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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES v. DANG MEW WAN LUM.
No. 8346.
Circuit Court of Appeals, Ninth Circuit.
Feb. 8, 1937.
Ingram M. Stainback, U. S. Atty., J.. Frank McLaughlin, Asst. U. S. Atty., and' Ernest J. Hover, U. S. Department of Labor, Immigration, and Naturalization Service, all of Honolulu, T. IT., and H. IT. McPike, U. S. Atty., of San Francisco, Cal.
Before WILBUR and GARRECHT, Circuit Judges, and NETERER, District Judge.
NETERER, District Judge.
The appellant seeks reversal of the order of naturalization and cancellation of naturalization certificate of appellee.
No brief is filed by the appellee, nor does any one appear on her behalf. It is stated in appellant’s brief that appellee has not employed counsel, although advised to do so.
The petition for naturalization is sufficient, and among other things shows that appellee was born in Honolulu, Hawaii, May 29, 1894, and is of the Chinese race and is married to Lum Chew Hung. She was married May 2, 1910, at Dai Char, Chungshan, China. Her husband was born at Dai Char, Chungshan, China, February 3, 1886. Appellant entered Honolulu, United States, for permanent residence. She has no children. She departed for China from Hawaii May 16, 1907, steamship Siberia. Her last foreign residence was Macao, Chungshan, China. She came to the United States of America from Hongkong, China, and made lawful entry in the United States at ITonolulu, under the name of Dang Mew Wan Lum on October 19, 1934 on the steamship President Hoover. She qualified for citizenship on belief in organized government, disbelief in polygamy or in the practice thereof, and intention to become a citizen of the United States and the renunciation of all foreign allegiance and particularly with China; is able to speak the English language and had filed no former petition.
Motion was made to dismiss the petition for the reason that appellant, being of the Chinese race, is ineligible to naturalization unless she is entitled to admission under section 4 (a), Act of March 3, 1931 (8 U.S.C.A. § 369a).
Having departed from the United States in 1907 and married a Chinese in China May 2, 1910, which marriage endures, and not returning to the Territory of Hawaii and the United States until October 19, 1934, she is not within the amendment of July 2, 1932 (8 U.S.C.A. § 368b).
The Provisional Government obtained in the Hawaiian Islands from January 17, 1893, to July 4, 1894. She was at birth a citizen of the Provisional Government of the Hawaiian Islands. The Republic of ITawaii began July 4, 1894, and continued to August 12, 1898. By article 17 of the Constitution of the Republic of Hawaii she became a citizen of said republic at its inception and so remained during its life (to August 12, 1898). By the Organic Act of April 30, 1900, c. 339, § 4 (31 Stat. 141, 8 U.S.C.A. § 4), she, together with all other citizens of said republic, were naturalized as citizens of the United States, but when she married an alien ineligible to citizenship in 1910 she lost her citizenship.
The Act of March 2, 1907, c. 2534, § 3 (34 Stat. 1228), provides: “Any American woman who marries a foreigner shall take the nationality of her husband.” The Act of Sept. 22, 1922, c. 411 § 7, 42 Stat. 1022, 8 U.S.C.A. § 9 repealing section 3, Act of March 2, 1907, provides that “Such repeal shall not restore citizenship lost under such section.”
The Act of July 3, 1930, c. 835, § 2(a) (46 Stat. 854, 8 U.S.C.A. § 369), provides that a woman having lost her citizenship by marrying an alien eligible to citizenship, if she did not expiate herself by some affirmative act, may be naturalized. The Act of March 3, 1931, c. 442, § 4(a) (46 Stat. 1511, 8 U.S.C.A. § 369a), provides that any woman having lost her citizenship before March 3, 1931, by residence abroad after marriage or by marriage to an alien ineligible to citizenship if she has not acquired other nationality by her affirmative acts, may be naturalized. This section also makes eligible to citizenship a woman who was at birth a citizen of the United States of whatever race. Appellant was not at birth a citizen of the United States. And the further provision (8 U.S.C.A. § 368b) that a woman born in Hawaii prior to June 14, 1900, shall, if residing in the United States on July 2, 1932, be considered a citizen of the United States at birth does not qualify appellant, as she was not residing in the United States on said date.
This act created a right, upon a fixed status, but petitioner is not within the status, since she was not a citizen of the United States at birth, nor was she a resident of the United States July 2, 1932. The high privilege of citizenship is within the exclusive power of Congress to confer, Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255, and the court must strictly construe the acts granting the privilege, U. S. v. Manzi, 276 U.S. 463-467, 48 S.Ct. 328, 329, 72 L.Ed. 654. See, also, In re McIntosh (D.C.) 12 F.Supp. 177.
The order is reversed and the trial court directed to dismiss the petition and enter an order canceling and recalling the certificate of naturalization issued:
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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sc_caseorigin
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083
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
HESS et al. v. PORT AUTHORITY TRANS-HUDSON CORPORATION
No. 93-1197.
Argued October 3, 1994
Decided November 14, 1994
Ginsburg, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 53. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined, post, p. 55.
Lawrence A. Katz argued the cause for petitioners. With him on the briefs were Joseph A. Coffey, Jr., and David J. Bederman.
Hugh H. Welsh argued the cause for respondent. With him on the brief were Arthur P. Berg, Donald F. Burke, and Anne M. Tannenbaum.
William G. Mahoney and L. Pat Wynns filed a brief for the Railway-Labor Executives’ Association as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by Deborah T. Poritz, Attorney General of New Jersey, Andrea M. Silkowitz, Robert H. Stoloff, and Mary Jacobson, Assistant Attorneys General, and Eldad Philip Isaac, Deputy Attorney General, joined by the Attorneys General for their respective jurisdictions as follows: G. Oliver Koppell of New York, James H. Evans of Alabama, Winston Bryant of Arkansas, Gale A Norton of Colorado, Richard Blumenthal of Connecticut, Michael J. Bowers of Georgia, Robert A Marks of Hawaii, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Pamela Carter of Indiana, Robert T. Stephen of Kansas, Chris Gorman of Kentucky, Richard P. Ieyoub, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, Michael F. Easley of North Carolina, Lee Fisher of Ohio, Susan B. Loving of Oklahoma, Theodore R. Kulongoski of Oregon, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, and James E. Doyle of Wisconsin; and for the Council of State Governments et al. by Richard Ruda and Clifton S. Elgarten.
Justice Ginsburg
delivered the opinion of the Court.
These paired cases arise out of work-related accidents in which a locomotive engineer and a train conductor, employees of a bistate railway authorized by interstate compact, sustained.personal injuries. The courts below — the United States District Court for the District of New Jersey, and the United States Court of Appeals for the Third Circuit— rejected both complaints on the ground that the Eleventh Amendment sheltered respondent railway from suit in federal court. We granted certiorari to resolve an intercircuit conflict on this issue. 510 U. S. 1190 (1994). Concluding that respondent bistate railway, the Port Authority Trans-Hudson Corporation (PATH), is not cloaked with the Eleventh Amendment immunity that a State enjoys, we reverse the judgment of the Third Circuit.
I
A
Petitioners Albert Hess and Charles F. Walsh, both railroad workers, were injured in unrelated incidents in the course of their employment by PATH. PATH, a wholly owned subsidiary of the Port Authority of New York and New Jersey (Port Authority or Authority), operates a commuter railroad connecting New York City to northern New Jersey. In separate personal injury actions commenced in the United States District Court for the District of New Jersey, petitioners sought to recover damages for PATH’S alleged negligence; both claimed a right to compensation under the federal law governing injuries to railroad workers, the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq. Hess and Walsh filed their complaints within the 3-year time limit set by the FELA, see 35 Stat. 66, as amended, 45 U. S. C. § 56, but neither petitioner met the 1-year limit specified in the States’ statutory consent to sue the Port Authority. See N. J. Stat. Ann. §§32:1-157, 32:1-163 (West 1990); N. Y. Unconsol. Laws §§7101, 7107 (McKinney 1979).
PATH moved to dismiss each action, asserting (1) PATH’S qualification as a state agency entitled to the Eleventh Amendment immunity from suit in federal court enjoyed by New York and New Jersey, and (2) petitioners’ failure to commence court proceedings within the 1-year limit prescribed by New York and New Jersey. Third Circuit precedent concerning the Port Authority supported PATH’S plea. In Port Authority Police Benevolent Assn., Inc. v. Port Authority of New York and New Jersey, 819 F. 2d 413 (Port Authority PBA), cert. denied, 484 U. S. 953 (1987), the Court of Appeals for the Third Circuit held that the Port Authority is “an agency of the state and is thus entitled to Eleventh Amendment immunity.” 819 F. 2d, at 418. In reaching this decision, the Court of Appeals acknowledged that “[gjiven the solvency and size of the [Port Authority’s] General Reserve Fund, it is unlikely that the Authority would have to go to the state to get payment for any liabilities issued against it.” Id., at 416. But the Third Circuit considered “crystal clear” the intentions of New York and New Jersey: “[I]f the Authority is ever in need of financial support, the states will be there to provide it.” Ibid.
In line with Port Authority PBA, the District Court held in the Hess and Walsh actions that PATH enjoys Eleventh Amendment immunity, and could be sued in federal court only within the 1-year time frame New York and New Jersey allowed. See Walsh, 813 F. Supp. 1095, 1096-1097 (NJ 1993); Hess, 809 F. Supp. 1172, 1178-1182 (NJ 1992). Accordingly, both actions were dismissed.
The District Court in Hess noted an anomaly: Had Hess sued in a New Jersey or New York state court the FELA’s 3-year limitation period, not the States’ 1-year prescription, would have applied. See id., at 1183-1185, and n. 16. This followed from our reaffirmation in Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197 (1991), that the entire federal scheme of railroad regulation — including all FELA terms — applies to all railroads, even those wholly owned by one State. Time-bar rejection by a federal court of a federal statutory claim that federal prescription would have rendered timely, had the case been brought in state court, becomes comprehensible, the District Court explained, once it is recognized that “ ‘the Eleventh Amendment does not apply in state courts.’” Hess, 809 F. Supp., at 1183-1184 (quoting Hilton, 502 U. S., at 205); see 809 F. Supp., at 1185, n. 16.
Consolidating Hess and Walsh on appeal, the Third Circuit summarily affirmed the District Court’s judgments. 8 F. 3d 811 (1993) (table).
B
The Port Authority, whose Eleventh Amendment immunity is at issue in these cases, was created in 1921, when Congress, pursuant to the Constitution’s Interstate Compact Clause, consented to a compact between the Authority’s parent States. 42 Stat. 174. Through the bistate compact, New York and New Jersey sought to achieve “a better coordination of the terminal, transportation and other facilities of commerce in, about and through the port of New York.” N. J. Stat. Ann. §32:1-1 (West 1990); N. Y. Unconsol. Law § 6401 (McKinney 1979). The compact grants the Port Authority power to
“purchase, construct, lease and/or operate any terminal or transportation facility within [the Port of New York District; and to make charges for the use thereof; and for any of such purposes to own, hold, lease and/or operate real or personal property, to borrow money and secure the same by bonds or by mortgages upon any property held or to be held by it.” N. J. Stat. Ann. § 32:1-7 (West 1990); accord, N. Y. Unconsol. Law § 6407 (McKinney 1979).
The Port Authority’s domain, the Port of New York District, is a defined geographic area that embraces New York Harbor, including parts of New York and New Jersey. See N. J. Stat. Ann. § 32:1-3 (West 1990); N. Y. Unconsol. Law § 6403 (McKinney 1979).
“The Port Authority was conceived as a financially independent entity, with funds primarily derived from private investors.” United States Trust Co. of N. Y. v. New Jersey, 431 U. S. 1, 4 (1977). Tolls, fees, and investment income account for the Authority’s secure financial position. See App. to Pet. for Cert. 60a-61a.
Twelve commissioners, six selected by each State, govern the Port Authority. See N. J. Stat. Ann. §§32:1-5, 32:12-3 (West 1990); N. Y. Unconsol. Law §6405 (McKinney 1979); 1930 N. Y. Laws, ch. 422, § 6. Each State may remove, for cause, the commissioners it appoints. See N. J. Stat. Ann. §§32:1-5, 32:12-5 (West 1990); N. Y. Unconsol. Law §6405 (McKinney 1979); 1930 N. Y. Laws, ch. 422, §4. Consonant with the Authority’s geographic domain, four of New York’s six commissioners must be resident voters of New York City, and four of New Jersey’s must be resident voters of the New Jersey portion of the Port of New York District. See N. J. Stat. Ann. §32:1-5 (West 1990); N. Y. Unconsol. Law §6405 (McKinney 1979). The Port Authority’s commissioners also serve as PATH’S directors. See N. J. Stat. Ann. §32:1-35.61 (West 1990); N. Y. Unconsol. Law §6612 (McKinney 1979).
The Governor of each State may veto actions of the Port Authority commissioners from that State, including actions taken as PATH directors. See N. J. Stat. Ann. §§32:1-17, 32:1-35.61,32:2-6 to 32:2-9 (West 1990); N. Y. Unconsol. Law §§6417, 6612, 7151-7154 (McKinney 1979). Acting jointly, the state legislatures may augment the powers and responsibilities of the Port Authority, see N. J. Stat. Ann. §32:1-8 (West 1990); N. Y. Unconsol. Law §6408 (McKinney 1979), and specify the purposes for which the Port Authority’s surplus revenues are used. See N. J. Stat. Ann. §32:1-35.142 (West 1990); N. Y. Unconsol. Law §7002 (McKinney 1979).
Debts and other obligations of the Port Authority are not liabilities of the two founding States, and the States do not appropriate funds to the Authority. The compact and its implementing legislation bar the Port Authority from drawing on state tax revenue, pledging the credit of either State, or otherwise imposing any charge on either State. See N. J. Stat. Ann. §§32:1-8, 32:1-33 (West 1990); N. Y. Unconsol. Law §§6408, 6459 (McKinney 1979).
The States did agree to appropriate sums to cover the Authority’s “salaries, office and other administrative expenses,” N. J. Stat. Ann. §32:1-16 (West 1990); N. Y. Unconsol. Law § 6416 (McKinney 1979), but this undertaking is notably modest. By its terms, it applies only “until the revenues from operations conducted by the [P]ort [Authority are adequate to meet all expenditures.” The promise of support has a low ceiling: $100,000 annually from each State. Thus, the States in no way undertake to cover the bulk of the Authority’s operating and capital expenses. Further, even the limited administrative expense payments for which the States provided are contingent on the advance approval of both Governors, see ibid., and the States’ treasuries may not be tapped until both legislatures have appropriated the necessary funds. See N. J. Stat. Ann. §32:1-18 (West 1990); N. Y. Unconsol. Law § 6418 (McKinney 1979). A judgment against PATH, it is thus apparent, would not be enforceable against either New York or New Jersey.
C
The Third Circuit’s assessment of PATH’S qualification for Eleventh Amendment immunity conflicts with the judgment of the Court of Appeals for the Second Circuit on the same matter. See Feeney v. Port Authority Trans-Hudson Corporation, 873 F. 2d 628, 631 (1989), aff’d on other grounds, 495 U. S. 299 (1990). The Second Circuit concluded:
“No provision [of the compact or of state legislation pursuant to the compact] commits the treasuries of the two states to satisfy judgments against the Port Authority ____ We believe that this insulation of state treasuries from the liabilities of the Port Authority outweighs both the methods of appointment and gubernatorial veto so far as the Eleventh Amendment immunity is concerned.” 873 F. 2d, at 631.
We affirmed the Second Circuit’s judgment in Feeney, but we bypassed the question whether PATH enjoyed the States’ Eleventh Amendment immunity. See Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299 (1990). Assuming, arguendo, that the suit in Feeney was tantamount to a claim against the States, we ruled that New York and New Jersey had effectively consented to the litigation. See id., at 306-309 (relying on N. J. Stat. Ann. §§32:1-157, 32:1-162 (West 1963); N. Y. Unconsol. Laws §§7101, 7106 (McKinney 1979)). Consent is not arguable here, because Hess and Walsh commenced suit too late to meet the 1-year prescription specified by the States. See supra, at 33. Accordingly, we confront directly the sole question petitioners Hess and Walsh present, and we hold that PATH is not entitled to Eleventh Amendment immunity from suit in federal court.
II
The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State’s own tribunals. Adoption of the Amendment responded most immediately to the States’ fears that “federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin.” Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 151 (1984) (Stevens, J., dissenting); see also Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 276, n. 1 (1959); Missouri v. Fiske, 290 U. S. 18, 27 (1933). More pervasively, current Eleventh Amendment jurisprudence emphasizes the integrity retained by each State in our federal system:
“The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity. See Hans v. Louisiana, 134 U. S. 1, 13 (1890). It thus accords the States the respect owed them as members of the federation.” Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 146 (1993).
Bistate entities occupy a significantly different position in our federal system than do the States themselves. The States, as separate sovereigns, are the constituent elements of the Union. Bistate entities, in contrast, typically are creations of three discrete sovereigns: two States and the Federal Government. Their mission is to address “ ‘interests and problems that do not coincide nicely either with the national boundaries or with State lines’ ” — interests that “ ‘may be badly served or not served at all by the ordinary channels of National or State political action.’” V. Thursby, Interstate Cooperation: A Study of the Interstate Compact 5 (1953) (quoting National Resources Committee, Regional Factors in National Planning and Development 34 (1935)); see Grad, Federal-State Compact: A New Experiment in Cooperative Federalism, 63 Colum. L. Rev. 825, 854-855 (1963) (Compact Clause entities formed to deal with “broad, region-wide problems” should not be regarded as “an affirmation of a narrow concept of state sovereignty,” but as “independently functioning parts of a regional polity and of a national union.”).
A compact accorded congressional consent “is more than a supple device for dealing with interests confined within a region. . . . [I]t is also a means of safeguarding the national interest....” West Virginia ex rel. Dyer v. Sims, 341 U. S. 22, 27 (1951). The Port Authority of New York and New Jersey exemplifies both the need for, and the utility of, Compact Clause entities:
“From the point of view of geography, commerce, and engineering, the Port of New York is an organic whole. Politically, the port is split between the law-making of two States, independent but futile in their respective spheres. The scarcity of land and mounting commerce have concentrated on the New York side of the Hudson River the bulk of the terminal facilities for foreign commerce, while it has made the Jersey side, to a substantial extent, the terminal and breaking-up yards for the east- and west-bound traffic. In addition, both sides of the Hudson are dotted with municipalities, who have sought to satisfy their interest in the general problem through a confusion of local regulations. In addition, the United States has been asserting its guardianship over interstate and foreign commerce. What in fact was one, in law was many. Plainly the situation could not be adequately dealt with except through the coordinated efforts of New York, New Jersey, and the United States. The facts presented a problem for the unified action of the law-making of these three governments, and law heeded facts.” Frankfurter & Landis, The Compact Clause of the Constitution — A Study in Interstate Adjustments, 34 Yale L. J. 685, 697 (1925) (footnote omitted).
Suit in federal court is not an affront to the dignity of a Compact Clause entity, for the federal court, in relation to such an enterprise, is hardly the instrument of a distant, disconnected sovereign; rather, the federal court is ordained by one of the entity’s founders. Nor is the integrity of the compacting States compromised when the Compact Clause entity is sued in federal court. As part of the federal plan prescribed by the Constitution, the States agreed to the power sharing, coordination, and unified action that typify Compact Clause creations. Again, the federal tribunal cannot be regarded as alien in this cooperative, trigovern-mental arrangement. This is all the more apparent here, where the very claims in suit — the FELA claims of Hess and Walsh — arise under federal law. See supra, at 33.
Because Compact Clause entities owe their existence to state and federal sovereigns acting cooperatively, and not to any “one of the United States,” see supra, at 33, n. 2, their political accountability is diffuse; they lack the tight tie to the people of one State that an instrument of a single State has:
“An interstate compact, by its very nature, shifts a part of a state’s authority to another state or states, or to the agency the several states jointly create to run the compact. Such an agency under the control
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
sc_issue_2
|
38
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
LONG v. DISTRICT COURT OF IOWA in and for LEE COUNTY.
No. 77.
Argued November 9, 1966.
Decided December 5, 1966.
Ronald L. Carlson, by appointment of the Court, 383 U. S. 956, argued the cause and filed briefs for petitioner.
Don R. Bennett, Assistant Attorney General of Iowa, argued the cause for respondent. With him on the brief was Lawrence F. Scalise, Attorney General.
Per Curiam.
Petitioner was convicted of larceny and sentenced on October 21, 1963, to a term not to exceed five years. This conviction was affirmed on appeal to the Supreme Court of Iowa (State v. Long, 256 Iowa 1304, 130 N. W. 2d 663 (1964)), and petitioner is currently serving his sentence in the state penitentiary. On January 13, 1965, petitioner sought a writ of habeas corpus in the District Court of Iowa, Lee County, and contended, inter alia, that he had been denied counsel at the preliminary hearing and that he himself had been incompetent at the time. After an evidentiary hearing at which petitioner was not afforded the assistance of court-appointed counsel, the District Court found against petitioner on the facts of his claims. Petitioner thereupon applied to the District Court for appointment of counsel and for a free transcript of the habeas corpus proceeding, for use on appeal. The District Court denied these motions on the following ground: “Habeas corpus being a civil action there is no provision in the law for the furnishing of a transcript without the payment of fee, or for the appointment-of counsel.” Petitioner sought certiorari to review this decision from the Supreme Court of Iowa. Certiorari was denied without opinion by that court. On petition for a writ of certiorari to the Supreme Court of Iowa, this Court granted the writ limited solely to the refusal to furnish petitioner, an indigent, with a transcript of the habeas corpus proceeding, for purpose of appeal.
The judgment below must be reversed. The State properly concedes that under our decisions in Smith v. Bennett, 365 U. S. 708 (1961), and Lane v. Brown, 372 U. S. 477 (1963), “to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.” Smith v. Bennett, supra, at 709. We specifically held in Smith that having established a post-conviction procedure, a State cannot condition its availability to an indigent upon any financial consideration. And we held in Lane that the same rule applies to protect an indigent against a financial obstacle to the exercise of a state-created right to appeal from an adverse decision in a post-conviction proceeding.
In Lane v. Brown, supra, at 483, the Court reaffirmed the fundamental principle of Griffin v. Illinois, 351 U. S. 12, 19 (1956), that “Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” The Court in Lane went on to observe that Smith had established “that these principles were not to be limited to direct appeals from criminal convictions, but extended alike to state postconviction proceedings.” 372 U. S., at 484. See also Eskridge v. Washington State Board, 357 U. S. 214 (1958); Burns v. Ohio, 360 U. S. 252 (1959); Draper v. Washington, 372 U. S. 487 (1963).
The State suggests that there may be alternative ways of preparing, for purposes of appeal, an account of the relevant proceeding at the trial level. Cf. Draper v. Washington, supra. In the present case, a transcript is available and could easily have been furnished. We need not consider a possible situation where a transcript cannot reasonably be made available and adequate alternatives are made available by the State. Accordingly, the judgment below must be reversed and the cause remanded to the Supreme Court of Iowa for further proceedings not inconsistent with this opinion.
Reversed and remanded.
As to the claim of lack of counsel at the preliminary hearing, the State now concedes that petitioner was not in fact represented at that time (although the District Court found to the contrary). Petitioner alleged in his petition for habeas corpus that a guilty plea obtained at the preliminary hearing was introduced as an admission at his criminal trial. The State concedes that if this is true, petitioner “probably is entitled to relief in habeas corpus under White v. Maryland, 373 U. S. 59.” The Attorney General of Iowa has ruled that White is applicable to preliminary hearings in Iowa because guilty pleas, if made at that time, may later be used as admissions of guilt. 1964 Opinions of the Attorney General of Iowa 160 (October 5, 1964).
The court’s order reads: “Petition for certiorari filed, considered, and denied. See in this connection, Waldon v. District Court of Lee County, Iowa, 130 N. W. 2d 728.” The Waldon case held only that a State need not provide appointed counsel on appeal from the denial of habeas corpus; it does not so much as refer to the transcript problem, to which this Court limited the grant of certiorari in this case.
Petitioner’s notice of appeal to the Supreme Court of Iowa was timely and properly filed. His appeal is pending before that court, and disposition has been stayed until the outcome of this preliminary case.
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
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songer_casetyp1_7-2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Stefanos KTISTAKIS, Plaintiff-Appellant, v. UNITED CROSS NAVIGATION CORP. and Carras (U. S. A.) Ltd., Defendants-Appellees.
No. 154, Docket 28410.
United States Court of Appeals Second Circuit.
Argued Nov. 7, 1963.
Decided Nov. 18, 1963.
James Corines, Brooklyn, N. Y. (Jacob Rassner, New York City, of counsel) (Jacob Rassner, Alan C. Rassner, New York City, on the brief), for plaintiff-appellant.
Zock, Petrie, Sheneman & Reid, New York City (Edwin K. Reid, New York City, of counsel), for defendants-appellees.
Before WATERMAN, MOORE and SMITH, Circuit Judges.
PER CURIAM.
After trial of the action, which was brought within the district court’s admiralty and maritime jurisdiction, the judge below, sitting without jury, awarded plaintiff damages of $40,000. He found plaintiff to have been so contributorily negligent that the $40,000 award represented but half of the recovery plaintiff would have been entitled to receive if he had not been negligent in any degree. This opinion is reported at 204 F.Supp. 293 (S.D.N.Y.1962). Upon appeal, 316 F.2d 869 (2 Cir. 1963), it was our view that the district judge may have given undue weight in his appraisement of plaintiff’s negligence to the circumstance that plaintiff was the vessel’s second mate, and, when injured, was the officer in charge of the watch, and hence had a duty to keep the deck clean from oil spill and sawdust. Therefore, we remanded the case to the district judge with instructions to re-examine the plaintiff’s conduct “by the traditional negligence standard of whether he exercised the care which a reasonably prudent man would have exercised under the circumstances.”
After remand plaintiff moved for summary judgment and a redetermination of the damages on the trial record. Obedient to our instructions, the judge reviewed the record and applied the standard we instructed him to apply. In a memorandum opinion he reaffirmed his previous estimate of the extent to which plaintiff’s own negligence had contributed to the injury, and he reaffirmed his former award of damages. Plaintiff appealed. We affirm. Oil had been dripping for several hours from the coupling where the shore discharge lines connected with the ship’s manifold discharge lines and spill tubs had been placed under the leaking coupling to catch the drip. The entire area was well-lighted. From midnight until 2:30 A. M. plaintiff had been responsible for the supervision of the work being done in this area, including the emptying of the spill tubs from time to time. The slippery condition caused by the oil that had dripped onto the deck from the coupling or the tubs should have been apparent to a reasonably prudent man in the plaintiff’s position.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_applfrom
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
James N. STEPHENS, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Secretary, Defendant-Appellee. James N. STEPHENS, Plaintiff-Appellant, v. Terry S. COLEMAN, Isabel P. Dunst, Defendants-Appellees.
Nos. 89-8550, 89-8551.
United States Court of Appeals, Eleventh Circuit.
May 23, 1990.
Beverly B. Bates, Bates, Baum and Lan-dey, Atlanta, Ga., plaintiff-appellant.
Marleigh D. Dover, William Kanter, U.S. Dept, of Justice, Civil Div., Washington, D.C., for Department of Health and Human Services.
Robert L. Barr, U.S. Atty., Sandra R. Ganus, Nina Loree Hunt, Atlanta, Ga., John S. Koppel, Marleigh D. Dover, Barbara L. Herwig, Robert D. Kamenshine, Dept, of Justice, Civil Div., Washington, D.C., for Terry Coleman and Isabel P. Dunst.
Before KRAVITCH, Circuit Judge, and RONEY and ALDISERT , Senior Circuit Judges.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
Honorable Ruggero J. Aldisert, Senior U.S. Circuit Judge for the Third Circuit, sitting by designation.
ALDISERT, Senior Circuit Judge:
The major question presented in these appeals by James N. Stephens, Deputy Regional Attorney of the Department of Health and Human Services (HHS), who was an unsuccessful candidate for the office of Regional Attorney, is whether the district court properly concluded that the grievance procedure set forth in the Civil Service Reform Act of 1978 (CSRA), codified and amended in various sections of 5 U.S.C., precludes federal court review of an alleged “prohibited personnel practice,” where the Office of Special Counsel declines to petition the Merit Systems Protection Board for consideration of the complaint. Appellant also alleges the district court erred by: 1) refusing to compel the HHS to turn over records pursuant to a Freedom of Information Act request (FOIA); 2) erroneously approving HHS’ failure to grant appellant a veterans’ preference; and 3) failing to exercise personal jurisdiction over two government employees. Because we hold that the administrative procedure set forth in the CSRA and approved in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) precludes judicial review in this case, and that the collateral claims asserted have no merit, we affirm the judgment of the district court.
Jurisdiction was proper in the trial court based on 28 U.S.C. § 1331. We have jurisdiction on appeal pursuant to 28 U.S.C. § 1291. The appeal was timely filed under Rule 4(a), F.R.A.P.
Stephens’ substantive claims based on his non-selection and all allegations of injustice stemming from the grievance procedure were dismissed for failure to state a claim. The standard of review for a motion to dismiss is the same for the appellate court as it was for the trial court. On a motion to dismiss, the facts stated in appellant’s complaint and all reasonable inferences therefrom are taken as true. Delong Equipment Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir.1988).
The district court granted summary judgment as to the FOIA request. When this court reviews the grant of a motion for summary judgment, all the facts and inferences therefrom are viewed in the light most favorable to the appellant. Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983).
Whether the district court correctly determined that Stephens was not subject to a veterans’ preference is a mixed question of law and fact. As to the fact portion of the mix, we apply the clearly erroneous rule. As to the legal component we will apply the plenary review standard. See United States v. Wilson, 894 F.2d 1245 (11th Cir.1990).
I.
In May of 1985, the HHS Office of General Counsel (OGC) announced a vacancy for the position of Regional Attorney (now called Chief Counsel), Region IV, Atlanta, Georgia. Stephens, who had been acting Regional Attorney for seven months, applied for the position. He asserts he was extremely qualified for the position, having been ranked number three in his class at Wake Forest Law School, a Deputy Regional Attorney for 11 years and having been assigned numerous important projects during his 21 years at HHS. Mr. Stephens was notified on August 14, 1985, that Mr. Granger had been appointed to the position.
A.
In September of 1985, appellant filed a grievance with the OGC, alleging that the selecting officials had not followed HHS or federal regulations in selecting the Regional Attorney. While his grievance was pending, appellant sought various documents relating to the appointment of Granger as Regional Attorney through a Freedom of Information Act (FOIA) request.
Appellant filed a second grievance with OGC on October 25, 1985, alleging additional errors in the selection process. This grievance was rejected on November 19, 1985. Appellant’s subsequent request for an investigation and hearing by another hearing officer was rejected on January 30, 1986. While these grievances were pending, appellant filed a discrimination complaint with HHS. The discrimination complaint was based on the same facts as the two prior grievances. Appellant failed to notify the grievance official of the pending HHS grievance. HHS, accordingly, refused to reconsider dismissal of the grievance.
Stephens subsequently filed a grievance with the Office of Special Counsel (OSC) of the Merit System Protection Board (MSPB), a special independent ombudsman-type official. 5 U.S.C. § 1205. The OSC concluded that the regulations claimed to have been violated by HHS did not apply to Stephens because he was an exempt employee. Additionally, the OSC refused to address the discrimination issues alleged because it was office policy to leave those issues to determination by the Equal Employment Opportunity Commission. The OSC, therefore, declined to petition the Merit Systems Protection Board for consideration of Stephens’ complaint. By operation of the statute describing the Office of Special Counsel, all review ended when that office declined to petition the Board for consideration of the grievance. 5 U.S.C. § 1214.
B.
On August 26, 1986, appellant filed an action in district court challenging HHS’ decision not to promote him, the rejection of his grievance, and the failure of HHS to release all documents requested in his FOIA request (complaint I). He alleged that: 1) HHS had violated the Administrative Procedure Act (APA) by not complying with various statutes and regulations during the selection process and the grievance procedure; 2) he was denied due process by HHS’ failure to grant him a veterans’ preference; 3) HHS violated his due process and equal protection rights; and 4) HHS improperly withheld information requested pursuant to the FOIA. The complaint was amended to allege that appellant had been penalized in promotion because he refused to provide derogatory information about his former supervisor. He also added a claim for damages to his reputation by non-selection for the position of Regional Attorney.
In August 1987, he filed a companion case against the individual defendants, Coleman and Dunst (complaint II), seeking essentially the same relief only to the extent relief is determined to be unavailable against defendant in complaint I. The complaint of August 1987 required the court to exercise personal jurisdiction over Mr. Coleman and Ms. Dunst based on their participation in appellant’s non-selection. Appellant asserted a Bivens claim against the two defendants in their individual capacity for their alleged deprivation of his constitutional entitlement to a veterans’ preference. He again argued that he was entitled to a veterans’ preference.
On April 5, 1989, the district court dismissed the promotion and grievance counts and granted appellee’s motion for summary judgment on the FOIA claim in complaint I. The court held that the Civil Service Reform Act provided the exclusive remedy for the personnel actions alleged. The court did review the claim as to the veterans’ preference but concluded that the preference was only available for initial appointment or retention of job. Because the position of Regional Attorney would have been a promotion for Stephens, a veterans' preference was not available. Stephens v. Secretary, Dep’t of Health and Human Servs., No. 1:86-CV-1875-HTW, at 13, (April 5, 1989) [hereinafter Stephens /]. As to the FOIA claims, the court held that appellant had been provided with the information most relevant to his non-selection and that the additional material was properly withheld pursuant to 5 U.S.C. §§ 552(b)(5) and (6). Stephens I.
The district court dismissed complaint II for lack of personal jurisdiction and failure to state a claim. The court concluded that “plaintiff may not obtain Bivens relief against federal officials in their individual capacities in this case as Congress has provided comprehensive procedural and substantive provisions which give meaningful remedies against the United States by way of the CSRA.” Stephens v. Coleman, 712 F.Supp. 1571, 1581 (N.D.Ga.1989) (relying on Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)).
II.
Stephens’ main contention, and the only contention we will discuss at length, concerns the preemptive effect of the CSRA. This argument takes three tracks. First, he contends that the CSRA is not the exclusive remedy for preference-eligible, exempt, federal employee relief. He next argues that even if we determine that private rights for “prohibited personnel practices” are preempted by the CSRA, the federal courts nevertheless have jurisdiction over his claim because he has asserted constitutional violations. Finally he argues that even if the CSRA preempts other judicial review, he still has a Bivens action against Coleman and Dunst in their individual capacities.
Stephens also contends that the district court erred in entering summary judgment in favor of HHS by determining that certain materials sought by him under the Freedom of Information Act are exempt from disclosure. He challenges the ruling that he was not entitled to a veterans’ preference. Finally, Stephens asserts that the district court erred in dismissing his complaint against Coleman and Dunst for lack of personal jurisdiction. We agree with the district court’s personal jurisdiction conclusion, but it will not be necessary to discuss this point because we conclude that the trial court did not err in its alternative basis for dismissal — that Stephens’ contentions on the merits may not survive a motion to dismiss.
III.
Stephens argues that the CSRA is not the exclusive remedy for federal employees, alleges that the statute does not state that it is exclusive and does not cover all employee personnel actions. He contends that the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, and mandamus, 28 U.S.C. § 1361, were designed to provide an additional remedy for aggrieved federal employees in the federal courts. In support of this view, he relies on preCSRA procedures, suggesting that the APA was available to preference-eligible, exempt federal employees claiming statutory violations. See Kletschka v. Driver, 411 F.2d 436 (2d Cir.1969). He argues that no court should restrict judicial review absent a “showing of ‘clear and convincing’ legislative intent.” See Brief for Appellant at 40 (citing Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985)). He acknowledges the existence of a preemption line of cases, but suggests that we have rejected those cases. See Grier v. Secretary of the Army, 799 F.2d 721 (11th Cir.1986); Gleason v. Malcom, 718 F.2d 1044 (11th Cir.1983). Stephens asserts that the mere fact the CSRA provides for review of certain personnel actions by the OSC, then the MSPB and in some cases the Federal District Court or the Court of Claims, does not evince an intent by Congress to deny APA review in those cases where the CSRA does not provide for review by the MSPB. Indeed, he argues such an interpretation would frustrate the reformative intent of the CSRA by denying review of an agency’s failure to follow its own procedures. Appellant says he is not seeking review of the merits of his grievances in this court, but rather a review of the agency’s misconduct in handling his grievance.
Unfortunately for the appellant, his multitudinous, voluminous and extremely innovative arguments have been foreclosed by the Supreme Court. In United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), the Court held than an exempt, non-preference, federal employee, who had exhausted his administrative grievance procedures and was not provided further avenues for relief or appeal under the administrative review provisions the CSRA, did not have a right to bring an action in federal court against the government for the alleged prohibited personnel practice. Id. at 447-52, 108 S.Ct. at 677-79. The court faced head on the argument that pre-CSRA statutes and case law would have provided the employee with review and rejected the contention outright. Id. at 454-55, 108 S.Ct. at 680-81. The court held that the CSRA was now the exclusive remedy of the federal employee. We believe Fausto applies to preference-eligible as well as non-preference employees.
We hold that under Fausto, and a number of cases of the U.S. Courts of Appeals, the CSRA is Stephens’ exclusive remedy. See, e.g., Towers v. Horner, 791 F.2d 1244, 1246 (5th Cir.1986); Schrachta v. Curtis, 752 F.2d 1257, 1260 (7th Cir.1985). Cases in this court are not to the contrary. Although our decisions in Grier and Gleason were made after the effective date of the CSRA, and permitted APA review, they failed to mention the CSRA. More importantly, both cases were decided before Fausto, which emphatically and conclusively established the preemptive nature of the CSRA. See Grier, 799 F.2d 721; Gleason, 718 F.2d 1044.
Moreover, the APA expressly excepts review where the relevant statute “preclude[s] judicial review,” 5 U.S.C. § 701(a)(1), or where the “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). “[T]he comprehensive nature of the ... CSRA indicates a clear congressional intent to permit federal court review as provided in the CSRA, or not at all.” Veit v. Heckler, 746 F.2d 508, 511 (9th Cir.1984). The same argument applies to appellant’s request for mandamus, 28 U.S.C. § 1361. No right to mandamus exists where other adequate remedies are available. Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.), cert. denied, 449 U.S. 832, 101 S.Ct. 100, 66 L.Ed.2d 37 (1980). The CSRA provides other adequate remedies. Towers v. Horner, 791 F.2d 1244, 1247 (5th Cir.1986).
We conclude that the holding of Fausto is applicable to a preference-eligible federal employee, like Stephens, as well as a non-preference eligible employee, as was before the court in Fausto.
IV.
Stephens’ argument based on alleged deprivations of constitutional rights also cannot carry the day. He is simply recharacterizing the basis of his APA claim as a constitutional violation. The Supreme Court has recently explained that it will not permit additional remedies for alleged constitutional violations where “Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration.” Chilicky, 487 U.S. at 413, 108 S.Ct. at 2462. The CSRA provides adequate remedial mechanisms. See, e.g., Pinar v. Dole, 747 F.2d 899, 910-11 (4th Cir.1984) (CSRA mechanisms preclude all other judicial intervention), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985); Lombardi v. Small Business Admin., 889 F.2d 959, 961 (10th Cir.1989) (employee terminated for alleged infringement of first amendment rights did not have Bivens action or injunctive relief available as a remedy).
V.
Stephens’ final argument that he is entitled to federal court review of this alleged prohibited personnel practice takes the form of a Bivens claim. Stephens asserts he has “a legitimate entitlement to a veteran’s preference, to a hearing on his grievance, and to the issuance of a validly processed and validly issued appointment certificate to the vacancy for which he applied.” Brief for Appellant at 21. He sees this as both a liberty and a property interest and says that deprivation of these rights are prohibited by the equal protection and due process clauses of the fifth amendment. He also claims that his first amendment rights were violated when he was retaliated against for refusing to criticize his former employer. Therefore, he believes he is entitled to bring a Bivens action.
In support of this conclusion, he relies principally on the concurring opinion of Justice Blackmun in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), stating “this court has long recognized that the Constitution itself supports a private damages action against a federal official.” Id. at 455, 108 S.Ct. at 681 (citing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). He attempts to distinguish Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) by contending that Congress has not decided that his rights are not reviewable in federal court, as was the case of the Social Security Act in Chilicky.
Stephens also relies on the distinction set forth in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) between a public employee speaking as a citizen about matters of public concern instead of as an employee speaking about matters only of personal interest:
When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment....
... [Wjhen a public employee speaks not as a citizen upon matters of public conern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.
Id. at 146-147, 103 S.Ct. at 1690. See also, Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2898, 97 L.Ed.2d 315 (1987) (threshold question is whether speech is on a matter of public concern).
Finally, he argues, somewhat irrelevantly, that Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) emphasizes the court’s reaffirmance of the district court’s role in reviewing federal personnel decisions under the APA.
A Bivens action is only permitted where 1) the petitioner has no alternative means of obtaining redress, and 2) there are no “special factors counseling hesitation.” Bivens, 403 U.S. at 396-97, 91 S.Ct. at 2005.
[Wjhen the design of a Government program suggests that Congress has provided what it considers to be adequate remedies for constitutional violations that may occur in the course of the program’s administration [we have not created additional Bivens remedies].
Chilicky, 487 U.S. at 424, 108 S.Ct. at 2468; see Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). In addition, this court has recognized that the comprehensive statutory scheme established by Congress relating to federal employment (CSRA) precludes the maintenance of job-related Bivens actions by federal employees. McCollum v. Bolger, 794 F.2d 602, 607 (11th Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 883, 93 L.Ed.2d 836 (1987); Wells v. FAA, 755 F.2d 804, 810 (11th Cir.1985).
We agree with the district court that Stephens’ contentions are limited to a matter of acute personal interest — a job; his contentions do not implicate the type of public concern discussed in Connick. Because we take this view, Stephens may find no solace in Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.1988).
Finally, Webster v. Doe does not support appellant’s position. There, suit was brought against the CIA’s director in his official capacity for declaratory and injunc-tive relief for alleged constitutional and statutory claims. The Court held the constitutional claims were judicially reviewable. No “individual” liability was sought. Webster has nothing to do with Bivens actions. Webster, 486 U.S. 592, 108 S.Ct. 2047.
VI.
As to Stephens remaining contentions: that he was entitled to the entire promotion file in his Freedom of Information Act request, that he was entitled to a veterans’ preference, and that the district court erred in concluding that it did not have personal jurisdiction over Coleman and Dunst for complaint II, we have reviewed the arguments and contentions raised by appellant and determine they are without merit.
The information requested by Stephens and not disclosed by HHS is privileged as “inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency,” 5 U.S.C. § 552(b)(5), or as an “unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The district court did not err when it refused to require HHS to produce these documents.
We conclude that the decision of the district court determining that Stephens’ application for the position of Regional Attorney was an application for promotion is consistent with the facts and arguments set forth in the record. Therefore, we affirm the decision of the district court upholding HHS’ decision not to grant Stephens a veterans’ preference. See Noble v. Tennessee Valley Authority, 876 F.2d 1580, 1583, appeal dismissed, 892 F.2d 1013 (Fed.Cir.1989) (en banc).
Finally, we agree with the district court’s refusal to exercise personal jurisdiction over Coleman and Dunst. Because of our holding as to the court’s dismissal of the substantive claims, we have elected not to discuss this issue.
VII.
We have considered all contentions presented by the appellant in both appeals. The judgments of the district court are AFFIRMED.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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sc_issue_8
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07
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
HARBOR TUG & BARGE CO. v. PAPAI et ux.
No. 95-1621.
Argued January 13, 1997
Decided May 12, 1997
Eric Danoff argued the cause for petitioner. With him on the briefs was Richard K. Willard.
Thomas J. Boyle argued the cause and filed a brief for respondents.
David C. Frederick argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Kneedler, J. Davitt McAteer, Allen H. Feldman, Nathaniel I. Spiller, and Mark S. Flynn.
Briefs of amici curiae urging reversal were filed for Industrial Indemnity Co. et al. by Roger A. Levy and J. Mark Foley; and for the Shipbuilders Council of America et al. by Charles T. Carroll, Jr., F. Edwin Froelich, Franklin W. Losey, and Lloyd A. Schwartz.
A brief of amicus curiae urging affirmance was filed for the United Brotherhood of Carpenters and Joiners of America by John T. DeCarlo and John R. Hillsman.
Justice Kennedy
delivered the opinion of the Court.
Adjudication to determine whether a maritime employee is a seaman under the Jones Act, 46 U. S. C. App. § 688(a), or a maritime employee covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA), 44 Stat. (pt. 2) 1424, as amended, 33 U. S. C. § 901 et seq., continues to be of concern in our system. The distinction between the two mutually exclusive categories can be difficult to implement, and many cases turn on their specific facts.
The Court of Appeals for the Ninth Circuit held in this case that there was a jury question as to whether an injured worker was a Jones Act seaman. Granting the employer’s petition for a writ of certiorari, we brought two questions before us. The first is whether an administrative ruling in favor of the employee on his claim of coverage under the LHWCA bars his claim of seaman status in the Jones Act suit he wishes to pursue in district court. The second is whether this record would permit a reasonable jury to conclude the employee is a Jones Act seaman. We resolve the second question in the employer’s favor and, as it is disposi-tive of the case, we do not reach the first.
On the question of seaman status, there is an issue of significance beyond the facts of this case. Our statement in an earlier case that a worker may establish seaman status based on the substantiality of his connection to “an identifiable group of . . . vessels” in navigation, see Chandris, Inc. v. Latsis, 515 U. S. 347, 368 (1995), has been subject to differing interpretations, and we seek to provide clarification.
I
Respondent John Papai was painting the housing structure of the tug Pt. Barrow when a ladder he was on moved, he alleges, causing him to fall and injure his knee. App. 50. Petitioner Harbor Tug & Barge Co., the tug’s operator, had hired Papai to do the painting work. Id., at 44. A prime coat of paint had been applied and it was Papai’s task to apply the finish coat. Id., at 45. There was no vessel captain on board and Papai reported to the port captain, who had a dockside office. Id., at 36-37. The employment was expected to begin and end the same day, id., at 35, 48, and Papai was not going to sail with the vessel after he finished painting, id., at 51. Papai had been employed by Harbor Tug on 12 previous occasions in the 2½ months before his injury.
Papai received his jobs with Harbor Tug through the Inland Boatman’s Union (IBU) hiring hall. He had been getting jobs with various vessels through the hiring hall for about 214 years. All the jobs were short term. The longest lasted about 40 days and most were for 3 days or under. Id., at 29, 34. In a deposition, Papai described the work as coming under three headings: maintenance, longshoring, and deckhand. Id., at 30-32. Papai said maintenance work involved chipping rust and painting aboard docked vessels. Id., at 30, 34-35. Longshoring work required helping to discharge vessels. Id., at 31. Deckhand work involved manning the lines on- and off-board vessels while they docked or undocked. Id., at 30. As for the assignments he obtained through the hiring hall over 214 years, most of them, says Papai, involved deckhand work. Id., at 34.
After his alleged injury aboard the Pt. Barrow, Papai sued Harbor Tug in the United States District Court for the Northern District of California, claiming negligence under the Jones Act and unseaworthiness under general maritime law, in addition to other causes of action. His wife joined as a plaintiff, claiming loss of consortium. Harbor Tug sought summary judgment on Papai’s Jones Act and unseaworthiness claims, contending he was not a seaman and so could not prevail on either claim. The District Court granted Harbor Tug’s motion and later denied Papai’s motion for reconsideration. After our decisions in McDermott Int’l, Inc. v. Wilander, 498 U. S. 337 (1991), and Southwest Marine, Inc. v. Gizoni, 502 U. S. 81 (1991), the District Court granted a motion by Harbor Tug “to confirm” the earlier summary adjudication of Papai’s nonseaman status. The District Court reasoned, under a test since superseded, see Chandris, supra, that Papai was not a seaman within the meaning of the Jones Act or the general maritime law, because “he did not have a ‘more or less permanent connection’ with the vessel on which he was injured nor did he perform substantial work on the vessel sufficient for seaman status.” App. to Pet. for Cert. 27a.
The Court of Appeals for the Ninth Circuit reversed and remanded for a trial of Papai’s seaman status and his corresponding Jones Act and unseaworthiness claims. Based on our decision in Chandris, the court described the relevant inquiry as “not whether plaintiff had a permanent connection with the vessel [but] whether plaintiff’s relationship with a vessel (or a group of vessels) was substantial in terms of duration and nature, which requires consideration of the total circumstances of his employment.” 67 F. 3d 203, 206 (1995). A majority of the panel believed it would be reasonable for a jury to conclude the employee satisfied that test. In the majority’s view, “[i]f the type of work a maritime worker customarily performs would entitle him to seaman status if performed for a single employer, the worker should not be deprived of that status simply because the industry operates under a daily assignment rather than a permanent employment system.” Ibid. The majority also said the “circumstance” that Papai had worked for Harbor Tug on 12 occasions during the 2Vi months before his injury “may in itself provide a sufficient connection” to Harbor Tug’s vessels to establish seaman status. Ibid.
Judge Poole dissented from the majority’s holding that there was a triable issue as to Papai’s seaman status. He recognized that Chandris held out the possibility of being a seaman without a substantial connection to a particular vessel in navigation, provided one nevertheless had the required connection to “‘an identifiable group of such vessels.’” 67 F. 3d, at 209 (quoting 515 U. S., at 368). Judge Poole said, however, it would be a mistake to view Chandris as holding that, for seaman-status purposes, a “group may be identified simply as those vessels on which a sailor sails, not just those of a particular employer or controlling entity.... Th[e majority’s holding] renders the ‘identifiable group’ or ‘fleet’ requirement a nullity.” 67 F. 3d, at 209 (citation omitted). Judge Poole also noted that the majority’s position conflicted with that of the Fifth Circuit (en banc) and of a Third Circuit panel. Ibid. (citing Barrett v. Chevron, U. S. A., Inc., 781 F. 2d 1067 (CA5 1986) (en banc); Reeves v. Mobile Dredging & Pumping Co., 26 F. 3d 1247 (CA3 1994)); see also Johnson v. Continental Grain Co., 58 F. 3d 1232 (CA8 1995); but see Fisher v. Nichols, 81 F. 3d 319, 323 (CA2 1996) (rejecting common ownership or control requirement).
We granted certiorari, 518 U. S. 1055 (1996), and now reverse.
II
The LHWCA, a maritime workers’ compensation scheme, excludes from its coverage “a master or member of a crew of any vessel,” 33 U. S. C. § 902(3)(G). These masters and crewmembers are the seamen entitled to sue for damages under the Jones Act. Chandris, 515 U. S., at 355-358. In other words, the LHWCA and the Jones Act are “mutually exclusive.” Id., at 355-356.
Our recent cases explain the proper inquiry to determine seaman status. We need not restate that doctrinal development, see id., at 355-368; Wilander, supra, at 341-354, to resolve Papai’s claim. It suffices to cite Chandris, which held, in pertinent part:
“[T]he essential requirements for seaman status are twofold. First, ... an employee’s duties must contribute] to the function of the vessel or to the accomplishment of its mission....
“Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” 515 U. S., at 368 (citations and internal quotation marks omitted).
The seaman inquiry is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury. Nevertheless, “summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion.” Wilander, supra, at 356; see also Chandris, 515 U. S., at 368-369.
Harbor Tug does not dispute that it would be reasonable for a jury to conclude Papai’s duties aboard the Pt. Barrow (or any other vessel he worked on through the IBU hiring hall) contributed to the function of the vessel or the accomplishment of its mission, satisfying Chandris’ first standard. Nor does Harbor Tug dispute that a reasonable jury could conclude that the Pt. Barrow or other vessels Papai worked on were in navigation. The result, as will often be the case, is that seaman status turns on the part of Chandris’ second standard which requires the employee to show “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Id., at 368. We explained the rule as follows:
“The fundamental purpose of th[e] substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection with a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.” Ibid.
For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee’s connection to the vessel must concentrate on whether the employee’s duties take him to sea. This will give substance to the inquiry both as to the duration and nature of the employee’s connection to the vessel and be helpful in distinguishing land-based from sea-based employees.
Papai argues, and the Court of Appeals majority held, that Papai meets Chandris’ second test based on his employments with the various vessels he worked on through the IBU hiring hall in the 214 years before his injury, vessels owned, it appears, by three different employers not linked by any common ownership or control, App. 38. He also did longshoring work through the hiring hall, id., at 31, and it appears this was for still other employers, id., at 38. As noted above, Papai testified at his deposition that the majority of his work during this period was deckhand work. According to Papai, this satisfies Chandris because the group of vessels Papai worked on through the IBU hiring hall constitutes “an identifiable group of . . . vessels” to which he has a “substantial connection.” 515 U. S., at 368.
The Court of Appeals for the Fifth Circuit was the first to hold that a worker could qualify as a seaman based on his connection to a group of vessels rather than a particular one. In Braniff v. Jackson Ave.-Gretna Ferry, Inc., 280 F. 2d 523 (1960), the court held the employer was not entitled to summary judgment on the seaman-status question where an employee’s job was to perform maintenance work on the employer’s fleet of ferry boats, often while the boats were running: “The usual thing, of course, is for a person to have a Jones Act seaman status in relation to a particular vessel. But there is nothing about this ... concept to limit it mechanically to a single ship.” Id., at 528. There is “no insurmountable difficulty,” the court explained, in finding seaman status based on the employee’s relationship to “several specific vessels” — “an identifiable fleet” — as opposed to a single one. Ibid.
We, in turn, adverted to the group of vessels concept in Chandris. We described it as a rule “allowing] seaman status for those workers who had the requisite connection with an ‘identifiable fleet’ of vessels, a finite group of vessels under common ownership or control.” 515 U. S., at 366. The majority in the Court of Appeals did not discuss our description of the group of vessels concept as requiring common ownership or control, nor did it discuss other Courts of Appeals cases applying the concept, see, e. g., Reeves v. Mobile Dredging & Pumping Co., 26 F. 3d, at 1258. The court pointed to this statement from Chandris: “[W]e see no reason to limit the seaman status inquiry . . . exclusively to an examination of the overall course of a worker’s service with a particular employer.” 515 U. S., at 371-372. It interpreted this to mean “it may be necessary to examine the work performed by the employee while employed by different employers during the relevant time period.” 67 F. 3d, at 206. The court did not define what it meant by “the relevant time period.” In any event, the context of our statement in Chandris makes clear our meaning, which is that the employee’s prior work history with a particular employer may not affect the seaman inquiry if the employee was injured on a new assignment with the same employer, an assignment with different “essential duties” from his previous ones. 515 U. S., at 371. In Chandris, the words “particular employer” give emphasis to the point that the inquiry into the nature of the employee’s duties for seaman-status purposes may concentrate on a narrower, not broader, period than the employee’s entire course of employment with his current employer. There was no suggestion of a need to examine the nature of an employee’s duties with prior employers. See also id., at 367 (“Since Barrett [v. Chevron, U. S. A., Inc., 781 F. 2d 1067 (CA5 1986) (en banc)], the Fifth Circuit consistently has analyzed the problem [of determining seaman status] in terms of the percentage of work performed on vessels for the employer in question”). The Court of Appeals majority interpreted the words “particular employer” outside the limited discussion in which we used them and, as a result, gave the phrase a meaning opposite from what the context requires.
The Court of Appeals stressed that various of Papai’s employers had “join[ed] together to obtain a common labor pool on which they draw by means of a union hiring hall.” 67 F. 3d, at 206; see also id., at 206, n. 3 (suggesting that this case involves a “group of vessels [that] have collectively agreed to obtain employees” from a hiring hall). There is no evidence in the record that the contract Harbor Tug had with the IBU about employing deckhands (IBU Deckhands Agreement) was negotiated by a multiemployer bargaining group, and, even if it had been, that would not affect the result here. There was no showing that the group of vessels the court sought to identify were subject to unitary ownership or control in any aspect of their business or operation. So far as the record shows, each employer was free to hire, assign, and direct workers for whatever tasks and time period they each determined, limited, at most, by the IBU Deckhands Agreement. In deciding whether there is an identifiable group of vessels of relevance for a Jones Act seaman-status determination, the question is whether the vessels are subject to common ownership or control. The requisite link is not established by the mere use of the same hiring hall which draws from the same pool of employees.
Considering prior employments with independent employers in making the seaman-status inquiry would undermine “the interests of employers and maritime workers alike in being able to predict who will be covered by the Jones Act (and, perhaps more importantly for purposes of the employers’ workers’ compensation obligations, who will be covered by the LHWCA) before a particular work day begins.” Chandris, supra, at 363. There would be no principled basis for limiting which prior employments are considered for determining seaman status. The Court of Appeals spoke of a “relevant time period” but, as noted above, it did not define this term. Since the substantial connection standard is often, as here, the determinative element of the seaman inquiry, it must be given workable and practical confines. When the inquiry further turns on whether the employee has a substantial connection to an identifiable group of vessels, common ownership or control is essential for this purpose.
Papai contends his various employers through the hiring hall would have been able to predict his status as a seaman under the Jones Act based on the seagoing nature of some of the duties he could have been hired to perform consistent with his classification as a “qualified deckhand” under the IBU Deckhands Agreement. By the terms of the agreement, Papai was qualified as a “satisfactory helmsman and lookout,” for example, and he could have been hired to serve a vessel while it was underway, in which case his duties would have included “conduct[ing] a check of the engine room status a minimum of two (2) times each watch ... for vessel safety reasons.” App. 77. In South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251 (1940), we rejected a claim to seaman status grounded on the employee’s job title, which also happened to be “deckhand.” “The question,” we said, “concerns his actual duties.” Id., at 260. See also Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 268, n. 30 (1977) (reasoning that employee’s membership in longshoremen’s union was, in itself, irrelevant to whether employee was covered by the LHWCA, as fact of union membership was unrelated to the purposes of the LHWCA’s coverage provisions). The question is what connection the employee had in actual fact to vessel operations, not what a union agreement says. Papai was qualified under the IBU Deckhands Agreement to perform nonseagoing work in addition to the seagoing duties described above. His actual duty on the Pt. Barrow throughout the employment in question did not include any seagoing activity; he was hired for one day to paint the vessel at dockside and he was not going to sail with the vessel after he finished painting it. App. 44, 48, 51. This is not a case where the employee was hired to perform seagoing work during the employment in question, however brief, and we need not consider here the consequences of such an employment. The IBU Deckhands Agreement gives no reason to assume that any particular percentage of Papai’s work would be of a seagoing nature, subjecting him to the perils of the sea. In these circumstances, the union agreement does not advance the accuracy of the seaman-status inquiry.
Papai argues he qualifies as a seaman if we consider his 12 prior employments with Harbor Tug over the 2Vz months before his injury. Papai testified at his deposition that he worked aboard the Pt. Barrow on three or four occasions before the day he was injured, the most recent of which was more than a week earlier. Id., at 35, 44. Each of these engagements involved only maintenance work while the tug was docked. Id., at 34-35. The nature of Papai’s connection to the Pt. Barrow was no more substantial for seaman-status purposes by virtue of these engagements than the one during which he was injured. Papai does not identify with specificity what he did for Harbor Tug the other eight or nine times he worked for the company in the 2Vz months before his injury. The closest he comes is his deposition testimony that 70 percent of his work over the 2V4 years before his injury was deckhand work. Id., at 34. Coupled with the fact that none of Papai’s work aboard the Pt. Barrow was of a seagoing nature, it would not be reasonable to infer from Papai’s testimony that his recent engagements with Harbor Tug involved work of a seagoing nature. In any event, these discrete engagements were separate from the one in question, which was the sort of “transitory or sporadic” connection to a vessel or group of vessels that, as we explained in Chandris, does not qualify one for seaman status. 515 U. S., at 368.
Jones Act coverage is confined to seamen, those workers who face regular exposure to the perils of the sea. An important part of the test for determining who is a seaman is whether the injured worker seeking coverage has a substantial connection to a vessel or a fleet of vessels, and the latter concept requires a requisite degree of common ownership or control. The substantial connection test is important in distinguishing between sea- and land-based employment, for land-based employment is inconsistent with Jones Act coverage. This was the holding in Chandris, and we adhere to it here. The only connection a reasonable jury could identify among the vessels Papai worked aboard is that each hired some of its employees from the same union hiring hall from which Papai was hired. That is not sufficient to establish seaman status under the group of vessels concept. Papai had the burden at summary judgment to “set forth specific facts showing that there is a genuine issue for trial.” Fed. Rule Civ. Proc. 56(e). He failed to meet it. The Court of Appeals erred in holding otherwise. Its judgment is reversed.
It is so ordered.
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
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songer_counsel1
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H
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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
UNITED STATES of America, Appellee, v. Elmer MIMS, Appellant. UNITED STATES of America, Appellee, v. Franklin Michael EINFELDT, Appellant. UNITED STATES of America, Appellee, v. LE MINH THANH, Appellant. UNITED STATES of America, Appellee, v. Roger W. TECHAU, Appellant. UNITED STATES of America, Appellee, v. Burdell DOOLIN, Appellant.
Nos. 85-2214, 85-2215, 85-2216, 85-2222 and 85-2240.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 13, 1986.
Decided March 3, 1987.
Joseph C. Johnston, Iowa City, Iowa, for appellant Techau.
Mark H. Retting, Cedar Rapids, Iowa, for appellant Le.
Larry Fugate, Iowa City, Iowa, for appellant Einfeldt.
Robert L. Teig, U.S. Atty., Cedar Rapids, Iowa, for appellee.
Before HEANEY and ROSS, Circuit Judges, and DUMBAULD, Senior District Judge.
The Honorable Edward Dumbauld, United States Senior District Judge for the Western •District of Pennsylvania, sitting by designation.
ROSS, Circuit Judge.
Five defendants appeal their convictions of various offenses stemming from charges related to a heroin trafficking ring in Cedar Rapids, Iowa. The defendants were found guilty on the following counts: Techau, Le, Mims and Doolin — one count of conspiracy to import and distribute heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A); Techau, Doolin and Mims — one count of possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2; Techau— one count of possession of heroin in violation of 21 U.S.C. § 844(a) and 18 U.S.C. § 2; Le and Mims — one count of knowingly and intentionally using a communication facility to facilitate a conspiracy to import and distribute heroin in violation of 21 U.S.C. §§ 843(b) and (c) and 18 U.S.C. § 2; and Einfeldt — four counts of knowingly and intentionally using a communication facility to facilitate the attempt to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 843(b) and (c) and 18 U.S.C. § 2.
The defendants raise several issues on appeal, the primary issues being: whether the district court erred in denying Techau’s motion to suppress evidence on the ground that the warrant for his arrest was without probable cause, and whether the district court erred in denying him a hearing on his motion to suppress; whether there was sufficient evidence to convict Le and whether the district court erred in denying his motion for severance; and whether there was sufficient evidence to convict Einfeldt. We reverse in part with regard to Einfeldt, and we affirm as to all others.
Background
In June 1984, the Organized Crime Drug Task Force began an investigation seeking the source of large amounts of heroin which had been entering eastern Iowa. Information gathered from court-authorized wiretaps of Thomas Sage, the alleged ringleader of the conspiracy, and defendants Le and Mims led to the indictments and arrests of Sage, Le, Techau, Einfeldt, Mims and Doolin, among others. Other facts as are relevant to the individual defendants’ claims will be set forth as necessary.
I. Roger Techau
A. Arrest Warrant. In the course of the Task Force investigation, an arrest warrant was issued for defendant Techau. For reversal, Techau contends that the warrant for his arrest was issued without probable cause and that the district court erred in failing to suppress all the evidence derived therefrom, including the evidence derived from a subsequent search warrant.
The affidavit on which the arrest warrant was based was provided by F.B.I. Special Agent James Farrell Whalen and stated that in January 1985 Karl Harper Heppe was arrested in California and was interviewed concerning his involvement with heroin trafficking in Cedar Rapids, Iowa; Heppe identified his principal source of heroin as Thomas Sage, from whom Heppe had purchased heroin from May 1983 through August 1984; on March 9, 1985 Heppe went to Sage’s residence wearing a body recorder provided by the F.B.I./D.E.A. and in the ensuing conversation Sage named several people, including Roger Techau, as being involved with Sage in the distribution of heroin; in the March 9 conversation, Sage also discussed his heroin contacts in Nepal; on March 26, 1985 Heppe again went to Sage’s house wearing a body recorder, at which time Sage discussed his past heroin transactions involving several people, including Roger Techau; and on May 1, 1985 another task force officer, Sergeant Harry Beltzer, had a conversation with an individual named James David Gores in Red Wing, Minnesota, in which Gores stated that Sage and Sage’s wife were involved in drug trafficking between Nepal and the United States.
Techau contends that the affidavit was insufficient to establish probable cause. Specifically, Techau contends that there were no facts set forth which the agents obtained through independent investigation of Techau, and that Sage’s statements were unreliable as they were not against his penal interest.
The task of a magistrate in determining whether probable cause exists for issuing a warrant “is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability” that the defendant has committed a crime. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). In reviewing the magistrate’s decision, this court simply must “ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” Id. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). Great deference is afforded the magistrate’s determination of probable cause. United States v. Arenal, 768 F.2d 263, 266 (8th Cir.1985).
We determine that the magistrate had a substantial basis for finding probable cause. The affidavit stated that on more than one occasion, Sage, a known heroin trafficker, named Techau as an individual with whom Sage had engaged in drug trafficking. The reliability of Sage’s statements is established by the fact that the basis for Sage’s knowledge was his own first-hand involvement in the drug trafficking ring. Further reliability is provided by Sage’s statements being against his penal interest. See United States v. Hunley, 567 F.2d 822, 825 (8th Cir.1977); United States v. Gavic, 520 F.2d 1346, 1351 (8th Cir.1975). We reject Techau's contention that a statement must be made to a police officer to be against one’s penal interest. See Gavic, supra, 520 F.2d at 1350-51 (statement made to informant held to be against penal interest).
Also, Sage’s statements regarding his involvement with others in drug trafficking are corroborated on the face of the affidavit by Heppe’s statements that he had previously had several heroin transactions with Sage, and James Gores’ statements that Sage was involved in heroin trafficking between the United States and Nepal. Thus, although the agents had not obtained corroboration of details regarding Techau in particular, they had corroborated Sage’s statements involving himself in drug trafficking. “The theory connecting reliability and corroboration is that an informant [in this case Sage] who is correct about some things more likely will be correct about critical unverified facts * * United States v. Reivich, 793 F.2d 957, 960 (8th Cir.1986) (citing Spinelli v. United States, 393 U.S. 410, 427, 89 S.Ct. 584, 594, 21 L.Ed.2d 637 (1969) (White, J. concurring)). Therefore, we determine that the facts set forth in the affidavit provided the magistrate with a substantial basis for determining that probable cause existed to arrest Techau.
However, even if the affidavit was not sufficient to establish probable cause, we find that the evidence obtained from the search incident to Techau’s arrest was still admissible because the officers executing the warrant were objectively reasonable in relying on it. See United States v. Leon, 468 U.S. 897, 919-23, 104 S.Ct. 3405, 3419-21, 82 L.Ed.2d 677 (1984); United States v. Sager, 743 F.2d 1261, 1262 (8th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985). In Leon, the Supreme Court held that the exclusionary rule does not bar the admission of evidence obtained by an officer acting with objective reasonable reliance on a warrant issued by a neutral and detached magistrate, even if the warrant is later held to be invalid. 468 U.S. at 919-23, 104 S.Ct. at 3419-21. The Leon Court went on to list certain exceptional situations where this rule would not apply: 1) where the issuing magistrate was misled by information in the affidavit that the affiant knew or should have known was false; 2) where the magistrate wholly abandoned his judicial role and served merely as a rubber stamp for police; 3) where the affidavit so lacked probable cause as to render official belief in its validity unreasonable; and 4) where the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Id. at 923, 104 S.Ct. at. 3421.
We find no such exceptional circumstances to exist in this case. Techau does not allege that Agent Whalen made deliberate falsehoods or acted with reckless disregard for the truth in preparing the affidavit. See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). Nor is there any evidence that the magistrate abandoned his judicial role in issuing the warrant. It cannot be argued that the affidavit so lacked probable cause so as to render official belief in its validity unreasonable, as both the magistrate and district court found that the affidavit established probable cause. See United States v. Strand, 761 F.2d 449, 458 (8th Cir.1985) (Bowman, J., dissenting in part). Finally, there is nothing to indicate that the warrant was so facially deficient that the executing officers were unreasonable in relying on it. Therefore, we determine that the district court properly admitted, the evidence seized incident to Techau’s arrest.
B. Evidence Seized Pursuant to Search Warrant. Following Techau’s arrest, a search warrant was issued for his trailer. The affidavit in support of the warrant listed items seized from Techau’s trailer at the time of his arrest, and the affiant F.B.I. agent stated he had cause to believe there was further contraband in the trailer. The items seized incident to Techau’s arrest were: a mobile police scanner; two papers containing police radio frequencies which appeared to have been updated to reflect current frequencies; rolling papers; and an unopened black can six inches by two inches which the affiant believed to contain narcotics. The affiant further stated that while handcuffing Techau, he had noticed a puncture mark on Techau’s wrist which appeared to be a drug injection mark.
Techau asserts that the affidavit setting forth the above items, in addition to the affidavit in support of the previous arrest warrant, were together insufficient to lead a reasonably prudent person to believe that there was a fair probability that evidence of á crime or contraband would be found in his trailer. Techau contends that the items seized incident to his arrest were innocent appearing and consistent with non-criminal behavior.
Issuance of a search warrant is proper if, based on a common-sense consideration of all the surrounding circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332; United States v. Rich, 795 F.2d 680, 682 (8th Cir.1986). Looking at all the circumstances set forth in the affidavits in this case, we conclude that there was a substantial basis for the magistrate to believe that more evidence of drug transactions would be found in Techau’s trailer.
C. Hearing on Motion to Suppress. Techau further argues that the district court erred in denying him a hearing on his motion to suppress all evidence seized pursuant to his arrest and the subsequent search of his trailer. In his motion to suppress, Techau set forth three reasons indicating why an evidentiary hearing was necessary: 1) he had not been provided with any information in discovery from which he could determine whether any telephonic conversations intercepted by the government which implicated him were in compliance with 18 U.S.C. §§ 2510 et seq.; 2) in the affidavit in support of the arrest warrant for Techau, Agent Whalen had misrepresented the content of the recorded conversations between Sage and Heppe regarding Techau’s involvement in drug transactions; and 3) there was no probable cause for either the arrest warrant or search warrant.
When a motion to suppress is filed, “ ‘[ejvidentiary hearings need not be set as a matter of course, but if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, an evidentiary hearing is required.’ ” United States v. Losing, 539 F.2d 1174, 1177 (8th Cir.1976) (quoting United States v. Ledesma, 499 F.2d 36, 39 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974)). A hearing is also unnecessary if it can be determined that suppression is improper as a matter of law. Id. at 1178.
In asserting the necessity of an evidentiary hearing, Techau first contends that he had no information whether any telephonic interceptions were legally accomplished. In his brief, Techau admits the allegation is vague. Techau fails to assert what may have been improper about the interceptions, or in fact, even what interceptions he is concerned with. Therefore, this allegation is insufficient to warrant an evidentiary hearing. Cf. Losing, supra, 539 F.2d at 1178 n. 5, 1179-80 (finding an evidentiary hearing necessary where defendants specifically alleged that wiretapping agents failed to both minimize interceptions and record all monitored calls).
Second, Techau claims that Whalen misrepresented the content of the conversations between Heppe and Sage. In Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978), the Supreme Court stated:
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons.
Techau’s allegation that Whalen misrepresented the true nature of the recorded conversations does not rise to the level of “deliberate falsehood” or “reckless disregard for the truth” as required by Franks.
Finally, Techau alleges that there was not probable cause for either the arrest warrant or the search warrant. In his brief, Techau concedes that no evidentiary hearing for either warrant is necessary if the magistrate considered only evidence within the four corners of the affidavit in making a probable cause determination. However, he contends an evidentiary hearing was necessary to determine if the magistrate considered evidence outside of the affidavits. There is no indication that the magistrate considered any other evidence outside the affidavits, and Techau’s allegations are vague. Further, we have already considered the probable cause issues. Therefore, we determine that Techau’s argument is without merit.
II. Le Minh Thanh
A. Sufficiency of the Evidence. Le was convicted of one count of conspiracy to import and distribute heroin and one count of use of a telephone to facilitate the conspiracy. Le argues that the district court erred in failing to grant his motion for acquittal because there was insufficient evidence that he was a knowing, voluntary and willing member of the conspiracy with the requisite intent to commit the offenses for which he was convicted. Le’s primary contention is that he was duped by Sage.
It is established in this circuit that “[t]o convict a defendant of criminal conspiracy, the government is obligated to prove that ‘the individual entered an agreement with at least one other person, that the agreement had as its objective a violation of the law, and that one of those in agreement committed an act in furtherance of the objective.’" United States v. Michaels, 726 F.2d 1307, 1310-11 (8th Cir.) (quoting United States v. Evans, 697 F.2d 240, 244-45 (8th Cir.), cert. denied, 460 U.S. 1086, 103 S.Ct. 1779, 76 L.Ed.2d 350 (1983)), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 38 (1984). “[I]t is not necessary to prove that the defendant knew all of the conspirators or was aware of all the details, but it must be shown that the person ‘knowingly contributed ... efforts in furtherance of it.’ ” United States v. Jones, 545 F.2d 1112, 1115 (8th Cir.1976), (citation omitted), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977). Once a conspiracy is established, even slight evidence connecting the defendant to the conspiracy may be sufficient proof of his involvement. Michaels, supra, 726 F.2d at 1311 (citing United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974)).
In reviewing the sufficiency of the evidence underlying the jury verdict, this court must view the evidence in the light most favorable to the verdict, accepting as established all reasonable inferences which tend to support it. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir.1984).
In this case we determine that the record establishes that there was sufficient evidence from which the jury could have found beyond a reasonable doubt that Le was a knowing participant in the conspiracy.
The evidence presented at trial included testimony by Sage that he began storing heroin at Le’s house in October 1984. Although Le was not initially told what was in the package, he was told some three days later. After that, Sage testified that Le would make deliveries of heroin for him, knowing what was in the packages, and received a commission for such. Le also took heroin orders for Sage and collected money which he wired to foreign accounts.
Also admitted into evidence were tapes of phone conversations between Sage and Le. In one tape, a discussion took place concerning the amounts of money owed on Le’s account by Burdell Doolin and Pete Telenson (who had been named in the indictment as a co-defendant). In another tape, Le asked Sage “Does the man come yet.” Sage testified that Le was referring to a heroin courier.
There was testimony that Le was familiar with heroin from his experiences while living in Vietnam. Le’s American sponsor testified that she told him not to get involved in drugs.
Mary Ann Caldwell, who was also named as a co-defendant in the indictment, testified that Le accompanied Sage in December 1984 when Sage delivered heroin to her. Further, Le was present while Caldwell weighed the heroin on that day. In January and February 1985, Le went to Caldwell’s house several times to collect money for Sage.
Pete Telenson testified that in December 1984 Sage and Le delivered heroin to Telenson’s house, and that Le came back several times to collect money.
Viewing the evidence in the light most favorable to the government, we conclude that there was sufficient evidence for the jury to find that Le was a knowing member of the conspiracy to import and distribute heroin.
B. Severance. Le unsuccessfully filed a motion for severance with the trial court. Le argues that this motion was improperly denied because his defense, that he was an unwitting and unknowing participant in the transactions, was antagonistic to that of the other defendants. Le also asserts that because of the complexities of the case, the jury was unable to focus on the issues affecting him, and that he was “thus subjected to the spector of guilt by association.”
The general rule in this circuit is that “persons charged in a conspiracy should be tried together, especially where proof of the charges against the defendants is based upon the same evidence and acts.” United States v. Arenal, 768 F.2d 263, 267 (8th Cir.1985). A denial of severance will not be reversed unless clear prejudice and an abuse of discretion are shown. United States v. Lee, 743 F.2d 1240, 1248 (8th Cir.1984). A defendant must show more than that his strategy was antagonistic to that of the other co-defendants to show an abuse of discretion. United States v. Miller, 725 F.2d 462, 468 (8th Cir.1984). He must show that the proof was such that the jury “ ‘could not be expected to compartmentalize the evidence as it relates to separate defendants.’ ” Id. (citation omitted).
We conclude that Le was unable to show an abuse of discretion in the district court’s refusal to grant Le’s motion for severance. Much of the proof relevant to the charges against one defendant was interwoven with proof relevant to another defendant. See United States v. Garcia, 785 F.2d 214, 220 (8th Cir.), cert. denied, — U.S. —, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986). However, the evidence in this case was not difficult to compartmentalize, and there is no indication that the jury was confused. Le further offers no evidence of clear prejudice, such as, for example, asserting that a co-defendant would have offered exculpatory evidence on his behalf if there were separate trials. See United States v. Arenal, supra, 768 F.2d at 268. Therefore, we conclude the district court did not err in refusing to grant Le’s motion for severance.
III. Franklin Michael Einfeldt.
Franklin Michael Einfeldt appeals his conviction of four counts of knowingly and intentionally using a communication facility (a telephone) to facilitate an attempt to possess heroin with intent to distribute. Each count arose from a separate telephone conversation with Thomas Sage. On appeal, Einfeldt challenges the sufficiency of the evidence supporting each count.
Count 6 stemmed from a phone conversation between Einfeldt and Sage on the morning of March 23, 1985. Einfeldt told Sage that he would like to meet with Sage to discuss Einfeldt’s paying of a debt owed to Sage by Burdell Doolin. The two set up a meeting place and the conversation ended.
Count 7 stemmed from a phone conversation the afternoon of March 23, 1985 in which Einfeldt told Sage that he would pay off Doolin’s debt if Sage would work with him. Sage told him that he would let Einfeldt know when he was looking for a buyer. Einfeldt said he could come up with three to five hundred dollars, but that he could not afford to deal on a quantity basis. The phone call ended with no agreement reached.
The third count on which Einfeldt was convicted, count 9, arose from two phone conversations Einfeldt had with Sage on March 26, 1985. In the first call, Einfeldt asked for the price of “a man” and Sage said “10 down.” Einfeldt said that he would see what he could come up with and then call Sage back. Later that day, Einfeldt called Sage and offered him six or seven hundred dollars, which Sage declined.
In the conversation serving as the basis for the fourth count, count 11, Einfeldt called and told Sage he had $1,500. Sage indicated that was not enough, and ended the conversation saying that he was not interested in dealing with Einfeldt.
The elements of proof of a § 843(b) telephone count are: i). knowing or intentional 2) use of a telephone 3) to facilitate the commission of a drug offense. United States v. Ward, 696 F.2d 1315, 1319 (11th Cir.), cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983); United States v. Rey, 641 F.2d 222, 224 n. 6 (5th Cir.), cert. denied, 454 U.S. 861, 102 S.Ct. 318, 70 L.Ed.2d 160 (1981); United States v. Russo, 796 F.2d 1443, 1463-64 (11th Cir.1986). Proof of the underlying offense (in this case, attempt) must be shown by a preponderance of the evidence. Rey, supra, 641 F.2d at 224 n. 6; Russo, supra, 796 F.2d 1463-64. See also United States v. Pierorazio, 578 F.2d 48, 51 (3rd Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 652 (1978). As noted previously, when considering the sufficiency of the evidence underlying a jury verdict, this court must view the evidence in the light most favorable to the verdict. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984).
Einfeldt argues that his acts were insufficient to constitute an attempt. The necessary elements of an attempt are “(1) an intent to engage in criminal conduct, and (2) conduct constituting a ‘substantial step’ towards the commission of the substantive offense which strongly corroborates the actor’s criminal intent.” United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982) (citations omitted).
The parties do not dispute Einfeldt’s intent; the only disputed issue is whether Einfeldt’s conduct constituted a “substantial step.”
“A substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime____ In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute.”
United States v. Mazzella, 768 F.2d 235, 240 (8th Cir.) (quoting United States v. Manley, 632 F.2d 978, 987-88 (2d Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981)), cert. denied, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Whether a defendant’s conduct constitutes a substantial step depends on the particular circumstances of the case. Joyce, supra, 693 F.2d at 841; Mazzella, supra, 768 F.2d at 240.
Einfeldt bases his argument that his conduct did not constitute a substantial step primarily on Joyce, supra. In that case, Joyce was contacted several times by a government informant who told Joyce that cocaine was available in St. Louis. After the third call, during which a tentative price was discussed, Joyce flew from Oklahoma City to St. Louis to meet with the informant and an undercover police officer, who was posing as a cocaine seller. The parties agreed on a price, but Joyce refused to tender the money until the police officer opened the package which allegedly contained cocaine. The police officer refused to open the package, and finally Joyce left without making the purchase. He was arrested and in his possession was the approximate amount of money which he had told the informant he would pay for the cocaine. Joyce was convicted of one count of attempting to possess cocaine with intent to distribute.
On appeal, this court reversed, finding that Joyce’s acts had not constituted a substantial step. In reaching this conclusion, however, we emphasized that it was Joyce who had ended the negotiations:
Whatever intention Joyce had to procure cocaine was abandoned prior to the commission of a necessary and substantial step to effectuate the purchase of cocaine. The attempt, of course, need not be successful, but generally the abortion of the attempt occurs because of events beyond the control of the attemptor. As the court recognized in [United States v. Monholland, 607 F.2d 1311, 1319 (10th Cir.1979)], “the [attemptor’s] act must have passed the preparation stage so that if it is not interrupted extraneously, it will result in a crime." Here it is undisputed that Joyce, despite having both the opportunity and ability to purchase the cocaine at the agreed upon price, unambiguously refused either to produce his money or to purchase the cocaine. This effectively negated the government’s effort to consummate the sale.
693 F.2d at 841-42 (citations omitted).
Unlike Joyce, in the present case it was Sage, rather than Einfeldt, who ended the negotiations. It is clear from at least the last three phone conversations that Einfeldt had done all he could to obtain heroin short of getting Sage to agree to sell it to him. In each of these calls, Einfeldt contacted a known source of heroin and tried to negotiate a deal. Einfeldt repeatedly offered Sage definite sums of money in exchange for the heroin. He also indicated that he had secured increasingly larger sums of money to enable him to deal with Sage. It was only because Sage refused to deal with Einfeldt that Einfeldt was not successful in his endeavors. On that basis, this case is distinguishable from Joyce. It is our opinion that in the second through fourth phone calls Einfeldt’s conduct constituted a substantial step. Einfeldt’s acts passed the stage of mere preparation such that, but for Sage’s refusal to deal, Einfeldt’s acts would have resulted in a crime. See also United States v. May, 625 F.2d 186, 194 (8th Cir.1980) (sustaining conviction for attempt to conceal government documents where defendant asked another person to have the documents concealed, but the officer in charge of the documents refused to. cooperate).
Einfeldt also relies on United States v. Monholland, 607 F.2d 1311 (10th Cir.1979) for support of his contention that his conduct was merely preparatory, rather than a substantial step. In Monholland, the defendants had been charged with attempt to receive in interstate commerce an explosive with knowledge that the explosive would be used to kill a state district judge. The Tenth Circuit stated that the only evidence relied on in support of the charge was a conversation between an undercover government agent and one of the two defendants, in which the defendant asked the agent what a box of caps and dynamiting cord cost. At the time, the defendant was viewing a stick of simulated dynamite which the agent had. A similar conversation was also had between the agent and the second defendant. The agent told the second defendant that he did not sell the dynamite, rather he did all the dynamiting work himself. Id. at 1317.
The court found that this conversation was simply a preliminary discussion which did not constitute an attempt, stating that this “mere abstract talk” was “a far cry” from the attempt to transport or receive in commerce an explosive with knowledge that it would be used to kill or destroy. Id. at 1317-18. The court acknowledged that “ ‘[a] substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.’ ” Id. at 1320 (quoting United States v. Mandujano, 499 F.2d 370, 376
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:
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songer_respond1_1_2
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
Gary T. BROOKS, Esq., As Administrator of the Estates of Charles Rosploch, Sr. and Theresa Rosploch, Plaintiff-Appellant, v. BRATTLEBORO MEMORIAL HOSPITAL, Defendant, Robert D. Orr, M.D. and Houston F. Stevens, M.D., Defendants-Appellees.
No. 917, Docket 91-7816.
United States Court of Appeals, Second Circuit.
Argued Jan. 29, 1992.
Decided March 10, 1992.
Bruce W. Felmly, Manchester, N.H. (Peter D. Anderson, McLane, Graf, Raulerson & Middleton, P.A., of counsel), for plaintiff-appellant.
Allan R. Keyes, Rutland, Vt. (Martha M. Smyrski, Ryan Smith & Carbine, Ltd., of counsel), for defendant-appellee Orr.
John B. Webber, Rutland, Vt. (Hull, Webber, Reis & Canney, of counsel), for defendant-appellee Stevens.
Before ALTIMARI, WALKER, and McLAUGHLIN, Circuit Judges.
ALTIMARI, Circuit Judge:
Plaintiff-appellant Gary T. Brooks, Esq., as administrator of the estates of Charles Rosploch, Sr. and Theresa Rosploch (“plaintiff-appellant” or “appellant”), commenced the underlying diversity action in the United States District Court for the District of Vermont (Franklin S. Billings, Jr., Chief Judge), against defendant Brattleboro Memorial Hospital (“BMH”) and defendants-appellees Dr. Robert D. Orr and Dr. Houston F. Stevens. The complaint alleged that Dr. Orr and Dr. Stevens negligently failed promptly to diagnose and treat Mrs. Rosploch for a dangerous bacterial infection and thereby caused her to incur medical expenses and pain and suffering prior to her death. Plaintiff-appellant also sought damages for loss of consortium to Mr. Rosploch and pecuniary loss to Mrs. Rosploch’s next-of-kin as a result of her wrongful death.
After a ten-day trial before Judge Billings and a jury, the jury found by special interrogatories that, among other things, Dr. Orr and Dr Stevens were negligent and that their negligence proximately caused Mrs. Rosploch to incur medical expenses and pain and suffering, and caused pecuniary loss to her next-of-kin. The jury awarded damages for all of Mrs. Ros-ploch’s medical expenses, but awarded nothing for her uncontested pain and suffering. The jury also awarded nothing for pecuniary loss or loss of consortium. The jury found that BMH was not liable.
