are provided for in 18 U.S.C. § 2518(10)(a):
“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
“(iii) the interception was not made in conformity with the order of authorization or approval.”
Paragraphs (ii) and- (iii) are inapplicable because the sealing requirement is statutory and not part of the order. Therefore, if suppression is required, we must find it in paragraph (i). United States v. Giordano, supra, holds that paragraph (i) includes every “failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” 416 U.S. at 527, 94 S.Ct. at 1832.
Viewed in this framework, the issue becomes whether the sealing requirement limits the use of interception procedures ?
The legislative history reveals that the sealing requirement was intended to insure the integrity of the tapes after interception. (Emphasis supplied). 1968 U.S.Code Cong. & Adm. News, p. 2193-2194. The sealing requirement is in nowise “to limit the use of interception procedures ...” Rather, its function is to maintain the integrity of the tapes for evidentiary purposes. We conclude, therefrom, that the sealing requirement is not to limit the use of interception procedures, and, that failure to seal promptly does not render the communication “unlawfully intercepted,” and therefore such failure does not necessitate suppression under the statute.
A second consideration strongly supports this conclusion. 18 U.S.C. § 2518 (8) (a) provides that the “presence of [a] seal . . or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use ... of any [wiretap] . . . ” By this provision Congress has provided for an alternative to the sealing requirement. It would follow from such an alternative that failure to seal the tapes promptly is not such a violation that requires suppression as a matter of law.
In United States v. Poeta, 455 F.2d 117 (2d Cir. 1972), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972), police confusion over the applicable law was held a sufficient explanation to overcome the absence of a seal. Here administrative delay may also be a satisfactory explanation. The crucial factor, however, is the integrity of the tapes themselves. This fact must be proved to the trial judge. In the case at bar, after an extensive pre-trial hearing and evidence at trial the court below made a specific finding of fact that the tapes had not been tampered with.
Therefore, all we hold is that where the trial court has found that the integrity of the tapes is pure, a delay in sealing the tapes is not, in and of itself, sufficient reason to suppress the evidence obtained therefrom.
We hasten to add that this holding, of course, does not deprecate the importance of the sealing requirement. Certainly, it should be complied with in all respects. As this case so aptly demonstrates, compliance would have avoided considerable uncertainty and delay.
II. TRIAL ERRORS
In addition to the alleged violations in the gathering of evidence, appellants alleged that the trial court committed reversible error at trial and at sentencing.
At trial, testimony was admitted to the effect that appellant, Falconio, had been previously involved in a separate heroin transaction not the subject matter of this case. Appellant contends that this testimony should not have been admitted since it was evidence only of prior criminal conduct.
Although inadmissible to show a mere propensity or disposition to commit crime, evidence of other crimes is admissible to show one’s intent, plan, scheme, design, or modus operandi. United States v. Todaro, 448 F.2d 64 (3d Cir. 1971), cert. denied, 404 U.S. 1040, 92 S.Ct. 924, 30 L.Ed.2d 732 (1972); United States v. Carter, 401 F.2d 748 (3d Cir. 1968), cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 797 (1968); United States v. Stirone, 262 F.2d 571 (3d Cir. 1958), rev’d on other grounds, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Without commenting in detail, the evidence complained of showed an intent on the part of Falconio to sell heroin to one of his co-conspirators, and, further, showed a preexisting business relationship between the two, evidence highly probative of the existence of a conspiracy. Moreover, since the evidence indicated that Falconio owed this co-conspirator $30,000.00 from the previous narcotics transaction, the evidence was probative to show motive for the subsequent narcotics transaction for which he was prosecuted. Thus, there being sufficient grounds for the admission of this evidence, there is no error.
Next appellants allege that the trial court erred when it failed to grant their motion for a mistrial following a question propounded by the Government Attorney and directed to one of its witnesses. Specifically, the Government Attorney asked of the witness, a chemist who was called to testify about the size and quality of average street sales of heroin, whether the narcotic substances in this case were purchased by undercover agents acting for the City of Newark in a drive on narcotics. It is contended that the reference to “drive on narcotics” aroused the passion of the jury against the appellants because of the narcotic problems existent in the Newark area.
Objection to this question was sustained and the jury was instructed to disregard it. In addition, the court made inquiry to determine whether any jurors had been prejudiced by this reference. A review of the record makes clear that an appropriate instruction was given and a mistrial was not required in these circumstances.
Finally, appellant, Falconio, contends that the trial judge should have recused himself before sentencing. In this regard, he filed an affidavit pursuant to 28 U.S.C. § 144.
For a motion to recuse to be granted, the affidavit must allege bias or prejudice from a source other than the Court proceedings in the case, United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761 (1967). As we said in United States v. Thompson, “The facts [in the affidavit] must show the bias is personal, as opposed to judicial, in nature.” Appellant did not allege in his affidavit that the trial judge’s bias was extrajudicial. An allegation of “judicial” bias is not grounds for a motion to recuse. United States v. Thompson, 483 F.2d 527, 529 (3d Cir. 1973). The motion was properly denied.
The Court finds the remaining contentions in this appeal without merit. The Court also finds that the trial was fair and free of error. Thus, the convictions of the appellants, Falconio and Berger, must be and are affirmed.
. Also known as Falcone, Falcon.
. Title 21 U.S.C. § 952.
. Title 18 U.S.C. § 1952.
. Title 21 U.S.C. § 843(b).
. Evidence used at trial was obtained from wiretaps of two telephones. One telephone was registered to Paul Falcon, appellant. This wiretap commenced on August 28, 1972 and continued until October 16, 1972. The Order for this wiretap, as well as extensions thereof, was signed by The Honorable Frederick B. Lacey of the District Court of New Jersey. The other telephone was registered in Philadelphia, Pennsylvania to Michael De Vito. This wiretap commenced on November 30, 1972 and continued until December 18, 1972. The Honorable John Morgan Davis of the United States District Court for the Eastern District of Pennsylvania executed the Order authorizing this wiretap as well as the subsequent extension on December 15, 1972. Thereafter, appellants filed a motion to suppress the evidence secured through the use of these wiretaps which resulted in a twelve day suppression hearing commencing on August 27, 1973. The trial court denied the motion, 364 F.Supp. 877 (D.N.J.1973), and the trial proceeded.
. AVe include in this reason appellants’ additional reason that the Government failed to advise the District Court of the existence of an informer at the center of the alleged conspiracy.
. Accord, United States v. Whitaker, 474 F.2d 1246 (3d Cir. 1973).
. United States v. Falcone. 364 F.Supp. 877 (D.N.J.1973).
. 416 U.S. at 530, 94 S.Ct. at 1834.
. 416 U.S. at 568, 94 S.Ct. at 1853.
. See, United States v. Chavez, 568 U.S. at 416, 94 S.Ct. at 1853 and in particular Footnote 2.
. Appendix to tire Brief of Appellant, Paul Falconio, at A-l (hereinafter referred to as Appendix).
. Appendix at A-3.
. Appendix at A-3.
. Brief of Appellees at 16.
. E. g., “The need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially great in the case of eavesdropping.” Berger v. New York, 388 U.S. 41, 56, 87 S.Ct. 1873, 1882, 18 L.Ed.2d 1040.
. “A pen register is a mechanical device attached to a given telephone line and usually installed at a central telephone facility. It records on a paper tape all numbers dialed from that line. It does not identify the telephone numbers from which incoming calls originate, nor does it reveal whether any call, either incoming or outgoing, was completed. Its use does not involve any monitoring of telephone conversations.” United States v. Giordano, 416 U.S. at 549, 94 S.Ct. at 1842 (dissenting opinion).
. The Oxford English Dictionary defines “aural” as : (1) Of or pertaining to the organ of hearing; (2) Received or perceived by the ear.
. United States v. Dote, 371 F.2d 176 (7th Cir. 1966); United States v. Caplan, 255 F.Supp. 805 (E.D.Mich.1966).
. Clearly, the permissibility of its use by law enforcement authorities would depend “entirely on compliance with the constitutional requirements of the Fourth Amendment.” United States v. Giordano, 416 U.S. 553, 94 S.Ct. at 1845 (dissenting opinion).
. See, United States v. King, 478 F.2d 494 (9th Cir. 1973).
. United States v. King, 335 F.Supp. 523, 549 (S.D.Cal.1971).
. Id.
. Nor is the analysis affected by a “touch tone” pdione and use of a pen register equipped with a touch tone decoder. In this regard, see, United States v. Focarile, 340 F.Supp. 1033, 1039 (D.Md.1972).
. Brief of Appellees at page 27.
. “ [In G-iordano] ... we did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communcations ‘unlawful.’ To establish such a rule would be at odds with the statute itself.” United States v. Chavez, 416 U.S. at 574, 94 S.Ct. at 1856.
. Transcript at 770.
. Transcript at 1686 to 1695, especially 1695.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_district
|
F
|
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".
Lee RATNER and John Zuro, Individually and d/b/a The Grant Company, Plaintiffs-Appellees, v. SIOUX NATURAL GAS CORPORATION and Sioux Pipeline Corporation, Defendants-Appellants.
No. 82-2309.
United States Court of Appeals, Fifth Circuit.
Nov. 14, 1983.
Hayden Burns, Eliot Shavin, Houston, Tex., for Sioux Gas & Pipeline & Powers.
William E. Wright, Peter B. Camp, Houston, Tex., for plaintiffs-appellees.
Before WISDOM, TATE and GAR-WOOD, Circuit Judges.
WISDOM, Circuit Judge.
This appeal is from a judgment for $18 million in favor of Grant Company against the defendants, Sioux Natural Gas Corporation, Sioux Pipeline Corporation, Elliott. H. Powers, and J.F. Freel. Shortly before this Court heard oral argument on the case, the individual appellants — Powers and Freel— reached a settlement with Grant, which the district court approved after a hearing. We remand for a determination whether the settlement has mooted the entire appeal.
I.
In November • 1974, Lee Ratner, John Zuro, and their partnership, the Grant Company, entered into a net-profits-interest agreement with Elliott Powers, J.F. Freel, and Sioux Natural Gas. In accordance with the agreement, Grant transferred to Sioux certain oil and gas leases and associated property. Powers and Freel promised to manage and develop the properties, to drop a pending lawsuit against the plaintiffs, to assume $2.4 million of the plaintiffs’ indebtedness to others, and to pay Grant 25 percent of all profit realized from the properties after certain debts and expenses had been satisfied.
Powers and Freel created and incorporated Sioux Natural Gas to take title to the Grant properties. Powers and Freel were the directors, officers, and sole shareholders of Sioux; Sioux was simply the “nominee” of Powers and Freel. Sioux Pipeline, a spin-off of Sioux organized after the closing of the agreement, was subject to the same degree of control that Powers and Freel exercised over Sioux.
The plaintiffs filed a complaint with the United States District Court for the Southern District of Texas on November 25,1977. Alleging that the defendants had fraudulently induced the plaintiffs to enter into the 1974 agreement, the complaint charged the defendants with violating federal and state securities law. After a nine-day trial, a jury found the defendants guilty of common law fraud and of fraud under the Texas Securities Act and section 12(2) of the Securities Act of 1933. The jury awarded the plaintiffs $11.9 million in actual damages and $1.1 million in punitive damages. The district judge entered judgment upon the jury’s verdict, holding the four defendants jointly and severally liable to Grant in the amount of $18,385,307.80. The defendants appealed.
On May 6,1983, less than two weeks before this Court heard argument on the appeal, Powers and Freel settled with Grant. The settlement provides that Grant will receive all of the common stock of Rapada Corporation — the parent of Sioux, Sioux Pipeline, and several other companies — along with other assets of the individual defendants. In return, Powers and Freel are discharged from liability on the judgment. The settlement agreement states that the “judgment shall remain in full force and effect against ... Sioux Natural Gas Corporation and Sioux Pipeline Corporation”.
II.
The settlement between Grant and the individual defendants requires this Court to address the effect of settlements on the liability of nonsettling joint tortfeasors. We hold that, in the circumstances that this case presents, the value of the property received by Grant through the settlement should be credited against the entire judgment before the liability of Sioux and Sioux Pipeline is assessed. If the value of the property received exceeds the total judgment, the settlement has extinguished the liability of the nonsettling defendants and has rendered this case moot. Accordingly, we remand for a determination of the value of the property received.
Texas tort law recognizes a “one satisfaction” rule: “[A]n injured party is entitled to but one satisfaction for a single injury, so that an amount received in settlement from one alleged tortfeasor must be applied as a credit reducing the amount to be recovered against other defendants.” Gill v. United States, 5 Cir.1970, 429 F.2d 1072, 1079. This rule has also been applied to cases arising under the federal securities laws, and therefore governs in this appeal.
The “one satisfaction” rule does not, however, completely dispose of the question addressed here, for several cases have held the rule inapplicable to punitive damages. See Howard v. General Cable Corp., 5 Cir.1982, 674 F.2d 351, 358; Hill v. Budget Finance & Thrift Co., Tex.Civ.App.1964, 383 S.W.2d 79, 81-82, no writ; see also Dobson v. Camden, 5 Cir.1983, 705 F.2d 759, 772 (Higginbotham, J., dissenting) (citing Hill), reheard en banc, Sept. 13, 1983 (No. 82-2066). These cases are not directly relevant. In both Howard and Hill, the decision not to apply the rule to punitive damages turned on the fact that such damages were not common to all of the defendants. Hill concerned a situation in which the plaintiff sought compensatory damages against four groups of defendants for their joint actions, as well as punitive damages against each defendant for its separate actions. Three of the defendant groups settled with the plaintiff; the remaining defendant went to trial and was adjudged liable for compensatory — but not punitive — damages. The appellate court held that the amount of the settlement that represented punitive damages could not be used to offset the compensatory damages awarded against the nonsettling defendant, because “credit to be claimed by a joint tort-feasor is confined to those damages for which all tort-feasors are equally liable”. 383 S.W.2d at 81. The factual context and holding of Howard are essentially the same as those in Hill. See Howard, 674 F.2d at 358.
In the instant case the district court held all four defendants jointly and severally liable for both actual and punitive damages. The court did not apportion liability among the defendants, and liability for all of the defendants was premised upon the same actions — the actions and alleged misrepresentations of Powers and Freel. Hill and Howard are therefore not directly relevant here.
Nevertheless, the rationale of the “one satisfaction” rule is usually inapposite to punitive damages. The purpose of the rule is to ensure that a plaintiff receives no more than full compensation for his loss. See, e.g., Dobson v. Camden, 5 Cir.1983, 705 F.2d 759, 766, reheard en banc, Sept. 13, 1983 (No. 82-2066); Snowden v. D.C. Transit Systems, D.C.Cir.1971, 454 F.2d 1047, 1048; Harrington v. Texaco, Inc., 5 Cir. 1964, 339 F.2d 814, 820, cert. denied, 1965, 381 U.S. 915, 85 S.Ct. 1538, 14 L.Ed.2d 435. A plaintiff awarded punitive damages has been given the right to receive more than “one satisfaction”. The award of punitive damages is unconcerned with compensation; it is intended to punish the wrongdoer and to deter the commission of similar offenses in the future. E.g., City of Newport v. Fact Concerts, Inc., 1981, 453 U.S. 247, 266-67, 101 S.Ct. 2748, 2759-60, 69 L.Ed.2d 616; Maxey v. Freightliner Corp., 5 Cir.1982, 665 F.2d 1367, 1378; 17 Tex.Jur.2d Damages § 174, at 240-41 (1960). To further the objectives of punishment and deterrence, it is more important that a defendant pay for his wrongdoing than that the plaintiff receive the payment. Dobson v. Camden, 705 F.2d at 769-70.
But punitive damages are a harsh remedy, not favored by the law, and should be allowed only when they can properly promote the dual purposes of punishment and deterrence. See Anglo-American Genera] Agents v. Jackson National Life Insurance Co., N.D.Cal.1979, 83 F.R.D. 41, 45-46, holding that the amount of an award of punitive damages should not exceed the level necessary properly to punish and deter. In the instant case, the nonsettling defendants are two corporations wholly owned and completely controlled at all relevant times by the two settling defendants. The settling defendants created the nonsettling defendants for the sole purpose of receiving the property allegedly taken by fraud. The liability of the nonsettling defendants for actual and punitive damages resulted solely from the actions and alleged misrepresentations of the settling defendants. In these circumstances, if the settlement satisfies both the compensatory and the punitive damages awarded to Grant, the goals of punishment and deterrence have been served adequately. Allowing Grant to recover punitive damages from Sioux and Sioux Pipeline — regardless of whether the settlement has satisfied this component of the judgment — would be overkill.
Moreover, because of the present financial situation of the nonsettling defendants and because the settlement has in effect vested Grant with ownership of the nonsettling defendants, further recovery by Grant against Sioux and Sioux Pipeline can have no deterrent or punitive effect on those defendants. Sioux and Sioux Pipeline are in bankruptcy. If their corporate assets are insufficient to satisfy all claims against them, upholding the validity of Grant’s claim for punitive damages would hurt the corporate defendants’ unsecured creditors, not the corporate defendants. If the corporate assets are sufficient to satisfy all claims, allowing Grant to recover would simply effect a transfer of assets between corporations owned by Ratner and Zuro. In either situation, no public purpose is furthered.
III.
The holding of this case is limited to the circumstances with which we are confronted. We do not hold that punitive damages should not be awarded against corporate defendants when liability is wholly derivative from the actions of controlling individual defendants. We recognize that the “one satisfaction” rule usually should not apply to punitive damages. Nonetheless, we find that the purposes underlying the award of punitive damages in this case will have been adequately served if the settlement is sufficient to cover the entire judgment. Accordingly, we remand for a determination of the value of the property received by Grant in its settlement with Powers and Freel.
We are mindful of the exigency created by the financial straits of the corporate defendants, and thus of the inconvenience of a remand. Commercial exigency, however, does not justify breach of the “case or controversy” requirement that delimits the jurisdiction of federal courts. We cannot decide this appeal if it has been mooted by settlement.
Because of the necessity for determining whether the ease is moot, we do not reach the merits.
The case is REMANDED for proceedings consistent with this opinion.
. The Grant Company corporation (the judgment creditor) is the successor-in-interest to the Grant Company partnership. See Plaintiffs’ Amended Complaint ¶ 2.1 (filed Dec. 29, 1980); Testimony of John Zuro, 12 Record 210. In his Order of April 2, 1981, the district judge granted the plaintiffs’ motion to substitute the Grant Company corporation as the real party in interest and to retain Ratner and Zuro as “nominal plaintiffs”.
. Testimony of J.F. Freel, 10 Record 60-61.
. Plaintiffs’ Original Complaint ¶¶ 2.6, 2.7 (filed Nov. 25, 1977); Defendants’ Original Answer and Counterclaim ¶ 6 (filed Dec. 28, 1977); Testimony of Elliott Powers, 10 Record 7-8.
. E.g., Letter from the Grant Company to Elliott H. Powers and J.F. Freel, Plaintiffs Exhibit No. 6, at 1, 4 (Nov. 25, 1974).
. See sources cited supra note 3. Sometime around 1980, the Powers-Freel corporate family underwent a reorganization in which Sioux and Sioux Pipeline became wholly owned subsidiaries of Rapada Corporation. At least through the time of trial, Powers and Freel were co-chairmen of Rapada. Until the settlement, Powers, Freel, and Freel’s son were the sole owners of Rapada. Testimony of Elliott Powers, 8 Record 57, 59, 72-73.
. Tex.Stat.Ann. arts. 581-1 to -39 (Vernon 1964 & Supp.1982).
. 15 U.S.C. § 771(2) (1982). The plaintiffs charged that the defendants also violated § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Exchange Commission Rule 1 Ob-5, 17 C.F.R. § 240.10b-5 (1983). The jury found for the defendants on the § 10(b) and rule 10b-5 allegation.
. The jury awarded punitive damages in connection with the claim of common law fraud only.
. The final judgment included $5,385,307.80 in prejudgment interest.
. Stipulation and Order Respecting Application of Plaintiff for Supplementary Aid in Collection of Judgment and Show Cause Hearing for Turnover Orders Compelling Defendants To Deliver Non-exempt Properties and Records Thereto, and Judgment Creditor[’]s Petition for Injunctive Relief To Maintain Status Quo Pending Execution, at 6 (filed June 1, 1983); see also Transcript of Settlement Hearing (May 6, 1983).
That Grant is now effectively the owner of the nonsettling defendants does not itself render this case moot. Rapada, Sioux, and Sioux Pipeline are in reorganization proceedings under chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 1101-1174 (1982), and the assignment of the Rapada common stock to Grant is subject to prior bank liens. If Grant is entitled to further recovery from Sioux and Sioux Pipeline, a resolution of the merits of this appeal will determine Grant’s priority in the reorganization proceedings.
. Such a situation is likely, even though Rapada Corporation is currently operating under chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 1101-1174(1982). According to the defendants, a conservative estimate places the value of Rapada and its subsidiaries at $82 million; the defendants assert further that possible and prospective revenue from the development of oil and gas wells owned by the Rapada corporate family totals nearly $300 million. Defendants’ Application for Stay Pending Appeal, at 4 (filed July 23, 1982).
. Accord Dobson v. Camden, 5 Cir.1983, 705 F.2d 759, 763, reheard en banc, Sept. 13, 1983 (No. 82-2066); Howard v. General Cable Corp., 5 Cir.1982, 674 F.2d 351, 358; Sweep v. Lear Jet Corp., 5 Cir.1969, 412 F.2d 457, 460 n. 14, 462 n. 18 (citing cases); T.L. James & Co. v. Statham, Tex. 1977, 558 S.W.2d 865, 868; McMillen v. Klingensmith, Tex.1971, 467 S.W.2d 193, 196-97; Bradshaw v. Baylor Univ., 1935, 126 Tex. 99, 84 S.W.2d 703, 705; General Motors Corp. v. Grizzle, Tex.App.1982, 642 S.W.2d 837, 842, writ dismissed for want of jurisdiction; Hodges, Contribution and Indemnity Among Tortfeasors, 26 Tex.L.Rev. 150, 170-71 & n. 100 (1947); see also Restatement (Second) of Torts § 885(3) (1977).
. See MacKethan v. Burrus, Cootes & Burrus, 4 Cir.1976, 545 F.2d 1388, 1390 (Wyzanski, J.), cert. denied, 1977, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85; Gould v. American-Hawaiian S.S. Co., 3 Cir.1976, 535 F.2d 761, 784 & n. 30; McLean v. Alexander, D.Del.1978, 449 F.Supp. 1251, 1267, 1271, rev’d on other grounds, 3 Cir. 1979, 599 F.2d 1190; see also Miller v. Apartments & Homes of N.J., Inc., 3 Cir.1981, 646 F.2d 101, 109-10 (adopting rule in action under 42 U.S.C. § 1983); Screen Gems-Columbia Music, Inc. v. Metlis & Lebow Corp., 2 Cir. 1972, 453 F.2d 552, 554 (adopting rule in copyright infringement action). Another panel of this Court recently rejected applying the Texas rule in a § 1983 action. Dobson v. Camden, 5 Cir.1983, 705 F.2d 759, reheard en banc, Sept. 13, 1983 (No. 82-2066). The Dobson Court based its decision on the strong policy of deterrence underlying § 1983. Id. at 764-66. Because we find the policy of deterrence inapposite to the-precise issue addressed here, Dob-son is not controlling.
. E.g., Knippen v. Ford Motor Co., D.C.Cir. 1976, 546 F.2d 993, 1002; Lee v. Southern Home Sites Corp., 5 Cir. 1970, 429 F.2d 290, 294; Garman v. New York Life Ins. Co., N.D.Ill. 1980, 501 F.Supp. 51, 53.
. On remand, the burden of proof rests with Sioux and Sioux Pipeline. See Howard v. General Cable Corp., 5 Cir.1982, 674 F.2d 351, 358; Hill v. Budget Fin. & Thrift Co., Tex.Civ.App. 1964, 383 S.W.2d 79, 82-83, no writ.
. The United States Bankruptcy Court for the Southern District of Texas has ordered that the automatic stay under 11 U.S.C. § 362 (1982) be modified to allow this appeal to proceed. The basis of the bankruptcy court’s decision is that “an expeditious resolution of this dispute is essential to the formulation of the Debtors’ Plan of Reorganization”. Agreed Order Modifying Stay Pertaining to Federal Court Appeal, In re Sioux Natural Gas Corp., Nos. 82-03640-Hl-5, 82-03642-H1-5 (Bankr.S.D.Tex. Jan. 13, 1983).
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_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.
Paul M. DAVIS, Plaintiff-Appellant, Cross-Appellee, v. A.G. EDWARDS AND SONS, INC., et al., Defendants-Appellees, Cross-Appellants. John P. DAVIS, Plaintiff-Appellant, Cross-Appellee, v. A.G. EDWARDS AND SONS, INC., et al., Defendants-Appellees, Cross-Appellants.
Nos. 86-4452, 86-4455.
United States Court of Appeals, Fifth Circuit.
July 30, 1987.
J. Ransdell Keene, Shreveport, La., for plaintiffs-appellants, cross-appellees.
Robert J. Collins, Donald L. Beckner, Baton Rouge, La., for amicus curiae (Conk-lin).
John T. Cox, Jr., R. Joseph Naus, Shreveport, La., for defendants-appellees, cross-appellants.
Before CLARK, Chief Judge, GOLDBERG and GEE, Circuit Judges.
PER CURIAM:
Dr. John P. Davis and his son, Paul M. Davis (collectively referred to as “the Davises”), appeal from an adverse summary judgment order dismissing their claims. The Davises claimed that A.G. Edwards & Sons (Edwards) and Lloyd Tiller engaged in churning of their securities account. The Davises asserted claims under § 10b of the Securities and Exchange Act of 1934, 15 U.S.C. § 78(j)(b) (Securities Act), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (RICO), and Louisiana law. Edwards and Tiller filed motions for summary judgment and for sanctions under Fed.R.Civ.P. 11, asserting that the Davises and their counsel filed these claims in bad faith.
The district court held that the statute of limitations period had expired on the Davis-es’ RICO and Securities Act claims, dismissed without prejudice their pendant state claims and rejected the Rule 11 motion of Edwards and Tiller. We affirm the district court as to the Securities Act claim and the Rule 11 motion. A recent Supreme Court decision, however, requires us to vacate the court’s decision relating to the RICO claim. Because it must further consider the RICO claim, the district court should also reconsider its dismissal of the pendant state claims.
I. Background
According to the pleadings, John and Paul Davis each opened accounts with Edwards in July 1979, investing over $300,000 in “daily accumulation funds.” The broker for these accounts was Edwards’ employee, Tiller. After the Davises’ securities portfolio had declined in value to some $65,000, the Davises ordered Edwards to close their accounts in July or August 1983. Edwards promptly and fully complied.
On September 13 and September 20, 1985, Dr. Davis and his son each filed a separate but nearly identical complaint against Edwards and Tiller, alleging that the defendants had “engaged in the manipulative and fraudulent practice of excessive and objectionable trade, i.e., churning.” The complaint stated that this churning occurred throughout 1980, 1981, 1982 and most of 1983, and that it violated the Securities Act. On October 21 and October 25, 1985, each Davis amended his complaint to assert a RICO claim and pendant state claims that alleged a breach of contract and unjust enrichment. These amended and superseding complaints also named as parties unspecified and then unknown defendants, who were supervisors of Tiller.
On December 18,1985, Edwards and Tiller filed motions for summary judgment, and on January 9, 1986, they filed motions for sanctions under Rule 11. Both motions urged that the statute of limitations had run on all of the Davises’ claims. The district court granted the motion for summary judgment, but denied the motion for sanctions. Davis v. A.G. Edwards & Sons, Inc., 635 F.Supp. 707 (W.D.La.1986). The Davises appeal the summary judgment decision, and Edwards and Tiller appeal the Rule 11 decision.
II. Securities Act Claim
We have held, and the parties agree, that the limitations period governing Securities Act claims is governed by Louisiana’s two year statute of limitations, found in La.R.S. 51:714. Dupuy v. Dupuy, 551 F.2d 1005, 1023-24 n. 31 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977). While the proper limitations period is borrowed from state law, when the period commences is governed by federal law. Vigman v. Community National Bank & Trust Co., 635 F.2d 455, 458-59 (5th Cir.1981); Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 8 (5th Cir.1967); see Rawlings v. Ray, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605 (1941).