Both plaintiff-appellant and defendants-appellees filed post-trial motions with the district court. Plaintiff-appellant moved pursuant to Fed.R.Civ.P. 59(a) for a new trial on damages or, alternatively, on all issues. Plaintiff-appellant contended, among other things, that insofar as the verdict awarded damages for all of Mrs. Rosploch’s medical expenses and nothing for uncontested pain and suffering, the verdict was irreconcilably inconsistent and was inadequate as a matter of law. Defendants-appellees moved pursuant to Fed. R.Evid. 59(e) to amend the judgment by reducing the amount of medical expenses awarded to conform to a stipulation entered into between the parties. In a post-trial opinion and order, the district court denied plaintiff-appellant’s motion in all respects but granted defendants-appellees’ motions.
On appeal, plaintiff-appellant renews the claims set forth in his post-trial motion and also contends that the district court erred in granting defendants-appellees’ motion to amend the judgment without affording him the opportunity to accept a remittitur or, in the alternative, a new trial.
For the reasons set forth below, we reverse the district court’s order denying plaintiff-appellant’s motion for a new trial, vacate the amended judgment, and remand for a new trial on all issues.
BACKGROUND
On March 8, 1987, Theresa Rosploch, aged seventy, was admitted to BMH in Brattleboro, Vermont, by her personal physician, Dr. Robert D. Orr. Based on her symptoms at the time of admission, Dr. Orr suspected that Mrs. Rosploch was in danger of having a stroke. For the next ten days, Mrs. Rosploch remained in BMH receiving treatment and undergoing a series of diagnostic tests ordered by Dr. Orr, including certain radiological tests, commonly known as CAT scans, that were performed and interpreted by Dr. Houston F. Stevens. Dr. Orr did not, however, order that blood cultures be taken from Mrs. Rosploch to check for the presence of a blood infection.
Although Mrs. Rosploch was discharged from BMH on March 18, 1987, her condition did not improve. On March 23, 1987, she visited the emergency room of BMH and again was examined by Dr. Orr. Although he did not admit Mrs. Rosploch to BMH, Dr. Orr suggested to Mrs. Rosploch and her family that she consult a second physician at Mary Hitchcock Memorial Hospital (“Mary Hitchcock”) in Hanover, New Hampshire to determine the nature of her illness.
Rather than proceed to Mary Hitchcock to obtain a second opinion, the following day Mrs. Rosploch consulted her husband’s physician, Dr. Luther Emerson, who admitted her to BMH. As a result of blood cultures ordered by Dr. Emerson, it was determined on March 27, 1987, that Mrs. Rosploch was suffering from a dangerous bacterial blood infection known as listeria. Antibiotic treatment was commenced immediately. However, according to the testimony of Dr. Orr, the previously undiagnosed and untreated listeria had spread to her brain sometime between her first and second BMH admissions and eventually caused brain abscesses to form.
Because Mrs. Rosploch’s condition did not improve at BMH, she was transferred to Mary Hitchcock on April 3,1987. There, as a result of the listeria infection and complications caused by, among other things, internal bleeding and previously diagnosed non-alcohol related cirrhosis, Mrs. Rosploch died on May 3, 1987. It is undisputed that as a result of her deteriorating condition and of the necessary medical tests and procedures performed on her, Mrs. Rosploch suffered greatly during her stay at Mary Hitchcock.
Plaintiff-appellant thereafter initiated the underlying diversity action in the United States District Court for the District of Vermont against BMH and Dr. Orr and Dr. Stevens. The complaint alleged that the defendants were negligent in failing promptly to diagnose and treat Mrs. Ros-ploch’s listeria infection and that this negligence caused Mrs. Rosploch to incur medical expenses and pain and suffering. Additional damages were claimed for pecuniary loss to Mrs. Rosploch’s next-of-kin and for loss of consortium to Mr. Rosploch.
A ten-day jury trial was held before Judge Billings. At trial, plaintiff-appellant’s expert, Dr. Robert Cross, testified that measured by generally accepted medical standards and practices, see Vt.Stat. Ann. tit. 12 § 1908 (Supp.1990-91), Dr. Orr acted unreasonably in failing to diagnose and treat Mrs. Rosploch’s listeria during her first stay at BMH. Further testimony was presented that Dr. Stevens also acted unreasonably in failing properly to interpret the results of two CAT scans performed on Mrs. Rosploch. On the critical issue of causation, plaintiff-appellant’s expert, Dr. David Snydman, testified that the approximate two week delay in discovering and treating Mrs. Rosploch’s listeria primarily caused her pain and suffering and her death. Indeed, Dr. Snydman testified that with early intervention, Mrs. Rosploch “would have survived.”
The defendants did not dispute the evidence that Mrs. Rosploch experienced much pain and suffering or that the listeria infection was a contributing factor in her death. However, Dr. Orr and the defendants’ expert witness, Dr. David Cross, testified that although Mrs. Rosploch had developed listeria-induced brain abscesses, her death was due to other complicating factors, including cirrhosis and internal bleeding. Although Dr. Orr testified that he “wished he had” diagnosed the listeria sooner, the defendants essentially contended that because of Mrs. Rosploch’s other medical problems, and the high fatality rate of persons over seventy who contract listeria, she would have died even if the listeria infection had been promptly diagnosed and treated.
At the close of the evidence, the case was submitted to the jury along with special interrogatories to record findings on liability and damages. See Fed.R.Civ.P. 49(a). The interrogatories and responses were as follows:
1. Do you find that the defendant Robert D. Orr, M.D. was negligent and that his negligence was a proximate cause of Mrs. .Rosploch’s pain and suffering and medical expenses and of pecuniary, loss to her next-of-kin?
A. Yes.
2. Do you find that the defendant Houston F. Stevens, M.D. was negligent and that his negligence was a proximate cause of Mrs. Rosploch’s pain and suffering and medical expenses and of pecuniary loss to her next-of-kin?
A. Yes.
3. If, and only if, you answered “yes” to Question #2, do you find that the defendant Brattleboro Memorial Hospital is liable for Mrs. Rosploch’s pain and suffering and medical expenses and for pecuniary loss to her next-of-kin as the plaintiff has alleged in his complaint?
A. No.
4. If, and only if, you answered “yes” to Question # 1, do you further find that defendant Robert D. Orr, M.D. was negligent and that his negligence was a proximate cause of Charles Rosploch Sr.’s loss of consortium?
A. No.
5. If, and only if, you answered “yes” to Question # 2, do you further find that defendant Houston F. Stevens, M.D. was negligent and that his negligence was a proximate cause of Charles Rosploch Sr.’s loss of consortium?
A. No.
If you answered “yes” to any of the foregoing questions, please state the amount of damages that plaintiff is entitled to recover:
DAMAGES FOR MRS. ROSPLOCH’S PAIN AND SUFFERING AND MEDICAL EXPENSES: $69,856.29
DAMAGES FOR PECUNIARY LOSS: 0
DAMAGES FOR LOSS OF CONSORTIUM: 0
TOTAL DAMAGES: $69,856.29
As demonstrated by the interrogatory responses, the jury found that Dr. Orr and Dr. Stevens were negligent and that their negligence was the proximate cause of Mrs. Rosploch’s medical expenses, pain and suffering, and of the pecuniary loss to next-of-kin. The jury awarded damages, however, only for “pain and suffering and medical expenses” in the amount of $69,-856.29. This sum represented all of Mrs. Rosploch’s medical expenses incurred both at BMH and Mary Hitchcock. During trial, however, the parties stipulated that, at most, the defendants could be held liable for $39,856.29 in medical expenses. This stipulation was based on the belief that even in the absence of negligence, Mrs. Rosploch would have spent $30,000 on treatment for her listeria and other illnesses. The jury apparently was not informed of this stipulation.
Because the amount of the damage award strongly indicated that the jury awarded damages only for medical expenses, the district court submitted a supplemental special interrogatory to the jury to enable it to apportion the $69,856.29 between medical expenses and pain and suffering. The court denied plaintiff-appellant’s request to reinstruct the jury on the issue of damages for pain and suffering. The supplemental interrogatory and responses were as follows:
DAMAGES FOR MRS. ROSPLOCH’S PAIN AND SUFFERING: 0
DAMAGES FOR MRS. ROSPLOCH’S MEDICAL EXPENSES: $69,856.29
TOTAL DAMAGES: $69,856.29
Since the jury awarded the entire $69,-856.29 for medical expenses only, plaintiff-appellant moved pursuant to Fed.R.Civ.P. 59(a) for a new trial on damages or, alternatively, on all issues. Plaintiff-appellant claimed, among other things, that the damage award was inadequate as a matter of law and that the jury’s responses to the special interrogatories, specifically, finding negligence and causation with respect to medical expenses and pain and suffering, yet awarding damages only for Mrs. Ros-ploch’s medical expenses, were inherently inconsistent and incapable of being rationally harmonized.
In a post-trial opinion, the district court denied this motion in its entirety. With regard to plaintiff-appellant’s claim that the damage award was inadequate, the court observed that the jury was presented with conflicting evidence regarding the effect of the delay in diagnosing Mrs. Ros-ploch’s listeria; the plaintiff-appellant’s evidence demonstrated that Mrs. Rosploeh suffered as a result of the late diagnosis and treatment of listeria, whereas the defendants-appellees’ evidence showed that her pain and suffering (and death) were “caused by the infection itself and from Mrs. Rosploch’s other complicating medical problems rather than any undue delay” in diagnosis and treatment. Because the court concluded that the jury could have credited the latter evidence, the court did not find the verdict inadequate as a matter of law.
The court next determined that the verdict was not irreconcilably inconsistent. While noting that the jury’s finding in the original interrogatory questions # 1 and # 2 that Dr. Orr and Dr. Stevens negligently caused Mrs. Rosploeh to incur medical expenses and pain and suffering, and caused pecuniary loss to her next-of-kin, was facially inconsistent with its award of damages only for medical expenses, the court believed that the interrogatory responses could be rationally explained. According to the district court:
The jury ... intended to award damages for Mrs. Rosploch’s medical expenses but not for pain and suffering or pecuniary loss. Because [original] interrogatories # 1 and # 2 did not permit separate findings of liability, the only way the jury could manifest its intent was to answer those interrogatories in the affirmative and elaborate in its awards of damages. In view of the finding ... that a reasonable jury could have reached the conclusion that the negligence of defendants may not have been the cause of Mrs. Rosploch’s pain and suffering, or of any pecuniary loss to her next-of-kin, the special verdicts are capable of being harmonized. ...
Though denying plaintiff-appellant’s motion, the court granted defendants-appel-lees’ motions under Fed.R.Civ.P. 59(e) to amend the judgment by reducing it to $39,-856.29 to conform to the parties’ stipulation regarding medical expenses. This appeal followed.
DISCUSSION
Appellant first contends that the jury’s responses to the special interrogatories are irreconcilably inconsistent. Specifically, appellant argues that the jury logically could not find that Dr. Orr and Dr. Stevens negligently caused Mrs. Rosploeh to incur medical expenses and pain and suffering and then award damages for her medical expenses^ but not for her undisputed pain and suffering. We agree.
When special interrogatories are submitted to a jury pursuant to Fed.R.Civ. P. 49(a), the jury’s answers thereto “ ‘must be consistent with each other,’ ” since they form the basis for resolving the case. Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884, 890 (2d Cir.1988) (citation omitted). In evaluating a claim that a jury’s answers to special interrogatories are inconsistent, a reviewing court must “ ‘adopt a view of the case, if there is one, that resolves any seeming inconsistency.’ ” Id. at 891 (quoting Fiacco v. City of Rensselaer, 783 F.2d 319, 325 (2d Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987)); see also Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962); Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 748 (2d Cir.1984); 5A Moore’s Federal Practice 1149.03[4], at 49-39 (2d ed. 1991); cf. Yodice v. Koninklijke Nederlandsche Stoomboot Maatschappij, 471 F.2d 705 (2d Cir.1972) (per curiam), cert. denied, 411 U.S. 933, 93 S.Ct. 1902, 36 L.Ed.2d 393 (1973). If the jury’s answers cannot be harmonized rationally, the judgment must be vacated and a new trial ordered. See, e.g., Auwood, 850 F.2d at 891; Bernardini v. Rederi A/B Saturnus, 512 F.2d 660, 662 (2d Cir.1975); see also 5A Moore’s Federal Practice II 49.03[4], at 43.
In the present case, the jury found, among other things, that the negligence of Dr. Orr and Dr. Stevens caused Mrs. Rosploch to incur medical expenses and pain and suffering, but awarded damages for all of Mrs. Rosploch’s medical expenses and nothing for her. undisputed pain and suffering. According to the district court, this apparent inconsistency could be explained on the theory that the jury believed the defendants' evidence that Mrs. Ros-ploch’s pain and suffering (and death) was caused by the listeria itself, as well as by her other medical conditions, and not by the negligent delay in diagnosing and treating the listeria. We do not believe, however, that the district court’s explanation rationally harmonizes what we view as an irreconcilably inconsistent jury determination.
It is undisputed in the present case that the listeria infection, and brain abscesses caused thereby, was a contributing factor in Mrs. Rosploch’s death and that as a result of the listeria and other medical problems, Mrs. Rosploch endured great pain and suffering during her stay at Mary Hitchcock. The key issue that emerged at trial therefore was causation, i.e., whether the delay in diagnosing and treating Mrs. Rosploch’s listeria caused her to incur, among other things, her medical expenses and pain and suffering.
As demonstrated by the special interrogatories, the jury found that Dr. Orr and Dr. Stevens negligently caused Mrs. Rosploch to incur all of her medical expenses, $69,-856.29, covering her stays at BMH and Mary Hitchcock. The jury therefore determined that the negligence of Dr. Orr and Dr. Stevens caused Mrs. Rosploch’s condition to worsen to a significant degree, requiring her to undergo substantial medical treatment. It is inconceivable that this treatment resulted in none of her undisputed pain and suffering. Further, had the jury believed, as the district court suggests, that the appellees’ negligence caused none of Mrs. Rosploch’s pain and suffering, on the theory that she would have suffered and died in any event, it does not logically follow that the jury would have found that Dr. Orr and Dr. Stevens negligently caused all — or indeed any — of Mrs. Rosploch’s medical expenses.
Thus, the jury having found that appel-lees’ negligence resulted in Mrs. Rosploch’s not receiving treatment for a deadly infection for approximately two weeks, and that this negligence proximately caused all of her medical expenses, we simply find it irreconcilably inconsistent for the jury to have awarded zero damages for her contemporaneous, undisputed pain and suffering. See, e.g., Davis v. Becker & Associates, Inc., 608 F.2d 621, 623 (5th Cir.1979) (verdict finding defendant was negligent and caused plaintiff’s injury, together with award of all of plaintiff’s lost wages and earnings, cannot be reconciled with award of zero damages for plaintiff’s uncontro-verted pain and suffering); Kumorek v. Moyers, 203 Ill.App.3d 908, 148 Ill.Dec. 906, 909, 561 N.E.2d 212, 215 (1990) (inconsistent verdict where damages awarded for all of plaintiffs’ medical expenses but zero damages awarded for pain and suffering). Accordingly, because the jury verdict is incapable of being harmonized rationally, a new trial must be ordered. E.g., Auwood, 850 F.2d at 891.
Having determined that this case must be remanded for a new trial, we next consider whether the new trial must encompass all issues, or may be limited only to damages. See Fed.R.Civ.P. 59(a). Appellant contends that a retrial should be confined solely to damages because the jury found negligence and causation in its answers to the special interrogatories. See, e.g., Crane v. Consolidated Rail Corp., 731 F.2d 1042, 1050 (2d Cir.) (where elements of a claim are determined separately in special interrogatories, “error with respect to one issue will ordinarily not constitute reason to retry an issue that was separately determined”) (emphasis added), cert. denied, 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 114 (1984). We believe, however, that under the circumstances of this case, the new trial must address both liability and damages.
“It is well established that a partial new trial ‘may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.’ ” Bohack Corp. v. Iowa Beef Processors, Inc., 715 F.2d 703, 709 (2d Cir.1983) (quoting Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931)). Thus, a partial retrial on damages alone is not warranted where “the question of damages ... is so interwoven with that of liability that the former cannot be submitted to the jury independently of the latter without confusion and uncertainty, which would amount to a denial of a fair trial.” Gasoline Products, 283 U.S. at 500, 51 S.Ct. at 515; see also Northeastern Tel. Co. v. American Tel. & Tel. Co., 651 F.2d 76, 95 (2d Cir.1981) (vacating judgment made on special interrogatories in a Sherman Act case and remanding for a new trial on liability and damages because two issues were interwoven), cert. denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 654 (1982); Caskey v. Village of Wayland, 375 F.2d 1004, 1009-10 (2d Cir.1967) (vacating judgment in a negligence action because of erroneous damages instruction but ordering new trial on liability and damages); 6A Moore’s Federal Practice ¶ 59-06, at 57-58.
Upon considering the applicable standard, we believe that the issues of damages and liability are too interwoven in this case to allow us to grant a new trial on damages only. As discussed above, it was undisputed that Mrs. Rosploch endured much pain and suffering during the last month of her life and that the listeria infection was a contributing factor to her death. The central issue at trial was therefore whether the delay in diagnosing and treating this illness proximately caused, among other things, her medical expenses, pain and suffering, and/or her death. Under these circumstances, we do not believe that a second jury could make a reasonable determination regarding the amount of compensa-ble damage suffered without considering the reason for and the effect of the delay in diagnosis and treatment — issues crucial to liability as well as to damages. See, e.g., Northeastern Tel. Co., 651 F.2d at 95.
We note further that appellants’ argument, that the retrial must be on damages alone simply because the district court employed special interrogatories, is misplaced. Although the use of such interrogatories “ordinarily” facilitates the grant of a retrial limited to the issues erroneously decided, see, e.g., Crane, 731 F.2d at 1050, their use does not have talismanic significance. Even when special interrogatories are used, a partial retrial is still not warranted where an examination of the facts of a particular case reveals that an issue erroneously decided is inextricably interwoven with other issues in the case. See, e.g., Bohack, 715 F.2d at 708-09; Northeastern Tel. Co., 651 F.2d at 95; cf. Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 756 (2d Cir.1984) (retrial on damages appropriate since issue to be retried “is sufficiently distinct” from other issues and since special interrogatories were used dealing separately with liability and damages). Accordingly, because the issues of liability and damages in this case are inextricably intertwined, we hold that the retrial must be on all issues. See, e.g., Gasoline Products, 283 U.S. at 500, 51 S.Ct. at 515.
Since we conclude that appellant is entitled to a new trial based on the irreconcilable inconsistencies of the jury’s responses to the special interrogatories, we need not address appellant’s claim that a new trial was warranted because the damages were inadequate as a matter of law. For the same reason, we need not examine whether the district court erred in failing to offer appellant a remittitur on medical expenses or, in the alternative, a new trial.
CONCLUSION
We have considered appellant’s remaining contentions and find them to be without merit. Based on the foregoing, we reverse the order of the district court denying appellant’s motion for a new trial, vacate the amended judgment, and remand the case for a new trial on all issues.
. This case was originally commenced by Charles Rosploch, Sr., both individually and as executor of the estate of his wife, Theresa Ros-ploch. However, prior to oral argument in this case, Charles Rosploch, Sr. died. After the requisite probate papers were filed in state court, a motion was made on February 7, 1992 pursuant to Fed.R.App.P. 43(a) to substitute Gary T. Brooks, Esq. for Mr. Rosploch as plaintiff-appel-iant in this action. On February 18, 1992, we granted this motion,
. Although we direct that a trial de novo be held, we note that appellant does not contend that the jury verdict was inconsistent in failing to award damages for the claimed pecuniary loss to Mrs. Rosploch’s next-of-kin. Appellant also does not challenge the jury’s finding in interrogatories 4 and 5 that Dr. Orr and Dr. Stevens, respectively, did riot negligently cause Mr. Rosploch's claimed loss of consortium. We leave to the parties and to the sound discretion of the district court the question of whether these claims should be submitted to the jury at retrial.
We note further that to facilitate the clear resolution,of the liability and damages issues at retrial, the special interrogatories, if employed, should clearly separate the elements of negligence and causation with respect to each claim.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_origin
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
INVESTMENT COMPANY INSTITUTE, Plaintiff-Appellee, v. Robert L. CLARKE, as Comptroller of the Currency; the Office of the Comptroller of the Currency, an agency of the United States; and the United States of America, Defendants-Appellants, and Wells Fargo Bank, N.A.; and the Bank of California, N.A., Defendants-Intervenors/Appellants.
Nos. 84-2622, 84-2623.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 12, 1985.
Decided June 30, 1986.
Norris, Circuit Judge, filed opinion concurring especially.
Coughenour, District Judge, sitting by designation, filed dissenting opinion.
Harvey L. Pitt, Henry A. Hubschman, David M. Miles, Fried, Frank, Harris, Shri-ver & Jacobson, Washington, D.C., David J. Romanski, Steinhart & Falconer, San Francisco, Cal., for plaintiff-appellee.
Brobeck, Phleger & Harrison, William F. Sullivan, San Francisco, Cal., for Wells Fargo Bank, et al.
Richard K. Willard, Acting Asst. Atty. Gen., Richard V. Fitzgerald, Chief Counsel, Eugene M. Katz, L. Robert Griffin, Washington, D.C., for Clarke, et al.
Before NORRIS and REINHARDT, Circuit Judges, and COUGHENOUR, District Judge.
Comptroller of the Currency Robert L. Clarke has been substituted for his predecessor C.T. Conover, pursuant to Fed.R.App.P. 43(c)(1).
Honorable John C. Coughenour, United States District Judge for the Western District of Washington, sitting by designation.
REINHARDT, Circuit Judge:
The Comptroller of the Currency, Wells Fargo Bank, and the Bank of California appeal from the district court’s grant of summary judgment in favor of the Investment Company Institute. The district court ruled that the operation by the two banks of common funds consisting of commingled individual retirement accounts violated the Glass-Steagall Act, 48 Stat. 162, as amended, and that the Comptroller could not properly authorize the operation of such funds. See Investment Company Institute v. Conover, 593 F.Supp. 846 (N.D. Cal.1984).
Two circuit courts have ruled that the operation of such commingled funds does not violate Glass-Steagall and that the Comptroller could properly authorize their operation. See Investment Company Institute v. Conover, 790 F.2d 925 (D.C.Cir. 1986); Investment Company Institute v. Clarke, 789 F.2d 175 (2d Cir.1986) (per curiam). While the Second Circuit’s opinion consisted of only a summary affirmance of the district court, the District of Columbia Circuit engaged in an extensive analysis, applying the principle recently restated in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837,104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), that interpretations of statutes by the agency charged with administering them may not be overturned unless they are unreasonable. The court found that the Comptroller's interpretation of Glass-Steagall was not unreasonable and thus that his authorization of the commingling of individual retirement accounts was proper. See Investment Company Institute v. Conover, 790 F.2d at 931-38.
The Supreme Court has specifically held that “[t]he Comptroller of the Currency is charged with the enforcement of the banking laws to an extent that warrants” judicial deference to his interpretations of Glass-Steagall unless they are unreasonable. Investment Company Institute v. Camp, 401 U.S. 617, 626-27, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367 (1971). In Camp the Court reversed the Comptroller, saying that he had not offered a reasoned explanation for his conclusion. Such is not the case here, however. In his decisions authorizing Wells Fargo Bank and the Bank of California to operate their commingled funds, the Comptroller applied the mode of analysis that Camp held to be appropriate for determining whether Glass-Steagall has been violated.
The district court found the Comptroller’s decisions to be “somewhat coneluso-ry” and to “simply disagree with congressional determinations enumerated in Camp.” 593 F.Supp. at 856. It is easy to understand the district court’s view. The Comptroller’s analysis appears to be superficial, and in some respects to come perilously close to disregarding the spirit of Camp while purporting to adhere to its letter. It also comes perilously close to rejecting the division between commercial banking and investment banking that Congress sought to mandate in Glass-Stegall. Nevertheless, in the end, the Comptroller did apply, however inadequately, the Camp test.
In the case before us, the issue the Comptroller was required to decide essentially involved questions of expert judgment regarding the practical operation of the banking industry and the results that might be anticipated if particular business practices were instituted. Congress has delegated responsibility for such business judgments to the Comptroller. Whether he performs his task wisely or well is not for us to decide. Moreover, the practice the Comptroller approved is not prohibited by the plain words of the statute, and in most part, he has not relied on arguments that are inconsistent with or different from those set forth in his decision. Compare Securities Industry Association v. Board of Governors, 468 U.S. 137, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984). While the question is a close one, and certainly not free from doubt, we conclude ultimately, on balance, that we cannot say that the analysis and conclusions set forth in the Comptroller’s decisions are unreasonable.
For the above reasons, we join with the Second and District of Columbia Circuits and hold that Wells Fargo and the Bank of California may lawfully commingle individual retirement accounts in the manner authorized by the Comptroller. The district court’s decision is reversed.
REVERSED.
. We review the grant of summary judgment de novo, Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983); because there are no contested issues of fact, we need decide only whether the district court correctly applied the substantive law, Lane v. Goren, 743 F.2d 1337, 1339 (9th Cir. 1984).
. We also agree with the District of Columbia Circuit that the Employee Retirement Income Security Act of 1974 (ERISA) and its legislative history are not relevant in the decision before us. See Investment Company v. Conover, 790 F.2d at 932-33. Like the District of Columbia Circuit, we base our decision entirely on the portion of the Comptroller’s ruling that relates directly to Glass-Steagall.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_method
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
HOT SPRINGS COAL CO. v. MILLER.
No. 1848.
Circuit Court of Appeals, Tenth Circuit.
Nov. 2, 1939.
Rehearing Denied Dec. 19, 1939.
Cyril W. Armstrong, of Chicago, Ill. (Charles E. Lane, of Cheyenne, Wyo., and Clarence P. Parker, of Chicago, Ill., on the brief), for appellant.
Allen A. Pearson, of Cheyenne, Wyo., for appellee.
Before LEWIS, BRATTON, and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
The McPherson Oil Company, a Delaware corporation, Hot Springs Coal Company, an Illinois corporation, and others, filed their bill of complaint against Albert C. Miller in the District Court of the United States for the District of Wyoming. The parties will be referred to herein as they appeared in the court below.
Plaintiffs in their bill of complaint sought to establish title and ownership in themselves to a coal mining lease and certain coal mining permits covering government lands in Wyoming. The bill charged that the lease and permits were issued and taken in the name of defendant, but that he was a constructive trustee and took and held them as agent and in trust for plaintiffs and that plaintiffs were the owners of the interest in such lease and such permits. Plaintiffs prayed that a court of equity decree that plaintiffs furnished the money with which defendant was able to obtain the coal permit and was enabled to operate a wagon mine on the premises, and that defendant, in procuring the coal permit and in operating the mine, acted as agent and truste'e for plaintiffs; that a trust be declared ; that plaintiffs be decreed to be the beneficial parties in interest in the coal lease; that defendant be required to assign and transfer to plaintiffs the coal lease and permit; and for an accounting.
Defendant denied that he held the lease and permit for the benefit of plaintiffs, and stated that in taking the permit and lease he was under no duty to take the same in the name of and for the benefit of plaintiffs. Defendant alleged that he offered to hold the same for the benefit of plaintiffs and their stockholders upon condition that plaintiffs furnish necessary funds to operate, develop and prove the worth of the land; that plaintiffs failed, refused and neglected to furnish the financial assistance, and by reason of such failure it was necessary for defendant to carry on the development work at his own expense; that he had developed the property at an expenditure to himself of approximately $17,000. He prayed that the bill be dismissed and his title to the property quieted, but that in the event it be determined plaintiffs had an interest in the lease and permits, they be required to reimburse him by a day to be fixed for his expenditures, with interest thereon, and that in default of such reimbursement the entire interest, title and right of possession in and to the lands covered by the lease and permit be quieted and confirmed in him. A reply was filed by plaintiffs denying the allegations of defendant’s answer and alleging that plaintiffs furnished the money with which the development had been done. The case was tried to the court and during the trial thereof a settlement was made by plaintiffs and defendant, through their attorneys, which was approved by the court.
On January 4, 1938, the court entered a decree reciting that the parties had agreed in open court that the plaintiffs McPherson Oil Company and Hot Springs Coal Company, corporations, were indebted to Albert C. Miller in the sum of $11,500; that in addition thereto defendant was the owner of $1,000 deposited with the Commissioner of the General Land Office of the United States of America in lieu of a bond; that the plaintiffs pay to defendant the sum of $11,500 on or before July 1, 1938, and that upon the payment to defendant of said sum and upon plaintiffs or either of them securing the release and refund of the $1,-000 on deposit, or in the event they failed to secure the release, then upon the payment to defendant of the additional sum of $1,000, plaintiffs shall hold all the land involved in the coal permit and the mining lease in controversy, free and clear of any and all incumbrances except any royalties or other obligations to the United States government; that upon the payment of said sums of money by plaintiffs to defendant, plaintiffs shall become vested with the title to all the property in controversy and shall, upon making said payments, be entitled to the immediate possession thereof; that in the event plaintiffs, or any or either of them, fail to pay the amount found due the defendant on or before July 1, 1938, title to the coal mining permits and lease shall be and vest automatically in defendant, Albert C. Miller, free from any claim of plaintiffs or any of them, save and except certain personal property on the premises owned by plaintiffs.
The decree further recites that the court, having heard the stipulation, finds that it is just and proper and should be approved. The decree contained appropriate provisions to make effective the provisions of the agreement. The court in its decree reserved jurisdiction of the cause for the purpose of making any future orders as might be required.
On June 30, 1938, plaintiffs filed a motion asking that the decree be set aside, for the reason that plaintiffs’ attorneys did not have authority to make or enter into the settlement; that the real estate involved in the permit constitutes the major portion of the assets of the Hot Springs Coal Com.pany. By amendment to the motion further grounds were urged for vacation of the decree, namely, that the agreement violated the statutes of Illinois which require that a corporation cannot dispose of all its assets without complying with certain statutory requirements relating to the sale of the assets of a corporation.
This motion was heard by the court and on the 29th day of August, 1938, defendant filed his motion stating that plaintiffs had failed or refused to make the payments or any part of them provided for in the’ agreement incorporated in the decree of the court; that the time for payment had expired, and prayed for a final decree, quieting title to the property in controversy in defendant and against plaintiffs. On the 29th day of August, 1938, a final decree was entered by the court quieting the title of defendant in and to the lease and permits and barring plaintiffs from any right, title or interest in them. The notice of appeal recites that the appeal is taken from the decree of January 4, 1938, the order denying the motion to vacate and set aside the same, and the final decree of August 29, 1938.
The grounds urged for consideration for reversal of the decree are: 1st, That the attorneys representing plaintiffs did not have authority to make and enter the agreement; 2nd, That the decree is void because contrary to the Illinois statute prohibiting a corporation from selling and disposing of all of its assets without complying with certain statutory requirements; 3rd, That the court was without authority to make an alternative or conditional decree.
In its motion to vacate the judgment, plaintiffs contend that the attorneys for plaintiffs did not have authority to make and enter the agreement that was made. Plaintiffs were represented by two attorneys, Charles E. Lane of Wyoming, and Jacob Brisgall of Chicago, Illinois. The evidence establishes that after negotiations for a settlement had been completed, Mr. Brisgall called the president of the 'Hot Springs Coal Company and advised him of the proposed settlement. He did not inform him that in the event of plaintiffs’ failure to pay the $12,500, title to the property in controversy would be quieted in defendant. The president was informed of all other terms of the proposed settlement. Being informed of the terms of the proposed agreement, the president said, “All right, do the best you can.” There was. no testimony that the powers of Charles E. Lane were other than those of a general attorney. No evidence was offered tending to show that his authority was limited in any way. In the absence of an affirmative showing to the contrary, it is presumed that an attorney has authority to compromise and settle a case. Freeman, Judgments, 5th Ed., § 1346; 6 C.J., page 645, § 150; Dwight v. Hazlett, 107 W.Va. 192, 147 S.E. 877, 66 A.L.R. 102, 106; East Line & R. River Ry. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 13 Am.St.Rep. 758; United States v. Beebe, 180 U.S. 343, loc. cit. 352, 2 S.Ct. 371, 45 L.Ed. 563.
It is, however, not necessary to determine whether plaintiffs’ attorneys had authority to make the settlement. All the proposed terms of the settlement were communicated to plaintiffs. They accepted and ratified the proposed settlement and attempted to carry it out. As has been stated, the decree of the court gave plaintiffs six months within which to pay defendant the $12,500 due him. On June' 6, 1938, the president of the Hot Springs Coal Company addressed letters to all of the stockholders of the company reciting the terms of the proposed settlement. This letter recited .the appearance of Brisgall and Lane in the litigation. It stated the provisions of the decree of the court requiring the payment to defendant of, $12,-500 by July 1, and that if such payment was not made by that time the mine would revert to defendant. The letter states that the delay in informing the stockholders was due to the protracted meetings of the Board of Directors to find ways and means to raise this sum and recites the failure of the officers to accomplish this. The letter then appealed to the stockholders for suggestions as to what could be done.
From this letter it is evident that the officers of plaintiff company had full knowledge of the settlement and of provisions of the decree providing for the quieting of the title in defendant if these payments were not made by July 1. Aside from any other evidence, this letter shows that plaintiffs were fully informed of the provisions of the settlement, ratified and accepted it and attempted to carry it out. As late as the date of this letter, no suggestion appears anywhere that the settlement was unauthorized or that it should be repudiated for want of authority to consummate it.
It was only on June 30, the last day for the payment of the $12,500, that plaintiffs attempted to set the decree aside for want of authority on the part of its attorneys to make the settlement. Conced-, ing for the purpose of this opinion, without so deciding, that plaintiffs’ attorneys were not authorized to make the settlement, it must be found that plaintiffs confirmed and ratified the settlement and are estopped to challenge the same.
It is further urged that the decree of the court is void because contrary to an Illinois statute (Smith-Hurd Ill.Rev.Stat. 1935, c. 32, § 157.72) which prohibits a corporation from disposing of all of its assets without complying with certain statutory requirements. Such a statute can relate only to voluntary disposals and sales of property standing in the name of a corporation and admittedly the property of the corporation. In this case the corporation claimed to be the owner of this property. It did not stand in the name 'of the corporation. At best, all that it had was an equitable interest in the property.’ It filed its petition in a court of equity, claiming to be the owner of the property by virtue of a trust, and praying the court "to determine its ownership and to quiet its title. Whether it was the owner of this property or not was the issue to be determined in the litigation. What, if any, interest it had in the property and the conditions and terms upon which it was the owner of any interest in the property was for the determination of a court of equity. The decree of the court in no wise constituted a sale or exchange of property belonging to plaintiffs within the purview of the Illinois statute. Fletcher on Corporations, vol. 6, page 1038; In re Norcor Mfg. Co. (Schmitt v. De Laney, et al.), 7 Cir., 97 F.2d 208; Baldwin et al. v. American Trading Co., 76 Cal.App. 80, 243 P. 710.
It is true, as contended by plaintiffs, that the trial court had power to vacate the consent decree and that the decree of the court entered January 4 was not a final decree. The difficulty in which plaintiffs find themselves is that they appealed to the court to vacate this conditional decree and set it aside. The court refused to do this, confirming its decree, and upon failure of plaintiffs to comply with the terms of the decree, entered a final decree quieting title of defendant to the property.
Any disposition of a pending action, not illegal, may be fairly agreed to by the parties, and if approved by the court, it should permit such disposition and enter judgment accordingly, and such judgment will be valid and binding upon the parties and their privies. 34 C.J., page 130, § 332; United States v. Parker, 120 U.S. 89, 7 S.Ct. 454, 30 L.Ed. 601; Burgess v. Seligman, 107 U.S. 20, 2 S.Ct. 10, 27 L.Ed. 359; Harniska v. Dolph, 9 Cir., 133 F. 158; Simmons v. Baynard, C.C., 30 F. 532.
There is no dispute in this case as to the origin of the transaction leading to this controversy. Defendant went to Wyoming as the agent of plaintiff McPherson Oil Company, to supervise the completion of an oil well which that company was drilling. McPherson Oil Company also had some coal properties in that vicinity. After the completion of the oil' well, defendant prospected and explored adjoining coal lands and discovered a valuable vein of coal. Defendant made application for a lease and mining permits in his own name. It was ultimately agreed that plaintiffs should furnish the money and assets with which to do the development work on this mine and if it did so the defendant would hold this property as trustee for plaintiffs. Defendant contends that plaintiffs failed in any substantial way to carry out this agreement and by reason thereof he was compelled to expend a large amount of his own funds in the development of this property, amounting to at least $17,-000. Plaintiffs deny this. These were the issues to be determined by the court of equity in the pending litigation. The parties themselves arrived at an agreement by which it was agreed that plaintiffs owed defendant $12,500 for money advanced by him in the development of these properties. They agreed that before plaintiffs should have any interest in the property they should repay to defendant this sum of money, and if they did, the property was to be conveyed to the Hot Springs Coal Company for the benefit of all; if not, the title to the property was to be quieted in defendant, whose efforts and whose money up to this point made possible the develop;ment of the property. Plaintiffs agreed to this and attempted to raise the money with which to pay defendant. They wholly failed to do so. It was only on the last day before their right to any interest in the property expired under the agreement confirmed by the decree of the court that they advanced the contention that their attorneys had no authority to negotiate the settlement.
The settlement agreement was arrived at in open court. Plaintiffs were fully informed concerning all the terms of this settlement and attempted to carry it out. It was submitted to the court for -its • approval, which approval was within the equitable powers of the court to grant if it found the agreement equitable. This the court did.
A court of equity is empowered to make the provisions contained in the decree of the court in furtherance of justice between the parties. Broatch et al. v. Boysen et al., 8 Cir., 236 F. 516; Uehling v. Lyon et al., C.C., 134 F. 703; Soderberg et al. v. McRae et al., 70 Wash. 235, 126 P. 538; Robles v. Clarke, 25 Cal. 317; Stewart v. Ganley, 11 Colo. 458, 18 P. 619.
The decree of the trial court is affirmed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
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").
Madison WILSON, Appellant, v. UNITED STATES of America, Appellee.
No. 18141.
United States Court of Appeals Ninth Circuit.
April 11, 1963.
Elke, Farella & Braun, and Jerome I. Braun, San Francisco, Cal., for appellant.
Brockman Adams, U. S. Atty., and Payton Smith, Asst. U. S. Atty., Seattle, Wash., for appellee.
Before CHAMBERS and DUNIWAY, Circuit Judges, and JAMES M. CARTER, District Judge.
JAMES M. CARTER, District Judge.
The appellant was convicted by a jury ■of offenses involving heroin, charged in a six count indictment. Four prior convictions were charged by a supplemental Information. Appellant was sentenced to imprisonment for 15 years on each •count, the sentences to run concurrently.
The case raises only two questions:—
1. Was there a violation of Section ■605 of the Federal Communications Act, where a federal agent listened in on a telephone conversation ?
2. The validity of the inference of unlawful importation and knowledge thereof from the shown possession of heroin under Title 21 U.S.Code § 174.
This is a small horse soon curried.
I
Section 605 of the Federal Communications Act; (b7 U.S.C.A. § 605).
Gibson, an agent for the Federal Bureau of Narcotics without appellant’s consent, by use of a “Twinfone”, listened in on two conversations wherein a special employee of the Bureau of Narcotics talked to appellant. The calls were made from pay stations to appellant.
The device was attached to a receiver of a telephone and automatically created an extension. It is on sale to the public in various stores. The trial court found that the device was similar to a second extension on a telephone.
The narcotic agent did not testify to the contents of the conversation, but the special employee did.
There is a serious doubt as to whether the appellant’s contention is available to him on this record, since it does not appear that the agent of the Bureau of Narcotics testified to the conversations overheard. Obviously the testimony of the special employee, concerning his conversation with the appellant, does not run afoul of the prohibitions of the Federal Communications Act.
Assuming for argument that the point is available, the case law is clearly adverse to appellant. Rathbun v. United States, (1957) 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134; Carnes v. United States, (5 Cir. 1961) 295 F.2d 598; Williams v. United States, (9 Cir. 1961) 290 F.2d 451; Rayson v. United States, (9 Cir. 1956) 238 F.2d 160; United States v. Bookie, (7 Cir. 1956) 229 F.2d 130; Flanders v. United States, (6 Cir. 1955) 222 F.2d 163.
The cases hold that testimony as to a telephone conversation listened to with the consent of only one of the parties to the conversation, does not constitute an interception under Section 605 of the Federal Communications Act, (47 U.S.C.A. § 605); and (except for Ray-son and Bookie which did not reach the question) that such testimony does not become inadmissible simply because it was recorded by or overheard by an electrical or mechanical device attached to an extension telephone or telephone wiring at the locality of the consenting party.
II
The validity of the ■ available inference under Section 17b, U.S. Code, Title 21.
This case involved heroin which was shown to be in the actual rather than the constructive possession of appellant. Appellant makes a frontal attack upon the cases that have previously considered and held the inference permitted by the section to be proper: Yee Hem v. United States, (1925) 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904; Rodella v. United States, (9 Cir. 1960) 286 F.2d 306; Hernandez v. United States, (9 Cir. 1962) 300 F.2d 114; See Harris v. United States, (1959) 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597. We reject appellant’s contention.
Furthermore, counts I, III and V were laid under Section 4705(a) U.S. Code, Title 26. As to these counts, the inference permitted by Section 174 U.S. Code, Title 21 was not applicable. The appellant received the same sentence on each of the six counts, the sentences to run concurrently.
If the appellant was validly convicted of any of the six counts, the judgment should be affirmed. King v. United States, (9 Cir. 1960) 279 F.2d 342; Sinclair v. United States, (1929) 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; Wilson v. United States, (9 Cir. 1963) 313 F.2d 317.
Finding no merit in the appeal, the judgment of conviction is 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:
|
sc_caseorigin
|
160
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
Terence Tramaine ANDRUS
v.
TEXAS
No. 18-9674
Supreme Court of the United States.
Decided June 15, 2020
Per Curiam.
Death-sentenced petitioner Terence Andrus was six years old when his mother began selling drugs out of the apartment where Andrus and his four siblings lived. To fund a spiraling drug addiction, Andrus' mother also turned to prostitution. By the time Andrus was 12, his mother regularly spent entire weekends, at times weeks, away from her five children to binge on drugs. When she did spend time around her children, she often was high and brought with her a revolving door of drug-addicted, sometimes physically violent, boyfriends. Before he reached adolescence, Andrus took on the role of caretaker for his four siblings.
When Andrus was 16, he allegedly served as a lookout while his friends robbed a woman. He was sent to a juvenile detention facility where, for 18 months, he was steeped in gang culture, dosed on high quantities of psychotropic drugs, and frequently relegated to extended stints of solitary confinement. The ordeal left an already traumatized Andrus all but suicidal. Those suicidal urges resurfaced later in Andrus' adult life.
During Andrus' capital trial, however, nearly none of this mitigating evidence reached the jury. That is because Andrus' defense counsel not only neglected to present it; he failed even to look for it. Indeed, counsel performed virtually no investigation of the relevant evidence. Those failures also fettered the defense's capacity to contextualize or counter the State's evidence of Andrus' alleged incidences of past violence.
Only years later, during an 8-day evidentiary hearing in Andrus' state habeas proceeding, did the grim facts of Andrus' life history come to light. And when pressed at the hearing to provide his reasons for failing to investigate Andrus' history, Andrus' counsel offered none.
The Texas trial court that heard the evidence recommended that Andrus be granted habeas relief and receive a new sentencing proceeding. The court found the abundant mitigating evidence so compelling, and so readily available, that counsel's failure to investigate it was constitutionally deficient performance that prejudiced Andrus during the punishment phase of his trial. The Texas Court of Criminal Appeals disagreed. It concluded without explanation that Andrus had failed to satisfy his burden of showing ineffective assistance under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We conclude that the record makes clear that Andrus has demonstrated counsel's deficient performance under Strickland , but that the Court of Criminal Appeals may have failed properly to engage with the follow-on question whether Andrus has shown that counsel's deficient performance prejudiced him. We thus grant Andrus' petition for a writ of certiorari, vacate the judgment of the Texas Court of Criminal Appeals, and remand the case for further proceedings not inconsistent with this opinion.
I
A
In 2008, 20-year-old Terence Andrus unsuccessfully attempted a carjacking in a grocery-store parking lot while under the influence of PCP-laced marijuana. During the bungled attempt, Andrus fired multiple shots, killing car owner Avelino Diaz and bystander Kim-Phuong Vu Bui. The State charged Andrus with capital murder.
At the guilt phase of trial, Andrus' defense counsel declined to present an opening statement. After the State rested its case, the defense immediately rested as well. In his closing argument, defense counsel conceded Andrus' guilt and informed the jury that the trial would "boil down to the punishment phase," emphasizing that "that's where we are going to be fighting." 45 Tr. 18. The jury found Andrus guilty of capital murder.
Trial then turned to the punishment phase. Once again, Andrus' counsel presented no opening statement. In its 3-day case in aggravation, the State put forth evidence that Andrus had displayed aggressive and hostile behavior while confined in a juvenile detention center; that Andrus had tattoos indicating gang affiliations; and that Andrus had hit, kicked, and thrown excrement at prison officials while awaiting trial. The State also presented evidence tying Andrus to an aggravated robbery of a dry-cleaning business. Counsel raised no material objections to the State's evidence and cross-examined the State's witnesses only briefly.
When it came to the defense's case in mitigation, counsel first called Andrus' mother to testify. The direct examination focused on Andrus' basic biographical information and did not reveal any difficult circumstances in Andrus' childhood. Andrus' mother testified that Andrus had an "excellent" relationship with his siblings and grandparents. 49 id. , at 52, 71. She also insisted that Andrus "didn't have access to" "drugs or pills in [her] household," and that she would have "counsel[ed] him" had she found out that he was using drugs. Id. , at 67, 79.
The second witness was Andrus' biological father, Michael Davis, with whom Andrus had lived for about a year when Andrus was around 15 years old. Davis had been in and out of prison for much of Andrus' life and, before he appeared to testify, had not seen Andrus in more than six years. The bulk of Davis' direct examination explored such topics as Davis' criminal history and his relationship with Andrus' mother. Toward the end of the direct examination, counsel elicited testimony that Andrus had been "good around [Davis]" during the 1-year period he had lived with Davis. 50 id. , at 8.
Once Davis stepped down, Andrus' counsel informed the court that the defense rested its case and did not intend to call any more witnesses. After the court questioned counsel about this choice during a sidebar discussion, however, counsel changed his mind and decided to call additional witnesses.
Following a court recess, Andrus' counsel called Dr. John Roache as the defense's only expert witness. Counsel's terse direct examination focused on the general effects of drug use on developing adolescent brains. On cross-examination, the State quizzed Dr. Roache about the relevance and purpose of his testimony, probing pointedly whether Dr. Roache "drove three hours from San Antonio to tell the jury ... that people change their behavior when they use drugs." 51 id. , at 21.
Counsel next called James Martins, a prison counselor who had worked with Andrus. Martins testified that Andrus "started having remorse" in the past two months and was "making progress." Id. , at 35. On cross-examination, the State emphasized that Andrus' feelings of remorse had manifested only recently, around the time trial began.
Finally, Andrus himself testified. Contrary to his mother's depiction of his upbringing, he stated that his mother had started selling drugs when he was around six years old, and that he and his siblings were often home alone when they were growing up. He also explained that he first started using drugs regularly around the time he was 15. All told, counsel's questioning about Andrus' childhood comprised four pages of the trial transcript. The State on cross declared, "I have not heard one mitigating circumstance in your life." Id. , at 60.
The jury sentenced Andrus to death.
B
After an unsuccessful direct appeal, Andrus filed a state habeas application, principally alleging that his trial counsel was ineffective for failing to investigate or present available mitigation evidence. During an 8-day evidentiary hearing, Andrus presented what the Texas trial court characterized as a "tidal wave of information ... with regard to mitigation." 7 Habeas Tr. 101.
The evidence revealed a childhood marked by extreme neglect and privation, a family environment filled with violence and abuse. Andrus was born into a neighborhood of Houston, Texas, known for its frequent shootings, gang fights, and drug overdoses. Andrus' mother had Andrus, her second of five children, when she was 17. The children's fathers never stayed as part of the family. One of them raped Andrus' younger half sister when she was a child. The others-some physically abusive toward Andrus' mother, all addicted to drugs and carrying criminal histories-constantly flitted in and out of the picture.
Starting when Andrus was young, his mother sold drugs and engaged in prostitution. She often made her drug sales at home, in view of Andrus and his siblings. She also habitually used drugs in front of them, and was high more often than not. In her frequently disoriented state, she would leave her children to fend for themselves. Many times, there was not enough food to eat.
After her boyfriend was killed in a shooting, Andrus' mother became increasingly dependent on drugs and neglectful of her children. As a close family friend attested, Andrus' mother "would occasionally just take a week or a weekend and binge [on drugs]. She would get a room somewhere and just go at it." 13 Habeas Tr., Def. Exh. 13, p. 2.
With the children often left on their own, Andrus assumed responsibility as the head of the household for his four siblings, including his older brother with special needs. Andrus was around 12 years old at the time. He cleaned for his siblings, put them to bed, cooked breakfast for them, made sure they got ready for school, helped them with their homework, and made them dinner. According to his siblings, Andrus was "a protective older brother" who "kept on to [them] to stay out of trouble." Id. , Def. Exh. 18, p. 1. Andrus, by their account, was "very caring and very loving," "liked to make people laugh," and "never liked to see people cry." Ibid. ; id. , Def. Exh. 9, p. 1. While attempting to care for his siblings, Andrus struggled with mental-health issues: When he was only 10 or 11, he was diagnosed with affective psychosis.
At age 16, Andrus was sentenced to a juvenile detention center run by the Texas Youth Commission (TYC), for allegedly "serv[ing] as the 'lookout' " while he and his friends robbed a woman of her purse. 10 Habeas Tr., State Exh. 16, p. 9; 13 id. , Def. Exh. 4, p. 4 ("[R]ecords indicate[d that] Andrus served as the lookout"); 3 id. , at 273-274; 5 id. , at 206. While in TYC custody, Andrus was prescribed high doses of psychotropic drugs carrying serious adverse side effects. He also spent extended periods in isolation, often for purported infractions like reporting that he had heard voices telling him to do bad things. TYC records on Andrus noted multiple instances of self-harm and threats of suicide. After 18 months in TYC custody, Andrus was transferred to an adult prison facility.
Not long after Andrus' release from prison at age 18, Andrus attempted the fatal carjacking that resulted in his capital convictions. While incarcerated awaiting trial, Andrus tried to commit suicide. He slashed his wrist with a razor blade and used his blood to smear messages on the walls, beseeching the world to "[j]ust let [him] die." 31 id. , Def. Exh. 122-A, ANDRUS-SH 4522.
After considering all the evidence at the hearing, the Texas trial court concluded that Andrus' counsel had been ineffective for "failing to investigate and present mitigating evidence regarding [Andrus'] abusive and neglectful childhood." App. to Pet. for Cert. 36. The court observed that the reason Andrus' jury did not hear "relevant, available, and persuasive mitigating evidence" was that trial counsel had "fail[ed] to investigate and present all other mitigating evidence." Id. , at 36-37. The court explained that "there [is] ample mitigating evidence which could have, and should have, been presented at the punishment phase of [Andrus'] trial." Id. , at 36. For that reason, the court concluded that counsel had been constitutionally ineffective, and that habeas relief, in the form of a new punishment trial, was warranted. Id. , at 37, 42.
C
The Texas Court of Criminal Appeals rejected the trial court's recommendation to grant habeas relief. In an unpublished per curiam order, the Court of Criminal Appeals concluded without elaboration that Andrus had "fail[ed] to meet his burden under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel's deficient performance." App. to Pet. for Cert. 7-8. A concurring opinion reasoned that, even if counsel had provided deficient performance under Strickland , Andrus could not show that counsel's deficient performance prejudiced him.
Andrus petitioned for a writ of certiorari. We grant the petition, vacate the judgment of the Texas Court of Criminal Appeals, and remand for further proceedings not inconsistent with this opinion. The evidence makes clear that Andrus' counsel provided constitutionally deficient performance under Strickland . But we remand so that the Court of Criminal Appeals may address the prejudice prong of Strickland in the first instance.
II
To prevail on a Sixth Amendment claim alleging ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that his counsel's deficient performance prejudiced him. Strickland , 466 U.S. at 688, 694, 104 S.Ct. 2052. To show deficiency, a defendant must show that "counsel's representation fell below an objective standard of reasonableness." Id. , at 688, 104 S.Ct. 2052. And to establish prejudice, a defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. , at 694, 104 S.Ct. 2052.
A
"It is unquestioned that under prevailing professional norms at the time of [Andrus'] trial, counsel had an 'obligation to conduct a thorough investigation of the defendant's background.' " Porter v. McCollum , 558 U.S. 30, 39, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (per curiam ) (quoting Williams v. Taylor , 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ). Counsel in a death-penalty case has " 'a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' " Wiggins v. Smith , 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland , 466 U.S. at 691, 104 S.Ct. 2052 ). " 'In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.' " Wiggins , 539 U.S. at 521-522, 123 S.Ct. 2527.
Here, the habeas record reveals that Andrus' counsel fell short of his obligation in multiple ways: First, counsel performed almost no mitigation investigation, overlooking vast tranches of mitigating evidence. Second, due to counsel's failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering the State's aggravation case. Third, counsel failed adequately to investigate the State's aggravating evidence, thereby forgoing critical opportunities to rebut the case in aggravation. Taken together, those deficiencies effected an unconstitutional abnegation of prevailing professional norms.
1
To assess whether counsel exercised objectively reasonable judgment under prevailing professional standards, we first ask "whether the investigation supporting counsel's decision not to introduce mitigating evidence of [Andrus'] background was itself reasonable." Id. , at 523, 123 S.Ct. 2527 (emphasis deleted); see also id. , at 528, 123 S.Ct. 2527 (considering whether "the scope of counsel's investigation into petitioner's background" was reasonable); Porter , 558 U.S. at 39, 130 S.Ct. 447. Here, plainly not. Although counsel nominally put on a case in mitigation in that counsel in fact called witnesses to the stand after the prosecution rested, the record leaves no doubt that counsel's investigation to support that case was an empty exercise.
To start, counsel was, by his own admissions at the habeas hearing, barely acquainted with the witnesses who testified during the case in mitigation. Counsel acknowledged that the first time he met Andrus' mother was when she was subpoenaed to testify, and the first time he met Andrus' biological father was when he showed up at the courthouse to take the stand. Counsel also admitted that he did not get in touch with the third witness (Dr. Roache) until just before voir dire , and became aware of the final witness (Martins) only partway through trial. Apart from some brief pretrial discussion with Dr. Roache, who averred that he was "struck by the extent to which [counsel] appeared unfamiliar" with pertinent issues, counsel did not prepare the witnesses or go over their testimony before calling them to the stand. 13 Habeas Tr., Def. Exh. 6, p. 3.
Over and over during the habeas hearing, counsel acknowledged that he did not look into or present the myriad tragic circumstances that marked Andrus' life. For instance, he did not know that Andrus had attempted suicide in prison, or that Andrus' experience in the custody of the TYC left him badly traumatized. Aside from Andrus' mother and biological father, counsel did not meet with any of Andrus' close family members, all of whom had disturbing stories about Andrus' upbringing. As a clinical psychologist testified at the habeas hearing, Andrus suffered "very pronounced trauma" and posttraumatic stress disorder symptoms from, among other things, "severe neglect" and exposure to domestic violence, substance abuse, and death in his childhood. 6 id. , at 168-169, 180; 7 id. , at 52. Counsel uncovered none of that evidence. Instead, he "abandoned [his] investigation of [Andrus'] background after having acquired only rudimentary knowledge of his history from a narrow set of sources." Wiggins , 539 U.S. at 524, 123 S.Ct. 2527.
On top of that, counsel "ignored pertinent avenues for investigation of which he should have been aware," and indeed was aware. Porter , 558 U.S. at 40, 130 S.Ct. 447. At trial, counsel averred that his review did not reveal that Andrus had any mental-health issues. But materials prepared by a mitigation expert well before trial had pointed out that Andrus had been "diagnosed with affective psychosis," a mental-health condition marked by symptoms such as depression, mood lability, and emotional dysregulation. 3 id. , at 70. At the habeas hearing, counsel admitted that he "recall[ed] noting," based on the mitigation expert's materials, that Andrus had been "diagnosed with this seemingly serious mental health issue." Id. , at 71. He also acknowledged that a clinical psychologist briefly retained to examine a limited sample of Andrus' files had informed him that Andrus may have schizophrenia. Clearly, "the known evidence would [have] le[d] a reasonable attorney to investigate further." Wiggins , 539 U.S. at 527, 123 S.Ct. 2527. Yet counsel disregarded, rather than explored, the multiple red flags.
In short, counsel performed virtually no investigation, either of the few witnesses he called during the case in mitigation, or of the many circumstances in Andrus' life that could have served as powerful mitigating evidence. The untapped body of mitigating evidence was, as the habeas hearing revealed, simply vast.
"[C]ounsel's failure to uncover and present [the] voluminous mitigating evidence," moreover, cannot "be justified as a tactical decision." Id. , at 522, 123 S.Ct. 2527 ; see also Williams , 529 U.S. at 396, 120 S.Ct. 1495. Despite repeated questioning, counsel never offered, and no evidence supports, any tactical rationale for the pervasive oversights and lapses here. Instead, the overwhelming weight of the record shows that counsel's "failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment." Wiggins , 539 U.S. at 526, 123 S.Ct. 2527. That failure is all the more alarming given that counsel's purported strategy was to concede guilt and focus on mitigation. Indeed, counsel justified his decision to present "basically" "no defense" during the guilt phase by stressing that he intended to train his efforts
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_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.
STEINGUT et al. v. GUARANTY TRUST CO. OF NEW YORK et al. UNITED STATES v. SAME (two cases).
Nos. 177-179, Docket 20262-20264.
Circuit Court of Appeals, Second Circuit.
May 7, 1947.
Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
Natanson, Pack & Scholer of New York City, for Receivers, plaintifis-appellants-appellees.
Cravath, Swaine & Moore, of New York City (Albert R. Connelly, Samson Selig, Samuel L. Scholer and L. D. Simpson, all of New York City, of counsel), for inter-venor-appellee, Millard.
Borris M. Komar, of New York City (David L. Sprung, of New York City, of counsel), for intervenor-appellant, Tillman.
Davis Polk Wardwell Sunderland & Kiendl, of New York City (John W. Davis, Ralph M. Carson, William C. Cannon, Francis W. Phillips, Edward J. McGratty, Jr. and William R. Meagher, all of New York City, of counsel), for Guaranty Trust Co. as appellant-appellee in the U. S. action and appellee-appellant in the receivers’ action.
John F, X. McGohey and Daniel • M. Sandomire, both of New York City (John F. Sonnett and Paul A. Sweeney, both of Washington, D.C., and Alexander N. Sack, Howard N. Meyer, Louis W. Bookheim, Jr., Lester S. Jayson and Joseph K. Reich-bart, all of New York City, of counsel), for the United States.
FRANK, Circuit Judge.
The facts are amply stated in the very able opinion of Judge Rifkind, D.C., 58 F. Supp. 623. We agree with that opinion.
We do not, however, entirely agree with the trial judge with respect to the interest. See D.C., 60 F.Supp. 103. He held that interest on the deposits should be computed at the contracted rates up to June 16, 1933, the effective date of the Banking Act of 1933, § 11(b), 12 U.S.C.A. § 371a, prohibiting the payment of interest on demand deposits by member banks of the Federal Reserve System; and that interest, after the date when the actions were commenced, should be computed at 4%. We accept these conclusions, except as to the 4% rate.
The judge reasoned thus: (1) Had the suits been brought by the depositor, the Russo-Asiatic Bank, or by the Russian Government, the rate, after breach, would have been at 6%, this being the rate prescribed by the New York statutes as to contracts made and to be performed in New York. (2) But, because the claims had been transferred to the United States, Royal Indemnity Co. v. United States, 313 U.S. 289, 296, 61 S.Ct. 995, 997, 85 L.Ed. 1361, applied, and required the determination of the interest as damages for delay, regardless of the local statute.
We think the Royal Indemnity case in-apposite. There a federal collector of internal revenue had accepted a surety bond filed with him by a taxpayer to accompany a claim for abatement of income tax. The Commissioner of Internal Revenue in part rejected the abatement claim and demanded the unpaid amount of the tax, together with interest. The taxpayer did not pay the interest. In a suit against the surety for the interest, the Court held that “the rule governing the interest to be recovered as damages for delayed payment of a contractual obligation to the United States is not controlled by state statute or local common law. In the absence of an applicable federal statute it is for the federal courts to determine, according to their own criteria, the appropriate measure of damage, expressed in terms of interest, for nonpayment of the amount found to be due.” The Court cited Board of County Commissioners v. United States, 308 U.S. 343, 350, 352, 60 S.Ct. 285, 84 L.Ed. 313. There the United States brought suit, on behalf of an Indian, for recovery of taxes paid to a county. The law of the state precluded recovery of interest on taxes illegally collected. The Court (308 U.S. 350, 60 S.Ct. 288) said, “In ordinary suits where the Government seeks, as between itself and a private litigant, to enforce a money claim ultimately derived from a federal Irnvp- * * * this Court has chosen that rule as to interest which comports best with general notions of equity.” As to interest on the claim in question, the Court held that the state law was inapplicable, stating that, in such cases, “the state law has been absorbed, as it were, as the governing federal rule not because state law was the source of the right but because recognition of state interests was not deemed inconsistent with federal policy.” We think, therefore, that the Royal Indemnity doctrine must be limited to suits to enforce money claims “ultimately derived from a federal law. This interpretation is borne out in subsequent cases in which the Royal Indemnity case has been cited. Thus it was cited in Prudence Corporation v. Geist, 316 U.S. 89, 95, 62 S.Ct. 978, 982, 86 L.Ed. 1293, to support the proposition that in “the interpretation and application of federal statutes, federal not local law applies.” So, too, it was cited in Clearfield Trust Co. v. United States, 318 U.S. 363, 366, 63 S.Ct. 573, 575, 87 L.Ed. 838, which related to “the rights and duties of the United States on commercial paper which it issues.”
In the instant case, the claims did not “ultimately derive from a federal law” or from a contract made between the bank and the United States. Here the United States is, in effect, an assignee of the Russian government which, in turn, acquired the claims from the defendant’s depositor. The rights thus derive from contracts made between that depositor and the defendant. Accordingly, we hold that the state statute governs and that the proper rate of interest from the date of the breach was 6%.
The United States argues that the breach occurred at least as early as 1918, when the defendant, by entries on its books, purported to assert that it no longer owed anything on account of the deposits. We cannot agree. As the deposits were debts payable on demand, nothing was due and payable until a demand. We agree with the trial judge that the demand of the refugee directors of the Russo-Asiatic Bank was not effective. Accordingly, no effective demand was made until the United States instituted the present actions.
It has been held in New York that a trustee or other fiduciary may be liable for conversion of money, even if it is not earmarked. This seems to us to be the explanation of cases cited by the United States, for, in each of those cases, the bank appears to have knowingly participated in or aided such a‘conversion, and in New York the rule is that interest is allowed as a matter of right in cases of conversion. We find no New York decisions to the effect that, absent any fiduciary relation or participation in a fiduciary’s breach of his obligation, a bank is guilty of conversion merely- because it makes entries on its books showing a cancellation of all or any part of its obligations to a general depositor, when the fact of such conduct has not been communicated to the depositor.
Modified on appeals of the United States in the actions brought by it; affirmed on all the other appeals.
Emphasis added.
Of. Holmberg v. Armbrecht, 327 U.S. 392, 06 S.Ct. 582, 90 U.Ed. 743, citing Board of Commissioners v. United States.
Ho said (60 F.Supp. at pages 705, 106) : “The plaintiff advances two earlier alternative dates: (1) the date of the defendant’s refusal to pay on demand of the refugee directors; (2) the date of tho acquisition of the claims by the United States through the Litvinov Assignment. Neither of these positions is, in my judgment, valid. Tho demand of the refugee directors does not rise to the dignity of a transaction ‘valid when entered into,’ Guaranty Trust Co. v. United States, 1938, 304 U.S. 126, 140, [58 S.Ct. 785, 82 L.Ed. 1224] so as to be given effect after recognition of Soviet Russia, for the purpose of starting an interest liability in favor of the United States, especially when the claim of the United States is incompatible with the claim asserted by the refugee directors. Nor can the refusal to pay on demand of the refugee directors justify the contention of the United States that, when it acquired the claims, a demand was futile, Tillman v. Guaranty Trust Co. of New York, 1930, 253 N.Y. 295, 171 N.E. 61. Recognition of Russia and tho execution and delivery of the Litvinov Assignment were major events full of significance. From tho fact that tho directors’ demand was refused prior to them tho inference may not be drawn that it would again ho refused if made by the United States after their occurrence.”
Even assuming, arguendo, that there can be an anticipatory breach of an obligation to pay money, the doctrine of anticipatory breach could not be operative here, because no notice of intention not to pay was communicated by the defendant to the Russian government.
Wryrnn v. Pistor, 141 App.Div. 104, 125 N.Y.S. 970; George Haiss Mfg. Co. v. Becker, 198 App.Div. 123, 189 N.Y.S. 791; Muller v. Naumann, 85 App.Div. 337, 83 N.Y.S. 488; cf. Gordon v. Hostetter, 37 N.Y. 99; People ex rel. Zotti v. Flynn, 135 App.Div. 276, 120 N.Y.S. 511; Miller v. Miles, 58 App.Div. 103, 68 N.Y.S. 565.
Holden v. N. Y. & Erie Bank, 72 N.Y. 286; Reynolds El. Co. v. Merchants Nat. Bank, 55 App.Div. 1, 67 N.Y.S. 397; cf. Cahan v. Empire Trust Co., 2 Cir., 9 F. 2d 713, 719, reversed on other grounds, 274 U.S. 473, 47 S.Ct. 661, 71 L.Ed. 1158, 57 A.L.R. 921.
Cf. Muller v. Naumann, 85 App.Div. 337, 83 N.Y.S. 488.
Cahan v. Empire Trust Co., 2 Cir., 9 F.2d 713, 719; Einstein v. Dunn, 61 App.Div. 195, 70 N.Y.S. 520, affirmed 171 N.Y. 648, 63 N.E. 1116; George Haiss Mfg. Co. v. Becker, 198 App.Div. 123, 189 N.Y.S. 791.
Cf. Southwick v. First Nat. Bank, 84 N.Y. 420, 431.
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_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.
Daisy B. STONE, Appellee, v. Richard Fielding STONE, III, Appellant. Daisy B. STONE, Appellant, v. Edley Craighill Nicholas STONE, Appellee.
Nos. 71-1995, 71-1996.
United States Court of Appeals, Fourth Circuit.
Argued March 9, 1972.
Decided May 23, 1972.
William Rosenberger, Jr., Lynchburg, Va., for Richard Fielding Stone, III, and Edley C. N. Stone.
Richard F. Stone, Lynchburg, Va., for Daisy B. Stone.
Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.
DONALD RUSSELL, Circuit Judge:
A grandson, to whom a grandmother transferred certain corporate stocks many years earlier, appeals from a judgment, entered after trial without a jury, finding that such transfer, though absolute in terms, was in fact in trust, and that, by the terms of the trust, as subsequently reduced to writing some fourteen years after the gifts began, the donor had the right to terminate, and had terminated the trust, resulting in a reversion of the remaining res to the donor. The judgment, challenged by this appeal, also included a provision requiring the grandson to convey all stocks then held by him, which had previously been transferred to him by the grandmother, over to his father as trustee. In the same action, tried along with the proceeding to establish a trust, the grandmother sued her former daughter-in-law for conspiracy in allegedly assisting the granddaughter to convert to her personal use property subject to a trust. The District Court, 330 F.Supp. 1026, dismissed the conspiracy action. The grandson appeals from the finding that he held the stock in trust and the grandmother appeals the dismissal of her conspiracy action. We affirm the dismissal of the conspiracy suit and reverse the action to impress a trust.
The facts are not substantially in dispute. From time to time, beginning in 1951, and continuing until 1964, the grandmother transferred, or purchased with instructions to transfer, to her granddaughter and her grandson, both children of her son and daughter-in-law, various corporate stocks. At the time the transfers began, the grandson was five years of age. All stocks, at the direction of the grandmother, were registered in the names of the granddaughter and grandson as absolute owners, without any words of restraint or trust. The stock certificates, when issued, were mailed direct to the grandchildren at their home. The stocks were later placed by the father in a safety deposit box to which originally both mother and father had a key. The motive for the transfers, as testified to by the grandmother-donor, was to provide for the education of the grandchildren. She did not, however, communicate this purpose to any one at the time. Nor did she anticipate or consider any possibility of a later reverter to her of any part of the gifts. She testified she understood that, by the unequivocal transfers to her grandchildren, she was placing the stocks under their management and control. Until 1965, the bulk of all dividends and the proceeds of sales of some of the stock were received and expended for the support, benefit or education of the grandchildren. During this time, certain of the stocks were hypothecated by the granddaughter and later sold, with the knowledge of the father. The grandmother did not request or receive any accounting of the use of either the stocks or the dividends thereon. In 1964, the father and mother were divorced and the father and grandson became estranged. At this point, fourteen years after she had begun the gifts the grandmother, along with her son, the father of the two grandchildren, executed a written trust agreement. In this instrument, prepared by the father-son, the father-son was named trustee of the property conveyed absolutely to the grandchildren years earlier. This trust instrument provided that the trust could only be used for the education of the grandchildren. The trustee was given the right to select the college to be attended by the grandchildren, although at the time the granddaughter had attained her majority, had finished college and was married. Finally, the donor was given the right to terminate at her discretion the trust, with any part of the trust remaining reverting to her. At the time this instrument was executed, the granddaughter had hypothecated the remaining stocks transferred to her by her grandmother. In fact, it was this hypothecation which constituted the basis of the grandmother’s action against her former daughter-in-law in conspiracy. On these facts, the District Court found a valid trust. Such a conclusion, in our opinion, is clearly erroneous.
The validity of the finding of a trust in this case, as made by the District Court, is the key issue and is determinable by Virginia law. Under such law, in keeping with the general rule elsewhere, a trust in personalty may be established by parol, but “the burden of proving the existence of a trust (in personalty) rests on the person asserting it, * * Darden v. Darden (C.C.A.Va.1945) 152 F.2d 208, 209. To create a trust in personalty, the intention must be manifested by a declaration, which, while not necessarily expressed in formal words (Tate v. Hain (1943) 181 Va. 402, 25 S.E.2d 321, 324), “must be unequivocal and explicit” and which, in its expression of the nature and terms- of the trust, must be proved by “evidence clear and convincing”. Young v. Holland (1915) 117 Va. 433, 84 S.E. 637, 638; Virginia Trust Co. v. Minar (1942) 179 Va. 377, 18 S.E.2d 879, 883; Ingles v. Greear (1943) 181 Va. 838, 27 S.E.2d 222, 223. “If the language is so vague, indefinite, or equivocal that any one of the elements is left in uncertainty, the trust must fail.” Woods v. Stull (1944) 182 Va. 888, 30 S.E.2d 675, 682; In Re Wallace’s Estate (1934) 316 Pa. 148, 174 A. 397, 398-399. Moreover, “The act creating the trust must be consummated, and not rest in mere intention” (Warner v. Burlington Federal Savings & Loan Ass’n. (Vt.1946) 114 Vt. 463, 49 A.2d 93, at p. 96), must represent a completed, executed transaction in praesenti, and normally must involve delivery of the title in the trust res to the trustee or be the equivalent of such delivery (Schenker v. Moodhe (1938) 175 Md. 193, 200 A. 727, 730). The intention cannot be manifested by a subsequent declaration made or act done after the gifts, absolute on their face, have been made. Brame v. Read (1923) 136 Va. 219, 118 S.E. 117, 119; Showalter v. Miller (1941) 70 Ohio App. 232, 45 N. E.2d 774, 775.
While it is true the creation of a trust need not be communicated either to the beneficiary or the trustee (Sections 35 and 36, Restatement of Trusts, 2d Ed.), it is generally not permissible that the trustee and beneficiary be the same. See, Annotation, 151 A.L.R. 1287; Gray v. Harriet Lane Home for Invalid Children (1949) 192 Md. 251, 64 A.2d 102, 107. And this is particularly true, when the trust res has been recorded in one’s name as owner, as is the case here, where there is a presumption against any parole trust. Doan v. Vestry of Parish of Ascension (Md. 1906) 103 Md. 662, 64 A. 314, 315-316, 7 L.R.A.,N.S., 1119, 115 Am.St.Rep. 379; Murphy v. Cartwright (5th Cir. 1953) 202 F.2d 71, 74. Nor does a statement of the purpose for which a gift is made “show an intent to make the donee a trustee to accomplish that purpose.” Bogert on Trusts (2d Ed.) sec. 46, p. 326. “Indication of motives, although they are motives for making a gift, does not suffice to manifest intention to create a trust.” 54 Am.Juris., sec. 53, p. 64. Thus, in Richardson v. Seevers’ Adm’r. (1888) 84 Va. 259, 4 S.E. 712, 717, it was held that a devise “for the benefit of his wife and children” was insufficient to create a trust, the quoted words merely indicating “the motive of the gift to the father”. Specifically, a gift expressed as being made “for educational purposes”, which is the claim for the gifts in this case, is not to be construed as engrafting a trust upon the gift “but merely as an expression of a desire on the part of the testator that, if possible, the property be so used.” Watts v. Finley (1939) 187 Ga. 629, 1 S. E.2d 723, 727; Haley v. Heirs of Somerville (Fla.App.1958) 108 So.2d 780, 782; In Re Cunningham’s Estate (1940) 340 Pa. 265, 16 A.2d 712, 715.
It is plain from this review of the authorities that any finding of a trust herein cannot be justified. When made, the donor had no idea to create a trust; she actually testified the idea developed as she began to appreciate the amount of the gifts made. She evidenced her intention that her gifts be absolute and not in trust by registering the stocks in her grandchildren’s names, without any indication of a trust. The mere fact that she was prompted by the desire to provide for the grandchildren’s education, while explaining her “motive”, did not impose any trust on the property given. As a matter of fact, it is rather clear the whole idea of a trust developed after all the gifts had been completed and was the outcome of the marital break-up of the son’s marriage and the disagreement between the father and son. It was at this point that a written trust was prepared. As written the trust agreement evidenced its contemporaneous character and rebutted any notion that it was memorializing any clearly formulated previous trust. It provided for a trustee when the grandmother conceded she had no trustee in mind at the time she made her gifts. The alleged trustee was not informed that a delivery in trust was being made to him when the gifts were made; actually, there was no bona fide delivery to the alleged trustee of any trust res at the time the trust was allegedly created. The written agreement required annual reports. The grandmother in her testimony indicated that she originally expected no accounting. The written agreement provided that the schools attended by the grandchildren must be approved by the trustee. It included a reverter clause, something the grandmother never claimed originally; in fact, she admitted that, when she began her gifts, she expected no reversion. Without reviewing in greater detail, it is too obvious for serious argument that the written instrument was an afterthought. The grandmother failed completely in her proof to establish by clear and convincing evidence that the grandchildren took their gifts in trust and the finding of the District Court to the contrary is clearly erroneous. The complaint of the plaintiff-grandmother against the grandson should be dismissed and the order directing the grandson to convey any of the corporate stocks given him by his grandmother to his father as trustee should be vacated.
Since the effect of our ruling on the issue of a trust vel non fixes ownership in the granddaughter of the stocks transferred to her, it is obvious that no action for conspiracy can lie against the erstwhile daughter-in-law for aiding the granddaughter in converting such stock and the order of the District Court, in dismissing the conspiracy action is clearly right.
Affirmed in part and reversed in part.
. To the same effect are, Johnson v. Johnson (1962) 256 N.C. 485, 124 S.E.2d 172, 173; Clark v. Connor (1960) 253 N.C. 515, 117 S.E.2d 465, 468; Warner v. Burlington Federal Savings & Loan Ass’n., supra, 49 A.2d at p. 96.
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
|
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.
ICICLE SEAFOODS, INC. v. WORTHINGTON et al.
No. 85-195.
Argued February 25, 1986
Decided April 21, 1986
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, Powell, and O’Connor, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 715.
Clemens H. Barnes argued the cause for petitioner. With him on the briefs were James D. Rolfe and Erik Rosenquist.
Carson F. Eller argued the cause and filed a brief for respondents.
Eileen Madrid filed a brief for Maryland Casualty Co. as amicus curiae.
Justice Rehnquist
delivered the opinion of the Court.
Respondents sued their employer, petitioner Icicle Sea-foods, Inc., to recover overtime benefits to which they thought they were entitled under the Fair Labor Standards Act (FLSA), 29 U. S. C. § 207(a)(1). After a 2-day trial, the United States District Court for the Western District of Washington held that respondents were excluded from the overtime benefits of the FLSA by 29 U. S. C. § 213(b)(6), which excludes “any employee employed as a seaman.” Reviewing this issue under a “de novo” standard of review, the Court of Appeals for the Ninth Circuit reversed the judgment of the District Court, holding that respondents were not “seamen,” but instead were industrial maintenance employees on a barge that processed fish caught by a fishing fleet in the coastal waters of the Pacific Northwest. 774 F. 2d 349 (1985). We granted certiorari to consider whether the Court of Appeals applied the appropriate standard of review in passing on the District Court’s judgment. 474 U. S. 900 (1985).
The District Court made the following pertinent findings of fact related to whether respondents were “seamen” within the meaning of § 213(b)(6):
“2. Defendant Icicle Seafoods owned and operated a seafood processing vessel named the ARCTIC STAR. Each of the Plaintiffs worked for Defendant on board the ARCTIC STAR as members of the Engineering Department .... The ARCTIC STAR is a nonself-propelled barge which is moved from place to place with the aid of a tow boat, and is located throughout the waters of Alaska or Washington, depending on the season and type of seafood being caught and processed.
“7. None of the Plaintiffs were members of the Processing Crew on board the ARCTIC STAR. The Processing Crew performed all the hands-on processing or packing of the fish or shellfish. Plaintiffs were members of the Engineering Department on board the ARCTIC STAR, considered themselves very distinct from the Processing Crew, and did not perform any hands-on processing or packing of fish or shellfish. As members of the Engineering Department, Plaintiffs were responsible for maintaining all systems for support and continuous operation of the vessel while at moorage or underway. Although working in shifts, the Plaintiffs had to be available on call 24 hours a day to perform work at a moment’s notice if necessary to keep the vessel operating. Even though the plaintiffs were not licensed by the Coast Guard as engineers or members of an engineering department, each of the Plaintiffs performed tasks which conformed to those expected of Coast Guard licensed personnel. The very description of the Plaintiff’s work is that of a marine engineer or member of an engineering department. In summary, each of the Plaintiffs were members of the crew of the ARCTIC STAR and performed work which was maritime in character and rendered while the ARCTIC STAR was in navigable waters. Each of the Plaintiff’s employment was that of a seaman.” App. A-3 to Pet. for Cert. 2-3, 5-6.
The Court of Appeals read the District Court’s opinion as holding that respondents were “seamen” under § 213(b)(6) because the evidence showed that they “performed work of a maritime character on navigable waters.” 774 F, 2d, at 351.
In reviewing this conclusion, the Court of Appeals initially pointed out that it and other Courts of Appeals have applied conflicting standards of review to claims of exclusion from the FLSA, and attributed these different approaches to three cases decided by this Court within a few months of each other during its October 1946 Term. Ibid. The Court of Appeals recognized that in Walling v. General Industries Co., 380 U. S. 545 (1947), this Court held that whether an employee falls within the exclusion for “executives” under 29 U. S. C. § 213(a)(1) is a factual question subject to the “clearly erroneous” standard of review set forth in Rule 52(a) of the Federal Rules of Civil Procedure. 774 F. 2d, at 352. But it thought that in Levinson v. Speetor Motor Service, 330 U. S. 649 (1947), and Rutherford Ford Corp. v. McComb, 331 U. S. 722 (1947), this Court appeared to apply a “de novo” standard of review to whether an employee falls within an exclusion for employees covered by the Motor Carrier Act and to whether someone is an independent contractor rather than an employee. 774 F. 2d, at 352. The Court of Appeals reconciled its reading of these cases on grounds that the regulations implementing the provisions at issue in Levinson and Rutherford were “illustrative and general,” whereas those in Walling were “specific,” and that the trial court’s findings in Walling were based on the conflicting testimony of witnesses. Ibid.
We think that neither Levinson nor Rutherford should be read to depart from the rule laid down in Walling. Levinson involved a case that was brought to this Court from the Supreme Court of Illinois, and that court had accepted the factual findings made by the Illinois Appellate Court. But state courts are not required to apply Rule 52(a) — a rule of federal civil procedure — to their own appellate system for reviewing factual determinations of trial courts. Rutherford came up through the federal court system, and this Court held that the District Court erroneously based its conclusion that particular employees were independent contractors on “isolated factors” in the employee’s relationship with the employer. 331 U. S., at 729-730. We set forth a lengthy summary of the facts without indicating the source for such a summary; but a fair reading of the opinion indicates that we were focusing on a legal question, and not on the allocation of factfinding responsibilities between district courts and courts of appeals. We therefore reaffirm our holding in Walling that the facts necessary to a proper determination of the legal question whether an exemption to the FLSA applies in a particular case should be reviewed by the courts of appeals pursuant to Rule 52(a), like the facts in other civil bench-tried litigation in federal courts.
The Court of Appeals in this case proposed to “apply a de novo standard of review to the application of the exemption to the facts and [to] review the facts under a clearly erroneous standard.” 774 F. 2d, at 352, citing United States v. McConney, 728 F. 2d 1195, 1202 (CA9) (en banc), cert. denied, 469 U. S. 824 (1984). But nowhere in its opinion did the court ever mention any of the factual findings of the District Court, much less discuss or analyze them. The Court of Appeals seems to have believed that the District Court applied the wrong legal standard for what constitutes a “seaman” under § 213(b)(6). Whereas the District Court concluded that respondents were seamen because they performed work of a maritime character on navigable waters, see App. A-3 to Pet. for Cert. 6, the Court of Appeals held that under the pertinent regulations, the critical factor for determining whether an employee on a vessel is a seaman is whether his “duties primarily aid navigation of the vessel.” 774 F. 2d, at 353; see also 29 CFR §§783.31, 783.33, 783.36 (1985). The Court of Appeals reviewed the record independently and found that the “dominant employment” of the respondents was “industrial maintenance,” and that the “maritime work” that the respondents performed took but a small portion of their work time. 774 F. 2d, at 353. It therefore concluded that respondents were industrial maintenance employees and not seamen. Ibid.
We think that the Court of Appeals was mistaken to engage in such factfinding. The District Court found that “each of the [respondents] . . . performed work which was maritime in character and rendered while the ARCTIC STAR was in navigable waters.” App. A-3 to Pet. for Cert. 6. But it made no finding that the “maritime work” was “incidental and occasional, taking but a small portion of the work time.” 774 F. 2d, at 353. The question of how the respondents spent their working time on board the Arctic Star is a question of fact. The question whether their particular activities excluded them from the overtime benefits of the FLSA is a question of law which both parties concede is governed by the pertinent regulations promulgated by the Wage and Hour Administrator. See 29 CFR pt. 783 (1985). If the Court of Appeals believed that the District Court had failed to make findings of fact essential to a proper resolution of the legal question, it should have remanded to the District Court to make those findings. If it was of the view that the findings of the District Court were “clearly erroneous” within the meaning of Rule 52(a), it could have set them aside on that basis. If it believed that the District Court’s factual findings were unassailable, but that the proper rule of law was misapplied to those findings, it could have reversed the District Court’s judgment. But it should not simply have made factual findings on its own. As we stated in Anderson v. Bessemer City, 470 U. S. 564, 574-575 (1985):
“The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.”
The judgment of the Court of Appeals is accordingly vacated, and the cause is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
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.
Frank P. MORANO, Appellant, v. U. S. NAVAL HOSPITAL.
No. 18860.
United States Court of Appeals, Third Circuit.
Argued Nov. 19, 1970.
Decided Feb. 18, 1971.
Nolan N. Atkinson, Zack & Myers, Philadelphia, Pa., for appellant.
Barry W. Kerchner, Asst. U.S. Atty., Philadelphia, Pa. (Louis C. Bechtle, U.S.. Atty., Philadelphia, Pa., on the brief), for appellee.
Before HASTIE, Chief Judge, and McLAUGHLIN and ADAMS, Circuit Judges.
OPINION OF THE COURT
HASTIE, Chief Judge.
This is an action for negligent personal injury brought under the Federal Tort Claims Act, 28 U.S.C. ch. 171. The complaint, alleging that the plaintiff was injured through the negligence of a government doctor on August 8, 1967, was filed on August 7, 1969. The “United States Naval Hospital,” admittedly not a suable party, rather than the United States was named as the defendant. Process was served upon the Attorney General and the United States Attorney of the District.
The government filed a motion to dismiss and thereafter, by motion filed February 4, 1970, the plaintiff sought to correct his original error by substituting the United States as the party defendant. But because Rule 15(c) provides that an amendment changing the party defendant shall relate back to the original filing “within the period provided by law for commencing the action,” the court denied the motion to amend and granted the motion to dismiss the complaint, apparently with prejudice.
We do not reach the question of the application and interpretation of Rule 15(c) upon which the district court focused. For resort to that rule was bottomed on an assumption that the statute of limitations expired two years after August 8, 1967, the date of injury. The provisions of the Tort Claims Act and the present record do not justify that assumption.
In 1966, before the occurrence upon which this action is based, Congress amended the applicable statute of limitations, 28 U.S.C. § 2401(b), to read as follows:
“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”
It will be observed that it is the presentation of a claim in writing to the appropriate agency, not the filing of a suit, that must be done within two years.
The committee report accompanying this proposed amendment explained the reason for it. “This section amends the provisions of section 2401, the limitations section, to conform the section to the amendments added by the bill.” S. Rep. No. 1327, 89th Cong., 2d Sess., 1966 U.S.Code Cong. & Ad.News 2515, 2522. In particular, it was intended to conform with the amended 28 U.S.C.A. § 2675(a), which states that an action such as that involved in the instant case:
“shall not be instituted * * * unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.”