Under federal law, the limitations period begins to run when “the aggrieved party has either knowledge of the violation or notice of facts which, in the exercise of due diligence, would have led to actual knowledge” of the violation. Vigman, 635 F.2d at 459 (citations omitted). It is plain that this requisite “knowledge ... which an aggrieved party must have for ... commencing the statute of limitations is merely that of ‘the facts forming the basis of this cause of action’ ... not that of the existence of the cause of action itself.” Id. (quoting Azalea Meats, 386 F.2d at 9) (emphasis in original).
The Davises concede that they ordered Edwards to close their accounts in August 1983. In their original and amended complaints, the Davises alleged that they closed their accounts, “as a result of Defendants’ excessive and objectionable trading practices.” Thus, the Davises in effect admit in their pleadings that, when they closed their accounts, they were cognizant of the facts upon which their Securities Act claim was predicated.
The Davises contend, however, that there is a genuine issue of material fact as to when they knew of the facts giving rise to this cause of action. In a later affidavit, Dr. Davis stated that he did not suspect Edwards, Tiller or any of Edwards’ other employees of wrongdoing until January of 1984, when Dr. Davis allegedly discovered that Tiller had “lied” to him regarding a transaction. Dr. Davis' statement in the affidavit certainly conflicts with the Davis-es’ earlier statements in their complaints.
But this factual dispute does not render summary judgment inappropriate. Irrespective of which document contains the more accurate account, the Davises are bound by the admissions in their pleadings, and thus no factual issue can be evoked by comparing their pleadings with Dr. Davis’ affidavit. “[FJactual assertions in pleadings are ... judicial admissions conclusively binding on the party that made them.” White v. ARCO/Polymers, 720 F.2d 1391, 1396 (5th Cir.1983) (citations and footnote omitted) (emphasis added). Facts that are admitted in the pleadings “are no longer at issue.” Ferguson v. Neighborhood Housing Services, Inc., 780 F.2d 549, 551 (6th Cir.1986). Therefore, as the district court found, the Davises’ knowledge of the “objectionable trading practices” in August 1983 triggered the limitations period. The Davises did not file a complaint until more than two years thereafter, and their complaint is untimely.
III. RICO State of Limitations
When Congress enacted RICO, it did not provide a statute of limitations period. The district court, thoughtfully applying the analysis required by Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), determined that the proper state analogue was contained in Louisiana’s one year limitations statute for delictual actions. La.Civ.Code 3492. Thus, because plaintiffs filed the complaint alleging a RICO violation in October 1985, and because the limitations period commenced in August 1983 (or even crediting Dr. Davis’ assertion in the affidavit, in January 1984), the district court held that the limitations period had run.
The Supreme Court, however, now instructs that all civil RICO claims are governed by the four year limitations period contained in the Clayton Act, 15 U.S.C. § 15(b). Agency Holding Corp. v. Malley-Duff & Associates, Inc., — U.S.-, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). Edwards and Tiller assert that the limitations period began to run on December 30, 1981. The superseding complaints containing the RICO claims were filed in October of 1985. Thus, even assuming arguendo the validity of Edwards’ and Tillers’ assertion, the Davises filed their RICO complaints within the required four years. Their RICO claims are timely.
IV. Rule 11 Sanctions
Edwards moved for sanctions under Rule 11, claiming that the Davises’ complaint was frivolous and aimed at obtaining a “nuisance settlement.” The district court denied their Rule 11 motion because the “prescriptive period underlying a ... RICO action is ... unsettled” and because, “although plaintiffs’ assertions are inconsistent, counsel’s advocacy of plaintiffs’ position is ... made in good faith.” 635 F.Supp. at 707. Having carefully examined the record, the arguments of counsel, and the applicable law, we readily affirm the district court’s reasoning and conclusion.
Conclusion
The district court determined that it lacked jurisdiction over the Davises’ pendant state claims, because the limitations period on their federal claims had run. Because we now hold that the RICO claim was filed in a timely fashion, the district court should reconsider the propriety of asserting pendant jurisdiction over these state claims. The decision is thus AFFIRMED in part, VACATED in part and REMANDED.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_r_fed
|
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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
FAIRFAX COUNTYWIDE CITIZENS ASSOCIATION, Gum Springs Civic Association, Springdale Civic Association, Cooktown Citizens Association, William L. and Jeanne G. Paige, Ulysses O. and Ada M. Scott, Roy and Evelyn A. Brent, Earnest W. and Margaret E. Gibson, Appellees, v. COUNTY OF FAIRFAX, VIRGINIA, Joseph Alexander, Mrs. Martha V. Pennino, John Herrity, Alan H. Magazine, Mrs. Audrey Moore, James M. Scott, Marie B. Travesky, John P. Schacochis, Warren I. Cikins, Individually and members, County of Fairfax Board of Supervisors, Appellants. FAIRFAX COUNTYWIDE CITIZENS ASSOCIATION, Gum Springs Civic Association, Springdale Civic Association, William L. and Jeanne G. Paige, Ulysses O. and Ada M. Scott, Roy and Evelyn A. Brent, Appellants, v. COUNTY OF FAIRFAX, VIRGINIA, Joseph Alexander, Mrs. Martha V. Pennino, John Herrity, Alan H. Magazine, Mrs. Audrey Moore, James M. Scott, Marie B. Travesky, John P. Schacochis, Warren I. Cikins, Individually and members, County of Fairfax Board of Supervisors, and Douglas B. Fugate, Individually, and as Virginia State Highway Commissioner, Appellees.
Nos. 77-1190, 77-1248.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1978.
Decided March 6, 1978.
Robert Lyndon Howell, Asst. County Atty., Alexandria, Va. (Frederic Lee Ruck, County Atty., Fairfax, Va., on brief), for appellants in 77-1190.
John J. Beall, Jr., Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen. of Va., Walter A. McFarlane, Deputy Atty. Gen., Richmond, Va., on brief), for appellees in 77-1248.
Allison W. Brown, Jr., Washington, D. C. (Robert M. Alexander, Arlington, Va., Jack Greenberg and James M. Nabrit, III, New York City, on brief), for appellees and cross-appellants.
Before WINTER, RUSSELL and WIDENER, Circuit Judges.
WINTER, Circuit Judge:
The County of Fairfax, Virginia (County) appeals from an order of the district court directing County to perform its remaining obligations under a 1972 settlement agreement between it and Fairfax Countywide Citizens Association (Association). Because we conclude that the district court lacked jurisdiction to issue the order, we reverse.
I.
In August 1971, several citizens associations located in Fairfax County, Virginia, and six individuals, filed suit in the district court alleging racial discrimination in the delivery of public services in violation of 42 U.S.C. §§ 1981, 1983 and the Equal Protection Clause of the Fourteenth Amendment. Specifically, plaintiffs claimed that a disproportionate number of unpaved and substandard roads in Fairfax County were located in predominantly black neighborhoods. Plaintiffs prayed a mandatory injunction compelling County to pave and upgrade the roads in question, including the construction of adequate drainage facilities, curbs, gutters and sidewalks. In addition to naming County and certain of its officials as defendants to the action, plaintiffs also joined Douglas B. Fugate, the Virginia State Highway Commissioner and chief administrator of the Virginia Highway System. Following a denial of defendants’ motions to dismiss, the case was set for trial on June 1, 1972.
On May 31,1972, following extensive pretrial discovery, plaintiffs entered into two separate settlement agreements. The first, between plaintiffs and defendant Fugate, required the Commonwealth to upgrade six streets located in black neighborhoods in Fairfax County. These streets were already part of the Virginia secondary highway system and, therefore, within the jurisdiction of the State Highway Department. The second settlement agreement, between plaintiffs and County, required County to upgrade seventy-six additional roads in black neighborhoods within a three-year period. None of these roads was, at the time of the agreement, included in the Virginia secondary highway system. County, however, promised to “make every effort to have the . . . streets, when improved, taken into the State Highway System.” If these efforts proved unsuccessful, County nonetheless recognized a “continuing responsibility to maintain these streets in a fair and equitable manner.”
After securing these agreements, plaintiffs moved for dismissal of their claims against State and County. The motion was granted and three dismissal orders, each naming different defendants, were entered on June 1, 1972. The orders each recited that on plaintiffs’ motion, and with defendants’ consent, the case was dismissed. While Associations’ later motion alleged that the settlement agreements were filed in open court (the docket entries do not so recite and the clerk’s file does not contain them), the orders themselves did not mention that the parties had entered into settlement agreements; and they neither approved nor incorporated either settlement agreement.
Thereafter, the Commonwealth substantially performed its obligations under the settlement agreement. County likewise commenced performance of its obligations and, in the ensuing three years, upgraded twenty-five roads in black neighborhoods. In 1975, after certain black residents not party to the settlement agreement obtained a permanent injunction preventing County from upgrading one of the subject roads, County reviewed its obligations and determined that the settlement agreement was, at least in part, void as contrary to state law. Following this determination, County’s Board of Supervisors passed a resolution, dated April 28, 1975, repudiating the settlement agreement.
On August 5, 1975, plaintiffs moved the district court to vacate the dismissal order of June 1, 1972. Plaintiffs did not pray reinstatement of their law suit and an opportunity to try it. Rather, they prayed enforcement of the settlement agreements and, if state law prohibited County’s performance, a declaration of the invalidity of the various statutes, regulations and administrative rulings pertaining to the Virginia State Highway System which purportedly prohibited such performance. On January 30, 1976, under authority of Rule 60(b)(6), F.R.Civ.P., the district court vacated its previous order of dismissal; and, on November 26, 1976, it entered an order directing County to upgrade the forty-three roads still in controversy.
II.
Neither in the proceedings in the district court nor in its initial brief filed with this court, did County challenge the jurisdiction of the district court to resolve what had become essentially a contract dispute between the parties. Because it appeared to us that, at the time enforcement was sought by Association, it was possible that federal subject-matter jurisdiction was lacking, we requested that the jurisdictional issue be briefed and argued. Upon consideration of the various arguments advanced and authorities cited, we conclude that this issue is indeed dispositive and that the district court lacked jurisdiction to enter an enforcement order.
III.
As the sole authority supporting the district court’s exercise of federal jurisdiction to enforce the settlement agreement, Association cites Aro Corp. v. Allied Witan Co., 531 F.2d 1368 (6 Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976), a case arising on facts virtually indistinguishable from those in the case at bar.
In the Aro case, Aro Corporation had originally filed an action for patent infringement against Allied Witan Company (Allied) under 28 U.S.C. § 1338. Prior to trial, Aro and Allied settled their dispute by means of a licensing agreement, and by stipulation of the parties, the complaint was dismissed. Six weeks later, Allied breached the agreement by refusing to tender the initial royalty payment. Aro thereupon filed a motion under Rule 60(b)(6), F.R.Civ.P., praying both that the district court vacate its prior dismissal order and that Allied be compelled to perform its obligations under the licensing agreement. Defendant challenged the district court’s jurisdiction to grant the relief sought; but the district court ruled that it had the requisite subject-matter jurisdiction, 65 F.R.D. 513 (N.D.Ohio 1975), and the Sixth Circuit affirmed, holding first that defendant’s repudiation of the settlement agreement constituted “full justification” under Rule 60(b)(6) for reopening the proceedings; and second, that the district court was empowered to enforce the settlement agreement notwithstanding the lack of diversity of citizenship between the parties. 531 F.2d at 1371.
We are in agreement with the Sixth Circuit that, upon repudiation of a settlement agreement which had terminated litigation pending before it, a district court has the authority under Rule 60(b)(6) to vacate its prior dismissal order and restore the case to its docket. See also Chief Freight Lines Co. v. Local Union No. 886, 514 F.2d 572 (10 Cir. 1975); Kelly v. Greer, 334 F.2d 434 (3 Cir. 1964). We respectfully differ, however, with the Aro court in its conclusion that, once the proceedings are reopened, the district court is necessarily empowered to enforce the settlement agreement against the breaching party. We are of the opinion that the district court is not so empowered unless the agreement had been approved and incorporated into an order of the court, or, at the time the court is requested to enforce the agreement, there exists some independent ground upon which to base federal jurisdiction.
A district court is a court of limited jurisdiction “[a]nd the fair presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction till the contrary appears,” Turner v. President, Directors and Company of the Bank of North America, 4 Dall. 7, 10, 1 L.Ed. 718, 719 (1799). The burden of establishing jurisdiction is on the party claiming it. McNutt v. General Motors Accept. Corp., 298 U.S. 178, 182-83, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). After canvassing the possible sources of jurisdiction in the instant case, we do think that Association has not met its burden.
Association’s contract claim did not arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The settlement agreement between Association and County, while serving to terminate litigation of a federal claim, was a private contract entered into after private negotiations between the parties. Both its validity and the interpretation of its terms are governed by Virginia law. If, instead of filing a motion under Rule 60(b)(6), Association had filed a new complaint in the district court, alleging breach of contract and seeking specific performance, there is little doubt that the claim would have been dismissed on jurisdictional grounds. See Arvin Industries, Inc. v. Berns Air King Corp., 510 F.2d 1070 (7 Cir. 1975). The same is true if the parties had negotiated and entered into a settlement agreement prior to any litigation, and thereafter Association, alleging the breach of the agreement, sought to invoke federal jurisdiction to enforce it. See Kysor Industrial Corporation v. Pet, Incorporated, 459 F.2d 1010 (6 Cir.), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 243 (1972).
Thus, since there is neither federal question nor diversity jurisdiction in the instant case, we must look elsewhere if the jurisdiction of the district court is to be sustained. In Aro, the Sixth Circuit advanced what appeared to be alternative jurisdictional theories and we turn to them.
First, it was said that “courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them.” 531 F.2d at 1371. See also United States v. Newport News Shipbuilding and Dry Dock Co., 571 F.2d 1283, (4 Cir. 1978) (dictum); Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2 Cir. 1974); Kukla v. National Distillers Products Co., 483 F.2d 619, 621 (6 Cir. 1973); Massachusetts Casualty Insurance Co. v. Forman, 469 F.2d 259, 260 (5 Cir. 1972); Autera v. Robinson, 136 U.S.App.D.C. 216, 419 F.2d 1197, 1200 (1969); Kelly v. Greer, 365 F.2d 669, 671 (3 Cir. 1966), cert. denied, 385 U.S. 1035, 87 S.Ct. 772, 17 L.Ed.2d 682 (1967); Cummins Diesel Michigan, Inc. v. The Falcon, 305 F.2d 721, 723 (7 Cir. 1962).
While this principle is sound under appropriate circumstances, it is not a principle of federal jurisdiction. An analysis of the cases cited by the Aro court in support of the principle shows that, except for one, they all concerned settlement agreements
which were intended to be incorporated into final orders or for which independent federal jurisdiction existed. The single exception was a state case which involved a court of general, not limited, jurisdiction. Likewise, in Newport News Shipbuilding and Dry Dock Co., a recent decision of this court where the principle was repeated with approval, the jurisdiction of the district court was not at issue.
In our view, the inherent power of a district court to enforce settlement agreements, like any other power inherently vested in a federal court, presupposes the existence of federal jurisdiction over the case or controversy.
As a second alternative ground for upholding federal jurisdiction, both the district court and the court of appeals in Aro invoked a concept of derivative jurisdiction. Because the settlement agreement resolved the dispute giving rise to the original litigation over whiqh the district court had jurisdiction, any dispute involving the agreement itself wajs likewise properly before the court. As stated by the district court; “[Jjurisdiction rests upon the same footing as when the case began . . . 65 F.R.D. at 514. The court of appeals developed the point as set forth in the margin.
It is, of course, well established that, under appropriate circumstances, a federal court may exercise derivative jurisdiction over a dispute despite the absence of an independent basis for federal jurisdiction. The doctrines of both pendent and ancillary jurisdiction fall within this category. See, e. g., Moor v. County of Alameda, 411 U.S. 693, 714-15, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973) (dictum); United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Dery v. Wyer, 265 F.2d 804 (2 Cir. 1959). We think, however, that derivative jurisdiction should be grounded on something more substantial than a mere showing that the settlement agreement would not have been entered into but for the existence of litigation pending in federal court.
Consideration of the rationale of Gibbs and Dery supports this conclusion. In each, derivative jurisdiction was upheld only because the claim for which no independent jurisdiction existed derived from the same nucleus of operative facts as the claim for which there did exist independent jurisdictional grounds. For reasons of economy, reasoned the courts, it makes little sense to remit one of two related claims to state court since the same facts will form the basis of decision in both.
That consideration is absent here. Association’s contract claim is factually and legally distinct from the claim giving rise to the original litigation. To remit Association to state court in order to have its agreement with County enforced will not create duplicating litigation since the operative facts bearing on the validity of the agreement bear no relation to those underlying Association’s § 1983 claim.
While not relying on the sort of economy interest upon which the doctrines of pendent and ancillary jurisdiction are based, Aro nonetheless suggests that to divest a district court of jurisdiction to enforce a settlement agreement in cases such as this will “render settlement ... a trap for the unwary.” 531 F.2d at 1371. We think that this is not so. As in the instant case where federal jurisdiction to sue for a breach of a settlement agreement does not otherwise exist, a plaintiff who claims a breach of his settlement agreement has available two courses of action. He may take his contract claim to state court where he may seek enforcement of the settlement agreement. Because enforceability is likely to turn on questions of state law, the state court is an appropriate forum for resolving this dispute. Alternatively, the injured plaintiff may file a Rule 60(b)(6) motion in federal court, requesting that the prior dismissal order be vacated and the case restored to the court’s trial docket. This restores the litigants to the status quo ante and allows the plaintiff to prove his case and obtain his relief on the merits of the underlying claim.
IV.
To summarize: We find no independent basis for asserting jurisdiction over the contract dispute, and we see no considerations of either judicial economy or fairness requiring the settlement agreement to be enforced in federal court. We therefore conclude that the district court lacked jurisdiction to enforce the agreement. We reverse the order of the district court compelling County to perform its remaining obligations under its agreement with Association. We do not disturb the portion of the district court’s order which struck its order of dismissal. Association may proceed to the trial of its original claim if it be so advised.
REVERSED AND REMANDED.
. Association also filed a cross-appeal in this case to require a modification of the district court’s order. Because we decide that the district court lacked jurisdiction to enter an order enforcing the settlement agreement, Association’s cross-appeal is rendered moot, and we will not consider it further.
. This was one of many civil rights suits filed in the wake of the Fifth Circuit’s decision in Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286 (1971), aff’d on reh’g, 461 F.2d 1172 (1972), holding that statistical evidence of gross inequalities in the delivery of public services to black and white residents is sufficient to establish a prima facie case of unlawful racial discrimination.
. Va. Code § 33.1-67 (1950) provides that: “The secondary system of State highways shall consist of all of the public roads ... in the several counties of the State not included in the State [Primary] Highway System.”
. Va. Code § 33.1-69 (1950) provides that: “The control, supervision, management and jurisdiction over the secondary system of State highways shall be vested in the Department of Highways and the maintenance and improvement ... of such secondary system of State highways shall be by the State under the supervision of the State Highway Commissioner.”
. Briefly, the Board’s conclusion that it lacked authority to continue performing the settlement agreement was reached by this reasoning: State law prohibits local government units from expending funds for the construction, maintenance or improvement of roads not eligible for inclusion in the secondary system of State highways. Va. Code § 33.1-225 (1950). To be eligible for inclusion in the State system, there must exist a public right-of-way of not less than thirty feet. Va. Code § 33.1-230 (1950). In addition, by regulation of the Highway and Transportation Commission, a road must also service at least three houses per mile in order to be eligible for inclusion in the State system. County believes that nineteen of the forty-three roads still in controversy are permanently ineligible for inclusion either because a thirty-foot public right-of-way is unavailable or because the minimum service requirement is unmet. As to these nineteen, County believes that ,§ 33.1-225 absolutely forbids the expenditure of county revenues for paving and other improvements. As to the remaining twenty-four, County believes that, while these are not permanently ineligible, they are presently ineligible in that the requisite public right-of-way has not been obtained. Moreover, says the County, there exists substantial resistance in the affected black neighborhoods to the acquisition by County of the necessary rights-of-way.
. The district court rejected County’s contentions as set forth in footnote 5, supra, holding in essence that County’s past disregard for the statutory prohibition of Va. Code § 33.1-225 (1950) estopped it from denying its liability under the settlement agreement to maintain and improve roads not eligible for inclusion in the secondary system of State highways. Because we decide this case on jurisdictional principles, we express no view as to the merits of County’s defense to repudiation or the district court’s rejection of that defense.
. Fed.R.Civ.P. 60(b) provides, in pertinent part, that: “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: . (6) any other reason justifying relief from the operation of the judgment.”
. Where the settlement agreement is approved and incorporated into an order of court, the district court possesses jurisdiction to enforce its own order. Where there has been no incorporation, it is likely that the “independent ground” most often asserted will be that of diversity of citizenship between the parties to the settlement agreement. 28 U.S.C. § 1332. This is not to suggest, however, that other bases of federal jurisdiction may not also be available in appropriate situations, e. g., 28 U.S.C. §§ 1345, 1346 (United States as party).
. It is true that, in its motion seeking specific performance of the settlement agreement, Association asked the district court to declare unconstitutional any state law prohibiting County’s performance. While this presents a potential federal question, it is well established that § 1331 jurisdiction obtains only if federal law “creates the cause of action.” American Well Works Co. v. Layne & § Bowler Co., 241 U.S. 257, 36 S.Ct. 585, 60 L.Ed. 987 (1916). See also Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). At the time enforcement was sought, Association’s “cause of action” was for breach of contract — a claim arising under state law.
. Since both parties to this litigation are citizens of Virginia, no jurisdiction would obtain under 28 U.S.C. § 1332, nor does there exist any special statutory grant of jurisdiction empowering the district court in the instant case to take cognizance over the contract dispute.
. Certainly Rule 60 supplies no grant of jurisdictional authority. It merely permits a district court to try the original cause of action when the district court concludes that the ends of justice warrant reinstating the original claim.
. Kukla v. National Distillers Products, supra; Cia Anon Venezolana De Navegacion v. Harris, 374 F.2d 33 (5 Cir. 1967); All States Investors, Inc. v. Bankers Bond Co., 343 F.2d 618 (6 Cir. 1967).
In each of these cases, parties to litigation pending in district court had entered into an agreement prior to final judgment whereby defendant consented to a judgment in favor of plaintiff; but prior to entry of judgment, defendant had repudiated. Rather than remitting plaintiff to proof of his entire case, the district court entered judgment in accordance with the terms of the repudiated agreement. The settlement agreement was thus viewed as a stipulation on the merits of the original claim whereby defendant admitted liability. See also Cummins Diesel Michigan, Inc. v. The Falcon, supra.
. Meetings and Expositions, Inc. v. Tandy, supra. See also Massachusetts Casualty Ins. Co. v. Forman, supra; Autera v. Robinson, supra; Skyline Sash, Inc. v. Fidelity and Casualty Co., 378 F.2d 369 (3 Cir. 1967), aff’g, 267 F.S. 577 (W.D.Pa.1966); Kelly v. Greer, supra.
. Melnick v. Binenstock, 318 Pa. 533, 179 A. 77, 78 (1935) (“A compromise or settlement of litigation is always referable to the action or proceeding in the court where the compromise was effected; it is through that court the carrying out of the agreement should thereafter be controlled.”)
The principle of a court’s inherent power to enforce settlement agreements appears to have had its origins in state-court decisions. However, since state courts, unlike federal courts, are courts of general jurisdiction, state courts generally need not concern themselves with the source of their jurisdictional authority over a dispute. Therefore, a statement such as found in Melnick should not be construed as a jurisdictional statement; nor should it be relied upon, as it was in Aro, in resolving an issue of federal jurisdiction.
. Because in Newport News Shipbuilding and Dry Dock Co. the United States was a party to the settlement agreement, subject-matter jurisdiction clearly existed on independent grounds.
. As stated in 531 F.2d at 1371:
The Agreement in question is not merely a patent license. It is also the contractual vehicle by means of which the parties reached agreement settling their litigation. Both types of agreements are contracts; but a settlement agreement is more than a patent license . . . To permit the absence of diversity to divest the court of jurisdiction after settlement, when it could not have done so prior to settlement, would be to exalt form over substance and to render settlement in such cases a trap for the unwary. The license cannot be separated from the purpose of its birth.
. A recent note suggests that even this rationale is overly expansive when due weight is given to the fact that federal courts are courts of limited jurisdiction. The note argues that consistent with Article III of the Constitution pendent jurisdiction should be recognized only when the rights created by state and federal law are substantially identical, irrespective of the factual predicate giving rise to the assertion of those rights. Note, The Concept of Law-Tied Pendent Jurisdiction: Gibbs and Aldinger Reconsidered, 87 Yale L.J. 627 (1978).
. In the instant case, the state forum is, particularly appropriate because of the complexity of the state law questions involved. See footnote 5, supra; Note, Virginia Subdivision Law: An Unreasonable Burden on the Unwary, 34 Wash. & Lee L.Rev. 1223 (1977). While we do not question the competence of the district court to resolve these questions, it is nonetheless preferable, when a decision requires interpretation of statutes establishing a- state administrative or regulatory regime, that such interpretation be authoritatively made in the state-court system. Cf. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 498-500, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
ROYAL INS. CO., Ltd., v. VANSELUS et al.
(Circuit Court of Appeals, Seventh Circuit.
March 4, 1926.)
No. 3620.
Insurance <§=>150 — Rider providing that insurer shall not be liable for loss while obligation given for premium remains past due and unpaid invalid in view of Wisconsin standard insurance policy, requiring five days’ written notice of cancellation.
Suspension of insurance clause providing nonliability of company while any note or obligation given for premium remained past due and unpaid, added to Wisconsin standard insurance policy by rider, is ineffective, in view of clause of policy requiring five days’ written notice of cancellation.
Page, J.( dissenting.
In Error to the District Court of the United States for the Western District of Wisconsin.
Action by M. F. Yanselus and another against the Royal Insurance Company, Limited. Judgment for plaintiffs, and defendant brings error.
Affirmed.
Robert J. Folonie, of Chicago, 111., for plaintiff in error.
W. T. Doar, of New Richmond, Wis., for defendants in error.
Before ALSCHULER, EYANS, and' PAGE, Circuit Judges.
EYAN A. EYANS, Circuit Judge.
Yanselus, one of the plaintiffs, secured fire insurance from the defendant fire insurance company covering his farm buildings, and thereafter suffered a loss which was fixed by the jury at $8,814.10. The larger part of this sum ($6,220) was payable to the eoplaintiff,. the Northwestern Mutual Life Insurance Company, as mortgagee.
Defendant does not here question its liability to the mortgagee, but denies liability to Yanselus because of the provisions of a certain promissory note, signed by the assured and which accompanied the application for insurance, the substance of which was incorporated in a rider attached to the policy. It reads as follows:
“And it is hereby agreed that, in case of nonpayment of this note at maturity, this company shall not be liable for loss during such default, and the policy for which this note was given shall lapse until payment is made to the company at its western department at Chicago, and in the event of nonsettlement for the time expired, as per terms of contract, the whole amount of the note may be declared earned, due, and payable, and may be collected by law. In case of loss under said policy before maturity of the notes, this note shall immediately become due and payable, and shall be deducted from the amount of said loss. Given in payment for a policy of insurance, and, if transferred before or after maturity, shall remain subject to the defenses.”
The note was not paid. No notice of its maturity was given, and eight days after such date the loss occurred. A local banker, agent of defendant, was at the time the insurance was effected securing a loan from the Northwestern Mutual Life Insurance Company at the instance of Yanselus, and when the policy arrived it was, without being exhibited to the insured, Immediately forwarded to the mortgagee. The policy contained this provision:
“It is expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned, while any promissory note or obligation, or part thereof, given for the premium, remains past due and unpaid. * * * In case of loss prior to the maturity of any note given as a consideration, the company may deduct said note in its settlement of claim.”