Both of these amendments are applicable to a claim, such as plaintiff’s, accruing six months or more after July 18, 1966. Pub.L. 89-506, sec. 10, 80 Stat. 306, 308.
The record as it has reached this court is unclear and shows disputed questions of fact concerning the details of plaintiff’s administrative claim, and it will therefore be necessary to remand the case for appropriate factual determinations. Apparently plaintiff first attempted to present his claim on September 10, 1968, but it is denied that this claim was ever received by the proper authorities. In oral argument, Government counsel stated, as had been alleged in the Government’s motion to dismiss, that the claim was first filed on March 24, 1969, and that no determination had been made upon that claim as of the time of the institution of this suit.
Should the court on remand find that the claim of September 10, 1968 was properly “presented * * * to the appropriate Federal agency,” this action would not be barred by the statute of limitations. For § 2675(a) empowers a claimant to treat the agency’s failure to act within six months as “a final denial of the claim.” The six months having expired March 10, 1969, nothing in § 2401 barred plaintiff from instituting an action at the time of the attempted amendment and the motion to amend retroactively should be allowed.
If, on the other hand, the court on remand finds that a claim within the terms of § 2675(a) was first made on or about March 24, 1969, the case at bar was commenced prematurely. For § 2675(a) gave plaintiff no authority to sue as of August 7, 1969, since neither an administrative denial nor a six-month period had intervened. But then we think it would be appropriate to consider whether the attempted amendment which would for the first time have made the United States a defendant was filed after the claim had been pending undecided before the Federal agency for more than six months. In that event, the amendment should be allowed, without relation back to August 1969, as a timely beginning of a suit against the United States.
Of course, in the unlikely event that, contrary to the contention of either party, no claim satisfying the requirements of § 2401(b) was made within two years after the wrong, the claim is now barred.
The order denying the substitution of the United States as a party defendant and dismissing the action will be vacated and the cause remanded for further proceedings in accordance with this opinion.
. 28 U.S.C. § 2679 precludes such a suit against a Federal agency, as distinguished from the United States.
. “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attemped to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”
. In its order dismissing the complaint, the court expressly relied upon Evans v. United States Veterans Administration Hospital, 2d Cir. 1968, 391 F.2d 261, cert. denied, 393 U.S. 1040, 89 S.Ct. 667, 21 L.Ed.2d 589, a case that turned upon the interpretation of Rule 15(c).
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_respondent
|
021
|
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.
McNEESE et al. v. BOARD OF EDUCATION FOR COMMUNITY UNIT SCHOOL DISTRICT 187 CAHOKIA, ILLINOIS, et al.
No. 480.
Argued April 23, 1963.
Decided June 3, 1963.
Raymond E. Harth argued the cause for petitioners. With him on the. brief were John W. Rogers, Earl E. Strayhorn, Jack Greenberg, Constance Baker Motley and James M. Nabrit III.
Howard Boman and Robert H. Reiter argued the cause and filed a brief for respondents.
Alex Elson filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
Mr. Justice Douglas
delivered the opinion of the Court.
This suit, which invokes the jurisdiction of the District Court under the Civil Rights Act, is brought to vindicate the rights of plaintiffs who are Negro students in the Illinois public school system. The complaint alleges that Chenot School, St. Clair County, was built and its attendance area boundaries drawn in 1957 so as to make it exclusively a Negro school. It alleges that due to overcrowded conditions in an adjacent' school, Centreville', which is in the same school district, all fifth and sixth grade classes in that school (containing 97% white students) were transferred to Chenot and kept segregated there. It alleges that enrollment at Chenot consists of 251 Negroes and 254 whites, all of the whites being in the group transferred from Centreville-. It alleges that Negro - students, with the exception of the eight transferred from Centreville, attend classes in one part of the school, separate and apart from the whites, and are compelled to use entrances and exits separate from the whites'. It alleges that Chenot school is a segregated school in conflict with the Constitution of the United States; and it prays for e,quitable relief, including registration of.plaintiffs in racially integrated schools pursuant to a plan approved by the District Court.
Respondents moved to dismiss the complaint on the ground, inter alia, that the plaintiffs had not exhausted the administrative remedies provided by Illinois law. The District Court granted the motion. 199 F. Supp 403. The Court of Appeals affirmed. 305 F. 2d 783. The case is here on a petition for a writ of certiorari which we granted. 371 U. S. 933.
The administrative remedy,, which the lower courts held plaintiffs must first exhaust, is contained in the Illinois School Code. Ill. Rev. Stat. 1961, c. 122, § 22-19. By that Code, 50 residents of a school district or 10°/c, whichever is lesser, can file a complaint with the Superintendent of Public Instruction alleging that a pupil has been segregated in a school on account of race. The Superintendent, on notice to the school board, puts the complaint down for hearing within a prescribed time. After hearing, the Superintendent notifies the parties of his decision and, if he decides that the allegations in the complaint are “substantially correct,” requests the Attorney General to bring suit to rectify the practice. Any final decision of the Superintendent may be reviewed by the courts. Moreover, under the School Code a school district may not file a claim for state aid unléss it files with the Superintendent a sworn statement that the school district has complied with the constitutional and statutory provisions outlawing segregation in .the public schools. See Ill. Const., Art. VIII, § 1; School Code §§ 10-22.5, 22-11, 22-12.
Respondents, while saying that Illinois law does not require the Superintendent to refuse to certify claims for state aid if he finds the particular school board practices segregation, contends that the Superintendent would have the power to withhold his certificate and as a practical matter would do so.
We have previously indicated that relief under the Civil Rights Act may not be defeated because relief was not first' sought under state law which provided a remedy. We stated in Monroe v. Pape, 365 U. S. 167, 183:
“It is no answer that the State has. a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.”
The cause of action alleged here is pleaded in terms of R. S. § 1979, 42 U. S. C. § 1983, which reads:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
. That is the statute that was involved in Monroe v. Pape, supra; and we reviewed its history at length in that case. 365 U. S., at 171 et seq. The purposes were several-fold — to override certain kinds of state laws, to provide a remedy where state law was inadequate, “to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice” (id., 174), and to provide a remedy in the federal courts supplementary to any remedy any State might have. Id., 180-183.
We would, defeat those purposes if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court. The First Congress created federal courts as the chief — though not always the exclusive — tribunals for enforcement of federal rights. The heads of jurisdiction of the District Court, at the start limited, are now numerous. In the beginning the main concern was the security of commercial intercourse, which “parochial prejudice” might endanger.
“Maritime commerce was then the jugular vein of the Thirteen States. The need for a body of law applicable throughout the nation was recognized by every shade of opinion in the Constitutional Convention. From this recognition it was an easy step to entrust the development of such law to a distinctive system of courts, administering the same doctrines, following the same procedure, and subject to the same nationalist influences.”
As the beneficiaries of the Fourteenth and Fifteenth Amendments became articulate and the nationalist needs multiplied, the heads of jurisdiction of the District Courts increased, and that increase was a measure of the broadening federal domain in the area of individual rights.
Where strands of local law are woven into the‘case that is before the federal court, we have directed a District Court to refrain temporarily from exercising its jurisdiction until a suit could be brought in the state court. See Railroad Comm’n v. Pullman Co., 312 U. S. 496; Thompson v. Magnolia Co., 309 U. S. 478; Harrison v. NAACP, 360 U. S. 167. Thus we have stayed the hands of a Federal District Court when it sought to enjoin enforcement of a state administrative order enforcing state law, since any federal question could be reviewed when the case came here through the hierarchy of state courts. Burford v. Sun Oil Co., 319 U. S. 315. The variations on the theme have been numerous.
We have, however, in the present case no underlying issue of state law controlling this litigation. Th^,right alleged is as plainly federal in origin and nature as those vindicated in Brown v. Board of Education, 347 U. S. 483. Nor is the federal right in any way entangled in a skein of state law that must be untangled before the federal case can proceed. For petitioners assert that respondents have been and are depriving them of rights protected by the Fourteenth Amendment. It is immaterial whether respondents’ conduct is legal or illegal as a matter of state law. Monroe v. Pape, supra, at 171-187. Such claims are entitled to be adjudicated in the federal courts. Monroe v. Pape, supra, at 183; Gayle v. Browder, 352 U. S. 903, affirming 142 F. Supp. 707; Borders v. Rippy, 247 F. 2d 268, 271. Cf., e. g., Lane v. Wilson, 307 U. S. 268; Smith v. Allwright, 321 U. S. 649; Schnell v. Davis, 336 U. S. 933, affirming 81 F. Supp. 872; Turner v. Memphis, 369 U. S. 350.
Moreover, it is by no means clear that Illinois law provides petitioners with an administrative remedy suffi.ciently adequate to preclude prior resort to á federal court for protection of their federal rights. Under § 22-19 of the Illinois School Code petitioners could file a complaint alleging discrimination if they could obtain the subscription of the lesser of 50 residents or 10% of the school district. The Superintendent would then be required to hold a hearing on the matter. And,
“If he so determines [that the allegations of the complaint are substantially correct], he shall request the Attorney General to apply to the appropriate circuit court for such injunctive or other relief as may be necessary to rectify the practice complained of.” (Emphasis added.)
The Superintendent himself apparently has no power to order corrective action. In other words, his “only function ... is to investigate, recommend and report. . . . [He] can give no remedy. . . . [He] can make no controlling finding of law or fact. . . . [His] recommendation need not be followed by any court ... or executive officer.” United States Alkali Export Assn. v. United States, 325 U. S. 196, 210. It would be anomalous to conclude that such a remedy forecloses suit in the federal courts when the most it could produce is a state court action that would have no such effect. See Lane v. Wilson, supra, at 274—275; Monroe v. Pape, supra.
Respondents urge, however, that prior resort to the Superintendent is necessary because by § 2-3.25 he can revoke recognition of a school district guilty of violating pupils’ Fourteenth Amendment rights, and recognition is a necessary condition to state financial aid. Furthermore, state aid cannot be received by a district unless it submits a sworn statement that it does not discriminate between students “on account of color, creed, race or nationality.” §§ 10-22.5, 18-12. Respondents say that the Superintendent would not certify a district for state aid if he determined that its sworn statement was false. Apparently no Illinois cases have held that the Superintendent has authority to withhold funds once he has received an affidavit from the district, even if he determines that the affidavit is false. In any event, the withholding of state aid is at best only an indirect sanction of Fourteenth Amendment rights. When federal rights are subject to such tenuous protection, prior resort to a state proceeding is not necessary. See Hillsborough v. Cromwell, 326 U. S. 620, 625-626.
Reversed.
Federal jurisdiction is asserted under 28 U. S. C. § 1343, which . in material part reads as follows:
“The district courts shall ■ have original jurisdiction of any civil action authorized by law to be commenced by any person: ''
“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.”
General “arising under” jurisdiction was not conferred on federa' courts of first instance until passage of the Judiciary Act of 1875, 18 Stat. 470. See Hart and Wechsler, The Federal Courts and the Federal System, 727-733.
Frankfurter and Landis, The Business of the Supreme Court (1928), pp. 8-9.
Id., p. 7.
See Note, 59 Col. L. Rev. 749. Yet- where Congress creates a head of federal jurisdiction which entails a responsibility to adjudicate the claim on the basis of state law, viz., diversity of citizenship, as was true in Meredith v. Winter Haven, 320 U. S. 228, we hold that difficulties and perplexities of state law are no reason for referral of the problem to the state court:
“We are pointed to no public policy or interest which would be served by withholding from petitioners the benefit of the jurisdiction which Congress has created with the purpose that it should be availed of and' exercised subject only to such limitations as traditionally justify courts in declining, to exercise the jurisdiction which they possess. To remit the parties to the state courts is to delay further' the disposition of the litigation which has been pending for more than two years and which is.now ready for decision. It is to penalize petitioners for resorting to a jurisdiction which they were entitled to invoke, in the absence of any special circumstances which would warrant a refusal to exercise it.” Id., p. 237.
And we held in Kline v. Burke Construction Co., 260 U. S. 226, that, apart from contests over a res (Pennsylvania v. Williams, 294 U. S. 176), a suit in personam based on diversity of citizenship could continue in the federal court even though a suit on the same cause of action,had been started in the state court:
“Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case. The rule, therefore, has become generally established that where the action first brought is in personam and seeks only a personal judgment, another action for the same 'cause in another jurisdiction is not precluded.” Id., p. 230.
As well stated by Judge Murrah in Stapleton v. Mitchell, 60 F. Supp. 51, 55, appeal dismissed pursuant to stipulation, 326 U. S. 690: “We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.”
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_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.
Marshall P. SAFIR, Appellant, v. Robert J. BLACKWELL, Maritime Administrator, Maritime Administration, U. S. Department of Commerce, et al., Appellees.
No. 237, Docket 72-1753.
United States Court of Appeals, Second Circuit.
Argued Nov. 27, 1972.
Decided Nov. 29, 1972.
Marshall P. Safir, pro se.
Gilbert S. Fleischer, Atty. in Charge, Admiralty and Shipping Section, Dept, of Justice, New York City (Harlington Wood, Jr., Asst. Atty. Gen., Robert A. Morse, U. S. Atty., of counsel), for appel-lees Robert J. Blackwell, Maritime Administrator, and others.
Richard S. Salzman, Washington, D. C. (J. Franklin Fort, Kominers, Fort, Schlefer & Boyer, Washington, D. C., of counsel), for appellee Moore-McCormaek Lines, Inc.
Elmer C. Maddy, New York City (Kir-lin, Campbell & Keating, New York City, of counsel), for appellee United States Lines, Inc.
James N. Jacobi, Washington, D. C. (Kurrus & Jacobi, Washington, D. C., of counsel), for appellee American Export Lines, Inc.
Michael O. Finkelstein, New York City (Barrett, Knapp, Smith, Schapiro & Simon, New York City, Daniel H. Mar-golis, and Bergson, Borkland, Margolis & Adler, Washington, D. C., of counsel), for appellee Prudential-Grace Lines, Inc.
Before FRIENDLY, Chief Judge, and WATERMAN and HAYS, Circuit Judges.
PER CURIAM:
In this case, which is now here for the third time, see Safir v. Gibson, 417 F.2d 972 (2 Cir. 1969); Safir v. Gibson, 432 F.2d 137 (2 Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88 (1970), plaintiff Safir moved to require the ship operator defendants to pay into escrow moneys expected to become payable to them in consequence of the sale of certain American flag ships authorized by Public Law 92-296, 86 Stat. 140, which became effective May 17, 1972. The motion was based on plaintiff’s fear that the defendants might not be financially able to respond to a direction for the repayment of operating differential subsidies which may be made by the Maritime Administration Maritime Subsidy Board in the proceeding, Docket No. S. 243, instituted as a result of our first decision. The Assistant Secretary of the Board and of the Administration submitted an affidavit indicating'that the Government entertained no doubt of its ability to recover, by set-off or otherwise, any amounts that might ultimately be found to be repayable. Accepting this conclusion, the district court denied the requested relief.
The judge's order was well within his discretion; he was not bound to accept plaintiff’s assertions that the recoveries will run vastly beyond the sums recommended by the Chief Hearing Examiner in respect of three of the four ship operator defendants. We share plaintiff’s concern over the time that the Maritime Administration has taken to decide this matter, especially in light of the narrowing of the issues by our 1970 decision. However, we were advised at argument that, at long last, the matter has now been finally submitted, and we expect it to be promptly decided.
Plaintiff complains of a statement by the district judge that he would have no interest in any recovery by the Government. This statement was unnecessary to the decision and we have no occasion either to approve or to disapprove it.
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_direct1
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
Arthur BARY etc. v. UNITED STATES of America. Anna BARY v. UNITED STATES of America. Harold ZEPELIN etc. v. UNITED STATES of America. Lewis Martin JOHNSON v. UNITED STATES of America.
Nos. 5027 to 5030.
United States Court of Appeals, Tenth Circuit.
Nov. 16, 1954.
George R. Andersen, San Francisco, Cal., and Charles D. Montfort, Denver, Colo., for appellants.
Donald E. Kelley, U. S. Atty., and Robert Swanson, Asst. U. S. Atty., Denver, Colo., for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.
PER CURIAM.
Order denying motion for reduction of bail affirmed without written opinion.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_appel1_2_2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al., Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY et al., Appellees.
No. 21060.
United States Court of Appeals Fifth Circuit.
June 8, 1965.
Thomas W. McAliley, Alan R. Schwartz, Nichols, Gaither, Beckham, Colson & Spence, Miami, Fla., for appellant.
William P. Simmons, Jr., Shutts, Bowen, Simmons, Prevatt, Boureau & White, Miami, Fla., for appellee, Florida East Coast Ry. Co.
Granville M. Alley, Jr., Denzil Y. Causey, Jr., Tampa, Fla., Neal Rutledge, Miami, Fla., for appellee, Broward County Port Authority, Fowler, White, Gillen, Humkey & Trenam, Tampa, Fla., of counsel.
Before JONES and BELL, Circuit Judges, and HUNTER, District Judge.
GRIFFIN B. BELL, Circuit Judge:
This is an appeal by employees of the Broward County (Florida) Port Authority and their unions from an order of the District Court enjoining the Port Authority and its employees from refusing to switch cars of the Florida East Coast Railway. The controlling question presented is whether the injunction as against the employees represented by appellants is barred by the NorrisLaGuardia Act, 29 U.S.C.A. § 101 et seq. We hold that it is and reverse.
In January 1963, certain employees of the Florida East Coast Railway went out on strike. The strikers set up picket lines at various points on FEC property. One area picketed was FEC’s interchange track which connects FEC’s tracks with those of the Broward County Port Authority. The Port Authority operates an independent belt line for the purpose of transferring cars from trunk lines to the dock facilities owned and operated by the Authority at Port Everglades. The Port Authority is under contract with FEC to switch FEC cars from the interchange track to the docks. After the picket lines went up at the interchange track, the Port Authority switching crews refused to cross the lines to pick up FEC cars.
The FEC, which was continuing to operate despite the strike against it, sought to compel the Port Authority to carry out its contractual obligations and its duty under the interchange section of the Interstate Commerce Act, 49 U.S. C.A. § 3(4). The Port Authority itself commenced a suit to compel its employees to service FEC tracks, but this action was dismissed without prejudice. The FEC then brought the present action against the Port Authority seeking an injunction requiring the Port Authority to switch its cars. The District Court entered a preliminary injunction prohibiting the Port Authority “and all of its officers, agents, servants, employees and attorneys, and all persons acting in concert and participation with them” from refusing to service the FEC tracks in accordance with the interchange agreement between the two railroads. The effect of the injunction was to require the Port Authority’s switching crews to cross the FEC picket line. Consequently, individual members of the switching crews and their unions were permitted to intervene. A second hearing was held at which the intervenors urged, inter alia,, that the injunction was barred by the Norris-LaGuardia Act. The District Court refused to dissolve the injunction, and the intervening employees and unions have brought the case here.
The Norris-LaGuardia Act, 29 U.S. C.A. § 104, provides:
“No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
“(a) Ceasing or refusing to perform any work * *
We begin by noting that the effect of the injunction entered below was to prohibit employees of the Port Authority, including appellants, from refusing to perform work, i. e., refusing to cross the FEC picket line. The injunction specifically binds the Port Authority “and all of its * * * employees.” Secondly, there is concededly a labor dispute between FEC and its employees. Under 29 U.S.C.A. § 113(c), the definitional section of the Norris-LaGuardia Act, the term “labor dispute” is broadly defined as any controversy over the terms or conditions of employment regardless of whether or not the disputants stand in the proximate relation of employer and employee.
We also think it is clear that this case involves or grows out of the labor dispute at FEC and that the Port Authority employees are persons interested in that dispute. The Port Authority employees refused to service the FEC interchange track solely because of the strike and picketing at FEC. This litigation would never have arisen were it not for the labor dispute at FEC. The Authority’s employees are interested in the dispute in that they are members of the same trade or industry as the striking FEC workers, see 29 U.S.C.A. § 113(b), and desire to make common cause with them by honoring their lawful picket line.
Thus, the literal language of the Norris-LaGuardia Act covers the situation presented here. The oft-stated congressional policy of that act was to prevent injunctive interference in labor disputes and to allow such controversies to be settled through negotiation and the free play of economic forces. 29 U.S.C.A. § 102; Sinclair Refining Co. v. Atkinson, 1962, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440; Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 1960, 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774. This policy finds plain application here, since the effect of the injunction is to nullify the picket line and give FEC an advantage in the dispute it has with its employees. See Lee Way Motor Freight v. Keystone Freight Line, Inc., 10 Cir., 1942, 126 F.2d 931, cert. den., 317 U.S. 645, 63 S.Ct. 37, 87 L.Ed. 519, applying the Norris-LaGuardia Act in a comparable factual situation, and cf. Marine Cooks & Stewards, AFL v. Panama S.S. Co., 1960, 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797.
FEC’s primary contention is that even if the Norris-LaGuardia Act would otherwise be applicable, that enactment is superseded by the provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., requiring compulsory arbitration of minor disputes. The Supreme Court held in Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 1957, 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, that Congress intended that compulsory arbitration under § 3, First, 45 U.S.C.A. § 153(i), of the Railway Labor Act should be the exclusive mode of settling minor disputes, and that consequently a strike over a minor dispute may be enjoined notwithstanding the Norris-LaGuardia Act. Under the Railway Labor Act, minor disputes involve grievances or questions of interpretation of an existing collective bargaining contract; major disputes arise from efforts to change working conditions through the making of a new agreement. 45 U.S.C.A. § 152, sixth, seventh; Elgin, J. and E. R. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, 1894-1895. FEC argues that this case actually involves a minor dispute between the Port Authority and its employees, rather than a major dispute at FEC, and that consequently the refusal to cross the picket line may be enjoined.
In our view, this argument ignores the realities of the factual situation before us. It is the FEC that seeks the injunction, not the Port Authority. Neither the Port Authority nor its switching crews have submitted the controversy to the Railroad Adjustment Board for arbitration, and the switching employees are in no way defeating the jurisdiction of that body. Consequently, the injunction entered below does not operate to preserve the jurisdiction of the Board over any minor dispute between the Port Authority and its employees; it operates to impede the strike over the major dispute at FEC. Thus, the injunction in no way serves the policy of the Railway Labor Act, whereas, as noted supra, it is in direct conflict with the policy of the Norris-LaGuardia Act.
In the present case, the Norris-LaGuardia Act and the Railway Labor Act can be easily accommodated, and this accommodation requires that the injunction entered by the District Court be dissolved. See Northwest Airlines, Inc. v. Transport Workers Union, W.D.Wash., 1961, 190 F.Supp. 495, holding that the Norris-LaGuardia Act prohibited an injunction to require one group of employees to cross a picket line set up by another group of employees of the same employer, and where the refusal to cross the picket line was treated as being a part of the major dispute. But see International Association of Machinists AFL-CIO v. Northwest Airlines, 8 Cir., 1962, 304 F.2d 206, where the major dispute and minor dispute were separated for purposes of the Norris-LaGuardia Act. We hold under the facts of the instant case that the refusal to cross the picket line is a part of the major dispute at FEC.
FEC also argues that the NorrisLaGuardia Act has been amended pro tanto by the interchange section of the Interstate Commerce Act, 49 U.S.C.A. § 3(4), quoted at note 1 supra. This contention is without merit. Cf. Texas & New Orleans R.R. v. Brotherhood of Railroad Trainmen, 5 Cir., 1962, 307 F.2d 151. Section 3(4) merely imposes a duty on earners to provide adequate connecting facilities without discrimination, and does not purport to regulate labor conditions in any manner whatsoever. Again, the clear language of the NorrisLaGuardia Act must control.
In sum, we hold that the Norris-LaGuardia Act is applicable to the present case and is not preempted by any other federal legislation. It follows that the order of the District Court refusing to dissolve the injunction to the extent it is binding on appellants here must be and it is
Reversed.
. “§ 3, par. (4). Interchange of traffic. All carriers subject to the provisions of this chapter shall, according to their respective powers, aiford all reasonable, proper, and equal facilities for the interchange of traffic between their respecting lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffie that is not specifically routed by tbe shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.”
. See. Chicago & Illinois Midland Railway Co. v. Brotherhood of Railroad Trainmen, 8 Cir., 1963, 315 F.2d 771, vacated as moot, 375 U.S. 18, 84 S.Ct. 61, 11 L.Ed.2d 39 on the question which would he presented should the Port Authority seek an injunction. See particularly the dissenting opinion on the problem of separating the major dispute from the minor dispute, and accommodating this difficulty with the more specific provisions of the NorrisLaGuardia Act.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
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sc_casesourcestate
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17
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
NORMAN et al. v. REED et al.
No. 90-1126.
Argued October 7, 1991
Decided January 14, 1992
Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, O’Connor, and Kennedy, JJ., joined. Scalia, J., filed a dissenting opinion, post, p. 296. Thomas, J., took no part in the consideration or decision of the cases.
R. Eugene Pincham argued the cause and filed briefs for petitioners in No. 90-1126.
Kenneth L. Gillis argued the cause for petitioners in No. 90-1435. On the briefs were Jack O’Malley, Burton Stephen Odelson, and Mathias William Delort.
Gregory A. Adamski argued the cause for respondents. With him on the brief for respondents Reed et al. was Karen Conti. Messrs. OMalley, Odelson, and Delort filed a brief for Cook County Officers Electoral Board, respondents in No. 90-1126.
Together with No. 90-1435, Cook County Officers Electoral Board et al. v. Reed et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union of Illinois by William T. Barker, Harvey M. Grossman, John A. Powell, Steven R. Shapiro, and Arthur N. Eisenberg; and for the Committee for Party Renewal by Robert E. Tait.
Justice Souter
delivered the opinion of the Court.
In these consolidated cases, we review a decision of the Supreme Court of Illinois barring petitioners in No. 90-1126 (petitioners) from appearing under the name of the Harold Washington Party on the November 1990 ballot for Cook County offices. We affirm in part, reverse in part, and remand for further proceedings not inconsistent with this opinion.
I
Under Illinois law, citizens organizing a new political party must canvass the electoral area in which they wish to field candidates and persuade voters to sign their nominating petitions. Organizers seeking to field candidates for statewide office must collect the signatures of 25,000 eligible voters, Ill. Rev. Stat., ch. 46, § 10-2 (1989), and, if they wish to run candidates solely for offices within a large “political subdivision” like Cook County, they need 25,000 signatures from the subdivision. Ibid. If, however, the subdivision itself comprises large separate districts from which some of its officers are elected, party organizers seeking to fill such offices must collect 25,000 signatures from each district. Ibid. If the organizers collect enough signatures to place their candidates on the ballot, their organization becomes a “new political party” under Illinois law, and if the party succeeds , in gathering 5% of the vote in the next election, it becomes an “established political party,” freed from the signature requirements of § 10-2. Ibid. A political party that has not engaged in a statewide election, however, can be “established” only in a political subdivision where it has fielded candidates. A party is not established in Cook County, for example, merely because it has fared well in Chicago’s municipal elections.
The Harold Washington Party (HWP or Party), named after the late mayor of Chicago, has been established in the city of Chicago since 1989. Petitioners were the principal organizers of an effort to expand the Party by establishing it in Cook County, and, as candidates for county office, they sought to run under the Party name in the November 1990 elections.
Cook County comprises two electoral districts: the area corresponding to the city of Chicago (city district) and the rest of the county (suburban district). Although some county officials are elected at large by citizens of the entire county, members of the county board of commissioners are elected separately by the citizens of each district to fill county board seats specifically designated for that district. While certain petitioners wished to run for offices filled by election at large, others sought to capture the county board seats representing the city and suburban districts of Cook County.
Because the Party had previously engaged solely in Chicago municipal elections, petitioners were obliged to qualify as a “new party” in Cook County in order to run under the Party name. Accordingly, §10-2 required them to obtain 25,000 nominating signatures in order to designate candidates for the at-large offices. And since petitioners wished to field candidates for the county board seats allocated to the separate districts, they also had to collect 25,000 signatures from each district. Petitioners gathered 44,000 signatures on the city-district component of their petition, but only 7,800 on the suburban component.
After petitioners filed the petition with the county authorities and presented their slate of candidates for both at-large and district-specific seats, respondent Dorothy Reed and several other interested voters (collectively, Reed) filed objections to the slate with the Cook County Officers Electoral Board (Board or Electoral Board). The Board rejected most of Reed’s claims. First, it dismissed her contention that, because there was already an established political party named the “Harold Washington Party” in the city of Chicago, petitioners could not run under that name for the various county offices. Reed relied on the provision of Illinois law that a “new political party,” which petitioners sought to form, “shall not bear the same name as, nor include the name of any established political party . . . .” Ill. Rev. Stat., ch. 46, § 10-5 (1989). The Board, however, suggested that a literal reading of § 10-5 would effectively forbid a political party established in one political subdivision to expand into others, and held that the provision’s true purpose was “to prevent persons who are not affiliated with a party from ‘latching on’ to the popular party name, thereby promoting voter confusion and denigrating party cohesiveness.” The Board found no such dangers here, as Timothy Evans, the only HWP candidate to run in Chicago’s most recent municipal election, had authorized petitioners to use the Party name.
The Board also rejected Reed’s claim that petitioners had failed to gather enough nominating signatures to run as a party for any Cook County office. While the Board found that their failure to gather 25,000 signatures from the suburbs disqualified those who wished to run for the suburban-district commissioner seats, it held that this failure was no reason under §10-2 to disqualify the candidates running under the Party name for city-district and countywide offices. The Board observed that construing the statute to disqualify the entire Cook County slate on this basis would advance no valid state interest and would raise serious constitutional concerns.
Finally, the Board rejected Reed’s claim that, under § 10-2, petitioners’ failure to designate Party candidates for any of the judicial seats designated for either the city district, the suburban district, or the county at large disqualified the entire slate of candidates running under the Party name for all county offices. It decided, among other things, that § 10-2 did not apply because the judgeships at issue were not offices of the same “political subdivision” as nonjudicial offices within Cook County.
On appeal, the Circuit Court of Cook County affirmed the Board’s ruling on the use of the HWP name, but on grounds different from the Board’s. It ruled that while Evans had no statutory power to authorize the use of the Party name, § 10-2 implicitly confined the scope of § 10-5 to cases where two parties seeking to use the same name coexist in the same political subdivision. Since Cook County and the city of Chicago are separate subdivisions, the Circuit Court found no violation of the Election Code.
The Circuit Court nonetheless held that under the plain language of § 10-2, petitioners’ failure to obtain 25,000 signatures for the suburban-district candidates doomed the entire slate, and it alternatively held that petitioners’ failure to list Party candidates for judicial office compelled the same result. For these two independent reasons, the Circuit Court reversed the Board.
On review, the Supreme Court of Illinois held in a brief written order that § 10-5 prohibited petitioners from using the HWP name, and that their failure to gather enough signatures for the candidates in the suburban-district races disqualified the entire slate. It expressly declined “to discuss other points raised on the appeal” and thus chose not to address the effect of petitioners’ failure to list candidates for county judgeships. Three of the court’s seven members dissented on the ground that the majority’s construction of Illinois law irrationally and unconstitutionally suppressed the development of new political parties. The majority justices indicated that they would issue an explanatory opinion, but they never have.
Petitioners then applied for a stay from Justice Stevens, who, in his capacity as Circuit Justice, ordered the mandate of the Illinois Supreme Court to be “stayed or, if necessary, recalled” pending further review by this Court. Order in No. A-309 (Oct. 22, 1990). On October 25, 1990, the full Court granted petitioners’ application for stay pending the filing and disposition of a petition for certiorari, 498 U. S. 931, thereby effectively reviving the Electoral Board’s decision and permitting petitioners to run under the Party name in the November 6, 1990, Cook County election. According to the undisputed representation of the Board, see Brief for Petitioners in No. 90-1435, p. 10, while none of the HWP candidates was elected, several did receive over 5% of the vote, thus fulfilling, if the election stands, a necessary and apparently sufficient condition for the Party’s qualification as an “established political party” within all or part of Cook County at the next election.
In due course, petitioners filed a petition for certiorari in No. 90-1126, and the Board, a respondent in that action, filed its own petition in No. 90-1435. We granted each on May 20, 1991. 500 U. S. 931 (1991).
II
We start with Reed s contention that we should treat the controversy as moot because the election is over. We should not. Even if the issue before us were limited to petitioners’ eligibility to use the Party name on the 1990 ballot, that issue would be worthy of resolution as “ ‘capable of repetition, yet evading review.’” Moore v. Ogilvie, 394 U. S. 814, 816 (1969). There would be every reason to expect the same parties to generate a similar, future controversy subject to identical time constraints if we should fail to resolve the constitutional issues that arose in 1990.
The matter before us carries a potential of even greater significance, however. As we have noted, the 1990 electoral results would entitle the HWP to enter the next election as an established party in all or part of Cook County, freed from the petition requirements of § 10-2, so long as its candidates were entitled to the places on the ballot that our stay order effectively gave them. This underscores the vitality of the questions posed, even though the election that gave them life is now behind us.
III
For more than two decades, this Court has recognized the constitutional right of citizens to create and develop new political parties. The right derives from the First and Fourteenth Amendments and advances the constitutional interest of like-minded voters to gather in pursuit of common political ends, thus enlarging the opportunities of all voters to express their own political preferences. See Anderson v. Celebrezze, 460 U. S. 780, 793-794 (1983); Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 184 (1979); Williams v. Rhodes, 393 U. S. 23, 30-31 (1968). To the degree that a State would thwart this interest by limiting the access of new parties to the ballot, we have called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation, see Anderson, supra, at 789, and we have accordingly required any severe restriction to be narrowly drawn to advance a state interest of compelling importance. See Socialist Workers Party, supra, at 184, 186. By such lights we now look to whether §§ 10-2 and 10-5, as construed by the Supreme Court of Illinois, violate petitioners’ right of access to the Cook County ballot.
A
Reversing the judgment of the Circuit Court, the State Supreme Court held, under §10-5, that the Cook County candidates could not claim to represent the HWP because there already was a party by that name in the city of Chicago. The court gave no reasons for so concluding beyond declaring that “petitioner^’] use of the Harold Washington Party name in their petition . . . violate[d] the provisions of section 10-5,” which, the court noted, “prohibits use of the name of an established political party.” Thus, the issue on review is not whether the Chicago HWP and the Cook County HWP are in some sense “separate parties,” but whether and how candidates running for county office may adopt the name of a party established only in the city.
While the Board based its answer to this question on a determination that the city HWP had authorized petitioners to use the Party name, the State Supreme Court’s order seems to exclude the very possibility of authorization, reading the prohibition on the “use of the name of an established political party” so literally as to bar candidates running in one political subdivision from ever using the name of a political party established only in another. As both the dissent below and the opinion of the Board suggest, however, this Draconian construction of the statute would obviously foreclose the development of any political party lacking the resources to run a statewide campaign. Just as obviously, § 10-5, as the State’s highest court apparently construed it, is far broader than necessary to serve the State’s asserted interests.
To prevent misrepresentation and electoral confusion, Illinois may, of course, prohibit candidates running for office in one subdivision from adopting the name of a party established in another if they are not in any way affiliated with the party. The State’s interest is particularly strong where, as here, the party and its self-described candidates coexist in the same geographical area. But Illinois could avoid these ills merely by requiring the candidates to get formal permission to use the name from the established party they seek to represent, a simple expedient for fostering an informed electorate without suppressing the growth of small parties. Thus, the State Supreme Court’s inhospitable reading of § 10-5 sweeps broader than necessary to advance electoral order and accordingly violates the First Amendment right of political association. See Anderson, supra, at 793-794; Williams, supra, at 30-34.
For her part, when Reed argues that the county Party, led by R. Eugene Pincham, is “different from” the Party established in the city of Chicago under the leadership of Timothy Evans, she may indeed be suggesting that the city Party failed to authorize the Cook County candidates to use the Party name. But Reed offers no support at all for that assumption, which stands at odds with what few relevant facts the record reveals. The Electoral Board found that Timothy Evans, the Party’s most recent mayoral candidate in the city of Chicago, had specifically authorized petitioners' use of the Party name in Cook County. While acknowledging that Evans was not the statutory chairman of the Chicago Party, the Board ruled, and Reed does not dispute, that Evans, “as the only candidate of the Chicago HWP,” was “the only person empowered by the Election Code to act in any official capacity for the HWP.” We have no authoritative ruling on Illinois law to the contrary, and Reed advances no legal argument for the insufficiency of Evans’ authorization.
To be sure, it is not ours to say that Illinois law lacks any constitutional procedural mechanism that petitioners might have been required to, but did not, follow before using the Party name. Our review of §10-2 reveals the possibility that Illinois law empowers a newly established party’s candidate or candidates (here, Evans) merely to appoint party “committeemen,” whose authority to “manage and control the affairs” of the party might include an exclusive right to authorize the use of its name outside the party’s original political subdivision. It seems unlikely, however, that the Supreme Court of Illinois had such reasoning in mind. Any limitation on Evans’s power to authorize like-minded candidates to use the Party name would have had to arise under § 10-2, whereas the order below held simply that petitioners’ use of the Party name “violate[d] the provisions of section 10-5.” In any event, it is not this Court’s role to review a state-court decision on the basis of inconclusive and unar-gued theories of state law that the state court itself found unworthy of mention.
B
As an alternative basis for prohibiting petitioners from running together under the Party name, the Supreme Court of Illinois invoked the statutory requirement of § 10-2 that “[e]ach component of the petition for each district ... be signed by [25,000] qualified voters of the district....” The court apparently held that disqualification of a party’s entire slate of candidates is the appropriate penalty for failing to meet this requirement, and it accordingly treated petitioners’ failure to collect enough signatures for their suburban-district candidates as an adequate ground for disqualifying every candidate running under the HWP name in Cook County.
This is not our first time to consider the constitutionality of an Illinois law governing the number of nominating signatures the organizers of a new party must gather to field candidates in local elections. In Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173 (1979), we examined Illinois’s earlier ballot-access scheme, under which party organizers seeking to field candidates in statewide elections were (as they still are) effectively required to gather 25,000 signatures. See §10-2. At that time, the statute separately required those organizing new parties in political subdivisions to collect signatures totaling at least 5% of the number of people voting at the previous election for offices of that subdivision. In the city of Chicago, the subdivision at issue in Socialist Workers Party, the effect of that provision was to require many more than 25,000 signatures. Although this Court recognized the State’s interest in restricting the ballot to parties with demonstrated public support, the Court took the requirement for statewide contests as an indication that the more onerous standard for local contests was not the least restrictive means of advancing that interest. Id., at 186.
The Illinois Legislature responded to this ruling by amending its statute to cap the 5% requirement for “any district or political subdivision” at 25,000 signatures. Thus, if organizers of a new party wish to field candidates in a large county without separate districts, and if 5% of the number of voters at the previous county election exceeds 25,000, the party now needs to gather only 25,000 signatures.
Under the interpretation of § 10-2 rendered below, however, Illinois law retains the constitutional flaw at issue in Socialist Workers Party by effectively increasing the signature requirement applicable to elections for at least some offices in subdivisions with separate districts. Under that interpretation, the failure of a party’s organizers to obtain 25,000 signatures for each district in which they run candidates disqualifies the party’s candidates in all races within the subdivision. Thus, a prerequisite to establishing a new political party in such multidistrict subdivisions is some multiple of the number of signatures required of new statewide parties. Since petitioners chose to field candidates for the county board seats allocated to the separate districts and, as required by state law, used the “component” (i e., district-specific) form of nominating petition, the State Supreme Court’s construction of §10-2 required petitioners to accumulate 50,000 signatures (25,000 from the city district and another 25,000 from the suburbs) to run any candidates in Cook County elections. The State may not do this in the face of Socialist Workers Party, which forbids it to require petitioners to gather twice as many signatures to field candidates in Cook County as they would need statewide.
Reed nonetheless tries to skirt Socialist Workers Party by advancing what she claims to be a state interest, not addressed by the earlier case, in ensuring that the electoral support for new parties in a multidistrict political subdivision extends to every district. Accepting the legitimacy of the interest claimed would not, however, excuse the requirement’s unconstitutional breadth. Illinois might have compelled the organizers of a new party to demonstrate a distribution of support throughout Cook County without at the same time raising the overall quantum of needed support above what the State expects of new parties fielding candidates only for statewide office. The State might, for example, have required some minimum number of signatures from each of the component districts while maintaining the total signature requirement at 25,000. But cf. Moore v. Ogilvie, 394 U. S. 814 (1969). While we express no opinion as to the constitutionality of any such requirement, what we have said demonstrates that Illinois has not chosen the most narrowly tailored means of advancing even the interest that Reed suggests.
Nor is that the only weakness of Reed’s rationale. Illinois does not require a new party fielding candidates solely for statewide office to apportion its nominating signatures among the various counties or other political subdivisions of the State. See § 10-2; Communist Party of Illinois v. State Bd. of Elections, 518 F. 2d 517 (CA7), cert. denied, 423 U. S. 986 (1975). Organizers of a new party could therefore win access to the statewide ballot, but not the Cook County ballot, by collecting all 25,000 signatures from the county’s city district. But if the State deems it unimportant to ensure that new statewide parties enjoy any distribution of support, it requires elusive logic to demonstrate a serious state interest in demanding such a distribution for new local parties. Thus, as in Socialist Workers Party, the State’s requirements for access to the statewide ballot become criteria in the first instance for judging whether rules of access to local ballots are narrow enough to pass constitutional muster. Reed has adduced no justification for the disparity here.
c
Up to this point, the positions of petitioners and the Board have coincided. They diverge on only one matter: whether requiring the candidates for the suburban-district commissioner seats to obtain 25,000 nominating signatures from the suburbs unduly burdens their right to run for those seats under the Party name. Although petitioners suggest that their showing of support in the city district should qualify their candidates to represent the Party in all races within Cook County, in the absence of any claim that the division of Cook County into separate districts is itself unconstitutional, our precedents foreclose the argument. According to the Board’s uncontested arithmetic, the 25,000 signature rule requires the support of only slightly more than 2% of suburban voters, see Brief for Respondent Board in No. 90-1126, p. 9, and n. 7, a considerably more lenient restriction than the one we upheld in Jenness v. Fortson, 403 U. S. 431 (1971) (involving a 5% requirement). Just as the State may not cite the Party’s failure in the suburbs as reason for disqualifying its candidates in urban Cook County, neither may the Party cite its success in the city district as a sufficient condition for running candidates in the suburbs.
>
These cases present one final issue, which we are unable to resolve. Some of Cook County’s judges are elected by citizens of the entire county, and others by citizens of the separate districts. In responding to Reed’s objection that the HWP had not fielded candidates for any elected judicial offices in Cook County, the Circuit Court held that, under § 10-2, “the exclusion of judicial candidates on the slate was a failure to fulfill the ‘complete slate requirement’ of the Election Code.” The court then overruled the Electoral Board and treated this failure as an alternative ground for invalidating the Party’s entire slate.
We decline to consider whether that ruling was constitutional. The Supreme Court of Illinois itself did not address it and therefore did not decide whether, under Illinois law, the Party’s omission of judicial candidates doomed the entire slate. We therefore remand these cases to that court for its prompt resolution of this issue. See Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 277 (1984); see also McCluney v. Jos. Schlitz Brewing Co., 454 U. S. 1071, 1073-1074 (1981) (Stevens, J., dissenting).
The judgment of the State Supreme Court is affirmed in part and reversed in part, and the cases are remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Thomas took no part in the consideration or decision of these cases.
More precisely, they must collect the signatures of 25,000 voters or 1% of the number of voters at the preceding statewide general election, whichever is less. Ill. Rev. Stat., ch. 46, § 10-2 (1989). Given the State’s population, the 26,000 signature requirement applies.
The statute reads in relevant part:
“In the case of a petition to form a new political party within a political subdivision in which officers are to be elected from districts and at-large, such petition shall consist of separate components for each district from which an officer is to be elected. Each component shall be circulated only within a district of the political subdivision and signed only by qualified electors who are residents of such district. Each sheet of such petition must contain a complete list of the names of the candidates of the party for all offices to be filled in the political subdivision at large, but' the sheets comprising each component shall also contain the names of those candidates to be elected from the particular district. Each component of the petition for each district from which an officer is to be elected must be signed by qualified voters of the district equalling in number not less than 5% of the number of voters who voted at the next preceding regular election in such district at which an officer was elected to serve the district. The entire petition, including all components, must be signed by a total of qualified voters of the entire political subdivision equalling in number not less than 5% of the number of voters who voted at the next preceding regular election in such political subdivision at which an officer was elected to serve the political subdivision at large.”
The statute caps the 5% requirement for both district and subdivision petitions at 25,000 signatures, the number effectively required on statewide petitions. Cook County and its districts are so large that this cap applies to each.
These are the current districts of Cook County. We have learned that in a November 1990 referendum, the voters of Cook County adopted an ordinance providing for the division of the county by 1994 into 17 districts, each of which will send one commissioner to the county board. This Court has been unable to secure any official record of the new ordinance, however. In any event, the parties have not treated this issue as having any bearing on our disposition of these cases, and we do not see how it could have.
Reed based her argument on what the parties call the “complete slate requirement” of § 10-2. The parties occasionally use the same term in their discussion of a separate issue, whether petitioners’ failure to collect sufficient signatures in the suburban district voids their entire slate. For clarity, we avoid using the term altogether.
The Circuit Court also held that petitioners’ failure to gather 25,000 signatures for the candidates running under the Party name for office in the Metropolitan Water Reclamation District disqualified those candidates, but not the rest of the slate, because the Water Reclamation District was a separate political subdivision from Cook County. This ruling was not appealed to the Illinois Supreme Court and is not before this Court.
Three of the four justices in the majority have left the court since the date of the order.
Under Illinois practice, if the Board’s decision is appealed, it joins the prevailing party in support of its own decision.
As in Anderson v. Celebrezze, 460 U. S. 780 (1983), “we base our conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal Protection Clause analysis. We rely, however, on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment.” Id., at 786-787, n. 7.
Reed did seem to make a version of this argument in her brief to the Illinois Supreme Court. See Brief for Appellees Reed et al. in No. 70833 (Sup. Ct. Ill.), pp. 20-21. Moreover, in the one sentence that it devotes to the topic, the Circuit Court makes a similar observation: “While Timothy C. Evans was the only candidate of the Harold Washington Party, his only power, pursuant to § 10-2 of the Election Code, was the ability to appoint interim committeemen.” See App. to Pet. for Cert, in No. 90-1435, p. 19a. Nonetheless, these passages are inadequate to prove that the Illinois Supreme Court adopted the argument, particularly since Reed arguably waived it by not raising it in her original “Objector’s Petition” to the Electoral Board. See App. 14-15. There, she claimed only that petitioners’ use of the Party name violated § 10-5.
To an extent, history explains the anomaly. Moore v. Ogilvie, 394 U. S. 814 (1969), together with the Seventh Circuit’s decision in Communist Party of Illinois v. State Bd. of Elections, 618 F. 2d 517 (1975), left the ballot-access requirements for statewide elections less stringent, for the first time, than the requirements for any local ballot. These were the same legal developments, in fact, that led to the anomaly at issue in Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173 (1979). Yet, as we noted there, an explanation is not the same as a justification. Id., at 187; see also id., at 189 (Stevens, J., concurring in part and concurring in judgment); id., at 190-191 (Rehnquist, J., concurring in judgment). “Historical accident, without more, cannot constitute a compelling state interest.” Id., at 187.
Among other possibilities, the Supreme Court of Illinois might agree with the Board’s conclusion that the judgeships at issue are not offices of the same “political subdivision” as nonjudicial offices within Cook County. That court might also construe the decision in Anderson v. Schneider, 67 Ill. 2d 166, 366 N. E. 2d 900 (1977), to hold that an omission of judicial candidates should not invalidate the rest of the slate.
To restate our conclusion, any rule, whether or not denominated the “complete slate” requirement, see, e. g., post, at 298, 299 (dissenting opinion’s use of the term in this context); App. to Pet. for Cert, in No. 90-1435, pp. 23a-24a (Circuit Court’s use of the term in this context), that disqualifies petitioners’ entire slate for failure to collect 25,000 signatures wholly from the suburban district would be unconstitutional for the reasons given in Part III-B above. We express no opinion as to the constitutionality of a “complete slate requirement” that would invalidate petitioners’ slate for their failure to field judicial candidates.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
sc_casesource
|
042
|
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. NATIONAL CITY LINES, INC. ET AL.
No. 269, Misc.
Argued February 8, 1949.
Decided May 31, 1949.
Charles H. Weston argued the cause for the United States. With him on the brief were George T. Washing ton, Acting Solicitor General, Assistant Attorney General' Bergson and Philip Elman.
C. Frank Reavis argued the cause for respondents. With him on the brief were Martin D. Jacobs, Oscar A. Trippet, Henry M. Hogan, H. D. Emery, Rayburn L. Foster, R. B. F. Hummer, Hubert T. Morrow, Marshall P. Madison, Eugene M. Prince, Francis R. Kirkham and Everett A. Mathews.
Marland Gale was also on a brief with Mr. Reayis and Mr. Jacobs for the National City Lines, Inc., and Pacific City Lines, Inc., respondents. Horace G. Hitchcock was also of counsel for the ’ Mack Manufacturing Corp., respondent.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
The issue here is whether the 1948 revision of the Judicial Code (Title 28, United States Code) extends the doctrine of jorum non conveniens to antitrust suits. The Government’s complaint in this civil suit alleged that respondent corporations have conspired to obtain control of local transportation companies in at least 44 cities in 16 states in different sections of the country, in order to restrain and monopolize interstate commerce in busses and the petroleum and other supplies incident thereto, in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U. S. C. §§ 1, 2.
This is the second time that an order of the court below, the. United States District Court for the Southern District of California, attempting to effectuate a transfer of the case from Los Angeles to Chicago, has been before this Court. When respondents’ motion was first granted, the District Court dismissed the action, 7 F. R. D. 456 (1947), inasmuch as the federal courts-then lacked.statutory power to transfer cases. We reversed, holding that jorum non conveniens was not applicable in antitrust suits. United States v. National City Lines, 334 U. S. 573 (June 7, 1948). After September 1, 1948, the effective date of the present Judicial Code, respondents filed a new motion under the doctrine of jorum non conveniens, citing § 1404 (a), which reads as follows: “For the comvenieneé of parties and witnesses, in the interest of justice, a district court'may transfer any civil action to any other district or division where it might have been brought.” Again the District Court below granted the motion. It ordered the case transferred. 80 F. Supp. 734 (1948). The Government thereupon submitted in this Court a motion for leave to file petition for writ of certiorari. We assigned the case for hearing on this motion. ' 335 U. S. 897 (1948).
In taking the position that the District Court- lacked authority to enter its order of transfer, the Government has advanced many of the arguments which we have already considered today — and rejected — in Ex parte Collett, ante, p. 55, and Kilpatrick v. Texas & Pacific R. Co., ante, p. 75, in which we held that actions under the Federal Employers’ Liability Act were now subject to the doctrine of jorum non conveniens. The Government contends, for example, that Congress intended § 1404 (a) to apply only to actions the venue provisions of which were formerly contained .in Title 28, rather than to. “any civil action” (the venue requirements in antitrust cases, are defined in 15 U. S! C. § 22; in Liability Act cases, 45 U. S. C. § 56); and that the legislative history establishes very clearly that Congress had no desire substantially to change the law — indeed, the Government urges us to disregard the reviser’s notes which were printed in the House Reports. We cannot accept this position for the reasons discussed in our previous decisions today. The reviser’s notes are so obviously authoritative in perceiving the meaning of the Code that the Government itself, in discussing a section other than § 1404 (a), refers to them in its brief in this case. And we have already had occasion to look to the reviser’s notes. Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 376, n. 12 (1949),
It is true that the reviser’s notes to § 1404 (á), although citing a Federal Employers’ Liability Act decision, make no reference to the antitrust laws or to our previous decision in this litigation. The Government therefore urges that our disposition of the Liability Act cases is not conclusive. We disagree. The notes cite the Liability Act decision “As an example of the need of such a provision.” Obviously, an example is not a complete catalogue. The use of an example implies no purpose to restrict the meaning of the statutory phrase “any civil action” precisely to the illustration selected. Quite the contrary, the particular example noted demonstrates that Congress intended to effectuate changes ,in the law, irr order to expand the transferability of cases. And the change in antitrust practice seems no more radical than the change in Federal Employers’ Liability Act practice: Baltimore & O. R. Co. v. Kepner, 314 U. S. 44 (1941), cited in the reviser’s note, was decided over six years before oür initial decision in this case, 334 U. S. 573 (1948), which was the first ruling by this Court that jorum non conveniens was inapplicable in antitrust suits.
Although no explanation is needed for the lack of Congressional reference to our former decision, simple chronology may be consulted. The reviser’s notes appeared in House Report No. 308, 80th Congress, 1st Sess., which was published in April; 1947. The Code revision was initially passed by the House in July, 1947. With amendments, the revision was passed by the Senate on June 12, 1948, and by the House on June 16, 1948. Our decision in the first National City Lines case, 334 U. S. 573, was handed down on June 7, 1948.» Clearly, the failure of Congress expressly to consider this decision proves nothing.
Nor was there anything in our decision which required unique Congressional discussion, in the face of the unmistakable statutory language and reviser’s notes. We expressly held' that “Congress’ mandate regarding venue and the exercise of jurisdiction is binding upon the federal courts,” 334 U. S. at 588-89, and that decision in this field must rest on “the legislative purpose and the effect of the language used . ; .,” supra, at 597. Nothing in our previous opinion intimates that we could fail to respect whatever modification of the law Congress might enact.
Moreover, this change' in the law must have been known to the Government in time for it to have addressed the protests which we have heard to the Congress. This was admitted on the oral argument; it could not possibly have been denied. When this litigation was previously before us, National City’s brief, at pp. 25-26 and 45, expressly called attention to the imminent probability that § 1404 (a) would be enacted and would be held applicable to antitrust suits. This brief was filed here on April 26, 1948. Not until June 7, 1948, was the final hearing on the Judicial Code revision held before the Senate Judiciary Subcommittee. Furthermore, the Code proposals were extensively publicized. See Ex parte Collett, ante, at pp. 67-68. The Department of Justice in particular was informed: each United States Attorney received a copy of the drafts; a Department spokesman testified at the House hearing; the Attorney General was asked for an opinion by the Congressional Committee. The plain inference is either that the Government took no action with respect to the forthcoming alteration of the rule that jorum non conveniens was inapplicable to antitrust suits, or that a protest was made which Congress disregarded. Neither alternative would offer the slightest justification for overriding the unequivocal words of § 1404 (a) and the legislative history which establishes that Congress indeed meant what it said.
For these reasons, we can find no distinction between this case and the others decided today. We hold that § 1404 (a) is applicable here. The motion is
Denied.
[For opinion of Mr. Justice Rutledge concurring in the result, see ante, p. 72.]
Act of June-25,1948,62 Stat. 869, 992, § 38.
There has been apparently but one other reported case dealing with the instant issue. It is in accord with the holding below. United States v. E. I. Du Pont de Nemours & Co., 83 F. Supp. 233 (1949).
See, generally, Note, Venue in Antitrust Cases: Applicability of the New Discretionary Transfer Provision, 58 Yale L. J. 482 (1949).
The note to § 1404 (a) appears at H. R. Rep. No. 308, 80th Cong., 1st Sess. A132 (1947) and H. R. Rep. No. 2646, 79th Cong., 2d Sess. A127 (1946). It reads as follows: “Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 1941, 62 S. Ct. 6, 314 U. S. 44, 86 L. Ed. 28, which was prosecuted under the Federal Employer’s [sic] Liability Act in New York, although the accident occurred and-the employee resided in Ohio. The new subsection requires the court to determine that ihe transfer is necessary for conveniencé' of the . parties and witnesses, and further, that it is in the interest of justice-to do so ”
93 Cong. Rec. 8392 (1947).
94 Cong. Rec. 7930 (1948).
94 Cong. Rec. 8501 (1948).
Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055,80th Cong., 1st Sess. 8 (1947).
Statement of Special Assistant to the Attorney General Baynton, Ibid., 33-34. “With respect to the bill to codify title 28, the Department has been gathering memoranda from all its various divisions and from United States attorneys with the hope of making a comprehensible report on that bill. We have that material.” (Emphasis added.) Id., 34.
Letter from Attorney General Tom C. Clark to Congressman Michener, Chairman of the Committee on the Judiciary, April 17, 1947, H. R. Rep. No. 308, 80th Cong., 1st Sess. 8 (1947). The letter declares that the objectives of the revision áre “commendable and desirable,” and continues as follows: “You will remember the discussions between members of the staff of the Committee and of the Department last month at which the Department made some suggestions with reference to minor corrections of errors and omissions then in the draft of the bill being considered by your committee.
“I am advised that this conference agreed upon a number of corrections. and changes and that these corrections and changes have now been incorporated in the bill with the one exception of the [Tax Court] portion . . . .” See 93 Cong. Rec. 8385 (1947).
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_stpolicy
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Appellant, v. Eldon BENINGER, Appellee.
No. 18409.
United States Court of Appeals Eighth Circuit.
March 9, 1967.
Harry B. Otis, of Gaines, Spittler, Neely, Otis & Moore, Omaha, Neb., for appellant.
Frank B. Morrison, Jr., of Eisenstatt, Higgins, Miller, Kinnamon and Morrison, Omaha, Neb., for appellee.
Before VAN OOSTERHOUT and GIBSON, Circuit Judges, and NICHOL, District Judge.
VAN OOSTERHOUT, Circuit Judge.
This is a timely appeal by defendant railroad from a judgment for $17,908.00 entered against it on a jury verdict in favor of plaintiff, Eldon Beninger. Plaintiff’s action, predicated on defendant’s negligence, is for damages for injuries he suffered in a collision which occurred about 4 p. m. on December 13, 1961, between defendant’s train and an automobile driven by Alton Bruns in which plaintiff was a passenger, occupying the right front seat. The accident occurred at a point just north of Dunbar, Nebraska, where the railroad intersects Nebraska Highway No. 67. The automobile was traveling north. The tracks cross the highway at an angle running from northwest to southeast. The train was traveling southeast. Both the automobile and the train were traveling at a speed of about twenty miles per hour. Additional facts to the extent necessary will be developed hereinafter.
Jurisdiction, based upon diversity of citizenship and the requisite amount, is established.
Defendant by its pleadings, motion to direct verdict at the close of plaintiff’s case and again at the close of all the evidence and motion for judgment n. o. v., raised the issues which it asserts upon appeal. All such motions were overruled by the trial court.
Upon this appeal, defendant urges the court erred in denying his motions for directed verdict and judgment n. o. v. for each of the following reasons:
I. There is no substantial evidence to support a finding that defendant was guilty of negligence in any respect charged by the plaintiff.
II. The evidence conclusively establishes that the negligence of the driver of the automobile in which plaintiff was riding was the sole proximate cause of the accident. There is no evidence to establish that the negligence, if any, of the defendant was the proximate cause of plaintiff’s injuries.
III. Plaintiff is as a matter of' law himself guilty of contributory negligence which is more than slight in comparison with the negligence of the defendant.
We hold" that defendant has failed to establish each of the foregoing contentions and hence the judgment is entitled to be affirmed. While the defendant has also filed a motion for new trial which was overruled, no issue has been raised with respect to'such ruling. The only issues reached in this appeal are those growing out of the ruling denying the motion for judgment n. o. v.
This accident occurred in Nebraska. The substantive law of Nebraska controls. The question of whether state law or federal law controls on the sufficiency of the evidence to support a verdict is still an open question. See Dick v. New York Life Ins. Co., 359 U.S. 437, 444-455, 79 S.Ct. 921, 3 L.Ed.2d 935; Ozark Air Lines, Inc. v. Larimer, 8 Cir., 352 F.2d 9, 11. Both parties have argued this case upon the basis that Nebraska law controls upon this issue. When confronted with a similar problem in Wray M. Scott Co. v. Daigle, 8 Cir., 309 F.2d 105, we examined the Nebraska cases and determined that the Nebraska standard for determining the sufficiency of evidence to support a verdict is substantially the same as the federal standard. We set out the standards to be applied in determining the sufficiency of the evidence to support the verdict as follows:
“(1) All facts which plaintiff’s evidence reasonably tends to prove must be assumed to have been established, and all inferences fairly deducible from such facts must be drawn in his favor; (2) the verdict should be directed only where all the evidence is on one side or so overwhelmingly on one side as to leave no doubt what the fact is; (3) the question of negligence is usually one of fact for the jury, and it is only where the evidence, even though it be uncontradicted, is such that all reasonable men must draw the same conclusion from it that the question of negligence becomes one of law for the court; (4) where inconsistent inferences reasonably may be drawn from the evidence, it is for the jury to determine which of the inferences shall be drawn; (5) when the sufficiency of the evidence to make a case for the jury presents a doubtful question of local law, the court of appeals will accept the views of the trial court unless convinced of error; (6) the burden of demonstrating error is upon the appellant.” 309 F.2d 105, 108-109.
The recent Nebraska cases appear to be in accord with the foregoing principles. Willey v. Parriott, 179 Neb. 828, 140 N.W.2d 652; Beck v. Trustin, 177 Neb. 788, 131 N.W.2d 425; Costanzo v. Trustin Mfg. Corp., 176 Neb. 136, 125 N.W.2d 556; Ellingson v. Dobson Bros. Const. Co., 173 Neb. 659, 114 N.W.2d 522.
We proceed to apply the foregoing principles in determining the issues raised by the defendant.
The court submitted to the jury three specifications of negligence pleaded by the plaintiff, to wit; (1) failure to give proper warning of the train’s approach by sounding the bell or whistle as required by Revised Statutes of Nebraska § 74-573; (2) failure to clear right-of-way of obstructions consisting of trees, brush and weeds; (3) failure to keep a proper lookout.
If plaintiff has made a case for the jury upon any one of the foregoing specifications of negligence, defendant’s motion was properly overruled with respect to the ground that no negligence on the part of the defendant was established.
Section 74-573 requires the train crew to ring the bell or blow the whistle, commencing at least 80 rods from an intersection, and to continue such ringing or whistling until the intersection is passed. Liability is imposed for damages for failure to do so. Defendant contends that it has presented positive, reliable evidence that the required signal had been given, and that plaintiff’s testimony upon this issue is negative in character and insufficient as a matter of law to overcome defendant’s positive testimony. With respect to the requisite proof upon this issue, the rule has been thus stated:
“ ‘The testimony of witnesses, who were near the place of the accident at the time, that they did not hear the bell, without further explanation, is not sufficient to overcome positive evidence of reliable and competent witnesses that the bell was ringing.’ ” Milk House Cheese Corp. v. Chicago, B. & Q. R. Co., 161 Neb. 451, 73 N.W.2d 679, 687.
See Nanfito v. Chicago, B. & Q. R. Co., 103 Neb. 577, 173 N.W. 575; Tsiampras v. Union P. R. Co., 104 Neb. 205, 176 N.W. 366.
Plaintiff and Bruns each testified that as they approached the track their car radio was turned off and that a window was open. Each testified that he did not hear the signal. In our view, there is sustantial evidence to support an inference that plaintiff and Bruns were in a position to hear a signal if given. Additionally, a disinterested witness living near the track at the accident scene testified that he heard the train whistle for a ■crossing a mile back and didn’t again hear the whistle. Upon cross-examination, the-testimony is: “Q. Is it possible that the whistle might have blown after the time you heard it and you went into the house and you just didn’t hear it? A. It is possible, but not probable.”
The engineer and fireman testified that the whistle blowing commenced at ■the whistle post 80 rods from the crossing and that the bell was constantly ringing. The brakeman testified he heard the whistle but that he was not aware of the location of the train at the time it was sounded. The conductor states that he has no specific recollection of the details surrounding the whistling. Mrs. Roos, who lived near the accident scene, testified for the defendant at the trial that she heard five or six whistle blasts in series. She was in her house and did not see the train so is unable to tell at what point in the train’s course the whistle sounded. She did not hear the accident impact. She admitted on cross-examination that she had given a statement that she had no recollection of the accident and could not say whether or not the whistle was blown.
We believe that there is respectable Nebraska authority for a determination under the facts of this case that a jury issue is presented on the statutory signal issue. Brunk v. Chicago, B. & Q. R. Co., 8 Cir., 207 F.2d 354, 357-358; Kepler v. Chicago, St. P. M. & O. Ry. Co., 111 Neb. 273, 196 N.W. 161, 164; Hook v. Payne, 190 N.W. 581, 582; Campbell v. Union Pac. R. Co., 100 Neb. 375, 160 N.W. 101, 102.
There is substantial evidence to support a finding that brush and weeds were permitted to grow on the railroad right-of-way and that such growth at least obstructed to a considerable extent the view of the train from the highway on which plaintiff was approaching. Plaintiff and Bruns both testified that the car windows were clear and that they looked at the tracks in the direction from which the train was approaching at several points and that they did not see the approaching train until they reached a point about two-car lengths from the track. The photographic exhibits clearly disclose a substantial amount of weeds and brush along the railroad right-of-way.
The Nebraska court has apparently never squarely decided whether permitting weeds and brush to remain upon the right-of-way is sufficient to constitute an independent ground of negligence. The Supreme Court of Nebraska did hold in Hook v. Payne, supra, that the presence of brush and weeds on the right-of-way constitute a factor in determining comparative negligence of the parties and is entitled to consideration by the jury. See 44 Am.Jur. Railroads, §§ 505, 507.
Defendant’s second contention is that the negligence of the car driver is as a matter of law the sole proximate cause of the accident and that its negligence is not a proximate cause of the accident. Of course if it is conclusively established that the negligence of the driver is the sole proximate cause of the accident, plaintiff could not recover. Bergendahl v. Rabeler, 133 Neb. 699, 276 N. W. 673.
An accident may be proximately caused by separate and distinct acts of negligence of different parties which concur in producing the accident. Where negligence is established, the issue of probable cause is usually one of fact for the jury. See Bailey v. Pennington, 8 Cir., 274 F.2d 328, 334; Morse v. Gray, 166 Neb. 557, 89 N.W.2d 842, 848.
No contention is here made that the plaintiff has any other status than that of a gratuitous passenger in'a private automobile. Defendant does not claim that any basis exists for imputing the negligence of the driver to the passenger.
In Kepler v. Chicago, St. P., M. & O. Ry. Co., 111 Neb. 273, 196 N.W. 161, the Nebraska Court follows the well-established rule that a guest passenger in a private automobile may recover against a railroad for negligence which approximately causes the injury, notwithstanding the fact that the negligence of the host driver was also a proximate cause of the injury. See Union Pac. Ry. Co. v. Lapsley, 8 Cir., 51 F. 174. In our present case, if the jury found defendant negligent as charged, we have no doubt that an evidentiary basis exists for determining such negligence to be a proximate cause of plaintiff’s injuries.
Finally, defendant vigorously asserts that plaintiff was himself guilty of contributory negligence more than slight when compared to defendant’s negligence, as required by the Nebraska Comparative Negligence Statute, Rev.Stat.Neb. § 25-1151, and that such contributory negligence on the part of the plaintiff precludes a recovery as a matter of law.
Defendant relies upon statements in Nebraska cases, such as that in Neusbaum v. Chicago & Northwestern Ry. Co., 162 Neb. 754, 77 N.W.2d 299, 301, reading:
“Seiffert v. Hines, 108 Neb. 62, 187 N.W. 108, 109, is quite comparable to this case. There the rider was killed. Plaintiff was the administrator of his estate. There it was claimed that the negligence of the driver could not be imputed to plaintiff's intestate. There the deceased and the driver were co-employees. There the deceased was familiar with the track in question. There the deceased had a clear opportunity of seeing the approaching train and a ‘better opportunity’ than the driver. These conditions exist in the instant case. We there held, applicable here, that: ‘In this position, knowing that they were approaching the railroad crossing, it was his duty to look and listen for approaching trains. In this regard the same obligation rested upon him as though he were driving the car himself.’ ”
Particular reliance is placed upon the last sentence of such quotation. In the paragraph prior to the one quoted the Neusbaum court observes that the plaintiff and the driver were coemployees engaged in a mission to feed and care for cattle and in this respect, distinguishes the case factually from Kepler, supra.
In Kepler, a guest was allowed recovery. The Court observes:
“It would be demanding more than ordinary care on the part of the guest to require her to know the limitations of her host. She had a right to assume that he was a reasonably careful and capable driver. She was justified in believing that any driver, and particularly the owner of a car, would be able to stop within the distance referred to.” 196 N.W. 161, 164.
We believe that Bailey v. Pennington, 8 Cir., 274 F.2d 328, makes it clear that a difference exists between the duty of a passenger and that of a joint-venturer with respect to keeping a lookout. We held the passenger to be a guest, stating:
“Admittedly, a passenger in an automobile is under a duty to warn the driver of any perceived danger and he may be found guilty of contributory negligence, as a matter of law, for his failure to do so. * * * However, whether or not the warning which had been given here was timely and adequate was clearly a jury question. * * * The trial court erred in holding that the plaintiff was guilty of contributory negligence as a matter of law.” 274 F.2d 328, 334.
In Morse v. Gray, 166 Neb. 557, 89 N.W.2d 842, 848, the court reversed a directed verdict against the plaintiff passenger and with respect to a passenger’s duty of care, stated:
“ ‘The duty of a guest riding in an automobile is to use care in keeping a lookout commensurate with that of an ordinary prudent person under similar circumstances. The guest is not required to exercise the same degree of care as the driver. If the guest observes danger, or if danger should ordinarily be anticipated, the guest should warn the driver, but ordinarily a guest is not required to watch the road or advise the driver in the management of the ear. Where a driver observed or should have observed the danger as well as the guest, the guest is not ordinarily negligent in failing to warn the driver.’ ”
In Ellingson v. Dobson Bros. Const. Co., 173 Neb. 659, 114 N.W.2d 522, the court in reversing a directed verdict against plaintiff driver sets out the following guiding principles:
“Another rule is as follows: ‘Want of ordinary care, and not knowledge of the danger, is the test of contributory negligence.’ * * *
“ ‘Where evidence is in conflict and such that reasonable minds may draw different conclusions therefrom, the questions of negligence and comparative and contributory negligence are for the determination of the jury.’ ” 114 N.W.2d 522, 525.
This court in eases arising from Nebraska has likewise held:
“But if on all the evidence reasonable minds might fairly differ in their conclusion as to the existence of contributory negligence or as to its degree being more than slight in the circumstances, the question is for the jury to determine. * * *
“ ‘The test under Nebraska’s comparative negligence statute is not based upon absolute degrees of negligence but rather upon a comparative test of the relative degrees of negligence between the parties.’ ” Hutchinson v. Fouts, 8 Cir., 349 F.2d 946, 951; Continental Can Co. v. Horton, 8 Cir., 250 F.2d 637, 644.
In our present case, the testimony is that the automobile was approaching the tracks on an icy road at a speed under twenty miles per hour. The engineer saw the car skid when about seventy-five feet from the tracks and immediately put on the emergency brake but was unable to stop. Both plaintiff and the driver testified they looked for approaching trains on several occasions as they drew near to the tracks but that they did not see the train until they were about two-car lengths from the track, at which time the brakes were applied. Both plaintiff and the driver saw the train at about the same time. At such a time a warning would serve no purpose and would only tend to confuse the driver. See Weber v. Stokeley-Van Camp Inc., 274 Minn. 482, 144 N.W.2d 540.
The issues presented by this case are close and difficult. It is neither the function of the trial court nor of this court to try a case submitted to a jury de novo. Our task is to determine the sufficiency of the evidence to support the verdict. We believe that the trial court reached a permissible conclusion upon the basis of Nebraska law in overruling defendant’s motions for directed verdict and for judgment n. o. v.
The judgment is affirmed.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
HUFFMAN et al. v. WESTERN NUCLEAR, INC., et al.
No. 87-645.
Argued April 27, 1988
Decided June 15, 1988
Blackmun, J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Merrill argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Spears, John Harrison, Leonard Schaitman, Richard A. Olderman, Eric J. Fygi, Marc Johnston, and Acting Solicitor General Wallace.
Peter J. Nickles argued the cause for respondents. With him on the brief were William H. Allen, Elliott Schulder, Alan A. Pemberton, Harley W. Shaver, and John H. Licht.
Briefs of amici curiae urging reversal were filed for the Government of Australia by Mark R. Joelson and Joseph P. Griffin; for the Government of Canada by Douglas E. Rosenthal; for Eldorado Nuclear Limited et al. by Robert E. Herzstein; and for Electric Utility Companies by Harry H. Voigt and Paul H. Falon.
Briefs of amici curiae urging affirmance were filed for United States Senators Jeff Bingaman et al. by Senator Pete V. Domenici; and for the State of Arizona et al. by Joseph B. Meyer, Attorney General of Wyoming, and Mary B. Guthrie, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, Duane Woodard of Colorado, Hal Stratton of New Mexico, Brian McKay of Nevada, and David L. Wilkerson of Utah.
Charles H. Montange filed a brief for the Nátional Taxpayers Union as amicus curiae.
Justice Blackmun
delivered the opinion of the Court.
Section 161(v) of the Atomic Energy Act of 1954, as amended, 78 Stat. 606, 42 U. S. C. §2201(v), provides that the Department of Energy (DOE) shall restrict its enrichment of foreign-source uranium intended for use in domestic facilities “to the extent necessary to assure the maintenance of a viable domestic uranium industry.” DOE has determined that the domestic uranium industry has not been “viable” since 1983, and that the imposition of restrictions on the enrichment of foreign uranium would not assure viability. In this case we consider whether § 161(v) requires DOE to restrict the enrichment of foreign uranium, irrespective of whether such restriction would make the domestic industry viable. We conclude that it does not.
I — I
In 1964, as part of its efforts to move the nuclear-power industry into the private sector, Congress enacted the Private Ownership of Special Nuclear Materials Act (Act), Pub. L. 88-489, 78 Stat. 602, which amended the Atomic Energy Act of 1954 to permit privately owned utilities operating nuclear reactors also to own, for the first time, the uranium used for fuel in their reactors. At the time of the statute’s enactment, DOE’s predecessor, the Atomic Energy Commission (AEC), was the only entity in the world with the facilities to convert natural uranium into the enriched uranium used for fuel in commercial reactors. In § 161(v), Congress accounted for this defacto monopoly by authorizing the AEC to offer “toll enrichment” services whereby utilities could obtain unenriched uranium on the open market and have it enriched by the AEC for a fee. It ’was to protect the uranium mining and milling industry from foreign, competition during the period of transition from a Government-controlled market to an open one, that Congress included in § 161(v) the requirement that the AEC, in written “criteria,” restrict its enrichment of foreign-source uranium for domestic use “to the extent necessary to assure the maintenance of a viable domestic uranium industry.”
The criteria initially established by the AEC provided that it would enrich no foreign-source uranium for domestic use. See 31 Fed. Reg. 16479 (1966). In 1974, expecting an increase in the demand for uranium to match the anticipated expansion in the commercial use of nuclear power, the AEC amended the criteria and provided for the gradual elimination by the end of 1983 of restrictions on its enrichment of foreign-source uranium for domestic use. See 39 Fed. Reg. 38016 (1974). The phase-out took place according to schedule, and DOE, which has replaced AEC for these purposes, has not reimposed restrictions on the enrichment of foreign uranium.
The early optimistic forecast for the commercial use of nuclear power turned gloomy in the late 1970’s and early 1980’s, and the economic condition of the domestic uranium industry deteriorated. Cancellations and delays in the construction of nuclear reactors led to a drop in the demand for uranium, which, in turn, brought about a precipitous decline in the price of uranium ore. The decline of the domestic uranium industry has also been attributed to other developments in the national and international markets. DOE lost its enrichment monopoly when two European consortia and the Soviet Union began to supply enriched uranium produced from foreign-source ore. See 51 Fed. Reg. 3625 (1986). This allowed foreign uranium suppliers, who offered lower prices, to compete successfully with domestic suppliers for the business of the domestic utilities.' Another competitive alternative was the emergence of a secondary market in which domestic utilities, bound by long-term contracts to purchase enrichment services in excess of their needs, sold their enriched uranium to other utilities at substantial discounts. Ibid.
In 1983, § 170B was added to the Atomic Energy Act of 1954 to improve Congress’ ability to monitor the domestic uranium industry’s condition. 96 Stat. 2081, 42 U. S. C. § 2210b. This new provision required the Secretary of Energy to promulgate criteria for assessing the viability of the industry and to report to the President and the Congress annually on the industry’s viability. DOE accordingly issued criteria, still in effect, see 10 CFR pt. 761 (1988), which define viability largely in terms of “the extent to which the domestic mining and milling uranium industry will be capable, at any particular time, of supplying the needs of the domestic nuclear power industry under a variety of hypothetical conditions.” 48 Fed. Reg. 45747 (1983). Applying these criteria, DOE reported that the industry was viable in 1983, but that one year later it was no longer viable. See S. Rep. No. 100-214, p. 9 (1987) (noting no change in viability in 1985 and no change in prospect for industry’s viability in 1986).
Shortly after the Secretary first reported that the industry was not viable, he initiated a rulemaking to consider revising the criteria governing DOE’s restriction of enrichment services. 51 Fed. Reg. 3624-3632 (1986). In his notice of proposed rulemaking, the Secretary specifically stated that, despite the depressed condition of the domestic industry, he proposed not to restrict the enrichment of foreign uranium because “[ijmport restrictions on foreign uranium would not assure the viability of the.domestic mining and milling industry.” Id., at 3627.
After receiving extensive comments, the Secretary adopted final revised criteria that again did not include any restrictions on enrichment. See 10 CFR pt. 762 (1988). In response to critical comments from the domestic uranium industry, the Secretary explained: “The plain language of the statute makes clear that restrictions are not to be imposed automatically if the domestic industry is non-viable, but only if they are needed to, and in fact, will assure the. maintenance of a viable domestic uranium industry.” 51 Fed. Reg. 27134 (1986). Finding that the domestic industry’s problems were due to “[structural weaknesses,” particularly the collapse in demand and the consequent inability of the market to sustain a price for uranium that enabled the industry to recover its cost of production, the Secretary concluded that restrictions on enrichment would do nothing to cure those ills. Id., at 27135. Moreover, the Secretary found that, because DOE had no market power with respect to the provision of enrichment services, it could not force its enrichment customers to use domestic uranium. Id., at 27138. The ‘Secretary repeated his earlier conclusion that restrictions on enrichment services “would not assure the viability of the domestic mining and milling industry,” id., at 27135, and, if anything, would be “counterproductive,” because such restrictions would send some customers away, requiring DOE to impose heavier costs on the remaining domestic suppliers. Id., at 27136.
Before the Secretary had concluded that the industry was not viable, and before he had initiated this latest rulemaking, respondents, three domestic uranium mining and milling companies, filed suit in the United States District Court for the District of Colorado against DOE and some of its officers and employees, petitioners here. Respondents alleged, among other things, that DOE’s failure to impose restrictions on the enrichment of foreign uranium for use in domestic facilities constituted a violation of §161(v). App. 10-15. Respondents moved for summary judgment based on this claim, arguing that two facts — that the domestic industry was not viable and that DOE imposed no restrictions on enrichment of foreign uranium — sufficed'.to establish their entitlement to judgment as a matter of law under § 161(v). App. 27-28. Accepting respondents’ two facts, DOE submitted a cross-motion for summary judgment, arguing that § 161(v) did not require restrictions when those restrictions would not serve the statutory goal of assuring the maintenance of a viable domestic industry. App. 39.
The District Court entered summary judgment for respondents. App. to Pet. for Cert. 22a. According to the court, the statute gave DOE no discretion to determine not to impose restrictions if the domestic industry was not viable. In view of its determination that immediate injunctive relief was necessary to remedy DOE’s “continuing refusal to recognize its obligations under 42 U. S. C. §2201(v),” id., at 22a-23a, the District Court entered an order requiring DOE to limit its enrichment of foreign uranium for domestic use to 25% of all material enriched between June 6 and December 31, 1986; imposing a total ban on enrichment of foreign uranium beginning January 1, 1987, and “continuing until the viability of the domestic uranium industry is assured”; and calling for a rulemaking to be commenced to determine whether “criteria less restrictive than those imposed by this order would assure the maintenance of a viable domestic uranium industry.” Id., at 23a.
DOE appealed to the United States Court of Appeals for the Tenth Circuit. That court affirmed the District Court’s judgment in relevant part. 825 F. 2d 1430 (1987). The Court of Appeals found the language of § 161(v) unambiguous: The term “shall” indicated that the restrictions were mandatory, and the phrase “to the extent necessary to assure the maintenance of a viable domestic uranium industry” indicated that DOE had discretion to “determine how much restriction is required to assure viability, but it cannot decide not to impose restrictions when the industry is not viable.” 825 F. 2d, at 1439. According to the Court of Appeals, the statute clearly instructs that
“when domestic nonviability is determined, restrictions on enrichment of foreign-source uranium must be imposed and must become increasingly aggressive, to the point of 100% restriction, until the domestic industry is rejuvenated and becomes viable.” Ibid.
At DOE’s request, the Court of Appeals stayed its mandate pending this Court’s final disposition of DOE’s petition for certiorari. App. 4. We granted the writ. 484 U. S. 1003 (1988).
II
We begin by emphasizing that the question presented here is a narrow one which comes to us as a challenge to the entry of summary judgment. That judgment rests on a legal conclusion drawn from two uncontested facts: that the domestic uranium industry was not viable, and that DOE was imposing no restrictions on the enrichment of foreign-source uranium for use in domestic facilities. On the basis of these facts alone, the courts below determined that DOE was violating the law, for they read § 161 (v) “to require the DOE to restrict enrichment of foreign uranium whenever the domestic industry is not viable — whether or not such restriction would result in successful resuscitation of the uranium industry.” 825 F. 2d, at 1437. Therefore, neither DOE’s underlying assessment that the industry was not viable, nor its assessment that no amount of restriction would assure the industry’s viability, nor, indeed, what it means to “assure the maintenance of a viable . . . industry” are before us at this time for review. The only question presented is whether, regardless of the effects restrictions would have on the viability of the domestic industry, DOE must impose restrictions on the enrichment of foreign-source uranium whenever the domestic industry is determined not to be viable.
In considering this narrow question of statutory interpretation, we cannot agree with the Court of Appeals’ conclusion that the relevant language in § 161(v) is unambiguous. While respondents’ reading of the statute is not implausible, it is by no means the only reading the language can bear. The statute requires DOE to impose restrictions “to the extent necessary to assure the maintenance of a viable domestic uranium industry.” If some amount of restriction would assure a viable domestic industry, there can be no doubt that DOE is required to impose restrictions. The term “shall” makes clear that, in such circumstances, DOE has no discretion to decline to impose restrictions. But whether that mandate applies when restrictions would not assure viability is not directly addressed by the language of the statute. Indeed, we well might infer from the language that the particular issue presented by this case was not the focus of Congress’ concern at the time the relevant provision was enacted. We therefore look to Congress’ express purpose in imposing restriction requirements to determine whether they apply here.
The purpose of the relevant provision could not be articulated more clearly in the statutory language. See United States v. American Trucking Assns., Inc., 310 U. S. 534, 543 (1940) (“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes”). Congress imposed'restriction obligations on DOE to satisfy a single goal: “to assure the maintenance of a viable domestic uranium industry.”
Both parties agree that this is the clear purpose behind the provision, but they put it to different uses. Respondents contend that the statute reveals that Congress made a policy determination that imposing restrictions on the enrichment of foreign-source uranium could always assure the viability of the domestic industry and therefore commanded DOE to impose some restrictions whenever the industry’s viability was threatened or destroyed. Respondents suggest that DOE’s refusal to impose restrictions under the circumstances presented in this case simply reflects DOE’s disagreement with Congress’ policy judgment. See also 825 F. 2d, at 1439 (“DOE’s argument that this policy is not wise in the present uranium market should be made to Congress and not to the courts”).
DOE, in contrast, asserts that the clear congressional purpose defines the proper limit of DOE’s obligation: DOE is required to impose restrictions to the extent necessary to serve a particular goal, and if no extent will serve that goal, then DOE does not violate the statute by declining to impose restrictions. Indeed, DOE suggests, to impose restrictions it knew were incapable of serving the statutory goal would, in fact, be to act outside its authority.
DOE’s reading strikes us as the more natural one. While the parties, on remand, can argue over whether DOE properly determined that no amount of restriction would assure viability, and, indeed, what it means to assure viability, it seems strained to assert that, even if DOE properly determined that no amount of restriction would assure the viability of the industry, Congress nevertheless intended DOE to impose restrictions that were somehow calculated to serve that unattainable goal. Indeed, it is impossible to ascertain from the statute how DOE would calculate the extent of restriction to be imposed under respondents’ interpretation of the statute. The only guidepost DOE has is the amount necessary to assure the viability of the domestic industry. See 825 F. 2d, at 1438 (interpreting the phrase “to the extent necessary to assure the maintenance of a viable domestic industry” as “informing] the DOE of the amount of restriction required”) (emphasis in original). Where DOE determines that no such amount exists, it is without guidance in setting restrictions. The determination of the courts below that DOE was barred from enriching any foreign-source uranium rests on the assumption that the greater the restrictions, the more assured is the domestic industry’s viability. This assumption cannot be grounded in the statutory language and, indeed, for the purpose of this case’s summary judgment status, we must accept DOE’s assertion that the .assumption is false.
Ill
Because we conclude that Congress did not intend to force DOE to impose enrichment restrictions where such restrictions would not achieve the statutory goal they were intended to achieve, 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.
A purist might regard the word “viable” as misused in this context. It nevertheless appears in the statute and therefore, inescapably, it and its variants are used throughout this opinion. See H. Fowler, Modern English Usage 679 (2d ed. 1965); W. Follett, Modern American Usage 344-345 (1966).
“Enrichment,” in this context, refers to the process whereby the proportion of the fissionable isotope U-235 is increased from approximately 1% to approximately 3%. Natural, unenriehed, uranium cannot be used to produce commercial electric power.
The relevant portion of § 161(v) states that the AEC is authorized to offer toll enrichment services provided:
“That the Commission, to the extent necessary to assure the maintenance of a viable domestic uranium industry, shall not offer such services for source or special nuclear materials of foreign origin intended for use in a utilization facility within or under the jurisdiction of the United States. The Commission shall establish criteria in writing setting forth the terms and conditions under which services provided under this subsection shall be made available including the extent to which such services will be made available for source or special nuclear material of foreign origin intended for use in a utilization facility within or under the jurisdiction of the United States: Provided, That before the Commission establishes such criteria, the proposed criteria shall be submitted to the Joint Committee [on Atomic Energy], and a period of forty-five days shall elapse while Congress is in session . . . unless the Joint Committee by resolution in writing waives the conditions of, or all or any portion of, such forty-five-day period.” 42 U. S. C. §2201(v).
In 1974, Congress enacted the Energy Reorganization Act of 1974, 88 Stat. 1233, as amended, 42 U. S. C. §5801 et seq.,- which abolished the AEC. See § 5814(a). The functions of the AEC were divided between two regulatory bodies. Its “licensing and related regulatory functions” were transferred to the Nuclear Regulatory Commission. § 5841(f). All other functions, including the enrichment-services program, were transferred to the Energy and Research and Development Administration, § 5814(e), which later became DOE, see §§301 and 703 of Department of Energy Organization Act, 91 Stat. 577, 606, 42 U. S. C. §§ 7151(a) and 7293.
Between 1979 and 1986, the market price of uranium dropped from $43.25 per pound to $17.00 per pound, which an industry report suggests is well below the conventional United States producers’ average cost of production. See Status of the Domestic Uranium Mining and Milling Industry: The Effects of Imports, Hearing before the Subcommittee on Energy Research and Development of the Senate Committee on Energy and Natural Resources, 97th Cong., 1st Sess., 148 (1981) (statement of Edison Electric Institute reporting drop from 1979 to 1981); 51 Fed. Reg. 27136, n. 12 (1986) (reporting 1986 price). Apparently the market price has remained low. See Weekly Metals Prices, Financial Times, June 8,1988, p. 34, col. 1 (London ed.) (reporting price of $15.75 per pound).
Petitioners are John S. Herrington, the Secretary of Energy; F. Clark Huffman, Sherry E. Peske, Philip G. Sewell, James W. Vaughn, and Joseph F. Salgado, officers or employees of DOE sued in their official capacities; and DOE itself. For convenience, petitioners are referred to collectively as DOE.
In this motion, respondents also sought summary judgment on their claim that the criteria that DOE promulgated pursuant to § 170B to assess viability were “fatally flawed.” App. 27. Respondents later sought leave to withdraw this portion of their motion without prejudice. This request was granted by the District Court. App. to Pet. for Cert. 24a.
While the appeal was pending, Congress adopted a joint resolution for continuing appropriations to provide funding for DOE and other agencies. 100 Stat. 1783. Section 305 of the resolution expressly authorizes DOE to enrich foreign uranium until the present litigation is brought to final judgment. 100 Stat. 1783-210.
In addition to arguing that its interpretation of § 161(v) is more reasonable, DOE maintains that, even if the two interpretations are equally reasonable, its interpretation is entitled to deference as a “permissible construction” of a statute by the agency charged with the statute’s administration. See Young v. Community Nutrition Institute, 476 U. S. 974, 980 (1986), quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). Although respondents contend that DOE’s interpretation of § 161(v) has not been consistent over the years and is therefore not entitled to deference, see Brief for Respondents 34, it is unclear whether DOE articulated, in advance of this litigation, any interpretation of the statute’s application to the facts presented here. On July 29, 1986, more than one month after the District Court had issued its order granting summary judgment, DOE issued a final rulemaking, stating that it would continue to refuse to impose enrichment restrictions “in order [in part] to formally record DOE’s interpretation of section 161(v).” 51 Fed. Reg. 27134, n. 4 (1986). Because we agree that DOE’s reading of § 161(v) is the more plausible one, we need not consider whether the manner in which DOE has articulated its interpretation should affect the degree of deference it warrants. Cf. Securities Industry Assn. v. Board of Governors, FRS, 468 U. S. 137, 143-144 (1984) (Board counsel’s post hoc rationalizations for agency action entitled to little deference).
Of course, DOE would be in a different position if Congress expressly had required that restrictions be imposed whenever the industry was not viable without tying the extent of restrictions to be imposed to the achievement of a stated purpose. Were DOE governed by such a statute, its disagreement with the wisdom of the requirement would not give DOE the discretion to ignore it.
While DOE styled its response to respondents’ motion for summary judgment as a cross-motion for summary judgment as well as a memorandum in opposition, see App. 39, DOE’s successful opposition to respondents’ motion is insufficient to establish that it is entitled to summary judgment in its favor. All we have resolved here is that the industry’s nonviability does not necessarily trigger an obligation to impose enrichment restrictions. Whether DOE, in fact, has violated § 161(v) by failing to impose restrictions is a question to be addressed, in the first instance, on remand after an opportunity for presentation of further evidence and further briefing.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
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.
DARKS v. ICKES, Secretary of the Interior.
No. 6053.
Court of Appeals of the District of Columbia.
Argued Jan. 8, 1934.
Decided Feb. 5, 1934.
E. J. Van Court, of Eufaula, Old., and Paul M. Niebell, of Washington, D. C., for appellant.
Nathan R. Margold, Charles Fahy, J. Kennard Cheadle, and Frederic L. Kirgis, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
PER CURIAM.
This appeal is from a judgment of the Supreme Court of the District of Columbia dismissing a petition for a writ of mandamus to compel the Secretary of the Interior to pay over certain funds in his possession, accumulated from oil leases on the restricted land of Thomas Long, a full-blood Creek Indian.
Long died in 1932, leaving a will in which his estate was devised to his wife and children, full-blood Indians of the Creek Tribe, one of the Five Civilized Tribes, in Oklahoma. The Secretary contests the right of the administrator of Long to these funds on tlie ground that they are properly held by him as restricted under the Act of January 27, 1933, 47 Stat. 777.
Under the Act of April 26, 1996', 34 Stat. 137, the will operated to remove the restrictions at the'time of Long’s death, when the title to his property passed to the devisees under the will. These devisees, however, were Indians of full blood of the Creek Tribe; and, as wards of the government, the funds, so long as they remained in the possession of the Secretary of the Interior, were subject to such disposition as Congress might see fit to make. In this situation they became restricted under the 1933 act, preserving the jurisdiction of the Secretary of the Interior over the funds. The 1933 act did not operate to repeal the 1996 act, but merely to modify its provisions in regard to the removal of the restrictions of property passing by will. Under the 1906 act, an Indian may still make a valid will, and his property will pass to the legal devisees as therein provided, and, but for the 1933 act, tlie devisees would take the property in full right clear of restrictions. Blundell v. Wallace, 267 U. S. 373, 45 S. Ct. 247, 69 L. Ed. 664. But the 1933 act lias placed a restriction upon all property of this class. This Congress had the power to do in the exercise of guardianship over the Indians of the class embraced within the terms of the act.
The court below was right in denying the writ on the authority of King v. Ickes, 62 App. D. C. 83, 64 F. (2d) 979; and Ickes v. Perry, 62 App. D. C. 86, 64 F.(2d) 982, which are controlling in this ease.
The judgment is affirmed.
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:
|
sc_issuearea
|
B
|
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.
ROBERTS v. LaVALLEE, WARDEN.
No. 193,
Misc.
Decided October 23, 1967.
Warren H. Greene, Jr., for petitioner.
Leon B. Polsky for the Legal Aid Society of New York, as amiaus curiae, in support of the petition.
Per Curiam.
Petitioner is an indigent. He was charged with robbery, larceny, and assault in New York. When his case was called for trial, petitioner asked that the court furnish him, at state expense, with the minutes of a prior preliminary hearing, at which the major state witnesses had testified. A New York statute provided that a transcript of the hearing would be furnished “on payment of . . . fees at the rate of five cents for every hundred words.” N. Y. Code Crim. Proc. § 206. The trial court denied the request for a free transcript.
Petitioner was convicted of the crimes charged and sentenced to a term of 15-20 years in prison. His conviction was affirmed by the Appellate Division of the New York Supreme Court. The New York Court of Appeals denied leave to appeal. We denied a petition for certiorari. The issue under the Federal Constitution of the denial of the preliminary hearing transcript was raised by petitioner at each stage of these proceedings.
Petitioner next applied for habeas corpus in the Northern District of New York. His petition was denied, the court believing that petitioner had no federal constitutional right to a free transcript of his preliminary hearing. Thereafter, the New York Court of Appeals decided People v. Montgomery, 18 N. Y. 2d 993, 224 N. E. 2d 730 (1966). That case holds that the statutory requirement of payment for a preliminary hearing transcript, as applied to an indigent, is a denial of equal protection and unconstitutional, under both the Federal and State Constitutions.
On petitioner’s appeal from the District Court, the Court of Appeals for the Second Circuit determined that petitioner should apply to the state courts for relief under the doctrine of Montgomery. The court acknowledged that petitioner had already exhausted his state remedies. But it thought the “constitutional necessity for federal court intervention” was “open to doubt” and that “the question ought to be decided in favor of permitting a state court determination in the first instance.” Accordingly, it dismissed the petition for habeas corpus without prejudice to renewal of the questions presented by petitioner after further proceedings in the courts of New York.
Petitioner sought certiorari. We grant the writ, and we vacate the judgment below.
Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution. See, e. g., Draper v. Washington, 372 U. S. 487 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). Only last Term, in Long v. District Court of Iowa, 385 U. S. 192 (1966), we reiterated the statement first made in Smith v. Bennett, 365 U. S. 708, 709 (1961), that “to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.” We have no doubt that the New York statute struck down by the New York Court of Appeals in Montgomery, as applied to deny a free transcript to an indigent, could not meet the test of our prior decisions.
Nor do we believe there can be any doubt that petitioner adequately made known his desire to obtain the minutes of his preliminary hearing. We agree with Judge Medina, dissenting in the Court of Appeals, that the demand was “clear and unequivocal.”
In Brown v. Allen, 344 U. S. 443 (1953), we considered the statutory requirement, under 28 U. S. C. § 2254, that a petitioner exhaust his state remedies before applying for federal habeas corpus relief. We concluded that Congress had not intended “to require repetitious applications to state courts.” 344 U. S., at 449, n. 3. We declined to rule that the mere possibility of a successful application to the state courts was sufficient to bar federal relief. Such a rule would severely limit the scope of the federal habeas corpus statute.
The observations made in the Brown case apply here. Petitioner has already thoroughly exhausted his state remedies, as the Court of Appeals recognized. Still more state litigation would be both unnecessarily time-consuming and otherwise burdensome. This is not a case in which there is any substantial state interest in ruling once again on petitioner’s case. We can conceive of no reason why the State would wish to burden its judicial calendar with a narrow issue the resolution of which is predetermined by established federal principles.
The motion for leave to proceed in forma pauperis and the writ of certiorari are granted, the judgment is vacated, and the case is remanded to the Court of Appeals for proceedings consistent with this opinion.
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_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.
JOHNSON v. MASSACHUSETTS.
No. 702.
Argued March 6-7, 1968.
Decided April 1, 1968.
John M. Harrington, Jr., argued the cause for petitioner. With him on the briefs was John A. Pike.
Brian E. Concannon, Special Assistant Attorney General of Massachusetts, argued the cause for respondent. With him on the brief were Elliot L. Richard&on, Attorney General, John M. Finn, Deputy Assistant Attorney General, and Howard M. Miller, Assistant Attorney General.
Per Curiam.
In 1964 petitioner was tried and convicted in a Massa--chusetts Superior Court for murder, armed robbery, and other offenses. The conviction was affirmed by the Supreme Judicial Court of Massachusetts. Commonwealth v. Johnson, 352 Mass. 311, 225 N. E. 2d 360. We granted certiorari because there appeared to be substantial questions concerning the voluntariness of a confession of petitioner which was admitted in evidence at his trial. After oral argument and study of the record, we have reached the conclusion that the record relevant to the constitutional claims now asserted is insufficient to permit decision of those claims. The writ is therefore dismissed as improvidently granted. Cf. Smith v. Mississippi, 373 U. S. 238; Massachusetts v. Painten, 389 U. S. 560.
It is so ordered.
Petitioner’s claim on voir dire was that his confession was beaten out of him by police. The trial judge found as a fact that it was not. At the trial itself petitioner did not attack the voluntariness of the confession on any other ground, or raise the other constitutional challenges argued in this Court. The defense at the trial was primarily directed at persuading the jury not to impose the death penalty. The petitioner made an unsworn statement to the jury at the close of summations in which he said, “all the evidence which the prosecutor presented to you was true. There was no sense in my taking the stand because all the evidence points to me. ... All that I ask is just clemency .... I put my life into your hands. Please recommend clemency, life imprisonment.”
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_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.
Elliott Rod JOHNSON, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee.
No. 87-2677.
United States Court of Appeals, Fifth Circuit.
June 23, 1987.
Elliott Rod Johnson, pro se.
James Rebholz, New Orleans, La., for petitioner-appellant.
Jim Mattox, Atty. Gen., Paula C. Offenhauser, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before CLARK, Chief Judge, POLITZ and WILLIAMS, Circuit Judges.
BY THE COURT:
In this pro se, successive, delayed petition, Elliott Rod Johnson asserts four grounds of constitutional error in his trial for capital murder at which Johnson received the death penalty. The chronology of this case is as follows:
April 8,1982 — Murder of Joe Angel Granado
May 13,1982 — Johnson indicted
May 25-6,1983 — Trial
Oct. 31,1984 —Texas Court of Criminal Appeals affirms, 691 S.W.2d 619
Jan. 30,1985 — Rehearing denied
March 20,1985 — Rehearing denied
Oct. 7,1985 — Petition for certiorari denied by the U.S. Supreme Court
Oct. 30,1985 — Execution date set, Dec. 4,1985
Nov. 27,1985 — Application for writ of habeas corpus and stay to Texas trial court
Nov. 27,1985 — Trial court denies habeas corpus relief
Dec. 3,1985 — Texas Court of Criminal Appeals denies habeas corpus relief
Dec. 3,1986 — District Court, Eastern District of Texas, grants stay
May 23,1986 — District Court, Eastern District of Texas, denies habeas corpus relief and vacates stay
June 17,1986 — District Court, Eastern District of Texas, denies a certificate of probable cause, 794 F.2d 1011
June 1986 — Execution date reset for July 23,1986
June 30,1986 — Application for a writ of habeas corpus and stay to Fifth Circuit Court of Appeals
July 18,1986 — Fifth Circuit Court of Appeals grants stay and certificate of probable cause
Nov. 12,1986 — Fifth Circuit Court of Appeals affirms denial of habeas relief, 804 F.2d 300
Dec. 2,1986 — Fifth Circuit Court of Appeals orders mandate to issue
Jan. 8,1987 — Execution date reset for Feb. 11,1987
Feb. 5,1987 — Application for stay to the U.S. Supreme Court
Feb. 10,1987 — Justice White grants stay of execution, — U.S.-, 107 S.Ct. 1262, 94 L.Ed.2d 124
May 4,1987 — Certiorari denied, stay vacated automatically, — U.S.-, 107 S.Ct. 1988, 95 L.2d.2d 827
May 1987 — Execution date reset for June 24,1987
June 16,1987 — Second petition for a writ of habeas corpus verified
June 22,1987 — Texas trial court denies habeas corpus relief
June 22,1987 — Second petition for habeas corpus filed with the United States District Court, Eastern District of Texas
June 23,1987 — Texas Court of Criminal Appeals denies habeas corpus relief
June 23,1987 — United States District Court, Eastern District of Texas, denies habeas corpus relief and certificate of probable cause
Based upon an opinion dealing with every issue raised by Johnson in this successive petition, the district court denied habeas corpus relief for abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Court for failure of Johnson to assert in his prior petition the new grounds now raised. For the reasons stated by the district court, we agree with the denial of certificate of probable cause.
Alternatively, the district court considered each of the four issues sought to be raised by Johnson and found each to be legally, procedurally or factually lacking in merit. We have examined each of them and agree that they are without merit. We would add only the following brief comments. The prosecutor did not characterize Johnson’s contentions as “silly little technicalities.” The phrase was part of an urging of the jury to vigorously enforce the law. It was used in reference to some other unidentified cases in which criminals were not convicted because of some “silly little technicality involving searches or confessions or whatever.” We agree with the district court that Johnson has made no showing that this remark deprived him of a fundamentally fair trial. With regard to the constitutional necessity for the appointment of a special prosecutor, we would add that Johnson’s contention is based on the attenuated claim that a partner of a lawyer representing a co-defendant, who was tried separately from Johnson, somehow caused prejudice to Johnson by accepting employment as an assistant district attorney. We agree that Johnson’s claim of constitutional error is frivolous. Finally, it could not possibly be constitutionally prejudicial to Johnson for the court to require an attorney to describe to the court his true experience in handling criminal cases to test Johnson’s false claim that counsel was so inexperienced he could not furnish adequate representation.
For the reasons stated above, the application of Elliott Rod Johnson for permission to appeal in forma pauperis is GRANTED. The application for a certificate of probable cause is DENIED. The application for a stay of the order of the 252nd Judicial District Court of Jefferson County, Texas, setting the execution of Petitioner Elliott Rod Johnson for June 24, 1987, is DENIED.
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_appel1_1_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
TOKYO SHIBAURA ELECTRIC CO. LTD., et al. v. ZENITH RADIO CORPORATION, Appellant.
No. 76-1237.
United States Court of Appeals, Third Circuit.
Argued Oct. 8, 1976.
Decided Jan. 7, 1977.
Thomas S. Lodge, Wilmington, Del., Dugald S. McDougall, McDougall, Hersh & Scott, Chicago, Ill., for appellant.
James M. Tunnell, Jr., Morris, Nichols, Arsht & Tunnell, Wilmington, Del., Edward F. McKie, Jr., Dale H. Hoscheit, Schuyler, Birch, Swindler, McKie & Beckett, Washington, D.C., for appellee.
Before VAN DUSEN and ROSENN, Circuit Judges, and CAHN, District Judge.
Edward N. Cahn of the United States District Court for the Eastern District of Pennsylvania sitting by designation.
OPINION OF THE COURT
ROSENN, Circuit Judge.
The quest to improve the brightness and contrast of the color television picture tube forms the backdrop of this appeal. The appellees, a Japanese company and its United States subsidiaries (hereinafter referred to collectively as “Toshiba”), brought an action against Zenith Radio Corporation (“Zenith”) seeking a declaration of the invalidity, non-infringement, and unenforceability of Zenith’s United States Letters Patent No. 3,146,368 (“the ’368 patent”). Zenith counterclaimed, alleging that Toshiba’s Blackstripe picture tube infringed the ’368 patent. The district court decided that Claims 1, 2, 3, 4, 5, 6, and 9 of the ’368 patent were not invalid for lack of novelty or because of the manner in which they were obtained, and that, assuming the patent to be valid and enforceable, those claims were infringed by the Blackstripe tube. The court also determined, however, that the color picture tube concepts embodied in the ’368 patent were obvious in view of the prior art, and that the patent was therefore invalid under 35 U.S.C. § 103 (1970). Tokyo Shibaura Electric Co. v. Zenith Radio Corp., 404 F.Supp. 547 (D. Del. 1975). The sole issue presented on appeal is whether Zenith’s patent is invalid for obviousness. After a thorough review of the record, we conclude that it is, and affirm the judgment of the district court.
I.
The facts of this case, including a comprehensive exposition of the state of color picture tube technology prior to the ’368 patent, are recited with commendable clarity in the reported opinion of the district court. 404 F.Supp. at 550-58. We shall therefore sketch only the essential details.
In a conventional color tube produced commercially prior to the ’368 patent, the inside surface of the viewing screen is coated with tangent triads of phosphor dots. Each triad is composed of phosphors— chemical materials which, when bombarded by electron beams emanating from a cluster of three guns mounted in the neck of the tube, emit the colors of either red, green, or blue. Any visible color can be reproduced by bombarding the appropriate combination of these phosphors, and the brightness of the emitted colors can be regulated by varying the intensity of bombardment.
Accuracy of color reproduction requires that the electron beam bombard the proper phosphor at the proper time with the proper intensity. Every commercially available color television set today employs a “shadow mask” to enhance precision in color selection. The mask, a thin metal membrane positioned immediately behind and parallel to the screen, is perforated with a large number of small apertures; each aperture is located directly behind the center of a triad of tangent phosphor dots, one emitting red light, one blue, and one green. In a shadow mask tube, each of the three electron guns emits electrons intended to strike only the phosphors of a given color. The guns, the mask, and the screen are so situated that the beams from the three guns converge at the mask, with each beam at a different angle. As a consequence, only so much of each beam as will strike the proper phosphor is able to penetrate the mask. The following cross-sectional view illustrates the design of a shadow mask tube:
Ideally, the landing areas of the electron beams would be exactly coincidental with the proper phosphor areas on the screen. Perfect registration of the electron beams, however, demands a precision of mask and screen alignment that is unattainable in a mass production context. In order to achieve accurate color reproduction, it is therefore necessary to incorporate a tolerance for fabrication and alignment errors into the design of the tube.
All tubes sold commercially prior to the ’368 patent allowed for manufacturing errors by making the apertures in the shadow mask slightly smaller than the phosphor dots on the screen. The beam landing areas on the screen, in turn, were smaller than the phosphor dots that they were intended to strike. A “guardband” surrounding the beam landing area within the phosphor resulted, ensuring accurate color reproduction even if a beam wandered slightly because of misalignment of the mask and screen. This method of providing an allowance for manufacturing errors is known today as “positive tolerance.”
The conventional shadow mask tube had several disadvantages. For example, the phosphors that were not being bombarded at any given moment reflected room light, reducing contrast. Because the phosphor dots lay tangent to one another, they virtually covered the screen and reflected a large amount of room light back at the television viewer. Contrast could be improved by constructing the viewing screen of gray, light-absorbing glass, but this had the side effect of reducing picture brightness.
The ’368 patent solved some of the most obvious problems of the conventional shadow mask tube. Claim 1 of the patent describes a shadow mask tube in which the phosphor areas on the screen are “spaced from all adjacent such areas by intermediate light absorbing areas,” and in which the mask itself is perforated by apertures that are larger than the phosphor dots. Such a tube provides better picture contrast than the conventional tube: Because less screen area is covered by phosphors, and because a significant portion of the screen is covered by black, light-absorbing material, much less room light is reflected back at the viewer. Moreover, the increased contrast permits the use of a clear glass viewing screen, which improves brightness.
To use the positive tolerance concept in the ’368 tube would adversely affect brightness. The spaced phosphors in the ’368 design are reduced in size to accommodate the surrounding light-absorbing material; if the electron beam landing areas were made even smaller than the phosphor dots to provide positive tolerance, the illuminable phosphor areas on the screen would be much less than in a conventional tube. The ’368 patent, however, recognizes that the positive tolerance system of ensuring accurate color reproduction is not necessary when each phosphor dot is surrounded by black material. The patent teaches that that material provides a built-in guardband which protects against slightly wandering electron beams. With that guardband, the beam landing areas can be larger than the phosphor dots. In fact, even though the dots in a ’368 tube are smaller than the dots in a conventional tube, the beam landing area made possible by the black guardband can be used to maintain the brightness level of a conventional tube. (If the size of the phosphor dot in a ’368 tube is reduced to the size of the beam landing area in a conventional tube, the size of the landing area in the ’368 tube can be increased to the size of the phosphor dot in a conventional tube. The illuminated areas of the phosphors in both tubes are then the same.) When the clear glass viewing screen disclosed by the ’368 patent is used, brightness exceeds that of a conventional tube. The system of electron beam landing areas larger than the phosphor dots is known today as “negative tolerance.”
The district court determined that the two most relevant prior art references were a patent issued to Frank J. Bingley in July, 1958, and an article by Sam H. Kaplan entitled “Theory of Parallax Barriers” published in the July, 1952 issue of the Journal of the Society of Motion Picture and Television Engineers. The Bingley patent is concerned primarily with index tubes rather than shadow mask tubes. In index tubes, the phosphors are deposited on the viewing screen in stripes. One electron gun sweeps the screen with a single beam that is unimpeded by a shadow mask; the beam bombards the phosphors of each color in turn. The Bingley patent, however, also deals in part with shadow mask tubes. The patent discloses a shadow mask tube with spaced phosphor dots separated by black, light-absorbing material. Although Bingley says nothing about the relationship between beam landing areas and phosphor sizes in the context of a shadow mask tube, Bingley does say that in an index tube the scanning beam spot size may be larger than the width of the phosphor strip. Furthermore, Bingley discloses the use of a clear glass faceplate.
The Kaplan article teaches two alternative ways of avoiding overlap of electron beams onto the wrong phosphor dots in a shadow mask tube: either the size of the apertures in the shadow mask can be reduced, thereby reducing the size of the beam landing areas, or the size of the phosphor dots can be reduced, so that in the spaces where beam landing areas overlap the beams will not strike any phosphors. The first alternative results in the positive tolerance system employed in conventional shadow mask tubes. The second alternative results in a tube in which beam landing areas are larger than their corresponding spaced phosphor dots, although it does not necessarily result in the negative tolerance tube of the ’368 patent.
The district court observed that the level of ordinary skill in the art of color television picture tube design was high, and determined that “a person having ordinary skill in the art” at the time the ’368 patent was conceived, 35 U.S.C. § 103 (1970), would have been led inexorably from the spaced-phosphor-dot teaching of Bingley to the negative tolerance concept of the ’368 patent. If the hypothetical skilled artisan following Bingley had reduced the size of the phosphor dots to accommodate light-absorbing material and employed the conventional positive tolerance concept, the court said, he
would first have regretted the loss of brightness inherent in reducing the size of the landing areas to maintain the proper guardband within the now-reduced-in-size phosphor dots and then would quickly have perceived that there was no longer any need to maintain this particular relationship — that [accurate color reproduction] could be insured ... so long as the guardband of the width customary in prior art tubes was preserved between the outer edge of each beam landing area and adjacent phosphor dots. Having thus conceived of the screen geometry ... of the ’368 patent, the addition of clear glass to improve brightness would have been an obvious next step.
404 F.Supp. at 565-66 (footnote omitted).
Moreover, the court noted Bingley’s teaching that when phosphors are spaced and surrounded by black material it becomes practical to have a beam landing area larger than the phosphor, as long as the landing area does not exceed the total size of the phosphor area and the black material on either side of it. The court found that it would have occurred to a person of ordinary skill in the art to apply this disclosure, made in the context of an index tube, to a shadow mask tube. Finally, the district court considered Kaplan’s second solution to the problem of color contamination in a shadow mask tube, that is, reducing the size of the phosphor dots without changing the size of the mask apertures. Kaplan’s teaching of theoretical landing areas larger than the phosphor dots, the court found, “would have virtually compelled consideration of a comparable relationship between effective landing areas and the phosphor dots and of the utility of such a relationship in providing tolerance without loss of brightness.” 404 F.Supp. at 567 (emphasis in original). The court con-eluded that the ’368 patent was obvious in light of both the Bingley patent alone and the combination of Bingley with Kaplan.
II.
We begin our analysis, as the district court began its, with the recognition that a patent is presumed to be valid, and that the burden of establishing invalidity rests on the party asserting it. 35 U.S.C. § 282 (1970). Furthermore, in this circuit invalidity must be demonstrated by clear and convincing proof. Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equipment Corp., 546 F.2d 530, at 540 (3d Cir. 1976); Trio Process Corp. v. L. Goldstein’s Sons, Inc., 461 F.2d 66, 70 (3d Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972).
The ultimate determination of patent validity is a conclusion of law reviewable for error, but the resolution of the obviousness issue depends on several basic factual inquiries reviewable under the “clearly erroneous” standard of Fed.R. Civ.P. 52(a). See Sakraida v. Ag Pro, Inc., 425 U.S. 273, 280, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976); cases cited in Flour City Architectural Metals v. Alpana Aluminum Products, Inc., 454 F.2d 98, 106 n.8 (8th Cir. 1972); Philips Electronic & Pharmaceutical Industries Corp. v. Thermal & Electronics Industries, Inc., 450 F.2d 1164, 1172 (3d Cir. 1971). In Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the Supreme Court enumerated the factual inquiries that underlie the determination of obviousness. First, the scope and content of the prior art are to be discerned; second, the differences between the prior art and the claims at issue are to be ascertained; and third, the level of ordinary skill in the art must be resolved. In addition, the Court said, “[s]uch secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness, these inquiries may have relevancy.” Id. at 17-18, 86 S.Ct. at 694. Counsel for Zenith stated at oral argument that the appellant does not challenge the district court’s findings of fact, but rather avers that that court’s determination of obviousness resulted from the application of faulty principles of patent and evidence law. We undertake our consideration of the appellant’s contentions mindful of the legal nature of all the issues raised, and cognizant of our obligation to make an independent judgment on the ultimate conclusion of obviousness.
III.
Zenith maintains that the district court’s conclusion of obviousness was tainted by hindsight. The district judge reasoned backwards, the appellant insists, by reading into the prior art the teachings of the ’368 patent itself. Without knowledge of the improved picture reproduction made possible by the ’368 patent and of what must be done to achieve that improvement, Zenith submits, the judge could not have determined that the ’368 patent was obvious in light of both the Bingley patent alone and Bingley and the Kaplan article combined.
We perceive no such taint in the district court’s careful execution of the factual analysis mandated by Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). The court evaluated the scope and content of the prior art as of the time that the ’368 patent was conceived, and ascertained the differences between the prior art and the claims at issue from that same perspective. See U.S. Expansion Bolt Co. v. Jordan Industries, Inc., 488 F.2d 566, 568 n.3 (3d Cir. 1973); 35 U.S.C. § 103 (1970). To be sure, the district court’s conclusion that the ’368 patent would have been obvious to a person having ordinary skill in the art rested on the assumption that the hypothetical artisan was familiar with the Bingley patent and the Kaplan article, and on the factual finding that the level of ordinary skill in the art was high. That assumption was legally proper, and that factual finding was fully supported by the record.
The district court recognized that any invention, when viewed with the assistance of hindsight, appears obvious in light of the prior art. 404 F.Supp. at 564 n.24. We believe that the district court avoided the temptation to use that assistance. We find its determination of obviousness to be based on a proper interpretation of the state of the prior art and on a correct application of the standards established in Graham v. John Deere Co.
IV.
Zenith contends that if the ’368 concept of beam landing areas larger than phosphor dots was in fact obvious after Bingley, then that idea would have occurred to someone else. That no other researcher conceived the ’368 invention between July 1958, when the Bingley patent was granted, and August 1964, when the patent in suit issued, even though a primary research goal in those years was to increase brightness and contrast, is, Zenith argues, conclusive evidence that the ’368 concept was not obvious.
Zenith would have us treat the failure of others to conceive the patented tube design as a primary and preclusive determinant of nonobviousness. In Graham v. John Deere Co., however, the Supreme Court characterized failure of others, commercial success, and long felt but unsolved needs as “secondary considerations” which “might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness,” said the Court, “these inquiries may have relevancy.” 383 U.S. at 17-18, 86 S.Ct. 694 (emphasis added). We have previously stated that these secondary considerations are entitled to “only measured weight” in adjudging obviousness, U.S. Expansion Bolt Co. v. Jordan Industries, Inc., 488 F.2d 566, 572 (3d Cir. 1973); Frank W. Egan & Co. v. Modern Plastic Machinery Corp., 387 F.2d 319, 327 (3d Cir. 1967), cert. denied, 391 U.S. 966, 88 S.Ct. 2036, 20 L.Ed.2d 879 (1968), and that they cannot, by themselves, support a finding of nonobviousness if it is otherwise established that a patent’s disclosures are obvious in light of the prior art. Continental Can Co. v. Crown Cork & Seal Co., 415 F.2d 601, 602 (3d Cir. 1969), cert. denied, 397 U.S. 914, 90 S.Ct. 916, 25 L.Ed.2d 94 (1970).
In the instant case, the district judge took account of the secondary considerations mentioned in Graham. He noted the improved brightness and contrast that resulted when the negative tolerance concept was first practiced commercially in Zenith’s Chromacolor tube, the industry recognition accorded the negative tolerance tube, and the commercial success of the ’368 concept. 404 F.Supp. at 563-64. In addition, he acknowledged the failure of others, but asserted that that consideration could not bear the weight that Zenith sought to place on it. The district judge concluded that the secondary evidence did not overcome the evidence of obviousness arising from the three primary factual inquiries: the scope and content of the prior art, the differences between the prior art and the claims at issue, and the level of ordinary skill in the art.
Our own review of the record convinces us that the failure of others to discern the negative tolerance concept in the prior art is not preclusive evidence of nonobviousness. We conclude that the primary indicators of obviousness enumerated in Graham provide other, weightier evidence that the ’368 patent would have been obvious to a person of ordinary skill in the art. See Technograph Printed Circuits, Ltd. v. Martin-Marietta Corp., 474 F.2d 798, 808 (4th Cir.) cert. denied, 414 U.S. 880, 94 S.Ct. 68, 38 L.Ed.2d 125 (1973); Reeves Brothers v. U. S. Laminating Corp., 417 F.2d 869, 872 (2d Cir. 1969).
V.
Finally, Zenith asserts that the district judge violated rudimentary principles of evidence law by basing his conclusion of obviousness on a series of unsupported inferences. In particular, the appellant points to the district court’s assumption that the hypothetical artisan of ordinary skill applying Bingley’s teachings to a shadow mask tube would “have regretted the loss of brightness inherent in reducing the size of the landing areas to maintain the proper guardbands within the now-redueedin-size phosphor dots . . . .” 404 F.Supp. at 565. Why, Zenith asks, would he have regretted that loss of brightness when he had improved contrast by using light-absorbing material between the phosphor dots, and when he could recover the lost brightness by using a clear glass faceplate? Furthermore, Zenith argues, upon that first unwarranted assumption the district judge erected a second. He assumed that the hypothetical artisan, upon having “regretted” a loss in brightness, “then would quickly have perceived that there was no longer any need to maintain” the conventional positive tolerance design in which the phosphor dots were larger than the beam landing areas. Id. The record affirmatively shows this second assumption to be unfounded, Zenith insists, because no one else perceived the negative tolerance concept in the six years between the appearance of Bingley and the issuance of the ’368 patent. Zenith concludes that this “piling of assumptions upon assumptions” violated the rule that when an ultimate fact is inferred from circumstantial facts which themselves rest on inferences, “the prior inferences must be established to the exclusion of any other reasonable theory.” J. Wigmore, Evidence § 41, at 439 (3d ed, 1940), quoting New York Life Insurance Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948, 955 (1938).
We reject Zenith’s contention. The district court did not base inferences on inferences, but rather drew parallel inferences from the same set of facts. See Prudential Insurance Co. v. Glasgow, 208 F.2d 908, 912 (2d Cir. 1953); Annot, 5 A.L.R.3d 100, 120-31 (1966). The real issue as we see it is not whether the district court based inferences upon inferences, but whether the district court’s conclusion of obviousness was based upon remote or unfounded inferences. See United States v. Eustace, 423 F.2d 569, 571 (2d Cir. 1970); cf. Bruce Lincoln-Mercury, Inc. v. Universal C.I.T. Credit Corp., 325 F.2d 2, 22 (3d Cir. 1963).
Zenith’s allegation that the district court’s decision rested upon impermissible inferences assumes, incorrectly, that the failure of others is conclusive proof of non-obviousness, and ignores the fact that the court’s decision was based on more than Bingley’s spaced-phosphor-dot disclosure. The court also considered the Kaplan article and Bingley’s teaching that in an index tube scanning beam spot size can be larger than the width of the phosphor strip. In view of the high level of skill in the art, Bingley’s disclosure of spaced phosphor dots in a shadow mask tube and beam spot size larger than the phosphors in an index tube, and the Kaplan article, we conclude that the record fully supports the inference that the ’368 patent would have been obvious to a person of ordinary skill in the art.
VI.
Accordingly, the judgment of the district court will be affirmed.
. The patent was issued on August 25, 1964, to Joseph P. Fiore and Sam H. Kaplan, who assigned their rights to the Rauland Corporation. Rauland, a wholly-owned subsidiary of Zenith, was merged into the parent corporation effective November 30, 1968. Consequently, Zenith is now the record owner of the ’368 patent. Zenith’s Chromacolor picture tube employs the concepts taught by the ’368 patent.
. 35 U.S.C. § 103 (1970) provides:
A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title [relating to novelty], if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
. Toshiba initially cross-appealed from those paragraphs of the judgment decreeing that the patent in suit was not invalid for lack of novelty under 35 U.S.C. § 102 (1970), as amended (Supp. III 1973), or because of the manner in which those claims were obtained, and that no award of attorneys’ fees was justified. Toshiba subsequently decided not to press the cross-appeal.
. The phosphors themselves are actually whitish except when being bombarded by electrons. For convenience, we shall refer to the phosphors by the color they emit when bombarded.
. This freehand diagram is reproduced from Judge Stapleton’s opinion, 404 F.Supp. at 551.
. We agree with the district court that the claims of the ’368 patent cover the negative tolerance concept. See 404 F.Supp. at 557-58.
. United States Letters Patent No. 2,842,697.
. Kaplan is one of the co-inventors of the ’368 patent.
. Color selection in an index tube requires exact synchronization of the position and modulation of the electron beam. Because of the practical problems of achieving the required precision, index tubes have never been manufactured for commercial use.
. The district judge offered two explanations for why Kaplan’s second alternative was not practiced in the art. First, “it was not until many years later that commercially practicable techniques were developed for the production of tubes with phosphor dots smaller than the mask apertures . . . Second, “before the use of black, light-absorbing material between spaced phosphor dots was taught by Bingley, such a tube would have reflected room light back at the viewer like a mirror”; the aluminum layer ordinarily placed on top of the phosphors on the inside surface of the screen would have been revealed in the spaces between the dots. 404 F.Supp. at 561-62.
. Zenith contended at trial that following Kaplan’s second alternative would result in a “zero tolerance” condition, because any movement of an electron beam landing area would cause the beam to impinge on another phosphor dot. See 404 F.Supp. at 562 & Figure 5. Toshiba responded that there was an inherent tolerance in Kaplan’s second alternative, because it was well known that the “theoretical” beam landing area that Kaplan described — that area of the screen large enough to encompass the impact points of all electrons penetrating a particular aperture — exceeds the “effective” beam • landing area — that area of the screen receiving a sufficient concentration of electrons to cause a particular phosphor to fluoresce. The district court agreed with Toshiba, but conceded that having theoretical landing areas larger than the phosphor dots does not necessarily involve effective landing areas larger than those dots. The particular dimensions of the tolerance, the court acknowledged, depend in any given tube on the details of its design. 404 F.Supp. at 562, 567.
. In so finding, the court rejected Zenith’s contention that Bingley’s disclosure was not within the art to which a person of ordinary skill in the art would look for a solution to the problem that the patented device attempted to solve. The court stated that researchers in the shadow mask tube field were well aware of developments in the index tube field. Furthermore, the need to provide tolerance when choosing screen geometry is common to both kinds of tubes. “[Tjhere is nothing inherent in the manufacture of a shadow mask screen,” said the court, “which would make Bingley’s screen geometry suggestion for solving the tolerance problem in an index tube difficult of application in a shadow mask tube. To these facts must be added the fact . . that Bingley’s express suggestion for shadow mask tubes, if pursued with a beam size smaller than the reduced phosphors, would obviously result in a sacrifice of brightness.” 404 F.Supp. at 567 (emphasis in original).
. See note 11 supra.
. This standard is particularly applicable when it appears that the prior art invoked to invalidate a patent has been considered by the Patent Office. See Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equip. Corp., 546 F.2d at 540 n.28 (3d Cir. 1976); Chicago Rawhide Mfg. Co. v. Crane Packing Co., 523 F.2d 452, 458 (7th Cir. 1975) (Stevens, J.), cert. denied, 423 U.S. 1091, 96 S.Ct. 887, 47 L.Ed.2d 103 (1976). In the instant case, neither the Bingley patent nor the Kaplan article was cited in the ’368 file wrapper. The patent examiner did consider patents issued to Morrell (No. 2,795,719) and Evans et al. (No. 3,005,125) which the district court found, in combination, to be equivalent to the Bingley patent’s primary teaching of spaced phosphor dots separated by black material. 404 F.Supp. at 566 n.26. Bingley’s disclosure of beam landing areas larger than the phosphors, made in the context of an index tube, was not present in Morrell or Evans and was therefore not before the examiner. 404 F.Supp. at 566 & n.27.
. Indeed, Zenith complimented Judge Staple-ton in its brief for “an admirable job of analyzing the record and stating the facts accurately.” Both parties adopted the district judge’s recitation of the historical facts in their briefs.
. We recognize nevertheless that because Judge Stapleton had a better opportunity to have the facts explained to him by expert witnesses and the arguments of counsel, his decision on the ultimate question of obviousness merits special respect. His opinion reveals a thorough comprehension of the alleged invention and the prior art. See E-T Indus., Inc. v. Whittaker Corp., 523 F.2d 636, 641 (7th Cir. 1975) (Stevens, J.).
. Zenith does not contend in this court that the district court misdefined the pertinent art. Cf. Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equip. Corp., 546 F.2d 530, at 537 (3d Cir. 1976).
. The hypothetical person having ordinary skill in the art is “charged with knowledge of all that the prior art disclosed at the time of his alleged invention, irrespective of whether persons of ordinary skill in the field, or he himself, or anyone else, actually possessed such all-encompassing familiarity with prior disclosures.” Cool-Fin Electronics Corp. v. International Electronic Research Corp., 491 F.2d 660, 662 n.7 (9th Cir. 1974), quoting Walker v. General Motors Corp., 362 F.2d 56, 60 n.3 (9th Cir. 1966). Accord, Layne-New York Co. v. Allied Asphalt Co., 501 F.2d 405, 406 (3d Cir. 1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975).
. Cf. Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282-83, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976).
. In response to Zenith’s argument that a determination of obviousness could not stand when those in the art did not in fact see what was alleged to have been obvious to them, the district court stated, “Such an argument grows in persuasiveness as the time lengthens during which the prior art was in the public ken. Where, as here, the prior art (Bingley, issued July 8, 1958) was only available for eight months before the alleged invention was described in a writing, the argument loses its force.” 404 F.Supp. at 567 (footnote omitted).
. In Potter Instrument Co. v. ODEC Computer Sys., Inc., 499 F.2d 209, 211 (1st Cir. 1974), the court affirmed a determination of obviousness notwithstanding evidence of the failure of others. The appellant stressed that the patent in suit solved a problem that was widespread in the printing industry; even though a solution had been sought for several years, the prior art had not suggested the patented solution to anyone else — including the developer of the device said to have made the patented object obvious. The court observed that the weight to be accorded secondary evidence of obviousness was a question entrusted primarily to the district court, and went on to state that the evidence of obviousness was sufficient to make recourse to secondary considerations unnecessary.
Zenith’s suggestion that the failure of others to conceive the patented tube design is conclusive proof of nonobviousness blurs the distinctions between the statutory requirements of novelty and nonobviousness. Were we to accept Zenith’s reasoning, we would hold, in effect, that an invention that meets the novelty requirements of 35 U.S.C. § 102 (1970), as amended, (Supp. III 1973), necessarily meets the nonobviousness requirement of 35 U.S.C. §
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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songer_counsel1
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellee, v. James Lee THOMPSON, Defendant-Appellant.
No. 88-5623.
United States Court of Appeals, Fourth Circuit.
Argued March 8, 1989.
Decided Dec. 14, 1989.
Robert Crawford Ervin (Byrd, Byrd, Er-vin, Whisnant, McMahon & Ervin, P.A., Morganton, N.C., on brief), for defendant-appellant.
Karen Ingrid Skrivseth (Thomas J. Ash-craft, U.S. Atty., Charlotte, H. Thomas Church, Asst. U.S. Atty., on brief), for plaintiff-appellee.
Before WIDENER and PHILLIPS, Circuit Judges, and DOUMAR, District Judge for the Eastern District of Virginia, sitting by designation.
ROBERT G. DOUMAR, District Judge:
' James Lee Thompson appeals the sentence imposed upon him by the district court following its finding that Thompson is a career offender under the Federal Sentencing Guidelines. Thompson’s career offender status turns on whether a prior South Carolina conviction for pointing a firearm at a person constitutes a crime of violence as that term is defined by the Sentencing Guidelines. We answer this question of first impression in the affirmative and therefore affirm Thompson’s sentence.
I
On May 25, 1988, Thompson pled guilty to possessing with intent to distribute 22 grams of heroin, and to distributing 22 grams of heroin, both in violation of 21 U.S.C. § 841(a)(1). The plea agreement between the government and Thompson, pursuant to Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure, provided that the government would recommend to the court that any active sentence should not exceed eleven years, even though such a sentence would depart downward from the Sentencing Guidelines if the court found Thompson to be a career offender. The government agreed to make this recommendation because Thompson had provided substantial assistance to the government’s investigation of other persons and promised to continue to do so.
Following the district court’s acceptance of Thompson’s plea, a probation officer prepared a presentence report. The presen-tence report stated that the applicable Guideline imprisonment range for Thompson was 210 to 262 months, based on the officer’s determination that Thompson was a career offender within the meaning of Guideline § 4B1.1. The probation officer’s career offender determination was based on Thompson’s related 1976 South Carolina convictions for obtaining drugs by false prescription and pointing a firearm at a person, and on his 1981 South Carolina conviction for felonious distribution of heroin. The presentence report explained that if Thompson was not found to be a career offender, the applicable Guideline imprisonment range would be from 21 to 27 months.
Thompson challenged the presentence report’s career offender determination both in a written statement of sentencing factors and at the sentencing hearing. Thompson contended that he did not have two prior convictions for either crimes of violence or controlled substances offenses because neither the false prescription offense nor the pointing a firearm offense for which he had been convicted was either a crime of violence or a controlled substances offense within the meaning of the career offender guideline, Guideline § 4B1.1.
The government responded that the pointing a firearm offense was a crime of violence. The district court agreed and found that Thompson was a career offender. In accord with the recommendation of the probation officer and the plea agreement, the court departed downward from the applicable guideline range because of Thompson’s substantial assistance to the government, sentencing him to 132 months’ imprisonment, 3 years’ supervised release, and a special assessment of $100.00. This appeal followed.
II
Under the Federal Sentencing Guidelines, a defendant facing sentencing is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of crimes of violence or controlled substances offenses. Guideline § 4B1.1.
Thompson concedes that he was over eighteen years of age on March 16, 1988, the date on which the events giving rise to his federal conviction for possessing and distributing heroin occurred. Thompson concedes that this offense, as well as his 1981 South Carolina conviction for felonious distribution of heroin, are controlled substance offenses within the meaning of the career offender guideline. Thompson contends that the 1976 South Carolina conviction for pointing a firearm at a person was not a crime of violence within the meaning of the career offender guideline and that he was therefore improperly classified as a career offender.
III
For purposes of the career offender guideline, the Sentencing Guidelines incorporate the definition of the term “crime of violence” contained in 18 U.S.C. § 16. Guideline § 4B1.2(1).
Under 18 U.S.C. § 16, a crime of violence is:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C.A. § 16 (West Supp.1989). Offenses denominated by 18 U.S.C. § 16(a) may be either misdemeanors or felonies, while those described by § 16(b) must be felonies. S.Rep. No. 225, 98th Cong., 2d Sess. 307, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3486-87. However, under the express language of Guideline § 4B1.1, the two prior convictions for purposes of career offender classification must be felony convictions. Accordingly, our inquiry is twofold: whether the South Carolina firearm offense is a felony under the career offender guideline and whether this offense is described by either 18 U.S.C. § 16(a) or (b).
The South Carolina firearm offense is a felony under the career offender guideline. Application note 3 to Guideline § 4B1.2 states that a “prior felony conviction” is
a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed.
Guideline § 4B1.2 application note 3. The South Carolina statute under which Thompson was convicted authorizes imprisonment in the discretion of the court. This offense is punishable by imprisonment for a term exceeding one year and is, therefore, a felony for purposes of the career offender guideline.
Thompson and the government advance numerous arguments concerning the applicability of both 18 U.S.C. §§ 16(a) and (b) to the South Carolina firearm offense. We need not determine whether this offense is a crime of violence under 18 U.S.C. § 16(a). Rather, we conclude that the South Carolina firearm offense is a crime of violence under 18 U.S.C. § 16(b) as incorporated by Guideline § 4B1.2(1). Pointing a firearm at a person is an offense “that, by its nature, involves a substantial risk that physical force against the person ... of another may be used in the course of committing the offense.” 18 U.S.C.A. § 16(b) (West Supp.1989). This conclusion derives from common sense. It is verified by the reported South Carolina cases involving this offense and by cases from other states concerning analogous firearms offenses.
In each of the reported South Carolina cases, the pointing of a firearm at another person was accompanied by the use of physical force. State v. Wharton, 263 S.C. 437, 211 S.E.2d 237 (1975) (defendant slapped the victim and then “ ‘throwed them two guns up in my face’ ”); State v. Poinsett, 250 S.C. 293, 157 S.E.2d 570 (1967) (defendant pointed and discharged a pistol at the police officers attempting to serve an arrest warrant); Long v. McMillan, 226 S.C. 598, 86 S.E.2d 477 (1955) (arrestee entered a service station and fired three shots at one Gary Miller).
The likelihood that a pointing a firearm offense will involve the use of physical force is further evidenced by cases from other states with similar firearms statutes. See, e.g., State v. Reives, 29 N.C.App. 11, 222 S.E.2d 727 (during the course of a barroom brawl, defendant pulled out a revolver and pointed it at one opponent; when gun did not fire and second opponent grabbed the defendant, defendant mortally shot him in the neck), cert. denied, 289 N.C. 728, 224 S.E.2d 675 (1976); Arizona v. Long, 121 Ariz. 280, 589 P.2d 1312 (1979) (during an argument at a party, defendant picked up a firearm which discharged in an ensuing struggle; the bullet struck another person in the leg). We recognize that physical force is not always utilized during the course of these offenses. See, e.g., Kelsoe v. Virginia, 226 Va. 197, 308 S.E.2d 104 (1983) (Following an argument between defendant and three men, defendant drew a pistol from his coat and pointed it at them. Frightened, the men backed away. The defendant returned the handgun to his coat.). A substantial risk that physical force may be used is, however, invariably present in these cases. This is the determinative factor under 18 U.S.C. § 16(b). It is this substantial risk, coupled with its felony status, that renders the South Carolina pointing a firearm offense a crime of violence for purposes of the career offender guideline.
Thompson seeks to avoid our reaching this conclusion by advancing two classification arguments. Thompson first points out that South Carolina is the only state within the Fourth Circuit that authorizes imprisonment in excess of one year for pointing a firearm. Because South Carolina is the only state within the jurisdiction of this Court in which pointing a firearm constitutes a felony for purpose of career offender status under the Guidelines, Thompson argues that finding this offense to constitute a crime of violence would thwart the Guidelines’ goal of uniformity in federal sentencing. This argument is not persuasive.
Thompson does not challenge the Sentencing Commission’s definition of a felony as an offense which is punishable by a term of imprisonment in excess of one year. Accordingly, the essence of Thompson’s first argument is that, in comparison with other states, South Carolina disproportionately punishes pointing a firearm. Even if this is true, however, a federal court assessing a defendant’s criminal history may properly give weight to a state’s expression of morals and of policy represented by the severity that state accords to a particular offense for which the defendant was convicted. Federal sentencing need not and should not replace those choices made by states. While uniformity in federal sentencing is an important goal, it does not require that a federal “value” be placed on each and every state offense which falls within the Sentencing Guidelines’ definition of a crime of violence.
Thompson also argues that finding that a pointing a firearm offense constitutes a crime of violence would similarly treat disparate offenders, i.e., a defendant with a prior pointing a firearm conviction would be classified the same as a defendant with a prior murder conviction.
If accepted, this argument would render useless 18 U.S.C. § 16(b) as incorporated by the career offender guideline. While pointing a firearm is qualitatively dissimilar from murder, Congress and the Sentencing Commission chose to define a crime of violence as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another or that, by its nature, involves a substantial risk that physical force against the person or property of another may be used. Merely because physical force is not in fact used during the course of an offense does not make it irrational to equate the seriousness of that offense with an offense where force is used and injury inflicted.
Engaging the trigger of a firearm pointed at an individual would likely result in serious harm. Both the individual utilizing a firearm and the person at whom a firearm is pointed would know this. For purposes of deterring or punishing violent crimes, it is not unreasonable or irrational, as Thompson suggests, to treat similarly those individuals previously convicted of crimes involving the actual use of force and those convicted of crimes presenting a substantial risk that force may be used. Pointing a firearm at an individual presents a substantial risk that force may be used.
For the reasons discussed, Thompson’s sentence is
AFFIRMED.
. Thompson appealed his sentence pursuant to 18 U.S.C. § 3742. When Thompson filed his notice of appeal, § 3742(a)(3) limited the right to appeal a sentence in Rule 11(e)(1)(B) plea cases to those instances where the sentence imposed exceeded the sentence recommended in the plea agreement. See 18 U.S.C.A. § 3742(a)(3) (West 1985) (superseded). That limitation was subsequently removed. See 18 U.S.C.A. § 3742(a), (c) (West Supp.1989).
Because we agree with the government that there is no doubt that Thompson's sentence is appealable under the recently amended § 3742, we need not address whether Thompson could have appealed his sentence under unchanged § 3742(a)(2), which authorizes an appeal if a sentence was imposed as a result of an incorrect application of the Sentencing Guidelines. 18 U.S.C.A. § 3742(a)(2) (West Supp.1989).
. The statute reads:
It shall be unlawful for any person to present or point at any other person any loaded or unloaded firearm and, upon conviction therefor, any such person shall be punished by fine or imprisonment, in the discretion of the court. Nothing contained herein shall be construed to abridge the right of self-defense or to apply to theatricals or like performances. S.C.Code Ann. § 16-23-410 (Law.Coop 1985).
. Thompson was actually sentenced to a term of imprisonment not to exceed six years.
. In North Carolina, imprisonment may not exceed six months for the crime of assault by pointing a firearm. N.C.Gen.Stat. § 14-34 (1986). Virginia authorizes imprisonment not to exceed twelve months for pointing or brandishing a firearm. Va.Code § 18.2-282, 18.2-11 (1982). West Virginia mandates imprisonment of not less than thirty days; not more than ninety days. W.Va.Code § 61-7-10 (1989). Maryland does not have a comparable statute.
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
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Charles Helmut LATTIG, Plaintiff-Appellant, v. Alva L. PILLIOD, District Director of Immigration and Naturalization, Chicago, Illinois, Defendant-Appellee.
No. 13100.
United States Court of Appeals Seventh Circuit.
April 26, 1961.
Raymond V. Najarian, Wilmette, Ill., for appellant.
James P. O’Brien, U. S. Atty., Robert N. Caffarelli, Asst. U. S. Atty., Chicago, Ill., R. Tieken, U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and CASTLE, Circuit Judges.
CASTLE, Circuit Judge.
This action was instituted on or about the 13th day of June, 1957, upon a warrant of arrest which was served upon plaintiff-appellant, charging him with being an alien illegally in the United States and subject to deportation pursuant to the Immigration and Nationality Act, section 241(a) (4) (8 U.S.C.A. § 1251(a) (4) on two charges: (1) that plaintiff was excludable at the time of entry because he admitted committing a crime involving moral turpitude prior to entry; and, (2) excludable at time of entry because he was convicted of a crime involving moral turpitude prior to entry.
A hearing was held before a special inquiry officer who, found as proven facts that plaintiff had left this country on or about November 15, 1952 and that he committed a crime involving moral turpitude prior to entry. He found the charge of conviction of a crime prior to entry as not proved. Plaintiff was ordered deported on the first charge. This order was appealed to the Board of Appeals where the finding and order were affirmed. The United States District Court on May 18, 1960 dismissed plaintiff’s petition for review under the Administrative Procedure Act, Section 1001 et seq., 5 U.S.C.A., and entered judgment for the defendant.
This appeal is from the judgment of the United States District Court dismissing plaintiff’s petition. It is contended that the order of deportation is illegal and void for the following reasons: (1) it is contrary to the evidence; (2) the findings and order are not supported by substantial, reliable, sufficient and probative evidence; (3) the findings and order are founded on irrelevant and immaterial evidence; and (4) the dismissal of the appeal by the Board of Immigration Appeals is also void for these same reasons.
The hearing officer found that plaintiff did not acquire United States citizenship subsequent to his birth in Germany and that he was therefore an alien; and that plaintiff admitted that he was convicted of the crime of first degree burglary in August 1952. Plaintiff’s challenge to the evidence is directed to the finding of the hearing officer that “on or about November 15, 1952” the plaintiff last entered the United States at Nogales, Arizona. Such finding, and all other findings of fact must be supported by substantial evidence. Briefly, substantial evidence means evidence that has relevant probative force and which a reasonable mind might accept as adequate to support a conclusion. It does not include the idea of the “weight of the evidence”.
During the hearing a sworn statement bearing plaintiff’s signature was admitted into evidence over the objection of the plaintiff that it had no probative value, was hearsay, and was not the best evidence because the plaintiff was present at the hearing and was available for questioning. Plaintiff admitted that he had signed and initialed such statement. Such statement was given to an immigration inspector in December 1953 while plaintiff was in Arizona State Prison. In that statement the following appears:
“8-Q. Where, when (give hour and date), and how did you enter the United States? A. At Nogales, Arizona. About November 15, 1952. I told the officer there that I was a citizen of the U. S.”
Plaintiff, testifying on his own behalf, admitted that at some time between January and December 1952, he left the United States, went to Mexico, and reentered the United States; that when interviewed by the immigration inspector in 1953 he was not advised that the-questioning was with respect to his status as a deportable alien, or that the person taking the same was an immigration inspector, and that the answer set forth was suggested to him by the interrogator. Plaintiff then proceeded to submit documentary evidence to show the improbability of his making such a trip-on or about November 15th. Such documentary evidence consists of a letter from plaintiff’s employer stating employment of plaintiff for the period September 12, 1952 through November 14, 1952; and a Climatological Data chart for Arizona for the month of November 1952 showing that the temperature at Showlow, Arizona, where plaintiff lived with his father, was 58 degrees on November 14, 45 degrees on November 15 and 34 degrees on November 16, and that the daily precipitation on the 15th was .71 and the 16th 1.08, whicl; was also the “Greatest Day” of “Snow, Sleet, Hail” for Showlow, Arizona.
Plaintiff also testified that his hours of work were from 2 P.M. to 10 P.M. every day; that the distance from Showlow, Arizona to Nogales, Arizona was 350 miles each way; that his employer ceased work on the 14th because of a snow storm and that he was laid off on the 14th for that reason; that he had not driven to Mexico on the following day because he had to wait to get his car out of the driveway — “had to wait for the snowplow”.
It is apparent from the finding made by the hearing officer on the issue of entry that he placed no reliance on plaintiff’s denial and that in his opinion plaintiff’s testimony was not of such convincing character as to overcome his sworn statement. The issue of credibility is solely the function of the hearing officer and not reviewable by the court.
Determination of whether there is substantial evidence does not require that the evidence be weighed, but only that there be reasonable support in the evidence to induce conviction that the finding was proper or that it furnished substantial basis of fact from which the issue tendered could be reasonably resolved.
This court is of the opinion that there existed substantial evidence to support the findings and order of the Immigration and Naturalization Service, and that the hearing officer was justified in fixing the date of entry as “on or about November 15, 1952”.
After a hearing on the petition for review the lower court prepared a memorandum of findings of fact and conclusions of law and it is sufficient to say that they proclaim the fairness and regularity of the deportation proceedings and provide full support of the order deporting Charles Helmut Lattig.
The decision of the district court rests upon a record with sustaining evidence of a substantial, convincing and compelling character, therefore the order dismissing the petition for review is affirmed.
Affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Eerik HEINE, Appellant, v. Juri RAUS, Appellee.
No. 11195.
United States Court of Appeals Fourth Circuit.
July 22, 1968.
Robert J. Stanford, and Ernest C. Raskauskas, Washington, D. C., for appellant.
Paul R. Connolly, Washington, D. C. (Williams & Connolly, E. Barrett Prettyman, Jr., and Hogan & Hartson, Washington, D. C., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BOREMAN and CRAVEN, Circuit Judges.
HAYNSWORTH, Chief Judge:
In this slander action, the plaintiff appeals from an order of summary judgment entered against him, on the ground of governmental privilege, after a partial disclosure limited by invocation by the Central Intelligence Agency of the governmental privilege against disclosure of state secrets. The controversy, thus partially surfaced, arose out of the Central Intelligence Agency’s intelligence and counterintelligence activities and its attempt to expose the plaintiff as a Soviet KGB agent, a defamation which the plaintiff alleges to be false.
The plaintiff, Eerik Heine, is an Estonian emigré residing in Canada. With an apparent history as a “freedom fighter” in Estonia, he was an occasional lecturer in the United States and an exhibitor of an anti-communist film. As such, he was known to the leaders of Estonian emigrés in the United States and apparently entitled to their confidence.
The defendant, Juri Raus, is also an Estonian emigré. He resides in the United States and is the National Commander of the Legion of Estonian Liberation. He readily admits that he told the Board of Directors of the Legion that he was reliably informed by an official agency of the United States that Heine was a Soviet agent or collaborator and that the Legion should not cooperate with him. This, the plaintiff charges, made his film and his lecture no longer salable and brought him into disgrace in the Estonian communities in the United States and Canada.
In his initial answer, Raus claimed only a qualified privilege. He claimed that he had spoken, without malice, only as an officer of the Legion and only on privileged occasions to privileged persons. There was no indication of any involvement of the CIA. Later, however, an amended answer was tendered, supported by a series of affidavits executed by the Director or Deputy Director of the CIA, in which the absolute executive privilege was claimed. In those documents it was alleged that Raus was an undercover or secret agent of the CIA, ad executed special assignments for it in the past and acted under the instructions of the CIA when he “warned” his fellow Legionnaires that Heine was a Soviet agent. Earlier disclosure of these circumstances was said to have been prevented by a CIA secrecy agreement, to which Raus had subscribed and which purported to carry with it punishment for violations under 18 U.S.C.A. §§ 793 and 794, including life imprisonment or death. When the first answer was filed, counsel for the CIA had refused permission to Raus to disclose his CIA connection.
Thereafter, the plaintiff sought to take Raus’ deposition in order to obtain additional information about his employment by the CIA. The Director of the CIA, through his General Counsel, appeared for the taking of the deposition, and, on a question by question basis, in the presence of the Judge, invoked the government’s privilege against disclosure of state secrets. Raus was allowed to state that he had been paid, directly or indirectly, for services he had rendered the CIA, but the privilege was sustained to prevent probing of the details of his employment.
Otherwise, it appears from affidavits of the Director of the CIA that Raus and other Estonian emigrés in the United States had been sources of foreign intelligence and that the purpose of the instruction to Raus to discredit Heine was to protect the integrity of the CIA’s sources of foreign intelligence within Estonian emigré groups or developed through them.
In that state of the litigation, the District Court granted a motion for summary judgment. It was of the opinion that the absolute governmental privilege was available to a government employee such as Raus, who faithfully executed his instructions, as to one of higher authority exercising discretionary functions within the outer perimeter of his authority. We agree, provided the instructions were isued by one having authority to issue them.
I
At the outset it is well to put to one side the question of the CIA’s right to invoke the government’s privilege of silence with respect to “state secrets.”
“The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. The latter requirement is the only one which presents real difficulty.” United States v. Reynolds, 345 U.S. 1, 7—8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953).
The District Court was quite correct in its allowance of the governmental claim of the privilege of secrecy. It was properly invoked generally by the Director of the CIA. The Court made sufficient inquiry — some of it in camera — to assure that it had not been done lightly, without pressing so far as to reveal the very .state secrets the privilege is intended to protect. When the deposition of Raus was taken, he ruled upon each question calling for information arguably within the privilege, requiring Raus to answer those which the Court thought would not impair the privilege while foreclosing answers to those questions which apparently would. In his conduct of the proceedings, we think he balanced, as fairly as possible, the conflicting inter-ests and was faithful to the “formula of compromise” taught by Reynolds.
We affirm the right of the CIA in this case to invoke the governmental privilege against disclosure of state secrets and its allowance, to the extent it was allowed, ^y District Court.
II
On the question of executive privilege in defamation suits, we also agree generally with the District Court, its analysis of Barr v. Matteo and its reasoning, though we come to the conclusion that one more detail should have been supplied before entry of summary judgment,
in Barr v. Matteo, it was held that the Acting Director of the Office of Rent stabilization was entitled to the protection of the absolute executive privilege, Responding to congressional criticism of the agency, Barr issued a press release announcing his intention to suspend two subordinate officials and placing upon their shoulders responsibility for the payouts under criticism. Three justices joined Mr. Justice Harlan in the leading opinion in which the governmental interest in having officials, exercising discretionary authority, assured freedom to act in the interest of the agency without fear of having to defend actions for defamation was balanced against the interest of the individual plaintiffs in seeking judicial rehabilitation of their reputations. With reliance upon the analysis and justification of Judge Learned Hand in Gregorie v. Biddle, 2 Cir., 177 F.2d 579, 581, quoted also by the District Court in its opinion in this case, preference was given to the governmental interest. Mr. Justice Black, emphasizing the interest of the public in being informed of such matters, concurred. Mr. Justice Stewart agreed with the analysis of the leading opinion, but dissented because he thought Barr had acted to save his own hide by diverting criticism from himself to the plaintiffs, and not in the interest of the agency. The Chief Justice and Justices Douglas and Brennan dissented generally on the ground that the absolute executive privilege should be limited to the President and cabinet officers and, possibly, other appointed officials directly responsible to the President.
If “Barr v. Matteo extended the earlier decisions of this Court to what I and others considered to be the breaking point,” as Mr. Chief Justice Warren observed when dissenting from the denial of a writ of certiorari in Becker v. Philco Corp., 389 U.S. 979, 980, 88 S.Ct. 408, 409, 19 L.Ed.2d 473, this case is much closer to the earlier precedents if we assume that the actor was the Director, himself.
Unlike Mr. Barr, the Director of the CIA is appointed by the President of the United States with the advice and consent of the Senate. He is responsible to the President through the National Security Council. His office is not of cabinet rank, but it is a highly sensitive position. Necessarily, the Director must work in close collaboration with the President, himself, and with such cabinet officers as the Secretary of State and the Secretary of Defense. He is closer by far to the White House than an acting Director of Rent Stabilization, a subordinate official under the Director of Economic Stabilization.
In Barr v. Matteo, too, there was room for Mr. Justice Stewart’s view that Barr acted not so much to protect the agency from criticism as to divert the criticism from his shoulders to those of his two subordinates. Here, in contrast, we have no such possibility. While we cannot penetrate the cloak of secrecy which surrounds the CIA, there is no reason to suppose the defamation had any relation to the Director’s personal career or his reputation or to those of his subordinates. For all that appears, it was done entirely out of consideration of the national interest.
The CIA and its Director are specifically charged with the duty and responsibility of protecting sources of foreign intelligence and methods of collecting such intelligence from unauthorized disclosure. That aliens within this country are sources of foreign intelligence, as claimed by the Director, has been recognized by the Congress. If the Director determines that an alien’s entry for permanent residence in the United States is in the interest of national security or essential to the Agency’s intelligence mission, the entry of the alien and his family is allowed though they would be otherwise inadmissible. Unlike Barr, who acted under no direction or specific authorization to issue press releases, action here to protect the integrity of sources of foreign intelligence was explicitly directed by Congress.
If it be said that the defamation here was deliberate, and it was, it was no more deliberate than the defamation in Barr v. Matteo, and its purpose was loftier. While the veil of secrecy hampers our appraisal of the situation confronting the CIA, enough appears to relate the defamation to governmental interests.
The Director has sworn in his affidavits that Raus and other Estonian emigrés in this country had been sources of foreign intelligence and that other sources of such intelligence had been developed through them. Plainly implicit in the Director's affidavits and the testimony is the receipt by the CIA of information, believed reliable, that Heine was a secret Soviet agent. Such agents do not wear the guise of their masters and if one could successfully infiltrate the Estonian emigré sources in this country he could expect to discover the foreign sources of intelligence developed through them. In such circumstances, is the CIA to seek an indictment on charges it cannot prove if the sources of its information are its own secret agents in the Soviet Republic? Is it to sit idly by, suffering a pollution of its sources of foreign intelligence and the intimidation, arrest and persecution of its foreign agents? Or can it protect its sources of information, as required by the statute, by “warning” its own sources that the infiltrator is, or may be, a Soviet agent? In a sensitive area, closely touching national defense, the latter choice seems the one demanded by the national interest, notwithstanding the devastating impact of the warning upon the one thus accused of espionage. While the effect of the defamation upon the plaintiff here may have been greater than the harm suffered by the plaintiffs in Barr v. Matteo, the relation of the defamation to the national interest is much closer.
While the claim of secrecy prevents our obtaining a clear view of the entire scene, the Director’s sworn, but undocumented, claims are enough to support the claim of governmental privilege. That ought to be enough when the statements are those of an official in so responsible an office and a requirement of further documentation and elaboration would violate the privilege of state secrets or greatly burden its exercise.
Thus far, our analysis of the problem is deficient, for we have assumed that the Director, himself, was the author of the defamation. The present record does not show that he was, though it is certainly inferable that the instructions to Raus were given by one having authority from the Director to issue them. In appraising this case in comparison-with Barr v. Matteo, however, it has been useful to start with the assumption that the Director, himself, uttered the defamation, for it should follow, as of course, that the subordinate who acts with the authorization of the superior is entitled to claim the same privilege as the superior.
If, in defamation cases, recognition of an absolute privilege for judges, legislators and highly placed executive officers of the government, when acting in line of duty, is to serve its intended purpose, it must extend to subordinate officials and employees who execute the official’s orders. There would be little purpose to a cloak of immunity for Mr. Barr if Mr. Matteo were allowed to maintain an action for defamation against all of those subordinates in his office who “published” the defamation in the course of handling and distributing the press release. There would be no advantage in protection to a judge against actions for defamation founded upon statements made by him in an official opinion written for his court, if such actions could readily be maintained against his secretary who, at his direction, typed and transmitted the opinion, or against the clerk of the court who published it. If the circumstances impose a compelling moral obligation upon the superior to defend and indemnify the subordinates, immunization of the superior alone from direct defamation actions would be a useless formalism.
Recognition of an absolute privilege of the subordinate by attribution of the superior thus appears to be a necessary corollary of the superior’s privilege. It is generally recognized that an agent, acting within the scope of his authority, does have whatever privilege the principal would have enjoyed if he had acted for himself. The principle is applicable in defamation actions and, if an authorized agent would have been privileged, subsequent ratification confers the privilege upon an unauthorized agent. Applicability of the principle to this case has been suggested in an article generally critical of the District Court’s decision.
We conclude that the absolute privilege is available to Raus if his instructions were issued with the approval of the Director or of a subordinate authorized by the Director, in the subordinate’s discretion, to issue such instructions, or if the giving of the instructions was subsequently ratified and approved by such an official.
Though the Director’s affidavits state that Raus acted under instructions of the CIA, which certainly strongly implies that the instructions were given by, or with the approval of, a responsible, authorized official of the Agency and though the Director’s appearance in the case carries with it a strong implication of his personal ratification and approval, it is said that on the present record there is still a permissible inference that the instructions were given by an unauthorized underling and that his action has never had the approval of a responsible official of the Agency having authority to issue or approve such instructions. The inference seems unlikely, but we cannot say it is foreclosed by the present record.
Since summary judgment was issued, we will vacate the judgment so that, if the plaintiff represents to the District Court serious reliance upon the inference, further inquiry may be had and additional findings made. The inquiry should be directed to the identity of the official within the Agency who authorized or approved the instructions to Raus. Disclosure of the identity of the individual who dealt with Raus is not required; the answer to be sought is whether or not the Director or a Deputy Director or a subordinate official, having authority to do so, authorized, approved or ratified the instructions. If such disclosures are reasonably thought by the District Judge to violate the claimed privilege for state secrets, they may be made in camera, to that extent. Disclosures in camera are inconsistent with the normal rights of a plaintiff of inquiry and cross-examination, of course, but if the two interests cannot be reconciled, the interest of the individual litigant must give way to the government’s privilege against disclosure of its secrets of state.
Finally, we may observe that while we generally approve entry of summary judgment for the defendant, subject only to the limited additional inquiry we direct, the plaintiff would fare no better if the defendant’s privilege were held to be not absolute, but only qualified. Heine cannot controvert the claim of Raus, supported by the CIA, that he acted under instructions of that Agency. Heine claims no publication exceeding the instructions. He has no basis for a showing of malice. If summary judgment is appropriate after the additional, limited inquiry we direct, it will avoid the necessity of a trial and possible compromise of state secrets which the government is entitled to preserve.
Vacated and remanded.
. His overt employment was in the Bureau of Public Roads in Washington.
. Earlier, in an affidavit, the Director, himself, had sought to invoke the secrecy privilege generally as to any information in addition to that disclosed in the affidavits.
. Heine v. Raus, D.C.Md., 261 F.Supp. 570.
. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434; Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454.
. In addition to requiring Raus to answer some questions, the District Court rejected the first affidavits of the Director of the CIA as insufficient to support the claim of absolute governmental privilege. As a result, additional affidavits containing additional information were filed.
. See Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780.
. 50 U.S.C.A. §§ 403(d) (3), 403g.
. 50 U.S.C.A. § 403h.
. Restatement (Second), Agency § 345 (1958).
. Ibid. Illustration 2.
. Ibid. Comment (e).
. Spying and Slandering: An Absolute Privilege for the CIA Agent? 67 Col.L. Rev. 752.
. Here, it would matter not if the instructions were unauthorized within the Agency as long as Raus believed them to be.
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_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
RUSSELL v. LAUGHARN.
Circuit Court of Appeals, Ninth Circuit.
June 27, 1927.
No. 5097.
1. Husband and wife <§=>254 — Money paid by bankrupt married woman in buying homestead, having been borrowed without security and repaid with community funds, held “community property.”
Money which bankrupt, a married woman, paid in buying property, having been borrowed by her from a friend without security and repaid out of community funds, is to be deemed “community property.”
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Community Property.]
2. Bankruptcy <§=>396(5) — Under California statutes, held, maximum homestead exemption in property of greater value bought with funds of wife and community should be apportioned ratably to the two estates (Civ. Code Cal. §§ 161, 162, 164, 167, 171, 172, 172a, 1237-1265; Code Civ. Proc. § 1474).
Under Civ. Code Cal. §§ 161, 162, 164, 167, 171, 172, 172a, as to separate and community property of spouses, and sections 1237-1265, and Code Civ. Proc. § 1474, as to homestead, where wife bought property paying on the purchase price $2,000 of her separate money and $5,500 of community funds, and filed a declaration of homestead thereon, and afterwards became bankrupt, held, that the maximum homestead exemption of $5,000 should be apportioned ratably to the two estates, so that, the value of the property being the same as when bought, only one-third of her $2,000 interest is subject to her debts; the community interest not being subject thereto.
3. Bankruptcy <§=400(3) — If bankrupt will pay to trustee value of her nonexempt interest in homestead, it should not be sold.
Where only part of bankrupt’s interest in homestead is exempt, the property should not be sold in bankruptcy proceedings, if bankrupt will pay to the trustee the value of her nonexempt interest.
Petition to Revise, in Matter of Law, an Order of the District Court of the United States for the Southern Division of the Southern District of California.
In the matter of Elizabeth B. Russell, bankrupt. Petition by bankrupt, against Hubert F. Laugharn, trustee in bankruptcy of petitioner’s estate, to revise an order in respect to homestead exemption claim.
Reversed, with directions,
Morin, Newell & Brown, of Pasadena, Cal., for petitioner.
Hubert F. Laugharn, of Los Angeles, Cal., for respondent.
Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.
DIETRICH, Circuit Judge.
This is a petition for revision (under section 24b of the Bankruptcy Act [Comp. St. § 9608]), by which Elizabeth B. Russell, the bankrupt, challenges the correctness of an order below in respect to her claim of homestead exemption. Petitioner is a married woman, and with her husband has lived in the state of California for many years. The property in question she individually contracted to purchase on September 22, 1923, for the agreed price of $14,500. Of the $3,000 paid when the contract was executed, admittedly $2,000 was her separate estate, and the other $1,000, having been borrowed by her from a friend without security and repaid out of community funds, wo think is also to be deemed community property. Schuyler v. Broughton, 70 Cal. 282,11 P. 719.
On October 11, 1923, petitioner, as was her right under the California Law, filed for the benefit of herself and her husband a declaration of homestead in due form, and the declaration is conceded to bo valid. Having thereafter gone into business upon her own account, and having incurred debts in eonnection therewith which she was unable to pay, on July. 8, 1926, she was adjudged a bankrupt. In the meantime she had paid on the contract of purchase, with what are conceded to have been community funds, not given or loaned to her by her husband, amount? aggregating $4,500, leaving a balance still to be paid of $7,000.
Contending that community property was not liable for her individual debts, and hence not subject to administration in the bankruptcy proceeding, and pointing out that her separate interest, being of the value of only $2,000, was less than the maximum exemption allowed by law, she petitioned that the entire property be set apart as exempt and not subject to administration or the payment of her debts. This the referee declined to do, but ordered a sale of the property, with directions that out of the proceeds the balance of the purchase price first be paid, that $5,000, which is the maximum homestead exemption, be set apart for the use of the bankrupt and her husband, and the residue be held as available for the payment of claims against the estate. No adjudication was made touching the several rights of herself and her husband in the $5,000 so to be set apart for them. By the District Judge petitioner’s exceptions were overruled, and the referee’s order was confirmed; hence this petition for review.
Under the statutes of California all property acquired by either spouse after' marriage, by gift, bequest, devise, or descent, is separate property, and all other property acquired by either is community property. The husband has the management and control of the community property, and it is not liable for the contracts of the wife made after marriage. Civil Code Cal. § § 161, 162, 164, 167, 171, 172, and 172a. Upon the recording of a declaration of homestea'd the property described therein up to a value of $5,000 becomes exempt from sale for the debts of either spouse. The wife may select such homestead from the sejaarate property .of either or of both, or from the community property, and hence her declaration will operate to exempt the entire title owned, whatever may be the several interests of the husband and wife and the community therein. Civil Code Cal. §§ 1237-1265. Indeed, the declaration cannot be effectively made upon an undivided part interest. In re Estate of John M. Davidson, 159 Cal. 98, 115 P. 49.
In the absence of an agreement to the contrary, interests in property purchased by means of both separate and community funds are to be ratably apportioned. See, generally, Schuyler v. Broughton, 70 Cal. 282, 11 P. 719; Shanahan v. Crampton, 92 Cal. 9, 28 P. 50; Shaw v. Bernal, 163 Cal. 262, 124 P. 1012; In re Bailard, 178 Cal. 293, 173 P. 170; Varni v. De Voto, 10 Cal. App. 304, 101 P. 934; Osborn v. Mills, 20 Cal. App. 346, 128 P. 1009. A declaration of homestead does not operate to change or otherwise affect the underlying title; it simply gives to the property sanctuary as against creditors. Upon abandonment of the homestead in the 'manner provided by law, the rights of the original owners continue as they were before the declaration, and upon the death of the declarant while the declaration is in force title descends as provided in the statutes. Code Civ. Proc. Cal. § 1474.
Applying these principles, we are unable to see how either the order complained of or the entire contention of the petitioner can be sustained. Assuming, as the record tends to show, that the property is now worth just what the bankrupt agreed to pay for it, the aggregate value of the interests of both herself and the community therein is $7,500, of which her interest is $2,000, and that of the community $5,500. Petitioner’s position that, because it was made prior to the declaration, her" entire investment is exempt, necessarily implies that the homestead characteristics may be impressed unequally upon one of two or more undivided part interests, a view which would be tantamount to holding that they may be impressed exclusively upon one of such interests, directly in conflict with In re Estate of John M. Davidson, supra.
The referee’s theory is not made clear, but, if the $5,000 exemption provided for in his order is all to be deemed a part of th'e $5,500 community investment, the order plainly disregards the principle of the Davidson Case; and if, on the other hand, it represents the separate investment of the bankrupt and $3,000 of the community, the residue is community property, which under section 167 is not a part of the bankrupt estate. We are of the opinion that the maximum homestead exemption value of $5,000 is to be apportioned ratably to the two estates, and hence two-thirds of petitioner’s $2,000 investment, or $1,333.33, is exempt. A like fractional part of the community investment —that is, $3,666.66 — also is exempt; but that we need not consider, for the community interest is not subject to administration.
Accordingly the order below is reversed, with directions to take further proceedings in harmony herewith. It would seem to be unnecessarily harsh to require the property to be sold, if the bankrupt is willing to pay to the trustee the net value of her nonexempt interest, determined consistently with the views herein expressed, and in case of the tender of such amount it should be accepted, and an appropriate order made relieving the entire property from further administration. Costs of this review are equally divided.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_weightev
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
C. M. KIRTLEY, Trustee of Automatic Washer Company, Debtor in Corporate Reorganization Proceedings, Appellee, v. Joseph ABRAMS and Richland Securities, Inc., Appellants, Sydney L. Albert, John W. Chamberlin and Louis G. Carmick, Defendants.
No. 3, Docket 26089.
United States Court of Appeals Second Circuit.
Argued Nov. 27, 1961.
Decided Jan. 17, 1962.
On Petition for Modification Feb. 13, 1962.
Samuel Gottlieb, Howard Henig, New York City (Murray L. Lewis, Harry Giesow and Seymour S. Howard, New York City, of counsel), for appellants.
Lester Kissel, New York City (Meyer, Kissel, Matz & Seward), New York City (Sydney J. Schwartz and Clayton P. Wood, New York City, of counsel), for appellee.
Before CLARK, FRIENDLY and KAUFMAN, Circuit Judges.
FRIENDLY, Circuit Judge.
Defendants, Richland Securities, Inc., a New York corporation, and Joseph Abrams, a citizen of New York and its dominant stockholder, appeal from a judgment of Chief Judge Bruchhausen in the District Court for the Eastern District of New York, after a trial without a jury. The action was brought against them, and others not served, by C. M. Kirtley, a citizen of Iowa, who had been appointed trustee of Automatic Washer Company in a proceeding for reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., in the Southern District of Iowa. Jurisdiction was rested on diversity of citizenship. The action stemmed from a writing which we quote in the margin, the subsequent issuance of 50,000 shares of Automatic to Richland thereunder, and the non-delivery to Automatic of the “presses, production equipment and rubber machinery,” hereafter “the rubber machinery,” mentioned therein.
The amended complaint set forth six causes of action, several of them repetitious : a conspiracy by Richland, Abrams and other defendants to cause Automatic to issue the 50,000 shares without receipt of any money or property therefor; knowingly false representation by Richland and Abrams of an intention to furnish the rubber machinery; breach by Richland of its contract to deliver the rubber machinery; wrongful taking possession of the 50,000 shares by Richland and Abrams and conversion of the proceeds; obtaining of the 50,000 shares by Richland and Abrams through fraudulent misrepresentation of intention to deliver the rubber machinery; and Abrams’ causing Richland to enter into the contract and then to fail to perform it. In the first, second and fourth causes of action Kirtley sought to recover the fair value of the 50,000 shares as of the time of their issue, alleged to be $400,-000; in the third and sixth he claimed damages of $300,000 on the contract. The fifth cause of action asserted that the stock had a value when issued “of at least $400,000” and apparently was the basis for the prayer that a trust be impressed upon the proceeds of sale of the shares by Richland and Abrams. The court found that Kirtley had established all causes of action in the complaint, awarded judgment against Rich-land and Abrams for $425,000 with interest from March 1, 1956, and impressed a trust upon $154,000 the proceeds of the 50,000 shares, which Abrams was directed to pay into court.
The defense was presented in such a confused and diffuse fashion, partially excused by a torrent of objections to rather patently proper questions, that we can readily comprehend the trial judge’s failure to perceive its true thrust. This was that everyone had known from the outset that Richland neither could nor would deliver rubber machinery, and that Automatic was to look for the machinery solely to Sydney L. Albert or one of his family of corporate enterprises.
Early in 1955, Albert had acquired control of Bellanca Aircraft Corporation, then a small manufacturer of aircraft parts having the asset of a listing on the American Stock Exchange, by transferring the property of L. Albert & Son, a family firm engaged in the rebuilding and sale of used rubber mill machinery, in exchange for a large amount of Beilanea stock. He embarked Bellanca on a program of acquiring interests in other companies. Abrams was a “finder,” who brought Albert propositions from time to time. One such proposition resulted in an agreement for the purchase, in December, 1955, of 330,000 shares of Automatic Washer, at $2.55 per share, by Pierce Governor Company, Incorporated, in which Albert had a controlling interest.
Bellanca owned 97% of the stock of N. O. Nelson Company, a heating and plumbing supply firm which it had acquired for some $4,850,000 in March, 1955 Perhaps as a sequel to the Pierce transaction, Abrams, along with one Shindler, who, according to Abrams, had been “standing by” with him to supply the needed funds to Automatic Washer if the Pierce transaction had not closed, found for Albert another proposition involving Automatic Washer, this time in connection with Bellanca’s Nelson stock. This proposition, which was ultimately embodied in an agreement between Bellanca and Automatic Washer, dated December 23, 1955, as was the contract in suit, “subject to the approval of the respective Boards of Directors of the parties hereto,” provided that Automatic would purchase the Nelson stock from Bellanca for 950,000 shares of Automatic stock and the surrender to Bellanca of a $1,525,000 note of Bellanca in favor of Albert which Automatic Washer was simultaneously acquiring from him.