Assured had, at the time this application was made, other insurance on the premises, which was canceled, and he was credited on the new premium ($277.81) with the unearned premium ($73.16) of the old policy. The promissory note was for the balance, $204.65. The policy was a Wisconsin standard insurance policy, which among other provisions contained one entitled, “Cancellation of Policy.” It read as follows:
“This policy shall be canceled at any time at the request of the insured, in which case the company shall, upon demand and surrender of this policy, refund the excess of said premiums above the customary short rates for the expired time. This policy may be canceled at any time by the company by giving to the insured a five days’ written notice of cancellation with or without tender of the excess of paid premium above the prorata premium for the expired time, which excess, if not tendered, shall be refunded on demand. Notice of cancellation shall state what said excess premium (if not tendered) will be refunded on demand.”
The trial court in disposing of the ease, said in part: “The standard policy law contemplates a suspension or a termination by the company only upon notice, and by the insured only upon a return of such part of the premium as has been paid, on a short rate basis.”
Defendant’s position is that the Wisconsin standard insurance policy contains an “added clause” provision which authorized the addition of a clause such as here under consideration reads: “The extent of the application of insurance under this policy and of the contribution to be made by this company in ease of loss or damage, and any other agreement not inconsistent with or a waiver of any of the conditions or provisions of this policy may be provided for by agreement in writing added hereto.”
It seems that the narrow and precise question we are called upon to determine is whether the “note clauses” attached to the policy as a rider contained an agreement inconsistent with the cancellation provision of the standard policy.
The policy, by its express terms, insured Vanselus “for the term of three years from the 18th day of September 1922, at noon, to the 18th day of September, 1925.” It also provided for a method of cancellation by the insured, and another method of cancellation by the insurer. The latter could only cancel by giving to the insured a “five days’ written notice.” Was such a clause inconsistent with another that provided: “The company shall not be liable for any loss * * * that shall occur * * * if the promissory note “ * * or part thereof given for the premium, remains past due and unpaid” ? .
It is urged by defendant that the added ■clause was not a cancellation clause, but a mere suspension agreement, and inasmuch as the Wisconsin standard policy permitted riders defining the extent to which the insurance shall apply, and the amount to be paid or contributed in case of loss, without restriction, it was perfectly legal to add to this agreement a clause limiting liability.
Grant that the rider added to the policy is better described as a suspension clause than a cancellation clause, may it not, however, be in part both? Cancellation and suspension are different terms and have different meanings; but, if they deal with or relate to a termination of liability under a fire insurance policy, are they not to that extent necessarily covering identical subject-matter? True, there may be a renewal of liability under a suspension clause and not under the cancellation clause, but we are concerned with the narrow issue — the cessation of liability (for either a short or a long time) and how it may be accomplished.
The Wisconsin standard policy required a notice in writing and to be given five days before liability could be terminated. The insured could, after five days’ written notice was given, avoid the loss of fire protection by paying the premium note, or he could secure other insurance. If no such notice were given, a loss might occur when the insured, through ovex-sight and forgetfulness, had neglected to make the premium payment. He might have been ignorant of tlxe termination of his insurance protection. It was to avoid the consequences of that neglect and carelessness, to which all men are inore or less subject, that the written notice of termination of liability was required in this standard policy. It is of vital importance, and should not be limited or restricted by any other clause of doubtful or uncertain meaning.
No case has been called to our attention where the precise question has been decided, and we have found none exactly in point. Plaintiff cites Fidelity Phenix Fire Ins. Co. v. School Dist. No. 62, 174 P. 514, 70 Okl. 300. But defendant properly calls to our attention the apparent absence of the “added clause” provision of the standard policy and the absence of all discussion in the opinion respecting its effect on the cancellation clause. We conclude that a suspension of insurance clause in a Wisconsin standard insurance policy cannot be upheld which provides for a termination of the insurance without a five days’ written notice to the assured.
The judgment is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. BAYCON INDUSTRIES, INC., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. O/S INDUSTRIAL STATE, Defendant, and Benton & Company, Inc., Defendant-Appellant.
No. 86-3075.
United States Court of Appeals, Eleventh Circuit.
Nov. 18, 1986.
David F. Pope, Tampa, Fla., for defendant-appellant.
Gary J. Takacs, Asst. U.S. Atty., Tampa, Fla., Damon C. Miller, U.S. Dept, of Justice, Torts Branch, Civil Div., Washington, D.C., for plaintiff-appellee.
Before GODBOLD and FAY, Circuit Judges, and ATKINS , Senior District Judge.
Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.
CORRECTED OPINION
PER CURIAM:
The United States sued Baycon Industries, Inc. and Benton & Company under the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq. (1983) seeking a declaratory judgment and injunctive relief requiring the owners to remove the sunken dredge ALSATIA II. The United States District Court for the Middle District of Florida found the owners negligent under Section 15 of the Act and granted the injunction. The finding was based on the doctrine of res ipsa loquitur. The owners appeal from the judgment entered by the district court holding them jointly and severally liable for the removal of the sunken dredge. We affirm.
I. BACKGROUND
Baycon Industries, Inc. (“Baycon”) was the owner of the dredge ALSATIA II which was approximately forty years old and had not been used since 1976. The ALSATIA II was moored at a Baycon facility in Bradenton, Florida where it was being held in storage. On August 21, 1981, the ALSATIA II was hooked up to the tug INDUSTRIAL STATE to be towed from Bradenton, Florida to Tampa, where it was to be examined by a prospective purchaser. The tow and barge were traveling on the main ship channel of Tampa Bay where the seas were calm. The weather was clear and the wind was two to three knots. At approximately 1:00 a.m. on August 22, the ALSATIA II began to take on water at a rapid rate. The water entered the barge faster than crewmen could pump it out and the barge began to sink. The tug captain, in an attempt to beach the tow, left the main ship channel and tried to get to shallow water. Halfway between the channel and the shore, however, the dredge sank in water approximately twelve feet deep. Though the hull of the dredge is submerged, twenty feet of superstructure and machinery remain above the water’s surface. Neither party investigated the wreck to determine the cause of the sinking.
The marine superintendent employed by Baycon inspected the dredge before the voyage but admitted that he made no inspection of the external hull below the waterline. The testimony at trial revealed the marine superintendent had “no idea” regarding the condition of the outside below the waterline prior to the trip. The marine superintendent was aware that the dredge had been unused for approximately five years but limited his structural inspection to opening up the hatches to determine whether the inside was dry, looking into the holds with a flashlight to be sure “no light was shining through” and shutting all doors and hatch covers. The government contends that, under the theory of res ipsa loquitur, an inference of negligence regarding the sinking of the ALSATIA II is warranted from the facts.
The United States Army Corp of Engineers determined that the sunken dredge was a hazard to navigation and sent a “mark and remove” letter to Baycon. Baycon initially planned and agreed to conduct salvage and removal operations itself, but was informed by consultants that the cost would be between $200,000 and $400,-000. The high cost persuaded Baycon to abandon the vessel, despite the insistence of the Army Corp of Engineers that Bay-con remove it. The barge remains today in the place it sank over four years ago.
II. DISCUSSION
The only issue we address is whether the district court erred in applying the doctrine of res ipsa loquitur to find appellants negligent with regard to the sinking of the ALSATIA II under § 15 of the Rivers and Harbors Act of 1899. We review a judgment of the district court, sitting without a jury in admiralty, under the clearly erroneous standard. Harbor Tug & Barge, Inc. v. Belcher Towing Co., 733 F.2d 823, 825 (11th Cir.1984) (citing McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7, 99 L.Ed. 20 (1954)). We conclude that it was not clearly erroneous for the district court, under these facts, to apply the doctrine of res ipsa loquitur.
The obligations of the owner of a sunken dredge are defined by § 15 of the Rivers and Harbors Act of 1899. Section 15 presents the critical issue of whether the vessel owner’s negligence caused the vessel to sink. United States v. Nassau Marine Corp., 778 F.2d 1111, 1114 (5th Cir.1985). If it is determined the owner is negligent the government can avail itself of the statutory and implied remedies, including injunctive relief, declaratory judgment and money damages. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). The district court’s finding that appellants were negligent was based on the doctrine of res ipsa loquitur.
A finding of negligence based on the doctrine of res ipsa loquitur in the admiralty context is not totally unique but neither is it routine. See Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468 (1948); United States v. Nassau Marine Corp., 778 F.2d 1111, 1115 (5th Cir. 1985). To determine whether the doctrine applies the Supreme Court in Johnson formulated a three-part test: res ipsa loquitur applies if: (1) the injured party was without fault, (2) the instrumentality causing the injury was under the exclusive control of the defendant, and (3) the mishap is of a type that ordinarily does not occur in the absence of negligence. Johnson, 333 U.S. 46, 68 S.Ct. 391; Nassau Marine, 778 F.2d at 1115-16 (citations omitted). Appellants concede that the first part of the test is met, but contest the second and third parts.
There is no contention that the government contributed in any way to the sinking of the dredge. Appellants argue that the instrumentality causing the dredge to sink was not within their exclusive control. They claim that to try to determine the instrumentality that caused the sinking would be sheer speculation. The district court concluded that the dredge itself was the “instrumentality” which must be in the exclusive control of the appellants in order to satisfy the second prong of the res ipsa loquitur test. We agree.
Appellants attempt to distinguish Nassau Marine by stating that the cause of the sinking of the vessel in that case was apparent; it buckled at its midships. We find no meaningful distinction, however, with a barge buckling at its midship and a dredge suddenly taking on an inordinate amount of water causing it to quickly sink. Appellants suggest that the government is required to show the cause of the sinking by the greater weight of the evidence in order to properly invoke the doctrine of res ipsa loquitur. Advancing appellants’ argument that proof of cause is required would render the doctrine of res ipsa loquitur a nullity. The doctrine was formed to allow permissible inferences to be drawn from unexplained events. Johnson, 333 U.S. at 49, 68 S.Ct. at 393.
Finally, we agree with the district court that the sinking of the dredge in clear weather, absent any interference by another vessel, obstruction or debris is a mishap that ordinarily does not occur in the absence of negligence. The facts presented highlight no intervening cause of the sinking. The cursory inspection carried out by Baycon’s marine superintendent did not include an assessment of the condition of the external hull below the water line. This dredge was forty years old and had not been used for five years. Preparing this tug for travel without checking the condition of the hull below the waterline and the subsequent sinking of the dredge in a matter of minutes on a clear and calm night clearly creates a permissible inference that the appellants were negligent. Seagoing vessels are built to floal. Barges are constructed to float and to withstand the forces of being towed. Weather was not a factor. Rough water was not involved. There was no testimony concerning any abnormal incident which would have indicated any damage from a sunken obstacle or floating debris. Forty year old vessels deteriorate and no doubt require rather close and complete inspections after long periods of idleness. Under these circumstances a reasonable man could conclude that it is more likely than not that there was negligence associated with the sudden sinking of the dredge during this tow.
Once the inference of negligence was established, appellants had the burden of rebutting the inference. Nassau Marine, 577 F.Supp. 1475, 1482 (E.D.La.1984), aff’d, 778 F.2d 1111 (5th Cir.1985); United States v. Chesapeake & Delaware Shipyard, Inc., 369 F.Supp. 714, 719 (D.Md. 1974). Appellants claimed that due care was taken in the preparation and operation of the dredge. The failure to check the external hull below the waterline is inconsistent with the exercise of due care in the maintenance and preparation of the dredge. Furthermore, appellants offered no feasible explanation for the unexplained sinking. We agree with the district court that appellants failed to rebut the inference of a lack of due care. See Chesapeake & Delaware Shipyard, 369 F.Supp. at 719.
The Rivers and Harbors Act of 1899 was enacted to protect the nations navigable waterways from obstructions. The Court in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201, 88 S.Ct. 379, 385, 19 L.Ed.2d 407 (1967), acknowledged that the government was a principal beneficiary of the Act. When an owner operates a dredge in navigable waters for his own commercial advantage and it sinks due to his negligence, there is no question that the responsibility of removing that vessel falls squarely on the owner. See Id. “To adopt a rule permitting owners whose negligence is not precluded by the facts to ‘walk away’ from their sunken crafts would confer on shipowners a substantial windfall, at the expense of those whose tax dollars create and maintain our public waterways.” United States v. Baycon Industries, Inc., 744 F.2d 1505, 1508 (11th Cir.1984).
III. CONCLUSION
We hold that the district court correctly found appellants negligent under § 15 of the Rivers and Harbors Act of 1899. We agree with the district court that res ipsa loquitur was the proper basis for this finding. For the foregoing reasons, the decision of the district court is AFFIRMED.
. The sunken dredge, ALSATIAII, was owned at the time of the sinking by Baycon Industries. The INDUSTRIAL STATE and JLD, tugs involved in towing the dredge when it sank were owned by Benton & Company. At the time of the sinking Baycon employees operated the tugs. Baycon Industries, Inc. is a wholly owned subsidiary of Benton & Company. Both companies have the same president, substantially the same board of directors and offices. We find that the mutual involvement in the tug operation and the inextricably intertwined relationship of the two corporate appellants support the district court’s finding of joint and several liability for the removal of the sunken dredge. See United States v. Nassau Marine Corp., 778 F.2d 1111, 1112 n. 1 (5th Cir.1985), where the court found the owners jointly and severally liable in a similar corporate scheme.
. This civil action is a companion case to United States v. Baycon Industries, Inc., 744 F.2d 1505 (11th Cir.1984), a criminal case arising out of the same facts.
. The United States Army Corp of Engineers sent a "mark and remove” letter to advise shipowners of the law involved and their responsibility with respect to removing their vessel.
. Appellants raise two other issues on appeal. We find it unnecessary to decide whether Section 10 of the Act, 33 U.S.C. § 403, imposes strict liability on shipowners, because we agree with the district court’s finding of liability under Section 15, 33 U.S.C. § 409. Appellants also claimed that the district court erred in holding Baycon Industries and Benton & Company jointly and severally liable. We disagree. See supra note 1.
. Section 15 states in pertinent part:
It shall not be lawful ... to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels____ And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411 to 416, 418, and 502 of this title.
33 U.S.C. § 409. “Voluntarily or carelessly" has been construed to include "intentionally and negligently." Wyandotte Transp. Co. v. United States, 389 U.S. 191, 207, 88 S.Ct. 379, 388, 19 L.Ed.2d 407 (1967); University of Texas Medical Branch at Galveston v. United States, 557 F.2d 438, 444 n. 11 (5th Cir.1977), cert. denied, 439 U.S. 820, 99 S.Ct. 84, 58 L.Ed.2d 111 (1978).
. Non-negligent shipowners have a "right to abandonment” under Section 15 which absolves them from the obligation to remove the wreck. United States v. Nassau Marine Corp., 778 F.2d 1111, 1114 (5th Cir.1985); United States v. Bay-con Industries, Inc., 744 F.2d 1505, 1508 (11th Cir.1984).
. There is no question that the owners had control over the vessel. See supra note 1.
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_appel1_7_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
UNITED STATES of America, Plaintiff-Appellee, v. Celso GUZMAN-COLORES, aka Remijiro Lopez-Lopez, Defendant-Appellant.
No. 90-30212.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 6, 1991.
Decided March 13, 1992.
Marsha L. McDonough and Gareld Joel Gedrose, Portland, Or., for defendant-appellant.
J. Richard Scruggs, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Before: TANG, O’SCANNLAIN and RYMER, Circuit Judges.
RYMER, Circuit Judge:
This appeal requires us to decide whether a prior state conviction for which the time to appeal has expired, but which is the subject of collateral review, is final for purposes of federal sentencing enhancement under 21 U.S.C. § 841(b)(1)(B).
Celso Guzman-Colores, who goes by the name of Remijiro Lopez-Lopez (“Lopez”), appeals from the sentence imposed by the district court after he pleaded guilty to possession of more than 500 grams of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. Lopez argues that the district court erred in finding that his prior state convictions were valid and final. In particular, he contends that his state petition for post-conviction relief, alleging that ineffective counsel failed to file a notice of appeal, should stay finality of his convictions under § 841. Lopez contends that, otherwise, he will have been denied appellate review, and that unless the federal court defers its enhancement decision until a decision is rendered on his state post-conviction petition, he will be deprived of his rights to due process and equal protection.
We hold that Lopez’s prior convictions became final once the time for direct review passed. We decline to extend Williams v. United States, 651 F.2d 648, 650-51 (9th Cir.1981), which held that a conviction was not final while a petition for a writ of certiorari was pending, to collateral petitions for post-conviction relief. Once a prior conviction is final within the meaning of Williams, it may serve as the basis for enhancement even though the conviction is being challenged by way of a petition for post-conviction relief. Under these circumstances, a defendant who wishes to attack collaterally the underlying conviction must do so in the sentencing court under 21 U.S.C. § 851(c)(2). Because § 851 affords this opportunity, no defendant, including a defendant such as Lopez who failed to appeal the prior conviction but who attributes that failure to ineffective counsel, is deprived of his right to due process.
The district court correctly found that Lopez's prior convictions were final for purposes of enhancement, and we affirm.
I
On August 10,1989, Lopez was convicted in Oregon state court on three counts of delivery of a controlled substance (cocaine). His court-appointed counsel did not appeal those convictions within the period permitted by applicable Oregon law. See Or.Rev. Stat. § 138.071(1) (30-day period for appeal); Or.Rev.Stat. § 138.071(4)(c) (90-day period for requesting leave to file appeal).
On November 28, 1989, Lopez and a co-defendant were arrested and subsequently indicted by a federal grand jury on charges of possession of cocaine with intent to distribute. The government filed an information giving notice of its intent to rely on the prior state convictions for an enhanced sentence under 21 U.S.C. § 841(b)(1)(B); Lopez responded by asserting that these convictions were not yet final. Lopez pleaded guilty pursuant to a plea agreement acknowledging that the government would seek enhancement on account of the August 1989 convictions.
The sentencing hearing was originally set for April 30,1990, but was continued to June 7, 1990. On June 6, Lopez filed a petition for post-conviction relief in Oregon state court, alleging that he was denied effective assistance of counsel because of various failures, including the failure to file an appeal or advise Lopez of his right to appeal. Relying on our opinion in Williams, Lopez argued in the district court that he should be given every opportunity to bring constitutional attacks against the prior convictions before sentencing, including the opportunity to seek post-conviction relief. He urged that but for counsel’s failure to file the notice of appeal, the prior convictions would not have been final and could not have been used to enhance his sentence. The district court found that the judgment was final because, no matter the reason, no appeal was pending at the time of enhancement.
II
The district court ruled as a matter of law that the petition for post-conviction relief did not affect the finality of the prior convictions. Our review, therefore, is de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
Even though he did not appeal his prior state convictions, Lopez argues that these convictions are not final within the meaning of § 841(b)(1)(B) because the state courts have not acted on his petition for post-conviction relief. He contends that he was denied the opportunity and means to perfect his appeal within the time allowed because he was unaware of his rights due to ineffective assistance of counsel. Given this allegedly ineffective assistance, Lopez argues that his only recourse was to file for post-conviction relief. As a result, Lopez claims he was precluded from mounting the kind of constitutional attack on his prior convictions that Williams contemplates will have been made before finality attaches. Because Williams held that a conviction is not final for purposes of enhancement until direct review, including certiorari, has been completed, López asserts that his convictions are not final until he has had a chance at the appellate review he was denied because of the ineffective assistance of counsel.
In Williams, we held that direct review extends to certiorari, and that a prior conviction is not final until certiorari review is complete. 651 F.2d at 650-51. Williams involved an appeal from the district court’s denial of a 28 U.S.C. § 2255 petition seeking to invalidate an enhanced sentence because the United States Supreme Court had not yet acted on a petition for a writ of certiorari. The parties agreed that if the prior conviction were still subject to “direct review,” it was not final for enhanced sentencing purposes under § 841(b)(1), and the enhanced portion of the sentence would have to be vacated. Id. at 649. We noted that Congress, by amending § 841 to provide that underlying convictions must be “final,” had most likely sought to eliminate the need for resentencing should the underlying conviction subsequently be reversed. Id. at 649-50 (citing United States v. Allen, 566 F.2d 1193, 1195 (3d Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978)).
We also noted that the statutory framework mandates that the defendant be given the opportunity to bring constitutional attacks on the prior conviction before sentencing, 21 U.S.C. § 851(c)(2), or, if the defendant fails to take advantage of this opportunity, be foreclosed from doing so later, 21 U.S.C. § 851(b). Id. at 650. Against that backdrop we held that direct review includes certiorari. Otherwise, a defendant facing enhancement while his petition for certiorari was pending would have to raise collateral challenges to the prior conviction while his petition for certio-rari was still pending, or else be barred by § 851(b) from challenging the prior conviction in the future. Id. This would give rise to a catch-22 for defendants and for the courts. Collateral challenges are generally not permitted until direct review, including certiorari, has been exhausted. Yet if this rule were relaxed to allow collateral challenges under § 851 while direct review was pending, the possibility would arise of conflicting determinations by different courts reviewing the same prior conviction — one on direct appeal from the conviction itself (including review in the Supreme Court on certiorari), and the other on sentencing for the later conviction, or on appeal from an enhanced sentence.
Lopez’s argument fails because once the prior conviction is final, a defendant has the opportunity to make the same collateral attack in the sentencing court as Lopez made in his petition for post-conviction relief in state court. Section 851(e)(1) provides that if a defendant “claims that any conviction alleged [in the information] is invalid, he shall file a written response to the information.” Section 851(c)(2) further provides that “[a] person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information.” Thus, § 851 allows a defendant to challenge collaterally a prior conviction on the merits before the sentencing court. This Lopez failed to do: his response raised the issue of finality of his prior convictions, but did not raise the issue of invalidity on account of the alleged violation of his Sixth and Fourteenth Amendment rights.
By arguing that his prior convictions are not final until Oregon determines whether he should be granted appellate review, Lopez fails to grasp the thrust of our opinion in Williams. In Williams, we did not indicate that appellate review must take place, as Lopez suggests; rather, we held that while direct review is actually in progress, a defendant could not appropriately challenge the same conviction collaterally, as he would be obliged to do to avoid enhancement. Thus, our concern in Williams was that the defendant be given the opportunity to make a challenge on the merits under § 851, a challenge that is simply inappropriate while direct review is still pending. The conundrum resolved by Williams is not present in this case, however, for once Lopez’s time for appeal expired, he was free to challenge his prior convictions in the district court under the framework of § 851. We therefore hold that Lopez’s pri- or convictions became final within the meaning of § 841 when the time to appeal those convictions expired.
The compelling interest in orderly judicial administration would be significantly impaired were we to hold otherwise. The marginal gains in accuracy that might result from delaying imposition of an enhanced sentence pending the outcome of post-conviction proceedings would not justify the anticipated disruptions in sentencing procedures, as well as the incentives to file frivolous post-conviction petitions, that extension of Williams would create. Judicial economy, therefore, requires that this court retain the line drawn by Williams.
III
The redress allowed by § 851 also answers Lopez’s argument that the enhancement of his sentence violated his due process rights. The statute expressly provides criminal defendants with an avenue to challenge the constitutional validity of prior convictions on the merits before the sentencing court. Cf. United States v. Garrett, 565 F.2d 1065, 1072 (9th Cir.1977), cert. denied, 435 U.S. 974, 98 S.Ct. 1620, 56 L.Ed.2d 67 (1978) (“[T]he statute forecloses collateral attack on the validity of ... priors for enhancement purposes if the defendant has been given the appropriate opportunity to challenge them under this statutory scheme.”). This opportunity is sufficient to satisfy due process concerns.
Accordingly, we hold that a prior state conviction for which the time to appeal has expired, but which is the subject of collateral review, is final for purposes of federal sentencing enhancement under § 841(b)(1)(B).
AFFIRMED.
. 21 U.S.C. § 841(b)(1)(B) provides for enhanced sentencing of recidivist narcotics offenders and states in relevant part:
If any person commits [a violation under this section] after one or more prior convictions for an offense punishable under th[e] ... law of a State, the United States, or a foreign country relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years ....
. Lopez also looks to Doyle v. United States, 721 F.2d 1195, 1198 (9th Cir.1983), where this court held that the defendant was wrongfully denied his right to an appeal when counsel, against the wishes of the defendant, did not file an opening brief.
. We also note that no court of appeals has gone so far as to hold that a post-conviction proceeding in another court stays finality of prior convictions under § 841. See United States v. Hughes, 924 F.2d 1354, 1359 (6th Cir.1991) (prior conviction final because time for seeking appellate review had passed); United States v. Morales, 854 F.2d 65, 68-69 (5th Cir.1988) (§ 841 finality language applies to "a conviction which is no longer subject to examination on direct appeal, including an application for cer-tiorari to the United States Supreme Court, either because of disposition on appeal and conclusion of the appellate process, or because of the passage, without action, of the time for seeking appellate review."); United States v. Lippner, 676 F.2d 456, 467 (11th Cir.1982) (conviction not final for purposes of § 841 "until all avenues of direct attack have been exhausted”).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
songer_treat
|
I
|
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.
CENTRAL BANK BLOCK ASS’N, v. COMMISSIONER OF INTERNAL REVENUE.
No. 6217.
Circuit Court of Appeals, Fifth Circuit.
April 1, 1932.
W. A. Sutherland, Joseph B. Brennan, and Sanders McDaniel, all of Atlanta, Ga., for petitioner.
G. A. Youngquist, Asst. Atty. Gen., Sewall Key and John MacC. Hudson, Sp. Assts. to the Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and R. N. McMillan, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.
Before BRYAN, POSTER, and WALKER, Circuit Judges.
WALKER, Circuit Judge.
In 1922, the petitioner, through an agent, made a lease of its property for a period of fifty years, beginning in 1925, at a stipulated annual rental, which increased with each successive five year period. As compensation for services in negotiating the lease, petitioner agreed to pay the agent a total commission of $21,118.67, and, in accordance with the agreement, made payments to the agent as follows: $1,118.67 in 1922, $10,000 in 1923, and $10,000 in 1924. In its returns for the years 1922, 1923, and 1924, the petitioner deducted from its gross income the above-mentioned amounts paid to the agent in those years, respectively. The respondent, the Commissioner of Internal Revenue, disallowed the deduction of $10,-000 from the income of 1924. The deductions taken by petitioner for the years 1922 and 1923 have not' been disallowed, and, so far as appears, have not been brought into question. On petitioner’s application for a redetermination of the deficiencies for the years 1924 and 1925, the Board of Tax Appeals approved the disallowance of the deduction of $10,000* from petitioner’s gross income for 1924, and allowed a deduction of one-fiftieth of that amount from petitioner’s gross income for 1925. The action of the Board of Tax Appeals is before us on the taxpayer’s petition for review.
The payment of the $10,000 by the petitioner in 1924 was an expenditure made in acquiring the right to the rentals payable under the lease during the term of fifty years beginning in 1925. Such an outlay made in 1924 to secure the enjoyment of income in subsequent years cannot reasonably be considered to be an expense in carrying on trade or business in 1924, within the meaning of the provision, contained in both the Revenue Act of 1924 and the Revenue Act of 1926, § 234 (26 USCA § 986 (1), allowing the deduction of “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including,” etc. That outlay reasonably may be regarded as either the investment of the amount paid in connection with the acquisition by the lessor of the benefits resulting from the making of the lease, or as the payment in 1924 of business expenses which are attributable to the subsequent years covered by the lease. If that outlay is considered to be an invest-' ment in an asset, a deduction from the taxpayer’s income in 1925 and in the subsequent years during the term of the lease was allowable for the exhaustion or depreciation of the asset. If that outlay is considered to be a payment of business expenses attributable to the years covered by the lease, a deduction based on that payment would be allowable in each of those years — in any year only so- much of the amount of that expense as is properly attributable to that year being deductible from the gross income for that year, as a spreading or prorating of the amount of the outlay over the term of the lease would be required truly to reflect annual income during that term. 26 USCA § 986 (1, 7); Duffy v. Central R. R., 268 U. S. 55, 45 S. Ct. 429, 69 L. Ed. 846; Galatoire Bros. v. Lines (C. C. A.) 23 F.(2d) 676; Bonwit Teller & Co. v. Commissioner of Internal Revenue (C. C. A.) 53 F.(2d) 381.