Defendants asserted that the initial understanding was that Bellanca should receive 1,000,000 shares of Automatic rather than 950,000 and that Abrams and Shindler claimed a finders’ commission of 10%, to wit, 100,000 shares, which, under usual practice, would be paid by Bellanca, the seller. Albert testified that “I objected strenuously to paying any commission at that percentage, as it was in my knowledge unheard of to pay more than five per cent”; that accordingly “the deal appeared to be stymied”; that, because the market price of Automatic had risen, “I felt that I could readily reduce the selling price from the one million shares to 950,000 shares giving my company, Bellanca Aircraft, the equivalent or more dollarwise and pay the maximum brokerage that I felt I could pay, namely fifty thousand shares on a 950,000 selling price”; and that “the balance of the fifty thousand shares would remain with Automatic Washer, which I could assume they could in turn pay as their commission to Richland or whoever the brokers may have been.” Although this, testimony was not disputed, it still left the question why the 50,000 shares thus, “remaining” with Automatic Washer to be paid as commission were not issued, as such. Defendants’ explanation was. that Abrams told Chamberlin, the president of Automatic, that, due to the rise in the price of Automatic stock, he “was very worried” about getting 50,000' shares which would be taxed as ordinary income, with only a $1,000 deduction if' the shares were thereafter sold at a loss, and that “Mr. Chamberlin suggested' that rubber machinery which was to be-supplied, which he stated was being supplied by Sydney Albert, could be the basis upon which I could receive the 50.000 shares of stock, and suggested that some written agreement be made so-that he could substantiate the issuance-of the 50,000 shares for machinery and equipment, provided I would not receive the 50,000 shares on a subsequent date-as commission.” Shindler, who received' 50.000 shares as commission from Bellanca, told the same story, adding that Chamberlin said “he had a need for machinery, lots of rubber machinery” whereas Albert “had tremendous quantities of rubbery machinery,” and that Albert “stated that he would be more than happy to give the Automatic Washer Company all the machinery that they needed regardless of the amount because he was in control of that company.”
Whatever the veracity of this and other evidence we have not stopped to summarize, it created an issue that defendants should have been given latitude to develop — just as plaintiff was properly permitted to rebut defendants’ story by evidence that the rubber machinery was never delivered by anyone. It is altogether plain that as to the causes of action claiming fraudulent misrepresentation, on which the court based its award of damages, it was essential to determine whether Automatic, henceforth to be controlled by Albert in a degree defendants were never allowed to prove, ever expected Richland to make good on the representations and agreements contained in the writing of December 23, 1955. “The essential element of fraud that must exist in any case properly brought within that designation is a mistake of one party as to a material fact, wrongfully induced by
the other in order that it might be acted upon * * 5 Williston, Contracts (rev. ed. 1937), p. 4153; see also 1 Harper and James, The Law of Torts (1956), p. 584. We know of no authority that embodiment of a misrepresentation in a purported contract relieves a plaintiff suing on a theory of fraud from these requirements, and we see no possible reason for any such extension of the “parol evidence rule.”
Indeed, even as to the third and sixth causes of action, which were on the contract, that rule did not preclude defendants from attempting to show that there never was any agreement such as the writing purported to be. The basic distinction, in New York as in many other jurisdictions, is, as stated a century ago by Mr. Justice Erie in Pym v. Campbell, El. & Bl. 370, 374, 119 Eng.Rep. 903, 905 (1856), “that evidence to vary the terms of an agreement in writing is not admissible, but evidence to shew that there is not an agreement at all is admissible.” Grierson v. Mason, 60 N.Y. 394, 397 (1875); Thomas v. Scutt, 127 N.Y. 133, 137-138, 27 N.E. 961, 962 (1891); Smith v. Dotterweich, 200 N.Y. 299, 305, 93 N.E. 985, 987, 33 L.R.A.,N.S., 892 (1911); Saltzman v. Barson, 239 N.Y. 332, 146 N.E. 618 (1925); Bernstein v. Kritzer, 253 N.Y. 410, 171 N.E. 690 (1930); New York Trust Co. v. Island Oil & Transport Corp., 34 F.2d 655 (2 Cir. 1929); In re H. Hicks & Son, Inc., 82 F.2d 277 (2 Cir. 1936); Zell v. American Seating Co., 138 F.2d 641 (2 Cir. 1943), rev’d, 322 U.S. 709, 64 S.Ct. 1053, 88 L.Ed. 1552 (1944); Kind v. Clark, 161 F.2d 36, 46 (2 Cir.), cert. denied, 332 U.S. 808, 68 S.Ct. 107, 92 L.Ed. 385 (1947). The only respect in which the instant case differs from most of those cited is that Richland does not deny that any contract existed; it admits it was to get 50,000 shares but says the consideration for them was not its agreement to furnish rubbery machinery but the services rendered as “finder” and the promise not to assert any further claim for such services against either party to the Bellanca-Automatic deal. Still, it may be argued, Richland would thus be seeking “to vary the terms” of the agreement, which expressly stated that the stock was to be issued “in exchange for” the rubber machinery. This would be reading Mr. Justice Erie’s language too literally. The case is not like one where Richland would seek to show that it needed to supply only $250,000 worth of machinery instead of $300,000, or that it was entitled to some relief because the machinery had gone up in price or the stock down — here its claim is that the whole rubber machinery business was a sham, intended to deceive the tax authorities and perhaps to improve Automatic’s balance sheet, but not supposed by anyone to give rise to any obligation on its part. As said by Judge Learned Hand in the Hicks case, supra, 82 F.2d at 279, the parties’ “actual understanding may always be shown except in so far as expressly or implicitly they have agreed that the writing alone shall control. * * * [T]hey will not be bound if they agree that their words, however coercive in form, shall not bind them.” See the useful discussion in 3 Corbin, Contracts (1960 ed.), § 577, and § 572B, “Some Tentative Working Rules of Substantive Law,” items 8 and 9.
Although the trial judge did receive a good deal of evidence in support of defendants’ theory, he improperly circumscribed their proof. It was important for the defendants to show fully their version of how the transaction developed, and particularly, in view of the judge’s proper skepticism as to the credibility of Abrams (who at the time of the trial was serving a prison sentence for a different transaction, United States v. Fabric Garment Co., Inc., 262 F.2d 631 (2 Cir. 1958), cert. denied, 359 U.S. 989, 79 S.Ct. 1117, 3 L.Ed.2d 978 (1959), had previously pleaded guilty to filing a false income tax return for 1952, and, on his own theory of the instant case, had filed and caused Richland to file false ones for 1956), to buttress the testimony of Abrams, Shindler and Albert with that of outside witnesses. One such was Kahn, a Trenton, N. J., attorney, who had been representing Albert and Bellanea. Defendants sought to examine him and to introduce in evidence correspondence between him and Albert, in February and March, 1956, so much of which was sent to Abrams or brought to his attention that none of it could be regarded as confidential and therefore privileged in the absence of appropriate proof as to some particular item; the examination of Kahn was seriously curtailed and the letters were excluded. These were admissible for a variety of purposes — as tending to show that the Bellanca-Automatic deal, in Kahn’s words, “is probably not an arms length transaction,” to substantiate defendants’ claim that the arrangements were considered fluid long after December 23, 1955, and to corroborate defendants’ contention that the 50,000 shares were to be issued “as a commission or a gratuity or whatever else we desire to label it” and that the rubber machinery was to be Albert’s, not Richland’s. Another such witness was Purcell. The “rubber machinery” agreement was prepared by him as attorney for Automatic, allegedly in the course of a conference concerning the Bellanca-Automatic transaction on December 23, 1955, attended by Albert, Abrams, Chamberlin, Shindler, and Hayutin, and its relationship to earlier drafts of the Bellanca-Automatic agreement and to later developments was of crucial importance. Yet his testimony that Chamberlin had told him in January, 1956, that the rubber machinery had been selected and ticketed, was stricken as irrelevant, and objections to questions as to conversation with Albert about rubber machinery at the conference on December 23 were sustained. Later Purcell was allowed to testify, subject to a motion to strike, as to conversations at the same conference wherein Chamberlin agreed he could use rubber machinery and Albert said “there would be no difficulty substantiating a price of —a value of three hundred thousand dollars” — apparently without any indication that anyone was to pay Albert for it. However, at the end of the case the judge struck this testimony as immaterial. Purcell was also prevented from testifying as to an earlier draft agreement providing a consideration of 1,000,000 shares for Bellanca’s Nelson stock. The ruling to strike at the end of the case also carried with it the testimony of Hayutin as to a January, 1956, telephone call by Albert in the presence of Chamberlin, Shindler, Abrams and Purcell, wherein Albert “set up some type of an appointment” with his Akron office “so that Mr. Chamberlin and some of his people would go down and select the machinery that was discussed by Mr. Albert and Mr. Chamberlin at that meeting.” The ruling that testimony of such probative value as Purcell’s and Hayutin’s was immaterial shows that the judgment was not based merely on disbelief in Abrams’ testimony but upon a view, which we hold erroneous, that the entire defense was without basis in law. Whether it had a basis in fact is quite another matter.
We need not discuss other contentions of appellants, save to indicate that on the retrial much greater freedom should be allowed in the introduction of evidence of the true value of the 50,000 shares, if that issue should be reached.
The judgment is reversed and a new trial ordered. The provision directing the payment of $154,000 into Court shall remain in effect pending the outcome of the new trial; this intimates no view on our part as to the proper result.
On Petition for Modification
Counsel for appellants has questioned our power to order that the provision of the judgment directing payment of $154,-000 into court shall remain in effect pending the outcome of a new trial, and also has called our attention to the fact that another panel, on November 9, 1961, had stayed a proceeding in the District Court to punish appellant Abrams for contempt for failure to make the said pay* ment on condition that a $50,000 appeal bond be posted. Appellee’s counsel contends that our order is soundly rested on F.R.Civ.Proc. 62(g), 28 U.S.C.A. and raises questions relating to amounts collected by appellee on execution against bank deposits and as to a lien perfected against a residence owned by Abrams and his wife.
F.R.Civ.Proc. 62(g) is without bearing. However, it is established that, on reversing a plaintiff’s judgment for a new trial, an appellate court is not bound to order restitution of amounts collected, when the plaintiff may ultimately recover and such restitution may prevent his then obtaining satisfaction; in such cases moneys that have been collected may be ordered to be paid into court to await a new trial, 5B C.J.S. Appeal & Error § 1949, at p. 510; American Law Institute, Restatement of Restitution § 74, comments b, c; 3 Am.Jur. Appeal and Error § 1243; 2 Freeman, Judgments (1925) § 1171, at p. 2427; Marvin v. Brewster Iron Mining Co., 56 N.Y. 671 (1874); Britton v. Phillips, 24 How.Prac. Ill (N.Y.Sup.Ct. 1862); Young v. Brush, 28 N.Y. 667, 675 fn. 1 (1864). See Finkelstein, The Case of the Recalcitrant Debtor: A Study in Creditors’ Rights, 30 St. John’s L.Rev. 200 (1956), and Lader v. 128 West 48th St. Holding Corp., 125 N.Y.L.J. 898, col. 5 (Sup.Ct. March 13, 1951), quoted in 30 St. John’s L.Rev. at 208-209. Compare Goltra v. Weeks, 271 U.S. 536, 550, 46 S.Ct. 613, 70 L.Ed. 1074 (1926) and United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939).
In the light of the circumstances and the authorities, we believe the proper disposition to be as follows:
(1) Appellee shall deposit with the Clerk of the District Court all amounts that he has collected under his judgment, to abide the event of a new trial;
(2) The lien of the judgment previously rendered shall remain in effect, but no further executions shall be levied thereon;
(3) The direction for the payment of $154,000 (reduced by the amounts already collected by the appellee) into court shall remain in effect, except that it shall be stayed if appellants post a bond or other security in the amount of $50,000 to secure the payment of any judgment that may be rendered on a new trial.
Our previous order is modified to that extent.
. “December 23, 1955 “Richland Securities Corporation “Great Neck, Long Island “New York
“Gentlemen:
“This letter will serve to outline the agreement had between Richland Securities Corporation (hereinafter referred to as Richland) and the undersigned Automatic Washer Company (hereinafter referred to as Automatic).
“Automatic agrees to issue and deliver to Richland 50,000 shares of its $1.50 par value common stock in exchange for $300,000 worth of presses, production equipment and rubber machinery. You have represented that you have a quantity of such machinery and equipment stored at Akron, Ohio and you have agreed that we will be allowed to select the presses, production equipment and rubber machinery we deem useful for our purposes, it being understood that the value of the quipment so selected by us will be not less than $300,000.
“If this correctly sets forth the understanding had between us, kindly sign the enclosed copy of this letter on the line marked ‘Accepted*.
“Very truly yours,
“AUTOMATIC WASHER COMPANY
“By: JOHN W. CHAMBERLIN President
“ACCEPTED:
“RICHLAND SECURITIES CORPORATION “By: JOSEPH ABRAMS “President”
. An outline of some of Albert’s activities at the time can be found in Bellanca Corporation, 38 SEC 405 (1958).
. Abrams testified that, prior to the Pierce contract, Automatic Washer had 292,594 shares outstanding, Tr. 716. It is not clear whether this reflects the issuance, also in December, 1955, of 228,000 shares for the assets of Washer-Dryer Corporation; Chamberlin, who became president of Automatic, received 180,572 of these shares, of which he turned 25,000 over to Purcell and another 25,000 to Hayutin, mentioned below. Neither is it clear whether Pierce acquired all the 330,000 shares; according to the Trustee’s report, they were initially issued to Richland, which sold 230,000 to Pierce. In December, 1955, options for Automatic Washer shares were issued to Chamberlin, Purcell and Hayutin.
. We learn from the SEC’s report, 38 SEC at 408-409, that Abrams had guaranteed a loan made by Bellanca to finance this purchase, to the extent of $500,000, until the loan was redu&ed by $2,000,000, Albert indemnifying him against loss.
. For this note, executed by Albert on behalf of Bellanca purportedly to reimburse himself for loans in connection with the acquisition of the Nelson stock, Automatic was to issue 305,000 shares to Albert. Kahn, Albert’s lawyer, pointed out, in a letter dated February 20, 1956, that the outstanding balance on the note was only $1,220,000; later it was said that the balance was only $915,000. However, no reduction was made in the consideration to Albert from Automatic. Before the closing of the Bellanca-Automatic transaction on April 6, 1956, the number of Automatic shares to be issued for the Nelson stock was reduced by 262,500, but Bellanca was to receive that same number of shares in exchange for 100,000 shares of its own. For reasons developed below, defendants should have been allowed fully to explore all these backings and fillings in support of their contention that the transactions were not at arm’s, length, but were shifted around to meet the convenience of Albert, Abrams, Chamberlin, et al.
It is also to be noted that Automatic’s purchase of the Nelson shares, which Bellanca had bought for $4,850,000, was after the declaration of a $3,600,000 dividend by Nelson. On the valuation of' $8.50 per share which the judge found for the Automatic shares here in suit, the total value of the 1,255,000 Automatic-shares to be issued for the ex-dividend; Nelson shares would have been $10,667,--500.
Litigation between the Trustee of Automatic Washer and Albert relating to the-305,000 shares was settled by Albert’s-, payment of $15,000; the Trustee entered' into a covenant not to sue Albert with, respect to the claim asserted on that action “or otherwise arising out of or in-connection with any purchase, sale or-transfer of Automatic Washer Company stock.”
. A New York court would first have to consult the New York conflict of laws to determine what state’s contract law applies. The law governing application of the parol evidence rule is the same as that chosen to determine the validity of the contract. American Law Institute, Restatement of the Law Second, Conflict of Laws, Tentative Draft No. 6, § 346, comment d. Applying the principle of Auten v. Auten, 308 N.Y. 155, 124 N.E. 2d 99, 50 A.L.R.2d 246 (1954), New York would select itself as the state having the most significant contacts on that issue. Although Automatic is a Delaware corporation with its manufacturing plant in Iowa, it maintained an oflice in New York, where Chamberlin, its president, spent most of his time, and held special board meetings in New York, including the meeting that acted on the contract here in suit. Richland is a New York corporation and Abrams a citizen of New York. The negotiations leading up to the Bellanca-Automatic transaction took place in New York, and the writing dated December 23, 1955, was prepared by Francis J. Purcell, a New York lawyer, in a New York law oflice, where Abrams and representatives of Automatic and Bellanca were present, and was signed there. These contacts are more significant than those of Ohio, where the rubber machinery was, or of Iowa, where, arguably, it was to be sent. All this is especially so when the issue is whether Richland made any contract as to rubber machinery at all.
If Federal jurisdiction were rested on § 23, sub. b, of the Bankruptcy Act, 11 IT.S.C.A. § 46, sub. b, the analysis would be the same, Harris v. Standard Accident and Insurance Co., 297 F.2d 627, 630 fn. 4 (2 Cir. 1961).
. Although the authority of the learned opinion of Judge Frank, for Judges L. Hand, Swan and himself, is shaken on the particular facts by the Supreme Court reversal, in which four Justices thought that “proof of the contract alleged in respondent’s affidavits on the motion for summary judgment is precluded by the applicable state parol evidence rule,” Michigan’s, and only two Justices clearly approved this court’s contrary ruling, the other three apparently not reaching the question, the case is distinguishable from the instant one. Zell was attempting to enforce an alleged agreement for compensation additional to that provided in the writing; Richland says the true agreement was altogether different from the writing and that the latter was mere window-dressing. Cf. Grierson v. Mason, 60 N.Y. 394 (1875).
. Abrams’ tax return showed a purchase of machinery for $10,000 and a sale to Richland for $127,500; Richland’s showeu a purchase of machinery for $127,500 and a sale for stock which produced $154,000.
. In view of the letter of Purcell’s firm dated Feb. 10, 1956, giving its opinion that the 50,000 shares would be validly issued to Richland “in exchange for $300,000 worth of presses, production equipment and rubber machinery * * Purcell was scarcely disposed to strengthen defendants’ contention tbat everyone knew Richland was not going to supply the machinery and that the “agreement” was in fact as unreal as it appears to be; the need for giving the defendants full latitude to examine Mm as a hostile witness was thus all the greater.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_8_3
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H
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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 "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
Robert I. GREENBERG; Rose Greenberg; Maynard Greenberg, as Co-Trustees of the Mal Greenberg Testamentary Trust, Plaintiffs-Appellees, v. SERVICE BUSINESS FORMS INDUSTRIES, INC.; Service Computer Forms Industries, Inc., Defendants-Appellants.
No. 88-1636.
United States Court of Appeals, Tenth Circuit.
Aug. 17, 1989.
John T. Edwards (Sarah H. Stuhr with him, on the brief) of Monnet, Hayes, Bullís, Thompson & Edwards, Oklahoma City, Okl., for plaintiffs-appellees.
Richard C. Ford (J. Clay Christensen with him, on the brief) of Crowe & Dun-levy, Oklahoma City, Okl., for defendants-appellants.
Before LOGAN, BRORBY, and EBEL, Circuit Judges.
PER CURIAM.
Service Business Forms Industries, Inc. (Service Business) and Service Computer Forms Industries, Inc. (Service Computer), defendants, appeal the district court’s order granting plaintiffs partial summary judgment on their claim for recovery of an accelerated debt allegedly due under Service Business’ promissory note. The district court determined that there were no material issues of fact as to Service Business’ default under the terms of the promissory note and that plaintiffs properly exercised their right to accelerate the unpaid principal balance and accrued interest. On appeal, defendants contend there are genuine issues of fact regarding each of its defenses.
Plaintiffs are co-trustees of the Mai Greenberg Testamentary Trust (the Trust). On October 29, 1982, plaintiffs entered into a stock redemption agreement with Service Computer, a Nevada corporation presently owned and operated by Carolyn and Lau-rance Wolfberg. The Wolfbergs are the sister and brother-in-law of Robert Green-berg (Greenberg), a plaintiff and a trustee of the Trust. Under the stock redemption agreement, the Trust transferred all the shares it owned in Service Computer back to the company in exchange for $102,000. Of this amount, $2,000 was to be paid at closing and $100,000 was to be paid pursuant to the promissory note at issue here.
Pursuant to the stock redemption agreement, Service Business, an affiliate of Service Computer which is also operated by the Wolfbergs, executed a $100,000 promissory note on October 29, 1982, the closing date of the stock redemption agreement. The note provided for annual payments to be calculated on a twenty-year amortization schedule with full payment to be made on the tenth anniversary of the note’s execution. The note further stated that the Trust had the option to accelerate the debt and demand full payment if Service Business defaulted on any of its obligations under the note. The note did not specify a specific due date for the annual payments. In addition to this written agreement, Service Business alleged that Greenberg promised to execute a disclaimer of any interest he had as a beneficiary under the Trust. Greenberg denied that he ever made such an agreement.
By April, 1986, Service Business had made only one payment on the note, in the amount of $5,000. As a result of further negotiation between the parties, Greenberg executed a written disclaimer in favor of Service Computer under which Greenberg disclaimed any interest he might have through inheritance in the family jewelry. The disclaimer was conditioned on Service Business’ payment of all past due amounts owing under the promissory note and upon its “timely payment” of all future installments. The disclaimer also failed to designate a specific date for the future annual payments. Thereafter, Service Business paid $43,231.86 on June 26, 1986, which included partial payment of the 1986 installment. On November 6, 1986, not having received the payment from Service Business which they considered due on October 29, 1986, plaintiffs sent Service Business a notice of their intention to accelerate payment of the note. On November 14, 1986, and again on October 29, 1987, Service Business tendered payment of the installment amount owing, calculated as of the anniversary date of the note. On both occasions, plaintiffs refused to accept the payments.
Plaintiffs brought this action to recover the accelerated amount of the principal and accrued interest under the note. In its answer, defendants raised several defenses, including waiver, estoppel, and lack of default under the terms of the note. Defendants also filed a counterclaim, alleging failure of consideration by virtue of Green-berg’s refusal to execute a disclaimer of any interest in the Trust funds. Plaintiffs moved for summary judgment and, after a hearing, the district court granted partial summary judgment in their favor. The court found that the terms of the contract clearly designated the payments to be due on October 29th of each year, by virtue of the date of the note's execution and the fact that annual payments were calculated on the basis of a twenty-year amortization. The court further held that there were no material issues of fact as to waiver, estop-pel, or default and found that Business Service had defaulted on its payment obligations, that the Trust had the right to accelerate the balance owing upon default, and that the Trust properly exercised its right to accelerate. The court ruled, however, that there were material issues of fact regarding the issue of whether Service Business received full consideration for the stock redemption agreement with the Trust because Greenberg allegedly failed to issue a disclaimer of any interest as beneficiary under the Trust. This last issue was presented to the jury, which returned a verdict in favor of Greenberg and the Trust.
On appeal, Service Business contends that there are several genuine issues of fact which precluded the granting of partial summary judgment. First, Service Business contends that it did not default on its obligations under the note because the document did not specify a date on which payment was due, and argues under Oklahoma law that payment was thereby due within a reasonable time. We disagree. Oklahoma statute dictates that contracts are to be interpreted according to the intent of the parties at the time the instrument was executed. Okla.Stat. tit. 15, §§ 152, 153 (1981). Intent must be determined by construing the contract as a whole, and the court must construe the contract so as to give effect to each provision. Amoco Prod. Co. v. Lindley, 609 P.2d 733, 741 (Okla.1980). The language of the note setting the date of final payment as October 29, 1992, and the method for calculating the amount of annual payments clearly indicate that the parties intended that payments were to have been made on the anniversary date of the note.
Second, Service Business asserts that plaintiffs did not accelerate the note in good faith. Service Business claims the duty of good faith arises both under the Uniform Commercial Code (UCC), Okla. Stat. tit. 12A, § 1-208 (1981), and under the common law doctrine of good faith in the performance of a contract. Section 1-208 provides:
A term providing that one party ... may accelerate payment or performance or require collateral or additional collateral “at will” or “when he deems himself insecure” or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.
Id.; see also Mitchell v. Ford Motor Credit Co., 688 P.2d 42, 44-45 (Okla.1984) (acceleration by a secured party). In finding that plaintiffs properly exercised their power of acceleration, the district court implicitly found that the good faith requirement set forth in § 1-208 does not apply to notes that permit acceleration at the option of the holder upon default by the debtor. We agree.
The only Oklahoma case we have located which addresses the question of whether the good faith requirement under the UCC applies to acceleration on default clauses is Knittel v. Security State Bank, Mooreland, Okla., 593 P.2d 92 (Okla.1979). The case did not directly address the issue; however, it upheld a challenged jury instruction which stated that the good faith requirement under § 1-208 did not apply to an acceleration on default clause. Id. at 97. Because a court must determine whether a challenged jury instruction properly states the applicable law, see Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir.1988), it logically follows that Knittel supports the position that the UCC good faith requirement does not apply to acceleration on default clauses.
Several states have similarly held that the UCC good faith requirement is not applicable when the acceleration clause is based on an event in the debtor’s complete control. E.g. Brummund v. First Nat’l Bank, 99 N.M. 221, 656 P.2d 884, 887 (1983) (relying on North Carolina law); Bowen v. Danna, 276 Ark. 528, 637 S.W.2d 560, 564 (1982); In re Sutton Invs., Inc., 46 N.C.App. 654, 266 S.E.2d 686, 690 (1980); Crockett v. First Fed. Sav. & Loan Ass’n, 289 N.C. 620, 224 S.E.2d 580, 588 (1976). But see Brown v. AVEMCO Inv. Corp., 603 F.2d 1367, 1375-80 (9th Cir.1979) (comparing the applicability of UCC § 1-208 on “default” acceleration clauses as opposed to “insecurity” acceleration clauses under Texas law). Because of the ruling in Knit-tel and the general consensus in other jurisdictions, we conclude that Oklahoma would not apply the good faith requirement in § 1-208 to the acceleration on default clause at issue in this case.
Service Business also claims that plaintiffs failed to perform their contract in good faith under common law equitable principles. Service Business relies on Brown v. AVEMCO Inv. Corp., in which the Ninth Circuit applied the common law doctrine of good faith to a due-on-lease clause contained in a security agreement executed in conjunction with a promissory note. 603 F.2d at 1375-79. In reversing a jury verdict in favor of the creditor, the court noted that, under Texas law, acceleration clauses are designed to protect a creditor from conduct or events that jeopardize or impair the creditor’s security. Id. at 1376. The court held that the jury should have been instructed on the issue of the creditor’s good faith in exercising the due-on-lease clause when evidence existed that it inequitably desired to take advantage of a technical default, not because it in good faith feared its security was impaired. Id. at 1379. This decision was based on Texas case law which clearly mandated that equitable considerations should be applied when a creditor exercises an optional right to accelerate for the sole purpose of receiving the entire payment rather than for the purpose of protecting its debt. Id. We must determine whether Oklahoma would likewise impose an equitable duty on a creditor to not use the power of acceleration when its security is not impaired.
The Oklahoma Supreme Court has ruled on two occasions that an acceleration clause contained in a mortgage will not be enforced where the conduct of the mortgagee has been unconscionable or inequitable. Continental Fed. Sav. & Loan Ass’n v. Fetter, 564 P.2d 1013, 1019 (Okla.1977); Murphy v. Fox, 278 P.2d 820, 826 (Okla.1955). In Continental, the court denied a bank’s request to accelerate and foreclose on a mortgage based on a due-on-transfer clause when the bank refused to consent to a transfer solely because the mortgagor would not pay a substantial transfer fee. The transfer fee was an additional condition unilaterally imposed by the bank and was not contained in the original mortgage agreement. The court held the bank’s conduct in demanding additional payment was unconscionable and denied its requested relief. 564 P.2d at 1019.
In Murphy, the court refused to permit a mortgagee to accelerate the maturity of a promissory note because the court found that the mortgagee had attempted to hinder timely payment by the mortgagor and had encouraged its default. 278 P.2d at 824. The court determined that this conduct was motivated solely by the mortgagee’s desire to accelerate the maturity of the entire debt and held that the technical default of tendering late payment of taxes was insufficient to justify acceleration when the mortgagee had acted unconscionably. Id. at 826.
According to our reading of these cases, whether the Oklahoma court permits acceleration depends on the conduct of the mortgagee and whether he has dealt fairly with the debtor or has acted oppressively or unconscionably. This view is consistent with that of several other jurisdictions. See Phipps v. First Fed. Sav. & Loan Ass’n, 438 N.W.2d 814, 819 (S.D.1989) (an acceleration clause will be enforced absent fraud, bad faith, or other conduct on part of the mortgagee which would make it unconscionable to enforce the clause); Key Int’l Mfg., Inc. v. Stillman, 103 A.D.2d 475, 480 N.Y.S.2d 528, 530 (1984) (absent some element of fraud, exploitative overreaching or unconscionable conduct by the creditor, the court should enforce an acceleration clause), aff'd as modified, 66 N.Y.2d 924, 498 N.Y.S.2d 795, 489 N.E.2d 764 (1985); Bowen v. Danna, 637 S.W.2d at 564 (a court in equity can relieve a debtor from the hardship of acceleration based on accident, mistake, fraud, or inequitable conduct of the creditor); First Fed. Sav. & Loan Ass’n v. Ram, 135 Ariz. 178, 659 P.2d 1323, 1325 (Ct.App.1982) (same); Ciavarelli v. Zimmerman, 122 Ariz. 143, 593 P.2d 697, 698-99 (Ct.App.1979) (same).
Nothing in the record warrants an application of these equitable principles in the instant case. Plaintiffs did not exercise their option to accelerate after a considerable delay. See, e.g., Brown, 603 F.2d at 1379; Caspert v. Anderson Apartments, Inc., 196 Misc. 555, 94 N.Y.S.2d 521, 526 (Sup.Ct.1949). Nor did the default concern a technical, secondary obligation such as payment of taxes. Rather, the default violated the essence of the written agreement, timely payment of principal and interest. Finally, no evidence was presented that Greenberg attempted to hinder or otherwise cause the default so as to make his conduct unconscionable. Defendants had complete control over the event which triggered plaintiffs’ right to accelerate. The mere fact that the plaintiffs' interest might not have been in jeopardy, without some misconduct on the part of the plaintiffs, does not warrant a refusal to enforce an acceleration clause which was a bargained-for element of the contract between the parties. Under the circumstances of this case, we conclude that there are no material issues of fact under the applicable Oklahoma law regarding the enforceability of the acceleration clause and the issue of good faith.
Service Business also asserts that plaintiffs waived their right to accelerate through their prior acceptance of late payments. Ordinarily, prior acceptance of late payments only waives the right to accelerate as to those past installments. McGowan v. Pasol, 605 S.W.2d 728, 732 (Tex.Civ.App.1980). When a creditor establishes a prior course of dealing in accepting late payments, the creditor is estopped from declaring total debt due on future defaults. Id. Estoppel does not apply, however, when the obligor gives the debtor notice that the terms of the agreement will be enforced in the future. Id.; Dunn v. General Equities of Iowa, Ltd., 319 N.W.2d 515, 517 (Iowa 1982); see also Sternberg v. Mason, 339 So.2d 373, 376 (La.Ct.App.1976) (waiver rule has no application where obligee made frequent demands for punctual payment or accepted tardy payment as a result of unwilling or forced indulgence). Because Service Business or its officers received adequate notice by virtue of the disclaimer executed in April, 1986, that the trustees demanded all future payments to be made timely, no material issue of fact exists on the issue of waiver.
Defendants also argue that they did not receive a fair trial on the disclaimer issue because they were not permitted to introduce evidence concerning Greenberg’s motivation in accelerating the note. Apparently, the district court refused to allow any evidence concerning the default because the issue had been decided on summary judgment. The question of whether certain evidence is relevant to an issue before the jury is within the sound discretion of the district court. United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). If Service Business believed evidence regarding Greenberg’s motivation was relevant to its claim tried to the jury, it should have made such an objection during trial. Based on the objections contained in the record, we do not believe the trial court abused its discretion in so ruling.
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.
. Service Business relies on Okla.Stat. tit. 15, § 173 (1981), which states that the law implies a reasonable time for payment when no date is provided for performance of a contractual obligation. But the law implies a reasonable time for payment only when the contract is ambiguous and the intention of the parties cannot be determined from the express language and terms of the contract. See id. § 154; Lindhorst v. Wright, 616 P.2d 450, 453 (Okla.App.1980). Because the terms of the agreement as a whole clearly indicate a time for payment, this rule cannot appropriately be applied to the promissory note at issue in this case.
. Under the security agreement, the creditor, AVEMCO, had the option to accelerate the entire debt if the debtor leased the property, an airplane, without its written consent. In 1973, the debtor leased the airplane to a third party and also executed an option to purchase. The debtor sent notice of the agreement to AVEM-CO. Two years later, the lessee exercised its option to purchase and tendered full payment of the remainder owing under the promissory note. AVEMCO, after two years of inaction, refused the tendered payment and instead exercised its option to accelerate under the due-on-lease clause but also demanded an additional sum for the cost of insurance premiums. After the debtor refused to pay the additional amount, AVEMCO repossessed the airplane and sold it for a higher profit. 603 F.2d at 1369.
. In Murphy, the court discussed several cases from other jurisdictions which considered a technical default to be a failure to comply with a secondary obligation such as payment of taxes or assessments as opposed to a default on payment of principal or interest. See 278 P.2d at 825. Generally, these cases consider a default in payment of a principal or interest payment to be a substantial breach rather than a technical default. See e.g., Graf v. Hope Bldg. Corp., 254 N.Y. 1, 171 N.E. 884, 885-86 (1930).
. The court in Continental Federal Savings & Loan Association v. Fetter stated:
[Acceleration clauses are bargained-for elements of mortgages and notes to protect the mortgagee from risks connected with transfer of the mortgaged property. The underlying rationale for an acceleration clause is to insure that a responsible party is in possession, to protect the mortgagee from unanticipated risks, and to afford the lender the right to be assured of the safety of his security. However, an action to accelerate and foreclose a mortgage is an equitable proceeding, and the equitable powers of the court will not be invoked to impose an extreme penalty on a mortgagor with no showing that he has violated the substance of the agreement.
564 P.2d at 1017-18 (footnote omitted) (emphasis added).
.Any issue as to Greenberg’s refusal to provide a disclaimer was conclusively decided by the jury, which decision is not an issue in this appeal.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
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sc_casesourcestate
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06
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
RICHARDSON, COUNTY CLERK AND REGISTRAR OF VOTERS OF MENDOCINO COUNTY v. RAMIREZ et al.
No. 72-1589.
Argued January 15, 1974
Decided June 24, 1974
Duncan M. James argued the cause and filed briefs for petitioner.
Martin R. Glick argued the cause for respondents. With him on the brief were Gene Livingston and Burton D. Fretz. Daniel Hays Lowenstein filed a brief for respondent Brown, Secretary of State of California.
Evelle J. Younger, Attorney General, Iver E. Skjeie, Assistant Attorney General, and George J. Roth, Deputy Attorney General, filed a brief for the State of California as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Chesterfield Smith and Daniel L. Skoler for the American Bar Assn., and by Philip L. Goar, A. L. Wirin, and Fred Okrand for the American Civil Liberties Union of Southern California.
Mr. Justice RehNquist
delivered the opinion of the Court.
The three individual respondents in this case were convicted of felonies and have completed the service of their respective sentences and paroles. They filed a petition for a writ of mandate in the Supreme Court of California to compel California county election officials to register them as voters. They claimed, on behalf of themselves and others similarly situated, that application to them of the provisions of the California Constitution and implementing statutes which disenfranchised persons convicted of an “infamous crime” denied them the right to equal protection of the laws under the Federal Constitution. The Supreme Court of California held that “as applied to all ex-felons whose terms of incarceration and parole have expired, the provisions of article II and article XX, section 11, of the California Constitution denying the right of suffrage to persons convicted of crime, together with the several sections of the Elections Code implementing that disqualification . . . , violate the equal protection clause of the Fourteenth Amendment.” Ramirez v. Brown, 9 Cal. 3d 199, 216-217, 507 P. 2d 1345, 1357 (1973). We granted certiorari, 414 U. S. 816 (1973).
Article XX, § 11, of the California Constitution has provided since its adoption in 1879 that “[l]aws shall be made” to exclude from voting persons convicted of bribery, perjury, forgery, malfeasance in office, “or other high crimes.” At the time respondents were refused registration, former Art. II, § 1, of the California Constitution provided in part that “no alien ineligible to citizenship, no idiot, no insane person, no person convicted of any infamous crime, no person hereafter convicted of the embezzlement or misappropriation of public money, and no person who shall not be able to read the Constitution in the English language and write his or her name, shall ever exercise the privileges of an elector in this State.” Sections 310 and 321 of the California Elections Code provide that an affidavit of registration shall show whether the affiant has been convicted of “a felony which disqualifies [him] from voting.” Sections 383, 389, and 390 direct the county clerk to cancel the registration of all voters who have been convicted of "any infamous crime or of the embezzlement or misappropriation of any public money.” Sections 14240 and 14246 permit a voter’s qualifications to be challenged on the ground that he has been convicted of “a felony” or of “the embezzlement or misappropriation of public money.” California provides by statute for restoration of the right to vote to persons convicted of crime either by court order after the completion of probation, or, if a prison term was served, by executive pardon after completion of rehabilitation proceedings. California also provides a procedure by which a person refused registration may obtain judicial review of his disqualification.
Each of the individual respondents was convicted of one or more felonies, and served some time in jail or prison followed by a successfully terminated parole. Respondent Ramirez was convicted in Texas; respondents Lee and Gill were convicted in California. When Ramirez applied to register to vote in San Luis Obispo County, the County Clerk refused to allow him to register. The Monterey County Clerk refused registration to respondent Lee, and the Stanislaus County Registrar of Voters (hereafter also included in references to clerks) refused registration to respondent Gill. All three respondents were refused registration because of their felony-convictions.
In May 1972 respondents filed a petition for a writ of mandate in the Supreme Court of California, invoking its original jurisdiction. They named as defendants below the three election officials of San Luis Obispo, Monterey, and Stanislaus Counties who had refused to allow them to register, "individually and as representatives of the class of all other County Clerks and Registrars of Voters who have the duty of determining for their respective counties whether any ex-felon will be denied the right to vote.” The petition for a writ of mandate challenged the constitutionality of respondents’ exclusion from the voting rolls on two grounds. First, it was contended that California’s denial of the franchise to the class of ex-felons could no longer withstand scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Relying on the Court’s recent voting-rights cases, respondents argued that a compelling state interest must be found to justify exclusion of a class from the franchise, and that California could assert no such interest with respect to ex-felons. Second, respondents contended that application of the challenged California constitutional and statutory provisions by election officials of the State’s 58 counties was so lacking in uniformity as to deny them due process and “geographical .. . equal protection.” They appended a report by respondent California Secretary of State, and the questionnaires returned by county election officials on which it was based. The report concluded that there was wide variation in the county election officials’ interpretation of the challenged voting exclusions. The Supreme Court of California upheld the first contention and therefore did not reach the second one.
I
Before reaching respondents’ constitutional challenge, the Supreme Court of California considered whether a decision reached by the three county clerks not to contest the action, together with their representation to the court that they would henceforth permit all ex-felons whose terms of incarceration and parole had expired to register and vote, rendered this case moot. That court decided that it did not. The acquiescence of the three officials was in no way binding on election officials of the other 55 California counties in which respondents might choose to reside, and it was undisputed that there were many ex-felons among the residents of those counties who had been or would be refused registration on the ground challenged. Because the case posed a question of broad public interest, which was likely to recur and which should receive a statewide resolution, the court exercised its “inherent discretion to resolve the issue, 'even though an event occurring during its pendency would normally render the matter moot.’ . . . This rule is particularly applicable to challenges to the validity of election laws.” 9 Cal. 3d, at 203, 507 P. 2d, at 1347. In addition to California cases, the court cited Roe v. Wade, 410 U. S. 113 (1973), and Goosby v. Osser, 409 U. S. 512 (1973).
As a practical matter, there can be no doubt that there is a spirited dispute between the parties in this Court as to the constitutionality of the California provisions disenfranchising ex-felons. Even though the Supreme Court of California did not in fact issue a permanent writ of mandate, and therefore its judgment is in effect a declaratory judgment, an action for such relief may stem from a controversy that is “definite and concrete, touching the legal relations of parties having adverse legal interests.” Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 240-241 (1937). By reason of the special relationship of the public officials in a State to the court of last resort of that State, the decision of the Supreme Court of California, if left standing, leaves them permanently bound by its conclusion on a matter of federal constitutional law. Cf. North Dakota Pharmacy Bd. v. Snyder’s Stores, 414 U. S. 156 (1973).
This case in some respects presents stronger arguments for concluding that a live case or controversy remains than in other election cases in which we have addressed the question of mootness. Unlike Moore v. Ogilvie, 394 U. S. 814 (1969), in which the particular candidacy was not apt to be revived in a future election, or Hall v. Beals, 396 U. S. 45 (1969), in which the voters who had been disenfranchised because of a residence requirement would not have suffered the same fate under the amended statute, respondents here are indefinitely disenfranchised by the provisions of California law which they challenge. While the situation in Moore v. Ogilvie, supra, was described as “ ‘capable of repetition, yet evading review/ ” 394 U. S., at 816, that involved here can best be described, in view of the Supreme Court of California's decision against the state officials and their obligation to follow the law as laid down by that court, as “incapable of repetition,” and therefore evading review. There are thus the strongest sorts of practical arguments, as well as the language of Moore v. Ogilvie, supra, which militate against a conclusion of mootness in this case.
But purely practical considerations have never been thought to be controlling by themselves on the issue of mootness in this Court. While the Supreme Court of California may choose to adjudicate a controversy simply because of its public importance, and the desirability of a statewide decision, we are limited by the case-or-controversy requirement of Art. Ill to adjudication of actual disputes between adverse parties.
The mootness problem here arises because, as it noted, the Supreme Court of California was assured by the three county clerks who were named as defendants that the three named plaintiffs would be allowed to register and vote. The three named plaintiffs resided respectively in the California counties of San Luis Obispo, Monterey, and Stanislaus, and the county clerks of those counties who were named as defendants neither defended the action in the Supreme Court of California nor sought review here. Petitioner here is the County Clerk of Mendocino County, who though of course bound by the judgment of the Supreme Court of California, since she was made a party to that action, has no concrete dispute with voters who reside in other counties. Thus if the case were limited to the named parties alone, it could be persuasively argued that there was no present dispute on the issue of the right to register between the three named individual respondents in this Court and the one named petitioner here.
We think, however, that the unusual procedural history of the case in the Supreme Court of California leads to the conclusion that the litigation before us is not moot. The individual named plaintiffs brought their action in the Supreme Court of California on behalf of themselves and all other ex-felons similarly situated, and not simply those ex-felons residing in the counties in which the named plaintiffs resided. While only the county clerks of Stanislaus, Monterey, and San Luis Obispo were named parties defendant, they were designated in the original complaint filed in the Supreme Court of California “as representatives of the class of all other County Clerks.” The California Secretary of State was likewise named a party defendant. On the basis of this complaint, the Supreme Court of California issued an alternative writ of mandate directed to the three named county clerks “individually and as representatives of the class of all other County Clerks and Registrars of Voters,” directing them to register to vote not simply the three named plaintiffs, but “all ex-felons whose term of incarceration and parole have expired and who upon application demonstrate that they are otherwise fully qualified to vote,” or in the alternative to show cause why they had not done so upon the return date of the writ. Thus, while the Supreme Court of California did not in so many words say that it was permitting respondents to proceed by way of a “class action,” the fact that the court's process recited that the named clerks were subject to it “individually and as representatives of the class of all other County Clerks and Registrars of Voters,” and the fact that the beneficiaries of that process were not merely the named plaintiffs but “all ex-felons whose term of incarceration and parole [had] expired . . .” indicates that the court treated the action as one brought for the benefit of the class described in the petition for the writ of mandate.
Petitioner Viola Richardson, the County Clerk of Mendocino County, filed a complaint in intervention in the action in the Supreme Court of California, alleging that the suit as framed by the named plaintiffs was gollusive, in that neither the three named county clerks nor the Secretary of State could be expected to contest the claims of plaintiffs. Petitioner Viola Richardson further alleged in her complaint of intervention that she was a party to a lawsuit brought against her by an ex-felon (also named Richardson) who had sought to register in Mendocino County, had been denied the right, and whose suit seeking to establish the right was then pending in the State Court of Appeal.
The county clerks actually named as defendants in the mandate action each obeyed the alternative writ issued by the Supreme Court of California, and did not contest the named plaintiffs’ legal claim that they had a right to vote secured by the Equal Protection Clause of the Fourteenth Amendment which overrode the contrary provisions of the California Constitution. The Secretary of State appeared in the action and generally denied the named plaintiffs’ essential claims.
The Supreme Court of California, prior to the return date of the writ, issued an order denying petitioner Richardson’s motion to intervene, but instead ordered her added to the named defendants in the action along with the three other named county clerks and the Secretary of State. This action in the Supreme Court of California, coming as it did after the acquiescence of the named clerks in the counties in which the named plaintiffs resided, and yet at a time when the Secretary of State was still a party defendant who had answered the complaint, clearly indicates tó us that that court considered the action to be not only on behalf of the three named plaintiffs, but also on behalf of all ex-felons in California similarly situated. We are reinforced in this conclusion by the language quoted above from the alternative writ of mandate issued by the Supreme Court of California. Had the Supreme Court of California based its action on petitioner Richardson’s claim that the suit was collusive, and that it might become a binding precedent in her litigation then pending in the State Court of Appeal, it would seem to have been sufficient to grant the motion to intervene. But the court’s action adding petitioner Richardson as a named defendant would appear to have been based on its conclusion that at least some members of the class represented by the plaintiffs in fact resided in Mendocino County, and were there seeking to exercise their right to vote. In reaching such a conclusion, of course, the Supreme Court of California had before it petitioner Richardson’s allegation that at least her opponent in the litigation pending in the Court of Appeal was not merely seeking to register to vote in Mendocino County, but had brought a lawsuit to enforce his claim.
At the time petitioner Richardson was added as a party defendant, the three named plaintiffs had obtained the relief which they sought, whereas the remaining members of the class, including petitioner Richardson’s opponent in the Court of Appeal litigation, had not. We have held that in the federal system one may not represent a class of which he is not a part, Bailey v. Patterson, 369 U. S. 31, 32-33 (1962), and if this action had arisen in the federal courts there would be serious doubt as to whether it could have proceeded as a class action on behalf of the class of ex-felons denied the right to register after the three named plaintiffs had been granted that right. Indiana Employment Security Div. v. Burney, 409 U. S. 540 (1973). But California is at liberty to prescribe its own rules for class actions, subject only to whether limits may be imposed by the United States Constitution, and we interpret its action in adding petitioner Richardson as a defendant to mean that it regarded her opponent in the Court of Appeal litigation, both as an unnamed member of the class of ex-felons referred to in the mandate complaint, and as one of a class actually seeking to register in Mendocino County, as a party to the action in the Supreme Court of California, albeit an unnamed one.
In Brockington v. Rhodes, 396 U. S. 41 (1969), we emphasized in finding the case moot that appellant's “suit did not purport to be a class action, and he sought no declaratory relief.” Id., at 42. We said:
“[I]n view of the limited nature of the relief sought, we think the case is moot because the congressional election is over. The appellant did not allege that he intended to run for office in any future election. He did not attempt to maintain a class action on behalf of himself and other putative independent candidates, present or future. He did not sue for himself and others similarly situated as independent voters, as he might have under Ohio law. . . . He did not séek a declaratory judgment, although that avenue too was open to him. . . .” Id., at 43.
Here, unlike Brockington, there was a class action, and relief in the nature of declaratory relief was granted. The decision below is not only binding on petitioner Richardson, and thus dispositive of her other Court of Appeal litigation, but also decides the federal constitutional question presented for the unnamed members of the classes represented below by petitioner and respondents, whose continuing controversy led the Supreme Court of California to conclude that this case was not moot.
The briefs of the parties before us indicate that the adverse alignment in the Supreme Court of California continues in this Court, and we therefore hold the case is not moot.
II
Unlike most claims under the Equal Protection Clause, for the decision of which we have only the language of the Clause itself as it is embodied in the Fourteenth Amendment, respondents’ claim implicates not merely the language of the Equal Protection Clause of § 1 of the Fourteenth Amendment, but also the provisions of the less familiar § 2 of the Amendment:
“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” (Emphasis supplied.)
Petitioner contends that the italicized language of § 2 expressly exempts from the sanction of that section disenfranchisement grounded on prior conviction of a felony. She goes on to argue that those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment. This argument seems to us a persuasive one unless it can be shown that the language of § 2, “except for participation in rebellion, or other crime,” was intended to have a different meaning than would appear from its face.
The problem of interpreting the “intention” of a constitutional provision is, as countless cases of this Court recognize, a difficult one. Not only are there deliberations of congressional committees and floor debates in the House and Senate, but an amendment must thereafter be ratified by the necessary number of States. The legislative history bearing on the meaning of the relevant language of § 2 is scant indeed;. the framers of the Amendment were primarily concerned with the effect of reduced representation upon the States, rather than with the two forms of disenfranchisement which were exempted from that consequence by the language with which we are concerned here. Nonetheless, what legislative history there is indicates that this language was intended by Congress to mean what it says.
A predecessor of § 2 was contained in an earlier draft of the proposed amendment, which passed the House of Representatives, but was defeated in the Senate early in 1866. The Joint Committee of Fifteen on Reconstruction then reconvened, and for a short period in April 1866, revised and redrafted what ultimately became the Fourteenth Amendment. The Journal of that Committee’s proceedings shows only what motions were made and how the various members of the Committee voted on the motions; it does not indicate the nature or content of any of the discussion in the Committee. While the Journal thus enables us to trace the evolution of the draft language in the Committee, it throws only indirect light on the intention or purpose of those who drafted § 2. See B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 104-120 (1914).
We do know that the particular language of § 2 upon which petitioner relies was first proposed by Senator Williams of Oregon to a meeting of the Joint Committee on April 28, 1866. Senator Williams moved to strike out what had been § 3 of the earlier version of the draft, and to insert in place thereof the following:
“Representatives shall be apportioned among the several states which may be' included within this Union according to their respective numbers, counting the whole number of persons in each State excluding Indians not taxed. But whenever in any State the elective franchise shall be denied to any portion of its male citizens, not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age.” Id., at 102.
The Joint Committee approved this proposal by a lopsided margin, and the draft Amendment was reported to the House floor with no change in the language of §2.
Throughout the floor debates in both the House and the Senate, in which numerous changes of language in § 2 were proposed, the language “except for participation in rebellion, or other crime” was never altered. The language of § 2 attracted a good deal of interest during the debates, but most of the discussion was devoted to its foreseeable consequences in both the Northern and Southern States, and to arguments as to its necessity or wisdom. What little comment there was on the phrase in question here supports a plain reading of it.
Congressman Bingham of Ohio, who was one of the principal architects of the Fourteenth Amendment and an influential member of the Committee of Fifteen, commented with respect to § 2 as follows during the floor debates in the House:
“The second section of the amendment simply provides for the equalization of representation among all the States of the Union, North, South, East, and West. It makes no discrimination. New York has a colored population of fifty thousand. By this section, if that great State discriminates against her colored population as to the elective franchise, (except in cases of crime,) she loses to that extent her representative power in Congress. So also will it be with every other State.” Cong. Globe, 39th Cong., 1st Sess., 2543 (1866).
Two other Representatives who spoke to the question made similar comments. Representative Eliot of Massachusetts commented in support of the enactment of § 2 as follows:
“Manifestly no State should have its basis of national representation enlarged by reason of a portion of citizens within its borders to which the elective franchise is denied. If political power shall be lost because of such denial, not imposed because of participation in rebellion or other crime, it is to be hoped that political interests may work in the line of justice, and that the end will be the impartial enfranchisement of all citizens not disqualified by crime.” Id., at 2511.
Representative Eckley of Ohio made this observation:
“Under a congressional act persons convicted of a crime against the laws of the United States, the penalty for which is imprisonment in the penitentiary, are now and always have been disfranchised, and a pardon did not restore them unless the warrant of pardon so provided.
"... But suppose the mass of the people of a State are pirates, counterfeiters, or other criminals, would gentlemen be willing to repeal the laws now in force in order to give them an opportunity to land their piratical crafts and come on shore to assist in the election of a President or members of Congress because they are numerous? And let it be borne in mind that these latter offenses are only crimes committed against property; that of treason is against the nation, against the whole people — the highest known to the law.” Id., at 2535.
The debates in the Senate did not cover the subject as exhaustively as did the debates in the House, apparently because many of the critical decisions were made by the Republican Senators in an unreported series of caucuses off the floor. Senator Saulsbury of Delaware, a Democrat who was not included in the majority caucus, observed:
“It is very well known that the majority of the members of this body who favor a proposition of this character have been in very serious deliberation for several days in reference to these amendments, and have held some four or five caucuses on the subject.” Id., at 2869.
Nonetheless, the occasional comments of Senators on the language in question indicate an understanding similar to that of the House members. Senator Johnson of Maryland, one of the principal opponents of the Fourteenth Amendment, made this argument:
“Now it is proposed to deny the right to be represented of a part, simply because they are not permitted to exercise the right of voting. You do not put them upon the footing of aliens, upon the footing of rebels, upon the footing of minors, upon the footing of the females, upon the footing of those who may have committed crimes of the most heinous character. Murderers, robbers, houseburners, counterfeiters of the public securities of the United States, all who may have committed any crime, at any time, against the laws of the United States or the laws of a particular State, are to be included within the basis; but the poor black man, unless he is permitted to vote, is not to be represented, and is to have no interest in the Government.” Id., at 3029.
Senator Henderson of Missouri, speaking in favor of the version of § 2 which had been reported by the Joint Committee in April, as opposed to the earlier provision of the proposal which had been defeated in the Senate, said this:
“The States under the former proposition [the corresponding provision of the original Amendment reported by the Committee of Fifteen, which passed the House of Representatives but was defeated in the Senate] might have excluded the negroes under
an educational test and yet retained their power in Congress. Under this they cannot. For all practical purposes,. under the former proposition loss of representation followed the disfranchisement of the negro only; under this it follows the disfranchisement of white and black, unless excluded on account of 'rebellion or other crime.' ” Id., at 3033.
Further light is shed on the understanding of those who framed and ratified the Fourteenth Amendment, and thus on the meaning of § 2, by the fact that at the time of the adoption of the Amendment, 29 States had provisions in their constitutions which prohibited, or authorized the legislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes.
More impressive than the mere existence of the state constitutional provisions disenfranchising felons at the time of the adoption of the Fourteenth Amendment is the congressional treatment of States readmitted to the Union following the Civil War. For every State thus readmitted, affirmative congressional action in the form of an enabling act was taken, and as a part of the readmission process the State seeking readmission was required to submit for the approval of the Congress its proposed state constitution. In March 1867, before any State was readmitted, Congress passed “An act to provide for the more efficient Government of the Rebel States,” the so-called Reconstruction Act. Act of Mar. 2, 1867, c. 153, 14 Stat. 428. Section 5 of the Reconstruction Act established conditions on which the former Confederate States would be readmitted to representation in Congress. It provided:
“That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may he disfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature. elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State . . . (Emphasis supplied.)
Section 5 was introduced as a Senate amendment to the House bill, which was concerned only with the establishment of military government in the former Confederate States. Cong. Globe, 39th Cong., 2d Sess., 1360-1361 (1867). The legislative history of the Reconstruction Act was recounted by Senator Henderson of Missouri, who ultimately voted for it:
“As the bill originally came from the House it was a bald and naked proposition to establish without limitation of power or the time of its duration a purely military government for the ten States now unrepresented. This, in my judgment, was a most dangerous experiment. . . .
“The Senate, being unwilling to embark on the experiment of pure military rule, modified the House bill by adopting what is known as the Blaine or Sherman amendment. This amendment conceded military rule, as asked by the House, but put some sort of limit to its duration. It provided that when the rebel States should adopt universal suffrage, regardless of color or race, excluding none, white or black, except for treason or such crimes as were felony at the common law, the regulation of exclusion to be left to the States themselves, and should adopt the constitutional amendment proposed at the last session of Congress . . . and so soon as a sufficient number of said States should adopt it to make it a part of the Constitution of the United States, then military law should cease and the States should be admitted, provided that Congress even then should see fit to receive them.” Id., at 1641.
A series of enabling acts in 1868 and 1870 admitted those States to representation in Congress. The Act admitting Arkansas, the first State to be so admitted, attached a condition to its admission. Act of June 22, 1868, c. 69, 15 Stat. 72. That Act provided:
“WHEREAS the people of Arkansas, in pursuance of the provisions of an act entitled ‘An act for the more efficient government of the rebel States,' passed March second, eighteen hundred and sixty-seven, and the act supplementary thereto, have framed and adopted a constitution of State government, which is republican, and the legislature of said State has duly ratified the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen: Therefore,
“Be it enacted . . . That the State of Arkansas is entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabitants of said State: Provided, That any alteration of said constitution prospective in its effect may be made in regard to the time and place of residence of voters.”
The phrase “under laws equally applicable to all the inhabitants of said State” was introduced as an amendment to the House bill by Senator Drake of Missouri. Cong. Globe, 40th Cong., 2d Sess., 2600 (1868). Senator Drake's explanation of his reason for introducing his amendment is illuminating. He expressed concern that without that restriction, Arkansas might misuse the exception for felons to disenfranchise Negroes:
“There is still another objection to the condition as expressed in the bill, and that is in the exception as to the punishment for crime. The bill authorizes men to be deprived of the right to vote ‘as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted.' There is one fundamental defect in that, and that is that there is no requirement that the laws under which men shall be duly convicted of these crimes shall be equally applicable to all the inhabitants of the State. It is a very easy thing in a State to make one set of laws applicable to white men, and another set of laws applicable to colored men.” Ibid.
The same “fundamental condition” as was imposed by the act readmitting Arkansas was also, with only slight variations in language, imposed by the Act readmitting North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, enacted three days later. Act of June 25, Í868, c. 70, 15 Stat.. 73. That condition was again imposed by the Acts readmitting Virginia, Mississippi, Texas, and Georgia early in 1870. Act of Jan. 26, 1870, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act of Feb. 23, 1870, c. 19, 16 Stat. 67; Act of Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363.
This convincing evidence of the historical understanding of the Fourteenth Amendment is confirmed by the decisions of this Court which have discussed the constitutionality of provisions disenfranchising felons. Although the Court has never given plenary consideration to the precise question of whether a State may constitutionally exclude some or all convicted felons from the franchise, we have indicated approval of such exclusions on a number of occasions. In two cases decided toward the end of the last century, the Court approved exclusions of bigamists and polygamists from the franchise under territorial laws of Utah and Idaho. Murphy v. Ramsey, 114 U. S. 15 (1885); Davis v. Beason, 133 U. S. 333 (1890). Much more recently we have strongly suggested in dicta that exclusion of convicted felons from the franchise violates no constitutional provision. In Lassiter v. Northampton County Board of Elections, 360 U. S. 45 (1959), where we upheld North Carolina's imposition of a literacy requirement for voting, the Court said, id
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_othadmis
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E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit 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".
Harold E. MARASCO et al., Plaintiffs, Appellants, v. COMPO SHOE MACHINERY CORPORATION, Defendant, Appellee.
No. 6139.
United States Court of Appeals First Circuit.
Dec. 26, 1963.
Robert B. Russell, Boston, Mass., with whom Russell, Chittick & Pfund, Boston, Mass., was on the brief, for appellants,
Robert L. Thompson, Boston, Mass., with whom Gerald Gillerman, Dike, Thompson, Bronstein & Mrose and Slater & Goldman, Boston, Mass., were on the brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
. . , „ . , , , This is an appeal from a judgment of the United States District Court for the District of Massachusetts, entered April 5, 1963, declaring invalid all claims of U. S. Patent No. 2,962,736 issued to plaintiff-appellant Harold E. Marasco on December 6, 1960 on application filed February 19, 1959 and assigned by him to plaintiff-appellant Marasco Shoe Machinery Company. The four claims of the Patent were found by the lower court to have been anticipated by Italian Patent Ho. 547,479 granted August 30, 1956 to Alessandro Malverdi and by the “Ghini” machine which embodies the Malverdi patent and which was in use in this country in 1958.
Plaintiffs initially brought an action for infringement against defendantappellee Compo Shoe Machinery Corporation, contending that a split pad box used in the production of shoes and manufactored by Compo infringed the patent in issue. Defendant counterclaimed and asked the court to declare the Marasco patent invalid for (1) want of invention, (2) anticipation and (3) inoperativeness, Chief Judge Sweeney, properly deciding a issues before him, held that the Marasco patent for a split pad box constituted an invention over the conventional unitary pad box and that the patent disclosed an operative device. However, on the issue of anticipation he found the Marasco patent was invalid. The court further stated that if, on appeal, its judgment as to invalidity should be reversed, it finds all plaintiffs’ claims infringed by the defendant.
The pertinent background to this case has been set forth by the lower court and we quote it here:
“The patent in suit relates to a two-section pad box for use in making shoes having ‘Louis’ heels by the tabless process. The Louis heel, which is used on ladies’ shoes, is characterized, in part, by having applied to its front, or breast, a thin flap which is an integral part of the sole. Prior to the development of the tabless process, the sole would be applied to the shoe and cemented to the shoe with the use of a conventional pad box before the heel was attached. That part of the sole which becomes the breast of the heel, was split. The upper part, the part closest to the shoe, is known as the ‘tab’ while the other half, the breast of the heel, is the ‘leaf’. The tab was then also cemented to the shoe, the heel was loosely attached over the tab and the leaf, cemented to the heel by hand, in that order.
“In the tabless process (which was developed in Europe about 1955), as the name implies, the tab is eliminated. The heel is attached to shoe first, and sole and heel breast are cemented to the bottom of the shoe and to the heel in one operation. This requires a pad box by which pressure can be exerted in both directions at the same time.
“Marasco, who from 1933 to 1947 had been an employee of the defendant and a protege of its then president, in the early 1950’s started designing and making shoe machinery on his own and in 1953 he formed the Company. In 1957 a shoe manufacturer asked him to devise a pad box which could simultaneously cement the sole to the bottom of the shoe and the leaf to the breast of the heel.
“The conventional pad box is essentially an oval metal frame which holds a rubber diaphragm covered with leather. The lasted shoe is placed on the diaphragm and is held in place by the sole press while the diaphragm is inflated to exert pressure against the surface to be cemented. Marasco’s solution to the problem posed by the manufacturer was simply to cut a conventional pad box in two and bolt the two sections back together again in such a manner as to leave room for insertion of the heel. This two-part pad box employs two diaphragms with separate air intakes, one of which exerts pressure against the sole and breast of the heel while the other exerts a counter pressure against the back of the heel. This two-part pad box became, with a few refinements, the subject of the patent in suit.”
The “Ghini” machine, fashioned after the Malverdi patent, differs from the Marasco machine in that the rearpart pad section is pivoted to a lever-type handle immediately behind the rear pad which, when pulled back, allows the insertion of heels of various sizes and, when manually closed, pushes the rear-part pad section against the heel while lifting both rearpart and forepart sections against the sole press attached to the above frame. The shoe is then held securely in place while even pressure is applied against the heel from both sides to avoid breakage.
Once the handle has been pushed forward to its adjusted limit, the adjustment being dependent upon the thickness of the heel, it is not necessary for the operator to maintain pressure against the handle in order to keep it from popping out. The action of the linkage (the links controlled by the handle slightly passing the position of straight alignment so that they cannot fall back into an unlocked position) and the inflation of the pads maintain the entire device under pressure.
Where all the elements of a claimed invention are found in a previously constructed and used machine which is capable of performing the same functions as the claimed invention, then the latter has been anticipated by the former. Ranco, Inc. v. Gwynn, 128 F.2d 437 (6th Cir. 1942). Here, the leading elements or their equivalents of the Marasco patent are found in the prior patent of Malverdi. The machines constructed from the two patents are both equipped with complimentary forepart and rear-part pad box sections containing separate flexible pads with vertical portions for engaging opposite faces of an interposed heel. Both provide for equal pressure to be asserted against the heel and the pads to be inflated by means of fluid pressure inlets. The Marasco machine holds the pad sections stationary and in place against longitudinal pressure developed by inflation of the pads through the use of bolts connecting together the external lugs of the forepart and rearpart pads. The equivalent is found in Malverdi in the use of a linkage which becomes mechanically rigid during inflation and accomplishes the same function. Dr. Joseph Harrington, Jr., an expert witness whose qualifications were not objected to by the plaintiffs, successfully testified that all the elements or their equivalents contained in the four claims of Marasco were found by him to be contained in the Malverdi machine. The lower court correctly concluded that the only difference between the two patents was the movement of the rear pad box in Malverdi.
Plaintiffs attempt to overcome the obvious similarities in the two machines by claiming functional advantages due to their fixed two part pad box arrangement. But contrary to their assertion, there is no more adjustment involved in the operation of the “Ghini” machine than there is in the operation of the Marasco machine where the bolts must be unfastened and metal spacers added in order to provide for increases in heel sizes with various style changes. In fact, Marasco’s machine appears to be more of a regression in this area rather than an advance over the prior art. Nor do we find the “Ghini” machine to be more complicated than Marasco’s and plaintiffs fear that the operating handle of the “Ghini” machine can pop out in the operator’s face has already been laid to rest.
It is true that the Patent Examiner cited the Malverdi patent in allowing Marasco’s claims, but any presumption of validity to be gathered from that fact has been sufficiently overcome. Also, there is indication that the examiner’s judgment may not have been based on evidence completely accurate. We are referring to a letter sent to the examiner by Marasco’s attorney informing the examiner that the handle of the “Ghini” machine was held in operative position only by manpower. The text of the Italian patent, a translation of which was possessed by the plaintiffs, stated the exact opposite.
A judgment will be entered affirming the judgment of the district court.
Cementing, in fact, involves several steps, but in this context the word is used to denote only the last step, bolding in place the two parts to be united.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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sc_caseorigin
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059
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
DUCKWORTH v. EAGAN
No. 88-317.
Argued March 29, 1989
Decided June 26, 1989
Rehnquist, C. J., delivered the opinion of the Court, in which White, O’Connor, Scalia, and Kennedy, JJ., joined. O’Connor, J., filed a concurring opinion, in which Scalia, J., joined, post, p. 205. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, and in Part I of which Blackmun and Stevens, JJ., joined, post, p. 214.
David Michael Wattman, Deputy Attorney General of Indiana, argued the cause for petitioner. With him on the briefs were Linley E. Pearson, Attorney General, and Robert S. Spear and Michael A. Schoening, Deputy Attorneys General.
Michael R. Lazerwitz argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Dennis, Deputy Solicitor General Bryson, and Joel M. Gershowitz.
Howard B. Eisenberg, by appointment of the Court, 488 U. S. 921 (1988), argued the cause and filed a brief for respondent.
Chief Justice Rehnquist
delivered the opinion of the Court.
Respondent confessed to stabbing a woman nine times after she refused to have sexual relations with him, and he was convicted of attempted murder. Before confessing, respondent was given warnings by the police, which included the advice that a lawyer would be appointed “if and when you go to court.” The United States Court of Appeals for the Seventh Circuit held that such advice did not comply with the requirements of Miranda v. Arizona, 384 U. S. 436 (1966). We disagree and reverse.
Late on May 16, 1982, respondent contacted a Chicago police officer he knew to report that he had seen the naked body of a dead woman lying on a Lake Michigan beach. Respondent denied any involvement in criminal activity. He then took several Chicago police officers to the beach, where the woman was crying for help. When she saw respondent, the woman exclaimed: “Why did you stab me? Why did you stab me?” Respondent told the officers that he had been with .the woman earlier that night, but that they had been attacked by several men who abducted the woman in a van.
The next morning, after realizing that the crime had been committed in Indiana, the Chicago police turned the investigation over to the Hammond, Indiana, Police Department. Respondent repeated to the Hammond police officers his story that he had been attacked on the lakefront, and that the woman had been abducted by several men. After he filled out a battery complaint at a local police station, respondent agreed to go to the Hammond police headquarters for further questioning.
At about 11 a. m., the Hammond police questioned respondent. Before doing so, the police read to respondent a waiver form, entitled “Voluntary Appearance; Advice of Rights,” and they asked him to sign it. The form provided:
“Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer.” 843 F. 2d 1554, 1555-1556 (CA7 1988) (emphasis added).
Respondent signed the form and repeated his exculpatory explanation for his activities of the previous evening.
Respondent was then placed in the “lockup” at the Hammond police headquarters. Some 29 hours later, at about 4 p.m. on May 18, the police again interviewed respondent. Before this questioning, one of the officers read the following waiver form to respondent:
“1. Before making this statement, I was advised that I have the right to remain silent and that anything I might say may or will be used against me in a court of law.
“2. That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose.
“3. That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation.
“4. That in the course of any conversation I can refuse to answer any further questions and remain silent, thereby terminating the conversation.
“5. That if I do not hire an attorney, one will be provided for me.” Id., at 1556.
Respondent read the form back to the officers and signed it. He proceeded to confess to stabbing the woman. The next morning, respondent led the officers to the Lake Michigan beach where they recovered the knife he had used in the stabbing and several items of clothing.
At trial, over respondent’s objection, the state court admitted his confession, his first statement denying any involvement in the crime, the knife, and the clothing. The jury found respondent guilty of attempted murder, but acquitted him of rape. He was sentenced to 35 years’ imprisonment. The conviction was upheld on appeal. Eagan v. State, 480 N. E. 2d 946 (Ind. 1985).
Respondent sought a writ of habeas corpus in the United States District Court for the Northern District of Indiana, claiming, inter alia, that his confession was inadmissible because the first waiver form did not comply with Miranda. The District Court denied the petition, holding that the record “clearly manifests adherence to Miranda . . . espe-dally as to the so-called second statement.” App. to Pet. for Cert. A52.
A divided United States Court of Appeals for the Seventh Circuit reversed. 843 F. 2d 1554 (1988). The majority held that the advice that counsel would be appointed “if and when you go to court,” which was included in the first warnings given to respondent, was “constitutionally defective because it denies an accused indigent a clear and unequivocal warning of the right to appointed counsel before any interrogation,” and “link[s] an indigent’s right to counsel before interrogation with a future event.” Id., at 1557. The majority relied on the Seventh Circuit’s decision in United States ex rel. Williams v. Twomey, 467 F. 2d 1248, 1250 (1972), which had condemned, as “misleading and confusing,” the inclusion of “if and when you go to court” language in Miranda warnings. Turning to the admissibility of respondent’s confession, the majority thought that “as a result of the first warning, [respondent] arguably believed that he could not secure a lawyer during interrogation” and that the second warning “did not explicitly correct this misinformation.” 843 F. 2d, at 1558. It therefore remanded the case for a determination whether respondent had knowingly and intelligently waived his right to an attorney during the second interview. The dissenting judge rejected the majority’s “formalistic, technical and unrealistic application of Miranda” and argued that the first warnings passed constitutional muster. Id., at 1562., In any case, he thought that remand was not necessary because the record indicated that this case was covered by Oregon v. Elstad, 470 U. S. 298 (1985). 843 F. 2d, at 1570-1571.
The Court of Appeals denied rehearing en banc, with four judges dissenting from that order. App. to Pet. for Cert. A1-A2. We then granted certiorari, 488 U. S. 888 (1988), to resolve a conflict among the lower courts as to whether informing a suspect that an attorney would be appointed for him “if and when you go to court” renders Miranda warnings inádequate. We agree with the majority of the lower courts that it does not.
In Miranda v. Arizona, 384 U. S. 436 (1966), the Court established certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation. In now-familiar words, the Court said that the suspect must be told that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Id,., at 479. The Court in Miranda “presumed that interrogation in certain custodial circumstances is inherently coercive and . . . that statements made under those circumstances are inadmissible unless the suspect is specifically warned of his Miranda rights and freely decides to forgo those rights.” New York v. Quarles, 467 U. S. 649, 654 (1984) (footnote omitted).
We have never insisted that Miranda warnings be given in the exact form described in that decision. In Miranda itself, the Court said that “[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.” 384 U. S., at 476 (emphasis added). See also Rhode Island v. Innis, 446 U. S. 291, 297 (1980) (referring to “the now familiar Miranda warnings ... or their equivalent”). In California v. Prysock, 453 U. S. 355 (1981) (per curiam), we stated that “the ‘rigidity’ of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant,” and that “no talismanic incantation [is] required to satisfy its strictures.” Id., at 359.
Miranda has not been limited to station house questioning, see Rhode Island v. Innis, supra (police car), and the officer in the field may not always have access to printed Miranda warnings, or he may inadvertently depart from routine practice, particularly if a suspect requests an elaboration of the warnings. The prophylactic Miranda warnings are “not themselves rights protected by the Constitution but [are] instead measures to in.sure that the right against compulsory self-incrimination [is] protected.” Michigan v. Tucker, 417 U. S. 433, 444 (1974). Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably “conve[y] to [a suspect] his rights as required by Miranda.” Pry sock, supra, at 361.
We think the initial warnings given to respondent touched all of the bases required by Miranda. The police told respondent that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had “this right to the advice and presence of a lawyer even if [he could] not afford to hire one,” and that he had the “right to stop answering at any time until [he] talked to a lawyer.” 843 F. 2d, at 1555-1556. As noted, the police also added that they could not provide respondent with a lawyer, but that one would be appointed “if and when you go to court.” The Court of Appeals thought this “if and when you go to court” language suggested that “only those accused who can afford an attorney have the right to have one present before answering any questions,” and “implie[d] that if the accused does not ‘go to court/ i. e.[,] the government does not file charges, the accused is not entitled to [counsel] at all.” Id., at 1557.
In our view, the Court of Appeals misapprehended the effect of the inclusion of “if and when you go to court” language in Miranda warnings. First, this instruction accurately described the procedure for the appointment of counsel in Indiana. Under Indiana law, counsel is appointed at the defendant’s initial appearance in court, Ind. Code § 35-33-7-6 (1988), and formal charges must be filed at or before that hearing, §35-33-7-3(a). We think it must be relatively commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain counsel. The “if and when you go to court” advice simply anticipates that question. Second, Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one. The Court in Miranda emphasized that it was not suggesting that “each police station must have a ‘station house lawyer’ present at all times to advise prisoners.” 384 U. S., at 474. If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel. Ibid. Here, respondent did just that.
Respondent relies, Brief for Respondent 24-29, on language in California v. Prysock, where we suggested that Miranda warnings would not be sufficient “if the reference to the right to appointed counsel was linked [to a] future point in time after the police interrogation.” 453 U. S., at 360 (emphasis added). The Court of Appeals also referred to Prysock in finding deficient the initial warnings given to respondent. 843 F. 2d, at 1557. But the vice referred to in Prysock was that such warnings would not apprise the accused of his right to have an attorney present if he chose to answer questions. The warnings in this case did not suffer from that defect. Of the eight sentences in the initial warnings, one described respondent’s right to counsel “before [the police] ask[ed] [him] questions,” while another stated his right to “stop answering at any time until [he] talk[ed] to a lawyer.” Id., at 1555-1556. We hold that the initial warnings given to respondent, in their totality, satisfied Miranda, and therefore that his first statement denying his involvement in the crime, as well as the knife and the clothing, was properly admitted into evidence.
The Court of Appeals thought it necessary to remand this case for consideration of whether respondent’s second statement was tainted by the first warnings. Id., at 1557-1558. In view of our disposition of this case, we need not reach that question. The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with our decision.
It is so ordered.
The remainder of the form signed by respondent provided:
“I, [Gary Eagan,] have come to the Detective Bureau of the Hammond, Indiana Police Department, of my own choice to talk with Officers ... In [sic] regard to an investigation they are conducting. I know that I am not under arrest and that I can leave this office if I wish to do so.
“Prior to any questioning, I was furnished with the above statement of my rights.... I have (read) (had read to me) this statement of my rights. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.” 843 F. 2d, at 1560, n. 2.
The majority of federal and state courts to consider the issue have held that warnings that contained “if and when you go to court” language satisfied Miranda. See Wright v. North Carolina, 483 F. 2d 405, 406-407 (CA4 1973), cert. denied, 415 U. S. 936 (1974); Massimo v. United States, 463 F. 2d 1171, 1174 (CA2 1972), cert. denied, 409 U. S. 1117 (1973); United States v. Lacy, 446 F. 2d 511, 513 (CA5 1971); State v. Sterling, 377 So. 2d 58, 62-63 (La. 1979); Harrell v. State, 357 So. 2d 643, 645-646 (Miss. 1978); Rowbotham v. State, 542 P. 2d 610, 618-619 (Okla. Crim. App. 1975); Grennier v. State, 70 Wis. 2d 204, 213-215, 234 N. W. 2d 316, 321-322 (1975); Schade v. State, 512 P. 2d 907, 915-916 (Alaska 1973); State v. Mumbaugh, 107 Ariz. 589, 596-597, 491 P. 2d 443, 450-451 (1971); People v. Campbell, 26 Mich. App. 196, 201-202, 182 N. W. 2d 4, 6-7 (1970), cert. denied, 401 U. S. 945 (1971); People v. Swift, 32 App. Div. 2d 183, 186-187, 300 N. Y. S. 2d 639, 643-644 (1969), cert. denied, 396 U. S. 1018 (1970). Other courts, although not using the precise “if and when you go to court” language, have held Miranda was satisfied by a warning that an attorney could not be appointed for a suspect until he appeared in court. See United States v. Contreras, 667 F. 2d 976, 979 (CA11), cert. denied, 459 U. S. 849 (1982); Coyote v. United States, 380 F. 2d 305, 308 (CA10), cert. denied, 389 U. S. 992 (1967); State v. Maluia, 56 Haw. 428, 431-435, 539 P. 2d 1200, 1205-1207 (1975); Emler v. State, 259 Ind. 241, 243-244, 286 N. E. 2d 408, 410-411 (1972); Jones v. State, 69 Wis. 2d 337, 343-345, 230 N. W. 2d 677, 682-683 (1975).
On the other hand, a minority of federal and state courts, including the Seventh Circuit in this case, have held that “if and when you go to court” language did not satisfy Miranda. See United States ex rel. Williams v. Twomey, 467 F. 2d 1248, 1249-1250 (CA7 1972); Gilpin v. United States, 415 F. 2d 638, 641 (CA5 1969); State v. Dess, 184 Mont. 116, 120-122, 602 P. 2d 142, 144-145 (1979); Commonwealth v. Johnson, 484 Pa. 349, 352-357, 399 A. 2d 111, 112-114 (1979); Square v. State, 283 Ala. 548, 550, 219 So. 2d 377, 378-379 (1969).
Petitioner does not argue, and we therefore need not decide, whether Stone v. Powell, 428 U. S
Question: What is the court in which the case originated?
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189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_interven
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
LYNCHBURG GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Atlantic Seaboard Corporation et al., Intervenors.
No. 17738.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 21, 1963.
Decided June 26, 1964.
Mr. Morton L. Simons, Washington, D. C., for petitioner.
Miss Josephine H. Klein, Atty., Federal Power Commission, with whom Messrs. Richard A. Solomon, Gen. Counsel, Howard E. Wahrenbrock, Sol. and Abraham R. Spalter, Asst. Gen. Counsel, Federal Power Commission, were on the brief, for respondent.
Mr. Peter H. Schiff, Atty., Federal Power Commission, also entered an appearance for respondent.
Mr. Edward S. Pinney, New York City, with whom Messrs. Giles D. H. Snyder and William C. Hart, New York City, were on the brief, for intervenors.
Before Fahy, Washington and Burger, Circuit Judges.
PER CURIAM.
The judgment of the court is that the order of the Commission under review in this proceeding is set aside and the case is remanded to the Commission for further proceedings. Judge Fahy states his reasons in an opinion in which Judge Washington concurs except Part II which discusses the contention of petitioner that the approved rate is an unreasonable restraint upon trade and is discriminatory in violation of the antitrust laws. Judge Washington files a separate concurring opinion in which Judge Fahy concurs except he believes a decision of .the antitrust issue would be appropriate. Judge Burger also files an opinion, dissenting in part and concurring in part.
FAHY, Circuit Judge.
Lynchburg Gas Company petitions for review of an order of the Federal Power Commission authorizing a rate schedule of the Atlantic Seaboard Corporation, a pipeline affiliate of the Columbia Gas System. The rate is applicable to Seaboard’s sales to resale customers which obtain less than their full requirements from Seaboard. Lynchburg has been a small customer of Seaboard since 1947, serving the City of Lynchburg and thereabouts, and until 1961 obtained its total requirements from Seaboard. Since then, however, it has purchased, with Commission permission, a portion of its supply from Transcontinental Gas Pipe Line Corporation (Transco), whose pipeline, originating in the Texas Gulf Coast area and traversing Virginia on a course approximating that of Seaboard, supplies primarily the populous markets in the Middle Atlantic Seaboard area.
Seaboard’s basic rate structure is a combination of a demand and a commodity charge. The demand charge takes care of approximately half the cost to Seaboard of its necessary facilities, and is billed on the basis of the maximum volume a buyer has the right to take, though no gas is taken. The commodity charge is designed to recover the other half of Seaboard’s fixed costs and also its variable costs, and is billed on the basis of the gas actually taken. The larger the volume the lower the unit cost, since the demand charge is then spread over a larger number of units.
At the time of the hearing Seaboard’s rate applicable to the area here affected was $3.25 per Mef. demand charge and 32.18?! per Mcf. commodity charge, so that at 100% load factor the unit cost was 42.9?£ per Mcf. and at 50% load factor was 53.5?! per Mcf. Transco’s rates applicable to Lynchburg are lower than Seaboard’s. They were $3.10 per Mcf. demand, and 28?S per Mcf. commodity, but were reduced in February 1963 to $2.91 per Mcf. demand and 27.3?! per Mcf. commodity.
In view of the fact that Lynchburg under a long-term service agreement with Seaboard remains bound to pay Seaboard’s demand charge, it serves Lynch-burg’s interest to continue purchasing part of its supply from Seaboard. However, Lynchburg would benefit by so apportioning its purchases between Seaboard and Transco as to yield the lowest average unit cost, and could do this were it able to purchase at a high load factor from Transco, thus taking full advantage of the latter’s low commodity charge.
Seaboard filed under Section 4(d) of the Natural Gas Act a proposed commodity-demand “partial requirements" (PR) rate to supplement its previous rate. The ensuing proceedings led to a decision by the Commission to modify, and as modified to approve, a Seaboard schedule of rates which would require Lynchburg and other “partial requirements” customers in certain circumstances to pay a minimum commodity charge not required to be paid by full requirements customers. The effect of this charge is to require the partial requirements customer to purchase from Columbia or to pay for, even if not actually used, a minimum volume of gas both annually and monthly. This rate becomes effective as to Lynchburg should its purchases from Transco cause it to take from Seaboard less than a certain amount calculated on the basis of eighty per cent of Lynchburg’s base-period load factor. Also included in the approved schedule are provisions which permit the minimum charge to be redetermined if Lynchburg’s industrial sales increase or decrease by ten per cent. Lynchburg’s present petition is for review of the rate schedule as approved.
The justification the Commission found for the PR rate is that approximately half of Seaboard’s fixed costs are allocated to its commodity charge, and if Lynch-burg were to reduce its commodity payments by reducing its base load purchases it would cut down its contribution to Seaboard’s fixed costs. The Commission reasoned that if this reduction were substantial Lynchburg would cease to bear its fair share of such fixed costs. Since Seaboard must recover these costs if it is to remain in business the result would be that other Seaboard customers would be obliged to assume a disproportionate share by paying higher rates. This, the Commission concluded, would place an undue burden upon customers not having a second source of supply.
I.
The Commission first contends that Lynchburg is not a party aggrieved under Section 19(b) of the Act and its petition accordingly should be dismissed. The Commission says the record is devoid of evidence to support Lynchburg’s contention that the PR rate schedule unreasonably restrains competition to Lynchburg’s disadvantage. We think “aggrievement” does not depend upon a resolution of this question. There is aggrievement when a customer’s rate is increased, or other economic injury is likely to flow from the action sought to be reviewed. The former is illustrated by Associated Indus. of New York State v. Ickes, 134 F.2d 694 (2d Cir.), vacated for mootness, 320 U.S. 707, 64 S.Ct. 74, 88, L.Ed. 414 (1943), the latter by the leading case of Federal Communications Comm’n v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940). And see the cases reviewed in Philco Corp. v. Federal Communications Comm’n, 103 U.S.App.D.C. 278, 257 F.2d. 656 (1958), cert. denied, 358 U.S. 946, 79 S.Ct. 350, 3 L.Ed.2d 352 (1959). But the-Commission points out that the PR rate,, even if it might theoretically have an economic impact upon Lynchburg in the future, has none at present. AcceptingLynchburg’s statement that the base period which would be used to determine the-minimum bills would be the period of highest load factor in Lynchburg’s his-, tory — 66%—the Commission says the-order would impose a minimum commodity bill at a load factor of 52.8%, and. Lynchburg does not allege that its load, factor has ever been, or that it probably might be, lower than this in any reasonably foreseeable conditions. Lynchburg, countering, states inter alia that in order-to avoid a “penalty” under Seaboard’s minimum annual bill provision for the-twelve months ended October 31, 1962, it was forced to cut back on its supply from Transco in June, July, August, September, and October, 1962.
Assuming that Lynchburg will' currently not be required to pay more under the new rate or, to avoid doing so, to take less gas from Transco than other-wise it would do, the fact is that the PR. rate is designed to and has the purpose-of restraining Lynchburg’s freedom of' action in obtaining its supply. This purposeful exercise of control by the Commission over the freedom of Lynchburgaggrieves it. See Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 422, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942); City of Pittsburgh v. Federal Power Comm’n, 99 U.S.App.D.C. 113, 237 F.2d 741 (1956). Moreover, as a practical matter the time for review is now, within the statutory period after the action sought to be reviewed is taken, and not after the rendition of a bill contested as not due because of the invalidity of a rate long since approved. Aggrievement need not await this, in light of the intended influence of the order upon the business operations and management decisions of Lynchburg.
II.
Coming to the merits the principal contention of Lynchburg is that the PR rate is an unreasonable restraint upon trade and is discriminatory in violation of the antitrust laws. While the Commission is not responsible for the enforcement of these laws, nevertheless, as the Commission recognized, “part of the content of 'public convenience and necessity’ as used in § 7 of the Natural Gas Act is found in the laws of the United States. City of Pittsburgh v. Federal Power Comm’n, 99 U.S.App.D.C. 113, 237 F.2d 741.” California v. Federal Power Comm’n, 369 U.S. 482, 484-485, 82 S.Ct. 901, 903, 8 L.Ed.2d 54 (1962). So, too, as to Sections 4 and 5 of the Act. United States v. Philadelphia National Bank, 374 U.S. 321, 353-354, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).