In effect, the allowance of the above-mentioned deduction was an allocation to the first of the fifty years covered by the lease of one-fiftieth of the amount of an expenditure made by the lessor to enable it to acquire the benefits of the lease. The record does not show that the amount of that deduction was substantially less than the amount properly allowable as a deduction based on that expenditure. It was not shown or found in what part of the year 1924 the’ petitioner made the payment to the agent. Nothing contained in the record negatives the conclusion that that payment was made on the last day of the year 1924. In the absence of a showing or finding as to the time which elapsed between the date of the payment of the $10,000 and the date of the falrW effect of the allowed deduction, there is no basis for increasing the amount of the deduction by adding interest or an amount as compensation for the delay in the petitioner getting the benefit of the allowed deduction based on the expenditure in question. The question as to the effect on the amounts which properly may be allowable as deductions in years subsequent to 1925 of the lapse of time between the date of the payment of the $10,000 and the dates of deductions based on that expenditure is not presented by the record in this case. That question is not now to be decided because it is not presented for decision by the record before us.
For reasons indicated, we conclude that the above stated action of the Board of Tax Appeals was not erroneous. The petition is denied.
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_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.
FEDERAL TRADE COMMISSION, Petitioner-Appellee, v. Ralph H. MILLER, President, et al., Respondents-Appellants.
No. 76-1499.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 21, 1976.
Decided Jan. 24, 1977.
As Amended on Denial of Rehearing March 16, 1977.
John C. Christie, Jr., Chicago, 111., Paul D. Borghesani, Elkhart, Ind., for respondents-appellants.
Robert J. Lewis, Jr., Gen. Counsel, Denis E. Hynes, Atty., F. T. C., Washington, D. C., John R. Wilks, U. S. Atty., Fort Wayne, Ind., for petitioner-appellee.
Before CLARK, Associate Justice (Retired), SPRECHER and TONE, Circuit Judges.
The Honorable Tom C. Clark, Associate Justice (Retired) of the Supreme Court of the United States, is sitting by designation.
TONE, Circuit Judge.
The issues before us are whether common carries subject to the Interstate Commerce Act are exempt from the Federal Trade Commission’s investigatory power and, if so, whether that exemption may be asserted by a carrier as a defense in a subpoena enforcement proceeding. The District Court answered the second question in the negative and ordered enforcement of subpoenas the FTC had served. We reverse.
Respondent Morgan Drive Away, Inc. is a common carrier engaged in the business of transporting mobile homes. As such it is subject to regulation under Part II of the Interstate Commerce Act, 49 U.S.C. § 301, et seq., and operates pursuant to a certificate ,of public convenience and necessity issued by the Interstate Commerce Commission.
In January 1974 the Federal Trade Commission adopted a resolution authorizing an investigation to determine whether Morgan and unnamed parties were engaged in violations of § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, “including false and misleading advertising or misrepresentation in connection with the solicitation of persons to become owner-operators in the nationwide mobilehome [sic] transporting industry.” The resolution recited that the investigation was being conducted under the authority of §§ 6, 9, and 10 of the Act, 15 U.S.C. §§ 46, 49, and 50. The Commission issued and served a subpoena duces tecum upon respondent Ralph H. Miller, Morgan’s President, and a subpoena ad testificandum upon respondent Bill R. Privitt, Morgan’s Executive Vice President, each subpoena reciting that the witness was “to testify in connection with the Commission’s investigation of Morgan Drive Away, Inc.,” authorized by the resolution.
Morgan’s motion to quash the subpoenas on the ground that it is statutorily exempt from FTC regulation and investigation was denied by the Commission. Upon being advised that respondents, relying upon the advice of counsel, did not intend to comply with the subpoenas, the Commission filed this enforcement action in the District Court pursuant to § 9 of the Act, 15 U.S.C. § 49. From the judgment granting enforcement, respondents appeal.
As we have noted, the purpose of the Commission’s investigation was to determine whether Morgan “and others” may be violating § 5, which prohibits “[ujnfair methods of competition . . . and unfair or deceptive acts or practices in or affecting commerce,” and also provides, in subsection (a)(2), as follows:
“The Commission is empowered and directed to prevent persons, partnerships, or corporations, except banks, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to the Federal Aviation Act of 1958, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended, except as provided in section 406(b) of said Act, from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(2) (Supp. V, 1975).
The phrase “Acts to regulate commerce” is defined in § 4 of the Act to include “the Act entitled ‘An Act to regulate commerce’, approved February 14, 1887, and all Acts amendatory thereof and supplementary thereto.” 15 U.S.C. § 44. The note to this section in the United States Code points out that the date should be corrected to February 4, 1887 and states that the Act of that date “is classified to chapters 1, 8, 12, 13 and 19 of Title 49, Transportation.” Those chapters contain what is now known as the Interstate Commerce Act. Morgan, as we have said, is regulated and holds a certificate under Part II of that Act, Chapter 8 of Title 49, dealing with motor carriers.
Section 6 of the Federal Trade Commission Act, on which, with §§ 9 and 10 of that Act, the Commission based its authority to investigate whether Morgan was violating § 5, gives the Commission, in subsection (a), the power
“[t]o gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any person, partnership, or corporation engaged in or whose business affects commerce, excepting banks and common carriers subject to the Act to regulate commerce, and its relation to other persons, partnerships, and corporations.” 15 U.S.C. § 46(a) (Supp. V, 1975).
Subsection (b) of § 6 authorizes the Commission to require
“. . . corporations, engaged in or whose business affects commerce, excepting banks and common carriers subject to the Act to regulate commerce, or any class of them, or any of them, respectively, to file with the Commission in such form as the Commission may prescribe . . . reports or answers in writing to specific questions, furnishing to the Commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective . . corporations filing such reports or answers in writing.” 15 U.S.C. § 46(b) (Supp. V, 1975).
Section 9 of the Act authorizes the issuance of subpoenas by the Commission for the purposes of §§ 5 and 6, inter alia, and authorizes their enforcement by proceedings in the district courts. Section 10, the final section mentioned in the resolution authorizing the Morgan investigation, provides for penalties for failure to comply with subpoenas and investigative orders.
I.
Respondents concede that any right they may assert to resist the enforcement of the subpoenas must be found in § 6 of the Act, which deals with the Commission’s investigatory power. They also concede that if they were insisting only on the right not to be regulated, as distinguished from the right not to be investigated, the strong policy against litigating the issue of coverage under the Act in a subpoena enforcement proceeding, discussed in Part III, below, would make their present position untenable. Nevertheless, the words used in § 5 are relevant to a consideration of § 6. Cf. R. Dickerson, The Interpretation and Application of Statutes 219 (1975).
We begin, as we must, with the words of the statute. The common-carrier exemptions in §§ 5 and 6 have been in those sections since the adoption of the Act in 1914, ch. 311, 38 Stat. 717, and remain unchanged. In § 5 “common carriers subject to the Acts to regulate commerce” are expressly excepted from the class of “persons, partnerships, or corporations” which the Commission is empowered “to prevent from using unfair methods of competition . . . and unfair or deceptive acts or practices in or affecting commerce.” The words “Acts to regulate commerce” are defined in § 4 to include the Interstate Commerce Act, as amended. Morgan is a common carrier subject to that Act. The exemption is in terms of status as a common carrier subject to the Interstate Commerce Act, not activities subject to regulation under that Act. In contrast, the Packers and Stockyards Act exemption in § 5 is only for “persons, partnerships, or corporations insofar as they are subject to” that Act.
The exemption in § 6 of the Act is likewise cast in terms of status. The investigatory power conferred by subsections (a) and (b) extends to “any . . . corporation engaged in or whose business affects commerce, excepting banks and common carriers subject to the Act to regulate commerce.” We find no significance in the use of the singular “Act” in § 6, on which the Commission relies as indicating an intention to limit the exemption in that section to railroads. The note to this section in the United States Code is similar to the note to § 5 and states as follows:
“The Act to regulate commerce, referred to in subsecs, (a) and (b), consists, as provided by section 44 of this title, of the Interstate Commerce Act, which is classified to chapters 1, 8,12,13 and 19 of Title 49, Transportation, . . . .”
Chapter 8 of Title 49 is, as we have said, Part II of the Interstate Commerce Act. The omission of the “s” in § 6 appears, like the incorrect date for the 1887 Act in § 4, to have been an inadvertent error which was not significant enough, or indeed noticeable enough, to be corrected when the Act was amended from time to time for reasons having nothing to do with the common-carrier exemptions. Moreover, even if the singular “Act” is viewed as an intentional reference to the 1887 Act, the case would be governed by the usual rule that a statutory reference to an earlier statute is construed to include amendments to that statute. Steffler v. Johnston, 121 F.2d 447, 448 (9th Cir.), cert. denied, 314 U.S. 676, 62 S.Ct. 187, 86 L.Ed. 541 (1941). To hold otherwise would be to impute to Congress the incongruous intention of incorporating into a new statute provisions of the superseded, rather than the current, version of the earlier statute.
The Commission makes two other arguments based on the language of the statute, both of which we find unpersuasive. The first is that, because the exemption in §§ 5 and 6 is not repeated in § 9’s grant of subpoena power, it can subpoena Morgan’s officers even if an investigation of that company is outside its jurisdiction. Section 9, however, expressly limits the agency’s subpoena power to testimony and evidence “relating to any matter under investigation.” The cases the agency cites in support of its interpretation all assume that this provision contemplates only investigations authorized by § 6. Most of them dealt with the Commission’s power to subpoena third parties who were not themselves the subject of an investigation or proceeding admittedly within the Commission’s jurisdiction. E. g., FTC v. Tuttle, 244 F.2d 605 (2d Cir.), cert. denied, 354 U.S. 925, 77 S.Ct. 1379,1 L.Ed.2d 1436 (1957); FTC v. Harrell, 313 F.2d 854 (7th Cir. 1963); United States v. Marshall Durbin & Co., 363 F.2d 1, 5 (5th Cir. 1966). Section 9 does not authorize the issuance of subpoenas in connection with an investigation which the Commission is not empowered to make by reason of the exemption in § 6.
The Commission also argues that § 6(f), which authorizes it to report to Congress and to submit recommendations for legislation, may provide a basis for investigating Morgan. The Commission’s resolution authorizing the subpoenas stated, however, that the purpose of the investigation was “to determine whether or not Morgan Drive Away, Inc. and others may be engaged in unfair or deceptive acts or practices ... in violation of Section 5.” Having treated this action from the beginning as a routine investigation leading to enforcement, the agency cannot, at this late date, recharacterize it in order to circumvent its lack of investigatory power.
II.
Thus, the words of the Act plainly exempt from the agency’s investigatory jurisdiction any corporation holding the status of a common carrier regulated by the ICC. The agency concedes that Morgan meets this description, but argues that we should defer to its interpretation of the Act and reject the literal construction. In support of this contention, the Commission draws a distinction between the broad, remedial purpose underlying its power to investigate and the narrow purpose of avoiding inter-agency conflicts that underlies the exemption from that power, and argues that it is at least permissible for it to construe the exemption as being limited by its purpose. Thus, where there is no possibility of inter-agency conflict, because the ICC cannot or does not regulate the particular activity in question, the agency contends that there should be no exemption.
We recognize the weight to be given the agency’s interpretation of its own enabling legislation. E. g., Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). The courts, however, may not abdicate their independent responsibility to construe the statutory language. Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); Zuber v. Allen, 396 U.S. 168, 193, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969); General Electric Co. v. Gilbert, 429 U.S. 125, 145, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). Those circumstances which have been found to enhance the weight to be given an administrative interpretation are absent here. To begin with, the statutory language is not ambiguous. See General Electric Co. v. Gilbert, supra, 429 U.S. at 142-145, 97 S.Ct. 401; Zuber v. Allen, supra, 396 U.S. at 192, 90 S.Ct. 314. Nor is the administrative interpretation, having been arrived at more than 60 years after the adoption of the statute, either contemporaneous, see, e. g., Zuber v. Allen, supra, 396 U.S. at 192, 90 S.Ct. 314, or long standing, see, e. g., Saxbe v. Bustos, 419 U.S. 65, 74, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974); United States v. American Trucking Associations, Inc., 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). Finally, the agency’s interpretation has not been consistent. See Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 858-859 n.25, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975); General Electric Co. v. Gilbert, supra, 429 U.S. at 142-143, 97 S.Ct. 401. As we shall see, not long ago the Commission, in a presentation to a congressional committee, gave the statutory exemptions an interpretation opposite to the one it now asserts. For these reasons we are not bound by the Commission’s interpretation of the statute.
The FTC cites legislative history and case law, e. g., Crosse & Blackwell Co. v. FTC, 262 F.2d 600 (4th Cir. 1959), to support the proposition that § 6’s exemption was never intended to apply to common carriers when they engaged in non-carrier activities. It argues that the rationale behind this limitation was that in such cases the carrier’s activities were not within the scope of ICC regulation, and thus the purpose of the FTC Act would be frustrated if the exemption were applied. The same analysis, the Commission contends, can be applied to its power under the Wheeler-Lea Amendment to the FTC Act to protect consumers by investigating and regulating deceptive advertising practices. Act of March 21, 1938, ch. 49, § 3, 52 Stat. 111. The agency points to its expertise in dealing with such practices and to Congress’ perception of the desirability of having a single agency regulate in this area. It then argues that, because the ICC does not and perhaps cannot regulate the advertising practices of common carriers and because a gap in regulation would frustrate the legislative purpose in enacting the Amendment, the exemption cannot be applied to bar the instant investigation.
We need not decide whether the FTC is correct in its statement that the non-carrier activities of a common carrier do not fall within the scope of the § 6 exemption. Assuming that to be correct, it does not follow that a corporation engaged solely in carrier activities steps outside the exemption whenever those activities are not of a type ordinarily regulated by the ICC. The regulatory approach articulated by the Commission, while it may be a desirable one, is not the one Congress appears to have adopted. Before the Wheeler-Lea Amendment, § 5(a)(1) of the Act had declared unlawful, and then § 5(a)(6) of the Act (renumbered in 1975 as § 5(a)(2)) had empowered the Commission to prohibit, only “unfair methods of competition in commerce.” The Amendment inserted in both those subsections the additional words “and unfair or deceptive acts or practices in commerce.” It did not, however, alter in any way the exemption provisions of the latter subsection or of § 6. Thus, as amended, § 5 declares unlawful both anticompetitive practices and unfair or deceptive acts or practices and, further, empowers the Commission to prevent persons, except regulated common carriers (and certain others), from engaging in the conduct declared unlawful. There is no conceivable basis for holding that the exception applies to one type of forbidden conduct but not the other. The Commission’s argument must therefore fail, and, having failed with respect to § 5(a)(2), it necessarily fails with respect to § 6(a) as well.
The Commission’s argument, moreover, is based on a questionable assumption, viz., that Congress contemplated and intended a perfect correlation between the end sought (avoidance of inter-agency conflict) and the means adopted (the exemption) so that there would be no gap in the regulatory framework. Subsequent legislative history, however, tends to refute that assumption. First, in 1975 Congress added § 57a(f) to the FTC Act to eliminate an identical gap that existed with regard to banks. Act of Jan. 4, 1975, Pub.L. No. 93-637, title II, § 202(a), 88 Stat. 2193, codified in 15 U.S.C. § 57a(f) (Supp. V, 1975). The Committee that formulated the legislation stated,
“Under the Federal Trade Commission Act the Commission does not have authority to regulate banks. This legislation does nothing to change this situation. However, your committee is mindful that some acts or practices of banks can be unfair or deceptive to consumers.” H.Rep. No. 1107, 93d Cong., 2d Sess., in 1974 U.S.Code Cong. & Adm.News at 7702, 7729.
In order to remedy this problem, the Federal Reserve Board was empowered, and indeed required, to promulgate regulations adapted for banks and other financial institutions from regulations already promulgated by the FTC. Three agencies were empowered to enforce these regulations: the Federal Reserve Board itself, the Comptroller of the Currency, and the Federal Deposit Insurance Corporation. In erecting such a statutory scheme, Congress demonstrated its adherence to its traditional policy of dividing regulatory responsibilities along industry lines, rather than, as the FTC suggests, on the basis of particular activities. Moreover, because the statutory exemption for banks is coextensive with the exemption for common carriers, Congress’ recognition of a regulatory gap with respect to banks is implicitly a recognition of such a gap with respect to common carriers as well.
Second, in 1973 Congress added the following proviso to § 6 of the Federal Trade Commission Act:
“Provided, That the exception of ‘banks and common carriers subject to the Act to regulate commerce’ from the Commission’s powers defined in clauses (a) and (b) of this section, shall not be construed to limit the Commission’s authority to gather and compile information, to investigate, or to require reports or answers from, any person ... to the extent that such action is necessary to the investigation of any person, partnership, or corporation . . . which is not engaged or is engaged only incidentally in banking or in business as a common carrier subject to the Act to regulate commerce.” 15 U.S.C. § 46 (Supp. V, 1975).
Inserted as a part of the Alaska Pipeline Bill, this proviso was intended primarily to augment the FTC’s powers to investigate oil companies. Prior to the amendment, such investigations had been hampered by the apparent inability of the FTC to subpoena the records of pipeline companies, which are common carriers subject to ICC regulation. 119 Cong.Rec.H. 9814 (Nov. 13, 1973). The proviso allows the FTC to subpoena such records in aid of a third-party investigation; it would also seem to allow investigation of companies which are marginally involved in a common-carrier business. The proviso does not, however, allow the agency to investigate all of a corporation’s noncarrier activities. Rather, it implies that, where a corporation is more than “incidentally” involved in the common-carrier business, all its activities are immune from FTC scrutiny. As such, it casts considerable doubt on the main premise of the FTC’s argument, i. e., that a carrier’s activities may be investigated whenever they exceed the boundaries of ICC control.
The Commission itself took a view of the statute contrary to the one it now espouses in 1975 when it presented testimony before a Senate Committee in support of a bill to delete the common-carrier exemption completely from § 5 of the Act. S. 642, 94th Cong., 1st Sess. Testifying on behalf of a “unanimous Commission,” the Director of the Bureau of Consumer Protection asked that the exemption be deleted from § 6 as well so that the “unfortunate gap” arising from the ICC’s failure to regulate common carriers fully could be eliminated. Hearings on S. 642 before the Sen.Comm. on Commerce, 94th Cong., 1st Sess. 73 (1975). As we have already observed, this inconsistent agency pronouncement hardly adds weight to the interpretation of the Act the Commission now urges on the court.
Finally, we note that a variation of the FTC’s argument to this court was rejected by the Supreme Court in United States v. Philadelphia National Bank, 374 U.S. 321, 336 n.11, 83 S.Ct. 1715,10 L.Ed.2d 915 (1963). In that case one issue was whether banks were subject to the FTC’s jurisdiction under § 11 of the Clayton Act, 15 U.S.C. § 21, which empowers the Federal Reserve Board to enforce the Act “where applicable” to banks and the FTC to enforce it “where applicable” to “all other character of commerce.” The Federal Reserve Board had no authority to regulate bank mergers, and therefore it was argued that Congress must have intended the FTC to have that power. In the absence of any “intimation in the legislative history of the 1950 amendment to §§ 7 and 11 that the FTC’s traditional lack of jurisdiction over banks was to be disturbed,” the Court rejected the argument that Congress could not have intended to create a regulatory gap. Similarly, in the case at bar, the FTC has failed to point to anything in the legislative history of the FTC Act suggesting that Congress intended the clear language of the common-carrier exemption to be tortured into a limitation only upon ICC-regulated activities. Thus, we hold that, having conceded Morgan’s common-carrier status, the FTC is without jurisdiction to investigate that company.
III.
We turn now to whether Morgan’s immunity under § 6 may properly be asserted in a subpoena enforcement proceeding, despite the doctrine of Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). In FTC v. Feldman, 532 F.2d 1092, 1096 (7th Cir. 1976), Chief Judge Fairchild set out three situations in which the Oklahoma Press rule prohibiting litigation of coverage issues in subpoena-enforcement proceedings does not apply:
“(1) the agency has clearly violated a right secured by statute or agency regulation, Leedom v. Kyne, 358 U.S. 184, 188-189, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); Elmo Division of Drive-X Company v. Dixon, 121 U.S.App.D.C. 113, 348 F.2d 342, 346-347 (1965); (2) the issue involved is a strictly legal one not involving the agency’s expertise or any factual determinations, Jewel Companies, Inc. v. F.T.C., 432 F.2d 1155,1159 (7th Cir. 1970); McKart v. United States, 395 U.S. 185, 197-99, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); or (3) the issue cannot be raised upon judicial review of a later order of the agency, Jewel, supra, at 1159.”
In the case at bar, all three of these standards are met. First, as we have held, Morgan has a clear right, conferred upon it by statute, to be free from FTC investigation. Second, the only factual question that could possibly arise, given our view of the statute — i. e., whether Morgan possesses the status of a common carrier — has already been conceded by the agency. Finally, because the right asserted is the right to be free from investigation — and not from regulation — it can never be effectively protected on review of a later order. Once conducted, the investigation would be a fait accompli for which Morgan would have no remedy. This would be so whether the investigation was followed by an agency decision to take no action or by a cease and desist order. Refusal of a court to enforce that order would not undo the investigation.
Because the case at bar meets these three tests, it is not governed by the Oklahoma Press doctrine. This is not a case in which the respondent argues that it is not within the category of entities the agency is clearly empowered to regulate. E. g., Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); FTC v. Gibson, 460 F.2d 605, 608 (5th Cir. 1972); United States v. Feaster, 376 F.2d 147 (5th Cir. 1967); NLRB v. Northern Trust Co., 148 F.2d 24 (7th Cir.), cert. denied, 326 U.S. 731, 66 S.Ct. 38, 90 L.Ed. 435 (1945). See also Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). In such a case the issue is the essentially factual one of classification. Here, the classification has been conceded and the issue is the purely legal one of whether or not any corporation within that category may be subjected to agency investigation.
To say that the issue is one of statutory construction, however, does not end the analysis. The Commission cites three such cases in which courts have granted enforcement of subpoenas, holding in effect that the primary responsibility for interpreting the statute rested with the agency. Yet these cases too are distinguishable from the case at bar. In Crafts v. FTC, 244 F.2d 882 (9th Cir. 1957), the issue was the FTC’s power to subpoena an insurance company’s records pursuant to an investigation of its advertising practices. The Ninth Circuit held that the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1012, which withdraws authority from the FTC over insurance companies “to the extent” that such companies are regulated by state law, required the district court to deny enforcement. The Supreme Court summarily reversed, 355 U.S. 9, 78 S.Ct. 33, 2 L.Ed.2d 23 (1957), citing Endicott Johnson Corp. v. Perkins, supra, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424, and Oklahoma Press Publishing Co. v. Walling, supra, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614. In such a case, where one agency’s power to regulate depends on the absence of regulation by another, allowing the agency to make the primary jurisdictional determination is clearly the preferable solution. The case at bar, however, does not fall into this category because, as we noted in Part II, the FTC’s power to investigate common carriers is not tied to the ICC’s powers in this area.
In SEC v. Brigadoon Scotch Distributing Co., 480 F.2d 1047, 1052 (2d Cir. 1973), one issue was whether the deletion of a certain phrase from the Securities Act, 15 U.S.C. § 77b(l), had withdrawn the warehouse receipts sold by respondents from the category of “securities” subject to SEC regulation. That determination depended on whether the receipts were within the scope of the original statutory language and, if so, what the intent of Congress had been in deleting that part of the definition. Presented with both a fact question and the necessity of interpreting an ambiguous statutory provision, the court deferred its consideration until after the agency had taken some reviewable action. In the case at bar, on the other hand, there are no fact questions remaining and the statutory provision in question is clear on its face.
Finally, in SEC v. Wall Street Transcript Corp., 422 F.2d 1371 (2d Cir. 1970), the issue was whether a trade journal was exempt as a “bona fide” newspaper from the fiduciary duties of an investment adviser under the Investment Advisers Act of 1940, 15 U.S.C. § 80b-2(a)(ll)(D). The district court, finding that respondent was undeniably a newspaper, denied enforcement of the agency’s subpoenas. The Court of Appeals reversed, holding that the definition depended on the nature of the practices involved and not on whether the normal indicia of a newspaper business were present. In so holding, the Second Circuit accepted an interpretation of the statute there involved that we have found unsupported by the legislative history of the statute before us in this case, viz., that the exemption should be defined in terms of the need to regulate certain activities rather than in terms of the status of the entity to be regulated. Id. at 1377.
A final distinction between the cases cited by the Commission and the case
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_respondent
|
160
|
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.
UNITED STATES v. SOUTH BUFFALO RAILWAY CO. et al.
No. 198.
Argued February 2, 1948.
Decided April 26, 1948.
Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Sonnett, Robert G. Seaks and Robert W. Ginnane.
Bruce Bromley argued the cause and filed a brief for appellees.
C. A. Miller and Wm. J. Kane filed a brief for the American Short Line Railroad Association, as amicus curiae, urging affirmance.
Mr. Justice Jackson
' delivered the opinion of the Court.
The Government, by direct appeal from the District Court, invites us to reconsider and overrule the interpretation of the commodities clause of the Interstate Commerce Act promulgated in United States v. Elgin, Joliet & Eastern R. Co., 298 U. S. 492. That holding, in substance, is that the prohibition against a railroad company transporting any commodity which it owns or in which it has an interest, except for its own use, does not prevent it from transporting commodities of a corporation whose stock is wholly owned by a holding company which also owns all of the stock of the railway, unless the control of the railway is so exercised as to make it the alter ego of the holding company.
The present challenge to that doctrine is predicated on the following facts: Bethlehem Steel Corporation (the holding company) owns substantially all of the stocks of South Buffalo Railway Company (South Buffalo) and of Bethlehem Steel Company (the Steel Company). At its Lackawanna plant, near Buffalo, N. Y., the Steel Company produces steel and from it fabricates various products. These commodities are transported by the South Buffalo from the plant to the rails of trunk-line carriers. In fact, South Buffalo provides the sole terminal connection between this industry and the trunk-line railroads. It operates about 6 miles of main-line track and 81 miles of spur track, 58 miles of its trackage being on leased right-of-way within the steel plant where it connects with other trackage owned by the Steel Company itself.
While about 70% of South Buffalo revenues have been derived from the Steel Company traffic, it also renders terminal switching for 27 unrelated industries, some of considerable size. It enables all of them to ship, by direct connection, over five trunk-line systems and through interchange over seven more.
South Buffalo performs no transportation service and owns no facilities outside of the State of New York, where it operates only within the Buffalo switching district. It is classified by the Interstate Commerce Commission as an “S-l” carrier, which is defined as one engaged in “performing switching services only.” It files tariffs covering switching service, both with the Interstate Commerce Commission and with the New York Public Service Commission. It does not appear to participate with any line-haul railroad in a through interstate route or to receive a division of any joint or through rate.
In 1936 this Court decided United States v. Elgin, Joliet & Eastern R. Co., 298 U. S. 492, and held that the production and transportation set-up of the United States Steel Corporation, one of Bethlehem’s competitors, did not violate the commodities clause. Thereupon, Bethlehem made a study of the relations between itself, South Buffalo and the Steel Company in the light of this decision. It revised its intercorporate relationship in the next few years to comply, as it was advised, with the conditions under which this Court had found the statute inapplicable to United States Steel. It does not seem necessary to recite the complex details of intercorporate dealings before the reorganization about 1940 as this action for injunction was not begun until 1943 and the crucial question is whether there was a contemporaneous violation or a threat of violation against which the writ of the Court should be directed. Voluntarily abandoned courses of conduct are not grounds for injunction, though they may sometimes be relevant evidence of intent or similar issues.
At all times crucial to the Government’s case, Bethlehem controlled the stock of both the shipper and the carrier corporations. It unquestionably had power to favor its shipping subsidiary at the expense of its carrying subsidiary, or vice versa. The first question is whether we will now hold that mere possession of the power, regardless of whether it is exercised or remains dormant, makes out a violation of the statute. This Court said in the Elgin case that it does not.
It is the Government’s contention that the Elgin decision misconstrued the Act, misunderstood its legislative history and misapplied the Court’s own prior decisions. It is not necessary in the view we take of the case to decide to what extent, if any, these contentions are correct. It is enough to say that if the Elgin case were before us as a case of first impression, its doctrine might not now be approved. But we do not write on a clean slate. What the Court has written before is but one of a series of events, which convinces us that its overruling or modification should be left to Congress. As the Court held on our last decision day, when the questions are of statutory construction, not of constitutional import, Congress can rectify our mistake, if such it was, or change its policy at any time, and in these circumstances reversal is not readily to be made. Massachusetts v. United States, 333 U. S. 611, decided April 19, 1948. Moreover, in this case, unlike the cited one, Congress has considered the alleged mistake and decided not to change it.
The Interstate Commerce Commission, after repeatedly calling the attention of Congress to the Elgin case during its pendency, in 1936 reported its defeat in the litigation. Referring to commodities clause cases it said, “We recommend that Congress, in the light of facts already made available in our reports and in reports of investigations conducted by congressional committees, shall determine the appropriate limit of our jurisdiction in such cases and whether further legislation to extend that jurisdiction is necessary.” Congress took no action.
But its inaction has not been from inadvertence or failure to appreciate the effect of the Court’s interpretation. A bill was introduced in the Senate containing language relating to affiliates and subsidiaries calculated in effect to set aside the Elgin decision. Section 12 of the bill as introduced read as follows:
“It shall be unlawful for any carrier by railroad and, on and after January 1, 1941, it shall be unlawful for any carrier, other than a carrier by air, to transport, in commerce subject to this Act, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, or produced by or under the authority of such carrier or any subsidiary, affiliate, or controlling person of such carrier, or any such article or commodity in which such carrier, subsidiary, affiliate, or controlling person has any interest, direct or indirect, legal or equitable, except such articles or commodities as may be necessary or intended for use in the conduct of the carrier business of such carrier.”
The italicized portions indicate the proposed additions which would have extended the clause to cover (1) carriers other than railroads, and (2) subsidiaries, affiliates and controlling persons.
At the beginning of hearings thereon by the Senate Committee on Interstate Commerce its chairman said that, with respect to the commodities clause, the purpose of the Bill was “To make effective the intent of Congress in prohibiting railroads, or other carriers after January 1, 1941, from transporting products not utilized in the conduct of their transportation business but in which they have an interest, direct or indirect.” A week later, in the course of the hearings when evidence began to be offered showing the effect the proposed clause might have on various industries, the chairman made this statement:
“Let me say this to you with reference to the commodities clause, so that there will not be a lot of time wasted on it. I am speaking for myself and not for the committee. I think the commodities clause will have to be changed; and if we are going to make such drastic changes in the commodity clause as this bill would suggest, I think it ought not to be incorporated in this particular piece of legislation, but should come up as a separate piece of legislation so that we can devote considerable time and thought to that particular subject. This would so change the economic structure of a lot of industries that I think it is something that would have to have particular consideration in a separate piece of legislation.”
In a further discussion the Chairman added: “I might say, also, that if the commodities clause should stay in as it is at the present time it would disrupt a great many industries, and I would seriously question as to whether or not I wanted to attempt anything of that kind at this time, particularly in this specific piece of legislation.”
When the bill was reported to the Senate, the proposed change had been eliminated and the original language of the Act retained. The Committee, in reporting the bill, said, “The rewritten commodities clause was considered far too drastic and the subcommittee early decided against any change therein.”
The Government argues that the characterization of the rejected revised commodities clause as “too drastic” was based on the proposed extension of its terms to all common carriers and not on the proposal to include a “subsidiary, affiliate, or controlling person” of a carrier. We believe, however, that a fair reading of the legislative history leads to the conclusion that the “drastic readjustment” feared by the Committee was that expected from the application sought here by the Government, at least as much as that feared from extension of the clause to cover carriers other than railroads. If the Committee objected only to extending the clause to other carriers, it would have been a simple matter to delete the short series of words which would have accomplished that change, and still leave undisturbed the more complicated provision concerning subsidiaries and affiliates, since the text of each provision is wholly disconnected from the other.
In view of the foregoing, it seems clear that when, in discussing whether or not this revised clause would have “prevented the steel company, or somebody in that position, from operating their own railroad,” the Committee Chairman said “I did not intend such a result,” he expressed the view which prevailed in the Committee and in the Congress.
The Government now asks us to apply the unchanged language as if Congress had adopted the proposal which it rejected as “far too drastic.” The considerations which led to the suggestion that the problem presented by the Government’s position would require separate legislation and particular consideration seems to us to require that the problem be left to legislation rather than to the judicial process. And the pertinent portions of the legislative history which are set out at length in the margin indicate clearly, we think, that this Senate Committee responsible for S. 2009, which became the Transportation Act of 1940, deliberately refused to recommend and the Congress refused to legislate into the law the change we are now asked to make by judicial decision.
We could, of course, refuse to follow the Elgin precedent, and apply a different and more drastic rule to Bethlehem than applies to its competitor. Congress, however, in making a rule for the future, can make one of impartial application to all like situations. Limitations that are traditional upon our powers do seem not to permit us to do so.
Whatever may be said of the Elgin decision, when the Committee of Congress faced the readjustments its overruling would force, and with special reference to the steel industry, it concluded the decision should be allowed, at least for the present, to stand. We cannot ignore the considerations they found to be so persuasive, and which are equally involved in the request that we do what Congress considered and abandoned.
The relief asked of us as a court of equity is so drastic in nature as to afford an example of an “upset” in an industry owning a short line of railroad of the type referred to by the Chairman of the Interstate Commerce Committee of the Senate, who said “it is questionable whether we would want to make such a radical departure from the present system.” The demand is for an injunction perpetually to enjoin and restrain South Buffalo from transporting commodities in which the Steel Company or the holding company owns an interest. There is no other rail route by which inbound raw materials or outbound products of this huge industry can reach trunk-line railroads. And the traffic that we are asked thus to prohibit yields 70% of the railroad’s revenues, and if taken away would doubtless substantially increase the cost of service to the unaffiliated industries that would remain to be served. Of course, what is literally asked is probably not what is ultimately desired. To forbid the physical operation as now conducted would be needlessly damaging to both shipper and carrier. What is aimed at, we suppose, is to force such a change of financial structure as will divorce shipper interest from all transportation interest. It seems clear, however, in the light of the legislative history, that this is the kind of operation that Congress did not want to prohibit because the prohibition was thought too drastic. If an independent ownership could be found for South Buffalo, it might be desirable. But independent ownership of a dependent facility wedged in between shippers, one of whom controls 70% of its revenues, and the trunk-line railroads, is not shown to be likely. Under the Government’s theory, no other shipper or group of shippers any more than Bethlehem could own the road. Nor is it clear that any evils exist or are threatened which would be eliminated if this operation were transferred to control of one of the trunk-line railroads or to a pool of them. This road, despite its shipper ownership, is bound by both federal and state law to serve all shippers without discriminations or unreasonable charges. The Commission has power to exact compliance with these duties. The argument, however, is that a situation exists which presents opportunity and temptation for abuse and for concealed evasions of duty. But to forestall possible abuses we are asked to apply a remedy which there is indication failed of congressional approval because its application to many situations would be too drastic and would do greater injury to shipper and transportation interests than could result from its withholding. In the light of the history of this clause since the Elgin decision and the equitable considerations involved in this case, we decline to overrule the interpretation Congress has not seen fit to set aside.
The argument is made that even accepting the Elgin decision the evidence here establishes that Bethlehem has so exercised its power over South Buffalo as to reduce the railroad to a mere department of Bethlehem. The trial court found against the Government and considered that on this subject this case contains much less proof to sustain an injunction than did the Elgin case. Without reciting the voluminous evidence in detail, we agree. Bethlehem, as a stockholder, of course controlled South Buffalo. It did not, however, disregard in either the legal or economic sense, the separate entity of its subsidiary or treat it as its own alter ego. On the contrary, it rather ostentatiously maintained the formalities of separate existence, choosing as directors several Buffalo citizens who were not interested in Bethlehem. We are not naive enough to believe that Bethlehem chose men for the posts whose interests or records left any fair probability that they would act adversely to Bethlehem in representing its interest as chief stockholder of the railroad. Nor has any instance been cited in which the best interests of the railroad would require them to do so. So long as Congress considers it inadvisable to extend the prohibition of the commodities clause to subsidiaries and affiliates, we see nothing that Bethlehem has done to incur liability for its violation. Of course, it could not expect the Commission or the courts to respect a corporate entity which Bethlehem itself disregarded; but that it has not done. The subsidiary would not have to establish its separate identity by a course of hostility to its sole stockholder or its chief customer. Its identity has been preserved in form and in substance — the substance of separate corporate existence being itself largely a matter of form. Under the Elgin case and until Congress shall otherwise decide, this is sufficient.
Judgment affirmed.
49 U.S.C. § 45; 28 U.S. C. § 345.
49 U. S.C.§ 1 (8).
The complete text of the commodities clause provides: “From and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect, except such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier.”
50th Annual Report I. C. C. 30 (1936).
S. 2009, 76th Cong., 1st Sess., March 30 (legislative day March 28) 1939.
Hearings before Senate Committee on Interstate Commerce on S. 2009, 76th Cong., 1st Sess., 3 (April 3, 1939).
Id., at 427 (April 10,1939).
Ibid.
Senate Report No. 433, 76th Cong., 1st Sess., 15 (May 16, legislative day May 8,1939).
The extent of the consideration which the Senate Interstate Commerce Committee gave to the proposed revision of the commodities clause is indicated by the following excerpts from Hearings on S. 2009, held from April 3 to April 14, 1939:
In opening the hearing, Senator Wheeler, Chairman, stated that, with respect to the commodities clause, the purpose of the bill was “to make effective the intent of Congress in prohibiting railroads, or other carriers after January 1, 1941, from transporting products not utilized in the conduct of their transportation business but in which they have an interest, direct or indirect.”
During the testimony of the General Counsel, Association of American Railroads, the following colloquies took place:
“Senator Reed. Judge, in section 12 there is some new language. I have marked it ‘O. K.’ here. That is to cover the decisions of the Supreme Court in the E. J. & E. case?
Mr. Fletcher. I will get to that in just a moment. There is new language in there. . . .
Mr. Fletcher. I come to section 12, the commodities clause, about which I would like to say a word.
It was the thought of those who drew the bill, H. R. 4862, to undertake to put into statutory form the recommendation of the Committee of Six that they ought to extend the commodities clause, which now applies only to railroads, to water carriers and motor carriers as well.
Now, I think the water carrier people will object to that ....
... I think some of the steel companies have water operations of that kind. I mention that as a change in the law suggested by the draftsmen who prepared the bill, reflecting the views of the Committee of Six.
The Chairman. Judge, somebody called me on the phone the other day . . . and asked me as to whether or not in my opinion this prevented the steel company, or somebody in that position, from operating their own railroad, where they have a small railroad that they are operating. I did not intend such a result. [Emphasis supplied.]
Mr. Fletcher. This bill has no relation to that. One of my associates suggests, Senator, that possibly this language, which I was just about to mention and which was called to my attention a few minutes ago by Senator Reed, might possibly have that effect.
Senator Reed. I would disagree with the chairman, if I may be so bold. I think the commodities clause would have that effect in the bill that we are currently discussing. [Emphasis supplied.]
Mr. Fletcher. When I said so promptly and perhaps rashly that I did not think it did, I did not have in mind this particular amendment, which I will now mention.
Senator Reed. I am perfectly willing that it should have that effect.
The Chairman. Well, I doubt that it should. For instance, a lumber company may own some railroad.
Senator Reed. You exempt that?
Mr. Fletcher. You exempt the lumber company?
The Chairman. Yes.
Mr. Fletcher. It might not be altogether lumber.
The Chairman. I was speaking, for instance, of some steel company or some other industrial company which might own a short railroad. [Emphasis supplied.]
Senator Reed. The United States Steel Co. owns the Union Railroad Co.
The Chairman. I do not know what the Union Railroad Co.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_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".
In re Bob R. LYNDE, Cheri L. Lynde, & LZP, Inc., Petitioners-Appellants. In re Margaret RIENKS and the Estate of George Rienks, Jr., Oscar R. Lee, & James Michael Zachary, Respondents-Appellees.
No. 90-1035.
United States Court of Appeals, Tenth Circuit.
Jan. 7, 1991.
James D. Evans of James D. Evans, P.C., Aurora, Colo., for petitioners-appellants.
Harold A. Haddon and Norman R. Mueller of Haddon, Morgan & Foreman, P.C., Denver, Colo., for respondent-appellee Margaret Rienks.
Before SEYMOUR, BALDOCK, and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
This is an appeal taken from the district court’s January 29, 1990 order dismissing the petition for release of grand jury testimony of George W. Rienks, Jr., now deceased. Bob R. Lynde, Cheri L. Lynde, and LZP Inc. (“petitioners”) base their appeal on the following grounds: (1) the trial court abused its discretion by not finding that petitioners had established the requisite particularized need warranting disclosure of the grand jury transcripts; (2) it was error for the trial court to presuppose the testimony would be inadmissible at a later state court trial; and (3) the trial court erred in considering the objection filed by Michael J. Zachary as he lacked standing to file such an objection in this action. We disagree with the above contentions and therefore affirm.
I. BACKGROUND
On January 9, 1989, Margaret Rienks, widow of George W. Rienks, Jr., filed suit in the Denver District Court against Bob and Cheri Lynde, seeking to collect on a promissory note of which she is the holder. The note was originally executed by Bob and Cheri Lynde in favor of George W. Rienks, Jr. The promissory note had been executed and delivered as payment for stock in a Colorado Corporation (“LZP, Inc.”) purchased by petitioners from George W. Rienks, Jr. Mr. Rienks subsequently died and Margaret Rienks succeeded to her husband’s interest in the note. After the Lyndes failed to make payment under the note, Margaret Rienks commenced suit. Petitioners then filed a counterclaim asserting, inter alia, claims of misrepresentation and fraudulent concealment by George W. Rienks, Jr. relating to his alleged involvement in an illegal “kickback scheme” that artificially inflated the value of the LZP, Inc. stock at the time of sale.
The Lyndes then requested the court to release the testimony of George W. Rienks, Jr. given at a grand jury proceeding prior to his death. The motion for release of the grand jury testimony alleged that “[George W. Reinks, Jr.’s] testimony [was] needed for evidentiary purposes in a ... civil action ... wherein [the movants] are defending an action brought by the widow of George W. Rienks, Jr., Margaret Rienks, for the enforcement of a note,” and that the grand jury testimony “would be extremely helpful to the movants’ defense of their case.” The district judge issued an order calling for objections from interested persons in opposition to the release of the transcripts. Two objections were filed, advancing substantially the same arguments, one by Margaret Rienks, and the other by Michael J. Zachary. After considering the objections, the district court entered an order denying the petition for release of George Rienks’s grand jury testimony. In its order, the district court ruled that disclosure of grand jury testimony requires a strong showing of particularized need and that petitioners had failed to make such a showing. The district court further stated that although it believed the transcripts would be relevant to the present civil action, it had “grave doubts that the jury would ever be permitted to see the statements,” based on the uncontested assertion that the testimony would be inadmissible hearsay under Colo.R.Evid. 804(b)(1), thus “without value at trial.”
II. DISCUSSION
Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional rules governing the disclosure of grand jury materials. Subsection (C) of that rule authorizes courts, under certain circumstances, to order disclosure otherwise prohibited. One such exception to the general disclosure prohibition is that disclosure may be made “when so directed by a court preliminarily to or in connection with a judicial proceeding.” Fed.R.Crim.P. 6(e)(3)(C)(i).
In Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), the Supreme Court held “a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion.” Id. at 223, 99 S.Ct. at 1675. We therefore review the district court’s denial of petitioners’ request for disclosure under an abuse of discretion standard. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 397, 79 S.Ct. 1237, 1239, 3 L.Ed.2d 1323 (1959); United States v. Warren, 747 F.2d 1339, 1347 (10th Cir.1984). In Douglas Oil, the Court also enunciated the proper standard for determining when the presumption against disclosure of grand jury matters can be overcome:
Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than thé need for continued secrecy, and that their request is structured to cover only material so needed.
Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674 (footnote omitted). The most significant of these factors is that the party seeking disclosure must sufficiently demonstrate the requisite “particularized need.” Id. at 223, 99 S.Ct. at 1675; United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958); United States v. Rising, 867 F.2d 1255, 1260 (10th Cir.1989); United States v. Evans & Associates Constr. Co., 839 F.2d 656, 658 (10th Cir.1988).
There is “a long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.” Procter & Gamble, 356 U.S. at 681, 78 S.Ct. at 986 (1958); Warren, 747 F.2d at 1347 (10th Cir.1984); see also Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546 (1943). It is clear that disclosure of grand jury materials is appropriate only where the need for disclosure outweighs the public interest in the secrecy of the proceedings. Douglas Oil, 441 U.S. at 223, 99 S.Ct. at 1675; Procter & Gamble, 356 U.S. at 682, 78 S.Ct. at 986; Evans & Assoc., 839 F.2d at 658. The burden of demonstrating this balance rests on the party seeking disclosure, Douglas Oil, 441 U.S. at 223, 99 S.Ct. at 1675, who must also demonstrate “that there is a particular, not a general, need for the material.” Evans & Assoc., 839 F.2d at 658.
In the instant case, petitioners argue the grand jury testimony of George W. Rienks, Jr. is needed for evidentiary purposes in connection with their pending civil litigation with Margaret Rienks, thus establishing the first of the Douglas Oil factors, that the testimony is needed “to avoid a possible injustice in another judicial proceeding,” Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674. The pending civil action, instituted by Margaret Rienks, alleges breach of a purchase agreement by Bob R. Lynde and default on a promissory note by both Bob and Cheri Lynde. Petitioners’ subsequently filed counterclaim asserts, inter alia, fraudulent concealment and misrepresentation by George Rienks relating to his alleged involvement in an illegal “kickback scheme,” which resulted in the overvaluation of LZP, Inc. at the time the Lyndes purchased the company’s stock. In support of their motion to release the grand jury testimony of George W. Rienks, Jr., petitioners offered the pleadings filed in their civil action against Margaret Rienks and argued that the testimony “would be extremely helpful to [their] defense.”
Petitioners’ first contention on appeal is that the district court erred in holding petitioners had failed to meet the particularized need standard that would justify disclosure of the grand jury transcripts. Because the party seeking disclosure of grand jury testimony under Fed.R.Crim.P. 6(e) bears the burden of establishing a particularized need, the party’s proposed use of the testimony is extremely significant. Without showing the proposed use is achievable, the requisite particularized need standard cannot be reached. Requiring a showing of particularized need impliedly requires the party seeking disclosure to demonstrate a specific and allowable use for the testimony. A showing that the testimony would be relevant and helpful in a connected proceeding is not sufficient to meet this burden. In the instant case, petitioners argue that the grand jury testimony is needed for “evidentiary purposes.” This proposed use therefore requires an inquiry into what the evidentiary impact of the testimony would be in the pending trial. This inquiry and the district court’s handling of it shall be discussed infra.
In support of their first contention, petitioners advance three main bases to show the requisite particularized need was established: (1) that the testimony is necessary to overcome the “evidencing” problem of Colorado’s Dead Man’s Statute; (2) that due to the lack of knowledgeable witnesses, denial of the transcript would severely prejudice petitioners’ case; and (3) that the need for secrecy of the grand jury proceedings no longer exists.
Petitioners contend the grand jury testimony was necessary “to overcome the evidencing problem encountered by operation of the Dead Man’s Statute, C.R.S. 1973 § 13-90-102.” In other words, petitioners argue that the testimony is needed so it can be introduced as evidence at the civil trial. If decedent’s testimony were admitted, petitioners would no longer be barred from testifying as to their conversations and transactions with Mr. Rienks. One of the purposes behind the testimonial bar provided in Colo.Rev.Stat. § 13-90-102 is to protect a decedent’s estate from claimants attempting to testify as to acts or transactions with the decedent that can no longer be verified. First Nat’l Bank of Colorado Springs v. Morris, 721 P.2d 1192 (Colo.Ct.App.1985); In re Estate of Lopata, 641 P.2d 952 (Colo.1982); Coon v. Berger, 588 P.2d 386 (Colo.Ct.App.1978), aff'd, 199 Colo. 133, 606 P.2d 68 (1980). We will not grant petitioners’ disclosure request merely to allow the circumvention of Colorado’s Dead Man’s Statute.
In Berger v. Coon, 199 Colo. 133, 606 P.2d 68, 69 (1980), the Colorado Supreme Court affirmed the district court’s opinion declaring the purpose of the Dead Man’s Statute to be an “attempt to maintain equality between parties at trial through limitations upon admissibility of evidence, thereby promoting justice.” The court also ruled, however, that when dealing with admission of former testimony of a witness since deceased, the testimonial safeguards of the Dead Man’s Statute could be satisfied by fulfilling the foundational requirements of Colo.R.Evid. 804(b)(1). Id. 606 P.2d at 70. Under Colo.R.Evid. 804(b)(1), prior to the admission of former testimony of a witness since deceased, the party seeking its admission must show “both a prior opportunity by the party against whom the prior testimony is offered to develop the offered testimony, and a similar motive to do so.” Id. We are unable to find any indication in the record that Margaret Rienks had a prior opportunity to develop the testimony of her husband, nor have petitioners made such a showing. We therefore find petitioners have failed to meet the foundational requirements of Fed. R.Evid. 804(b)(1), which would have allowed the admission of testimony otherwise barred by the Dead Man’s Statute.
Notwithstanding a lengthy witness list, petitioners next contend that denying release of the grand jury transcript would severely prejudice “their truth seeking process and ... preparation of their claims,” in that “[ajside from the decedent, George W. Rienks, Jr., the only two people who had detailed, personal information of the ‘kick back’ scheme were Oscar Lee and Michael J. Zachary,” and both have indicated they would assert their Fifth Amendment rights if called to testify. The rule governing disclosure of grand jury testimony “is not to be used as a substitute for general discovery.” Evans & Assoc., 839 F.2d at 658; Lucas v. Turner, 725 F.2d 1095, 1106 (7th Cir.1984) (grand jury testimony should not be used “as a panacea for improper, inadequate and untimely discovery”). Petitioners contend that although Michael Zachary was aware of the kickback scheme, he was not always present during conversations between Oscar Lee and George Rienks, therefore Mr. Zachary “would not be able to lay out the details of the transactions between Oscar Lee and Mr. Rienks.” Petitioners acknowledged they were currently attempting to obtain Mr. Zachary’s deposition, but argued that this pursuit “[did] not eliminate the particularized need to obtain the testimony of Mr. Rienks whose key testimony would support Petitioners’ claims or defenses.” We find petitioners’ contention to be without merit.
Petitioners also contend that the need for secrecy no longer exists in regard to Mr. Rienks’s grand jury testimony since “the criminal prosecutions have been concluded, the grand jury disbanded, [and] George W. Rienks, Jr. is deceased.” It is true that as the reasons for protecting grand jury secrecy become less significant the burden of showing justification lessens accordingly. Douglas Oil, 441 U.S. at 223, 99 S.Ct. at 1675. However, when the relevant grand jury proceedings have been concluded, as in the present case, “the interests in grand jury secrecy, although reduced, are not eliminated.” Id. at 222, 99 S.Ct. at 1674. There must still be a sufficient showing of the factors announced in Douglas Oil “even when the grand jury whose transcripts are sought has concluded its operations.” Id. Indeed, the Court enunciated additional factors that must be considered in the determination:
[I]n considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties.
Id. (emphasis added). After considering the competing interests involved herein, we find petitioners failed to sufficiently establish the second Douglas Oil factor, that the need for disclosure is greater than the need for continued secrecy.
We also note here, while not specifically addressed by petitioners or the district court, that petitioners’ request did not fulfill the third Douglas Oil factor since it was not “structured to cover only material so needed.” Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674. No attempt was made by petitioners to narrow the scope of their request for the release of Mr. Rienks’s testimony.
Again, determination as to whether a party has sufficiently demonstrated the requisite “particularized need” rests in the sound discretion of the trial court. United States v. Parker, 469 F.2d 884, 889 (10th Cir.1972); see also Pittsburgh Plate, 360 U.S. at 399, 79 S.Ct. at 1240. Typically, cases of “particularized need” arise when the litigant seeks disclosure of grand jury transcripts “to impeach a witness, to refresh his recollection, [or] to test his credibility.” Procter & Gamble, 356 U.S. at 683, 78 S.Ct. at 987. The instant case does not present the typical “particularized need” scenario as discussed in Douglas Oil or Procter & Gamble; see also Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129 (1940). “A general claim that disclosure of Grand Jury transcripts will possibly reveal exculpatory evidence is not enough to demonstrate ‘particularized need.’ ” Rising, 867 F.2d at 1260; see also Lucas.
Considering the Douglas Oil factors, and in light of our standard of review, we hold the district court did not abuse its discretion by denying petitioners’ request to release the grand jury testimony. Petitioners did not sufficiently demonstrate a specific and allowable use for the testimony, and thus the requisite “particularized need” or justification warranting disclosure of the grand jury transcripts could not be established.
Petitioners’ second allegation of error was in the district court’s “presupposing that the transcript would be inadmissible at a later state court trial,” when the issue of admissibility was not before it. As authority for this contention, petitioners cite People v. Casper, 631 P.2d 1134, 1136—37 (Colo.Ct.App.1981), which upheld a trial court’s refusal to rule in advance on defendant’s motion to limit the scope of previously suppressed evidence for purposes of cross-examination. The evidence in Casper, however, did not involve the use of grand jury materials as did the present case, and therefore the same secrecy concerns were not implicated. Based on the special considerations involved in the disclosure of grand jury materials, we do not find Casper, or the other cases cited in petitioners’ brief, persuasive on the disclosure issue presented herein.
It has been well established by this court and the Supreme Court that proper analysis of disclosure of grand jury materials involves a balancing of the competing interests of the need for the materials against the interests in maintaining the secrecy of the proceedings. Douglas Oil; Procter & Gamble; Evans & Assoc. As noted earlier (at 1460), consideration of these competing interests requires the court to examine the potential usefulness of the testimony to petitioners. In the instant case, petitioners’ entire claim of “need” was based on the contention that the testimony of George W. Rienks, Jr. was needed for “evi-dentiary purposes in the pending civil ease.” (Emphasis added.) Advancing this argument forced the district court to consider the potential evidentiary impact of the grand jury materials since it was the expressed purpose behind petitioners’ request. Determining the potential admissibility of the testimony at trial is certainly germane to the question of its usefulness to petitioners. Had the district court failed to consider the possible evidentiary effect of the testimony, its analysis would have been incomplete. If the testimony was inadmissible at trial, disclosure would not serve petitioners’ proposed use, and petitioners’ alleged claim of need would effectively be eliminated. Thus, in light of the special considerations involved in disclosure of grand jury material, it was proper for the district court to evaluate the potential admissibility of the requested testimony.
In their motion for release of the testimony, petitioners failed to demonstrate the testimony sought would be admissible in the pending civil trial. Neither in their response brief, nor in their brief on appeal, did petitioners contest the applicability of Colo.R.Evid. 804(b)(1) to the present facts. On appeal, however, petitioners advance several alternate theories under which the transcript might be admitted into evidence. We are not now required to consider these arguments. Matters raised for the first time on appeal and “not appearing in the record will not be considered by the court of appeals.” Neu v. Grant, 548 F.2d 281, 286 (10th Cir.1977). Nevertheless, we have reviewed petitioners’ claims regarding the alternate avenues of admissibility and find the theories are based on speculation and conjecture and are inapplicable to the present facts.
Petitioners’ final contention is that it was error for the district court to consider the objection filed by Michael J. Zachary as he “lack[ed] standing to do so.” Assuming, arguendo, that it was improper for the district court to consider Mr. Zachary’s objection, and even if we were to concede petitioners’ request that the objection be stricken, the disposition of this matter remains unaffected. The objection filed by Margaret Rienks, who clearly had standing, advanced substantially the same objections as did the one filed by Michael Zachary. Standing alone, Ms. Rienks’s objection provided sufficient support for the decision reached by the district court in its Order of January 29, 1990, and thus consideration of Mr. Zachary’s objection, even if erroneous, in no way prejudiced petitioners’ position.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM the decision of the district court denying the requested release of grand jury transcripts.
. In their amended counterclaim, petitioners contend: “The company records were initially overvalued because of the profits obtained through the kickback schemes. As such, the real value of LZP as presented to Lynde in 1979 was inflated by the kickback schemes."
. United States v. Gaudreau, No. 87-CR-41. The grand jury proceedings and criminal prosecutions involved in this matter have since been concluded.
.Both objections addressed the high “particularized need” standard required for disclosure and the evidentiary hurdle of Colo.R.Evid. 804(b)(1), which would render the grand jury testimony inadmissible as hearsay in the pending civil trial. In addition, Mr. Zachary’s objection stated: “The release of Mr. Rienks’ testimony would violate Mr. Zachary’s right of privacy in that it would make public potentially embarrassing statements about him which were given under a grant of immunity, with an assurance of confidentiality....”