The rate has anti-competitive features, but private enterprise subject to the Act is not free to compete without some public restraint essential to the accomplishment of the purposes of the Act. See United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12, decided April 6, 1964. Invalidity is not necessarily found in a reasonable difference in rates charged the same customer by different sources of supply, or in rates charged different customers by the same source, assuming the reasonableness and justness of the rates insofar as price is concerned, not here challenged, and assuming, also, that the factors claimed to justify the difference have adequate support in the findings of the Commission and in the record. Under the Natural Gas Act the difference must not amount to an “undue preference or advantage * * * undue prejudice or disadvantage, or * * * unreasonable difference * * Section 4(b); or be “unjust, unreasonable, unduly discriminatory, or preferential.” Section 5(a). But these terms are to be given application in light of the duty of the Commission to control by certificates of public convenience and necessity, under Section 7(c), the construction and extension of facilities. While the major purpose of such control is protection of the consuming public from exploitation through unreasonable or unjust charges —F.P.C. v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 88 L.Ed. 333 (1944) — this is not necessarily accomplished by permitting a pipeline customer seeking to use a new and partial source of supply to be free of a rate needed to sustain the ability of that customer’s original supplier, to serve its customers at reasonable and just rates which impose no greater portion of its fixed costs upon its full requirement customers than their fair share, compared with the portion borne by the customer who resorts to the new source for part of its requirements.
It is not contended the PR rate schedule is illegal per se under the antitrust laws, and I think it is not. Nor is monopoly involved, as it was in Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 83 U.S.App.D.C. 297, 169 F.2d 881, cert. denied, 335 U.S. 854, 69 S.Ct. 81, 94 L.Ed. 402 (1948). Though competition is involved its restraint is through a rate designed to require each customer to bear its fair burden. The Commission states the matter as follows:
* * * If the competitors have lower commodity rates it is obvious that Columbia customers having an alternate source of supply will tend to give all of the high load factor business to the alternate source in order to take advantage of the low commodity rates but will still be able to take advantage of Columbia’s low demand rates, and at peak periods obtain, in effect, peaking service from Columbia at relatively low rates. It is not hard to conceive that the end result might be that the customers of Columbia would without access to alternate suppliers end up supporting peaking service for Columbia’s partial requirements customers at rates never intended for such service.
I think there is no such discrimination or preferential treatment inherent in the PR rate as calls for its invalidation regardless of the reasons assigned for it, if these find support in the record. To repeat, the difference is due to the fact, if it be a fact, that unless at a certain point a different rate in the form of a minimum commodity charge is paid by Lynchburg then Seaboard’s other customers will lose Lynchburg’s contribution to Seaboard’s fixed costs, a loss which would ultimately be reflected in the rates charged the other customers. I cannot say that the restraint at the point at which this occurs — that is, at which the PR rate becomes operative against Lynchburg — unduly interferes with its freedom in utilizing the Transco source of supply. In sum I think that the basis for the PR rate, if sustained by the record, precludes its invalidation under the antitrust laws — including Section 3 of the Clayton Act, as well as Section 2(a) of the Robinson-Patman Act — and also removes it from the prohibitions of Section 4(b) of the Natural Gas Act. I accordingly reach the question whether the basis for the PR rate is supported by the record.
III.
The Commission contends, as we have indicated, that the PR rate is necessary “to protect the many customers dependent upon the Columbia companies from being required to pay the higher rates which may result from the deterioration of some of Columbia’s markets.” This conclusion, while entitled to respect, see Federal Communications Comm’n v. RCA Communications, Inc., 346 U.S. 86, 96-97, 73 S.Ct. 998, 97 L.Ed. 1470 (1953), cannot be accepted without the support of subsidiary findings based on the record. We think findings so supported are lacking.
First, although the Commission states it was protecting the interests of Columbia customers without access to an alternate source of supply, which of Columbia customers are so situated is not shown. It appears that few lack such access. It is difficult to see how the Commission could have arrived at a meaningful balance between the interests of consumers with and without access to a second supply source. This deficiency is important; for the protection of the unlisted group of Columbia customers having no alternate source of supply in large part will be at the expense of the ultimate consumers served by those Columbia customers which could and probably would, were it not for the PR rate, purchase some of their gas from suppliers other than Columbia at lower rates; for to the extent that the PR rate denies those companies the opportunity to purchase gas at lower rates from other sources, it is denying them an opportunity to lower their rates to their ultimate consumers.
A related difficulty is the lack of evidence showing the extent of deterioration in Columbia’s markets that might be expected absent the PR rate. Even should there be a substantial decline in Seaboard’s sales to Lynchburg, or some other customer similarly situated, this loss might be more than offset by an increase in other sales. This possibility was pointed out by the hearing examiner when he stated: “At the present time Columbia’s estimates of increase in future demands off its system is more than 25 percent during the next five years and it is seeking substantial additional supplies of gas to meet the increasing' demands.” In the face of this the Commission could not simply assume that disapproval of the PR rate would result in such a substantial •deterioration of Columbia’s markets as to .necessitate an increase in Columbia’s genial rates and thus place an unfair burden .upon Columbia’s less favorably situated (Customers.
Columbia did make some attempt to .■supply proof by reference to the experience of a Columbia affiliate, Home Gas Gompany, and two of its customers, Central Hudson Gas & Electric Corp. and Orange & Rockland Utilities, Inc. Both of these companies formerly received their full requirements from Home, but in 1955 and 1957 with Commission approval began to purchase part of their supply from another pipeline. The Commission points out that while it attempted to protect Columbia and its customers by placing a volumetric limit on the amount of gas the two companies could purchase from the second source, Home during the summer months lost its entire ■sales to Central and “practically all of its .sales in the eastern distribution area of Rockland.”
The force of the above example was •considerably weakened by the hearing examiner’s finding that while “the total .sales by Home to Rockland disclose a .slight decline in the year 1956 [the year after authorization of purchases from the .second source] * * *, in 1957 the sales were higher than in previous years .and have increased steadily thereafter. The load factor of purchases from Home has remained for all practical purposes for the years shown at about the same level.” A more important deficiency in the Home-Central-Rockland example was .also pointed out by the hearing examiner when he said: “While Columbia points out the pattern of purchases by these two companies * * * it did not show as a result of purchases from another pipeline company that any financial injury has occurred either to itself or other customers, or that any difficulty has been experienced in disposing of the volumes of gas not taken by Central and Rockland.” Of course these findings of the hearing examiner do not bind the Commission, but the Commission has not made other findings.
True it is that proof of certain facts might be unavailable, or such proof as is available might be highly speculative or lacking in some other respect, and in such cases no doubt the courts should accord Commission expertise a broader range than ordinarily. See Federal Communications Comm’n v. RCA Communications, Inc., supra; Federal Power Comm’n v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 28-29, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961). However, there is no present indication that this is such a case. Accordingly we think the absence of further evidence in support of findings in the respects referred to renders the record insufficient to justify the restraint imposed by the PR schedule. Where restraint is due to a compulsory tax imposed by a seller upon a buyer that fails to purchase a stipulated percentage of its needs from the seller the validity of the restraint must be supported by more than judicial speculation that it is justified.
Moreover, even assuming that some form of PR rate is warranted the record does not demonstrate that the particular schedule approved meets public interest requirements under the standard stated by Mr. Justice Brennan in White Motor Co. v. United States, 372 U.S. 253, 270, 83 S.Ct. 696, 705, 9 L.Ed.2d 738 (1963) (concurring opinion):
“Another issue which seems * * * particularly to require a full inquiry into the pros and cons of these territorial restrictions is whether, assuming that some justification for these • limitations can be shown, their op■eration is reasonably related to the needs which brought -them into being. To put the question another way, the problem is not simply whether some justification can be found, but whether the restraint so .justified is more restrictive than necessary * *
Finally Lynchburg particularly ■challenges one important feature of the ■schedule approved by the Commission. It is provided that the minimum bill un■der the PR rate shall be redetermined mpon a ten per cent increase in the customer’s industrial sales. The record does not make clear precisely what is meant by “redetermined” or what effect a re-■determination can be expected to have; :so it is impossible at this time to pass upon the reasonableness of such a provision. The inference from the Commission’s opinion is that the minimum bill is to be increased upon a ten per cent increase in the customer’s industrial sales. Should future events bear this inference out, thereby causing injury to Lynch-burg, the validity of the redetermination provision can then be tested.
. “Load factor” is the ratio between a buyer’s average daily purchases and its contract demand, the maximum volume it has a right to take under its contract.
. There is also a “facility charge” for services rendered by means of a lateral supply line. This charge is applicable to Lynchburg.
. Aside from Lynchburg’s contractual obligations to Seaboard it would still seem to be in Lynchburg’s interest for it to apportion its purchases between Seaboard and Transco. Transeo’s rates presently applicable to Lynchburg are based on Transco’s “G” schedule which applies only to customers with contract demands of 5,000 Mcf. or less. Transco’s regular “CD-2” schedule at the time of the hearing provided for a minimum demand charge of $3.70 per Mef. and a commodity charge of 250 per Mcf. If • Lynchburg were so to increase its purchases form Transco as to exceed the “G” schedule limit it would then have to pay the higher demand charge provided for in Transco’s “CD-2” schedule. And under this schedule it would seem that Lynchburg would benefit by apportioning its purchases between Seaboard and Transco so as to purchase from the latter only a high load factor.
. A customer’s base period is the two year period prior to its becoming- a partial requirements customer.
. 38 Stat. 731 (3914), 15 U.S.C. § 14 (1958).
. 49 Stat. 1526 (1936), as amended, 15 U.S.O. § 13(a) (1958).
. In a further attempt to show the necessity of the PR schedule Columbia introduced a hypothetical study predicting the effect upon the Columbia companies of a substantial loss in base load sales. However, the trial examiner dismissed the probative value of this study, saying that it was speculative, based on unproven assumptions and contained mere assertions of possibility.
. It should be noted that minimum commodity bills for partial requirements customers are fairly common throughout the natural gas industry. However, the fact that other PR schedules might be valid does not mean that the schedule now under review is similarly valid.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
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songer_adminrev
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M
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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".
EXCHANGE BUFFET CORPORATION, Petitioner, v. NEW YORK STOCK EXCHANGE and Securities and Exchange Commission, Respondents.
No. 380, Docket 24374.
United States Court of Appeals Second Circuit.
Submitted April 12, 1957.
Decided May 15, 1957.
Milton S. Harrison, New York City, for petitioner.
Milbank, Tweed, Hope & Hadley, New York City (A. Donald MacKinnon and Edward J. Reilly, Jr., New York City, of counsel), for respondent New York Stock Exchange.
Thomas G. Meeker, Gen. Counsel, David Ferber, Asst. Gen. Counsel, and Joseph B. Gildenhorn, Atty., Securities and Exchange Commission, Washington, D. C., for respondent Securities and Exchange Commission.
Before MEDINA and WATERMAN, Circuit Judges, and LEIBELL, District Judge.
MEDINA, Circuit Judge.
Petitioner, the Exchange Buffet Cor•poration, seeks to have us set aside an order of the SEC, granting an application by the New York Stock Exchange, pursuant to the provisions of Section 12 (d) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 781(d), and Rule X-12D2-1 (17 C.F.R. 240, 12d2-1), to strike petitioner's capital stock from listing and registration on the New York Stock Exchange. The SEG found that the rules of the New York Stock Exchange relating to delisting had been complied with and that the application should be granted without the imposition of any terms or conditions.
Petitioner is a New York corporation organized in 1913, engaged in the business of operating restaurants and cigar stands. On September 30,' 1955, the capital stock consisted of 246,889 shares. As of April 30, 1955, the net tangible assets were $266,516, and on November 14, 1955, the approximate market value of the capital stock was $493,778. The company’s earnings deficits in the fiscal years ending April 30, 1953, 1954 and 1955 ranged from $37,000 to $311,758.
When petitioner’s capital stock was admitted to trading on the New York Stock Exchange in 1922, Section 4 of Article XXXIII of the Constitution of the Exchange in effect provided that the Governing Committee might at any time suspend dealings and summarily remove the securities of any listed corporation from the list.
The Securities Exchange Act of 1934 established in the public interest and for the protection of investors, and for other cognate reasons, a pattern of control by the SEC that required the registration of exchanges, the filing' of copies of the constitution, by-laws and rules of such exchanges and the filing with the SEC “forthwith” of any amendments. The SEC was required to find, as a condition to permitting an exchange to be registered, that the rules are “just and adequate to insure fair dealing and to protect investors,” but Section 6(c), 15 U.S.C.A. § 78f specifies that nothing in the Act “shall be construed to prevent any exchange from adopting and enforcing any rule not inconsistent with the Act and the SEC’s rules thereunder or with applicable state laws.”
The control of the SEC over delisting is implemented by Sections 12(d) and 19(b) of the Act, 15 U.S.C.A. § 78s(b); and the decision of this case depends upon the interpretation to be given to these two sections, as supplemented by Rule X-12D2-1.
Section 12 sets forth the registration requirements for securities. The relevant portion of subdivision (d), which concerns us here, is:
“A security registered with a national securities exchange may be withdrawn or stricken from listing and registration in accordance with the rules of the exchange and, upon such terms as the Commission may deem necessary to impose for the protection of investors, upon application by the issuer or the exchange to the Commission * *
Rule X-12D2-1(3) provides that suspension of trading shall not terminate the registration of any security; and the Act contemplates that the matter be brought before the SEC upon application of the issuer or the exchange. In connection with the termination of registration, the specific provision of the Act is that this shall take place only “upon such terms as the Commission may deem necessary to impose for the protection of investors.”
The following portion of Section 19(b) of the Act, which is applicable to listing and delisting as well as numerous other matters, governs the control of the SEC over the rules of an exchange:
“The Commission is further authorized, if after making appropriate request in writing to a national securities exchange that such exchange effect on its own behalf specified changes in its rules and practices, and after appropriate notice and opportunity for hearing, the Commission determines that such exchange has not made the changes so requested, and that such changes are necessary or appropriate for the protection of investors or to insure fair dealing in securities traded in upon such exchange or to insure fair administration of such exchange, by rules or regulations or by order to alter or supplement the rules of such exchange * * *.”
On July 21, 1955, the Board of Governors of the New York Stock Exchange amended its rule, which spelled out specific standards as guides for continued listing of securities, so as to provide that delisting would be considered where:
* * * the size of a company whose common stock is listed has been reduced, as a result of liquidation or otherwise, to below $2,000,-000 in net tangible assets or aggregate market value of the common stock, and the average net earnings after taxes for the last three years is below $200,000.
Notice of this change in policy was sent to all listed companies in the form of a supplement to the Exchange’s Company Manual. As petitioner failed to. meet the revised standards, a public hearing of which petitioner had timely notice, was held on November 15, 1955,. to consider whether the stock of petitioner be delisted, and on December 15,, 1955, a resolution was adopted by the Board of Governors for the delisting of the stock which directed that an application to delist be filed with the SEC. Trading in the stock was suspended on December 27, 1955, the application was. filed with the SEC on January 17, 1956, the matter took its regular course before' the SEC, which on September 4, 1956, issued its Findings, Opinion and Order, granting the Exchange’s application to. delist the stock without the imposition of any terms or conditions.
We hold these successive steps, and proceedings to be a precise and in all respects proper compliance with the expressed intent and purpose of Section 12(d). We hold further that Rule X-12D2-1, promulgated by the SEC in its General Rules and Regulations under the Securities Exchange Act of 1934 and published as 17 C.F.R. 240, 12d2-1, is a proper and lawful exercise of the powers granted by the Congress to the SEC, and that, where the SEC has permitted an amended rule to become effective without requesting changes or instituting a proceeding under Section 19(b), it is not authorized to deny an application to de--list a security under Section 12(d) where there has been compliance with the amended rule of the Exchange.
There is nothing whatever in petitioner’s contentions that there is essential unfairness in the application of what petitioner insists is “a test having retroactive application,” a species of ex post facto ruling, and that the SEC has abdicated its powers in ruling that in its disposition of the Section 12(d) proceeding it could do no more than impose “such terms as the Commission may deem necessary to impose for the protection of investors.”
There is no basis for the claim of unfairness. All companies whose stock is listed are informed that the New York Stock Exchange Rules are subject to constant revision in the light of the changing economy and that their stock may be delisted if they do not meet .standards established or revised subsequent to the original listing of the stock. 'The reference to “the average net earnings after taxes for the last three years,” as well as to the size of the company .and the value of its net tangible assets •or the “aggregate value of the common .stock” is in all respects reasonable. One •of the main purposes of the Act was the protection of investors and prospective investors. Future purchasers of securities are those peculiarly in need of the :sort of protection which is afforded by •delisting. If new standards could be made effective only after a lapse of years ■or even months, such protection might turn out to be illusory and of the too-late variety. As the Commission pointed ■out in its opinion in the case at bar, the possible adverse effects upon current se•curity holders “inherent in any delisting •* * * must be weighed against the protection afforded future purchasers by removing from exchange trading securities found unsuitable for that market.”
The so-called abdication of power by the SEC comes to no more than this: when the amended rule was promulgated the SEC allowed it to become effective and decided not to challenge its propriety or reasonableness in a Section 19(b) proceeding. This is the exercise rather than the abdication of power. Moreover, after the commencement of the Section 12(d) proceeding, it was still not too late for the SEC to hold the de-listing proceeding in abeyance until it had taken such action as it thought proper pursuant to the provisions of Section 19(b).
Petitioner has, we think, entirely misconceived the mechanics of the Act in this matter of delisting. “Although a wide measure of initiative and responsibility is left with the exchanges, reserved control is in the Commission if the exchanges do not meet their responsibility.” H.R.Rep. No. 1383, 73d Cong., 2d Sess. (1934), p. 15. Accordingly, it is within the power of the exchange to alter its delisting rules at any time and to suspend trading in any particular stock. The SEC then may exercise its control in either of the two ways prescribed in Sections 12(d) and 19(b). If in the exercise of its supervisory powers the SEC decides to let the delisting rule of the exchange remain unchallenged and acts only on application of the issuer or the exchange in a Section 12 (d) proceeding, the legislative pattern contemplates that the power of the SEC in that proceeding be limited to the imposition of “such terms as the Commission may deem necessary to impose for the protection of investors.” That the SEC found it unnecessary to impose any terms in the Section 12(d) proceeding in this case was a proper exercise of its functions and we shall not disturb the finding.
Petition denied.
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:
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songer_usc2sect
|
307
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
PASADENA BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation and Voice in Pasadena, Inc., Intervenors. GOODSON-TODMAN BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation and Voice in Pasadena, Inc., Intervenors. Charles W. JOBBINS, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation and Voice in Pasadena, Inc., Intervenors. VOICE IN PASADENA, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation, Intervenor. PACIFIC FINE MUSIC, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation and Voice in Pasadena, Inc., Intervenors. ORANGE RADIO, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation, Intervenor.
Nos. 74-1002, 74-1012, 74-1019, 74-1033, 74-1034 and 74-1454.
United States Court of Appeals, District of Columbia Circuit.
Argued June 5, 1975.
Decided May 12, 1977.
Reed Miller, Washington, D. C., for appellant in No. 74-1012.
James A. Gammon, Washington, D. C., with whom John M. Duty, Washington, D. C., was on the brief, for appellant in No. 74-1019.
Gerald S. Rourke, Washington, D. C., with whom Edward P. Morgan, Washington, D. C., was on the brief, for appellant in No. 74-1454.
Gregory M. Christopher, Counsel, F. C. C., Washington, D. C., with whom Ashton R. Hardy, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, F. C. C., Washington, D. C., were on the brief, for appel-lee. John W. Pettit, Gen. Counsel, Washington, D. C., at the time the record was filed, Philip V. Permut and Joseph Volpe, III, Counsel, F. C. C., Washington, D. C., also entered appearances for appellee.
Thomas H. Wall, L. Adrian Roberts and John H. Marple, Washington, D. C., were on the brief for appellant in No. 74-1002.
Frank U. Fletcher and Edward F. Kene-han, Washington, D. C., were on the brief for appellant in No. 74-1034.
Joseph M. Kittner, Washington, D. C., with whom James A. McKenna, Jr., Thomas N. Frohock and Steven A. Lerman, Washington, D. C., were on the brief, for interve-nor Western Broadcasting Corporation.
Joseph F. Hennessey, Lee G. Lovett and Robert M. Booth, Jr., Washington, D. C., entered appearances for appellant in No. 74-1033 and for intervenor Voice in Pasadena.
Before ROBINSON and MacKINNON, Circuit Judges, and ROBERT H. MERHIGE, Jr., United States District Judge for the Eastern District of Virginia.
Opinion for the Court filed by SPOTTS-WOOD W. ROBINSON, III, Circuit Judge.
Sitting by designation pursuant to 28 U.S.C. § 292(d) (1970).
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
In March, 1962, the Federal Communications Commission disqualified its licensee broadcasting from Pasadena, California, on the 1110 kHz (AM) frequency. Interim authorization was issued lest the channel fall silent, and the Commission invited applications from would-be successors to the frequency. The ensuing proceeding generated no fewer than eight opinions during its twelve-year administrative lifespan. The hearing examiner, the Review Board and the Commission each favored a different applicant, and for different reasons. Although each struggled valiantly with the bevy of complex issues presented, the net result was error, and so we reverse.
I
Of those responding to the Commission’s call for applications, seven are parties to these appeals. Four of these proposed service from facilities in Pasadena, and one each from Whittier, Fullerton and the Costa Mesa-Newport area. Pasadena borders on Los Angeles; the other communities lie roughly on a line from Pasadena south-southeasterly to Newport, which is about twenty miles from the Los Angeles city limits and about forty miles from Pasadena. The Newport applicant proposed one-kilowatt daytime service, only while the rest — the “high-power” applicants — contemplated operation on the same basis as the prior licensee: 50 kilowatts daytime and 10 kilowatts nighttime, unlimited service.
No useful purpose would be served by blueprinting every aspect of the Commission’s architectonics. The keystone of the decisional edifice it constructed is the collective view of Section 307(b) of the Communications Act, which provides:
(b) In considering applications for licenses, and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each-of the same.
The Commission’s Review Board .disqualified the Newport applicant because his proposal would have provided daytime service to only about three million people, wherer, as all of the high-power proposals would have reached over five million people day and night. Thus the Newport submission was deemed to run afoul of the “efficiency” mandate of the section, which at each level of the administrative process was read as a direction to allot the frequency “so as to provide service to the greatest population and area possible” after such matters as interference had been taken' into account. That Newport had at that time no AM transmission facility — a factor heavily to be weighed in Section 307(b) decisions — gave it no advantage in the Review Board’s eyes, for the same was true of the other commu-, nities represented in the proceeding. Thus considerations of fairness and equity in the allocation of the spectrum were not brought into play, and the greater efficiency of the high-power proposals led the Review Board to prefer all of them to the Newport aspirant.
Had matters ended there, our task would have differed significantly. As it was, the Commission sustained the Review Board’s denial as to Newport without further ado. but went on to request argument solely from the high-power candidates addressed to the theory on which the Review Board had chosen among them. In the Commission’s hands, all the high-power plans became designs for transmission service for the entire Los Angeles-Long Beach metropolitan area rather than for any one community therein. Once that transformation eliminated the necessity of choosing among Fullerton, Pasadena and Whittier on the basis of need for additional service, the Commission, like the Review Board, found dispositive the question of greatest efficiency of the applicants’ proposals and, again like the Review Board, did not resort to standard comparative issues in reaching its
decision. The upshot is that the Commission awarded the 1110 kHz frequency to Los Angeles, which it found to be served by over a score of AM stations, twelve of which specify Los Angeles as the city of license, over Newport, to which no AM transmission service is specifically dedicated.
II
In support of this disposition, the Commission considered only the larger population to be served by the “Los Angeles” applications than by that for Newport. A finding on that score is, however, merely tangential to the congressional imperative to assure “fair, efficient, and equitable” distribution of the broadcast band “among the several States and communities.” Congress was, of course, concerned that radio service extend to as large an audience as possible, but that is not to say that the license is to be awarded to the applicant who would encompass the most listeners within the range of his signal. If that were so, all frequencies likely would be assigned - sooner or later to’ powerful stations in major population centers — precisely the result Congress meant to forestall by means of Séction 307(b) as eveh'cursory examination of its ancestry indicates.
Concentration of radio service in the big city was a problem at the time Section 307(b) was first enacted as part of the Radio Act of 1927, and its purpose was to ehjoin “an equitable distribution of stations over the entire country.” Many feared that the standard was tóo prótéán, however, and that apprehension was fanned by the omission from the bill emerging from conference-of the requirement in the Senate and House bills of “due consideration of the right of each state to have allocated to it or to some [entity] within it, the use of a wave length. . . ” Vigorous efforts to reinsert that language failed, but the next year brought an amendment specifying-that the Commission allocate broadcasting service fdrmulaically according to population to each state and among five “zones” into which the Nation was divided.
Unfortunately, the mechanical formula thereby imposed resulted in “the concentration of the use of frequencies in centers of populatión, and the restriction of facilities in sparsely populated states, even though interference consideration [s/c] would permit the operation of one or more additional stations.” At the Commission’s behest, therefore, Section 307(b) was substantially restored to its original form — in which it remains. The purpose of this reversion was twofold: to loose the Commission from the fetters imposed by the quota system, and to allow “sparsely populated” areas, especially in the West and Middle West, to “securfe] the facilities we ought to have to meet' the demands of that section of the country.”
Section 30.7(b)’s emphasis on wide dispersion of radio transmission service gave rise long ago to the rule that “when mutually exclusive applicants seek authority to serve different communities, the Commission first determines which community has the greater need for additional services and then determine[s] which applicant can best serve that community’s need.” Local transmission service bestows such important benefits that we have consistently interpreted Section 307(b) virtually to ensure an applicant for first local service preference over one who proposes merely to complement preexisting local operations. In the wake of this body of precedent, the Commission makes no showing that it did compare Los Angeles’ need for still another AM station with Newport’s need for its first; nor does it satisfactorily distinguish its action here from that on previous occasions in finding fairness and equity to substantially favor first local service. These omissions render its order infirm.
III
One other matter deserves mention. The Commission found the engineering and siting specifications of every high-power “Los Angeles area” submission “deficient in some respect,” chiefly because each proposed operation would produce objectionable interference with the signals of one or more other radio stations. The absence of a technically-qualified applicant motivated the Commission to an exhaustive consideration of which plan permitted the “most efficient use of the 1110 kHz frequency in the southern California area” — shorthand for saying that the most auditors should, in the aggregate, be served. At the same time, the Commission totally disregarded the standard comparative issues that purport to test for the applicant that most closely conforms with the desired industry structure and the proposal that would deliver the best practicable service. Surprised by this apparent departure from long-settled precedent, we requested that the Commission further elucidate its elision of the comparative issues;
The Commission’s response taxes us with an “apparent misunderstanding” that its focus on technical questions is traceable to Section 307(b)’s “efficiency” criterion. It at once concedes that efficiency in this sense “may be considered as a comparative issue,” and postulates that “where ‘efficiency’ considerations under 307(b) are dis-positive, comparative issues need not be reached.” To hold otherwise, the Commission continues, “would be to suggest that even, in the case of flagrantly inefficient proposals and marked violations of our technical ’ standards, a full comparative hearing would be mandated . . . .” Finally, it suggests that whatever may obtain in the Usual case, the disparity here between the victor's technical presentation and those of the vanquished is so vast that we should proceed as if there were only one qualified candidate.
Underlying the agency’s apologia is the premise that Section 307(b), with its requirement of “fair, efficient, and equitable” spectrum allocation, is a talisman whereby the rigors of a comparative hearing may be avoided if only grounds for decision can be found that smack of “efficiency” — or, presumably,‘“fairness” or “equity.” We reject such a notion. To be sure, courts have countenanced rules dispensing with full-dress hearings on proposals that are, in the expert eyes of the Commission, dramatically wasteful or inequitable. One of many is the Section 307(b) policy, sustained in FCC v. Allentown Broadcasting Company, of allocating transmission service among communities without reference to the relative qualities of their respective champions,, lest “the needs of the community” be “subordinated to the ability of an applicant for another locality.” But we do not think that an aspirant within the scope of the rules established by the Commission may, ad hoc, be refused a comparative hearing merely because a rival appears who is somewhat more “efficient.” After all, his other attributes might show that the satisfaction accorded to those who will listen counterbalances, as far as the public interest is concerned, the fact that fewer could hear.
In the case at bar, of course, there is no surfeit of qualified candidates for the 1110 kHz frequency. Nor do we face a situation like those in which unwaived violations of the Commission’s rules narrow the field to but one qualified contestant. All were in violation, and so presumptively their applications were not efficient nor otherwise in the public interest; the Commission felt called upon to decide to whom, if anyone, a waiver was to be granted. We find ourselves at a loss to understand why the Commission should have disdained guidance from the other applicant characteristics normally explored in comparative proceedings. Should the Commission be forced to a similar decision on remand, it will be well advised to seek enlightenment from that quarter.
Reversed and remanded.
. Eleven Ten Broadcasting Co., 32 F.C.C. 706, reconsideration denied, 33 F.C.C. 92, aff’d sub nom. Immaculate Conception Church v. FCC, 116 U.S.App.D.C. 73, 320 F.2d 795, cert, denied, 375 U.S. 904, 84 S.Ct. 196, 11 L.Ed.2d 145 (1963) .
. Oak Knoll Broadcasting Corp., 45 F.C.C. 1571 (1964) .
. Charles W. Jobbins, 29 F.C.C.2d 609 (examiner’s decision 1969) hereinafter cited “Initial Decision Charles W. Jobbins, 29 F.C.C.2d 533 (Rev.Bd.1971) hereinafter cited “Review Board Decision Charles W. Jobbins, 29 F.C.C.2d 849 (Rev.Bd.1971); Charles W. Jobbins, 33 F.C. C.2d 821 (1972); Charles W. Jobbins, 39 F.C. C.2d 595 (1973); Goodson-Todman Broadcasting, Inc., 45 F.C.C.2d 573 (1973) hereinafter cited “Final Decision ”, reconsideration denied, 46 F,C.C.2d 533 and 49 F.C.C.2d 242 (1974).
. Appellants Pasadena Broadcasting Company; Voice in Pasadena, Inc.; Goodson-Todman Broadcasting, Inc.; and intervenor Western Broadcasting Company—the Commission’s choice.
. Appellant Pacific Fine Music, Inc.
. Appellant Orange Radio, Inc.
. Appellant Charles W. Jobbins.
. Review Board Decision, supra note 3, 29 F.C. C.2d at 534.
. 47 U.S.C. § 307(b) (1970).
. Initial Decision, supra note 3, 29 F.C.C.2d at 663.
. Compare id. at 665-675 with Final Decision, supra note 3, 45 F.C.C.2d at 593 n.5.
. The Review Board, which the Commission sustained, noted two other defects in the Newport application but, in view of the treatment accorded to high-power applicants who shared these deficiencies, we cannot presume that the Commission regarded them as dispositive. One indisputably legitimate concern of the Commission was protecting the international allocation of the frequency to the United States by virtue of the penetration of the Mexican border by the prior licensee’s signal. See Review Board Decision, supra note 3, 29 F.C.C.2d at 540-541. The Newport proposal, specifying daytime service only, could only partially conserve this advantage to the United States. Id. at 543. Yet another applicant whose signal penetrated .the border neither by night nor by day was assessed only a “slight demerit” therefor. Final Decision, supra note 3, 45 F.C.C.2d at 594.
A second defect in the Newport proposal was uncovered when the Hearing Examiner found that it unacceptably overlapped the contours of a preexisting San Diego station. Initial Decision, supra note 3, 29 F.C.C.2d at 760. The Review Board, taking official notice of an intervening change in the San Diego station’s operations, discounted the importance of the overlap, Review Board Decision, supra note 3, 29 F.C.C.2d at 543 n.16, which led it to assume that the Newport application comported with-engineering standards. Id. Though, with respect to other candidates, the Commission’s final decision rejected this apparently unobjectionable reference to matters of public record, Final Decision, supra note 3, 45 F.C.C.2d at 591, it attributed but “minor significance” to the other, albeit less egregious, instances of the now-hypothetical overlap. Id. at 594. We are loathe, therefore, to speculate on what the Commission’s posture would be once its § 307(b) error with respect to Newport was brought to light. Additionally, since these proceedings must in any event be remanded, to the Commission for a fresh look, we find it unnecessary to pass upon its refusal to take official notice of this and other matters. No rationale now appears for deciding these already, hoary cases on obviously outmoded factual findings.
. See, e. g., Final Decision, supra note 3, 45 F.C.C.2d at 593 n.36, quoting Grand Haven Broadcasting Co., 14 F.C.C. 1351, 1366 (1950); Review Board Decision, supra,note 3, 29 F.C. C.2d at 540 et passim; Initial Decision, supra note 3, 29 F.C.C.2d at 764-766.
. E. g., Final Decision, supra note 3, 45 F.C. C.2d at 593. Cf. Review Board Decision, supra note 3, 29 F.C.C.2d at 542-543.
. See note 38 infra and accompanying text.
. Review Board Decision, supra note 3, 29 F.C.C.2d at 544. Indeed, in reaching its decision in favor of the Fullerton applicant, the Review Board relied upon that city’s lack of a nighttime aural transmission facility. Id. at 549.
. Charles W. Jobbins, supra note 3, 39 F.C. C.2d at 598.
. Id.
. See Final Decision, supra note 3, 45 F.C. C.2d at 579-580:
[W]e conclude that no Section 307(b) choice may be made under the unique circumstances of this case among the communities of Pasadena, Fullerton, and Whittier. . . .
We agree with the [administrative law judge’s] . . . characterization of the facility under consideration as a “metropolitan area” service rather than one for a specified community. . . . [T]he mere fact that a studio may be located in one community rather than another is not entitled to disposi-tive consideration.
(footnote omitted).
We are asked to reverse this determination as contrary to the Commission’s Policy Statement on Section 307(b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C.2d 190 (1965). In view of our disposition of these appeals, we do not pass on the propriety of treating these communities as a homogeneous part of Los Angeles, nor on the Commission’s curious distinction between that and the situations contemplated by the Policy Statement. Final Decision, supra note 3, 45 F.C.C.2d at 578-580.
. Id., 45 F.C.C.2d at 593 & n.36.
. See Initial Decision, supra note 3, 29 F.C. C.2d at 732-733.
. See text accompanying note 16 supra.
. See, e. g., Review Board Decision, supra note 3, 29 F.C.C.2d at 541-546. But. cf. note 12 supra.
. See text supra at note 9.
. That may in fact be seen as the Commission’s raison d’etre. See 47 U.S.C. § 151 (1970).
. See Television Corp. of Michigan, Inc. v. FCC, 111 U.S.App.D.C. 101, 103, 294 F.2d 730, 732 (1961) (disapproving the Commission’s “premise that more service to more people— even to a group already well served — is prima facie desirable”); Easton Publishing Co. v. FCC, 85 U.S.App.D.C. 33, 38, 175 F.2d 344, 349 (1949) (“difference in size does not necessarily spell a difference in need”). Cf. Northeast Broadcasting, Inc. v. FCC, 130 U.S.App.D.C. 278, 289, 400 F.2d 749, 760 (1968) (concurring opinion).
. Pub.L. No. 69-632, ch. 169, § 9, 44 Stat. 1166.
. 67 Cong.Rec. 5479 (1926). See 67 Cong.Rec. 5564 (1926) (remarks of Representative Davis).
. 67 Cong.Rec. 12355 (1926) (remarks of Senator Cummins).
. 68 Cong.Rec. 2557 (1927).
. See 68 Cong.Rec. 2568-2575, 3031-3033, 3120, 3123, 3258-3259 (1927).
. Act of Mar. 28, 1928, Pub.L. No. 70-195, 45 Stat. 373. See, e. g., General Elec. Co. v. Federal Radio Comm’n, 58 App.D.C. 386, 387-388, 31 F.2d 630, 632-633 (1929), cert, dismissed, 281 U.S. 464, 470, 50 S.Ct. 389, 391, 74 L.Ed. 969, 972 (1930). Cf. Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 278-281, 53 S.Ct. 627, 633-634, 77 L.Ed. 1166, 1174-1176 (1933); WHB Broadcasting Co. v. Federal Radio Comm’n, 61 App.D.C. 14, 15, 56 F.2d 311, 312 (1932). See Note, 21 Va.L.Rev. 318, 322 (1935).
. Letter on S.2243 from Chairman of FCC, 80 Cong.Rec. 6032 (1936); H.R.Rep. No. 2589, 74th Cong., 2d Sess. 3 (1936); S.Rep. No. 1588, 74th Cong., 2d Sess. 3 (1936).
. Act of June 5, 1936, ch. 511, Pub.L. No. 74-652, 49 Stat. 1475, codified as 47 U.S.C. . § 307(b) (1970).
. 80 Cong.Rec. 6032 (1936). See H.R.Rep. No. 2589, supra note 33, at 3; S.Rep. No. 1588, supra note 33, at 3.
. FCC v. Allentown Broadcasting Co., 349 U.S. 358, 361, 75 S.Ct. 855, 858, 99 L.Ed. 1147, - 1153 (1955).
. Jackson Broadcasting & Television Corp. v. FCC, 108 U.S.App.D.C. 128, 129 n.3, 280 F.2d 676, 677 n.3 (1960). Cf. Jupiter Assoc., Inc. v. FCC, 136 U.S.App.D.C. 266, 272, 420 F.2d 108, 114 (1969); Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 239, 230 F.2d 204, 207, cert, denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956).
. See, e. g., Fort Harrison Telecasting Corp. v. FCC, 116 U.S.App.D.C. 347, 350, 324 F.2d 379, 382 (1963), cert, denied, 376 U.S. 915, 84 S.Ct. 665, 11 L.Ed.2d 611 (1964); The Price Broadcasters, Inc. v. FCC, 295 F.2d 166, 168-169, 111 U.S.App.D.C. 179, 181-182 (1961); Interstate Broadcasting Co. v. FCC, 105 U.S.App.D.C. 224, 228-229, 265 F.2d 598, 602-603 (1959); Easton Publishing Co. v. FCC, supra note 26, 85 U.S.App.D.C. at 35, 175 F.2d at 346. Cf. Fidelity Television, Inc. v. FCC, 169 U.S.App. D.C. 225, 235, 515 F.2d 684, 694, cert, denied, 423 U.S. 926, 96 S.Ct. 271, 46 L.Ed.2d 253 (1975) ; Northeast Broadcasting, Inc. v. FCC, supra note 26, 130 U.S.App.D.C. at 284, 400 F.2d at 755. See generally, Anthony, Towards Simplicity and Rationality in Comparative Broadcast Licensing Proceedings, 24 Stan.L. Rev. 1, 85-87 (1970); Comment, Comparing the Incomparable: Towards a Structural Model for FCC Comparative Broadcast License Renewal Hearings, 43 U.Chi.L.Rev. 573, 600-601 (1976).
. See authorities cited supra at note 38. The Commission asserts that preexisting broadcast stations can be maintained even though their continuance does not satisfy the strictures of § 307(b). See, e. g., Final Decision, supra note 3, 45 F.C.C.2d at 577-578; Review Board Decision, supra note 3, 29 F.C.C.2d at 538-539. This contention is, we think, belied by the face of the statute, which applies not only to changes in the structure of spectrum allocation, such as grants of new licenses or modifications, but to license renewals as well. Cf. e. g., Fidelity Television, Inc. v. FCC, supra note 38, 169 U.S.App.D.C. at 235, 515 F.2d at 694. Our inference is buttressed by the section’s adjuration that the Commission consider the propriety of allocation “when and insofar as there is demand” for service. 47 U.S.C. § 307(b) (1970). Satisfaction of these statutory commands is not, nor ought it to be, a one-time thing, for the balance of demand for service will shift among communities over time. Admittedly these cases are distinguishable from those in which we have held that “where cities are competing for channel allocation, a temporary allocation to one city rather than another should not operate to create vested rights.” Fort Harrison Telecasting Corp. v. FCC, supra note 38, 116 U.S.App.D.C. at 354, 324 F.2d at 386. See Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 30-31, 365 F.2d 962, 963-964 (1966). Cf. Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 101, 274 F.2d 753, 759 (1960). It is clear, moreover, that the Commission should not be required to compromise its considered judgment as to what distribution is proper every time someone is dissatisfied with existing allocations. Cf. Logansport Broadcasting Corp. v. United States, 93 U.S. App.D.C. 342, 345-346, 210 F.2d 24, 27-28 (1954). On the other hand, the Commission is required to reasonably respond to changing conditions and here, at least, where the Commission had designated the § 307(b) issue, see Initial Decision, supra note 3, 29 F.C.C.2d at 612-614, it may not cleave to the status quo without a legally acceptable justification.
. Final Decision, supra note 3, 45 F.C.C.2d at 581.
. See, e. g., id. at 582-593.
. Id. at 595.
. See id. at 593 & nn. 35-36.
. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-398 (1965). See, e. g., Star Television, Inc. v. FCC, 135 U.S.App. D.C. 71, 74, 416 F.2d 1086, 1089, cert, denied, 396 U.S. 888, 90 S.Ct. 171, 24 L.Ed.2d 163 (1969); Anthony, supra note 38, 24 Stan.L.Rev. at 27-33. Cf. Fidelity Television, Inc. v. FCC, supra note 38, 169 U.S.App.D.C. at 240, 515 F.2d at 710 (Bazelon, C. J., dissenting from denial of rehearing en banc); Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 43-45, 447 F.2d 1201, 1212-1214 (1971), clarified, 149 U.S.App.D.C. 419, 463 F.2d 822 (1972).
. See, e. g., Policy Statement on Comparative Broadcast Hearings, supra note 44, 1 F.C.C.2d at 398 & n.12; Ashbacker Radio Corp. v. FCC, 326 U.S; 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945); Citizens Communications Center v. FCC, supra note 44; Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert, denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971); Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 175 F.2d 351 (1949).
. We remanded for clarification on two issues:
(1)
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47? Answer with a number.
Answer:
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songer_district
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C
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Giles E. BULLOCK and Katherine D. Bullock, Plaintiffs-Appellants, v. Dana LATHAM, Commissioner of Internal Revenue, and E. C. Coyle, Jr., District Director of Internal Revenue, Defendant-Appellee.
No. 284, Docket 26703.
United States Court of Appeals Second Circuit.
Argued May 1, 1962.
Decided July 20, 1962.
Milo Thomas, Rochester, N. Y. (Burton S. Schreiber, Rochester, N. Y., on the brief), for plaintiff-appellants.
Morton K. Rothschild, Attorney, Department of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and David O. Walter, Attorneys, Department of Justice, Washington, D. C., John T. Curtin, U. S. Atty., for the Western District of New York, Buffalo, N. Y., on the brief), for defendant-appellee.
Before WATERMAN, MOORE and FRIENDLY, Circuit Judges.
LEONARD P. MOORE, Circuit Judge.
Plaintiffs appeal from an order dissolving a preliminary injunction and dismissing the amended complaint wherein plaintiffs seek a declaration that title to certain machinery is in the plaintiff Giles E. Bullock. E. C. Coyle, Jr,, District Director of Internal Revenue, was the only defendant served. He moved by motion for summary judgment to dismiss the complaint upon the grounds that the court lacked jurisdiction of the action and that, there being no genuine issues as to material facts, defendant was entitled to judgment as a matter of law. The court below held that actions with respect to federal taxes were expressly excepted from the provisions of the Declaratory Judgment Act, 28 U.S.C. § 2201, and that jurisdiction could not be founded upon 28 U.S.C. §§ 1340 or 2463. Accordingly, the court dismissed the complaint (D.C., 198 F.Supp. 627). Appellate jurisdiction is based upon 28 U. S.C. § 1291. '
The facts as disclosed by the complaint and affidavits are in substance:
On November 11, 1959, defendants to satisfy an adjudicated tax liability of plaintiffs of $101,263.32 sold real estate owned by plaintiff, Giles E. Bullock, together with machinery and equipment therein for $103,610.00 ($61,100 being received for the real estate and $42,500 for the machinery and equipment). Defendants credited the $61,100 against the $101,262.32 due from plaintiffs but applied the $42,500 against a tax liability of a corporation, E. C. Brown Company, of which plaintiff, Giles E. Bullock, was the sole owner. Various theories of ownership of the machinery and fixtures are alleged which all lead to the complainant’s conclusion that title to the machinery and fixtures was vested in Giles E. Bullock and that the proceeds of the sale should have been applied to the plaintiffs’ tax liability and not to the tax liability of E. C. Brown Company. Defendants appearing specially to contest the court’s jurisdiction in their answer admit applying only $60,580.83 to plaintiffs’ tax and $42,362.64 to E.. C. Brown Company’s ' tax. Had defendants applied the entire amount realized against plaintiffs’ tax liability, it would have been paid in full. The only real question presented is whether Giles E. Bullock or E. C. Brown Company owned the machinery and fixtures. If they were the property of Giles E. Bullock, then his property has been taken to satisfy the tax obligation of another; if the Company owned them, defendants made a proper allocation of the proceeds.
Defendants’ answer challenged the jurisdiction of the court (1) because the declaratory judgment statute specifically excepts controversies “with respect to Federal taxes” (28 U.S.C. § 2201); (2) because the action seeks to restrain “the assessment or collection” of a tax (26 U. S.C. § 7421); and (3) because the action seeks to restrain agents of the United States in the discharge of their official duties. The court below held that there was no jurisdiction to hear plaintiffs’ complaint and that any claim to jurisdiction under 28 U.S.C. § 1340 or § 2463 “must be ‘with respect to federal taxes’ ” and, hence, within the exception contained in § 2201. The controversy here is not over the amount of any tax. Neither plaintiffs nor the Company contest the tax. Because there is no diversity, the court below held that if the action is not with respect to federal taxes, there is no jurisdiction “because there is no other basis”.
Section 1340 (28 U.S.C.) gives to district courts “original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue * * * ” This section relates to taxes, argue defendants, which brings the action back again within the exception of Section 2201. The law, however, frequently does not follow the narrow path of pure logic and seldom can indulge itself in the academic certainties of syllogistic reasoning. Nor can reference be made to the provisions of any one section without the probability arising of having to reconcile it with some other section or decisional law apparently in conflict. And so here.
The conclusion to be gleaned from the many decisions dealing with the problem presented is succinctly stated in the “Law of Federal Income Taxation” (9 Mertens § 49.224) and is that “Courts have granted declaratory judgments, however, in suits in which the plaintiff has charged that his property may be taken to discharge the tax liability of another * * * ” To reach this conclusion, a straight path cannot be trod. Along the path has been placed a hurdle such as is found in Section 7421 which prohibits the maintenance of any suit to restrain the collection of any tax. This hurdle, however, can be by-passed by adhering to Raffaele v. Granger, 3 Cir., 1952, 196 F.2d 620, 623, wherein the court said, “This court and others have consistently held that Section 3653(a) of Title 26 [§ 7421(a)] does not prevent judicial interposition to prevent a Collector from taking the property of one person to satisfy the tax obligation of another. Rothensies v. Ullman, 3 Cir., 1940, 110 F.2d 590; Glenn v. American Surety Co., 6 Cir., 1947, 160 F.2d 977; Long v. Rasmussen, [9 Cir.] D.C.Mont. 1922, 281 F. 236.”
Section 1340 (Title 28) is clear enough but can reliance be placed on it without running afoul of the section 2201 exception? The decisions give an affirmative answer although many of them also rely on Section 2463 (Title 28) for jurisdictional support. Section 2463 provides in substance that property taken under any revenue law of the United States shall be deemed to be in the custody of the law and subject only to the “orders and decrees of the courts of the United States having jurisdiction thereof.”
Probably the most cited case in this field is Long v. Rasmussen, Collector of Internal Revenue, et al., 9 Cir., 1922, 281 F. 236, 238. There the Collector seized the plaintiff’s property for the tax owed . by another. The court had no difficulty with the statute against restraint of tax collection (26 U.S.C. § 7421) holding that it applied only to taxpayers but then said, “They [the revenue laws] relate to taxpayers, and not to nontaxpayers. The latter are without their scope. No procedure is prescribed for nontaxpayers, and no attempt is made to annul any of their rights and remedies in due course of law.” If the case were not under the revenue laws, how jurisdiction was obtained in the absence of diversity is not explained except that the court believed that it was not improbable that the predecessor section (R.S. § 934) of section 2463 “contemplates the instant case.” However, federal jurisdiction must be found under some statute. Only after it exists, is it then possible to invoice the theory that the jurisdictional exclusion of the summary judgment remedy of section 2201 is limited to actual controversies with respect to tax liabil-Dy-
A seizure of property and its sale by a District Director of Internal Revenue is an act “arising under [an Act] * * * of Congress providing for internal revenue” (Section 1340). Of necessity, he is acting within the framework of the revenue laws. This section would appear to provide a broad jurisdictional base which is not annulled by the narrower limitations of the declaratory judgment section. Sections 1340 and 2463 singly or in combination have throughout the years satisfied the federal courts’ jurisdictional requirements in cases in which a non-taxpayer seeks to prevent his property from being seized and sold to pay the tax obligation of another. This is the very situation presented here because Giles E. Bullock, vis-a-vis the Brown Company, is a non-taxpayer,
To set forth jn fuj] the facts of the many cases accepting jurisdiction would serve little purpose. The principle has been stated succinctly in Fine Fashions, Inc. v. Moe, D.C.S.D.N.Y., 1959, 172 F.Supp. 547:
“It is well-settled that when property belonging to A is levied upon to satisfy the tax obligation of B, A is not without remedy but may seek redress in the federal courts.”
^ „ ,, , Dealmg with the power of the court !° entertain a declaratory judgment court Tomlinson v. Smith, 7 Cir., 1942, 128 F.2d 808, said:
^ “What we have said concerning Die jurisdiction of the court to issue a restraining order is, as we view Die matter, determinative of its jurisdiction to declare the rights of Die parties relative thereto. It is unreasonable to think that a court with authority to issue a restraining order is without power to declare Die rights of the parties in connecD°n therewith.”
Other cases relating to jurisdiction are. Botta v. Scanlon, 2 Cir., 1961, 288 F.2d 504 (Action against District Director of Internal Revenue to have assessment declared void and to enjoin. Jurisdiction upheld; 26 U.S.C. § 7421, no bar); United States v. Coson, 9 Cir., 1961, 286 F.2d 453 (Action against United States by plaintiff claiming to be the owner of property against which a tax lien had been filed for taxes owed by another; jurisdiction upheld under 28 U.S.C. § 1340 and § 2410); Stuart v. Willis, 9 Cir., 1957, 244 F.2d 925 (“the power of the Collector never extends beyond the rights of the taxpayer upon whose property the levy is sought. * * the property of a third person is immune from seizure to enforce the liability of the person owing the tax”); Seattle Association of Credit Men v. United States, 9 Cir., 1957, 240 F.2d 906 (Action against United States to quiet title to funds levied upon by District Director of Internal Revenue; jurisdiction upheld on basis of 28 U.S.C. § 2463); Holland v. Nix, 5 Cir., 1954, 214 F.2d 317 (Jurisdiction upheld in action to enjoin Director of Internal Revenue from enforcing assessments against property of non-taxpayer); Rothensies v. Ullman, 3 Cir., 1940, 110 F.2d 590 (Jurisdiction under Section 934 (R.S.), 28 U.S.C. § 747, now § 2463 not defeated by 26 U.S.C. § 3653, now 26 U.S.C. § 7421); Guttman v. United States, D.C.E.D.N.Y., 1961, 196 F.Supp. 384 (Motion to dismiss for lack of jurisdiction denied. Action against United States, District Director of Internal Revenue, et al. to recover proceeds of life insurance policies against which tax liens had been filed. 28 U. S.C. § 2201, no bar to jurisdiction); Rutledge v. Riddell, D.C.S.D.Calif.1960, 186 F.Supp. 552 (Jurisdiction upheld as to action against District Director of Internal Revenue); Szerlip v. Marcelle, D.C.E.D.N.Y.1955, 136 F.Supp. 862 (Jurisdiction under 28 U.S.C. § 1340 and § 2463 not affected by 26 U.S.C. § 7421 where third party’s property seized for tax of another); Gerth v. United States, D.C.S.D.Calif., 1955, 132 F.Supp. 894 (Action against District Director of Internal Revenue, et al. to quite title to property taken as security for taxes owed by another; jurisdiction upheld under 28 U.S.C. § 2463); Filipowicz v. Rothensies, D.C.Pa.1940, 31 F.Supp. 716 (Action for declaratory judgment against Collector of Internal Revenue, et al. Jurisdiction under Declaratory Judgments Act upheld).
Nothing said in Jolles Foundation v. Moysey, 2 Cir., 1957, 250 F.2d 166, is to the contrary. There the question related to the tax liability of the Foundation. By a declaratory judgment action, the taxpayer sought to change its taxable status. The issue was “with respect to Federal taxes” and the exception of Section 2201, therefore, applied.
Upon the trial, the sole issue to be determined will be whether title to the machinery and fixtures is in Giles E. Bullock or E. C. Brown Company. If in Bullock, the proceeds of the sale in the hands of the District Director should be applied to the Bullock tax liability; if in the Company, to its tax liability. Jurisdiction rests upon sections 1340 and 2463 and does not come within the exception of section 2201. That exception sufficiently serves its purpose if limited to controversies involving tax liabilities of parties qua taxpayers and if not construed as foreclosing declaratory judgment relief to persons claiming an interest in property levied upon to satisfy the tax obligations of another. Accordingly, the order is reversed and the case remanded so that upon the trial the issue of title and the proper application of the proceeds may be determined.
The judgment is reversed and the case is remanded to the District Court.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_lcdisposition
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
UNITED STATES v. OAKLAND CANNABIS BUYERS’ COOPERATIVE et al.
No. 00-151.
Argued March 28, 2001
Decided May 14, 2001
Acting Solicitor General Underwood argued the cause for the United States. With her on the briefs were former Solicitor General Waxman, Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, and Lisa Schiavo Blatt.
Gerald F. Uelmen argued the cause for respondents. With him on the brief were James J. Brosnahan, Annette P. Carnegie, Christina Kirk-Kazhe, Robert A. Raich, and Randy E. Barnett.
Janet M. LaRue filed a brief for the Family Research Council as ami-cus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of California by Bill Lockyer, Attorney General, and David De Alba, Special Assistant Attorney General; for the American Civil Liberties Union et al. by Steven R. Shapiro, Daniel P. Tokaji, and Jordan C. Budd; for the American Public Health Association et al. by Daniel N. Abrahamson; for the Marijuana Policy Project et al. by Cheryl Flax-Davidson; for the National Organization for the Reform of Marijuana Laws et al. by R. Keith Stroup, John Wesley Hall, Jr., and Lisa B. Kemler; for Edward Neil Brundridge et al. by Thomas V. Loran III; and for Sheriff Mark N. Dion et al. by Julie M. Carpenter.
Briefs of amici curiae were filed for the California Medical Association et al. by Catherine I. Hanson and Alice P. Mead; and for the Institute on Global Drug Policy of the Drug Free America Foundation et al. by David G. Evans and John E. Lamp.
Justice Thomas
delivered the opinion of the Court.
The Controlled Substances Act, 84 Stat. 1242, 21 U. S. C. §801 et seq., prohibits the manufacture and distribution of various drugs, including marijuana. In this ease, we must decide whether there is a medical necessity exception to these prohibitions. We hold that there is not.
I
In November 1996, California voters enacted an initiative measure entitled the Compassionate Use Act of 1996. Attempting “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes,” Cal. Health & Safety Code Ann. § 11362.5 (West Supp. 2001), the statute creates an exception to California laws prohibiting the possession and cultivation of marijuana. These prohibitions no longer apply to a patient or his primary caregiver who possesses or cultivates marijuana for the patient’s medical purposes upon the recommendation or approval of a physician. Ibid. In the wake of this voter initiative, several groups organized “medical cannabis dispensaries” to meet the needs of qualified patients. United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1092 (ND Cal. 1998). Respondent Oakland Cannabis Buyers’ Cooperative is one of these groups.
The Cooperative is a not-for-profit organization that operates in downtown Oakland. A physician serves as medical director, and registered nurses staff the Cooperative during business hours. To become a member, a patient must provide a written statement from a treating physician assenting to marijuana therapy and must submit to a screening interview. If accepted as a member, the patient receives an identification card entitling him to obtain marijuana from the Cooperative.
In January 1998, the United States sued the Cooperative and its executive director, respondent Jeffrey Jones (together, the Cooperative), in the United States District Court for the Northern District of California. Seeking to enjoin the Cooperative from distributing and manufacturing marijuana, the United States argued that, whether or not the Cooperative’s activities are legal under California law, they violate federal law. Specifically, the Government argued that the Cooperative violated the Controlled Substances Act’s prohibitions on distributing, manufacturing, and possessing with the intent to distribute or manufacture a controlled substance. 21 U. S. C. § 841(a). Concluding that the Government had established a probability of success on the merits, the District Court granted a preliminary injunction. App. to Pet. for Cert. 39a-40a; 5 F. Supp. 2d, at 1105.
The Cooperative did not appeal the injunction but instead openly violated it by distributing marijuana to numerous persons, App. to Pet. for Cert. 21a-23a. To terminate these violations, the Government initiated contempt proceedings. In defense, the Cooperative contended that any distributions were medically necessary. Marijuana is the only drug, according to the Cooperative, that can alleviate the severe pain and other debilitating symptoms of the Cooperative’s patients. Id., at 29a. The District Court rejected this defense, however, after determining there was insufficient evidence that each recipient of marijuana was in actual danger of imminent harm without the drug. Id., at 29a-32a. The District Court found the Cooperative in contempt and, at the Government’s request, modified the preliminary injunction to empower the United States Marshal to seize the Cooperative’s premises. Id., at 37a. Although recognizing that “human suffering” could result, the District Court reasoned that a court’s “equitable powers [do] not permit it to ignore federal law.” Ibid. Three days later, the District Court summarily rejected a motion by the Cooperative to modify the injunction to permit distributions that are medically necessary.
The Cooperative appealed both the contempt order and the denial of the Cooperative’s motion to modify. Before the Court of Appeals for the Ninth Circuit decided the case, however, the Cooperative voluntarily purged its contempt by promising the District Court that it would comply with the initial preliminary injunction. Consequently, the Court of Appeals determined that the appeal of the contempt order was moot. 190 F. 3d 1109,1112-1113 (1999).
The denial of the Cooperative’s motion to modify the injunction, however, presented a live controversy that was ap-pealable under 28 U. S. C. § 1292(a)(1). Reaching the merits of this issue, the Court of Appeals reversed and remanded. According to the Court of Appeals, the medical necessity defense was a “legally cognizable defense” that likely would apply in the circumstances. 190 F. 3d, at 1114. Moreover, the Court of Appeals reasoned, the District Court erroneously “believed that it had no discretion to issue an injunction that was more limited in scope than the Controlled Substances Act itself.” Id., at 1114-1115. Because, according to the Court of Appeals, district courts retain “broad equitable discretion” to fashion injunctive relief, the District Court could have, and should have, weighed the “public interest” and considered factors such as the serious harm in depriving patients of marijuana. Ibid. Remanding the case, the Court of Appeals instructed the District Court to consider “the criteria for a medical necessity exemption, and, should it modify the injunction, to set forth those criteria in the modification order.” Id., at 1115. Following these instructions, the District Court granted the Cooperative’s motion to modify the injunction to incorporate a medical necessity defense.
The United States petitioned for certiorari to review the Court of Appeals’ decision that medical necessity is a legally cognizable defense to violations of the Controlled Substances Act. Because the decision raises significant questions as to the ability of the United States to enforce the Nation’s drug laws, we granted certiorari. 531 U. S. 1010 (2000).
II
The Controlled Substances Act provides that, “[ejxcept as authorized by this subehapter, it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U. S. C. 1841(a)(1). The subehapter, in turn, establishes exceptions. For marijuana (and other drugs that have been classified as “schedule I” controlled substances), there is but one express exception, and it is available only for Government-approved research projects, § 823(f). Not conducting such a project, the Cooperative eannot, and indeed does not, claim this statutory exemption.
The Cooperative contends, however, that notwithstanding the apparently absolute language of § 841(a), the statute is subject to additional, implied exceptions, one of which is medical necessity. According to the Cooperative, because necessity was a defense at common law, medical necessity should be read into the Controlled Substances Act. We disagree.
As an initial matter, we note that it is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute. A necessity defense “traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.” United States v. Bailey, 444 U. S. 394, 410 (1980). Even at common law, the defense of necessity was somewhat controversial. See, e. g., Queen v. Dudley & Stephens, 14 Q. B. 273 (1884). And under our constitutional system, in which federal crimes are defined by statute rather, than by common law, see United States v. Hudson, 7 Craneh 32, 34 (1812), it is especially so. As we have stated: “Whether, as a policy matter, an exemption should be created is a question for legislative judgment, not judicial inference.” United States v. Rutherford, 442 U.S. 544, 559 (1979). Nonetheless, we recognize that this Court has discussed the possibility of a necessity defense without altogether rejecting it. See, e. g., Bailey, supra, at 415.
We need not decide, however, whether necessity can ever be a defense when the federal statute does not expressly provide for it. In this ease, to resolve the question presented, we need only recognize that a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act. The statute, to be sure, does not explicitly abrogate the defense. But its provisions leave no doubt that the defense is unavailable.
Under any conception of legal necessity, one principle is clear: The defense cannot succeed when the legislature itself has made a “determination of values.” 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.4, p. 629 (1986). In the ease of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a Government-approved research project). Whereas some other drugs can be dispensed and prescribed for medical use, see 21 U. S. C. § 829, the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has “no currently accepted medical use” at all. §812.
The structure of the Act supports this conclusion. The statute divides drugs into five schedules, depending in part on whether the particular drug has a currently accepted medical use. The Act then imposes restrictions on the manufacture and distribution of the substance according to the schedule in which it has been placed. Schedule I is the most restrictive schedule. The Attorney General can include a drug in schedule I only if the drug “has no currently accepted medical use in treatment in the United States,” “has a high potential for abuse,” and has “a lack of accepted safety for use ... under medical supervision.” §§ 812(b)(l)(A)-(C). Under the statute, the Attorney General could not put marijuana into schedule I if marijuana had any accepted medical use.
The Cooperative points out, however, that the Attorney General did not place marijuana into schedule I. Congress put it there, and Congress was not required to find that a drug lacks an accepted medical use before including the drug in schedule I. We are not persuaded that this distinction has any significance to our inquiry. Under the Cooperative’s logic, drugs that Congress places in schedule I could be distributed when medically necessary whereas drugs that the Attorney General places in schedule I could not. Nothing in the statute, however, suggests that there are two tiers of schedule I narcotics, with drugs in one tier more readily available than drugs in the other. On the contrary, the statute consistently treats all schedule I drugs alike. See, e. g., § 823(a) (providing criteria for Attorney General to consider when determining whether to register an applicant to manufacture schedule I controlled substances), § 828(b) (providing criteria for Attorney General to consider when determining whether to register an applicant to distribute schedule I controlled substances), § 823(f) (providing procedures for becoming a government-approved research project), §826 (establishing production quotas for schedule I drugs). Moreover, the Cooperative offers no convincing explanation for why drugs that Congress placed on schedule I should be subject to fewer controls than the drugs that the Attorney General placed on the schedule. Indeed, the Cooperative argues that, in placing marijuana and other drugs on schedule I, Congress “wishe[d] to assert the most restrictive level of controls created by the [Controlled Substances Act].” Brief for Respondents 24. If marijuana should be subject to the most restrictive level of controls, it should not be treated any less restrictively than other schedule I drugs.
The Cooperative further argues that use of schedule I drugs generally — whether placed in schedule I by Congress or the Attorney General — can be medically necessary, notwithstanding that they have “no currently accepted medical use.” According to the Cooperative, a drug may not yet have achieved general acceptance as a medical treatment but may nonetheless have medical benefits to a particular patient or class of patients. We decline to parse the statute in this manner. It is clear from the text of the Act that Congress has made a determination that marijuana has no medical benefits worthy of an exception. The statute expressly contemplates that many drugs “have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people,” §801(1), but it includes no exception at all for any medical use of marijuana. Unwilling to view this omission as an accident, and unable in any event to override a legislative determination manifest in a statute, we reject the Cooperative’s argument.
Finally, the Cooperative contends that we should eonstrue the Controlled Substances Act to include a medical necessity defense in order to avoid what it considers to be difficult constitutional questions. In particular, the Cooperative asserts that, shorn of a medical necessity defense, the statute exceeds Congress’ Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments. As the Cooperative acknowledges, however, the canon of constitutional avoidance has no application in the absence of statutory ambiguity. Because we have no doubt that the Controlled Substances Act cannot bear a medical necessity defense to distributions of marijuana, we do not find guidance in this avoidance principle. Nor do we consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so in the first instance.
For these reasons, we hold that medical necessity is not a defense to manufacturing and distributing marijuana. The Court of Appeals erred when it held that medical necessity is a “legally cognizable defense.” 190 F. 3d, at 1114. It further erred when it instructed the District Court on remand to consider “the criteria for a medical necessity exemption, and, should it modify the injunction, to set forth those criteria in the modification order.” Id., at 1115.
Ill
The Cooperative contends that, even if the Controlled Substances Act forecloses the medical necessity defense, there is an alternative ground for affirming the Court of Appeals. This ease, the Cooperative reminds us, arises from a motion to modify an injunction to permit distributions that are medically necessary. According to the Cooperative, the Court of Appeals was correct that the District Court had “broad equitable discretion” to tailor the injunctive relief to account for medical necessity, irrespective of whether there is a legal defense of necessity in the statute. Id., at 1114. To sustain the judgment below, the argument goes, we need only reaffirm that federal courts, in the exercise of their equity jurisdiction, have discretion to modify an injunction based upon a weighing of the public interest.
We disagree. Although district courts whose equity powers have been properly invoked indeed have discretion in fashioning injunctive relief (in the absence of a statutory restriction), the Court of Appeals erred concerning the factors that the district courts may consider in exercising such discretion.
A
As an initial matter, the Cooperative is correct that, when district courts are properly acting as courts of equity, they have discretion unless a statute clearly provides otherwise. For “several hundred years,” courts of equity have enjoyed “sound discretion” to consider the “necessities of the public interest” when fashioning injunctive relief. Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944). See also id., at 329 (“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it”); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction”). Such discretion is displaced only by a “clear and valid legislative command.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946). See also Romero-Barcelo, supra, at 313 (“Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles”).
The Cooperative is also correct that the District Court in this case had discretion. The Controlled Substances Act vests district courts with jurisdiction to enjoin violations of the Act, 21 U. S. C. § 882(a). But a “grant of jurisdiction to issue [equitable relief] hardly suggests an absolute duty to do so under any and all circumstances,” Hecht, supra, at 329 (emphasis deleted). Because the District Court’s use of equitable power is not textually required by any “clear and valid legislative command,” the court did not have to issue an injunction.
TVA v. Hill, 437 U.S. 153 (1978), does not support the Government’s contention that the District Court lacked discretion in fashioning injunctive relief. In Hill, the Court held that the Endangered Species Act of 1973 required the District Court to enjoin completion of a dam, whose operation would either eradicate the known population of the snail darter or destroy its critical habitat. Id., at 193-195. The District Court lacked discretion because an injunction was the “only means of ensuring compliance.” Romero-Barcelo, supra, at 314 (explaining why the District Court in Hill lacked discretion). Congress’ “order of priorities,” as expressed in the statute, would be deprived of effect if the District Court could choose to deny injunctive relief. Hill, supra, at 194. In effect, the District Court had only a Hob-son’s choice. By contrast, with respect to the Controlled Substances Act, criminal enforcement is an alternative, and indeed the customary, means of ensuring compliance with the statute. Congress’ resolution of the policy issues can be (and usually is) upheld without an injunction.
B
But the mere fact that the District Court had discretion does not suggest that the District Court, when evaluating the motion to modify the injunction, could consider any and all factors that might relate to the public interest or the conveniences of the parties, including the medical needs of the Cooperative’s patients. On the contrary, a court sitting in equity cannot “ignore the judgment' of Congress, deliberately expressed in legislation.” Virginian R. Co. v. Railway Employees, 300 U.S. 515, 551 (1937). A district court cannot, for example, override Congress’ policy choice, articulated in a statute, as to what behavior should be prohibited. “Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is... for the courts to enforce them when enforcement is sought.” Hill, 437 U.S., at 194. Courts of equity cannot, in their discretion, reject the balance that Congress has struck in a statute. Id., at 194-195. Their choice (unless there is statutory language to the contrary) is simply whether a particular means of enforcing the statute should be chosen over another permissible means; their choice is not whether enforcement is preferable to no enforcement at all. Consequently, when a court of equity exercises its discretion, it may not consider the advantages and disadvantages of nonenforcement of the statute, but only the advantages and disadvantages of “employing the extraordinary remedy of injunction,” Romero-Barcelo, 456 U.S., at 312, over the other available methods of enforcement. Cf. id., at 816 (referring to “discretion to rely on remedies other than an immediate prohibitory injunction”). To the extent the district court considers the public interest and the conveniences of the parties, the court is limited to evaluating how such interest and conveniences are affected by the selection of an injunction over other enforcement mechanisms.
C
In this case, the Court of Appeals erred by considering relevant the evidence that some people have “serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate those conditions or their symptoms,” that these people “will suffer serious harm if they are denied cannabis,” and that “there is no legal alternative to cannabis for the effective treatment of their medical conditions.” 190 P. 3d, at 1115. As explained above, in the Controlled Substances Act, the balance already has been struck against a medical necessity exception. Because the statutory prohibitions cover even those who have what could be termed a medical necessity, the Act precludes consideration of this evidence. It was thus error for the Court of Appeals to instruct the District Court on remand to consider “the criteria for a medical necessity exemption, and, should it modify the injunction, to set forth those criteria in the modification order.” Ibid.
*í- H* H*
The judgment of the Court of Appeals is reversed, and the ease is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Breyer took no part in the consideration or decision of this ease.
The Government requested, and the District Court granted, an injunction that prohibited the possession of marijuana with the intent to manufacture and distribute, as well as the distribution and manufacture of marijuana. For simplicity, in this opinion, we refer to these activities collectively as distributing and manufacturing marijuana. The legal issues are the same for all of these activities.
The amended preliminary injunction reaffirmed that the Cooperative is generally enjoined from manufacturing, distributing, and possessing with the intent to manufacture or distribute marijuana, but it carved out an exception for cases of medical necessity. Specifically, the District Court ordered that “[t]he foregoing injunction does not apply to the distribution of cannabis by [the Cooperative] to patient-members who (1) suffer from a serious medical condition, (2) will suffer imminent harm if the patient-member does not have access to cannabis, (3) need cannabis for the treatment of the patient-member’s medical condition, or need cannabis to alleviate the medical condition or symptoms associated with the medical condition, and (4) have no reasonable legal alternative to cannabis for the effective treatment or alleviation of the patient-member’s medical condition or symptoms associated with the medical condition because the patient-member has tried all other legal alternatives to cannabis and the alternatives have been ineffective in treating or alleviating the patient-member’s medical condition or symptoms associated with the medical condition, or the alternatives result in side effects which the patient-member cannot reasonably tolerate.” App. to Pet. for Cert. 16a-17a.
The United States appealed the District Court’s order amending the preliminary injunction. At the Government’s request, we stayed the order pending the appeal. 580 U. S. 1298 (2000). The Court of Appeals has postponed oral argument pending our decision in this case.
The Cooperative is incorrect to suggest that Bailey has settled the question whether federal courts have authority to recognize a necessity defense not provided'by statute. There, the Court rejected the necessity defense of a prisoner who contended that adverse prison conditions justified his prison escape. The Court held that the necessity defense is unavailable to prisoners, like Bailey, who fail to present evidence of a bona fide effort to surrender as soon as the claimed necessity had lost its coercive force. 444 U. S., at 415. It was not argued, and so there was no occasion to consider, whether the statute might be unable to bear any necessity defense at all. And although the Court noted that Congress “legislates against a background of Anglo-Saxon common law'’ and thus “may” have contemplated a necessity defense, the Court refused to “bal-ane[e] [the] harms,” explaining that “we are construing an Act of Congress, not drafting it.” Id., at 415-416, n. 11.
We reject the Cooperative’s intimation that elimination of the defense requires an “explici[t]” statement. Brief for Respondents 21. Considering that we have never held necessity to be a viable justification for violating a federal statute, see supra, at 490, and n. 3, and that such a defense would entail a social balancing that is better left to Congress, we decline to set the bar so high.
As noted, supra, at 490, the only express exception for schedule I drugs is the Government-approved research project, see 21 U.S.C. § 823(f). Unlike drugs in other schedules, see §829, schedule I drugs cannot be dispensed under a prescription.
The Government argues that the 1998 "sense of the Congress” resolution, 112 Stat. 2681-760 to 2681-761, supports its position that Congress has foreclosed the medical necessity defense. Entitled “Not Legalizing Marijuana for Medicinal Use,” the resolution declares that “Congress continues to support the existing Federal legal process for determining the safety and efficacy of drugs and opposes efforts to circumvent this process by legalizing marijuana, and other Schedule I drugs, for medicinal use without valid scientific evidence and the approval of the Food and Drug Administration.” Because we conclude that the Controlled Substances Act cannot sustain the medical necessity defense, we need not consider whether the 1998 “sense of the Congress resolution” is additional evidence of a legislative determination to eliminate the defense.
Lest there be any confusion, we clarify that nothing in our analysis, or the statute, suggests that a distinction should be drawn between the prohibitions on manufacturing and distributing and the other prohibitions in the Controlled Substances Act. Furthermore, the very point of our holding is that there is no medical necessity exception to the prohibitions at issue, even when the patient is “seriously ill” and lacks alternative avenues for relief Indeed, it is the Cooperative’s argument that its patients are “seriously ill,” see, e. g., Brief for Respondents 11,13,17, and lacking "alternatives,” see, e. g., id., at 13. We reject the argument that these factors warrant a medical necessity exception. If we did not, we would be affirming instead of reversing the Court of Appeals.
Finally, we share Justice Stevens’ concern for “showing respect for the sovereign States that comprise our Federal Union.” Post, at 502 (opinion concurring in judgment). However, we are “construing an Act of Congress, not drafting it.” United States v. Bailey, 444 U.S. 394, 415, n. 11 (1980). Because federal courts interpret, rather than author, the federal criminal code, we are not at liberty to rewrite it. Nor are we passing today on a constitutional question, such as whether the Controlled Substances Act exceeds Congress’ power under the Commerce Clause.
Notwithstanding Justice Stevens’ concerns, post, at 502-503, it is appropriate for us to address this issue because this case arises from a motion to modify the injunction, because the Court of Appeals held that the District Court misconstrued its equitable discretion, and because the Cooperative offers this conclusion as an alternative ground for affirmance.
Hecht Co. v. Bowles, 321 U.S. 321 (1944), for example, held that the District Court was not required to issue an injunction to restrain violations of the Emergency Price Control Act of 1942 and regulations thereunder when “some ‘other order’ might be more appropriate, or at least so appear to the court.” Id., at 328 (quoting statutory provision that enabled district court to issue an injunction, a restraining order, “or other order”). Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), held that a District Court had discretion not to issue an injunction precluding the United States Navy from releasing ordnance into water, but to rely on other means of ensuring compliance, including ordering the Navy to obtain a permit. Id., at 314-318. See also Amoco Production Co. v. Gambell, 480 U.S. 531, 544-546 (1987) (holding that a District Court did not err in declining to issue an injunction to bar exploratory drilling on Alaskan publie lands, because the District Court’s decision “did not undermine” the policy of the Alaska National Interest Lands Conservation Act, 16 U. S. C. §3120, and because the Secretary of the Interior had other means of meaningfully complying with the statute).
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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sc_certreason
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
UNITED STATES et al. v. ROCK ISLAND MOTOR TRANSIT CO. et al.
No. 25.
Argued November 7, 1950.
Decided February 26, 1951.
Daniel W. Knowlton argued the cause for the United States and the Interstate Commerce Commission, appellants. With him on the brief were Solicitor General Perl-man, Acting Assistant Attorney General Underhill and Edward M. Reidy. ■ Allen Crenshaw was also of counsel for the Interstate Commerce Commission.
Harry E. Boe argued the cause for the Rock Island Motor Transit Company, appellee. With him on the brief were Martin L. Cassell, W. F. Peter and A. B. Enoch.
Ernest Porter and Bert F. Wisdom submitted on brief for the Iowa State Commerce Commission, appellee. George Cosson, Jr. was also of counsel.
Einar Viren submitted on brief for the Omaha Chamber of Commerce, appellee.
Mr. Justice Reed
delivered the opinion of the Court.
Questions of the power of the Interstate Commerce Commission to tighten the restrictions on operations of a railroad’s motor-carrier affiliate are raised by this appeal. In the Commission’s view the operations must be modified in order to make them truly auxiliary to or supplemental of the rail service. They are conducted (1) under a certificate of convenience and necessity issued in 1941 under § 207 of the Interstate Commerce Act, and (2) under an order of 1944 approving the acquisition of another motor carrier. The certificate contains the condition that the Commission might impose other terms to restrict the holder’s operation to service which is auxiliary to or supplemental of rail service. The order contains neither this condition nor any other relating to the specific operating rights of the carrier.
The issues involve a basic power of the Commission to regulate the operations of motor carriers affiliated with railroads so as to assure that at all times the motor operations shall be consonant with the National Transportation Policy, 54 Stat. 899. The Commission has decided that that policy requires the motor operations of railroads and their affiliates to be auxiliary to and supplemental of train service. This raises questions as to how the planned auxiliary and supplemental service is to be -achieved. Differences also exist as to what phases of motor-carrier operations are auxiliary to and supplemental of rail or train service.
The Rock Island Motor Transit Company, a wholly-owned corporate subsidiary of the Chicago, Rock Island and Pacific Railroad Company and its predecessors, is a common carrier by motor vehicle engaged in transporting property in inter- and intrastate commerce, exclusively, for all practical purposes, along the rail lines of its parent corporation in Arkansas, Illinois, Indiana, Iowa, Minnesota, Missouri, Nebraska, Tennessee, Texas and Kansas. Many of Transit’s operations alongside its parent are in different localities and under other I. C. C. authorities than the certificate and order here involved.
This appeal deals with additional operating restrictions placed subsequent to the Commission’s formal approval of Transit’s purchase and operation, upon two of Transit’s acquisitions. The first is a segment of the so-called White Line Purchase. The Line was in process of perfecting its “grandfather rights” under § 206 (a), Motor Carrier Act, at the time of appellees’ agreement to purchase. The order directing issue of the certificate to Rock Island recognized this. This purchase was authorized under § 213, Motor Carrier Act of 1935, 49 Stat. 555, April 1, 1938, Docket No. MC-F-445; reported 5 M- C. C. 451, 15 M. C. C. 763. The segments of the White Line Purchase here involved are those between Des Moines, Iowa, and Omaha, Nebraska, and Des Moines, Iowa, and Silvis, Illinois, included in Transit’s certificate of convenience and necessity issued in No. MC 29130, December 3, 1941. That certificate had only the following provisions in any way applicable to this controversy:
“Service is authorized to and from the intermediate points on the above-specified routes which are also stations on the lines of The Chicago, Rock Island and Pacific Railway Company.
“The operations authorized on the above-specified routes are subject to such further limitations, restrictions, or modifications as we may find it necessary to impose or make in order to insure that the service shall be auxiliary or supplementary to the train service of The Chicago, Rock Island and Pacific Railway Company and shall not unduly restrain competition.”
The second acquisition is the so-called Frederickson Purchase, authorized November 28, 1944, Docket No. MC-F-2327, under § 5, Interstate Commerce Act, 54 Stat. 905, by which Transit acquired, from the holders of a certificate of convenience and necessity, a route between Atlantic, Iowa, and Omaha, Nebraska. Neither the report nor the order contained provisions alike or akin to these just quoted from the White Line certificate. No order for a certificate has yet been entered and no certificate has been issued.
The routes here involved are a major part of the Rock Island’s truck route between Chicago and Omaha. The eastern end of that route from Silvis, Illinois, to Chicago is operated under other I. C. C. authority.
Transit has been operating the above routes since their respective dates. Under those authorities, Transit states it has engaged in trucking service as follows:
“(a) a coordinated rail-service, at rail rates auxiliary to the existing service of appellee’s affiliated railroad; (b) a motor service in substitution of rail service, at rail rates; and (c) a motor common carrier service at rates and tariffs observed and applied by appellee’s predecessors, as modified from time to time.”
On February 5, 1945, the Commission directed reopening of the dockets to give reconsideration to the above certificate and order,
“solely to determine (a) the conditions or restrictions, if any appear necessary, which should be imposed to insure that the motor carrier service performed by The Rock Island Motor Transit Company is limited to that which is auxiliary to, or supplemental of, rail service, and (b) the condition, if any appears necessary, which should be imposed so as to make the authority granted to The Rock Island Motor Transit Company subject to such further conditions or restrictions as the Commission may find necessary to impose in order to insure that the service shall be auxiliary to, or supplemental of, rail service.”
At the end of that reconsideration, an order was entered to modify the White Purchase certificate and the Fred-erickson order in the following respects:
“1. The service to be performed by The Rock Island Motor Transit Company shall be limited to service which is auxiliary to, or supplemental of, train service of The Chicago, Rock Island and Pacific Railroad Company, hereinafter called the Railroad.
“2. The Rock Island Motor Transit Company shall not render any service to or from any point not a station on a rail line of the Railroad.
“3. No shipments shall be transported by The Rock Island Motor Transit Company between any of the following points, or through, or to, or from, more than one of said points: Omaha, Nebr., Des Moines, Iowa, and collectively Davenport and Bettendorf, Iowa, and Rock Island, Moline, and East Moline, Ill.
“4. All contractual arrangements between The Rock Island Motor Transit Company and the Railroad shall be reported to us and shall be subject to revision, if and as we find it to be necessary, in order that such arrangements shall be fair and equitable to the parties.
“5. Such further specific conditions as we, in the future, find it necessary to impose in order to insure thaf the service shall be auxiliary to, or supplemental of, train service.” Rock Island Motor Transit Co., 55 M. C. C. 567, 597-598, affirming 40 M. C. C. 457.
It is from those modifications that Transit sought relief through §§ 1336 and 2325 of 28 U. S. C. from a three-judge district court. The relief was granted and the orders were annulled and their enforcement enjoined. 90 F. Supp. 516. The United States and the Interstate Commerce Commission appealed under 28 U. S. C. § 1253. We noted probable jurisdiction.
Transit’s objection to the order modifying the provisions under which it operates these routes may be generalized as a contention that the Commission’s order changes or revokes a part of Transit’s operating authority, previously granted by the Commission, without any failure by Transit to comply with any term, condition or limitation of the Commission authority under which Transit functions. Changes or revocations may only be made under § 212 (a) of the Interstate Commerce Act, for such failures.
The Commission, on the other hand, takes the position . that there is no change in or revocation of its authorization to operate as a motor common carrier. It looks upon the certificate for the White Line route and. the order for the Frederickson Purchase as being controlled by the Interstate Commerce Act and Transit’s applications for purchase approval. The Commission understands the Declaration of Policy, § 202 (a) of the Motor Carrier Act, enacted at the inception of federal regulation of motor carriers in 1935, 49 Stat. 543, as directing it to preserve the inherent advantages of such transportation in the public interest. It finds support for this view in the National Transportation Policy set out in the 1940 amendments to the Interstate Commerce Act, 54 Stat. 899, declaring that the Act should be administered so as to recognize and preserve the inherent advantages of rail, motor and water transportation. It treats § 213 of the Motor Carrier Act of 1935 and present § 5 of the Interstate Commerce Act as authorizing mergers, consolidations and acquisitions between rail and motor carriers only within the Transportation Policy. Although § 207, providing for the issuance of certificates of convenience and necessity, has no clause requiring special justification for railroads to receive motor-carrier operating rights, such as appears in the proviso in former § 213 and present § 5, the Commission applies the rules of the National Transportation Policy so as to read the proviso into § 207 in order to preserve the inherent advantages of motor-carrier service.
The trial court accepted Transit’s argument. 90 F. Supp. at 519. The court found the undisputed fact to be that the Commission, in this modification proceeding, was not acting under § 212 of the Interstate Commerce Act, authorizing changes or revocations in operating authority, but under claimed power subsequently to impose conditions to insure that the operations would be auxiliary to, or supplemental of, rail service; that Transit’s operations were at all times auxiliary and supplemental to rail service within the Commission’s definition of that service when the acquisitions were approved, and could not be changed or revoked except under § 212; that such restrictions as were proposed would interfere with the full motor common-carrier rights of Transit’s predecessors guaranteed to them by the “grandfather clause,” § 206, and transferred to Transit by a purchase approved by the Interstate Commerce Commission.
A glance at the proposed restrictions, supra, pp. 425-426, shows the practical disadvantages to Transit. It cannot carry on a general all-motor operation on its own billings or under motor rates, joint, or local. It cannot haul through motor traffic at rail tariffs between the “key points,” Omaha, Des Moines and the Bettendorf-Rock Island-Moline center. Furthermore, Transit rests under the threat of possible future restrictions as need may be shown for their application to hold its operations, under changing conditions, to those then reasonably determined by the Commission to be needed to keep Transit’s motor service auxiliary and supplemental to its parent’s rail service. Transit alleges that the restrictions would bar it from participation in traffic on the affected routes that now produce a gross revenue of more than a million dollars a year. As damage to Transit, if the Commission order is enforced, was admitted, proof of the amount was dispensed with.
With the situation as above stated in mind, we take up the question of the validity of the Commission’s action in this case.
Statutory Authority. — The Commission has power at the time of its approval of an application to limit the authority to be granted by certificates of convenience and necessity for the operation of motor carriers, whether the certificate is issued on an original application under § 207 or after acquisition under § 213 of the Motor Carrier Act, § 5 (2) Interstate Commerce Act. Section 206 requires a certificate. Section 207 gives discretion to the Commission according to the statutory standards of convenience and necessity to authorize a part or all of the requested operations. The service múst be performed according to the “requirements, rules, and regulations of the Commission.”
The practice of the Commission from the beginning of motor-carrier regulation has been to restrict motor-carrier operations both geographically and functionally. The same was true of railroad motor-carrier affiliates. We think that at the time of issuance of the certificate, if the Commission reasonably deems the restriction useful in protecting competition, or for other statutory purposes, the Commission may require the railroad-affiliated motor carrier to perform only those services that are auxiliary and supplemental to the rail service. That the railroads. made use of motor carriage primarily in such fashion was known to the Congress before the enactment of any regulatory legislation in the field. Such a restriction is a logical method to insure the maximum development of the two transportation agencies — rails and motors — as coordinate transportation services in accordance with the Declaration of Policy, § 202 (a) of the Motor Carrier Act of 1935, 49 Stat. 543, later incorporated into the National Transportation Policy, prefixed to the Interstate Commerce Act of 1940, 54 Stat. 899. Specific statutory authority is found in the requirements of the proviso in § 213 (a) of the Motor Carrier Act of 1935 and § 5 of the Interstate Commerce Act as amended in 1940, quoted in note 3, supra. Railroad operations as motor carriers are forbidden by that acquisition section except to enable a railroad “to use service by motor vehicle to public advantage in its operations.”