In addition, a stipulation between petitioners and Gilbert Martinez was offered but not considered as the court did not find any relationship of Martinez to the action before it.
. In this order, Judge Babcock acknowledged a similar petition filed by the government requesting disclosure of the grand jury transcripts from the same proceedings, including that of George W. Rienks, Jr. This motion was denied by Judge Richard P. Matsch in United States v. Lee, No. 87-CR-41 (D.Colo. Dec. 12, 1989). Judge Babcock ruled the present effort was not barred by res judicata, however, since petitioners were neither parties nor in privity with the moving party in the previous action. Margaret Rienks does not contest this ruling in the present appeal.
. The relevant portions of Fed.R.Crim.P. 6(e) read as follows:
(e) Recording and Disclosure of Proceedings.
(2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.
(3) Exceptions.
(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made—
(i) when so directed by a court preliminarily to or in connection with a judicial proceeding;
(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury;
(iii) when the disclosure is made by an attorney for the government to another federal grand jury; or
(iv) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law.
If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.
. Colo.Rev.Stat. § 13-90-102(1) (1987) provides:
No party to any civil action, suit, or proceeding or person directly interested in the event thereof shall be allowed to testify therein of his own motion or in his own behalf by virtue of section 13-90-101 when any adverse party sues or defends as the trustee or conservator of a mentally incompetent person, or as the executor or administrator, heir, legatee, or dev-isee of any deceased person, or as guardian or trustee of any such heir, legatee, or devisee, unless when called as a witness by such adverse party so suing or defending....”
(Emphasis added.)
. Colo.R.Evid. 804(b)(1) provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declar-ant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(Emphasis added.)
.The witness list, endorsing forty-five witnesses, was filed by petitioners along with a supplemented disclosure certificate, which provided:
See attached witness list attached hereto as Exhibit A. Addresses of witness [sic] are unknown. Witnesses can expect to have knowledge of the Lee-Rienks kick back scheme asserted to in Defendants’ counterclaim.
(Emphasis added.) In their appeal, petitioners defend this inconsistency by arguing the witness list was endorsed on the eve of the deadline for filing the disclosure certificate, without opportunity to verify the extent of any witness’s knowledge of particular facts.
. Fed.R.Crim.P. 6(e)(3)(C).
. In their response to the objection filed by Margaret Rienks, petitioners claimed that "[o]f the[ ] two persons [having knowledge of the kickback scheme], only Oscar Lee would know everything which George W. Rienks, Jr. would have known.”
. See petitioners' Response to the Objection of Margaret Rienks, and the Order of January 29, 1990, where the district court acknowledged the absence of any contrary contention by petitioners relating to the application of Colo.R.Evid. 804(b)(1).
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:
|
sc_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
UNITED STATES et al. v. BEAN
No. 01-704.
Argued October 16, 2002
Decided December 10, 2002
Thomas, J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Irving L. Gornstein, Mark B. Stern, and Thomas M. Bondy.
Thomas C. Goldstein argued the cause for respondent. With him on the brief were Larry C. Hunter and Amy Howe.
Craig Goldblatt and Mathew S. Nosanchuk filed a brief for the Violence Policy Center as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Law Enforcement Alliance of America, Inc., by Richard E. Gardiner; and for the Second Amendment Foundation by William M. Gustavson.
Justice Thomas
delivered the opinion of the Court.
We consider in this case whether, despite appropriation provisions barring the Bureau of Alcohol, Tobacco, and Firearms (ATF) from acting on applications for relief from firearms disabilities of persons convicted of a felony, a federal district court has authority under 18 U. S. C. § 925(c) to grant such relief.
I
After attending a gun show in Laredo, Texas, respondent, Thomas Lamar Bean, a gun dealer, and his associates drove respondent’s vehicle to Nuevo Laredo, Mexico, for dinner. Bean v. Bureau of Alcohol, Tobacco and Firearms, 253 F. 3d 234, 236 (CA5 2001). When Mexican officials stopped the vehicle at the border, they found in the back, in plain view, approximately 200 rounds of ammunition. Ibid. According to respondent, he had instructed his associates to remove any firearms and ammunition from his vehicle, but inexplicably one box remained. Ibid. Respondent was convicted in a Mexican court of importing ammunition into Mexico and sentenced to five years’ imprisonment.
Because of his felony conviction, respondent was prohibited by 18 U. S. C. § 922(g)(1) from possessing, distributing, or receiving firearms or ammunition. Relying on § 925(c), respondent applied to ATF for relief from his firearms disabilities. ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon applications such as respondent’s.
Respondent then filed suit in the United States District Court for the Eastern District of Texas. Relying on the judicial review provision in § 925(c), respondent asked the District Court to conduct its own inquiry into his fitness to possess a gun, and to issue a judicial order granting relief from his firearms disabilities. Respondent attached various affidavits from persons attesting to his fitness to possess firearms. After conducting a hearing, the court entered judgment granting respondent the requested relief. The Court of Appeals for the Fifth Circuit affirmed, concluding that congressional refusal to provide funding to ATF for reviewing applications such as respondent’s “is not the requisite direct and definite suspension or repeal of the subject rights.” 253 F. 3d, at 239. The Fifth Circuit then proceeded to hold that the District Court had jurisdiction to review ATF’s (in)action. We granted certiorari. 534 U. S. 1112 (2002).
II
Under federal law, a person who is convicted of a felony is prohibited from possessing firearms. See § 922(g)(1). The Secretary of the Treasury is authorized to grant relief from that prohibition if it is established to his satisfaction that certain preconditions are met. See § 925(c). An applicant may seek judicial review from a “United States district court” if his application “is denied by the Secretary.” Ibid.
Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated authority to act on § 925(e) applications, from using “funds appropriated herein ... to investigate or act upon applications for relief from Federal firearms disabilities under 18 U. S. C. [§]925(c).” Treasury, Postal Service, and General Government Appropriations Act, 1993, Pub. L. 102-393, 106 Stat. 1732. Accordingly, ATF, upon receipt of respondent’s petition, returned it, explaining that “[s]ince October 1992, ATF’s annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities.” App. 33-34. Respondent contends that ATF’s failure to act constitutes a “denial” within the meaning of § 925(c), and that, therefore, district courts have jurisdiction to review such inaction.
We disagree. Inaction by ATF does not amount to a “denial” within the meaning of § 925(c). The text of § 925(c) and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction to act on an application.
Grammatically, the phrase “denied by the Secretary” references the Secretary’s decision on whether an applicant “will not be likely to act in a manner dangerous to public safety,” and whether “the granting of the relief would not be contrary to the public interest.” The determination whether an applicant is “likely to act in a manner dangerous to public safety” can hardly be construed as anything but a decision actually denying the application. And, in fact, respondent does not contend that ATF actually passed on his application, but rather claims that “refusal to grant relief constitutes a literal, or at least a constructive, denial of the application because it has precisely the same impact on [the applicant] as denial on the merits.” Brief for Respondent 35 (internal quotation marks and citations omitted).
The procedure that § 925(c) lays out for those seeking relief also leads us to conclude that an actual adverse action on the application by ATF is a prerequisite for judicial review. Section 925(c) requires an applicant, as a first step, to petition the Secretary and establish to the Secretary’s satisfaction that the applicant is eligible for relief. The Secretary, in his discretion, may grant or deny the request based on the broad considerations outlined above. Only then, if the Secretary denies relief, may an applicant seek review in a district court.
This broad authority of the Secretary, i. e., ATF, to grant or deny relief, even when the statutory prerequisites are satisfied, shows that judicial review under § 925(c) cannot occur without a dispositive decision by ATF. First, in the absence of a statutorily defined standard of review for action under § 925(c), the APA supplies the applicable standard. 5 U. S. C. § 701(a). Under the APA, judicial review is usually limited to determining whether agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 706(2)(A). Application of the APA standard of review here indicates that judicial review is predicated upon ATF’s dispositive decision: the “arbitrary and capricious” test in its nature contemplates review of some action by another entity, rather than initial judgment of the court itself.
Second, both parts of the standard for granting relief point to ATF as the primary decisionmaker. Whether an applicant is “likely to act in a manner dangerous to public safety” presupposes an inquiry into that applicant’s background — a function best performed by the Executive, which, unlike courts, is institutionally equipped for conducting a neutral, wide-ranging investigation. Similarly, the “public interest” standard calls for an inherently policy-based decision best left in the hands of an agency.
Third, the admission of additional evidence in district court proceedings is contemplated only in exceptional circumstances. See 18 U. S. C. § 925(c) (allowing, “in [district court’s] discretion,” admission of evidence where “failure to do so would result in a miscarriage of justice”). Congressional assignment of such a circumscribed role to a district court shows that the statute contemplates that a district court’s determination will heavily rely on the record and the decision made by ATF. Indeed, the very use in § 925(c) of the word “review” to describe a district court’s responsibility in this statutory scheme signifies that a district court cannot grant relief on its own, absent an antecedent actual denial by ATF.
Accordingly, we hold that the absence of an actual denial of respondent’s petition by ATF precludes judicial review under § 925(c), and therefore reverse the judgment of the Court of Appeals.
It is so ordered.
Title 18 U. S. C. § 925(c) provides:
“A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. Any person whose application for relief from disabilities is denied by the Secretary may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector conducting operations under this chapter, who makes application for relief from the disabilities incurred under this chapter, shall not be barred by such disability from further operations under his license pending final action on an application for relief filed pursuant to this section. Whenever the Secretary grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor.”
Respondent contends that congressional denial of funds to ATF did not eliminate the Secretary’s power to act on his application. In support, respondent notes that § 925(c) refers to the action by “the Secretary.” That claim, however, is waived, as respondent raised it for the first time in his brief on the merits to this Court.
Even if considered on the merits, respondent’s argument faces several difficulties. First, it appears that the Secretary delegated to ATF the exclusive authority to act on petitions brought under § 925(c), see 27 CFR §§ 178.144(b) and (d) (2002); such delegation is not unreasonable. Second, even assuming the Secretary has retained the authority to act on such petitions, it is not clear that respondent would prevail were he to file a requisite action under 5 U. S. C. § 706(1) (providing for judicial review to “compel agency action unlawfully withheld or unreasonably delayed”). Not only does the Secretary, by the explicit terms of the statute, possess broad discretion as to whether to grant relief, see infra, at 76-78, but congressional withholding of funds from ATF would likely inform his exercise of discretion.
In each subsequent year, Congress has retained the bar on the use of appropriated funds to process applications filed by individuals. Treasury and General Government Appropriations Act, 2002, Pub. L. 107-67, 115 Stat. 519; Consolidated Appropriations Act, 2001, Pub. L. 106-554, 114 Stat. 2763A-129; Treasury and General Government Appropriations Act, 2000, Pub. L. 106-58, 113 Stat. 434; Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681-485; Treasury and General Government Appropriations Act, 1998, Pub. L. 105-61, 111 Stat. 1277; Treasury, Postal Service, and General Government Appropriations Act, 1997, Pub. L. 104-208, 110 Stat. 3009-319; Treasury, Postal Service, and General Government Appropriations Act, 1996, Pub. L. 104-52, 109 Stat. 471; Treasury, Postal Service and General Government Appropriations Act, 1995, Pub. L. 103-329, 108 Stat. 2385; Treasury, Postal Service, and General Government Appropriations Act, 1994, Pub. L. 103-123, 107 Stat. 1228.
Also counseling against construing failure to act as a denial for purposes of § 925(c) is the fact that while the Administrative Procedure Act (APA) draws a distinction between a “denial” and a “failure to act,” see 5 U. S. C. § 551(13), an applicant may obtain judicial review under § 925(c) only if an application is denied. See 2A N. Singer, Sutherland on Statutes and Statutory Construction §46:06, p. 194 (6th ed. 2000) (“The use of different terms within related statutes generally implies that different meanings were intended”).
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:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
LORILLARD TOBACCO CO. et al. v. REILLY, ATTORNEY GENERAL OF MASSACHUSETTS, et al.
No. 00-596.
Argued April 25, 2001
Decided June 28, 2001
O’Connor, J., delivered the opinion of the Court, Parts I, II-C, and II-D of which were unanimous; Parts III-A, III-C, and III-D of which were joined by Rehnquist, C. J., and Scaua, Kennedy, Souter, and Thomas, JJ.; Part III-B-1 of which was joined by Rehnquist, C. J., and Stevens, Souter, Ginsburg, and Breyer, JJ.; and Parts II-A, II-B, III-B-2, and IV of which were joined by Rehnquist, C. J., and Scaua, Kennedy, and Thomas, JJ. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined, post, p. 571. Thomas, J., filed an opinion concurring in part and concurring in the judgment, post, p. 572. Souter, J., filed an opinion concurring in part and dissenting in part, post, p. 590. Stevens, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Ginsburg and Breyer, JJ., joined, and in which Souter, J., joined as to Part I, post, p. 590.
Jeffrey S. Sutton argued the cause for petitioners in No. 00-596. With him on the briefs were Daniel R Collins, Michael R. Doyen, Fred A. Rowley, Jr., Kenneth S. Getter, Andrew L. Frey, Richard M. Zielinski, John L. Strauch, Gregory G. Katsas, John B. Connarton, Jr., Patricia A. Bar-aid, and David H. Remes. James V. Kearney filed a brief for petitioners in No. 00-597. With Mr. Kearney on the brief were Christopher Harris and Richard P. Bress. Peter J. McKenna and Eric S. Sarner filed a brief for petitioner U. S. Smokeless Tobacco Company in both cases.
William W. Porter, Assistant Attorney General of the Commonwealth of Massachusetts, argued the cause for respondents in both cases. With him on the brief were Thomas F. Reilly, Attorney General, and Susan Paulson, Assistant Attorney General.
Acting Solicitor General Underwood argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Acting Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Irving L. Gomstein, and Douglas N. Letter
Together with No. 00-597, Altadis U. S. A. Inc., as Successor to Consolidated Cigar Corp. and Havatampa, Inc., et al. v. Reilly, Attorney General of Massachusetts, et at, also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the American Advertising Federation et al. by Daniel E. Troy and Robin S. Conrad; for the American Association of Advertising Agencies et al. by Penelope S. Farthing; for the Association of National Advertisers, Inc., by Steven G. Brody, John J. Walsh, and Gilbert H. Weil; for Infinity Outdoor, Inc., et al. by Floyd Abrams and Joel Kwrtzberg; for the National Association of Convenience Stores by Scott A. Sinder and John B. Williams; for the Newspaper Association of America et al. by Bruce E. H. Johnson, P. Cameron DeVore, René P. Milam, Steven R. Shapiro, Stuart D. Karle, Robin Bier-stedt, Lucy Dalglish, and Gregg Leslie; for the Product Liability Advisory Council, Inc., by Leslie G. Landau; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Seth E. Mermin and Corinne Lee Murphy, Deputy Attorneys General of California, Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Herschel T Elkins and Dennis Eckhart, Senior Assistant Attorneys General, Ronald A. Reiter, Supervising Deputy Attorney General, and Robert R. Rigsby, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Robert A Butterworth of Florida, Earl I. Anzai of Hawaii, Alan G. Lance of Idaho, Jim Ryan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Steve Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Mike McGrath of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, John Farmer of New Jersey, Patricia Madrid of New Mexico, Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Herbert D. Soil of the Northern Mariana Islands, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Mike Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Paul Summers of Tennessee, John Cornyn of Texas, Mark Shurt-leff of Utah, William H. Sorrell of Vermont, Christine O. Gregoire of Washington, Darrel V. McGrow, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the Cities of Oakland, California, et al. by Stephen P. Berzon, Michael E. Wall, Lawrence Rosenthal, and Benna Ruth Solomon; for the City of Los Angeles et al. by Mark E. Haddad, James M, Harris, Joseph R. Guerra, and James K, Hahn; for the City of New York et al. by Michael D. Hess, Leonard J. Koerner, Elizabeth Susan Natrella, Richard M. Weinberg, and Sandra R. Gutman; for the American Legacy Foundation by A Stephen Hut, Jr., John Payton, Patrick J. Carome, and Matthew A Brill; for the American Medical Association et al. by Donald W. Garner; for the National Center for Tobacco-Free Kids et al. by David Vladeck, Allison M. Zieve, Alan B. Morrison, and Matthew L. Myers; for the National Conference of State Legislatures et al. by Richard Ruda, James I. Crowley, and D. Bruce La Pierre; and for the Tobacco Control Resource Center, Inc., by Richard A. Daynard.
Briefs of amici curiae were filed for the State’s Attorney of Dupage County, Illinois, et al. by Richard Hodyl, Jr., Joseph E. Birkett, and Nancy J. Wolfe; and for the American Planning Association by Randal R. Morrison.
Justice O’Connor
delivered the opinion of the Court.
In January 1999, the Attorney General of Massachusetts promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars. 940 Code of Mass. Regs. §§21.01-21.07, 22.01-22.09 (2000). Petitioners, a group of cigarette, smokeless tobacco, and cigar manufacturers and retailers, filed suit in Federal District Court claiming that the regulations violate federal law and the United States Constitution. In large measure, the District Court determined that the regulations are valid and enforceable. The United States Court of Appeals for the First Circuit affirmed in part and reversed in part, concluding that the regulations are not pre-empted by federal law and do not violate the First Amendment. The first question presented for our review is whether certain cigarette advertising regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act (FCLAA), 79 Stat. 282, as amended, 15 U. S. C. § 1331 et seq. The second question presented is whether certain regulations governing the advertising and sale of tobacco products violate the First Amendment.
hH
In November 1998, Massachusetts, along with over 40 other States, reached a landmark agreement with major manufacturers in the cigarette industry. The signatory States settled their claims against these companies in exchange for monetary payments and permanent injunctive relief. See App. 253-258 (Outline of Terms for Massachusetts in National Tobacco Settlement); Master Settlement Agreement (Nov. 23, 1998), http://www.naag.org. At the press conference covering Massachusetts’ decision to sign the agreement, then-Attorney General Scott Harshbarger announced that as one of his last acts in office, he would create consumer protection regulations to restrict advertising and sales practices for tobacco products. He explained that the regulations were necessary in order to “close holes” in the settlement agreement and “to stop Big Tobacco from recruiting new customers among the children of Massachusetts.” App. 251.
In January 1999, pursuant to his authority to prevent unfair or deceptive practices in trade, Mass. Gen. Laws, ch. 93A, § 2 (1997), the Massachusetts Attorney General (Attorney General) promulgated regulations governing the sale and advertisement of cigarettes, smokeless tobacco, and cigars. The purpose of the cigarette and smokeless tobacco regulations is “to eliminate deception and unfairness in the way cigarettes and smokeless tobacco products are marketed, sold and distributed in Massachusetts in order to address the incidence of cigarette smoking and smokeless tobacco use by children under legal age . . . [and] in order to prevent access to such products by underage consumers.” 940 Code of Mass. Regs. §21.01 (2000). The similar purpose of the cigar regulations is “to eliminate deception and unfairness in the way cigars and little cigars are packaged, marketed, sold and distributed in Massachusetts [so that] . . . consumers may be adequately informed about the health risks associated with cigar smoking, its addictive properties, and the false perception that cigars are a safe alternative to cigarettes . . . [and so that] the incidence of cigar use by children under legal age is addressed ... in order to prevent access to such products by underage consumers.” Ibid. The regulations have a broader scope than the master settlement agreement, reaching advertising, sales practices, and members of the tobacco industry not covered by the agreement. The regulations place a variety of restrictions on outdoor advertising, point-of-sale advertising, retail sales transactions, transactions by mail, promotions, sampling of products, and labels for cigars.
The cigarette and smokeless tobacco regulations being challenged before this Court provide:
“(2) Retail Outlet Sales Practices. Except as otherwise provided in [§21.04(4)], it shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes or smokeless tobacco products through a retail outlet located within Massachusetts to engage in any of the following retail outlet sales practices:
“(c) Using self-service displays of cigarettes or smokeless tobacco products;
“(d) Failing to place cigarettes and smokeless tobacco products out of the reach of all consumers, and in a location accessible only to outlet personnel.” §§ 21.04(2)(c)-(d).
“(5) Advertising Restrictions. Except as provided in [§ 21.04(6)], it shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in any of the following practices:
“(a) Outdoor advertising, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the outside of the establishment, in any location that is within a 1,000 foot radius of any public playground, playground area in a public park, elementary school or secondary school;
“(b) Point-of-sale advertising of cigarettes or smokeless tobacco products any portion of which is placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of any public playground, playground area in a public park, elementary school or secondary school, and which is not an adult-only retail establishment.” §§21.04(5)(a)-(b).
The cigar regulations that are still at issue provide:
“(1) Retail Sales Practices. Except as otherwise provided in [§22.06(4)], it shall be an unfair or deceptive act or practice for any person who sells or distributes cigars or little cigars directly to consumers within Massachusetts to engage in any of the following practices:
“(a) sampling of cigars or little cigars or promotional give-aways of cigars or little cigars.” §21.06(l)(a).
“(2) Retail Outlet Sales Practices. Except as otherwise provided in [§ 22.06(4)], it shall be an unfair or deceptive act or practice for any person who sells or distributes cigars or little cigars through a retail outlet located within Massachusetts to engage in any of the following retail outlet sales practices:
“(c) Using self-service displays of cigars or little cigars;
“(d) Failing to place cigars and little cigars out of the reach of all consumers, and in a location accessible only to outlet personnel.” §§22.06(2)(c)-(d).
“(5) Advertising Restrictions. Except as provided in [§ 22.06(6)], it shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in any of the following practices:
“(a) Outdoor advertising of cigars or little cigars, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the outside of the establishment, in any location within a 1,000 foot radius of any public playground, playground area in a public park, elementary school or secondary school;
“(b) Point-of-sale advertising of cigars or little cigars any portion of which is placed low;er than five feet from the floor of any retail establishment which is located within a one thousand foot radius of any public playground, playground area in a public park, elementary school or secondary school, and which is not an adult-only retail establishment.” §§22.06(5)(a)-(b).
The term “advertisement” is defined as:
“any oral, written, graphic, or pictorial statement or representation, made by, or on behalf of, any person who manufactures, packages, imports for sale, distributes or sells within Massachusetts [tobacco products], the purpose or effect of which is to promote the use or sale of the product. Advertisement includes, without limitation, any picture, logo, symbol, motto, selling message, graphic display, visual image, recognizable color or pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of [tobacco product]. This includes, without limitation, utilitarian items and permanent or semi-permanent fixtures with such indicia of product identification such as lighting fixtures, awnings, display cases, clocks and door mats, but does not include utilitarian items with a volume of 200 cubic inches or less.” §§21.03, 22.03.
Before the effective date of the regulations, February 1, 2000, members of the tobacco industry sued the Attorney General in the United States District Court for the District of Massachusetts. Four cigarette manufacturers (Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, R. J. Reynolds Tobacco Company, and Philip Morris Incorporated), a maker of smokeless tobacco products (U. S. Smokeless Tobacco Company), and several cigar manufacturers and retailers claimed that many of the regulations violate the Commerce Clause, the Supremacy Clause, the First and Fourteenth Amendments, and Rev. Stat. § 1979, 42 U. S. C. §1983. The parties sought summary judgment. 76 F. Supp. 2d 124, 127 (1999); 84 F. Supp. 2d 180,183 (2000).
In its first ruling, the District Court considered the Supremacy Clause claim that the FCLAA, 15 U. S. C. § 1331 et seq., pre-empts the cigarette advertising regulations. 76 F. Supp. 2d, at 128-134. The FCLAA prescribes the health warnings that must appear on packaging and in advertisements for cigarettes. The FCLAA contains a pre-emption provision that prohibits a State from imposing any “requirement or prohibition based on smoking and health . . . with respect to the advertising or promotion of . . . cigarettes.” § 1334(b). The FCLAA’s pre-emption provision does not cover smokeless tobacco or cigars.
The District Court explained that the central question for purposes of pre-emption is whether the regulations create a predicate legal duty based on smoking and health. The court reasoned that to read the pre-emption provision to proscribe any state advertising regulation enacted due to health concerns about smoking would expand Congress’ purpose beyond a reasonable scope and leave States powerless to regulate in the area. The court concluded that restrictions on the location of advertising are not based on smoking and health and thus are not pre-empted by the FCLAA. The District Court also concluded that a provision that permitted retailers to display a black and white “tombstone” sign reading “Tobacco Products Sold Here,” 940 Code of Mass. Regs. § 21.04(6) (2000), was pre-empted by the FCLAA.
In a separate ruling, the District Court considered the claim that the Attorney General’s regulations violate the First Amendment. 84 F. Supp. 2d, at 183-196. Rejecting petitioners’ argument that strict scrutiny should apply, the court applied the four-part test of Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557 (1980), for commercial speech. The court reasoned that the Attorney General had provided an adequate basis for regulating cigars and smokeless tobacco as well as cigarettes because of the similarities among the products. The court held that the outdoor advertising regulations, which prohibit outdoor advertising within 1,000 feet of a school or playground, do not violate the First Amendment because they advance a substantial government interest and are narrowly tailored to suppress no more speech than necessary. The court concluded that the sales practices regulations, which restrict the location and distribution of tobacco products, survive scrutiny because they do not implicate a significant speech interest. The court invalidated the point-of-sale advertising regulations, which require that indoor advertising be placed no lower than five feet from the floor, finding that the Attorney General had not provided sufficient justification for that restriction. The District Court’s ruling with respect to the cigar warning requirements and the Commerce Clause is not before this Court.
The United States Court of Appeals for the First Circuit issued a stay pending appeal, App. 8-9, and affirmed in part and reversed in part the District Court’s judgment, Consolidated Cigar Corp. v. Reilly, 218 F. 3d 30 (2000). With respect to the Supremacy Clause, the Court of Appeals affirmed the District Court’s ruling that the Attorney General’s cigarette. advertising regulations are not preempted by the FCLAA. The First Circuit was persuaded by the reasoning of the Second and Seventh Circuits, which had concluded that the FCLAA’s pre-emption provision is ambiguous, and held that the provision pre-empts regulations of the content, but not the location, of cigarette advertising. See Greater New York Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d 100, 104-110 (CA2 1999); Federation of Advertising Industry Representatives, Inc. v. Chicago, 189 F. 3d 633, 636-640 (CA7 1999).
With respect to the First Amendment, the Court of Appeals applied the Central Hudson test. 447 U. S. 557 (1980). The court held that the outdoor advertising regulations do not violate the First Amendment. The court concluded that the restriction on outdoor advertising within 1,000 feet of a school or playground directly advances the State’s substantial interest in preventing tobacco use by minors. The court also found that the outdoor advertising regulations restrict no more speech than necessary, reasoning that the distance chosen by the Attorney General is the sort of determination better suited for legislative and executive decisionmakers than courts. The Court of Appeals reversed the District Court’s invalidation of the point-of-sale advertising regulations, again concluding that the Attorney General is better suited to determine what restrictions are necessary. The Court of Appeals also held that the sales practices regulations are valid under the First Amendment. The court found that the regulations directly advance the State’s interest in preventing minors’ access to tobacco products and that the regulations are narrowly tailored because retailers have a variety of other means to present the packaging of their products and to allow customers to examine the products.
As for the argument that smokeless tobacco and cigars are different from cigarettes, the court expressed some misgivings about equating all tobacco products, but ultimately decided that the Attorney General had presented sufficient evidence with respect to all three products to regulate them similarly. The Court of Appeals’ decision with respect to the cigar warning requirements and the Commerce Clause is not before this Court.
The Court of Appeals stayed its mandate pending disposition of a petition for a writ of certiorari. App. 13. The cigarette manufacturers and U. S. Smokeless Tobacco Company filed a petition, challenging the Court of Appeals’ decision with respect to the outdoor and point-of-sale advertising regulations on pre-emption and First Amendment grounds, and the sales practices regulations on First Amendment grounds. The cigar companies filed a separate petition, again raising a First Amendment challenge to the outdoor advertising, point-of-sale advertising, and sales practices regulations. We granted both petitions, 531 U. S. 1068 (2001), to resolve the conflict among the Courts of Appeals with respect to whether the FCLAA pre-empts cigarette advertising regulations like those at issue here, cf. Lindsey v. Tacoma-Pierce County Health Dept., 195 F. 3d 1065 (CA9 1999), and to decide the important First Amendment issues presented in these cases.
II
Before reaching the First Amendment issues, we must decide to what extent federal law pre-empts the Attorney General’s regulations. The cigarette petitioners contend that the FCLAA, 15 U. S. C. § 1331 et seq., pre-empts the Attorney General’s cigarette advertising regulations.
A
Article VI, cl. 2, of the United States Constitution commands that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” See also McCulloch v. Maryland, 4 Wheat. 316, 427 (1819) (“It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments”). This relatively clear and simple mandate has generated considerable discussion in cases where we have had to discern whether Congress has pre-empted state action in a particular area. State action may be foreclosed by express language in a congressional enactment, see, e. g., Cipollone v. Liggett Group, Inc., 505 U. S. 504, 517 (1992), by implication from the depth and breadth of a congressional scheme that occupies the legislative field, see, e. g., Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982), or by implication because of a conflict with a congressional enactment, see, e. g., Geier v. American Honda Motor Co., 529 U. S. 861, 869-874 (2000).
In the FCLAA, Congress has crafted a comprehensive federal scheme governing the advertising and promotion of cigarettes. The FCLAAs pre-emption provision provides:
“(a) Additional statements
“No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.
“(b) State regulations
“No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” 15 U. S. C. § 1334.
The FCLAAs pre-emption provision does not cover smokeless tobacco or cigars.
In these cases, our task is to identify the domain expressly pre-empted, see Cipollone, supra, at 517, because “an express definition of the pre-emptive reach of a statute . . . supports a reasonable inference . . . that Congress did not intend to pre-empt other matters,” Freightliner Corp. v. Myrick, 514 U. S. 280, 288 (1995). Congressional purpose is the “ultimate touchstone” of our inquiry. Cipollone, supra, at 516 (internal quotation marks omitted). Because “federal law is said to bar state action in [a] fiel[d] of traditional state regulation,” namely, advertising, see Packer Corp. v. Utah, 285 U. S. 105, 108 (1932), we “wor[k] on the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325 (1997) (internal quotation marks omitted). See also Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996).
Our analysis begins with the language of the statute. Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438 (1999). In the pre-emption provision, Congress unequivocally precludes the requirement of any additional statements on cigarette packages beyond those provided in § 1333. 15 U. S. C. § 1334(a). Congress further precludes States or localities from imposing any requirement or prohibition based on smoking and health with respect to the advertising and promotion of cigarettes. § 1334(b). Without question, the second clause is more expansive than the first; it employs far more sweeping language to describe the state action that is pre-empted. We must give meaning to each element of the pre-emption provision. We are aided in our interpretation by considering the predecessor pre-emption provision and the circumstances in which the current language was adopted. See Medtronic, supra, at 486; McCarthy v. Bronson, 500 U. S. 136, 139 (1991); K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988).
In 1964, the groundbreaking Report of the Surgeon General’s Advisory Committee on Smoking and Health concluded that “[c]igarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action.” Department of Health, Education, and Welfare, U. S. Surgeon General’s Advisory Committee, Smoking and Health 33. In 1965, Congress enacted the FCLAA as a proactive measure in the face of impending regulation by federal agencies and the States. Pub. L. 89-92,79 Stat. 282. See also Cipollone, supra, at 513-515. The purpose of the FCLAA was twofold: to inform the public adequately about the hazards of cigarette smoking, and to protect the national economy from interference due to diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to the relationship between smoking and health. Pub. L. 89-92, § 2. The FCLAA prescribed a label for cigarette packages: “Caution: Cigarette Smoking May Be Hazardous to Your Health.” §4. The FCLAA also required the Secretary of Health, Education, and Welfare (HEW) and the Federal Trade Commission (FTC) to report annually to Congress about the health consequences of smoking and the advertising and promotion of cigarettes. § 5.
Section 5 of the FCLAA included a pre-emption provision in which “Congress spoke precisely and narrowly.” Cipol-lone, supra, at 518. Subsection (a) prohibited any requirement of additional statements on cigarette packaging. Subsection (b) provided that “[n]o statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.” Section 10 of the FCLAA set a termination date of July 1, 1969, for these provisions. As we have previously explained, “on their face, [the preemption] provisions merely prohibited state and federal rulemaking bodies from mandating particular cautionary statements on cigarette labels [subsection (a)] or in cigarette advertisements [subsection (b)].” Cipollone, supra, at 518.
The FCLAA was enacted with the expectation that Congress would reexamine it in 1969 in light of the developing information about cigarette smoking and health. H. R. Rep. No. 586, 89th Cong., 1st Sess., 6 (1965); 111 Cong. Rec. 16541 (1965). In the intervening years, Congress received reports and recommendations from the HEW Secretary and the FTC. S. Rep. No. 91-566, pp. 2-6 (1969). The HEW Secretary recommended that Congress strengthen the warning, require the warning on all packages and in advertisements, and publish tar and nicotine levels on packages and in advertisements. Id., at 4. The FTC made similar and additional recommendations. The FTC sought a complete ban on radio and television advertising, a requirement that broadcasters devote time for health hazard announcements concerning smoking, and increased funding for public education and research about smoking. Id., at 6. The FTC urged Congress not to continue to prevent federal agencies from regulating cigarette advertising. Id., at 10. In addition, the Federal Communications Commission (FCC) had concluded that advertising which promoted the use of cigarettes created a duty in broadcast stations to provide information about the hazards of cigarette smoking. Id., at 6-7.
In 1969, House and Senate committees held hearings about the health effects of cigarette smoking and advertising by the cigarette industry. The bill that emerged from the House of Representatives strengthened the warning and maintained the pre-emption provision. The Senate amended that bill, adding the ban on radio and television advertising, and changing the pre-emption language to its present form. H. R. Conf. Rep. No. 91-897, pp. 4-5 (1970).
The final result was the Public Health Cigarette Smoking Act of 1969, in which Congress, following the Senate’s amendments, made three significant changes to the FCLAA. Pub. L. 91-222, §2, 84 Stat. 87. First, Congress drafted a new label that read: “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health.” FCLAA, §4. Second, Congress declared it unlawful to advertise cigarettes on any medium off electronic communication subject to the jurisdiction of the FCCr-J6. Finally, Congress enacted the current pre-emption provision, which proscribes any “requirement or prohibition based on smoking and health . . . imposed under State law with respect to the advertising or promotion” of cigarettes. § 5(b). The new subsection (b) did not pre-empt regulation by federal agencies, freeing the FTC to impose warning requirements in cigarette advertising. See Cipollone, 505 U. S., at 515. The new pre-emption provision, like its predecessor, only applied to cigarettes, and not other tobacco products.
In 1984, Congress again amended the FCLAA in the Comprehensive Smoking Education Act. Pub. L. 98-474, 98 Stat. 2200. The purpose of the Act was to “provide a new strategy for making Americans more aware of any adverse health effects of smoking, to assure the timely and widespread dissemination of research findings and to enable individuals to make informed decisions about smoking.” §2. The Act established a series of warnings to appear on a rotating basis on cigarette packages and in cigarette advertising, § 4, and directed the Health and Human Services Secretary to create and implement an educational program about the health effects of cigarette smoking, §3.
The FTC has continued to report on trade practices in the cigarette industry. In 1999, the first year since the master settlement agreement, the FTC reported that the cigarette industry expended $8.24 billion on advertising and promotions, the largest expenditure ever. FTC, Cigarette Report for 1999, p. 1 (2000). Substantial increases were found in point-of-sale promotions, payments made to retailers to facilitate sales, and retail offers such as buy one, get one free, or product giveaways. Id., at 4-5. Substantial decreases, however, were reported for outdoor advertising and transit advertising. Id., at 2. Congress and federal agencies continue to monitor advertising and promotion practices in the cigarette industry.
The scope and meaning of the current pre-emption provision become clearer once we consider the original preemption language and the amendments to the FCLAA. Without question, “the plain language of the pre-emption provision in the 1969 Act is much broader.” Cipollone, 505 U. S., at 520. Rather than preventing only “statements,” the amended provision reaches all “requirement^] or prohibition^]... imposed under State law.” And, although the former statute reached only statements “in the advertising,” the current provision governs “with respect to the advertising or promotion” of cigarettes. See ibid. Congress expanded the pre-emption provision with respect to the States, and at the same time, it allowed the FTC to regulate cigarette advertising. Congress also prohibited cigarette advertising in electronic media altogether. Viewed in light of the context in which the current pre-emption provision was adopted, we must determine whether the FCLAA preempts Massachusetts’ regulations governing outdoor and point-of-sale advertising of cigarettes.
B
The Court of Appeals acknowledged that the FCLAA pre-empts any “requirement or prohibition based on smoking and health ... with respect to the advertising or promotion of . . . cigarettes,” 15 U. S. C. § 1334(b), but concluded that the FCLAA does not nullify Massachusetts’ cigarette advertising regulations. The court concentrated its analysis on whether the regulations are “with respect to” advertising and promotion, relying on two of its sister Circuits to conclude that the FCLAA only pre-empts regulations of the content of cigarette advertising. The Court of Appeals also reasoned that the Attorney General’s regulations are a form of zoning, a traditional area of state power; therefore the presumption against pre-emption applied.
The cigarette petitioners maintain that the Court of Appeals’ “with respect to” analysis is inconsistent with the FCLAA’s statutory text and legislative history, and gives the States license to prohibit almost all cigarette advertising. Petitioners also maintain that there is no basis for construing the pre-emption provision to prohibit only content-based advertising regulations.
Although they support the Court of Appeals’ result, the Attorney General and United States as amicus curiae do not fully endorse that court’s textual analysis of the pre-emption provision. Instead, they assert that the cigarette advertising regulations are not pre-empted because they are not “based on smoking and health.” The Attorney General and the United States also contend that the regulations are not pre-empted because they do not prescribe the content of cigarette advertising and they fall squarely within the State’s traditional powers to control
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_circuit
|
E
|
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.
Michael J. CALLAHAN, Plaintiff-Appellant, v. FLUOR OCEAN SERVICES, INC. and Liberty Mutual Insurance Company, Defendants-Appellees.
No. 73-1517
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Aug. 17, 1973.
William M. Bass, Houma, La., Donald V. Organ, New Orleans, La., for plaintiff-appellant.
Frank C. Allen, Jr., New Orleans, La., for defendants-appellees.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
PER CURIAM:
The plaintiff in this case brought suit under the General Maritime Law and the Jones Act to recover for injuries he sustained while he was being lifted onto a fixed drilling platform in the Gulf of Mexico. The district court granted summary judgment for the defendants on both claims. We affirm.
Shell Oil Company had contracted with the defendant, Fluor Ocean Services, Inc., to have the defendant'install production facilities on three new offshore platforms in the Gulf. Shell then contracted with the Cheramie Boat Company to have Fluor’s workers on the platform at which the injury in this case occurred transported there aboard the Botruc II, a large crewboat owned by Cheramie. Callahan, a painter’s helper employed by Fluor, was injured the first day of work. Callahan and a co-worker got into a large cargo basket to be lifted by a crane to the platform. While the basket was being raised some mechanical or operational misfunction of the crane caused the basket to fall rapidly toward the deck of the Botruc II. The crane operator jammed on the brakes bringing the falling basket to a sudden halt. Callahan fell to the deck of the Botruc II and sustained serious injuries.
The district court denied Callahan’s maritime law claim on the ground that Fluor was not an owner of the Botruc II for the occasion in question. He was, therefore, not liable for the unseaworthiness of the vessel. It then held that the determination that Fluor was not an owner for the occasion of the vessel was conclusive not only of Callahan’s unseaworthiness claim but of his Jones Act claim as well. We agree that Fluor cannot be held to have been the owner for the occasion of the Botruc II, and that that fact defeats Callahan’s common law claim. However, we cannot agree that a failure to establish that Fluor enjoyed sufficient control of the vessel to be held an owner for the occasion necessarily defeats the Jones Act claim. Control of the operation during which an injury is sustained may sometimes suffice to establish Jones Act liability. See Barrios v. Louisiana Construction Materials Co., 5 Cir. 1972, 465 F.2d 1157.
However, we find another ground for affirming the grant of summary judgment on the Jones Act claim. Fluor had argued in support of its motion for summary judgment that there was not sufficient evidence that Callahan was a seaman entitled to sue under the Jones Act to send the case to the jury. The district court did not reach this contention, because of its holding that Fluor did not have sufficient control of the vessel to be liable under the Jones Act. We reach the contention; and sustain it. The rule in this Circuit for determining when a jury may decide whether a plaintiff is a seaman is well-settled. That rule was announced in Offshore Co. v. Robison, 5 Cir. 1959, 266 F.2d 769, 779:
[T]his Court’s position may be stated, affirmatively: there is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that'the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.
We have repeatedly held that fixed drilling platforms like the one on which the plaintiff worked are not vessels. Texas Co. v. Savoie, 5 Cir. 1957, 240 F.2d 674, cert. denied, 355 U.S. 840, 78 S.Ct. 49, 2 L.Ed.2d 51; Nolan v. Coating Specialists, Inc., 5 Cir. 1970, 422 F.2d 377. Clearly Callahan was not permanently assigned to the Botruc II and did not perform a substantial part of his work on that vessel; nor did his employment as a painter’s helper on the platform contribute either to the function of the Botruc II or to the welfare of the vessel during its movement. Callahan was only a passenger on the crew-boat twice daily. There was thus no evidence on which a jury could have found he was a seaman, and summary judgment was proper.
Affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
WORCESTER et al. v. PURE TORPEDO CO.
No. 7843.
Circuit Court of Appeals, Seventh Circuit.
May 2, 1942.
Arthur W. Klein and Joseph Harrow, both of Chicago, 111., and Kenneth E. Pearce, of Carmi, 111., for appellants.
Donald L. Thompson, of Chicago, 111., and Charles Wham, of Centraba, 111., for appellee.
Before EVANS, MAJOR, and KERN-ER, Circuit Judges.
KERNER, Circuit Judge.
This was an action brought in the Circuit Court of White County, Illinois, by plaintiffs to recover damages alleged to have been caused by the negligence of the defendant in shooting an oil well with nitro-glycerine. Upon motion of the defendant, a Kentucky corporation, the cause was removed because of diversity of citizenship to the District Court. There was a trial before a jury and a verdict for the defendant, upon which the court entered judgment. To reverse the judgment, plaintiffs appeal.
Plaintiffs, in their complaint, alleged that the defendant entered into an oral contract with plaintiffs to shoot the oil well in a good workmanlike manner, and that the negligence of the defendant consisted in shooting the well with nitro-glycerine at a time when the well was in a dangerous and unsafe condition, without first swabbing or killing the well, so that the upward pressure then existing in the well forced the torpedo upward and caused a premature explosion resulting in the destruction of plaintiffs’ property.
Defendant answered by a general denial and averred that it had no equipment to swab or kill the well and never assumed any duty to do so; that plaintiffs had represented the well had been properly cased and fitted with an adequate control head and valve; that the well had been swabbed and bailed for 24 hours; that the torpedo was lowered with due care in the usual and customary manner in accordance with the prevailing custom and practice; and that the explosion was not due to any act of negligence on its part.
The well was drilled to a depth of 2277 feet and the casing set to a depth of 2255 feet. After the drilling was finished, the well was cleaned and plugged, the casing cemented, the water bailed out, and oil was brought in by swabbing, around 5 a.m. June 6, 1940-, The purpose of “swabbing a well” is to clean out substances that might have been forced into the crevices of the sand so that the oil can seep into the well and produce a flow. “Shooting” means exploding nitro-glycerine at the bottom of the well in order to produce a greater flow of oil. Wilson, one of the plaintiffs, arranged with Dale Mendenhall, defendant’s shooter, to shoot the well with ten quarts of nitro-glycerine.
Mendenhall had followed the profession of “shooting” oil wells for 27 years prior to the date in question. The wells that he had “shot” varied in depth from 200 feet to 13,000 feet and during his experience he had averaged 125 to 140 “shots” per year, and these “shots” varied in size from a quart to 1,800 quarts of nitro-glycerine.
To check the depth of the well and to make a test for possible obstructions, Mendenhall lowered a dummy shell filled with gravel. It took about 50 minutes to prepare the torpedo after withdrawing the dummy from the well. After Mendenhall had removed the dummy shell, he filled a torpedo with nitro-glycerine and lowered it into the well. When it struck the oil he' closed the control head. A control head is a valve placed on top of the well for the purpose of equalizing the upward pressure from the gas in the well.
At the time Mendenhall first went to the well, it emitted a steady flow of gas and when the dummy was lowered into the well, gas puffed for 10 or 15 seconds, then a steady flow of gas returned and was escaping at the time the charged torpedo was started into the well. Mendenhall began to lower the charged torpedo into the well while standing at a truck 22 to 30 feet from the control head. The shell was lowered by means of hydraulic pressure, so that the weight of the shell could be equalized and thereby indicate when the fluid, gas or other obstructions were reached. The torpedo was lowered very slowly and would have taken about 20 minutes to reach the bottom at 2,277 feet. The torpedo reached the oil at a depth of 235 feet, after which Mendenhall slowed up his reel and set his brakes. This was done so Mendenhall could hold the torpedo in position until the control head was closed. At that time, the torpedo was still attached to the line which was taut. Mendenhall then walked to the well and closed the control head. At that time the oil was spurting about one foot over the control head and struck Mendenhall in the face. He closed the control head in such a manner as to prevent cutting the cable. After this operation he walked back to his truck and found that his line was loose, which indicated that the torpedo was off the hook. He then turned and looked toward the control head and saw a 6-inch ribbon of oil flowing through it, which indicated to him that the valve had opened. He then told all those present “to get the hell out of there.” The ribbon of oil from the control head got wider and rose to a height of 35 to 40 feet. Had the valve stayed in the position Mendenhall set it, the pressure would have been equalized at the top and the shell would have gone to the bottom. It was 6 or 7 minutes from the time Mendenhall discovered his line was slack until the explosion occurred.
Before lowering the torpedo Mendenhall tested the control head so as to be sure that it would open and close; it opened by a bolt that slipped through a hole in the valve. The valve on the control head, when tested, worked very easily and Mendenhall at the time told Conn and Harston, employees of Wilson, that the packing was out of the control head and suggested tightening it up, but Harston said, “We have used this on many a well and it is really easy to work.”
It is contended that an error of a highly prejudicial character occurred at the trial, because the defendant was permitted to prove that it was a universal custom that oil wells were shot at the owner’s risk.
The record discloses that over objection, Mendenhall was asked whether in his 27 years experience in shooting oil-wells there was a custom among shooters in that business as to the assumption of risk by the owner of the oil well, and he answered that the well was shot at the owner’s risk. In support of the court’s ruling, defendant’s counsel argues that the shooting of the well grew out of a contract and where a custom exists that well owners assume the risk, an action for negligence is released. With this contention we cannot agree. The rule is well settled that a custom or usage cannot alter or change the standard of conduct required by law. Western Union Cold Storage Co. v. Winona Produce Co., 197 Ill. 457, 459, 64 N.E. 496; Elkton Auto Sales Corporation v. State of Maryland, 4 Cir., 53 F.2d 8, and American Coal Co. v. De Wese, 4 Cir., 30 F.2d 349. In dealing with an agency known to be dangerous, such as the shooting of a well, it becomes the duty of the shooter to exercise the degree of care commensurate with the danger involved. American Glycerin Co. v. Eason Oil Co., 10 Cir., 98 F.2d 479. It necessarily follows that a shooter cannot absolve himself from his duty by claiming that a custom or usage existed which relieved him of exercising due care. To do so would avoid the settled rules of law.
It is also contended that the court erred in admitting evidence of the second shooting of the well by Mendenhall, and in refusing to permit plaintiffs to explain the reasons and circumstances for such second hiring.
It appears that over objection defendant proved that some two months after the premature explosion of June 6, the plaintiffs hired Mendenhall to shoot the well a second time, but the court would not permit plaintiffs to show explanatory facts and circumstances concerning the rehiring and the condition existing at the second shooting.
The defendant insists that such evidence was admissible since it tended to show that plaintiffs themselves did not consider the well, at the time of the first shooting, dangerous or unsafe, nor did they consider Mendenhall negligent or reckless in attempting to shoot the well before first swabbing or killing it. Even so, we believe that plaintiffs should have been permitted to disprove, if they could, the inference arising from the rehiring and reshooting. Chicago City Ry. Co. v. Bundy, 210 Ill. 39, 71 N.E. 28.
The defendant makes the point that even if the testimony of Mendenhall was incompetent and inadmissible, similar testimony of Hager and Munsey, defendant’s witnesses, was stricken and the jury adequately instructed on the applicable law and the evidence to be considered. Moreover, the argument continues, the record discloses the verdict for the defendant was the only verdict that justice could approve, therefore the plaintiffs were not prejudiced and the errors were harmless. “While this court will not disturb a judgment for an error that did not operate to the substantial injury of the party against whom it was committed, it is well settled that a reversal will be directed unless it appears, beyond doubt, that the error complained of did not and could not have prejudiced the rights of the party.” Vicksburg & Meridian Railroad v. O’Brien, 119 U.S. 99, 103, 7 S.Ct. 118, 120, 172, 30 L.Ed. 299, and McCandless v. United States, 298 U.S. 342, 347, 348, 56 S.Ct. 764, 80 L.Ed. 1205.
To be sure, it frequently occurs that incompetent testimony inadvertently creeps into a record, and the only remedy the party has is to have the court exclude it and to instruct the jury that they should not consider such excluded testimony. Ordinarily this is sufficient to protect the rights of the parties. In the instant case, the admission of Mendenhall’s testimony resulted from counsel’s persistence in questioning Mendenhall after the court had indicated that such testimony was inadmissible. That fact and the fact that the court would not permit plaintiffs to show explanatory facts and circumstances concerning the rehiring and the condition existing at the second shooting, raises the question whether we can say that it affirmatively appears from the whole record that the court’s rulings were not prejudicial to the plaintiffs’ cause. Since we cannot be certain that the rulings did not, it must be presumed that reversible error was committed. Farris v. Interstate Circuit, 5 Cir., 116 F.2d 409, 412 and Fort Dodge Hotel Co. v. Bartelt, 8 Cir., 119 F.2d 253, 259.
For the errors above indicated, we are of the opinion that justice would be better served if the cause were retried. The judgment of the District Court is reversed and the case is remanded for a new trial.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_issuearea
|
D
|
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.
McGRATH, ATTORNEY GENERAL, as successor to the ALIEN PROPERTY CUSTODIAN, v. MANUFACTURERS TRUST CO.
NO. 11.
Argued October 12, 1949.
Decided November 7, 1949.
Joseph W. Bishop, Jr. argued the cause for the Attorney General. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bazelon and James L. Morrisson.
Leonard G. Bisco argued the cause for the Manufacturers Trust Co. With him on the brief was Henry Landau.
Mr. Justice Burton
delivered the opinion of the Court.
Numbers 11 and 15 are cross appeals from Clark v. Manufacturers Trust Co., 169 F. 2d 932 (C. A. 2d Cir.). Certiorari was granted in No. 11, on petition of the Custodian, to resolve a conflict between the judgment below and that in Clark v. Lavino & Co., 175 F. 2d 897 (C. A. 3d Cir.). The conflict is confined to the Custodian’s claim to the allowance of interest, in his favor, in a summary proceeding under § 17 of the Trading with the Enemy Act. He claims interest from the date that his Turnover Directive was served upon the Manufacturers Trust Company, here referred to as the bank, and computes such interest upon the sum which he ordered turned over. For the reasons hereinafter stated, we agree with the judgment below in its denial of interest. We granted certiorari also on the cross appeal of the bank in No. 15. This was to enable us to reexamine the pleadings and, if they were found to permit it, to consider the bank’s claim that the District Court lacked authority to order it to turn over to the Custodian the principal sum in question, in the face of the bank’s denial of its indebtedness to the enemy creditor for that sum, its claim of a setoff in excess of the alleged debt, and its claim to a lien upon the proceeds of the debt. We find that the record does not permit us to reach that issue.
February 1, 1946, the Custodian issued his Vesting Order No. 5791, 11 Fed. Reg. 3005, under authority of
§ 5 (b) of the Trading with the Enemy Act, vesting himself with the following described “property”:
“That certain debt or other obligation owing to Deutsche Reichsbank, by Manufacturers Trust Company, 55 Broad Street, New York, New York, arising out of a dollar account, entitled Reichsbank Direktorium Divisen Abteilung, and any and all rights to demand, enforce and collect the same, . . .
January 30, 1947, the Custodian served on the bank his Turnover Directive based upon his Vesting Order and thereby directed that the sum of $25,581.49, “together with all accumulations to and increments thereon, shall forthwith be turned over to the undersigned [the Custodian] to be held, used, administered, liquidated, sold or otherwise dealt with in the interest of and for the benefit of the United States.”
October 29, 1947, the Custodian filed in the United States District Court for the Southern District of New York his petition against the bank seeking summary enforcement of his order under § 17 of the Act, supra. November 13, 1947, the bank answered.
December 12, 1947, the District Court, without opinion, directed the bank to pay to the Custodian $25,581.49, plus interest at 6% per annum from January 80, 1947. The Court of Appeals for the Second Circuit struck out the interest but otherwise affirmed the judgment. One judge said he would have preferred to limit that court’s holding to the point that the answer did not allege a sufficiently unequivocal claim to a setoff to raise that defense. Another dissented from the denial of interest. Petitions for certiorari were denied to both parties, January 17, 1949. 335 U. S. 910.
June 16, 1949, the Custodian asked leave to file a petition for rehearing and for a writ of certiorari on the ground that, on June 1, 1949, the Court of Appeals for the Third Circuit had decided Clark v. Lavino & Co., supra, in which it had expressly allowed interest to the Custodian under circumstances largely comparable to those in the case below. The bank asked leave to present its contentions should the Custodian’s petition for certiorari be granted. All applications were granted. 337 U. S. 953.
I.
The Trading with the Enemy Act is a war measure. It creates powerful and swift executive and summary procedures particularly for the seizure of the property of enemies by legal process as an effective alternative to seizure by military force. The Act expressly provides for the seizure of enemy-held claims to money owed on debts. Kohn v. Jacob & Josef Kohn, Inc., 264 F. 253 (S. D. N. Y.). Special proceedings are provided to try the merits of claims to property seized in such summary possessory procedures. The present action is a summary possessory proceeding under § 17. Section 16, which has accompanied § 17 in the Act since 1917, prescribes fines, sentences and forfeitures as special sanctions to punish willful violations of vesting orders or turnover directives as follows:
“That whoever shall willfully violate any of the provisions of this Act or of any license, rule, or regulation issued thereunder, and whoever shall willfully violate, neglect, or refuse to comply with any order of the President issued in compliance with the provisions of this Act shall, upon conviction, be fined not more than $10,000, or, if a natural person, imprisoned for not more than ten years, or both; and the officer, director, or agent of any corporation who knowingly participates in such violation shall be punished by a like fine, imprisonment, or both, and any property, funds, securities, papers, or other articles or documents, . . . concerned in such violation shall be forfeited to the United States.” 40 Stat. 425,50 U. S. C. App. § 16.
The Act makes no mention of interest charges in connection with the enforcement of these summary procedures. We recognize that, in the absence of express statutory provision for it, interest sometimes has been allowed in favor of the Government under other statutes when the Government’s position has been primarily that of a creditor collecting from a debtor. See Rodgers v. United States, 332 U. S. 371, 373, in which the rule was stated and interest disallowed. In the present case, however, we are not dealing with interest accruing to the Government upon contractual indebtedness or upon indebtedness such as that arising out of customs duties or taxes. We have here quite a different matter, the violation of a summary order of the Alien Property Custodian to turn over to him the physical possession of certain funds as a protective war measure. The Turnover Directive in the instant case is, in its essence, the same kind of an order as would have been issued to compel the delivery to the Custodian of the physical possession of a $25,000 bond owned by the Deutsche Reichsbank but held by the Manufacturers Trust Company in the latter’s safe-deposit vaults. Statutory fines, sentences and forfeitures are prescribed for willful violation of such an order and, in the case of the bond, it is obvious that there would be no basis for the addition of an interest charge, computed at a statutory or judicially determined rate on the face or estimated value of the bond and running merely from the date of the Turnover Directive. Similarly, we find no basis for adding such an interest charge in the instant case.