A spate of cases can be cited to support the practice, some of which were specifically called to Congress’ attention prior to the enactment of the 1940 Act. With this knowledge that the Commission was granting certificates when it deemed the proposed railroad motor-carrier affiliates would operate as auxiliary to and supplemental of railroad service, Congress reenacted § 213 of the Motor Carrier Act in § 5 (2) of the Transportation Act of 1940. Such limitation was in furtherance of the National Transportation Policy, for otherwise the resources of railroads might soon make over-the-road truck competition impossible, as unregulated truck transport, it was feared, might have crippled some railroads. Motor transportation then would be an adjunct to rail transportation, and hoped-for advancements in land transportation from supervised competition between motors and rails would not materialize. The control of the bulk of rail and motor transportation would be concentrated in one type of operation. Complete rail domination was not envisaged as a way to preserve the inherent advantages of each form of transportation.
As indicated above in the text just preceding note 4, the Commission reads into § 207 the same requirement. Thus a consistent attitude toward the use of motors by railroads is maintained. It also relies on its understanding of the directions of the National Transportation Policy “to recognize and preserve the inherent advantages of each/’ rail, motor, and water; and its reliance on that Policy is further justified by the Whittington amendment stating that “all the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.” 54 Stat. 899.
But power in the Commission, before issuance of a certificate or approval of acquisition, to limit railroad motor operations so as to make them auxiliary and supplemental to rail service does not necessarily imply power to change the conditions designed to bring about the desired coordination, after issuance of the certificate. The parent railroad may have acquired or developed its motor affiliate in reliance on the conditions stated in the certificate. So far as the present case is concerned, there is a provision, quoted above, pp. 423-424, making the certificate for the White Line operation subject to further limitations, restrictions or modifications the Commission might find necessary to insure a continuance of auxiliary and supplemental operation and to avoid undue restraint on competition. It was a clause like this in Interstate Commerce Commission v. Parker, 326 U. S. 60, that occasioned the comment that “if the Commission later determines that the balance of public convenience and necessity shifts through competition or otherwise, so that injury to the public from impairment of the inherent advantages of motor transportation exceeds the advantage to the public of efficient rail transportation, the Commission may correct the tendency by restoration of the rail movement requirement or otherwise.” Id. at 71-72. As the issue in the Parker case was the right to issue certificates to railway subsidiaries when existing over-the-road motor carriage might have been utilized, no determination was made there as to whether or not such a reservation was valid. Its effect on the present issues comes from the ruling there made that the Commission had power to balance the public interests in the different methods of transportation so as to preserve the inherent advantages of each, even though its action might bring some disadvantage to one system or the other. This duty was said to have been imposed upon the Commission by the National Transportation Policy. Id. at p. 66.
When competition, public interest in the preservation of the inherent advantages of rails and motors, and use of motor service by railroads in their operations are the basis, as they are (see National Transportation Policy, 54 Stat. 899 and § 5 (2) (b)), for allowing acquisitions of motor routes by railroads, we think it consonant with that policy to reserve the right to make further limitations, restrictions or modifications to insure that the. service remain auxiliary or supplemental. Congress could not have expected the Commission to be able to determine once and for all the provisions essential to maintain the required balance. Such a reservation, of course, does not provide unfettered power in the Commission to change the certificate at will. That would violate § 212, allowing suspension, change or revocation only for the certificate holders’ willful failure to comply with the Act or lawful orders or regulations of the Commission. The reservation by its terms does not offend against the provision of § 212 that a certificate “shall remain in effect until suspended or terminated,” as § 212 provides. The Commission asserts the modifications were made in accordance with the certificate. The reservation would not authorize changes in operation or service unconnected with the plan of coordinated operation; and indeed Transit was not originally authorized to operate independently and at large. What the reservation does allow are changes to insure that the operations will continue as auxiliary or supplemental to the train service.
The consolidation section, § 5 (2), permits a railroad to purchase a motor carrier only “with the approval and authorization of the Commission.” That approval is contingent upon a finding of public advantage and lack of undue restraint on competition. Then approval is to be made “upon the terms and conditions, and with the modifications, so found to be just and reasonable.”
We note the directions of § 208 as to the certificate, requiring that it “shall specify the service to be rendered” and that “there shall, at the time of issuance and from time to time thereafter, be attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may . . . require.” We note also §§ 216 (c) and 217 (a) with their provisions allowing common carriers by motor to establish through routes and joint rates with other carriers, motor or otherwise. Sections 208, 216 (c) and 217 (a) with their general provisions do not in our opinion override the specific requirement of the National Transportation Policy that the inherent advantages of all modes of transportation be retained, or of § 5 that acquisition of motor routes by railroads shall require the above special findings and may be subject to special conditions. Section 208 does not seem to conflict with § 5 (b), and § 216 (c) is based on voluntary action. And we need not pause over the contention that limitations placed upon rail-owned motor carriers transform them from common into contract carriers under the definitions in § 203.
The language of the proviso of § 5 (2) (b), we hold, gives the Commission power to enforce the reservation in the certificate set out on pp. 423-424, supra. We turn then to the question whether the five directed modifications of the certificate, pp. 425-426, supra, fairly may be said to be of a character auxiliary to or supplemental of train service and not such a change or revocation in part as is contemplated by the procedure of § 212, for failure to comply with statutory or regulatory provisions.
Auxiliary and Supplemental. — The Interstate Commerce Act sets out only generally requirements that must be met by railroad applicants for motor-carrier certificates. In acquisition cases under § 5 (2) the certificate is not to be issued without the statutory findings discussed above that the proposed merger or consolidation will be in the “public interest” and that the railroad can use the motor service “to public advantage in its operations.”
The words “auxiliary to or supplemental of” are not taken from the Act. There is no such specific limitation for railroad operation of motor carriers. Their connotation is to be gathered from the context in which they have been employed by the Commission. The certificate, pp. 423-424, supra, used the phrase to avoid undue restraint on competition. That has been its use from the beginning. The only competition at which the limitation was directed was full railroad competition with over-the-road motor carriers. Appellees urge that the meaning of the words is limited by its application through the restrictions on the certificates at the time it was issued, December 3, 1941.
Appellees assert that under their certificate they could and did transport at either rail or truck billing and rates, with no restriction of movement along the route. The auxiliary and supplemental requirement, they argue, is adequately complied with by restricting the service to points “which are also stations on the lines of The Chicago, Rock Island and Pacific Railway Company.” The Commission, appellees contend, was functioning with this geographical concept of auxiliary and supplemental in mind when, in 1941, reservation was made in Transit’s certificate. To support this assertion, appellees call attention to the case in which the phrase “auxiliary and supplementary” was first applied to authorize motor service of railroad affiliates, Pennsylvania Truck Lines, Inc.—Barker Motor Freight, 1 M. C. C. 101 at 113, October 8, 1936. Later, in 5 M. C. C. 9, March 6, 1937, the form was changed as shown below. That this authorization permitted general motor-carrier service along the rail lines, appellee states, is shown by Pennsylvania Truck Lines, Inc., Extension—Lebanon, Ohio, 47 M. C. C. 837, decided January 6, 1948. See also, Southern Pacific Company—Valley Motor Lines, Inc., 39 M. C. C. 441, 447.
The Commission asserts that the meaning of “auxiliary and supplemental” as used in the Barker Purchase and thereafter was not geographical. This, it says, is shown by the explanation in 5 M. C. C. at p. 11, a later Barker report and order. In 1943, after the certificate here in question was issued, the Commission defined “auxiliary and supplemental” in the Texas & Pacific Motor Transport Company Application, 41 M. C. C. 721. The Commission notes that the Valley case, supra, came after Texas & Pacific, and now considers it disapproved by a subsequent denial of reconsideration of Texas & Pacific. 55 M. C. C. 567, 584-585. The question has evidently produced a difference of opinion in the Commission.
Appellees charged that the Commission had tightened its “concept of what is auxiliary to, or supplemental of, rail service.” 55 M. C. C. 567, 583. The Commission refused to accept that assumption and therefore did not discuss the necessity of proceeding under § 212 in changing or partially revoking the certificate. It held:
“We conclude that approval of the acquisition by Transit was solely for the purpose of enabling Transit to perform a service auxiliary to and supplemental of rail service; that such intent or purpose was adequately evidenced by the report of division 5 including the reservation of a right specifically to restrict if need should be found; that Transit has no cause for any complaint that it was misled to its prejudice and that our concept at the time of the original decision herein, as to what constitutes service auxiliary to or supplemental of rail service, though now described in greater detail, has not been revised to Transit’s prejudice; and that there is no element of unfairness in our exercise now of any authority which we have to restrict future operations.” 55 M. C. C. 567, 585.
It is to be noted also that the examiner’s report on the White Line Purchase in 1938 recommended “that no truck service shall be conducted at other than rail rates.” On objection by appellee this requirement was eliminated. 5 M. C. C. 451, 458; 55 M. C. C. 567, 576 ff.; 90 E. Supp. 516, 518. Furthermore, the Commission required the ap-pellee to file tariffs for truck rates and truck billing with the Commission. 90 F. Supp. 516, 518. The District Court concluded as a matter of law as follows:
“3. Prior to and at the time of the approval of the White Line transaction and the issuance in said proceeding of plaintiff’s certificate, and at the time of the approval of the acquisition of the Frederickson certificate, the term, 'auxiliary to and supplemental of train service’ did not prohibit the rendition of all-motor service directly for the shipping public at all-motor rates in addition to service at rail rates in substitution for and in lieu of the rail service of plaintiff's affiliated railroad.”
What was in the Commission’s mind as to the meaning of auxiliary and supplemental at the time it issued its certificate, we cannot be sure. At present a motor service is auxiliary and supplemental to rail service, in the Commission’s view, when the railroad-affiliated motor carrier in a subordinate capacity aids the railroad in its rail operations by enabling the railroad to give better service or operate more cheaply rather than independently competing with other motor carriers. Undoubtedly the Commission has not consistently required each rail-affiliated motor carrier to forego motor billings or tariffs. Key points to break traffic are relatively new. 28 M. C. C. 5. Rail affiliates have been permitted to leave the line of the railroad to serve communities without other transportation service. Those divergences, however, are an exercise of the discretionary and supervisory power with which Congress has endowed the Commission. It is because Congress could not deal with the multitudinous and variable situations that arise that the Commission was given authority to adjust services within the limits of the Motor Carrier Act. § 208. The Commission has continually evidenced, as indicated above, by opinion and certification its intention to have rail-owned motor carriers serve in auxiliary and supplemental capacity to the railroads.
Appellees urge that the new conditions mark a new Commission policy; that it is such a change in the certificate as was condemned in the case of water carriers by United States v. Seatrain Lines, 329 U. S. 424, 428. Without relying upon the statutory differences between Commission power over motor and water carriers, pp. 429-432, we believe that case is inapplicable to these circumstances. In Seatrain a certificate was granted to carry “commodities generally.” For the Commission then to modify this to “in railroad cars only” or “except in railroad cars” would limit the freight authorized to be carried by the certificate. Transit’s certificate, on the other hand, required service auxiliary and supplemental to rails, and the modification was not a change of policy as to that but an additional requirement to insure coordinated service. The new conditions, pp. 425-426, supra, are of a character that aids rail operation and minimizes competition with over-the-road motor carriers. Such added conditions are not changes in or revocations of a certificate in whole or in part but a carrying out of the reservation in the certificate.
The Commission has expressed its policy to limit rail affiliates to services in aid of rail transportation by the phrase, perhaps too summary, auxiliary and supplemental. Though the phrase is difficult to define precisely, its general content is set out in Texas & Pacific Motor Transport Co. Application, 41 M. C. C. 721, 726, quoted n. 19, supra. While the practice of the Commission has varied in the conditions imposed, the purpose to have rail-connected motor carriers act in coordination with train service has not. Circumstances change. Different conditions are required under different circumstances to maintain the balance between rail and motor carriage. We do not think the meaning of auxiliary and supplemental is limited to the Commission’s practice at any particular time. So long as it may fairly be said that the practice required from the motor carrier falls within the meaning the Commission has given to auxiliary and supplemental, the condition is valid.
Such restrictions hamper railroad companies in the use of their physical facilities — stations, terminals, warehouses — their personnel and their capital in the development of their transportation enterprises to encompass all or as much of motor transportation as the roads may desire. The announced transportation policy of Congress did not permit, such development. We hold that the new conditions are within the limits covered by the reservation of power to impose such further limitations as might be found necessary “to insure that the service shall be auxiliary or supplementary to the train service” of The Chicago, Rock Island and Pacific Railway Company.
Frederickson Purchase. — The statement of facts at the beginning of this opinion shows the Fredericksons possessed certificates issued under the proviso of § 206, the “grandfather clause.” Transit agreed to purchase these rights subject to the approval of the Commission. This approval was given by a report and order. The order approved the purchase of the “operating rights and property . . . subject to the terms and conditions set out in the findings in said report.” The findings complied with § 5 (2) (a) and (b) of the Transportation Act. They stated, “The Rock Island Motor Transit Company will be entitled to a certificate covering the previously-described portion of rights granted in Nos. MC-530 and MC-530 (Sub-No. 1), which rights are herein authorized to be unified with rights otherwise confirmed in The Rock Island Motor Transit Company, with duplications eliminated; . . . The words “previously-described portion of rights granted” cover the Frederickson certificates as “a motor-vehicle common carrier of general commodities over regular routes between” named points. The Frederickson certificates also covered irregular routes for certain commodities. These latter rights were not purchased. The rights purchased were over-the-road motor-carrier rights. Neither those certificates nor the report or order on the purchase application contained anything specifically limiting the operations to service auxiliary to and supplemental of the Rock Island train service. There was a finding, in the words of the proviso to § 5 (2) (b), that the purchase “will enable The Chicago, Rock Island and Pacific Railway Company ... to use service by motor vehicle to public advantage in its operations.” The transaction was consummated in January 1945, over six years after the approval of the White Line Purchase and over three years after the issue of that original certificate, here-inbefore discussed.
The basic question posed as to this purchase is similar to that in the White Line Purchase. Has the Commission power to place in the Frederickson certificates the modifications ordered for the White Line certificate? We will solve the problem by determining that the order approving the purchase has not the finality of a certificate but is rather only a tentative approach to the consummation of the purchase subject to changes in conditions and requirements. The power to issue the certificate with the White Line modified conditions follows, a priori, from what we have said in the foregoing division of this decision. This leaves unanswered the question of the power of the Commission to modify a railroad-affiliated motor carrier’s certificate so as to make its operation auxiliary to and supplemental of the rail service, when no reservation for or restriction to that effect has been placed in the order directing the issue of the certificate or the certificate itself. If any such procedure should be undertaken by the Commission, that answer should await a fully developed statement and argument by the interests affected. Our reasons for holding that the Commission may validly insert the proposed limitations in the certificate follow.
Closings of loans and purchases involve nice timing adjustments. The transportation industry is familiar with the complexities of closings involving clearances or impositions of prior and underlying mortgages and partition of obligations among syndicates of lenders or purchasers, from rail system mortgages to secure various classes of obligees in reorganizations to simple borrowings for trusteed equipment. It understands the business risks of purchase or sale ahead of final commitment by a separate entity. A request for a statement of the terms of the proposed certificate of convenience and necessity would doubtless have been complied with by the Commission. If not, the closing with Frederickson could have been made by escrow or otherwise simultaneously with the issue of the certificate.
Transit had had experience with the problems of coordination between rail and motor service. In this application it objected to a limitation on freight of immediately prior or immediately subsequent rail carriage. The limitation was not put in the report as a condition. While the report stressed the rail operating advantages of the use of trucks, it did not deal with the terms auxiliary and supplemental. If the problem of limitation of the certificate to motor service in rail operation occurred to the applicant or the Commission, precedents from the Barker case to the White Line application would have indicated an inclusion in the certificate of a limitation of auxiliary to and supplemental of rail service.
Transit maintains that the order is final; that the result is the same as though the service requirements of the order of approval were written into the operating certificate as directed by the statute. § 208. “The decisions of the Commission,” argues Transit, reflect “finality of action.” Neither of the latter two cases in the note bear in any way on the present point. In both, certificates had been issued and the Commission said, in so many words, the certificates are final. In the Smith Bros. case, it added:
“We may issue decision upon decision, and order upon order, on an application for a certificate so long as sufficient reason therefor appears and until all controversy is determined, but once a certificate, duly and regularly issued, becomes effective, our authority to terminate it is expressly marked off and limited. All the antecedent decisions and orders are essentially procedural in character, and may be set aside, modified, or vacated, but the certificate marks the end of the proceeding, just as the entry of a final judgment or decree marks the end of a court proceeding.” P. 472.
What slight bearing Seatrain has weighs on the side of the interlocutory character of the approval order. The sentence referred to reads:
“But, as the Commission has said as to motor carrier certificates, while the procedural 'orders’ antecedent to a water carrier certificate can be modified from time to time, the certificate marks the end of that proceeding.” P. 432.
As under the statute, §§ 206, 207, 208, motor carriers must have certificates authorizing their operations, we conclude that the certificate is the final act or order that validates the operation. Until its form and content are fixed by delivery to the applicant, the power to frame it in accordance with statutory directions persists.
It may be said that, as the order permitted Transit to purchase the Frederickson “operating rights,” it must have freedom to use all the seller’s motor-carrier privileges; that the absence of a reservation defeats Commission power to insert “auxiliary and supplemental” restrictions in the certificate. Since we hold the order of approval is not the final order, we reject the premise.
Other Objections. — A number of other objections to the enforcement of the orders were presented by appellees and considered by the Court. We comment briefly on those we think merit notice. “Grandfather rights” under § 206 of the Transportation Act were the basis of the White and Frederickson applications for certificates of convenience and necessity. Transit acquired the sellers’ rights to certificates. Appellees contend that as the sellers were entitled to broader operating rights than are allowed the purchaser under the modified certificate, the right to “substantial parity between future operations and prior bona fide operations” guaranteed by § 206 is infringed by limiting the motor service to that auxiliary and supplemental to rail service. A railroad purchaser does not necessarily receive all rights a certificate holder possesses. Because of the National Transportation Policy and § 5, making a railroad’s
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_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.
GREGSON & ASSOCIATES ARCHITECTS, Appellant, v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee.
No. 81-1605.
United States Court of Appeals, Third Circuit.
Argued Dec. 8, 1981.
Resubmitted March 10,1982 Before Original Panel Pursuant to Rule 12(6).
Decided April 15, 1982.
Rehearing Denied May 6, 1982.
Robert W. Hassett (argued), Gort, Has-sett & Shannon, Atlanta, Ga., Frank Padilla, Frederiksted, St. Croix, V. I., for appellant.
Richard R. Knoepfel, Asst. Atty. Gen., Dept, of Law, Charlotte Amalie, St. Thomas, V. I. (argued), William C. Murray, Jr., Christiansted, St. Croix, V. I., for appellee.
Before HUNTER, VAN DUSEN and SLOVITER, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
Oral argument in the instant case was heard by this panel on December 8, 1981. On January 5, 1982, we filed an opinion in which we dismissed the appeal for lack of appellate jurisdiction. We subsequently granted rehearing before the panel, and we now file this superseding opinion, in which we conclude that appellate jurisdiction exists. By order of this court dated February 21, 1982, the panel’s opinion filed and judgment entered on January 5, 1982 has been vacated. For the reasons stated below, we will affirm the judgment of the district court.
FACTS
Api>ellant Gregson & Associates Architects brought suit in the federal district court for the District of the Virgin Islands seeking relief on contract and quantum meruit theories for architectural services it claimed to have provided to the Government of the Virgin Islands. The district court found that no valid contract existed, and that quantum meruit recovery was unavailable because no benefit was shown to have accrued to the government. Gregson now appeals the judgment entered in favor of the defendant Government of the Virgin Islands.
JURISDICTION
The threshold issue is that of timeliness of this appeal. Fed.R.App.P. 4(a)(1) provides in part:
In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal . .. shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from ....
Judgment was entered by the district court in this case on February 26, 1981. The notice of appeal was not filed until April 6, 1981, more than thirty days after this judgment. Appellant contends, however, that the district court’s order of February 26, 1981 did not constitute a “judgment” within the meaning of Rule 4 since the court’s order did not meet the requirements of Fed.R.Civ.P. 58. Rule 58 provides in part that “[ejvery judgment shall be set forth on a separate document.”
In the instant ease, the judgment of the district court was set forth within a four-page document including a memorandum opinion by the court. The district court’s order of February 26 carried the heading “MEMORANDUM OPINION AND JUDGMENT.” On the last of the four pages of the document there appeared a separate heading, “JUDGMENT,” under which the judgment of the court was stated. The document was entered on the court’s docket. Furthermore, appellant admitted at oral argument that it had understood the February 26 order as containing the judgment of the district court. Indeed, the very notice of appeal at issue here, filed by appellant, provides:
NOTICE IS HEREBY GIVEN that GREGSON & ASSOCIATES ARCHITECTS, Plaintiff/Intervenor-Appellant, hereby appeals to the Third Circuit Court of Appeals from the Judgment entered in this court on the 26th day of February, 1981.
In United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562,36 L.Ed.2d 202 (1973), the Supreme Court discussed the purpose of the separate document requirement:
The reason for the “separate document” provision is clear from the notes of the advisory committee of the 1963 amendment. [Citation omitted.] Prior to 1963, there was considerable uncertainty over what actions of the District Court would constitute an entry of judgment, and occasional grief to litigants as a result of this uncertainty.
Id. at 220, 93 S.Ct. at 1564. The provision, the Court held, was a “ ‘mechanical change’ that must be mechanically applied to avoid new uncertainties as to the date on which a judgment is entered.” Id. at 222, 93 S.Ct. at 1565.
Five years later, in Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), the Court reiterated the purpose behind the rule:
The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal ... begins to run.... The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely.
Id. at 384-85, 98 S.Ct. at 1119-20. While ostensibly adhering to the Indrelunas requirement of mechanical application of the separate document rule, the Bankers Trust court examined the facts of the case before it and ruled that appellate jurisdiction existed even though no separate document had been filed. The Court noted that “the District Court clearly evidenced its intent that the opinion and order from which an appeal was taken would represent the final decision in the case. A judgment ... was recorded in the clerk’s docket.” 435 U.S. at 387, 98 S.Ct. at 1121. Furthermore, the Court stated, the appellee obviously did not object to the taking of an appeal in the absence of a separate judgment. Under the circumstances, the Court deemed the parties to have waived the separate document requirement. Id. at 387-88, 98 S.Ct. at 1121-22.
Similarly, in International Brotherhood of Teamsters Local 249 v. Western Pennsylvania Motor Carriers Association, 660 F.2d 76 (3d Cir. 1981), we refused to require literal compliance with the separate document requirement of Rule 58. Rather, “[o]ur review of the record satisfie[d] us that the district court intended its ... order to serve as its judgment in the instant case.” 660 F.2d at 80. Thus, in Teamsters Local 249, as in Bankers Trust, the purposes of the separate document rule would not be served by its application.
The separate document requirement was clearly intended to rescue an appellant who fails to recognize the final judgment of the district court as a final judgment. But appellant does not claim that he was uncertain about whether the February 26 order was the district court’s final judgment. To the contrary, appellant asserts that he “incorrectly” believed that the order was the final judgment. Appellant was not incorrect. The document was in fact the final judgment; it was docketed and treated as such by the court and by both parties. Under these particular facts, it would seem that no purpose of the separate document rule would be served by allowing appellant more than the thirty days he thought he had.
Nevertheless, we are constrained by the Supreme Court’s decision in Indrelunas to apply the separate document requirement in this case. The court of appeals in Indrelunas had engaged in an analysis of the purpose of the requirement; it then examined the facts surrounding the Government’s filing of the notice of appeal in that case:
This Notice, filed some eight months pri- or to the February motion for entry of judgment, indicates to this court that the government believed the case to be ripe for appeal following the District Court’s directive that entry of judgment be made and there be judgment on the verdicts as so entered. In this case there was nothing left to be done by the court and everyone involved so understood the judgment to be final. It would, therefore, be somewhat absurd to hold that although all the parties involved understood the case to be at an end, the time limits for appeal would not begin to run until some undetermined point in the future when a formal document was included in the file. In our opinion, the crucial element is that the parties understood the original decision to be final. This understanding, together with the entry of judgment on the docket, considered in context with the foregoing interpretation of the present Rule 58, Fed.R.Civ.P., lead us to the conclusion that the government’s appeal in this case is untimely. A holding to the contrary would, in our opinion, allow undue advantage to be taken of a revision in Rule 58 which was intended to clarify and speed-up the entry of judgment, not provide an avenue for prolonging litigation. For example, if we were to find that such a formal document is an absolute necessity in every case, there would undoubtedly be cases that could remain appealable ad infinitum, notwithstanding the fact that all parties involved believed the case to be at an end. We, therefore, dismiss the defendant’s appeal.
Foiles v. United States, 465 F.2d 163, 168-69 (7th Cir. 1972), rev'd sub nom. United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (footnote omitted). The reasoning of the Seventh Circuit applies with equal force to the facts in the instant case; however, it was exactly this kind of “case-by-case tailoring” of the separate document requirement which was expressly rejected by the Supreme Court when it reversed the court of appeals in Indrelunas.
Thus, because the final judgment of the district court was not entered on a separate document, the thirty-day period prescribed by Fed.R.App.P. 4(a)(1) never began to run. Appellant’s notice of appeal cannot be untimely, and we conclude that appellate jurisdiction exists in this case.
APPELLANT’S CLAIMS
The district court, sitting without a jury, found that no valid contract existed between appellant and the Government of the Virgin Islands, and, because no benefit was shown to have accrued to the government, that quantum meruit recovery was unavailable. Our review of the record supports the district court’s conclusions.
Therefore, the judgment of the district court will be affirmed.
. Our review of the relevant case law convinces us that this order does not satisfy the Rule 58 requirement that “[e]very judgment shall be set forth on a separate document.” See, e.g., Calmaquip Engineering West Hemisphere Corp. v. West Coast Carriers Ltd, 650 F.2d 633, 635-36 (5th Cir. 1981); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 689 (4th Cir. 1978).
. The docket entry reads: “Memorandum opinion and judgment entered by Clarence C. Newcomer, sitting by designation granting judgment on behalf of the defendant Government of the Virgin Islands, filed.” The docket entry is dated February 26, 1981.
. Appellant’s Petition for Rehearing at 8.
. 411 U.S. at 221, 93 S.Ct. at 1564.
. As discussed supra, the lack of a separate document does not preclude us from recognizing the existence of an appealable final judgment. See, e.g., Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978); International Brotherhood of Teamsters Local 249 v. Western Pennsylvania Motor Carriers Ass’n, 660 F.2d 76 (3d Cir. 1981).
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_casetyp2_geniss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is civil rights - other civil rights - other civil rights. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Reuben SETLIFF, M.D., Plaintiff/Appellant, v. MEMORIAL HOSPITAL OF SHERIDAN COUNTY, John Owen Yale, Barry Wohl, W.G. Saunders, and John Does 1 through 10, Defendants/Appellees, and D. Scott Nickerson and William Williams, Defendants.
No. 85-2819.
United States Court of Appeals, Tenth Circuit.
July 1, 1988.
Patrick E. Hacker, Cheyenne, Wyo., for plaintiff/appellant Reuben Setliff, M.D.
Peter K. Michael, Lathrop & Uchner, Cheyenne, Wyo., Carl L. Lathrop, Lathrop & Uchner, Cheyenne, Wyo., with him on the briefs, for defendants/appellees Memorial Hosp. of Sheridan County, Yale, Wohl, and Saunders.
James L. Appelgate, Thomas G. Gorman and Glenn Parker, Hirst & Appelgate, Cheyenne, Wyo. with him on the briefs, for defendant/appellee Wohl.
W. Thomas Sullins, II, Brown & Drew, Casper, Wyo., on the briefs, for Saunders, for defendants/appellees Memorial Hosp. of Sheridan County, Yale, Wohl, and Saunders.
Before MOORE and ANDERSON, Circuit Judges, and PHILLIPS, District Judge.
Hon. Layn R. Phillips, U.S. District Court, Western District of Oklahoma, sitting by designation.
STEPHEN H. ANDERSON, Circuit Judge.
This case arises out of an investigation conducted by the executive committee of defendant Memorial Hospital of Sheridan County (“Sheridan Hospital”) with respect to the medical practice of plaintiff/appellant Dr. Reuben Setliff. Setliff filed suit against Sheridan Hospital, a government institution, the Hospital’s administrator, certain individual doctors and John Does 1 through 10, alleging that the investigation (his privileges were not terminated) violated his First and Fourteenth Amendment rights because it was in retaliation for statements he had made, was punishment for his personality and philosophy, and because it effectively denied him, without due process, his property right in his hospital privileges and his liberty interest in the practice of his profession. The United States District Court for the District of Wyoming granted defendants’ motions for summary judgment and dismissed Setliff’s pendent state law claims alleging negligence, malicious prosecution, abuse of process and defamation. Setliff appeals and we affirm the grant of summary judgment to defendants and the dismissal of his claims.
BACKGROUND
Setliff is an otolaryngologist (a doctor specializing in ear, nose and throat problems) with staff privileges at Sheridan Hospital. Sheridan Hospital is a governmental entity created and controlled by Sheridan County.
The investigation of Setliff’s medical practice, which is the genesis of this lawsuit, was prompted by a complaint from Dr. D. Scott Nickerson at the regularly scheduled meeting on May 17, 1983 of the executive committee of Sheridan Hospital (“1983 Executive Committee”). Nicker-son’s complaint concerned Setliff’s treatment of his (Nickerson's) son. The 1983 Executive Committee, consisting of seven doctors, including defendant Dr. W.G. Saunders, and chaired by Dr. David Townes, “unanimously elected to take specific actions to review ... [Setliff’s] medical practice within this hospital,” Ex. 1 to Townes Affidavit, R. Vol. I, Doc. 54, because of the Nickerson complaint and because other members of the Executive Committee raised similar complaints about Setliff. The 1983 Executive Committee selected June 1, 1983 for a special meeting to determine how to proceed with the investigation and Townes wrote a letter to Set-liff inviting him to attend the June 1 meeting. Setliff responded with a letter dated June 1, in which he stated, in part:
“It should come as no surprise that such a review, whether fruitful or not, carries inherent risk of damaging me professionally and/or personally.
“I have been advised and my position is that I cannot and should not attend a meeting simply to be informed that major decisions have been made based on unknown specifics from unknown sources and concerning which I am allowed neither information nor courtesy of response.
“I will, however, be most pleased to attend any meeting called for the purpose of discussing any and all aspects of my hospital practice provided that I have the courtesy of receiving specific information as to what will be discussed and that I receive assurance that I will be allowed an informed response.”
Townes Affidavit, R. Vol. I, Doc. 54 Ex. 2. By letter dated June 20, 1983, the 1983 Executive Committee informed Setliff of the following resolution passed by the Committee at the June 1 meeting:
“In regard to Dr. Reuben Setliff, based on an accumulated series of questions, complaints, and disruptions over the eight years of Dr. Setliff’s appointment to this hospital staff, the Executive Committee deems it appropriate to exam [sic] Dr. Setliff’s hospital practice.
“That examination shall include, but not be limited to:
“1. An examination of appropriateness of medical and surgical care, with the assistance of qualified external reviewers.
“2. An examination of Dr. Setliff’s compliance with the Hospital Bylaws, Rules and Regulations (which he has agreed to abide by) to be conducted by a local committee.”
Townes Affidavit, R. Vol. I, Doc. 54 Ex. 3. The letter invited Setliff to meet with the Committee. Townes’ Affidavit and deposition state that the Committee invited Setliff on at least three occasions to appear before the Committee to discuss the investigation and he declined to appear. Townes Affidavit, R. Vol. I, Doc. 54; Deposition of Townes, R. Vol. II, Doc. 75 Ex. 2. Setliff explains his failure to appear by alleging that he “volunteered to attend any meeting ‘called for the purpose of discussing any and all aspects of my hospital practice providing that I have the courtesy of receiving assurances that I will be allowed an informed response.’ ” Complaint II12, R. Vol. I, Doc. 1.
The Executive Committee conducted its investigation from early September 1983 until November 1983. It never met with Setliff. It also never investigated the specific complaints made by Dickerson or other Committee members, which prompted the investigation of Setliff. The Committee then determined that the “qualified external reviewers” specified in the June 1 resolution should be otolaryngologists, and it informed the governing body of Sheridan Hospital, the Board of Trustees, of the existence of the investigation and obtained authorization from the Board to pay for the services of three otolaryngologists. Apparently because of scheduling conflicts, the three independent reviewers were unable to set a meeting to review Setliff’s charts until April 28, 1984. That meeting was canceled because of a major snowstorm. One of the outside reviewers, who was unable to reschedule a meeting, then had to be replaced by Dr. Raymond Woods, a professor at the University of Colorado Medical Center. The reviewers finally met, interviewed Setliff and reviewed medical charts concerning three surgical procedures performed by Setliff — suspension laryngoscopy, microantrostomy, and tym-panoplasty. They issued their report on July 10, 1984.
The reviewers identified a number of problems with Setliff s practice. With regard to suspension laryngoscopy, the reviewers found no fault with Setliff s actual performance of the procedure. They did, however, state that, in general, the time between performance of the surgery and dictation of the “operative note” was too long. The reviewers also found:
“Review of the histories and physicians [sic] on these patients show that the description of the Present Illness was sometimes very brief and inadequate. The history and physical examination reports ... were very stereotyped_ Postoperative notes and progress notes were poor, very difficult to read, and very sketchy. On many patients there were no postoperative notes written at all_ On [two] patients, [with carcinoma of the larynx] the description of the tumor was not felt to be adequate. These patients had major surgery on the larynx and there were very sketchy progress notes in the postoperative period on these patients. There was no mention in the chart of any Staging on these patients done preoperatively.”
Ex. 4 to Townes Affidavit, R. Vol. I, Doc. 54. With regard to Setliff's performance of microantrostomy, the reviewers expressed concern over the number of times Setliff performed this procedure on young children. The reviewers also questioned Setliff’s performance of multiple procedures on the same patient, stating that it would be “unusual” to find a patient requiring the performance of several procedures at one time. The reviewers found no significant problem with Setliff’s performance of the third procedure under scrutiny, tympanoplasty.
Finally, from a “general review of other charts, as well as the hospital record on Dr. Setliff” the reviewers expressed the following concerns:
“There were many many complaints of late record completion, late dictation or delayed dictation of surgeries. On many of the charts there appeared to be inadequate progress notes in the postoperative period or no progress notes at all. The histories and physicals were very brief and there appeared to be a great deal of similarity between all the patients. There were complaints of the patient not being seen in the hospital before surgery, and the patient not being seen in the hospital after surgery. There were reports of abuse of hospital personnel, particularly in surgery. There were complaints of Dr. Setliff being late to surgery many times by an hour or more, or that he would leave the surgical suite for long periods of time and come back without having told the operating room personnel where he was going or giving an estimate of the time of his return. “These things are not consistent with the best medical care of patients.”
Id. One of the reviewers sent to Townes a supplemental letter stating in part:
“I am unable to find anyone in the Denver community who performs any operation remotely resembling the microan-troantrostomy procedure which Dr. Set-liff is performing on children. The volume of procedures, at least the number which I quickly reviewed, of Dr. Setliffs’ [sic] approximately 30 such operations in one year’s time, far exceeds the total number of sinus procedures performed either at the Children’s Hospital in Denver and my own experience which includes patients from both the University Hospital in Denver and the National Jewish Hospital for which I am the sole Otolaryngology consultant. The incidence of proven sinus disease amongst our patients at the National Jewish Hospital is without a doubt the largest of any medical center in the Denver area. There is absolutely no question in my mind that the performance of this procedure based upon Rhinorrhea in children is unwarranted and unsupported by any of the records of Dr. Setliffs’ [sic] which I reviewed.
“Secondly, I am unable to find any support amongst those who do primarily Otologic surgery for immediate or shor-tinterim tympanoplasty in the repair of acute traumatic perforations of the tym-panic membrane.... The practice of performing a formal tympanoplasty of any type in the acute management of these injuries would strongly suggest an interest in performing a more complicated and consequently far more remunerative procedure than is justified by the nature of the injury.”
Ex. 5 to Townes Affidavit, R. Vol. I, Doc. 54. (emphasis added).
Meanwhile, the 1983 Executive Committee had been superseded at the beginning of 1984 by a new Executive Committee (“1984 Executive Committee”). The members of the 1983 Executive Committee continued the investigation of Setliff as an “ad hoc” committee and ultimately transmitted a report to the 1984 Executive Committee on October 4, 1984. It made no specific recommendations. The 1984 Committee finalized its written recommendations on December 11, 1984 and transmitted them to the Board of Trustees of Sheridan Hospital and Setliff on January 3, 1985. The 1984 Committee recommended that a special committee review Setliff’s records every three months and if, after a year, the committee was satisfied that Setliff’s record-keeping and patient care were satisfactory, the committee would disband. The 1984 Committee also recommended that Setliff obtain second opinions before performing tympanoplasties, microantrostomies and multiple procedures.
The Board of Trustees interviewed Set-liff on January 29, 1985 to enable him to respond to the 1984 Committee’s recommendations. Setliff requested and was granted a “contested hearing” before the Board. The contested hearing was held from July 16 to July 20, 1985. On September 23, 1985 the Board of Trustees issued its decision. It rejected the 1984 Committee’s recommendations for a special review committee and second opinions prior to tympanoplasties, but it did require Setliff to obtain a second opinion prior to performing microantrostomies on children under twelve.
During the time that the investigation was underway, Setliff had an application pending for medical privileges at Campbell County Memorial Hospital in Gillette, Wyoming (“Campbell Hospital”). He had initially filed the application in October 1982. As a part of his application to Campbell Hospital, Setliff executed a release from liability for any person furnishing information in connection with Setliff s application. R. Vol. I, Doc. 54.
In the fall of 1982, after receiving Set-liff s application, Dr. Timothy Hobson, a doctor affiliated with Campbell Hospital, asked defendants Saunders and Wohl to comment on Setliff s qualifications. Saunders’ affidavit in support of his motion for summary judgment concedes that Saunders said Setliff “behaved like a sociopath,” and that his statements to Hobson occurred no later than November 12,1982. Affidavit of Saunders, R. Vol. I, Doc. 54. Wohl’s affidavit in support of his motion for summary judgment simply states that he expressed his “views to Dr. Hobson concerning Dr. Setliff s abilities as a physician” during the fall of 1982. Affidavit of Wohl, R. Vol. I, Doc. 54. Setliff’s complaint alleged that Wohl, “with malice in bad faith” made various “false and unfounded assertions.” Complaint 1119, R. Vol. I, Doc. I.
Pursuant to a request from Campbell Hospital, Setliff transferred his Sheridan Hospital personnel file to Campbell Hospital. Setliff alleges that defendant Jack Yale, the administrator of Sheridan Hospital:
“Without the knowledge of the Plaintiff, ... included within the personnel file letters of complaint and negative materials which Plaintiff had never seen and which would normally not be included within those files. The Plaintiff was never afforded any notice or opportunity to respond to the information contained within the file, but rather it was included within the file and specifically numbered by Defendant in such a fashion as to insure that all of the negative information would be transmitted. Defendant Jack Yale in responding to inquiry from Campbell County Memorial Hospital wrote a letter specifically including negative information and excluding any positive comment or information pertaining to Plaintiff.”
Id. 1124.
Setliff s request for privileges at Campbell Hospital was denied by the Campbell Hospital Credentials Committee, as well as, on appeal, by the Hospital’s Judicial Review Committee. In so denying Setliff’s application, the Judicial Review Committee stated:
“Any doctor applying for medical staff privileges whether courtesy privileges or regular staff privileges has the burden of proving his professional competence. The uncontroverted evidence before this committee is that there is currently ongoing at the Sheridan Memorial Hospital a review process of Dr. Setliff s entire practice initiated by the executive committee of the medical staff of Memorial Hospital of Sheridan County. This committee recognizes that it is an unusual procedure for the medical staff executive committee of any hospital to review all medical cases of a physician, and this committee can only infer from the fact that such an inquiry is undergoing, the executive committee of Memorial Hospital of Sheridan County has reason to suspect the medical competency of the physician in question. It is the opinion of this committee that it is not this committee’s burden to demonstrate what may or may not be going on at the Memorial Hospital in Sheridan County concerning this review process, but rather it is Dr. Setliff’s burden to explain this staff review in the process of seeking to obtain courtesy privileges at Campbell County Memorial Hospital.”
Id. 1125 (emphasis added). Ultimately, Set-liff was granted limited privileges at Campbell Hospital.
Setliff s complaint in this case, filed on December 21, 1984, alleged four causes of action. Setliff s first claim, pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment, alleged that Sheridan Hospital, Saunders and Yale, acting under color of state law, deprived him without due process of his “property right in his hospital privileges,” and of his “liberty right in his ability to practice his profession and in his good name, reputation and professional standing.” Id. ¶ 34. He further alleged that his “actions in advocating changes and improvements within Memorial Hospital of Sheridan County including disagreement over the quality of medical care and requests for changes in order to provide proper medical care constituted speech protected by the First and Fourteenth Amendment.” Id. U 35. Setliff also asserted “a constitutionally protected right to his own personality and philosophy” and that the investigation of his medical practice was “done in retaliation for Plaintiffs exercise of free speech and as punishment for his personality and philosophy.” Id. 1Í1Í 36, 37. Setliff sought $8,000,000 in damages for “loss of income, and damage to present and future professional reputation and emotional suffering,” $750,000 in punitive damages, and attorneys fees and costs.
His second, third and fourth claims invoked the district court’s “ancillary and pendant jurisdiction.” His second claim, against Sheridan Hospital, Yale and Saunders, alleged negligence in the conduct of the investigation and “the perversion of the peer review system into a mechanism for the harassment of Plaintiff.” Id. If 47. Setliff's third claim alleged that “[d]efen-dants Saunders and Wohl acting in cooperation with Defendant Does 1-5 have deliberately and willfully abused and perverted the peer review system created by the bylaws of Sheridan County Memorial Hospital.” Id. 1Í 51. His fourth claim, against Saunders, Wohl, Williams, Nickerson, and John Does 6-10, alleged that each defendant had made “false and defamatory statements” concerning Setliff’s professional ability. Under his second, third and fourth claims he sought damages for “loss of present and future earnings, damages to professional reputation and emotional suffering” in the amount of $8,000,000 for each claim, and he sought punitive damages of $750,000 under his third and fourth claims.
After several months of discovery, defendants Wohl, Saunders, Yale and Sheridan Hospital filed a motion for summary judgment, with affidavits from Yale, Saunders, Wohl, Townes, and Michael Davis, the attorney who represented the 1984 Executive Committee in the hearing before the Board of Trustees, as well as copies of relevant documents and letters. Wohl submitted a supplemental memorandum in support of the motion. Setliff filed an opposing memorandum with his own affidavits and copies of the proceedings before the Judicial Review Committee of Campbell Hospital, Townes’ deposition, the Sheridan Hospital By-Laws, Rules and Regulations, the Campbell Hospital decision regarding Setliff s application for staff privileges, and excerpts from the deposition of one of the outside reviewers.
The district court granted the motion for summary judgment on Setliff s first claim on the ground that Setliff failed to establish a “recognizable property or liberty interest” R. Vol. II, Doc. 80 at 4. The court did not specifically mention Setliff s First Amendment claim. The district court dismissed without prejudice his second and third claims, alleging negligence and abuse of process under state law, on the basis that it lacked jurisdiction over such pendent state law claims once the federal claims had been dismissed. It similarly dismissed without prejudice Setliff s state law defamation claims against Williams and Nickerson because they were not named in the first three claims and the court “may not exercise pendent jurisdiction over parties against whom the Court has no independent basis of federal jurisdiction.” Id. at 5. Finally, the district court dismissed with prejudice the defamation claims against Saunders and Wohl on the ground that the Wyoming one year statute of limitations applicable to actions for libel or slander barred Setliff s action brought more than one year after Setliff learned of the allegedly defamatory statements.
On appeal, Setliff contends that the district court erred in granting summary judgment on his claim that defendants’ actions were in retaliation for his exercise of his First Amendment right to free speech and as “punishment for his personality and philosophy.” Brief of Plaintiff/Appellant at 12. He asserts that the court’s written order failed to address his retaliation claim and made no findings thereon, that a retaliation claim involves factual questions as to defendants’ state of mind, and that defendants’ affidavits failed to rebut his allegations of retaliation. For all those reasons, Setliff asserts that summary judgment was inappropriate on his First Amendment retaliation claim.
With regard to his due process claim, Setliff argues that “[s]ince the hospital recognizes the necessity for cause to limit privileges and the right to a hearing, Plaintiff clearly has a property right requiring due process,” id. at 16, and that, because he was never given notice of the exact complaints against him or granted a hearing while the 1983 Executive Committee was conducting its investigation, and because the investigating committee, as well as the Board of Trustees, was biased, he was denied due process. Finally, relying upon Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), he argues that, in addition to damaging his reputation, the Hospital’s investigation effectively denied him the ability to practice his profession, thereby denying him a protected liberty interest without due process.
Setliff further argues that the district court erred in finding his state law defamation claims barred by the one year statute of limitations. He alleges that “the communications to the committee of Campbell County Hospital occured [sic] under circumstances where the Defendants knew that the comments would become a permanent part of Setliff’s Campbell County personnel file and would be repeatedly republished.” Brief of Plaintiff/Appellant at 23. Such republication, he argues, tolls the statute of limitations.
• DISCUSSION
Our standard of review of a grant of summary judgment is well settled.
“When reviewing a grant of summary judgment, this court must examine the record to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied. In determining whether any genuine issues of material fact exist, the record must be construed liberally in favor of the party opposing the summary judgment. However, conclusory allegations by the party opposing summary judgment are not sufficient to establish an issue of fact and defeat the motion. Finally, we may affirm the granting of summary judgment if any proper ground exists to support the district court’s ruling.”
McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir.1988) (citations omitted); see also Dickeson v. Quarberg, 844 F.2d 1435, 1437 n. 1 (10th Cir.1988). We address first Set-liff’s claim that the district court improperly granted summary judgment on his First Amendment claim.
A. First Amendment Claim.
Setliff alleges that the Hospital’s investigation of his medical practice and ultimate decision requiring him to obtain second opinions in certain situations amounted to retaliation for speech protected under the First Amendment. As indicated, however, to avoid summary judgment Setliff must make more than conclu-sory allegations regarding his First Amendment claim. The Supreme Court has recently indicated that:
“a party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.’ ...
“... If the evidence is merely color-able, or is not significantly probative, summary judgment may be granted.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (quoting First National Bank v. Arizona Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)) (citations omitted). Even viewed in a light most favorable to Setliff, the pleadings, affidavits and supporting materials do not provide “sufficient evidence favoring the nonmoving party [Setliff] for a jury to return a verdict for that party,” id. at 249, 106 S.Ct. at 2511, on Setliff’s retaliation claim. The record reveals nothing more than conclusory allegations; we therefore hold that summary judgment was proper on Setliff’s First Amendment claim.
Setliff’s complaint states as follows:
“Plaintiff is an outspoken individualist who has candidly expressed his opinions regarding the need for changes and improvements within Memorial Hospital of Sheridan County, as well as his strong concerns regarding serious issues of patient treatment. Plaintiff has advocated making improvements and changes in the nature of surgical care, including his strong insistence that hospital medical committees conduct a proper investigation into medical treatment received by a minor child whose condition became worse and died shortly after being transferred to another hospital.”
Complaint ¶ 7, R. Yol. I, Doc. 1. His memorandum in opposition to defendants’ motion for summary judgment alleged that “the entire proceeding was initiated, conducted and concluded with an intent to retaliate against the plaintiff for exercise of rights protected by the First Amendment, particularly the right to speech and to his individual personality and philosophy.” R. Vol. II, Doc. 76 at 6-7. He further stated that “Defendants have not in any Memorandum, Brief or Affidavit submitted addressed Plaintiff’s allegation of retaliation for the exercise of First Amendment rights. There is absolutely no basis whatsoever for the Court to grant a Motion for Summary Judgment on that theory.” Id. at 8-9. Setliff’s affidavits do not specifically address the retaliation claim, although his supplementary affidavit concedes that “[t]he charge made by Dr. Nick-erson ... was the cause of the investigation leading to a reduction in my staff privileges.” Supplementary Affidavit of Reuben C. Setliff, R. Vol. II, Doc. 75. Saunder’s affidavit in support of defendants’ motion for summary judgment states that “[tjhe investigation was not undertaken as a method of retaliation against Dr. Setliff for the exercise of his free speech. The Committee was interested not in Setliff’s speech patterns, but rather in his hospital practice.” Saunders’ Affidavit, R. Vol. I, Doc. 54. No other materials in the record specifically bear upon the First Amendment issue.
This court has stated that:
“[T]he plaintiff in a retaliation case .... must show that (1) the speech was constitutionally protected, i.e., the speech related to matters of public concern and the speaker’s rights outweighed the state’s right to control its employees, and (2) the speech was a substantial or the motivating factor in the state’s detrimental action.”
Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir.1986) (emphasis in original), cert. denied, — U.S. -, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987); see also Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Saye v. St. Vrain Valley School District RE-1J, 785 F.2d 862, 865-66 (10th Cir.1986). Even assuming, without deciding, that the investigation of Set-liff amounted to prohibited “detrimental action” and that Setliff’s speech was constitutionally protected, we hold that summary judgment was nonetheless appropriate.
Setliff s complaint merely alleges that he had urged changes and improvements at the hospital, voiced concerns relating to patient treatment, and sought an investigation of a child’s death. Saunder’s affidavit denied retaliation and Setliff presents no evidence or specific facts rebutting that affidavit. Indeed, as indicated, his affidavits in opposition to defendants’ motion for summary judgment do not address the retaliation issue at all and his memorandum in opposition to defendants’ motion for summary judgment makes the same general allegation of retaliation contained in his complaint. The deposition of Townes, the chairman of the 1983 Committee, which Setliff attached to his affidavit, itself makes clear that the decision to investigate Setliff was based on complaints about his practice of medicine, not on anything he said. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); see also McKibben v. Chubb, 840 F.2d 1525, 1532 (10th Cir.1988) (“When the party moving for summary judgment makes a showing that there is no evidence to establish an essential element of the claim, the burden then shifts to the party opposing the motion. That party must respond with evidence or citations to the record that dispute the motion for summary judgment.”). Set-liff would bear the burden at trial of proving that his speech was the substantial or motivating factor in the decision to investigate him. See Saye v. St. Vrain Valley School District RE-1J, 785 F.2d 862, 867 (10th Cir.1986). His pleadings, and his affidavits and other materials submitted in opposition to defendants’ motion for summary judgment fail to identify any evidence suggesting a causal link between Setliff’s speech and the investigation, nor does he explain why he is unable to do so. We require more than pure speculation to defeat a motion for summary judgment. Summary judgment was accordingly properly granted to defendants on Setliff’s First Amendment claim. It was properly granted on Setliff s allegation of retaliation or “punishment” for his “personality and philosophy” for the same reason.
B. Due Process Claim.
Setliff alleges that he was deprived of due process because he was never notified of the specific complaints against him during the investigation, because the investigating committee and the Board of Trustees was biased, and because there was an “unreasonable delay in granting and proceeding with a hearing.” Brief of Plaintiff/Appellant at 15. Underlying this assertion is the claim that Setliff had a property or liberty interest entitled to due process. His argument with regard to his property right is as follows: “Since the hospital recognizes the necessity for cause to limit privileges and the right to a hearing, Plaintiff clearly has a property right requiring due process.” Id. at 16. Set-liff’s argument regarding his liberty interest is that he has such an interest in the practice of his profession and that the investigation effectively destroyed his ability to pursue his profession, thereby depriving him of a liberty interest without due process.
The district court granted defendants’ motion for summary judgment, holding that Setliff failed to demonstrate the existence of a recognized property or liberty interest. We agree.
To invoke the protections of procedural due process, a plaintiff must establish the existence of a recognized property or liberty interest. Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); Dickeson v. Quarberg, 844 F.2d 1435 (10th Cir.1988). “[T]he range of interests protected by procedural due process is not infinite.” Roth, 408 U.S. at 570, 92 S.Ct. at 2705. Courts must look to “existing rules or understandings that stem from an independent source such as state law” to define the dimensions of protected property interests. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985) (quoting Roth, 408 U.S. at 577, 92 S.Ct. at 2709); Dickeson, 844 F.2d at 1437; Koerpel v. Heckler, 797 F.2d 858, 864 (10th Cir.1986). “The hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ ” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982). Setliff argues that since the Hospital’s By-laws, Rules and Regulations recognize “the necessity for cause to limit privileges and the right to a hearing,” he has the requisite property interest. Defendants concede that Setliff’s medical staff privileges are a property interest subject to due process protections. Setliff was provided with a hearing conducted in accordance with the Wyoming Administrative Procedure Act prior to the decision to require him to get a second opinion before performing was not provided with a hearing during the investigation, although he was offered the opportunity several times to appear before the investigating committee, but during the investigation his privileges were not restricted in any way. Accordingly, he suffered no unconstitutional deprivation of his medical privileges simply because he was not granted a hearing during the investigation. See Goulding v. Feinglass, 811 F.2d 1099, 1102 (7th Cir.) (“The Supreme Court in Paul v. Davis makes clear that to find the deprivation of a property interest ... [plaintiff’s] legal rights or status must have been removed or significantly altered.”), cert. denied, — U.S. -, 107 S.Ct. 3215, 96 L.Ed.2d 701 (1987); Steuer v. Nat. Med. Enterprises, 672 F.Supp. 1489, 1525 (D.S.C.1987) (“[W]ithout ever considering whether plaintiff’s medical staff privileges would constitute a protected right, it is clear that plaintiffs cannot prevail because they still enjoy the very rights on which the Section 1983 claim is based.”)
In sum, while Setliff may have a property interest in his medical privileges, the undisputed facts establish that those privileges were in no way restricted or modified until after he had received a hearing before the Board of Trustees. Thus, he was not
Question: What is the second general issue in the case, other than civil rights - other civil rights - other civil rights?
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_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
ALBATROSS TANKER CORPORATION, as Owner of Steamship ERNA ELIZABETH, Libelant-Appellee, v. SS. AMOCO DELAWARE and American Oil Company, Respondents-Appellants. AMERICAN OIL COMPANY, as Owner of the SS. AMOCO DELAWARE, Libelant-Appellant, v. SS. ERNA ELIZABETH, her engines, etc., and Albatross Tanker Corporation, Respondents-Appellees.
Nos. 508, 509, Dockets 33035, 33036.
United States Court of Appeals Second Circuit.
By Motion Submitted Sept. 27, 1969.
Decided Nov. 3, 1969.
See also 2 Cir., 415 F.2d 692.
Burlingham, Underwood, Wright, White & Lord, New York City. (Eugene Underwood, Kenneth H. Yolk, and Frank L. Wiswall, Jr., New York City), for appellees for the motion.
Before MOORE, FRIENDLY, and HAYS, Circuit Judges.
PER CURIAM:
Appellees move for an order allowing their printing costs in full as taxable under Federal Rules of Appellate Procedure, rule 39 (c). The Clerk of the Court, believing that 28 U.S.C. § 1923(c) still applies, would limit the costs for the printing of the brief as provided in said section to $75 whereas the amount actually paid for printing of appellees’ brief is $889.09. Under the new Federal Rules of Appellate Procedure, effective July 1, 1968, the subject of costs is covered by Rule 39. Rule 39(c) provides as taxable cost:
“The cost of printing or otherwise producing necessary copies of briefs, appendices, or copies of records *
The Enabling Act (28 U.S.C. § 2072) which empowered the Supreme Court to promulgate the new Rules provides:
“All laws in conflict with such rules shall be of no further force and effect after such rules [take] effect.”
It would thus appear that 28 U.S.C. § 1923(c) has been superseded by Rule 39(c). Therefore, Section 1923 no longer applies and we must look to Rule 39(c) for the awarding of costs.
Appellees’ bill of costs is allowed in full as authorized by Rule 39.
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_circuit
|
D
|
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.
Susan P. DALTON, and Bob Warren, Appellants, v. UNITED STATES of America, Appellee.
No. 85-2225.
United States Court of Appeals, Fourth Circuit.
Argued July 16, 1986.
Decided Sept. 17, 1986.
Rehearing and Rehearing En Banc Denied Oct. 30,1986.
Bob Warren and C. Frank Goldsmith, Jr., Marion, N.C., for appellants.
James H. Love (Roger M. Olsen and Glenn L. Archer, Jr., Asst. Attys. Gen., Michael L. Paup, Chief Appellate Section, Tax Div., Gary R. Allen, Tax Div. Washington, D.C., on brief), for appellee.
Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
BUTZNER, Senior Circuit Judge.
Susan P. Dalton appeals from a summary judgment entered for the United States denying her a refund of a $500 penalty imposed pursuant to 26 U.S.C. § 6702(a) (1982) for filing a frivolous income tax return in which she claimed a credit for federal military expenditures to which she objected. Bob Warren, the taxpayer’s attorney, appeals a judgment imposing sanctions on him of $613.22 pursuant to Fed.R. Civ.P. 11 to reimburse the government for its expense in defending the taxpayer’s action. The government questions the jurisdiction of the district court. We hold that the district court had jurisdiction and affirm both judgments.
I
The government asserts that the district court lacked subject matter jurisdiction because the taxpayer did not comply with 26 U.S.C. § 6703(c)(2) (1982) by bringing this action within 30 days after her claim for refund of the penalty was denied. The taxpayer contends that the 30-day provision of section 6703(c)(2) pertains only to collection of the penalty and that in any event the Internal Revenue Service extended the time for bringing suit.
The record discloses that the chief of the examination branch of the Memphis Service Center wrote the taxpayer on January 22, 1985, that her claim for a refund of the penalty had been denied and that she could bring suit to recover it within 30 days from the date of the letter. Telephone conversations and correspondence between the taxpayer’s attorney and officials at the Center culminated in a letter dated March 11, 1985, from the manager of an examination unit granting an extension “to reply to the frivolous assessment” to March 22, 1985. On March 22, the taxpayer filed this action.
The district court held that failure to file an action within 30 days from the denial of the refund did not deprive the court of jurisdiction. It construed section 6703(c)(1) and (2) to provide only that the government could collect the penalty if suit were not brought within 30 days. Accord Beard v. Internal Revenue Service, 624 F.Supp. 646, 647 (E.D.Tenn.1985).
We cannot concur in the district court’s construction of section 6703(c)(1) and (2). In our view the 30-day requirement for bringing suit is a limitation on the right to seek judicial review of the penalty. It does not pertain merely to the government’s right to collect the penalty.
In Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), the Court held that full payment of a tax assessment is a jurisdictional prerequisite to a suit for a refund in the district court. Congress, however, relaxed the full payment requirement by enacting section 6703(c)(1), which permits a taxpayer to contest a penalty imposed by section 6702 by bringing a refund suit after paying only 15% of the penalty. By analogy to Flora, payment of the 15% is jurisdictional. See Thomas v. United States, 755 F.2d 728 (9th Cir.1985).
Section 6703(c)(2) provides that if the taxpayer fails to comply with the 30-day requirement “paragraph (1) shall cease to apply____” Under these circumstances the taxpayer cannot proceed by paying merely 15% of the penalty. The taxpayer must pay the full amount to satisfy the jurisdictional prerequisite recognized in Flora. Consequently, we conclude that the 30-day requirement of § 6703(c)(2) is a limitation on the taxpayer’s right to seek judicial review by paying only 15% of the penalty.
We agree with the district court that the 30-day requirement in section 6703(c)(2) is not jurisdictional. Again, we turn to the law pertaining to refund suits in general to ascertain the intent of Congress with respect to the 30-day requirement for refund suits brought pursuant to 6703(c)(2). Statutes pertaining to refund suits in general provide that six months after paying an allegedly erroneous assessment in full and filing an administrative claim, a taxpayer may bring a suit in the district court for a refund. See 26 U.S.C. §§ 6511, 7422, and 6532 and 28 U.S.C. § 1346(a)(1). The taxpayer’s action must be filed within two years from the date the Service mails a notice of disallowance unless the notice is waived or the time extended. See 26 U.S.C. § 6532(a). This two-year requirement is a period of limitation.
Because § 6532(a) is a statute of limitations, the government may be precluded from relying on it in extraordinary circumstances. In Miller v. United States, 500 F.2d 1007 (2d Cir.1974), the court allowed a taxpayer to proceed with his refund suit when the Commissioner inadvertently sent a notice that led the taxpayer to believe the two-year deadline had been extended. Similarly, the Court of Claims allowed a refund suit to proceed when the taxpayer, acting reasonably, was “understandably confused” by a second notice of disallowance that inadvertently extended the period of limitations. Southeast Bank of Orlando v. United States, 230 Ct.Cl. 277, 676 F.2d 660, 664 (1982).
The construction placed on § 6532(a) as a statute of limitations and the principles explained in Miller and Southeast Bank afford sound precedent for allowing the taxpayer to maintain her action. In all three cases the government explicitly extended the time to a date certain in which the taxpayer could act.
We caution that the 30-day limitation in section 6703(c)(2), like the 2-year limitation in § 6532(a) cannot be lightly breached. The taxpayer’s inadvertence, neglect, or application for reconsideration of an administrative disallowance will not toll the statute. Moreover, the Service’s reconsideration and affirmance of a disallowance will not suffice to extend the time. Compare § 6532(a)(4).
We hold only that when an official of the Service explicitly extends the time to a date certain in which the taxpayer can act, the taxpayer’s suit is not barred for lack of subject matter jurisdiction. Although our reasoning differs in part from that of the district court, we conclude that it did not err by denying the government’s motion to dismiss.
II
Section 6702(a) of Title 26 U.S.C. imposes a penalty on a person who files a tax return that facially indicates that the self-assessment is substantially incorrect due to a position that is frivolous. Congress envisioned “a ‘war tax’ deduction under which the taxpayer reduces his taxable income or shows a reduced tax due by that individual’s estimate of the amount of his taxes going to the Defense Department budget” as frivolous within the meaning of section 6702(a). See S.Rep. No. 494, 97 Cong., 2d Sess. 278, reprinted in 1982 U.S.Code Cong. & Admin.News 781, 1024.
The taxpayer filed a return in which she claimed a credit for a portion of her tax that she computed would be spent for the military. After receiving notice of the assessment of a penalty for filing a frivolous return, she filed an amended return reflecting the proper tax. The district court found that her advocacy of peace and her opposition to military expenditures are sincere. Nevertheless, for reasons adequately explained by the district court, we con-elude that the Internal Revenue Service properly imposed the penalty specified in section 6702(a). We recently upheld the imposition of a penalty under substantially similar circumstances in McKee v. United States, 781 F.2d 1043 (4th Cir.1986). The principles explained in McKee govern the taxpayer’s case and fully sustain the judgment of the district court.
Ill
We also conclude that the district court properly exercised its discretion in imposing sanctions on the taxpayer’s attorney. Sanctions are authorized by Fed.R.Civ.P. 11, which was amended in 1983 to emphasize the responsibilities of an attorney and to reinforce “those obligations by the imposition of sanctions.” See Fed.R.Civ.P. 11 advisory committee note. Rule 11 provides in part:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
If this provision of the rule is violated, the court “shall impose ... an appropriate sanction.” The drafters explain that the standard for determining whether an attorney has discharged the affirmative duty imposed by the rule is “one of reasonableness under the circumstances.” It is a standard more stringent than good faith. See advisory committee note; Indianapolis Colts v. Mayor of Baltimore, 775 F.2d 177, 181 (7th Cir.1985); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir.1985).
Section 6702(a) clearly established that the taxpayer’s return warranted a penalty. Any doubt an attorney harbored about the nature of her war tax credit could be quickly dispelled by reading the legislative history. Moreover, as the district court pointed out, imposition of the penalty had been sustained in a number of cases.
The advisory committee note admonishes:
The rule is not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories. The court is expected to avoid using the wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted.
This cautionary note affords no shield to the taxpayer’s attorney. The theories he advanced were not creative. They had been uniformly rejected. It was not reasonable to believe that the taxpayer’s position was plausible.
IV
For reasons stated in Part III we grant the government’s motion for sanctions against the taxpayer and her attorney for prosecuting this frivolous appeal of the judgment denying a refund of the penalty imposed by section 6702(a). See Fed.R. App.P. 38. The government does not seek sanctions on account of the appeal brought by the taxpayer’s attorney to reverse the judgment imposing Rule 11 sanctions. Consequently, the government’s expenses must be prorated.
We remand the case to the district court for determination of the amount to be awarded as sanctions. The government shall recover its costs as taxed by the clerk of this court. The judgments of the district court are affirmed.
. The district court’s opinion is reported as Dalton v. United States, 56 AFTR 2d 85-6306 (W.D.N.C.1985).
. 26 U.S.C. § 6703(c)(1) and (2) provides:
Extension of period of collection where person pays 15 percent of penalty.—
(1) In general. — If, within 30 days after the day on which notice and demand of any penalty under section 6700, 6701, or 6702 is made against any person, such person pays an amount which is not less than 15 percent of the amount of such penalty and files a claim for refund of the amount so paid, no levy or proceeding in court for the collection of the remainder of such penalty shall be made, begun, or prosecuted until the final resolution of a proceeding begun as provided in paragraph (2)----
(2) Person must bring suit in district court to determine his liability for penalty. — If, within 30 days after the day on which his claim for refund of any partial payment of any penalty under section 6700, 6701, or 6702 is denied (or, if earlier, within 30 days after the expiration of 6 months after the day on which he filed the claim for refund), the person fails to begin a proceeding in the appropriate United States district court for the determination of his liability for such penalty, paragraph (1) shall cease to apply with respect to such penalty, effective on the day following the close of the applicable 30-day period referred to in this paragraph.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_issue_4
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
TOWN OF CASTLE ROCK, COLORADO v. GONZALES, individually and as next best friend of her deceased minor children, GONZALES et al.
No. 04-278.
Argued March 21, 2005
Decided June 27, 2005
John C. Eastman argued the cause for petitioner. With him on the briefs were Thomas S. Rice, Eric M. Ziporin, and Erik S. Jaffe.
John P. Elwood argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Michael Jay Singer, and Howard S. Scher.
Brian J. Reichel argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the Denver Police Protective Association et al. by David J. Bruno and Michael T. Lowe; and for the International Municipal Lawyers Association et al. by Brad D. Bailey and Kathryn L. Schroeder.
Briefs of amici curiae urging affirmance were filed for AARP by Stuart R. Cohen, Susan Ann Silverstein, and Michael Schuster; for the American Civil Liberties Union et al. by Caroline M. Brown, Steven R. Shapiro, and Lenora M. Lapidus; for International Law Scholars et al. by Jennifer K Brown and Rhonda Copelon; for the National Association of Women Lawyers et al. by Lorelie S. Masters; for the National Black Police Association et al. by Richard W Smith and Joan S. Meier; for the National Coalition Against Domestic Violence et al. by Naomi G. Beer, Libby Y. Mote, and Michele E. Stone; for the National Network to End Domestic Violence et al. by Fernando R. Laguarda; and for Peggy Kerns et al. by David G. Hall and James C. Harrington.
Deanne M. Ottaviano and Janine A. Carian filed a brief for the Family Violence Prevention Fund et al. as amici curiae.
Justice Scalia
delivered the opinion of the Court.
We decide in this case whether an individual who has obtained a state-law restraining order has a constitutionally protected property interest in having the police enforce the restraining order when they have probable' cause to believe it has been violated.
I-H
The horrible facts of this case are contained in the complaint that respondent Jessica Gonzales filed in Federal District Court. (Because the case comes to us on appeal from a dismissal of the complaint, we assume its allegations are true. See Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508, n. 1 (2002).) Respondent alleges that petitioner, the town of Castle Rock, Colorado, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution when its police officers, acting pursuant to official policy or custom, failed to respond properly to her repeated reports that her estranged husband was violating the terms of a restraining order.
The restraining order had been issued by a state trial eourt several weeks earlier in conjunction with respondent’s divorce proceedings. The original form order, issued on May 21, 1999, and served on respondent’s husband on June 4,1999, commanded him not to “molest or disturb the peace of [respondent] or of any child,” and to remain at least 100 yards from the family home at all times. 366 F. 3d 1093, 1143 (CA10 2004) (en banc) (appendix to dissenting opinion of O’Brien, J.). The bottom of the preprinted form noted that the reverse side contained “IMPORTANT NOTICES FOR RESTRAINED PARTIES AND LAW ENFORCEMENT OFFICIALS.” Ibid, (emphasis deleted). The pre-printed text on the back of the form included the following “WARNING”:
“A KNOWING VIOLATION OF A RESTRAINING ORDER IS A CRIME .... A VIOLATION WILL ALSO CONSTITUTE CONTEMPT OF COURT. YOU MAY BE ARRESTED WITHOUT NOTICE IF A LAW ENFORCEMENT OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT YOU HAVE KNOWINGLY VIOLATED THIS ORDER.” Id., at 1144 (emphasis in original).
The preprinted text on the back of the form also included a “NOTICE TO LAW ENFORCEMENT OFFICIALS,” which read in part:
“YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER.” Ibid. (same).
On June 4,1999, the state trial court modified the terms of the restraining order and made it permanent. • The modified order gave respondent’s husband the right to spend time with his three daughters (ages 10, 9, and 7) on alternate weekends, for two weeks during the summer, and, “‘upon reasonable notice,’” for a midweek dinner visit “‘arranged by the parties’ the modified order also allowed him to visit the home to collect the children for such “parenting time.” Id., at 1097 (majority opinion).
According to the complaint, at about 5 or 5:30 p.m. on Tuesday, June 22, 1999, respondent’s husband took the three daughters while they were playing outside the family home. No advance arrangements had been made for him to see the daughters that evening. When respondent noticed the children were missing, she suspected her husband had taken them. At about 7:30 p.m., she called the Castle Rock Police Department, which dispatched two officers. The complaint continues: “When [the officers] arrived..., she showed them a copy of the TRO and requested that it be enforced and the three children be returned to her immediately. [The officers] stated that there was nothing they could do about the TRO and suggested that [respondent] call the Police Department again if the three children did not return home by 10:00 p.m.” App. to Pet. for Cert. 126a.
At approximately 8:30 p.m., respondent talked to her husband on his cellular telephone. He told her “he had the three children [at an] amusement park in Denver.” Ibid. She called the police again and asked them to “have someone check for” her husband or his vehicle at the amusement park and “put out an [all points bulletin]” for her husband, but the officer with whom she spoke “refused to do so,” again telling her to “wait until 10:00 p.m. and see if” her husband returned the girls. Id., at 126a-127a.
At approximately 10:10 p.m., respondent called the police and said her children were still missing, but she was now told to wait until midnight. She called at midnight and told the dispatcher her children were still missing. She went to her husband’s apartment and, finding nobody there, called the police at 12:10 a.m.; she was told to wait for an officer to arrive. When none came, she went to the police station at 12:50 a.m. and submitted an incident report. The officer who took the report “made no reasonable effort to enforce the TRO or locate the three children. Instead, he went to dinner.” Id., at 127a.
At approximately 3:20 a.m., respondent’s husband arrived at the police station and opened fire with a semiautomatic handgun he had purchased earlier that evening. Police shot back, killing him. Inside the cab of his pickup truck, they found the bodies of all three daughters, whom he had already murdered. Ibid.
On the basis of the foregoing factual allegations, respondent brought an action under Rev. Stat. § 1979, 42 U. S. C. §1983, claiming that the town violated the Due Process Clause because its police department had “an official policy or custom of failing to respond properly to complaints of restraining order violations” and “tolerate[d] the non-enforcement of restraining orders by its police officers.” App. to Pet. for Cert. 129a. The complaint also alleged that the town’s actions “were taken either willfully, recklessly or with such gross negligence as to indicate wanton disregard and deliberate indifference to” respondent’s civil rights. Ibid.
Before answering the complaint, the defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The District Court granted the motion, concluding that, whether construed as making a substantive due process or procedural due process claim, respondent’s complaint failed to state a claim upon which relief could be granted.
A panel of the Court of Appeals affirmed the rejection of a substantive due process claim, but found that respondent had alleged a cognizable procedural due process claim. 307 F. 3d 1258 (CA10 2002). On rehearing en banc, a divided court reached the same disposition, concluding that respondent had a “protected property interest in the enforcement of the terms of her restraining order” and that the town had deprived her of due process because “the police never ‘heard’ nor seriously entertained her request to enforce and protect her interests in the restraining order.” 366 F. 3d, at 1101, 1117. We granted certiorari. 543 U. S. 955 (2004).
II
The Fourteenth Amendment to the United States Constitution provides that a State shall not “deprive any person of life, liberty, or property, without due process of law. ” Arndt. 14, § 1. In 42 U. S. C. § 1983, Congress has created a federal cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Respondent claims the benefit of this provision on the ground that she had a property interest in police enforcement of the restraining order against her husband; and that the town deprived her of this property without due process by having a policy that tolerated nonenforcement of restraining orders.
As the Court of Appeals recognized, we left a similar question unanswered in DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189 (1989), another case with “undeniably tragic” facts: Local child-protection officials had failed to protect a young boy from beatings by his father that left him severely brain damaged. Id., at 191-193. We held that the so-called “substantive” component of the Due Process Clause does not “requir[e] the State to protect the life, liberty, and property of its citizens against invasion by private actors.” Id., at 195. We noted, however, that the petitioner had not properly preserved the argument that — and we thus “decline[d] to consider” whether — state “child protection statutes gave [him] an ‘entitlement’ to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection.” Id., at 195, n. 2.
The procedural component of the Due Process Clause does not protect everything that might be described as a “benefit”: “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire” and “more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577 (1972). Such entitlements are, “‘of course, . . . not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’” Paul v. Davis, 424 U. S. 693, 709 (1976) (quoting Roth, supra, at 577); see also Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998).
A
Our cases recognize that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion. See, e. g., Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454, 462-463 (1989). The Court of Appeals in this case determined that Colorado law created an entitlement to enforcement of the restraining order because the “court-issued restraining order . . . specifically dictated that its terms must be enforced” and a “state statute command[ed]” enforcement of the order when certain objective conditions were met (probable cause to believe that the order had been violated and that the object of the order had received notice of its existence). 366 F. 3d, at 1101, n. 5; see also id., at 1100, n. 4; id., at 1104-1105, and n. 9. Respondent contends that we are obliged “to give deference to the Tenth Circuit’s analysis of Colorado law on” whether she had an entitlement to enforcement of the restraining order. Tr. of Oral Arg. 52.
We will not, of course, defer to the Tenth Circuit on the ultimate issue: whether what Colorado law has given respondent constitutes a property interest for purposes of the Fourteenth Amendment. That determination, despite its state-law underpinnings, is ultimately one of federal constitutional law. “Although the underlying substantive interest is created by ‘an independent source such as state law,’ federal constitutional law determines whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 9 (1978) (quoting Roth, supra, at 577; emphasis added); cf. United States ex rel. TVA v. Powelson, 319 U. S. 266, 279 (1943). Resolution of the federal issue begins, however, with a determination of what it is that state law provides. In the context of the present case, the central state-law question is whether Colorado law gave respondent a right to police enforcement of the restraining order. It is on this point that respondent’s call for deference to the Tenth Circuit is relevant.
We have said that a “presumption of deference [is] given the views of a federal court as to the law of a State within its jurisdiction.” Phillips, supra, at 167. That presumption can be overcome, however, see Leavitt v. Jane L., 518 U. S. 137, 145 (1996) (per curiam), and we think deference inappropriate here. The Tenth Circuit’s opinion, which reversed the Colorado District Judge, did not draw upon a deep well of state-specific expertise, but consisted primarily of quoting language from the restraining order, the statutory text, and a state-legislative-hearing transcript. See 366 F. 3d, at 1103-1109. These texts, moreover, say nothing distinctive to Colorado, but use mandatory language that (as we shall discuss) appears in many state and federal statutes. As for case law: The only state-law cases about restraining orders that the Court of Appeals relied upon were decisions of Federal District Courts in Ohio and Pennsylvania and state courts in New Jersey, Oregon, and Tennessee. Id., at 1104-1105, n. 9, 1109. Moreover, if we were simply to accept the Court of Appeals’ conclusion, we would necessarily have to decide conclusively a federal constitutional question (i. e., whether such an entitlement constituted property under the Due Process Clause and, if so, whether petitioner’s customs or policies provided too little process to protect it). We proceed, then, to our own analysis of whether Colorado law gave respondent a right to enforcement of the restraining order.
B
The critical language in the restraining order came not from any part of the order itself (which was signed by the state-court trial judge and directed to the restrained party, respondent’s husband), but from the preprinted notice to law-enforcement personnel that appeared on the back of the order. See supra, at 751-752. That notice effectively restated the statutory provision describing “peace officers’ duties” related to the crime of violation of a restraining order. At the time of the conduct at issue in this case, that provision read as follows:
“(a) Whenever a restraining order is issued, the protected person shall be provided with a copy of such order. A peace officer shall use every reasonable means to enforce a restraining order.
“(b) A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that:
“(I) The restrained person has violated or attempted to violate any provision of a restraining order; and
“(II) The restrained person has been properly served with a copy of the restraining order or the restrained person has received actual notice of the existence and substance of such order.
“(c) In making the probable cause determination described in paragraph (b) of this subsection (3), a peace officer shall assume that the information received from the registry is accurate. A peace officer shall enforce a valid restraining order whether or not there is a record of the restraining order in the registry.” Colo. Rev. Stat. § 18-6-803.5(3) (Lexis 1999) (emphases added).
The Court of Appeals concluded that this statutory provision — especially taken in conjunction with a statement from its legislative history, and with another statute restricting criminal and civil liability for officers making arrests — established the Colorado Legislature’s clear intent “to alter the fact that the police were not enforcing domestic abuse restraining orders,” and thus its intent “that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.” 366 F. 3d, at 1108. Any other result, it said, “would render domestic abuse restraining orders utterly valueless.” Id., at 1109.
This last statement is sheer hyperbole. Whether or not respondent had a right to enforce the restraining order, it rendered certain otherwise lawful conduct by her husband both criminal and in contempt of court. See § § 18 — 6— 803.5(2)(a), (7). The creation of grounds on which he could be arrested, criminally prosecuted, and held in contempt was hardly “valueless” — even if the prospect of those sanctions ultimately failed to prevent him from committing three murders and a suicide.
We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory. A well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.
“In each and every state there are long-standing statutes that, by their terms, seem to preclude nonenforcement by the police. . . . However, for a number of reasons, including their legislative history, insufficient resources, and sheer physical impossibility, it has been recognized that such statutes cannot be interpreted literally. . . . [T]hey clearly do not mean that a police officer may not lawfully decline to . . . make an arrest. As to third parties in these states, the full-enforcement statutes simply have no effect, and their significance is further diminished.” 1 ABA Standards for Criminal Justice 1-4.5, commentary, pp. 1-124 to 1-125 (2d ed. 1980) (footnotes omitted).
The deep-rooted nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative commands, is illustrated by Chicago v. Morales, 527 U. S. 41 (1999), which involved an ordinance that said a police officer “ ‘shall order’ ” persons to disperse in certain circumstances, id., at 47, n. 2. This Court rejected out of hand the possibility that “the mandatory language of the ordinance . . . afforded] the police no discretion.” Id., at 62, n. 32. It is, the Court proclaimed, simply “common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.” Ibid, (emphasis added).
Against that backdrop, a true mandate of police action would require some stronger indication from the Colorado Legislature than “shall use every reasonable means to enforce a restraining order” (or even “shall arrest . . . or . . . seek a warrant”), §§ 18-6-803.5(3)(a), (b). That language is not perceptibly more mandatory than the Colorado statute which has long told municipal chiefs of police that they “shall pursue and arrest any person fleeing from justice in any part of the state” and that they “shall apprehend any person in the act of committing any offense . . . and, forthwith and without any warrant, bring such person before a ... competent authority for examination and trial.” Colo. Rev. Stat. §31-4-112 (Lexis 2004). It is hard to imagine that a Colorado peace officer would not have some discretion to determine that — despite probable cause to believe a restraining order has been violated — the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown. Cf. Donaldson v. Seattle, 65 Wash. App. 661, 671-672, 831 P. 2d 1098, 1104 (1992) (“There is a vast difference' between a mandatory duty to arrest [a violator who is on the scene] and a mandatory duty to conduct a follow up investigation [to locate an absent violator].... A mandatory duty to investigate . . . would be completely open-ended as to priority, duration and intensity”).
The dissent correctly points out that, in the specific context of domestic violence, mandatory-arrest statutes have been found in some States to be more mandatory than traditional mandatory-arrest statutes. Post, at 779-784 (opinion of Stevens, J.). The Colorado statute mandating arrest for a domestic-violence offense is different from but related to the one at issue here, and it includes similar though not identical phrasing. See Colo. Rev. Stat. §18-6-803.6(1) (Lexis 1999) (“When a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence . . . has been committed, the officer shall, without undue delay, arrest the person suspected of its commission . . . ”). Even in the domestic-violence context, however, it is unclear how the mandatory-arrest paradigm applies to cases in which the offender is not present to be arrested. As the dissent explains, post, at 780-781, and n. 8, much of the impetus for mandatory-arrest statutes and policies derived from the idea that it is better for police officers to arrest the aggressor in a domestic-violence incident than to attempt to mediate the dispute or merely to ask the offender to leave the scene. Those other options are only available, of course, when the offender is present at the scene. See Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849, 1860 (1996) (“[T]he clear trend in police practice is to arrest the batterer at the scene ...” (emphasis added)).
As one of the cases cited by the dissent, post, at 783, recognized, “there will be situations when no arrest is possible, such as when the alleged abuser is not in the home.” Donaldson, 65 Wash. App., at 674, 831 P. 2d, at 1105 (emphasis added). That case held that Washington’s mandatory-arrest statute required an arrest only in “cases where the offender is on the scene,” and that it “d[id] not create an on-going mandatory duty to conduct an investigation” to locate the offender. Id., at 675, 831 P. 2d, at 1105. Colorado’s restraining-order statute appears to contemplate a similar distinction, providing that when arrest is “impractical” — which was likely the case when the whereabouts of respondent’s husband were unknown — the officers’ statutory duty is to “seek a warrant” rather than “arrest.” § 18-6-803.5(3)(b).
Respondent does not specify the precise means of enforcement that the Colorado restraining-order statute assertedly mandated — whether her interest lay in having police arrest her husband, having them seek a warrant for his arrest, or having them “use every reasonable means, up to and including arrest, to enforce the order’s terms,” Brief for Respondent 29-30. Such indeterminacy is not the hallmark of a duty that is mandatory. Nor can someone be safely deemed “entitled” to something when the identity of the alleged entitlement is vague. See Roth, 408 U. S., at 577 (considering whether “certain benefits” were “secure[d]” by rule or understandings); cf. Natale v. Ridgefield, 170 F. 3d 258, 263 (CA2 1999) (“There is no reason ... to restrict the ‘uncertainty’ that will preclude existence of a federally protectable property interest to the uncertainty that inheres in [the] exercise of discretion”). The dissent, after suggesting various formulations of the entitlement in question, ultimately contends that the obligations under the statute were quite precise: either make an arrest or (if that is impractical) seek an arrest warrant, post, at 785. The problem with this is that the seeking of an arrest warrant would be an entitlement to nothing but procedure — which we have held inadequate even to support standing, see Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992); much less can it be the basis for a property interest. See post, at 771-772 (Souter, J., concurring). After the warrant is sought, it remains within the discretion of a judge whether to grant it, and after it is granted, it remains within the discretion of the police whether and when to execute it. Respondent would have been assured nothing but the seeking of a warrant. This is not the sort of “entitlement” out of which a property interest is created.
Even if the statute could be said to have made enforcement of restraining orders “mandatory” because of the domestic-violence context of the underlying statute, that would not necessarily mean that state law gave respondent an entitlement to enforcement of the mandate. Making the actions of government employees obligatory can serve various legitimate ends other than the conferral of a benefit on a specific class of people. See, e. g., Sandin v. Conner, 515 U. S. 472, 482 (1995) (finding no constitutionally protected liberty interest in prison regulations phrased in mandatory terms, in part because “[s]uch guidelines are not set forth solely to benefit the prisoner”). The serving of public rather than private ends is the normal course of the criminal law because criminal acts, “besides the injury [they do] to individuals, . . . strike at the very being of society; which cannot possibly subsist, where actions of this sort are suffered to escape with impunity.” 4 W. Blackstone, Commentaries on the Laws of England 5 (1769); see also Huntington v. Attrill, 146 U. S. 657, 668 (1892). This principle underlies, for example, a Colorado district attorney’s discretion to prosecute a domestic assault, even though the victim withdraws her charge. See People v. Cunefare, 102 P. 3d 302, 311-312 (Colo. 2004) (en banc) (Bender, J., concurring in part, dissenting in part, and dissenting in part to the judgment).
Respondent’s alleged interest stems only from a State’s statutory scheme — from a restraining order that was authorized by and tracked precisely the statute on which the Court of Appeals relied. She does not assert that she has any common-law or contractual entitlement to enforcement. If she was given a statutory entitlement, we would expect to see some indication of that in the statute itself. Although Colorado’s statute spoke of “protected person[s]” such as respondent, it did so in connection with matters other than a right to enforcement. It said that a “protected person shall be provided with a copy of [a restraining] order” when it is issued, § 18-6-803.5(3)(a); that a law enforcement agency “shall make all reasonable efforts to contact the protected party upon the arrest of the restrained person,” § 18 — 6— 803.5(3)(d); and that the agency “shalLgive [to the protected person] a copy” of the report it submits to the court that issued the order, § 18-6-803.5(3)(e). Perhaps most importantly, the statute spoke directly to the protected person’s power to “initiate contempt proceedings against the restrained person if the order [was] issued in a civil action or request the prosecuting attorney to initiate contempt proceedings if the order [was] issued in a criminal action.” §18-6-803.5(7). The protected person’s express power to “initiate” civil contempt proceedings contrasts tellingly with the mere ability to “request” initiation of criminal contempt proceedings — and even more dramatically with the complete silence about any power to “request” (much less demand) that an arrest be made.