No claim of the Custodian for any interest accruing under the terms of the agreement of deposit is before us. The Custodian, in his Turnover Directive and in his petition, called for the delivery to him of the $25,581.49 owing to Deutsche Reichsbank on the date of the Vesting Order, February 1, 1946, together with all accumulations and increments thereon since that date. He made no showing of a contractual basis for any additions to such principal sum and, accordingly, judgment was rendered for the delivery to him of precisely $25,581.49, and no claim is made here that such sum is not the correct total amount of the indebtedness. The District Court, however, also ordered the bank to turn over to the Custodian 6% interest on $25,581.49 from January 30, 1947. This additional item reflected no terms of the deposit agreement. Whatever those terms may have been, they had not changed since February 1, 1946, so that any possible basis for the 6% interest from January 30, 1947, must be sought in the Trading with the Enemy Act. We find no authority in that Act for a 6% rate or for any other rate of coercive interest to be added as an incident to a summary order for the transfer of possession of funds. Accordingly, in No. 11, we affirm the judgment of the Court of Appeals, which omitted the interest.
II.
In No. 15, the parties have discussed several questions which would have been presented if the answer had contained a denial of the alleged debt, an unequivocal plea of setoff, or a claim of a lien upon the Deutsche Reichsbank’s interest in the debt or in its proceeds. The answer, however, did not present those issues and we do not consider them. When read as a whole, the answer did not deny the existence of the credit balance of $25,581.49 which the Custodian claimed was on deposit and which was the subject of the Custodian’s Vesting Order. Nor did it unequivocally assert a setoff. Instead, the answering bank alleged, on information and belief, that an offsetting indebtedness of the Deutsche Reichsbank to it arose from the fact that the Deutsche Reichsbank was an instrumentality and part of the German Government, that the German Government had guaranteed to the answering bank the payment to it of the debts of various German banks, and that, on the date of the Vesting Order, the indebtedness of said German banks to the answering bank was in excess of $25,581.49. Those allegations did not state that the Deutsche Reichsbank was such an instrumentality and such a part of the German Government as would make the Reichsbank automatically the guarantor of the debts of other German banks to the answering bank. The answer did not even allege the status of the guaranteed debts to be such as to entitle the answering bank to resort to the alleged guaranty of their payment by the Deutsche Reichsbank. The bank’s claim to a lien upon the deposit depended, likewise, upon the inadequately alleged indebtedness of the Deutsche Reichsbank to it.
For the foregoing reasons the judgment in No. 11 is affirmed, and the judgment in No. 15 is vacated so as to permit such amendments of the pleadings or further proceedings as shall be consistent with this opinion.
It is so ordered.
Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of either of these cases.
J. Howard McGrath was substituted for Tom C. Clark, as Attorney General, 338 U. S. 807.
The term “Custodian” is used to refer either to the Alien Property Custodian or to the Attorney General who succeeded to the powers and duties of the Alien Property Custodian under Executive Order No. 9788, effective October 15, 1946, 1 C. F. R. 1946 Supp. 169.
“Sec. 17. That the district courts of the United States are hereby-given jurisdiction to make and enter all such rules as to notice and otherwise, and all such orders and decrees, and to issue such process as may be necessary and proper in the premises to enforce the provisions of this Act, with a right of appeal from the final order or decree of such court as provided in sections one hundred and twenty-eight and two hundred and thirty-eight of the Act of March third, nineteen hundred and eleven, entitled ‘An Act to codify, revise, and amend the laws relating to the judiciary.’ ” 40 Stat. 425, 50 U. S. C. App. § 17.
Issued under § 7 (c), 40 Stat. 418, as amended, 40 Stat. 1020, 50 U. S. C. App. § 7 (c), and Executive Order No. 9193, 1 C. F. R. Cum. Supp. 1174, as amended by Executive Order No. 9567, 1 C. F. R. 1945 Supp. 77.
§ 5 (b), 40 Stat. 415, as amended, 55 Stat. 839, 50 U. S. C. App. § 5 (b), and Executive Order No. 9095, 1 C. F. R. Cum. Supp. 1121.
The following parts of the answer are especially material to our decision in No. 15:
“7. Furthermore, by a vesting order the Alien Property Custodian can only vest property or a debt which was in existence at the time of the issuance of the Vesting Order. Manufacturers Trust Company did not hold any property for or on behalf of the Deutsche Reichsbank. The relationship between Manufacturers Trust Company as a depository and the Deutsche Reichsbank as a depositor of Manufacturers Trust Company is a debtor and creditor relationship. The existence of a debt from Manufacturers Trust Company to the Deutsche Reichsbank can not be predicated upon the status of a particular account. Manufacturers Trust Company can not be a debtor of the Deutsche Reichsbank unless the total of their mutual credits exceeds the total of their mutual debits. At the time of the issuance of the Vesting Order No. 5791, Deutsche Reichsbank’s indebtedness to Manufacturers Trust Company was in excess of $25,581.49 and therefore there was no debt owing from Manufacturers Trust Company to Deutsche Reichsbank arising out of the Reichsbank Direktorium Divisen Ab[t]eilung account. The indebtedness of the Deutsche Reichsbank arose from the fact that Deutsche Reichsbank was upon information and belief, an instrumentality and part of the German Government. The German Government guaranteed to Manufacturers Trust Company the payment of debts of various German Banks to Manufacturers Trust Company. On June 1st, 191fi and June 14th, 1941, the indebtedness of the said banks to Manufacturers Trust Company, was in excess of $25,581.49.
“8. In addition to the foregoing, Manufacturers Trust Company is advised by counsel that a lien of a bank on a depositor’s balance for the amount of depositor’s indebtedness to the bank is well recognized by law. Manufacturers Trust Company is further advised by counsel that Section 8 of the Trading with the Enemy Act recognizes the lien of any person who is not an enemy or an ally of an enemy and the lienor’s right to realize thereon in satisfaction of the lienor’s claims.” (Emphasis supplied.)
“The Trading with the Enemy Act, whether taken as originally enacted, October 6, 1917, ... or as since amended, March 28, 1918, . . . November 4, 1918, . . . July 11, 1919, . . . June 5, 1920, ... is strictly a war measure and finds its sanction in the constitutional provision, Art. I, § 8, cl. 11, empowering Congress 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.’ . . .
“It is with parts of the act which relate to captures on land that we now are concerned. . . . [After discussing particularly §§ 7 (c), 9, and 12]:
“That Congress in time of war may authorize and provide for the seizure and sequestration through executive channels of property believed to be enemy-owned, if adequate provision be made for a return in case of mistake, is not debatable. . . . There is no warrant for saying that the enemy ownership must be determined judicially before the property can be seized; and the practice has been the other way. The present act commits the determination of that question to the President, or the representative through whom he acts, but it does not make his action final.” Stoehr v. Wallace, 255 U. S. 239, 241-242, 245-246. See also, Central Trust Co. v. Garvan, 254 U. S. 554, 568; Rubin, “Inviolability” of Enemy Private Property, 11 Law and Contemp. Prob. 166 (1945).
Section 9 (a) of the Act, 42 Stat. 1511, 50 U. S. C. App. § 9 (a), provides for the administrative consideration and allowance of claims to property transferred to the Custodian. A claimant also may sue in a District Court for an adjudication of the validity of his claim. Section 32, 60 Stat. 50, as amended, 60 Stat. 930, 50 U. S. C. App. § 32, authorizes the administrative recognition of claims to property in the possession of the Custodian and § 34, 60 Stat. 925, 50 U. S. C. App. § 34, authorizes a procedure for the allowance, and payment to claimants, of debts owed by the person whose property has been seized by the Custodian. See also, Central Trust Co. v. Garvan, 254 U. S. 554, 568; Garvan v. $20,000 Bonds, 265 F. 477 (C. A. 2d Cir.); Simon v. Miller, 298 F. 520, 524 (S. D. N. Y.); Kahn v. Garvan, 263 F. 909, 916 (S. D. N. Y.).
Petition filed October 29, 1947. Order to show cause issued that day. Answer filed November 13. Case heard and decided that day. Judgment entered December 12.
See also, penalties for willful violation added to § 5, 48 Stat. 1, 50 U. S. C. App. § 5 (b) (3). The Custodian may make the required Presidential determinations under § 7 (c). “In short, a personal determination by the President is not required; he may act through the Custodian, and a determination by the latter is in effect the act of the President.” Stoehr v. Wallace, 255 U. S. 239, 245; and see Central Trust Co. v. Garvan, 254 U. S. 554, 567.
E. g., Royal Indemnity Co. v. United States, 313 U. S. 289, 296; Billings v. United States, 232 U. S. 261; see also, Board of Commissioners v. United States, 308 U. S. 343, 350, 352.
For a description of the contemporary monetary and banking system of Germany and of the part played in it by the Deutsche Reichsbank, see Military Government Handbook, Germany, Section 5: Money and Banking, Army Service Forces Manual M356-5 Revised (March 1945), pp. 4, 66-73. For examples of differences between the liabilities of foreign public or semipublic corporations and those of the foreign governments to which they are related, see United States v. Deutsches Kalisyndikat Gesellschaft, 31 F. 2d 199 (S. D. N. Y.) and Coale v. Société Co-op., 21 F. 2d 180 (S. D. N. Y.).
5 Michie, Banks and Banking (Perm. Ed.) §§ 126-128, and cases cited; 7 Zollmann, Banks and Banking (Perm. Ed.) §§ 4392, 4563, 4590. See also, restrictions on assertion, without a federal license, of any right of setoff which did not exist before June 14, 1941. Executive Order No. 8785, §§ 1. A. and 1. E., 1 C. F. R. Cum. Supp. 948, and see Propper v. Clark, 337 U. S. 472.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
sc_casesource
|
027
|
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.
MABRY, COMMISSIONER, ARKANSAS DEPARTMENT OF CORRECTION v. JOHNSON
No. 83-328.
Argued April 16, 1984
Decided June 11, 1984
John Steven Clark, Attorney General of Arkansas, argued the cause for petitioner. With him on the briefs was Alice Ann Burns, Deputy Attorney General.
Jerrold J. Ganzfried argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Gloria C. Phares.
Richard Quiggle, by appointment of the Court, 465 U. S. 1003, argued the cause and filed a brief for respondent.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether a defendant’s acceptance of a prosecutor’s proposed plea bargain creates a constitutional right to have the bargain specifically enforced.
In the late evening of May 22, 1970, three members of a family returned home to find a burglary in progress. Shots were exchanged resulting in the daughter’s death and the wounding of the father and respondent — one of the burglars. Respondent was tried and convicted on three charges: burglary, assault, and murder. The murder conviction was set aside by the Arkansas Supreme Court, Johnson v. State, 252 Ark. 1113, 482 S. W. 2d 600 (1972). Thereafter, plea negotiations ensued..
At the time of the negotiations respondent was serving his concurrent 21- and 12-year sentences on the burglary and assault convictions. On Friday, October 27, 1972, a deputy prosecutor proposed to respondent’s attorney that in exchange for a plea of guilty to the charge of accessory after a felony murder, the prosecutor would recommend a sentence of 21 years to be served concurrently with the burglary and assault sentences. On the following day, counsel communicated the offer to respondent who agreed to accept it. On the next Monday the lawyer called the prosecutor “and communicated [respondent’s] acceptance of the offer.” App. 10. The prosecutor then told counsel that a mistake had been made and withdrew the offer. He proposed instead that in exchange for a guilty plea he would recommend a sentence of 21 years to be served consecutively to respondent’s other sentences.
Respondent rejected the new offer and elected to stand trial. On the second day of trial, the judge declared a mistrial and plea negotiations resumed, ultimately resulting in respondent’s acceptance of the prosecutor’s second offer. In accordance with the plea bargain, the state trial judge imposed a 21-year sentence to be served consecutively to the previous sentences.
After exhausting his state remedies, respondent filed a petition for a writ of habeas corpus under 28 U. S. C. §2254. The District Court dismissed the petition, finding that respondent had understood the consequences of his guilty plea, that he had received the effective assistance of counsel, and that because the evidence did not establish that respondent had detrimentally relied on the prosecutor’s first proposed plea agreement, respondent had no right to enforce it. The Court of Appeals reversed, 707 F. 2d 323 (CA8 1983), over Judge John R. Gibson’s dissent. The majority concluded that “fairness” precluded the prosecution’s withdrawal of a plea proposal once accepted by respondent. Because of a conflict in the Circuits, coupled with our concern that an important constitutional question had been wrongly decided, we granted certiorari, 464 U. S. 1017 (1983). We now reverse.
Respondent can obtain federal habeas corpus relief only if his custody is in violation of the Federal Constitution. A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution. Only after respondent pleaded guilty was he convicted, and it is that conviction which gave rise to the deprivation of respondent’s liberty at issue here.
It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. It is also well settled that plea agreements are consistent with the requirements of voluntariness and intelligence — because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange. It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. In Brady v. United States, 397 U. S. 742 (1970), we stated the applicable standard:
“‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes).”’ Id., at 755 (quoting Shelton v. United States, 246 F. 2d 571, 572, n. 2 (CA5 1957) (en banc) (in turn quoting 242 F. 2d 101, 115 (Tuttle, J., dissenting to panel opinion)), rev’d on other grounds, 356 U. S. 26 (1958).
Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause. Santobello v. New York, 404 U. S. 257 (1971), illustrates the point. We began by acknowledging that the conditions for a valid plea “presuppose fairness in securing agreement between an accused and a prosecutor. . . . The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.” Id., at 261-262. It follows that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand: “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id., at 262.
Santobello demonstrates why respondent may not successfully attack his plea of guilty. Respondent’s plea was in no sense induced by the prosecutor’s withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time respondent pleaded guilty he knew the prosecution would recommend a 21-year consecutive sentence. Respondent does not challenge the District Court’s finding that he pleaded guilty with the advice of competent counsel and with full awareness of the consequences — he knew that the prosecutor would recommend and that the judge could impose the sentence now under attack. Respondent’s plea was thus in no sense the product of governmental deception; it rested on no “unfulfilled promise” and fully satisfied the test for voluntariness and intelligence.
Thus, because it did not impair the voluntariness or intelligence of his guilty plea, respondent’s inability to enforce the prosecutor’s offer is without constitutional significance. Neither is the question whether the prosecutor was negligent or otherwise culpable in first making and then withdrawing his offer relevant. The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty. Here respondent was not deprived of his liberty in any fundamentally unfair way. Respondent was fully aware of the likely consequences when he pleaded guilty; it is not unfair to expect him to live with those consequences now.
The judgment of the Court of Appeals is
Reversed.
The petition was referred to a Magistrate who conducted an evidentiary-hearing and made recommended findings of fact and conclusions of law, which the District Court subsequently adopted.
Compare Virgin Islands v. Scotland, 614 F. 2d 360 (CA3 1980), and United States v. Greenman, 700 F. 2d 1377 (CA11), cert. denied, 464 U. S. 992 (1983), with Cooper v. United States, 594 F. 2d 12 (CA4 1979).
This ease is not moot despite the fact that respondent has been paroled. Respondent remains in the “custody” of the State, see Jones v. Cunningham, 371 U. S. 236 (1963); see generally Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 300-302 (1984); Hensley v. Municipal Court, 411 U. S. 345 (1973); and whether respondent must serve the sentence now under attack consecutively to his prior sentences will affect the date at which his parole will expire under state law, see Ark. Stat. Ann. § 43-2807(c) (Supp. 1983). Respondent’s challenge to the duration of his custody therefore remains live.
E. g., Townsend v. Sain, 372 U. S. 293, 312 (1963). In pertinent part, the habeas statute provides:
“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2254(a).
Under Arkansas law, there is no entitlement to have the trial court impose a recommended sentence since a negotiated sentence recommendation does not bind the court, see Varnedare v. State, 264 Ark. 596, 599, 573 S. W. 2d 57, 60 (1978); Marshall v. State, 262 Ark. 726, 561 S. W. 2d 76 (1978); Ark. Rule Crim. Proc. 25.3(c); there is a critical difference between an entitlement and a mere hope or expectation that the trial court will follow the prosecutor’s recommendation, see Olim v. Wakinekona, 461 U. S. 238, 248-251 (1983); Jago v. Van Curen, 454 U. S. 14, 19-21 (1981) (per curiam); Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 465-467 (1981); Meachum v. Fano, 427 U. S. 215, 226-227 (1976).
See Boykin v. Alabama, 395 U. S. 238 (1969); Kercheval v. United States, 274 U. S. 220, 223 (1927).
See Tollett v. Henderson, 411 U. S. 258, 266-267 (1973); North Carolina v. Alford, 400 U. S. 25, 31 (1970); Parker v. North Carolina, 397 U. S. 790, 797-798 (1970); McMann v. Richardson, 397 U. S. 759, 772 (1970); Brady v. United States, 397 U. S. 742, 747-748 (1970). See also Henderson v. Morgan, 426 U. S. 637 (1976); Menna v. New York, 423 U. S. 61 (1975) (per curiam).
See Corbitt v. New Jersey, 439 U. S. 212, 219-220, 222-223 (1978); Bordenkircher v. Hayes, 434 U. S. 357, 363 (1978); Blackledge v. Allison, 431 U. S. 63, 71 (1977); Santobello v. New York, 404 U. S. 257, 260-261 (1971). For example, in Brady v. United States we wrote:
“For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious — his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages — the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof. It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.” 397 U. S., at 752 (footnotes omitted).
See also 404 U. S., at 266 (Douglas, J., concurring); id., at 269 (Marshall, J., concurring in part and dissenting in part).
Respondent suggests that the prosecutor’s withdrawal of the initial offer undermined his confidence in defense counsel, in violation of his Sixth Amendment right to counsel. This argument is simply at odds with reason. Prosecutors often come to view an offense more seriously during the course of pretrial investigation for reasons entirely unrelated to what defense counsel has done or is likely to do. See United States v. Goodwin, 457 U. S. 368, 381 (1982). We fail to see how an accused could reasonably attribute the prosecutor’s change of heart to his counsel any more than he could have blamed counsel had the trial judge chosen to reject the agreed-upon recommendation, or, for that matter, had he gone to trial and been convicted. The District Court and the Court of Appeals concluded that counsel effectively advised respondent; that is all the Constitution requires. See United States v. Cronic, 466 U. S. 648, 656-657, n. 19 (1984); Tollett v. Henderson, 411 U. S., at 266-268; Parker v. North Carolina, 397 U. S., at 797-798; McMann v. Richardson, 397 U. S., at 770-771.
Indeed, even if respondent’s plea were invalid, Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea; the Court made it clear that permitting Santobello to replead was within the range of constitutionally appropriate remedies. See 404 U. S., at 262-263; see also id., at 268-269 (Marshall, J., concurring in part and dissenting in part). It follows that respondent’s constitutional rights could not have been violated. Because he pleaded after the prosecution had breached its “promise” to him, he was in no worse position than Santobello would have been had he been permitted to replead.
Santobello itself rejected the relevance of prosecutorial culpability: “It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That the breach of agreement was inadvertent does not lessen its impact.” Id., at 262. Cf. United States v. Agurs, 427 U. S. 97, 110 (1976).
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_respond1_3_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
S. BUCHSBAUM & CO. v. FEDERAL TRADE COMMISSION.
No. 8504.
Circuit Court of Appeals, Seventh Circuit.
Jan. 14, 1946.
Writ of Certiorari Granted May 6, 1946.
See 66 S.Ct. 1016.
Walter H. Moses, of Chicago, Ill. (Moses, Kennedy, Stein •& Bachrach, of Chicago, Ill., of counsel), for petitioner.
Joseph J. Smith, Jr., Asst. Chief Counsel, Federal Trade Commission, of Washington, D. C., W. T. Kelley, Chief Counsel, and Carl C. Wheaton, Sp. Atty., both of Washington, D. G, for respondent.
Before SPARKS and ICERNER, Circuit Judges, and BALTZELL, District Judge.
SPARKS, Circuí Judge.
By this proceeding petitioner seeks to review and set aside a cease and desist order of the Federal Trade Commission. The complaint charged petitioner with having engaged in unfair and deceptive acts and practices in violation of the Federal Trade Commission Act, IS U.S.C.A. § 41 et seq. The charge was that by the use of the trade mame “Elasti-Glass” petitioner had falsely represented that various men’s accessories made by petitioner from a chemically manufactured plasticized resinous material called “Vinylite” were made and constructed of glass. The answer admitted that petitioner manufactured “Elasti-Glass” products and advertised and sold them in interstate commerce as alleged in the complaint. It denied, however, that its trade name and representations were false or deceptive. It asserted that although “Vinylite” was a chemically manufactured plasticized resinous material, it was in fact an organic glass, a synthetic resin glass scientifically produced and properly designated as glass. It further alleged that the word “glass,” as properly used and defined, includes both organic glasses and inorganic glasses, and denied that, by the use of the term “Elasti-Glass” or in any othér way, it had misled or deceived the public into believing that its products were made of inorganic glass.
In substance the Commission found the facts as follows: Petitioner is an Illinois corporation engaged in the business of manufacturing various men’s accessories such as suspenders, belts, garters, etc., which it advertises and sells in interstate commerce under the trade name “Elasti-Glass.” It also found that glass as understood and recognized by the general public is the common glass found in window panes, tumblers, and bottles, and petitioner’s use of the term “Elasti-Glass” tends to mislead a substantial portion of the purchasing- public into the belief that petitioner’s products are made from common glass specially processed in some manner to make it pliable and elastic; that petitioner’s products are not glass as understood by the purchasing public; that they are made of plastic material, “Vinylite,” which has none of the characteristics of glass as recognized and understood by the general public, other than that of transparency, and which differs so greatly in composition, methods of manufacture, and properties from those substances commonly known as glass that it constitutes a part of a separate division of chemical technology. On these facts the Commission concluded the petitioner was engaged in deceptive acts and practices in violation of the Federal Trade Commission Act, and accordingly ordered petitioner, in connection with the offering for sale, the selling and distribution of men’s accessories and other similar articles of merchandise in interstate commerce, to cease and desist from:
1. Using the term “Elasti-Glass” or any other term containing the word “glass” to designate or describe any article of merchandise made of the material “Vinylite” or any other similar compound.
2. Representing in any manner, either directly or by implication, that any article of merchandise made from “Vinylite” or any other similar synthetic resinous compound is made of glass.
The first question raised for our consideration is whether the Commission erred in denying petitioner’s motion for a trial de novo, and in failing to strike from the record the evidence taken before Trial Examiner Reeves.
W. C. Reeves was the Trial Examiner originally appointed to act in this case. He conducted hearings on April 3 and 4, 1941, at Chicago, and on April 11 and 12, 1941, at Toledo, Ohio, at which evidence was taken covering 619 pages of transcript, and 48 Commission exhibits and 17 of petitioner’s exhibits were received in evidence. Sixteen witnesses for the Commission testified before him, including all six of the consumer witnesses.
Mr. Reeves died October 26, 1941. Trial Examiner Vilas was appointed on November 17, 1941, to complete the taking of testimony, close the case and make his report upon the evidence. Within four days from that date petitioner filed with the Commission its motion that there be a trial de novo and that the transcript of hearings before Trial Examiner Reeves be stricken from the record. The motion was denied by the Commission on December S, 1941, and Examiner Vilas proceeded from where Mr. Reeves left off, and based his report both upon the evidence taken before Mr. Reeves and that heard by him. On these facts appellant contends that the court erred in not granting a trial de novo. We think the ruling was erroneous, and we find no authority adverse to our conclusion. Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129; Wigmore on Evidence (3rd Ed.) Vol. III, § 946; and Rubin v. Lipman, D.C., 215 F. 669.
The Commission contends that what it calls the marked difference between the functions and authority of trial judges and masters on the one hand, and trial examiners on the other, precludes the application of the rule of confrontation in the authorities just referred to. Hence it argues that the finding of examiners being advisory only, there is not present in their findings the principal consideration,' that is to say, finality of factual judgment, which requires a trial de novo in the event of the death or disability of a judge or master. We think this does not meet petitioner’s contention. The elementary principle underlying all trials of whatever nature seems to be that the rule of confrontation shall be applied where the witnesses are available for that purpose. Of course, where under certain conditions witnesses are not available their testimony may be taken by deposition, but it is not contended that that condition is present here. To be sure, the Commission may disregard the recommendation of the Examiner, but it seems to us that that fact does not alter the rule of confrontation which is stressed in the citations we have given. Indeed, under those authorities the Commission should disregard the finding of the Examiner if he had not complied with the rule of confrontation, and that is the precise question which confronts us. Congress has authorized the appointment of Examiners in such cases and they are the eyes and ears of the Commission. There is no complaint as to this delegated power, but it certainly cannot be said that the appointment would free the Examiner from the duty of observing the demeanor of witnesses, for this would amount to a lack of due process to which petitioner is entitled.
In the case of Ohio Bell Telephone Co. v. Public Utilities Commission, supra, [304 U.S. 292, 57 S.Ct. 730] Justice Cardozo gave expression to the following language:
“Regulatory commissions have been invested with broad powers within the sphere of duty assigned to them by law. Even in quasi-judicial proceedings their informed and expert judgment exacts and receives a proper deference from courts when it has been reached with due submission to constitutional restraints. * * * Indeed, much that they do within the realm of administrative discretion is exempt from supervision if those restraints have been obeyed. All the more insistent is the need, when power has been bestowed so freely, that the ‘inexorable safeguard’ * * * of a fair and open hearing be maintained in its integrity. * * * The right to such a hearing is one of ‘the rudiments of fair play’ * * * assured To every litigant by the Fourteenth Amendment as a minimal requirement. * * * There. can be no compromise on the footing of convenience or expediency, or because of a natural desire to be rid of harassing delay, when that minimal requirement has been neglected or ignored.”
In the case of Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 777, 999, 82 L.Ed. 1129, Chief Justice Hughes used the following language:
“Congress, in requiring a ‘full hearing,’ had regard to judicial standards, — not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature. * * *”
“The maintenance of proper standards on the part of administrative agencies in the performance of their quasi-judicial functions is of the highest importance and in no way cripples or embarrasses the exercise of their appropriate authority. On the contrary, it is in their manifest interest. For, as we said at the outset, if these multiplying agencies deemed to be necessary in our complex society are to serve the purposes for which they are created and endowed with vast powers, they must accredit themselves by acting in accordance with the cherished judicial tradition embodying the basic concepts of fair play.”
Of course, we are not permitted to disturb a finding of the Commission if it is supported by substantial evidence. The principal reason for this rule is that the Commission, or its Examiner, has the opportunity of observing the demeanor of witnesses and thus has a better opportunity of passing upon the credibility of such witnesses, an opportunity which is not given to the reviewing court, and this is as it should be. Duvall et al. v. Barry, 7 Cir., 103 F.2d 653. In this case neither the Commission nor its Examiner had that opportunity with respect to most of the witnesses. The reason for the rule has failed in this case, however, if the ruling of the Commission stands this court is still bound by the rule. We think there was error in the ruling.
Respondent insists that there is no constitutional right to the benefit of demeanor evidence; that it is no more than a secondary and dispensable advantage of the rule of ‘ confrontation. In support of this contention it relies upon Wigmore on Evidence (3rd Ed.) §§ 1395, 1396. These sections do not support that contention. That author states that the process of confrontation has two purposes. The first is to secure for the opponent the opportunity of cross-examination, the second is to have the personal appearance of the witness before the judge and jury, from which they are enabled to obtain the elusive and incommunicable evidence of a witness’ deportment while testifying. In § 1396 the author states: “Nevertheless, the secondary advantage, incidentally obtained for the tribunal by the witness’ presence before it —the demeanor-evidence — is an advantage to be insisted upon whenever it can be had. No one has doubted that it is highly desirable, if only it is available.” The author concludes that the rule may be dispensed with in cases of unavailability. Here there is no claim by anyone that the witnesses were unavailable, and counsel has cited no decision of our Supreme Court which in any way abrogates the ruling in the Ohio Bell Telephone Company case, and the Morgan case, supra, both of which cases hold that a failure in this respect would amount to a failure of due process. So long as these cases stand, neither we nor the Commission can ignore them.
Other questions are presented concerning which we intimate no opinion. The Commission’s order is set aside and the cause is remanded to the Commission 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 "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:
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.