The creation of a personal entitlement to something as vague and novel as enforcement of restraining orders cannot “simply g[o] without saying.” Post, at 788, n. 16 (Stevens, J., dissenting). We conclude that Colorado has not created such an entitlement.
C
Even if we were to think otherwise concerning the creation of an entitlement by Colorado, it is by no means clear that an individual entitlement to enforcement of a restraining order could constitute a “property” interest for purposes of the Due Process Clause. Such a right would not, of course, resemble any traditional conception of property. Although that alone does not disqualify it from due process protection, as Roth and its progeny show, the right to have a restraining order enforced does not “have some ascertainable monetary value,” as even our “Roth-type property-as-entitlement” cases have implicitly required. Merrill, The Landscape of Constitutional Property, 86 Va. L. Rev. 885, 964 (2000). Perhaps most radically, the alleged property interest here arises incidentally, not out of some new species of government benefit or service, but out of a function that government actors have always performed — to wit, arresting people who they have probable cause to believe have committed a criminal offense.
The indirect nature of a benefit was fatal to the due process claim of the nursing-home residents in O’Bannon v. Town Court Nursing Center, 447 U. S. 773 (1980). We held that, while the withdrawal of “direct benefits” (financial payments under Medicaid for certain medical services) triggered due process protections, id., at 786-787, the same was not true for the “indirect benefits] ” conferred on Medicaid patients when the Government enforced “minimum standards of care” for nursing-home facilities, id., at 787. “[A]n indirect and incidental result of the Government’s enforcement action ... does not amount to a deprivation of any interest in life, liberty, or property.” Ibid. In this ease, as in O’Bannon, “[t]he simple distinction between government action that directly affects a citizen’s legal rights . . . and action that is directed against a third party and affects the citizen only indirectly or incidentally, provides a sufficient answer to” respondent’s reliance on cases that found government-provided services to be entitlements. Id., at 788. The O’Bannon Court expressly noted, ibid., that the distinction between direct and indirect benefits distinguished Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1 (1978), one of the government-services eases on which the dissent relies, post, at 789.
III
We conclude, therefore, that respondent did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband. It is accordingly unnecessary to address the Court of Appeals’ determination (366 F. 3d, at 1110-1117) that the town’s custom or policy prevented the police from giving her due process when they deprived her of that alleged interest. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U. S. 40, 61 (1999).
In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as “‘a font of tort law,’ ” Parratt v. Taylor, 451 U. S. 527, 544 (1981) (quoting Paul v. Davis, 424 U. S., at 701), but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of § 1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law. Cf. DeShaney, 489 U. S., at 203.
The judgment of the Court of Appeals is
Reversed.
Petitioner claims that respondent’s complaint “did not allege . . . that she ever notified the police of her contention that [her husband] was actually in violation of the restraining order.” Brief for Petitioner 7, n. 2. The complaint does allege, however, that respondent “showed [the police] a copy of the [temporary restraining order (TRO)] and requested that it be enforced.” App. to Pet. for Cert. 126a. At this stage in the litigation, we may assume that this reasonably implied the order was being violated. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 104 (1998).
It is unclear from the complaint, but immaterial to our decision, whether respondent showed the police only the original “TRO” or also the permanent, modified restraining order that had superseded it on June 4.
Three police officers were also named as defendants in the complaint, but the Court of Appeals concluded that they were entitled to qualified immunity, 366 F. 3d 1093, 1118 (CA10 2004) (en banc). Respondent did not file a cross-petition challenging that aspect of the judgment.
Most of the Colorado-law eases cited by the Court of Appeals appeared in footnotes declaring them to be irrelevant because they involved only substantive due process (366 F. 3d, at 1100-1101, nn. 4-5), only statutes without restraining orders (id., at 1101, n. 5), or Colorado’s Government Immunity Act, which the Court of Appeals concluded applies “only to ... state tort law claims” (id., at 1108-1109, n. 12). Our analysis is likewise unaffected by the Immunity Act or by the way that Colorado has dealt
Question: What is the issue of the decision?
A. due process: miscellaneous (cf. loyalty oath), the residual code
B. due process: hearing or notice (other than as pertains to government employees or prisoners' rights)
C. due process: hearing, government employees
D. due process: prisoners' rights and defendants' rights
E. due process: impartial decision maker
F. due process: jurisdiction (jurisdiction over non-resident litigants)
G. due process: takings clause, or other non-constitutional governmental taking of property
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.
Robert L. BOSTICK, Individually and on behalf of all others similarly situated, Appellants, v. Daniel J. BOORSTIN, Individually and as Librarian of the Library of Congress.
No. 78-2194.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 10, 1979.
Decided Feb. 22, 1980.
Rehearing Denied March 24, 1980.
Katherine Gruenheck, Atty., Dept. of Justice, Washington, D. C., for appellee; Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, Robert E. Kopp and Mark N. Mutterperl, Attys., Dept. of Justice, Washington, D. C., were on the brief.
Michael D. Hausfeld, Washington, D. C., with whom Jerry S. Cohen and Herbert E. Milstein, Washington, D. C., were on the brief, for appellants.
Before TAMM and MIKVA, Circuit Judges, and HAROLD H. GREENE, United States District Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the court filed by District Judge HAROLD H. GREENE.
HAROLD H. GREENE, District Judge:
This is an appeal from a judgment in favor of the government in a discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. The principal issue is whether the evidence supports the finding of the court below that the failure of the Library of Congress to promote appellant was not the product of racial discrimination.
Appellant is a visual information specialist at the Library of Congress whose pay grade is GS-13. He contends that his position should have been reclassified to a grade GS-15 and that failure of appellee and his subordinates to effect such reclassification was racially motivated.
Appellant began working at the Library of Congress in 1947 as a graphic information specialist at grade GS-11. Beginning in September 1952, he sought a reclassification of his position to a GS-12. These efforts were repeatedly supported by his superiors in the Library, but the Civil Service Commission for several years refused to grant its approval, ruling that the position was correctly classified. Eventually, in December 1958, the Commission relented, and appellant’s position was changed to a GS-12. In February 1961, appellant began a campaign to have the same position upgraded to a GS-13. Although that request was denied by a classification officer in the Library of Congress, the Library’s Assistant Director of Personnel decided to reclassify the position on the basis of an “incumbency reallocation.” Appellant received his promotion to a GS-13 in April 1965.
In April 1971, appellant began his efforts to have his position reclassified to a GS-15. A review of his duties and responsibilities was conducted by James Lee, a Position Classification Officer, who reached the conclusion that the position was properly rated as a GS-13, and that Civil Service Commission standards accurately described the work appellant in fact performed. Nevertheless, the Library proceeded to request the Civil Service Commission to render an advisory opinion concerning the proper grade for appellant’s position. The Commission responded that there was no basis for classifying the job above GS-13, and the Library accordingly made its decision not to effect a further reclassification. Although a review process was apparently available, appellant did not avail himself of the opportunity it provided but instead filed an administrative discrimination complaint. An equal opportunity counselor and the agency’s Equal Opportunity Officer determined after investigation that appellant’s complaint was more appropriately regarded as a classification matter in the classification office and took no action. This suit in the District Court followed.
Appellant’s position in the classified service is relatively unique, and the basic issue here is whether it was properly classified.
Under the Classification Act of 1949, 5 U.S.C. § 5101 et seq., the Civil Service Commission has the responsibility for establishing standards for placing positions in their proper classes and grades. The Commission evaluated appellant’s position and found that there was no basis for classifying it above GS-13. Appellant concedes that the Civil Service classification series for visual information specialists on its face covers only grades through GS-12, but he argues that, notwithstanding that general limitation, and notwithstanding the more specific Commission advisory ruling that his position was appropriately classified at no more than a GS-13, the Library was guilty of discrimination because it failed to make an exception for his benefit.
While the Library of Congress may not have been bound as a matter of law by the Civil Service Commission decision, the record does not reveal any factual justification for a Library departure from the Commission’s determination. Certainly the District Court could not be said to have erred when it failed to find discrimination based on the Library’s refusal to disregard a Civil Service Commission opinion with respect to the appropriate classification of appellant’s position.
Appellant contends that the classification reason given for the failure to promote him was merely pretextual and conceals underlying discriminatory purposes. In this regard, he argues that he performed the same kind of work as white employees who were classified at grade GS-15, that he had been performing supervisory functions and should have been reclassified for that reason, and that he was entitled to an inference of discrimination on the basis of statistics.
Appellant is a high school graduate working in the relatively non-professional field of a visual information specialist. To be sure, the positions of various types of “senior specialists” and “analysts” are classified at grade GS-15, but these positions, as appellant’s classification officer found, are not comparable to the one appellant holds. Such specialists and analysts are frequently among the top experts in academic research submitted to the Congress on public policy matters, and they usually have graduate degrees. Visual information specialists, on the other hand, are typically classified at grades GS-11 to GS-13.
Appellant’s claim that he is entitled to reclassification because he was or should have been exercising supervisory duties is unfounded. The Coordinator of Research, who supervised most of appellant’s work and had the initial responsibility for describing his position, determined that appellant has no significant supervisory or administrative duties. In 1950, appellant did have one assistant, but that individual was dismissed after a few months, along with a number of other employees, on account of a congressionally-mandated budget cut. This brief and narrow supervisory experience hardly justifies a finding of discriminatory classification well over twenty years later.
The District Court found the statistical evidence to be inconclusive. We agree. One expert testified that there was a consistent pattern of disparity between black and non-black employees in the Library of Congress. Another expert, examining the same data, found no disparity in promotion rates between blacks and non-blacks. At its most favorable to appellant, the evidence does no more than to establish a prima facie case of discrimination within the meaning of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) and Hackley v. Roudebush, 171 U.S.App. D.C. 376, 520 F.2d 108 (1975). We perceive no basis for holding incorrect the District Court’s conclusions, based upon his findings of subsidiary facts, that this prima facie case was rebutted by the Library, and that appellant had failed to show that the nondiscriminatory reasons given by that agency constituted a pretext for discrimination. The judgment of the District Court is accordingly
Affirmed.
. The only other assertion of error that requires discussion is the claim that the District Court improperly refused to certify the suit as a class action under Rule 23(a)(3), F.R.Civ.P. An interlocutory appeal from an earlier refusal of Judge Jones to certify a class action in this case was dismissed by this court. Williams v. Mumford, 167 U.S.App.D.C. 125, 511 F.2d 363 (1975), cert. denied, 423 U.S. 828, 96 S.Ct. 47, 46 L.Ed.2d 46 (1975). More recently, Judge Oberdorfer found that the claims of appellant and those of one Joslyn Williams, whose case has since been severed, were not typical of the claims of the class they sought to represent. Appellant essentially contends that his position was incorrectly classified, while Williams’ claim relates to an allegedly improper penalty for falsification of an employment application. The fact situations involving these individuals are relatively unique and not typical of any class (Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir. 1975); Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975); Koos v. First National Bank of Peoria, 496 F.2d 1162, 1164-65 (7th Cir. 1974); Wright & Miller, Federal Practice and Procedure: Civil § 1764 (2d ed. 1972)), and there is no basis for overturning the exercise of the District Court’s discretion in failing to make a class certification. City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295, 298 (2d Cir. 1969); Peterson v. Oklahoma City Housing Authority, 545 F.2d 1270, 1273 (10th Cir. 1976); Price v. Lucky Stores, Inc., 501 F.2d 1177 (9th Cir. 1974).
. Appellant originally worked in the Library’s General Research Section. He was later transferred to the Congressional Research Service where he has remained since.
. The decision was supported by several layers of decisionmakers in the Civil Service Commission, including its Board of Appeals and Review.
. An incumbency reallocation is the reclassification of a position at a higher than normal level because of the strengths the incumbent brings to the particular job.
. Lee, who works in the Library’s Classification Office, is black.
. The Commission noted that non-supervisory positions above grade GS-12 are not common in appellant’s job series.
. The District Court found that arguably appellant failed to exhaust his administrative remedies by failing to pursue classification appeals. See Haneke v. Secretary of Health, Education and Welfare, 175 U.S.App.D.C. 329, 535 F.2d 1291 (1976). Nevertheless, it considered appellant’s racial discrimination claims on the merits.
. Now the Office of Personnel Management.
. Appellant would equate this kind of classification analysis with the subjective judgments made by white supervisors that have been regarded as possible vehicles for discrimination. See, e.g., James v. Stockham Valves & Fittings Co., 559 F.2d 310, 345 (5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1975); Pettway v. American Cast Iron Co., 494 F.2d 211, 232 (5th Cir. 1974). This argument lacks merit for several reasons: (1) general classification decisions are unlike individual, subjective hiring or promotion decisions; (2) the basic judgment here was not made by ap-pellee but by the Civil Service Commission which is not a party and has not been charged with discrimination; and (3) to the extent that the Library was involved, its principal judgment concerning appellant’s proper classification was expressed by a black employee.
. Appellant also argues that the fault lies with his position description, and that he was the only person competent to determine the scope of his duties and responsibilities. The District Court rightly rejected this claim.
. The District Court assumed for purposes of analysis, and so do we, that appellant had made out a prima facie case of discrimination, and that the issue was whether legitimate, nondiscriminatory reasons existed for the Library’s failure to promote appellant, as distinguished from reasons which were mere pretexts for discrimination.
. Appellant also makes the related argument that he should have been included in the Library’s automatic promotion plan. That plan, which is aimed primarily at the agency’s professional employees, was not applied to appellant because his job is “unique.” The evidence showed that other black employees in other job classifications were included in the plan.
. According to the Coordinator of Research of the Congressional Research Service, as a visual information specialist appellant provides “visual, graphic, design, geometric and artistic skill in the form of statistical or organizational charts, lettered tables, maps, illustrations, inscriptions, in ornamental lettering styles, layouts ready for the printer, . . . visual information presentations” and similar services, but “he is rarely, if ever, called upon to do economic, social, scientific or other forms of subject discipline analysis.”
. We need not decide whether salary distinctions between experts in graphics and experts in such fields as economics, sociology, and other academic pursuits are appropriate as a matter of personnel policy. Suffice it to say that such distinctions cannot be regarded as racially discriminatory.
. There is an indication in the evidence that there is one visual information specialist at another government agency (Department of Commerce) whose position is classified as a GS-15. That particular employee appears to have far broader responsibilities than appellant. In any event, that one classification, which may violate Civil Service standards, cannot form the norm for all similar jobs throughout the federal service.
. The government’s expert, unlike the witness produced by appellant, examined possible disparities in the frequency with which blacks and whites were promoted, and he concluded that for all employees, regardless of date of hire, no consistent disparity in promotion rates could be established.
. With regard to the statistics, appellant urges upon us the recent decision of this court in Davis v. Califano, 613 F.2d 957. The court there held that statistical evidence may establish a prima facie case of individual discrimination, recognizing, however, that, as with any circumstantial evidence, the usefulness of statistical evidence depends on all the surrounding facts and circumstances (p. 962). In any event, the District Court here concluded that there was no violation of Title VII even if it be assumed that a prima facie case of discrimination was established by the statistics.
. The District Court’s findings of fact may of course not be set aside unless they are clearly erroneous. Rule 52(a), F.R.Civ.P.; Kinsey v. First Regional Securities, Inc., 181 U.S.App.D.C. 207, 557 F.2d 830 (1977). This rule applies to design, motive, and intent. United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949).
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_majvotes
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
Kate MAHONEY, Administrator of the Estate of Lawrence Alfred Mahoney, Deceased, Plaintiff-Appellant, v. ROPER-WRIGHT MANUFACTURING COMPANY, INC., Defendant-Appellee.
No. 72-1338.
United States Court of Appeals, Seventh Circuit.
Argued April 12, 1973.
Decided Dec. 12, 1973.
Edwin W. Sale, Kankakee, Ill., for plaintiff-appellant.
Joseph P. Skowronski, Jr., Danville, Ill., for defendant-appellee.
Before HASTINGS, Senior Circuit Judge, CUMMINGS, Circuit Judge, and CAMPBELL, Senior District Judge.
Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.
WILLIAM J. .CAMPBELL, Senior District Judge.
This diversity action was commenced by the plaintiff, the Administrator of the Estate of Lawrence Mahoney, deceased, for the alleged wrongful death of the decedent. Recovery was sought on the basis of strict liability in tort. The judgment was entered for the defendant following the return of a jury verdict in its favor. The plaintiff has appealed and contends that the district court erred in excluding certain testimony offered by two of the plaintiff’s witnesses and in preventing the plaintiff from calling as a rebuttal witness an expert not identified on the plaintiff’s list of witnesses filed prior to trial.
As they relate to the issues raised on appeal, the facts show that in 1966 Lawrence Mahoney purchased a John Deere Model 55 EB self-dash propelled combine equipped with an automatic header control unit manufactured and sold by the defendant. The defendant’s control device is designed to automatically regulate the height of the combine’s cutting bar during harvesting operations. The defendant’s system had been installed on the combine prior to its delivery by the local John Deere dealer.
The header control system consists essentially of three components, a feeler bar, a selector control valve, and the operator control. The purpose of the system is to keep the head of the combine as near to the ground as possible when harvesting over uneven ground. The feeler bar, which appears somewhat like the head of a rake, is attached under and parallel to the cutting bar of the combine head. It consists of twenty-four fingers, each about eight inches in length, which function as guides to the control system, by mechanically communicating any changes in ground contour to the selector control valve. This communication is accomplished through a cable connected to both the feeler bar and the selector control valve.
The selector control valve is a hydraulic valve which directs the flow of hydraulic oil alternatively to two separate hydraulic lines. This is done by means of a spool valve which moves within the selector control valve, covering and uncovering inlet and outlet ports depending on the signals it receives from either the feeler bar or the operator control.
The selector control valve assembly is mounted on the combine with the spool valve in a vertical position. In such a position, the control system is in the manual mode and the height of the combine head is then controlled manually by the operator with the regular John Deere hydraulic control. When the spool valve is in the lowered position, the control system becomes automatic and the movement of the fingers and feeler bar thereby control the height of the combine head independently of the operator.
If the control system is in the automatic mode and the combine passes over a depression in ground contour, the fingers of the feeler bar drop lower, causing the cable between the feeler bar and the selector control valve to be pulled downward. This in turn causes the spool valve to drop and divert the flow of hydraulic oil so that the hydraulic rams under the combine head retract, lowering the head. The reverse will occur when the combine passes over an elevated section of ground.
In addition to the cable between the feeler bar and the selector control valve, there is a second cable which runs from the selector control valve to the operator’s platform on the combine. This cable permits the operator to place the header control system in either automatic or manual mode by means of a push-pull knob. When the knob is pulled the spool valve is raised and the system is in the manual mode. When the knob is pushed, the spool valve is lowered and the system is then in the automatic mode.
From the time of its purchase in 1966 until October 25, 1969, the combine equipped with the defendant’s system had been used without incident. On the latter date, the decedent had been harvesting soybeans with the combine, and after he had eaten lunch in the field with two of his sons, the sons departed on errands. When the oldest son returned, he discovered his father crushed under the head of the combine. The decedent was found lying on his back with his feet and torso below his chest extending out at a right angle to the side of the combine head. The combine engine was running. The precise circumstances which led to the death are unknown since no one witnessed what occurred that day.
Plaintiff’s case was premised on the theory that the automatic header control system as manufactured and sold by the defendant was unreasonably dangerous and that this caused Lawrence Maho-ney’s death. Specifically, plaintiff’s complaint charged that the header control device contained no positive safety devices to prevent the combine header from moving independently of operator control. The record discloses that as the combine was manufactured by John Deere, it was equipped with an angle iron brace for the purpose of providing a positive lock on the hydraulic rams used to raise the combine header. The installation of the defendant’s header control system necessitated the removal of the John Deere safety device. In order for the header on a machine equipped with the defendant’s system to remain in an elevated position regardless of the position of the selector valve, a hydraulic arrangement was employed. This arrangement was effective as long as the combine engine did not exceed a certain RPM, approximately 1400. If this RPM rate was exceeded when the engine was at a fast idle, the selector control valve could drop from the manual to the automatic mode and the combine head would immediately drop to the ground.
Plaintiff’s expert testified that the change from manual to automatic was effectuated by the selector control valve which operated by means of a spool valve which directed the flow of hydraulic fluid. The expert further related that the spool valve was secured in place only by the friction of two rubber “0” rings and that a force of as little as two to five pounds would be sufficient to move it. Engine vibration could provide enough force in the expert’s opinion to cause the' spool valve to drop from the manual to the automatic mode. It was the expert’s view that the easy movement of the spool valve constituted an improper design since, with the combine motor operating at a fast idle and the combine header elevated, the header could unexpectedly fall when the spool valve dropped.
Through a formal offer of proof, the plaintiff attempted to show through the expert’s testimony that there were three relatively simple designed alternatives which could have remedied the claimed defect. The proposed evidence was objected to on the ground that evidence that it was possible to build a safer product is inadmissible. The district judge excluded the evidence, stating that “what might or could have been done was not in issue.”
This is a diversity case in which Illinois law controls. The proof here was offered for the purpose of showing that it would have been feasible for defendant to have corrected the claimed defect in his product. The offer of proof indicates that a mechanical lock device on the operator control could have been installed and would have prevented the spool valve from dropping, that the hydraulic hoses could have been reversed with the result that if the spool valve dropped, the machine would have gone into the manual rather than the automatic mode of operation, and that the spool control valve could have been mounted so that it would not be affected by gravity. The offer also showed that a mechanical lock device has been installed on a subsequent model of defendant’s control system.
In products liability cases, the law in Illinois for some time now has permitted the introduction of evidence which consists of alternate design feasibility or post-accident design changes. The evidence is admissible if the design alternative or design alteration was available at the time the defendant’s product was manufactured and sold. See Moren v. Samuel M. Langston Company, 96 Ill.App.2d 133, 237 N.E.2d 759 (1968); Rivera v. Rockford Machine and Tool Company, 1 Ill.App.3d 641, 274 N.E.2d 828 (1971); Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 281 N.E.2d 749 (1972); Wallner v. Kitchens of Sara Lee, Inc., 419 F.2d 1028 (7th Cir. 1969). Although the defendant here protests to the contrary in its brief, the offer of proof clearly reveals that the design alternatives suggested by the witness were available at the time the defendant’s header control device was manufactured and sold to the plaintiff’s decedent.
Relying principally on Day v. Barber-Colman Co., 10 Ill.App.2d 494, 135 N.E. 2d 231 (1956), the defendant contends that evidence as to ways of designing a safer product is not admissible. In Day, the evidence showed that the design alternative there mentioned was not available at the time the defendant placed its product in the stream of commerce. Moreover, Day was tried on a negligence theory rather than on the theory of strict liability in tort. The products liability cases cited above and pursued on a theory of strict liability all held that evidence of design alternatives and post-accident design changes is admissible to show what was feasible and what the defendant knew or should have known.
As one Illinois court has put it, although a manufacturer need not adopt every new safety device which may be developed, “a manufacturer is required to adopt any and all devices the absence of which render his product unreasonably dangerous.” Rivera v. Rockford Machine and Tool Co., 1 Ill.App.3d 641, 274 N.E.2d 828, 833 (1971). Whether a defendant’s product is unreasonably dangerous for failure to incorporate certain available safety devices is a question to be decided by the jury in these kinds of cases. See Rivera v. Rockford Machine and Tool Co., 1 Ill. App.3d 641, 274 N.E.2d 828, 832 (1971). Because the plaintiff here was prevented from introducing evidence of design alternatives and post-accident design changes, she was denied the opportunity to properly submit her case to the jury. The judgment for the defendant must therefore be reversed and the cause remanded for a new trial.
Since a new trial has been ordered, we should briefly comment on the plaintiff’s other evidentiary point. The plaintiff offered to prove that on two occasions subsequent to the accident in issue, the combine header malfunctioned in a manner similar to that claimed to have occurred on the day of the accident. The offer of proof, however, failed to adequately demonstrate that the combine header was in substantially the same condition at the time of the alleged subsequent malfunction as it had been on the day of the accident. Under those circumstances, we agree with the district court that the evidence was not admissible. See City of Bloomington v. Legg, 151 Ill. 9, 37 N.E. 696 (1894).
We do not consider the issue concerning the plaintiff’s claim that he had a right to call as a rebuttal witness an expert not identified on the list of witnesses filed prior to trial. We assume that any difficulties of this nature will be resolved prior to the new trial.
For the reasons stated, the judgment of the district court is reversed and the cause is remanded for a new trial.
Reversed and remanded.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_respond1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
JOHNSON v. EASTERN AIR LINES, Inc.
No. 27, Docket 21380.
United States Court of Appeals, Second Circuit.
Argued Oct. 4, 1949.
Decided Oct. 28, 1949.
William J. Junkerman, of New York City (Haight, Deming, Gardner, Peor & Havens and S. V. Silverthorne, Jr., all of New York City, on the brief), for defendant-appellee.
Edgar H. A. Chapman, of New York City (De Witt, Van Aken, Nast & Chapman and Macdonald De Witt and Harry H. Van Aken, all of New York City, on the brief), for plaintiff-appellant.
Before L. HAND, SWAN and CLARK, Circuit Judges.
CLARK, Circuit Judge.
Plaintiff, as administrator of the estate of his son, sues for damages for the latter’s death in an airplane accident in South Carolina on September 7, 1945. The action is brought upon the statute of that state, 1 S.C.Code, c. 15, § 411, 1942, granting a right of action for damages to the administrator of a person whose death is caused “by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof.” Jurisdiction of the district court is based upon the diverse citizenship of the parties. In a trial to the jury, plaintiff proved that his son was a fare-paying passenger on the defendant’s plane which crashed into pine trees near Florence, S. C., destroying the plane and killing all on board. Defendant proved that the plane had been properly inspected, that the pilot was competent, that for some unknown reason after passing Florence on his flight north the pilot radioed for permission to turn back and land there, and that he was only about ten miles from the Florence airfield when the plane crashed. The cause of the accident has never been established. The trial court denied plaintiff’s motion for a directed verdict and, after the jury had found for the defendant, denied plaintiff’s motion to set aside the verdict as contrary to the law and contrary to the facts. Plaintiff contends on this appeal that those motions should have been granted, since the defendant did not prove that the pilot was not negligent, and that the judgment for defendant should now be reversed and a new trial ordered.
Plaintiff contends that South Carolina law creates a presumption of negligence against a passenger carrier involved in an accident, and that defendant’s failure to rebut this presumption should have entitled him to a directed verdict. Although there is undoubtedly such a presumption against a carrier, Danner v. South Carolina R. R. Co., 4 Rich.Law, S.C., 329, 55 Am.Dec. 678, it has been used only to allow a plaintiff to go to the jury, not as a basis for a directed verdict in his favor. Thus in Horne v. Southern Ry. Co., 186 S.C. 525, 197 S.E. 31, 38, 116 A.L.R. 745, the highest court of South Carolina approved the following charge to the jury: “The law says that a railroad company must exercise the highest degree of care for the safety and protection of its passengers; must exercise such a high degree of care as to avoid the injury to a passenger, and if that passenger is injured by the instrumentality of the carrier or the railroad company at the time he is a passenger * * * the law says that if he is injured under such circumstances, by an instrumentality of the Defendants, the law presumes that the Defendants were negligent, but such a presumption is a rebuttable presumption, and like every other question of fact it is to be foimd and determined by the pury from the testimony.11 (Italics added.) See also Doolittle v. Southern Ry. Co., 62 S.C. 130, 40 S.E. 133, and Steele v. Southern R. Co., 55 S.C. 389, 33 S.E. 509, 74 Am.St.Rep. 756.
Defendant relies principally upon the New York rule as the law of the forum. That, as we had occasion to point out in Century Indemnity Co. v. Arnold, 2 Cir., 153 F.2d 531, certiorari denied 328 U.S. 854, 66 S.Ct. 1346, 90 L.Ed. 1626, is to like effect. Thus the New York Court of Appeals has said: “Even when there be a presumption of negligence arising from a failure upon the part of a common carrier to explain how an accident happened, it is for the jury to say whether the presumption, which is only prima facie evidence of negligence, entitles the plaintiff to a verdict. * * * The jury are not bound to presume negligence from the absence of an explanation, but, given all the surrounding circumstances, they may or may not infer it, according to the force and weight of those circumstances.” Salomone v. Yellow Taxi Corp., 242 N.Y. 251, 259-260, 151 N.E. 442, 445. In accord are: Foltis, Inc., v. City of New York, 287 N.Y. 108, 38 N.E.2d 455, 153 A.L.R. 1122; Schulz v. Finn, 273 App.Div. 780, 75 N.Y.S.2d 15; Judd v. Sams, 270 App.Div. 981, 62 N.Y.S.2d 678, affirmed 296 N.Y. 801, 71 N.E.2d 772. Goodheart v. American Airlines, 252 App.Div. 660, 254 App.Div. 566, 1 N.Y.S.2d 288, relied on by the plaintiff, was a case of reversal of a defendant’s judgment because of an erroneous and inadequate charge; it does not suggest removal of the case from the jury.'
In view of this similarity we need not go into the question, discussed by counsel, as to whether South Carolina or New York law—or perhaps more specifically, the New York conception, if any, of South Carolina law—controls. Compare 3 Moore, Federal Practice § 38.02, 1948 Cum.Supp. 27, n. 91, with Morgan, Choice of Law Governing Proof, 58 Harv. L. Rev. 153, 174-176, 185-189. Moreover, even if the governing law recognized a presumption so strong that, unrebutted, it would require the direction of a verdict for the plaintiff, we should nevertheless feel compelled to hold that here the defendant had produced evidence in rebuttal sufficient to require submission of the case to the jury. This will appear from a more detailed recital of the poignant and dramatic circumstances of this catastrophe.
The deceased, a lieutenant in the Navy, bought passage on defendant’s Flight 42 to return on the night of September 6-7, 1945, from Jacksonville, Fla., to New York City in the line of duty. Flight 42 from Miami to La Guardia Field, New York, left Savannah, Ga., about 12:41 a. m. At 1:50 a. m. it reported that it had flown over Florence six minutes earlier at 5,000 feet, the altitude contemplated by the flight plan of the pilot and the time as estimated by him in a message sent while over Charleston a half hour earlier. At 1:51 a. m. the pilot, having received a weather report from Washington that the ceiling at Raleigh was 200 feet or too low for safe landing, asked for clearance to proceed over Raleigh without stopping and also requested the weather conditions at Washington. The radio operator tried to give him that information. There was a “skip” condition in the atmosphere, and the response was never acknowledged. At 2:05 the control tower at Washington received a partially mutilated message which did say, however: “Want to go into Florence.” Florence was not then a regularly scheduled stop for the defendant’s planes, although it had been at an earlier period; and the pilot, who had been with the line since 1931, was familiar with the airport. The Jacksonville control, which heard the request, then obtained a clearance for the landing from the Florence tower and radioed it to Flight 42; but there was no acknowledgment. The plane crashed at 2:13 a. m. by striking two pine trees about 60 or 70 feet above ground on the edge of the Pee Dee River swamp, about ten miles northeast of the Florence airport. The direction of the plane as observed after the accident was in the direction of the airport, showing that it had returned toward, and almost reached, the field it was then seeking.
Plaintiff based his case substantially on the circumstances of the crash; and he stressed particularly the fact that the altitude of the plane at the time was far under the minimum height of 500 feet required for such flights by the Air Traffic Rules of the Civil Aeronautics Board, Federal Register, Part 60, § 60.105. He also relied upon the testimony of a farmer who lived some 10 or 11 miles from Florence and who, being up with sick children, saw the flight of the plane and heard it crash at a distance of a mile or a mile and a half from his home. This testimony was confused and conflicting in many details. In actual fact it added little ¡»to the plaintiff’s case and in certain aspects, such as the assertions of the witness that he saw the plane flying north toward Washington, that it circled and turned back, and that the engine, when the plane was coming toward him, “made a noise that it usually don’t make. It went phftt! phftt!” tended to support the defendant’s case. The only other evidence of significance to the plaintiff’s case was to the effect that weather conditions, while unfavorable around Raleigh, were good around Florence and that other planes passed over the territory without difficulty at or about this time.
On the other hand, defendant’s evidence was as complete as seems possible under the circumstances where all actual eyewitnesses were killed. The evidence recounted as to the communications with the pilot shows how extensive were the contacts between him and the controls from Jacksonville north to Washington—and indeed to La Guardia Field in New York—up to the point that no further response was received from him. In addition there was the most detailed evidence, showing the inspection of all parts of the plane for several days before the accident, as well as during that evening at Miami upon its arrival from New York and before it was certified as completely airworthy and dispatched upon its return trip. In addition there was testimony of the proven capacity of the pilot and the copilot; the pilot indeed had over 18 years of service for this company, with approximately 16,000 hours of flying time. The judge’s charge to the jury presented the issue of negligence quite fairly to the plaintiff, who took no exception to it.
On this record we cannot say as a matter of law that the jury could not find the defendant free of negligence under the circumstances. It can hardly be doubted that an emergency had presented itself to this experienced pilot of such a nature that he felt he had to turn back for an immediate unscheduled landing at Florence. Under the circumstances, his low flight at the time of the crash suggests not a voluntary violation of the Air Traffic Rules, but some engine trouble which did not permit him to make the airport for which he was striving. Air transportation is not such—or was not four years ago— that the jury can be denied the right to make an inference of a crash due to mechanical failures which could be neither guarded against by the most extensive inspection nor avoided by a careful pilot. To hold, as plaintiff urges, that the representative of a victim of such a crash is entitled to a directed verdict unless the airline can prove affirmatively the non-negligent cause of the mishap would be to make the liability of the airline for all essentials that of an insurer. Whether or not that be desirable social policy, it is not now the law of either South Carolina or New York.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Geane DOBY, Defendant-Appellant.
Nos. 88-2000, 88-2030.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 22, 1989.
Decided April 13, 1989.
Eileen A. Kamerick, Skadden Arps Slate Meagher & Flom, Chicago, Ill., for defendant-appellant.
Gwenn R. Rinkenberger, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appel-lee.
Before WOOD, Jr., and MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
PER CURIAM.
Geane Doby, along with several others, burned down a house in Gary, Indiana. During the arson, one of Doby’s fellow arsonists was severely burned; he died a short time later.
A grand jury charged Doby with violating 18 U.S.C. § 844(i), which provides:
[wjhoever maliciously damages or destroys ... by means of fire or an explosive, any building ... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce ... and if death results to any person ... as a direct or proximate result ... shall ... be subject to imprisonment for any term of years, or to the death penalty or life imprisonment as provided in [18 U.S.C. § 34].
Doby eventually pleaded guilty to the arson charge on the condition that he be allowed to contest whether federal jurisdiction existed over the arson.
The house that Doby and his compatriots had burned was a two-unit house. The owner, Mohamed Shaker, had lived in the first story unit with his family, and had rented the second story unit to different tenants. At the time of the arson (committed at Shaker’s behest), the entire home was vacant and in need of rehabilitation work as a result of vandalism that had occurred during a series of burglaries at the house. Although the house was vacant, Shaker had never taken it off the rental market; he intended to repair the damage to the house and rent the upstairs unit.
Doby contended that the house was not a building “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce” and that the arson therefore did not meet § 844(i)’s federal jurisdictional requirement. The district court, in a succinct, well reasoned opinion, held that a sufficient interstate commerce nexus existed so that the arson did meet § 844(i)’s jurisdictional requirement. United States v. Doby, 684 F.Supp. 558 (N.D.Ind.1988). Doby appeals. Because we agree with the district court’s reasoning, we adopt its opinion as our own. We add only that because of the district court’s reasoning, we need not reach the government’s contention that the arson fell within § 841(i) because the home received natural gas from an out-of-state source.
Affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
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.
HIRAM WALKER & SONS, INC., Plaintiff-Appellee, v. KIRK LINE, et al., Defendants, Indian River Transport, Inc., Defendant-Appellant. HIRAM WALKER & SONS, INC., Plaintiff-Appellee, v. KIRK LINE, et al., Defendants, Eller & Company, Inc., Defendant-Appellant, Indian River Transport, Inc., Defendant-Appellee. HIRAM WALKER & SONS, INC., Plaintiff-Appellee, v. KIRK LINE, R.B. Kirkconnell & Bro. Ltd., et al., Defendants, Indian River Transport, Inc., Defendant-Appellant. HIRAM WALKER & SONS, INC., Plaintiff-Appellee, Cross-Appellant, v. KIRK LINE, R.B. Kirkconnell & Bro., Ltd., Jamaica Merchant Marine Atlantic Line Ltd., Indian River Transport, Inc., SS MORANT BAY, its engines, boilers, etc., Defendants, Eller & Company, Inc., Indian River Transport, Inc., Defendants-Appellants, Cross-Appellees.
Nos. 87-5048, 87-5094, 87-5111 and 88-5180.
United States Court of Appeals, Eleventh Circuit.
July 21, 1989.
Mark A. Leibowitz, Jay M. Levy, Her-shoff & Levy, John D. Kehoe, David F. McIntosh, Corfett, Killian, Hardeman, McIntosh & Levi, Miami, Fla., for Indian River Transport, Inc.
John P. D’Ambrosio, Elmsfore, N.Y., for Hiram Walker & Sons, Inc.
Christian D. Keedy, Smathers & Thompson, Kelley, Drye & Warren, Craig Drake Olmstead, Miami, Fla., for Eller & Co., Inc.
Before KRAVITCH and HATCHETT, Circuit Judges, and MARKEY , Chief Circuit Judge.
Honorable Howard T. Markey, Chief U.S. Circuit Judge for the Federal Circuit, sitting by designation.
KRAVITCH, Circuit Judge:
The plaintiff Hiram Walker & Sons, Inc. (Hiram Walker), filed this action in the Southern District of New York against defendants Indian River Transport, Inc. (Indian River), Eller & Company, Inc. (Eller), R.B. Kirkconnell & Bro., Ltd. (Kirk Line), and Jamaica Merchant Marine Atlantic Line, Ltd. (Jamaica Line), seeking damages for the loss of several thousand gallons of the liqueur Tia Maria. Upon Eller’s motion, the case was subsequently transferred to the Southern District of Florida. After all parties moved for summary judgment, the district court dismissed Kirk Line and Jamaica Line from the action, and granted Hiram Walker’s motion against Eller and Indian River on the question of liability. Indian River and Eller each filed an interlocutory appeal in this court, but because of a jurisdictional problem those appeals were never decided on the merits. The district court subsequently held a bench trial to determine the amount of damages due Hiram Walker. Following the trial, the district court quantified Hiram Walker’s damages, for which it adjudged Eller and Indian River each fifty percent liable. Eller and Indian River appealed; Hiram Walker cross-appealed against those two defendants but did not appeal the district court’s dismissal of the actions against Kirk Line and Jamaica Line. We consolidated all appeals from the earlier summary-judgment order and the order following trial; we now reverse and remand.
I. BACKGROUND
Hiram Walker purchased five thousand gallons of Tia Maria from Estate Industries in Jamaica on March 15, 1985. On March 26, a twenty-three ton tank containing the liqueur was loaded aboard the M/V Mov-ant Bay in Kingston, apparently in good order. Kirk Line had chartered the Mov-ant Bay from its proprietor, Jamaica Line, for a shipment of cargo including Hiram Walker’s liqueur, which was shipped under a Kirk Line-Hiram Walker bill of lading. The tank arrived in Miami three days later. Kirk Line hired Eller, a stevedore, to unload the tank from the Morant Bay and store it at the dock.
Hiram Walker contracted with Indian River to transport the liqueur overland to New Jersey; Hiram Walker and Indian River agreed that Indian River was to pump the liqueur from the tank into its freight trailer. On April 1, Jones, an employee of Indian River, arrived at the port to effect the pumping transfer. An Eller employee removed the tank from storage and aligned it with the trailer. Jones attempted to connect the tank and the trailer, but realized that a fitting needed to connect the hoses was missing. Even though another fitting on the back of the tank might have been used to pump the liqueur into the trailer, Jones decided that pumping the liqueur would be impossible; therefore, he asked Marshall, an Eller employee, to help him accomplish a “gravity feed” — essentially, Jones wanted to pour the liqueur from the tank to the trailer. To effect a gravity feed, the tank had to be elevated higher than the trailer. Marshall directed another Eller employee, Wright, to assist Jones. Wright lifted the tank on a large forklift; Wright, however, was not licensed to operate forklifts of this capacity.
Wright and Marshall neglected to put straw mats or other dunnage between the metal forks and the metal container. Fifteen minutes into the operation, the tank apparently began to slide off the forks because of the lack of dunnage. Deciding that the tank was not properly balanced, Marshall instructed Wright to find another forklift. Wright did not lower the tank, but left the forklift holding the tank suspended eight feet off the ground for ten minutes; leaving a load suspended was a violation of standard company procedure. As Wright returned, the tank fell off the forklift. The tank ruptured, and eighty-five percent of the Tia Maria in the tank spilled out. The liqueur remaining in the tank was contaminated during the clean-up, in which several fire-engine companies covered the area with anti-explosive foam.
II. BASIS OF FEDERAL JURISDICTION
The claim against Indian River was pleaded as a federal question; and against Eller, in diversity. The district court analyzed the cases against Eller and Indian River under maritime tort law; because the accident in question did not occur at a maritime situs, however, admiralty jurisdiction would not support the claims against these two defendants. Harville v. Johns-Manville Products Corp., 731 F.2d 775, 782 (11th Cir.1984); Boudloche v. Conoco Oil Corp., 615 F.2d 687, 688 (5th Cir.1980). On appeal, Indian River argues that the district court lacked subject-matter jurisdiction over the claim asserted against it. We of course may consider the question of Article III subject-matter jurisdiction for the first time on appeal; additionally, an explanation of the basis of federal jurisdiction over each defendant will point out the source of law applicable to each claim.
A. Federal subject-matter jurisdiction
Hiram Walker urges that its claim against Indian River arises under the Car-mack Amendment, 49 U.S.C. § 11707, which provides in relevant part:
A common carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission ... shall issue a receipt or bill of lading for property it receives for transportation under this subtitle. That carrier ... [is] liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (1) the receiving carrier.... Failure to issue a receipt or bill of lading does not affect the liability of a carrier....
49 U.S.C.A. § 11707(a)(1) (1988). In its complaint, Hiram Walker alleged that Indian River “totally breached, failed and violated its duties as an interstate common carrier in receiving, tending, caring for and delivering the [shipment of Tia Maria] in good condition, but on the contrary, so seriously [damaged] the same while in its possession that it was rendered a total loss.” Section 1337 of Title 28 imposes an amount-in-controversy requirement over suits brought under the Carmack Amendment; that requirement is satisfied by the allegations in the complaint. The complaint sufficiently pleaded a federal claim against Indian River.
Because the Carmack Amendment would not support the claim against Eller, Hiram Walker alleged that this claim was properly within the court’s diversity jurisdiction. 28 U.S.C. § 1332. In the complaint, Hiram Walker conspicuously failed to allege that it and Indian River were of diverse citizenship. Diversity jurisdiction ordinarily is not available “when any plaintiff is a citizen of the same State as any defendant.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978). An exception to the general rule exists, however, when the plaintiff joins a non-diverse defendant sued under federal law with a diverse defendant sued in diversity. Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 381, 79 S.Ct. 468, 485, 3 L.Ed.2d 368 (1959) (“Since the Jones Act provides an independent basis of federal jurisdiction over the non-diverse respondent, ... the rule of Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435, does not require dismissal of the claims against the diverse respondents.”); Kauth v. Hartford Ins. Co., 852 F.2d 951, 958-59 (7th Cir.1988); Baker v. J.C. Penney Co., 496 F.Supp. 922 (N.D.Ga.1980). In Baker, Judge Vining observed that an anomaly would be created by “not allowing a plaintiff to do in one federal suit what he would be entitled to do in two separate federal suits.” 496 F.Supp. at 924.
Alternatively, the claim against Eller was properly within the pendent-party jurisdiction of the district court. We recently held that district courts have
the power to hear the state claim against the second party if (1) the federal claim against the first party is substantial, meaning not “inescapably” frivolous, Jackson v. Stinchcomb, 635 F.2d 462, 471 (5th Cir.1981), (2) the statute conferring jurisdiction over the federal claim does not “expressly or by implication negate[ ]” the existence of pendent jurisdiction, Aldinger v. Howard, 427 U.S. 1, 18, 96 S.Ct. 2413, 2422, 49 L.Ed.2d 276 (1976), and (3) the state claim arises out of a “common nucleus of operative fact,” such that the plaintiff would be expected to try the federal and state claims together. [United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)].
Giardiello v. Balboa Ins. Co., 837 F.2d 1566, 1570 (11th Cir.1988) (emphasis in original). Here, the federal claim is substantial and the claims against Eller and Indian River, as joint tortfeasors, arise out of a “common nucleus of operative fact.” With regard to the second prong, even though claims under the Carmack Amendment may be brought in state court, 49 U.S.C. 11707(d)(1), Congress has neither expressly nor impliedly foreclosed the possibility of pendent-party jurisdiction under the Carmack Amendment. Boudreaux v. Puckett, 611 F.2d 1028, 1031 (5th Cir.1980) (no negation of pendent-party jurisdiction under 15 U.S.C. § 1981 even though such claims may be brought in state court); compare Aldinger, 427 U.S. at 19, 96 S.Ct. at 2422 (Congress impliedly negated pendent-party jurisdiction over counties in suits predicated on 28 U.S.C. § 1343(3), which provides jurisdiction for suits brought under 42 U.S.C. § 1983, because counties were not “persons” covered by § 1983 under the then-extant construction) with Giardiello, 837 F.2d at 1571 (no negation of pendent-party jurisdiction under ERISA); First Alabama Bank v. Parsons Steel, Inc., 747 F.2d 1367, 1377 (11th Cir.1984) (no negation of pendent-party jurisdiction under Bank Holding Company Act), rev’d on other grounds, 474 U.S. 518, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986); and Lykins v. Pointer Inc., 725 F.2d 645, 647 (11th Cir.1984) (no negation of pendent-party jurisdiction under 28 U.S.C. § 1346(b)).
B. Source of the rule of law
For Indian River, federal law governs the determination of liability and the measure of damages under the Carmack Amendment, and common-law principles give content to the federal rule. Hector Martinez & Co. v. Southern Pacific Transportation Co., 606 F.2d 106, 108 n. 1 (5th Cir.1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980); Dublin Co. v. Ryder Truck Lines, Inc., 417 F.2d 777, 778 (5th Cir.1969).
Analysis of the source of law for the claim against Eller is a bit more complicated. This action originally was filed in the Southern District of New York, and Eller moved that court, pursuant to 28 U.S.C. § 1404(a), to transfer the case to the Southern District of Florida. The Florida federal court, therefore, must apply the rule that would have been applied by the transferor New York federal court. Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 821, 11 L.Ed.2d 945 (1964). The New York federal court would have applied the New York choice-of-law rule in determining whether to apply Florida tort law or New York tort law to this claim. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941).
Over twenty-five years ago the New York Court of Appeals abandoned the strict lex loci delicti rule in favor of interest analysis for choice-of-law in torts cases. Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963). Interest analysis would in any event lead a New York court to apply Florida law in judging Eller’s conduct, even were Florida law inconsistent with the law in New York. See Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 480 N.E.2d 679, 491 N.Y.S.2d 90 (1985) (“when the conflicting rules involve the appropriate standards of conduct, rules of the road, for example, the law of the place of the tort ‘will usually have a predominant, if not exclusive concern’ ”); Hacohen v. Bolliger Ltd., 108 A.D.2d 357, 489 N.Y.S.2d 75 (1985) (where defendant’s standard of conduct is judged, court should look to the place of the tort in order to give effect to that jurisdiction’s interest in regulating conduct within its borders). Eller’s conduct is therefore to be measured under Florida law.
III. LIABILITY OF INDIAN RIVER AND ELLER
A. Indian River
We review the disposition of a motion for summary judgment de novo, applying the same standards that should have been applied by the district court. Eastern Air Lines v. Air Line Pilots Assoc. Int’l, 861 F.2d 1546, 1549 (11th Cir.1988). The district court drew the following inferences from the papers the parties submitted in support of their cross-motions for summary judgment:
A gravity feed, unlike a pumping transfer, required that the tank containing the liqueur be elevated to a height sufficient to allow sheer gravitational force to impel the liqueur in the tank to drain downward to the [Indian River] trailer. This operation, of course, was intrinsically and conspicuously fraught with dangers which would not have been present in a pumping transfer. It therefore seems plain that had Jones brought a cam-lock, the instrumentality needed to perform the transfer of the liqueur properly, the accident resulting in [Hiram Walker’s] tank of liqueur being dropped and spilled, would never have occurred.
On the basis of these observations, the district court adjudged Indian River liable for the damage to the Tia Maria. The trial court disregarded contradictory evidence and plainly drew inferences against Indian River, the non-movant. In the procedural posture of this case, the district court’s exercise of its fact-finding powers constituted reversible error.
The claim against Indian River appears to based on both a theory of tort and a theory of contract: Indian River behaved negligently in failing to bring the required fitting and then requesting a gravity transfer; alternatively, Indian River breached an express term of its contract with Hiram Walker by failing to perform a pump transfer. At least two questions are presented under a theory of tort that were not susceptible of resolution against Indian River on a motion for summary judgment. First, drawing inferences in favor of the non-movant, the district court should have concluded that it was “highly extraordinary” that Indian River’s failure to bring the proper fitting “should have brought about the harm.” Restatement (Second) of Torts § 435(2). The court may yet draw that conclusion after a full airing of the facts at trial, a conclusion that would absolve Indian River of liability for the lost liqueur.
Second, Indian River has demonstrated a very substantial question whether Eller’s behavior should be considered a superseding cause of the accident, another finding that would preclude Indian River’s liability. Restatement (Second) of Torts §§ 440-453. It is beyond dispute that Eller’s conduct “actively operate[d] in producing harm to [Hiram Walker] after [Indian River’s] negligent act or omission ha[d] been committed.” Restatement (Second) of Torts § 441(1). Eller’s conduct was thus an “intervening force” causing the spill; again drawing all inferences in favor of Indian River, the court should have determined that the intervening force was a superseding cause. Among other considerations, Eller's negligence brought about “harm different in kind from that which would otherwise have resulted from [Indian River’s] negligence;” Eller’s negligence was not “a normal result” of Indian River’s negligence; the intervening force was due to Eller’s action; and “the intervening force [was] due to an act of [Eller] which [was] wrongful toward [Hiram Walker] and as such subjected] [Eller] to liability.” See Restatement (Second) of Torts § 442. Evidence before the district court established the foregoing for summary judgment purposes; the court had before it proof that gravity transfers are common and usual, and that Eller had previously performed gravity feeds for Indian River’s drivers who had arrived without the proper pumping equipment.
As a matter of law, Indian River’s conduct in ordering a gravity feed cannot be characterized as negligent on the basis of the facts before the district court. The district court had before it no evidence tending to show that gravity feeds are inherently and unreasonably dangerous; to the contrary, the court was presented with evidence that dockworkers often perform gravity feeds. It may be that gravity feeds are more difficult than pump transfers, but that alone would not render one who requests a gravity feed liable for any damage that arises from a botched execution. We are presented with no substantial evidence that a competently executed gravity feed is an unreasonable solution to the problem of transferring a liquid from one tank to another; indeed, a gravity feed may under some circumstances be more efficient than pumping transfers. We cannot write a rule of law which would prevent prudent persons from requesting gravity feeds.
Nor was summary judgment against Indian River proper under a theory of contract. Assuming Indian River did breach its contract with Hiram Walker, it would be liable only for those damages which it had “reason to foresee as a probable result of the breach when the contract was made.” Restatement (Second) of Contracts § 351(1); see Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854). We certainly cannot say as a matter of law that Indian River had “reason to foresee” that its failure to perform a pump transfer and its request that Eller undertake a gravity feed would result in the loss of nearly all of the Tia Maria. Whether framed as a tort or a breach of contract, summary judgment should not have been entered against Indian River on the question of liability.
B. Eller
We agree that the undisputed facts surrounding the loss of the Tia Maria established Eller’s negligence as a matter of Florida law. See Russ v. State, 140 Fla. 217, 191 So. 296 (1939); Seaboard Coast Line R.R. Co. v. Griffis, 381 So.2d 1063, 1065 (Fla.App.) (“Negligence is the failure to observe, for the protection of another’s interest, such care and precaution as the circumstances demand, or the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances.”), cert. denied, 376 So.2d 72 (Fla.1979); Stirling v. Sapp, 229 So.2d 850, 853 (Fla.1969) (“Where the facts are undisputed and the evidence is reasonably susceptible of but a single inference, the question of defendant’s negligence ... becomes one of law for the court.”). An Eller employee not licensed to operate the particular forklift raised the twenty-three ton tank containing Tia Maria without placing dun-nage between the tank and the blades of the forklift. When his supervisor noticed that the tank was slipping, the employee left the tank suspended above the ground for several minutes while searching for another forklift. The tank fell and ruptured; the Tia Maria was lost to the happy wharf rats. Hiram Walker satisfied its burden of producing enough undisputed evidence to make out a prima facie case for negligence under the Russ standard. The burden shifted to Eller to show that, notwithstanding these facts, its employees’ behavior was reasonable under the circumstances. Eller argues that the trial court incorrectly presumed that the Eller forklift operator should have complied with standard operating procedures and “lowered the tank when the tilt was first noticed to save the day.” Eller, who had the burden of showing that this direct inference from the undisputed facts was at least questionable, points to no proffer that calls the inference into doubt. Even assuming that the tank could not have been lowered, Eller does not proffer evidence suggesting why it should not be held negligent for allowing an unlicensed forklift operator to lift the tank without proper dunnage. Accordingly, Eller has raised only a “metaphysical doubt” as to the material facts and its claim must fail. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (when moving party has satisfied its burden, non-movant must come forward with “specific facts showing that there is a genuine issue for trial ” (quoting Fed.R.Civ.P. 56(c)) (emphasis in original)).
Hiram Walker and Eller also join issue on the effect of a “Himalaya” clause in Kirk Line’s bill of lading, which provides that the “limitation of liability [in the Carriage of Goods by Sea Act (COGSA) ] shall inure ... to the benefit of any independent contractors performing services hereunder including stevedoring in connection with the goods covered hereunder.” COGSA limits liability to $500 for damage to the tank, a “customary freight unit.” E.g., Caterpillar Americas Co. v. S.S. Sea Roads, 231 F.Supp. 647 (S.D.Fla.1964), aff'd, 364 F.2d 829 (5th Cir.1966). Kirk Line hired Eller, a stevedore, to complete its delivery obligation; Eller was an independent contractor. On summary judgment, however, the trial court concluded as a matter of law that “Eller was a volunteer and acted only when [Indian River] failed to provide the necessary equipment for the pumping operation.” Accordingly, the court found that Eller was not acting within the scope of its stevedoring responsibilities to Kirk Line, and was not entitled to the limitation-of-liability provision of COG-SA. We review this determination de novo, applying the law of COGSA which the parties to the bill of lading made applicable beyond the Act’s legal scope. Assicurazioni Generali v. D’Amico, 766 F.2d 485, 488 (11th Cir.1985); Triple E Development Co. v. Floridagold Citrus Corp., 51 So.2d 435, 438 (Fla.1951) (intent of parties governs construction of contract).
Although Himalaya clauses must be “strictly construed and limited to intended beneficiaries,” Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 305, 79 S.Ct. 766, 771, 3 L.Ed.2d 820 (1959); Certain Underwriters at Lloyds v. Barber Blue Sea Line, 675 F.2d 266, 269 (11th Cir.1982), “[w]hen a bill of lading refers to a class of persons such as ‘agents’ or ‘independent contractors' it is clear that the contract includes all those persons engaged by the carrier within the scope of the carriage contract.” Id. at 270. Kirk Line was responsible under the bill of lading for delivering the Tia Maria to Hiram Walker’s agent Indian River; Eller would be an intended beneficiary of the Himalaya clause as long as Kirk Line had not completely discharged its responsibility by the time of the spill. Assicurazioni Generali, 766 F.2d at 489. The question thus presented is whether Kirk Line’s duty was fulfilled when Eller aligned the tank with Indian River’s truck; if so, Kirk Line had completed its responsibilities under the bill of lading before the spill occurred, and Eller could not be said to have been an “independent contractor performing services” under the bill of lading at the time of the accident. If, however, because of Indian River’s failure to secure the proper fitting, delivery was not completed by the mere alignment of the tank with the trailer, then Kirk Line’s duty of delivery would have continued and Eller would have been “an independent contractor performing services” under the bill of lading at the time of the spill, entitled to the $500 limitation.
Hiram Walker proffered the following evidence on this narrow question. First, it offered the deposition testimony of Eller’s director of safety, in which he stated that Eller employees had performed the gravity transfer for the convenience of Indian River and agreed that “doing the gravity transfer bit was over and above the normal expected activities of Eller in transferring products.” Second, this witness testified that during a pumping transfer, Eller had the duty to align the tank and the trailer, but Indian River had the duty to effect the transfer. (Another deposition witness, El-ler’s employee Marshall, confirmed that Indian River bore responsibility for the mechanics of a pump transfer once Eller aligned the tank and the trailer.) Finally, Hiram Walker offered the affidavit of its traffic manager, who stated that “[i]t was HIRAM WALKER’S understanding with INDIAN RIVER that it was the latter’s sole responsibility to transfer the bulk products from the ocean tanks to its tankers. It was not part of HIRAM WALKER’S agreement with KIRK LINE that KIRK LINE would bear that responsibility.”
Eller for its part proffered the affidavit of its local Miami manager, who stated that Eller’s responsibility as an independent contractor for Kirk Line was to “physically move the cargo from ELLER’s lot and deliver the cargo to the consignee by transferring physical possession of the cargo to the consignee.” Of course, Eller’s local manager is probably in a better position than its safety director to know the stevedore’s responsibilities.
Neither party’s proffer demonstrates as a matter of law or undisputed fact at what point discharge of Kirk Line’s responsibility under the bill of lading occurred. The affidavit of Hiram Walker’s safety manager is the only direct evidence that the agreement between Hiram Walker and Kirk Line did not contemplate Kirk Line having any responsibility for the actual transfer of the Tia Maria, but this evidence has substantial weaknesses: it is a conclu-sory statement of an interested party and makes no reference to the actual written agreement between Kirk Line and Hiram Walker; further, it may be predicated upon the incorrect assumption that only a pump transfer would occur.
Inferences from the statements of Eller’s director of safety and its Miami manager lead in opposite directions; a reasonable inference from the statement proffered by Hiram Walker is that Eller — and therefore presumably Kirk Line — had no responsibility for the actual transfer of the liquid cargo whether the transfer was effected by a gravity feed or by pumping. On the other hand, one could reasonably infer from the statement proffered by Eller that the stevedore — and thus presumably Kirk Line — remained responsible under the bill of lading until the last of the liquid cargo was transferred to the care of Hiram Walker’s agent Indian River. Moreover, there are good reasons why a consignee such as Indian River may be responsible for a pumping transfer but not a gravity feed: the pump itself is apparently attached to the consignee’s trailer, but as gravity feeds require the use of a forklift, a stevedore may have primary responsibility for that kind of operation. When a pumping transfer is effected, delivery may occur when the tank and the trailer are aligned — but it does not necessarily follow that delivery in the case of a gravity feed can finally occur before the last of the liquid is drained into the trailer; the scope of Kirk Line’s duty under the bill of lading may thus depend upon the type of transfer that actually is performed. The district court should determine after trial whether Kirk Line’s obligations had completely terminated by the time of the spill, but its conclusion on summary judgment was in error.
REVERSED and REMANDED.
. Aetna, Hiram Walker’s insuror, paid the entire loss and thus Hiram Walker no longer has an interest in the case. Under the normal rules of subrogation, Aetna was the real party in interest and should have sued in its own name. Frank Briscoe Co. v. Georgia Sprinkler Co., 713 F.2d 1500, 1502 n. 1 (11th Cir.1983). The district court stated that Aetna should have filed an appearance, but held that the defect did not warrant dismissal of the claim because counsel for plaintiff advised on the record that he was bringing the claim for the use and benefit of Aetna. This was a bench trial, the fact finder knew that Aetna was the real party in interest, and no defendant has shown any prejudice. The district court did not abuse its discretion by constructively joining Aetna as a party plaintiff and refusing to dismiss the claim.
. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (in banc). The Eleventh Circuit adopted as binding precedent all decisions rendered by the former Fifth Circuit prior to October 1, 1981.
. Venue may have been incorrect in the New York district court. See 49 U.S.C. § 11707(d)(2)(A)(iii). No party raised this objection, however, and the error was probably cured by the subsequent transfer to the Southern District of Florida.
. Hiram Walker argues that because this case was to be tried without a jury, we should apply the clearly erroneous test of Rule 52 to the findings made by the district judge on summary judgment. Cf. Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-25 & n. 6 (5th Cir.1978) (“If decision is to be reached by the court, and there are no issues of witness credibility, the court may conclude on the basis of the affidavits, depositions, and stipulations before it, that there are no genuine issues of material fact, even though decision may depend on inferences to be drawn from what has been incontrovertibly proved.’’) Assuming that the pleadings incontrovertibly proved all material facts such that only inferences remained to be drawn, we would be left with a definite and firm conviction that the district court erred in holding Indian River liable. Moreover, the trial judge may have incorrectly assumed that no facts were in dispute, for the judge noted that "all the parties to this action have moved for summary judgment, thereby clearly indicating their accord that no genuine issue of fact remains to be resolved.” This is not a correct statement of the law; a movant may be correct in stating that the facts relevant to his theory of the case are not in dispute, yet contest the relevant issues of fact under his opponent’s theory. Walling v. Richmond Screw Anchor Co., 154 F.2d 780, 784 (2d Cir.), cert. denied, 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640 (1946). For this reason we think it prudent not to accord a presumption of correctness to the district judge’s fact-finding.
. It is irrelevant that Hiram Walker may have agreed to waive a substantial portion of Eller’s liability; Eller's conduct nonetheless subjected it to liability to Hiram Walker.
. Hiram Walker quotes three Restatement (Second) of Torts provisions
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Shirley PIERCE, Plaintiff-Appellant, v. The COUNTY OF OAKLAND; The Oakland County Board of Auditors; Daniel Key Murphy and Fred D. Houghton in their official capacities, Defendants-Ap-pellees.
No. 79-1684.
United States Court of Appeals, Sixth Circuit.
July 2, 1981.
William Waterman, Waterman, Hooe, Curry & Hughes, Pontiac, Mich., for plaintiff-appellant.
Jack C. Hays, John F. Ross, Jr., Pontiac, Mich., for defendants-appellees.
Before MERRITT, KENNEDY and BOYCE F. MARTIN, Circuit Judges.
PER CURIAM.
This is a Title VII action in which Shirley Pierce alleges that she was discharged from her employment with the Oakland County Board of Auditors on account of her race. The District Court dismissed the complaint on the ground that the statute of limitations had run, and Pierce appeals.
Pierce was discharged from her employment in May of 1970. On May 13, 1970, she filed a complaint with the Michigan Civil Rights Commission alleging that her firing was racially motivated. For a period of about five years the Commission did virtually nothing about the complaint, which Pierce withdrew in October of 1975. On January 28, 1976, she filed this action. The defendants’ answer did not raise the expiration of the statute of limitations as an affirmative defense. Nor did the defendants raise the defense at any of the three pre-trial conferences, although they apparently mentioned at one conference that they intended to raise a jurisdictional defense.
The case was set for trial on June 12, 1979. The defendants moved on that day to dismiss the action for failure to state a claim upon which relief could be granted because the statute of limitations had run. The District Court noted that, as a general rule, this was an affirmative defense which must be pleaded in the answer. It further observed, however, that when an affirmative defense appears on the face of the complaint, a complaint is subject to dismissal for failure to state a claim notwithstanding a defendant’s failure to plead the affirmative defense. Because it was apparent from the face of the complaint that the three-year statute of limitations had run, the District Court granted the motion to dismiss. We affirm.
This court has expressed the view that an affirmative defense based on the statute of limitations must be pleaded in order to support a dismissal. Crawford v. Zeitler, 326 F.2d 119 (6th Cir. 1964). See also United States v. Masonry Contractor’s Assoc. of Memphis, 497 F.2d 871 (6th Cir. 1974). However, earlier Sixth Circuit eases have held that an affirmative defense is not waived, even though not specifically pleaded, where the defense clearly appears on the face of the pleading and is raised in a motion to dismiss. Berry v. Chrysler, 150 F.2d 1002 (6th Cir. 1945); A. G. Reeves Steel Construction Co. v. Weiss, 119 F.2d 472 (6th Cir.), cert. denied, 314 U.S. 677, 62 S.Ct. 181, 86 L.Ed. 541 (1941). This rule has been followed by lower courts in this circuit, see Heller v. Smither, 437 F.Supp. 1 (D.C.Tenn.1977), aff’d, 578 F.2d 1380 (6th Cir. 1978); Overseas Motors Inc. v. Import Motors Limited, Inc., 375 F.Supp. 499 (E.D. Mich.1974), aff’d, 519 F.2d 119 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 304 (1975), and is in our view the general rule applicable in this circuit. See also 5 Wright & Miller, Federal Practice and Procedure, § 1277 at 332, § 1309 at 439 (1969).
It is clear, therefore, that the defense was not waived simply because it was raised in a motion to dismiss rather than in the answer. To so hold “would be reminiscent of the days of common law pleading when the strict rules and forms of pleading were sovereign and frequently were permitted to prevail over substance.” Hayden v. Ford Motor Company, 497 F.2d 1292, 1294 (6th Cir. 1974).
We also hold that the circumstances of this case do not compel a finding that defendants waived the defense by failing to raise it for three and one-half years. Appellant did not forego other avenues of relief in reliance on defendants’ failure to raise the defense, see Hayden, supra; Estes v. Kentucky Utilities Co., 636 F.2d 1131 (6th Cir. 1980); nor has appellant suffered litigation expenses sufficient to warrant the preclusion of the defense in a pretrial motion to dismiss. Id. at 1134-35.
The judgment of the District Court is affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_respond1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
BARLOW v. PAN ATLANTIC S. S. CORPORATION et al.
No. 176.
Circuit Court of Appeals, Second Circuit.
Feb. 6, 1939.
Jacob Rassner, of New York City, for appellant.
Barber, Matters, Gay & Vander Clute, of New York City (Russell C. Gay, of New York City, of counsel) for appellees.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
SWAN, Circuit Judge.
This litigation arises out of physical injuries sustained by Walter H. Barlow during his employment as an ordinary seaman on the “Panama City,” a vessel owned and operated by the Pan Atlantic Steamship Corporation. On the evening of September 27, 1937, while the vessel was lying at a dock in Greenpoint, Brooklyn, N. Y,, Barlow fell from the saloon deck to the well deck, a distance of about eight feet. His story of the accident is that he was sitting on a box placed near the top of the ladder leading to the well deck and was listening to a radio in the room of the third assistant engineer, when another seaman, negligently rushing by, came into contact with him so violently as to throw him off the box and down the ladder. The story told by witnesses for the shipowner is that Barlow went ashore, returned to the vessel in a state of intoxication, and because thereof fell from the ladder when trying to descend to the well deck. The ladder was in perfect condition and well lighted. Strub, the third assistant engineer, came from his room on hearing the sound of a fall, saw Barlow lying on the deck below with a bloody head, and sent a junior engineer to call Ellis, the second mate. These three took him to the first mate’s room, because of its nearness to the ship’s hospital room, and Ellis bathed and bandaged his wounds. He was able to walk back to his bunk in the forecastle, and Ellis saw that he went to bed, and told another seaman who slept in the same room to keep an eye on him and notify Ellis if he appeared to be suffering during the night. The next morning Barlow complained of soreness in his chest, and an ambulance was called to take him to the Marine Hospital at Staten Island. There it was determined that he had received a serious injury to the brain and spinal cord.
The libel asserts three alleged causes of action, the first count charging negligence of a fellow seaman in causing the fall, the second failure to provide prompt, adequate and proper medical treatment, and the third refusal to pay the expenses of maintenance and cure. The district judge found that the accident was caused by.Barlow’s intoxication and dismissed his libel.
The appeal raises only a question of fact as to the first count. Plainly there was ample evidence to support the finding that the libellant fell down the ladder because he was drunk. There was no corroboration of his story that Karafile ran against him, knocking him off the box, and Judge Galston did not believe it. It is elementary that the weight of the evidence on an issue determined by the trial judge is not to be reviewed by an appellate court. If there was error, as argued, in admitting the hospital record and Barlow’s signed statement that neither the vessel nor any of its crew was to blame for his fall, the error was harmless, for Judge Galston’s opinion states that regardless of these documents his finding would be the same.
Complaint is made that nothing was said of the second cause of action in the trial court’s opinion. Although the opinion invited the parties, if they so desired, to submit findings of fact and conclusions of law, the libellant apparently did not do so nor ask to have the opinion amplified. He now urges this court to make findings in support of the second cause of action. The argument is that the libellant’s injuries were aggravated by failure to send him to the hospital until the following morning and that second mate Ellis was negligent in not realizing, the severity of the injury and summoning the hospital ambulance at once. But on the evidence we can find no evidence of negligence. Barlow received the ordinary type of simple first aid treatment, which is all that can reasonably be expected from officers of a vessel having no professional doctor. After bathing and attempting to sterilize the wounds; Ellis suggested calling the ambulance, but Barlow protested^ against being sent to a hospital. He was able to walk back to his quarters in the forecastle and Ellis took this as evidence that he did not require hospitalization. Not every broken head, even if the blow is severe enough to render the victim temporarily unconscious, requires professional medical attention. Barlow had quickly come to, and after treatment was able to talk rationally and to walk to his quarters. Ellis also took the precaution to warn Barlow’s roommate to keep an eye on him and to report if he became restless of suffered pain during the night. While a trained physician might have realized the advisability of sending the wounded man to a hospital at once, a ship’s officer cannot be held to the same standard of skill as a professional medical man. Ellis showed as much care and judgment as can reasonably be expected under the circumstances. Hence the cause of action alleged in the second count was not proved.
The third count raises a question of law, namely, whether a seaman has a right to maintenance and cure for injuries resulting from his drunkenness. The general rule that a vessel and her owner are liable for maintenance and cure, if a seaman falls sick or is wounded in the service of the ship, is subject to a well-recognized exception, dating back to some of the earliest maritime codes, in case his disease or injury arises from his own vices or willful misconduct. See The Osceola, 189 U.S. 158, 169, 23 S.Ct. 483, 47 L.Ed. 760; The Bouker No. 2, 2 Cir., 241 F. 831, 833; The Alector, 263 F. 1007, D.C.E.D.Va. Although federal decisions applying this prin•ciple to injuries arising from drunkenness appear to be surprisingly few, there are at least two well-reasoned cases of that character. The Berwindglen, 1 Cir., 88 F.2d 125, 128; Lortie v. American-Hawaiian S. S. Co., 9 Cir., 78 F.2d 819. In The Quaker City, 1 F.Supp. 840, D.C.E.D.Pa., Judge Dickinson ruled that “mere drunkenness” does not forfeit the right to maintenance and cure; but there was no express finding that the accident was caused by the libellant’s drunkenness. In the Berwindglen, supra, where there was such a finding, recovery was denied. If The Quaker City is not thus distinguishable, we must respectfully disagree with it. When it is clear that a seaman’s injuries occurred solely because of his intoxication, we think they are rightly held to be occasioned by his own misconduct and that the shipowner is under no duty to provide maintenance and cure. Such injuries are not incurred “in the service of the ship.” As to the meaning of that phrase, see Meyer v. Dollar S. S. Line, 9 Cir., 49 F.2d 1002; Collins v. Dollar S. S. Lines, 23 F.Supp. 395, D.C.S.D.N.Y.
Decree affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
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.
BEMIS BROS. BAG CO. v. UNITED STATES.
No. 9415.
Circuit Court of Appeals, Eighth Circuit.
Aug. 29, 1932.
Rehearing Denied Sept. 30, 1932.
Abraham Lowenhaupt, of St. Louis, Mo. (Spencer M. Thomas and Lowenhaupt & Waite, all of St. Louis, Mo., on the brief), for appellant.
Frederick W. Dewart, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C, (Louis H. Breuer, IT. S. Atty., of Rolla, Mo., Claude M. Crooks, Asst. U. S. Atty., of St. Louis, Mo., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for appellee.
Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.
NORDBYE, District Judge.
This action was brought to recover income and excess profits taxes paid by appellant for the years 1918 and 1919. The collector to whom the taxes were paid having gone out of office, the action was brought directly against the United States. The action was tried to the court without a jury on an agreed statement of facts. The only question presented to the lower court was whether or not the plaintiff in its claim for refund, at any time before the running of the statute of .limitations, stated the facts or grounds upon which it asserted its right to a refund.
Paragraph 18 of the stipulation provides as follows:
'■'!£ the appellant within the time provided by law, filed claims for refund for the years 1918 and 1919 respectively, which under the law were sufficient to be the required preliminary for the maintenance of this action on that ground, above stated, then appellant may he entitled to judgment for the year 1918 in the amount of $14,054.18, with interest, and for the year 1919 in the amount of $9,073.15, with interest.
“If the elaims for refund filed by the appellant for the years 1918 and 1919 respectively, were not sufficient under the law to be the required preliminary for the maintenance of this action on that ground, the appellee will be entitled to judgment dismissing this action.”
The appellant on February 2-9, 1924, filed its claim for refund for 1918 of $1,270,907.97, and on December 12, 1924, its claim for refund for 1919 in the sum of $606,546.13. These elaims for refund were based on the contention that the excess profits tax and war profits tax should be assessed under the provisions of sections 327 and 328 of the Revenue Act of 1918 (40' Stat. 1.093). These sections are relief statutes enacted for the purpose of relieving' a taxpayer from an excessive tax. Provision is made in section 327 for eases where the Commissioner is unable to determine the invested capital of the taxpayer, and in section 328 it is provided that “in the cases specified in section 327 the tax shall be the amount which bears the same ratio to the net income of the taxpayer (in excess of the specific exemption of $3,000) for the taxable year, as the average tax of representative corporations engaged in a like or similar trade or business, bears to their average net income (in excess of the specific exemption of $3,000) for such year.”
In filing its elaims for refund for the years 1918 and 1919, reference was made to a brief theretofore filed in support of the claim for refund for the 1917 taxes, and an additional brief was filed in support of the elaims for refund for the years 1918 and 1919. The claim for refund for the year 1918 stated the following:
“Deponent verily believes that this application should be allowed for the following reasons: The Excess Profits Tax and War Profits Tax against this company for the year 1918 should he assessed under the provisions of sections 327 and 328 of the Revenue Act of 1918.
“The facts and argument in support of this claim are contained in a brief, duly verified, which has been filed with the Commissioner of Internal Revenue, in support of a claim for refund made in connection with the company’s return for 1917 and the tax paid thereon. The facts and circumstances which entitle the company to assessment under said sections for 1917 obtained also in 1918. In order to simplify matter and avoid repetition, the brief filed with the claim for refund for 1917 (a copy of which brief is attached hereto) by reference thereto is made a part of this claim.”
The brief attached to the claim for refund and by reference made a part of it states as follows:
“In Re: Claim of Bemis Bro. Bag Company for Refund of Taxes for the Year 1917 Based Upon Right to Special Assessment.
“To the honorable Commissioner of Internal Revenue, Washington, D. C.:
“Bemis Bro. Bag Company has heretofore filed its claim for refund of taxes for the year 1917, based upon the right to assessment of its Excess Profits Taxes under section 210 of the Reverme Act of 1917. It now desires to elaborate and present in detail the reasons why its Excess Profits Tax for said year should be so determined.
“Statement. — The facts are hereafter stated in the order and under the subdivision above written.
“I. Reasons Why the Tax Should be so Determined and the Facts Upon which Such Reasons Are Based.
“V. Relief Sought.
“Relying upon the sufficiency of the facts above recited to entitle it to the assessment of its Excess Profits Tax liability under the provisions of section 210 of the Revenue Act of 1917,’Bemis Bro. Bag Company has heretofore presented a claim for refund for the year 1917.”
A similar statement and a. similar reference to the 1917 brief was used in filing the claim for refund for the year 1919.
The appellant in filing its claim for refund for the years in question, in the brief above referred to, attempted to set forth in substantiation of its claim, the fact that injustice would be done if it were not permitted to receive the benefit of the special assessment provided in sections 327 and 328 of the 1918 Revenue Act. It proceeded to set forth in detail the various phases of its business which made it difficult to determine the values of the several classes of property that were paid in for* stock. It is quite apparent that the appellant was concerned over the large tax it was required to pay to the government, and felt that t}ie relation of its income to its invested capital was strikingly abnormal. It set out a large number of reasons why it was entitled to a tax based on a comparison with representative corporations engaged in a like or similar business. Instances were cited of the accounting policy of the company in previous years where expenditures were charged to expense or profit and loss, when good accountancy would have justified the capitalization thereof. As an example of the conservative methods employed by the company, reference was made to certain printing plates which are used for the purpose of printing the various brands on the bags that are manufactured by the appellant. That is, the appellant is equipped to print upon the bags manufactured, the user’s brands. During the years it has been in business, it has accumulated a large amount of printing sets for the printing of user’s brands, which it contended were reasonably worth $851,375.50. The value was according to the taxpayer something more than the mere consideration of bare labor and material that went into the manufacture of the printing set. It represented the results of alert business solicitation and advertising with years of service that has been rendered by it to its customers; consequently, it contended in this presentation to the Commissioner, that the printing equipment represented an accumulation of years of good will, and although expense had been eharg'ed from year to year for the actual outlay for labor and material, no portion of this value had ever been added to the invested capital.
The facts concerning the original incorporation of the company and the early history of the corporation were presented to substantiate the failure! on the part of the company to capitalize its good will in the proper amount. New’plants, it was contended, had been obtained from time to time, and no good will value was set up on the books for the different properties that were acquired in the long period of time that it had been engaged in the manufacturing business. Failure to properly capitalize certain patent rights was also set forth in the taxpayer’s brief. Not ail the various items which were incapable of proper valuation and which should have gone into capital were set forth. It was merely the intention of the taxpayer* as disclosed by its brief, to throw some light upon what appeared to be abnormal profits upon which it was assessed; and it was contended by the taxpayer that the showing made entitled it to the special assessment that it requested. In other words, the various phases of the business of the taxpayer were set forth in order that the Commissioner would be convinced that the large taxes that had been assessed arose on account of under-capitalization, rather than excessive profits.
Section 156, title 26, USCA provides that: “No suit or proceeding shall be maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of, any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof. * * * ”
The statute of limitations applicable fixes the time for filing such claim at four years after the payment of any part of the taxes. The claims filed on February 29, 1924, and December 32, 3924, were timely, and were duly considered by the Commissioner on,their merits. On October 30, 1926, a communication was sent by the Treasury Department to the taxpayer, a portion of which reads as follows:
“You are advised that after careful consideration and review your application under the provisions of section; 327 of the Revenue Act of 1918 has been denied for the reason that the evidence presented fails to establish that your invested capital or net income is affected by abnormal conditions which would justify the Bureau in computing your tax under the provisions of section 328 of the above mentioned Act.
“In accordance with the above conclusions, your claim for refund; will be rejected in full.”
On November 27, 3.926, a second communication was sent by the Treasury Department to the taxpayer, a portion of which reads as follows:
“After careful consideration and review, your application under provisions of sections 210 and 327 of the Revenue Acts of 1917 and 1918 for assessment of your profits tax as prescribed in sections 210 and 328 of the above mentioned Acts has been denied, inasmuch as the audit disclosed no exceptional hardship evidenced by gross disproportion between the tax computed by reference to representative concerns specified in sections 210 and 328.
“In accordance with the above conclusions, your claims for refund of $1,770,104.23 and $35,355.79 for 1917 and $1,270,907.97 for 1918 will bo rejected in full.”
It is clear that the claim for special assessment for the years 193 8 and 1919 wa,s re jeeted by those letters. On' December 13, 1926, after the statute of limitations had run on these claims, tho appellant sent to the Commissioner a communication referring to tho rejection, and among other things said:
“We protest against the rejection of said claims for refund for the following reasons:
“(a) The excess profits tax against tho Company for the year 193.7 should ho determined under section 239 of the Revenue Act of 1917 and the excess profits and war profits taxes for the years 1918 and 19.19 should bo determined under section 328 of the Revenue Act of 1918. The denial of said right must be based upon the use of improper comparatives as representative.
“(b) If the assessment of the excess profits taxes against the Company in the manner claimed in the above subdivision is denied, then tho items heretofore presented which have been improperly eliminated from invested capital should ho restored to invested capital and tho excess profits tax recalculated on that basis.”
Uui ther communication was sent by the taxpayer under date of April 12, 1927. Under date of December 17, 1927, the Commissioner wrote advising that the claims for the years 3917, 1918, and 1919' had been reconsidered in connection with the taxpayer’s protest, and the entire matter was then reviewed by the Commissioner, and the following is a portion of the communication so sent:
“In view of the above, your claim for the refund of $35,355.79, income and profits taxes for 3917, will be allowed for $32,675.42 and your claim for the refunding of $1,770,-.104.23 for 19.17 will be rejected in full, in the next schedule to be approved by the Commissioner.
“Inasmuch as computation of your tax li-sbi lity for 1918 and 3 919 under the provisions of sections 327 and 328¡ of the Revenue Act of 1918 (provision for special assessment) is denied and your claim for tho refunding of $1,270,907.97 for 1918 is confined to that point, it will be rejected in full in the next schedule to be approved by the Commissioner.
“Your claim for the computation of your tax liability for 1919 under the provisions of sections 327 and 328 has already been rejected.
“Tho over-assessments indicated for 1918 and 19.1.9 not being covered by proper claims are barred by the Statute of Limitations and cannot be allowed.”
In the review that was made by the Commissioner, the printing equipment items were considered, and it was determined by the Commissioner that the stereo metal used in producing the patterns and plates should be capitalized at cost in that it had a life of some years. The following is quoted from tho Commissioner’s letter of December 17, 1927: “Your contention for the restoration of printing equipment charged to expense in tho amount of $851,375.50, has been given careful consideration and it is found that all labor costs and material costs for patterns, plates, type and mats are charged directly to expense accounts in the current taxable years and it is believed such charges are proper. However, the stereo metal used in producing the patterns and plates inasmuch as it has a life of several years should be capitalized at cost. The average cost of such metal from 1905 to 1916, inclusive, is $.0893 per pound. The average cost for a term of years prior to 1917 should be used instead of the average cost subsequent to that date, in determining the value of such metal on hand January 1, 1917.”
The Commissioner then determined that the amount of $129,372.93 should be restored to printing equipment, and that the balance of the $851,375.50, or $722,002.57, should be disallowed for restoration to invested capital on the ground that it had been properly charged to expense. In making his computations, the Commissioner found that, after restoring the amount of $129,372.93 to the printing equipment, there had been an over-assessment of $14,054.18 in the tax paid for the year 1918, and $9,073.15 in the tax paid in the year 1919. The overassessments for the year 1917 were allowed; however, for the years 1918 and 1919 they were disallowed by the Commissioner because he contended that no proper claims had been filed before these claims were barred by the statute of limitations.
The fact that the Commissioner took it upon himself in considering the 1917, 1918, and 1919 taxes,/to reconsider the entire application, would not be of any avail to the appellant if in truth and in fact, the claim for refund sued upon herein was not filed with the Commissioner within the statutory period. It is not seriously contended by the appellant that the Commissioner waived any rights of the government by his communication of December 17,1927., The Commissioner would have no authority to extend the statute of limitations after the expiration thereof. The letter of December 13,1926, from the appellant to the Commissioner was written after the claims filed in 1924 were denied and after the statute of limitations had expired. The only question, therefore, presented to this court is whether or not the claims for refund filed by appellant on February 29,1924, and December 12,1924, were sufficient, under the law, to be the required preliminary for the maintenance of this action, whieh is based on overpayment of its taxes for 1918 and 1919 on the grounds that its invested capital is a larger amount than was set forth in its return for those years. The trial court held that the original application asked for a special assessment, and, in its application for special assessment, there was no indication that the taxpayer contended that it was entitled to a reduction of its taxes on the ground that there waá certain printing material that should have been added to its invested capital. In other words, the trial court held that this action is based upon a new and inconsistent ground compared to the original application for tax refund, and that for the reason that the original claim for refund did not state the grounds which are the basis for this suit, that no recovery can be had herein.
In the case of Tucker v. Alexander (C. C. A.) 15 F.(2d) 356, 357, the court stated: “Therefore, we think it is a required precedent or limitation that the action shall be upon the same grounds and only such as are presented in the claim. As no ground in this petition is stated in the claim for refund, we think this petition has no standing under the issues tendered by the petition.”
In the case of Red Wing Malting Co. v. Willcuts (C. C. A.) 15 F.(2d) 626, 634, 49 A. L. R. 459, the court stated: “The precise ground upon whieh the refund is demanded must be stated in the application to the Commissioner, and we think, if that is not done, a party cannot base a recovery in the court upon an entirely different and distinct ground from that presented to the Commissioner.”
In the case of United States v. Felt & Tarrant Manufacturing Company, 283 U. S. 269, 51 S. Ct. 376, 75 L. Ed. 1025, the Supreme Court had a very similar question presented to it. In that ease,-the taxpayer filed a claim for refund asking for special assessment as in the instant ease. This was denied and it brought suit on the basis that its gross income should be decreased by items of exhaustion or obsolescence of patents. The Supreme Court said on page 271 of 283 U. S., 51 S. Ct. 376, 377, 75 L. Ed. 1025:
“That section provides for a special method of assessment of excess profits taxes in any case where the Secretary of the Treasury is unable satisfactorily to determine the invested capital of the taxpayer. It has no relation to deductions from gross income on account of exhaustion or obsolescence of patents. In support of its claim, which was ultimately allowed in part, respondent prepared and filed a brief, and an oral argument was held in the officq of the Commissioner; but neither in its claim for refund, its brief, nor at the hearing, was mention made of the deduction now claimed.
“The filing of a claim or demand as a prerequisite to a suit to recover taxes paid is a familiar provision of the revenue laws, compliance with whieh may be insisted upon by the defendant, whether the collector or the United States. Tucker v. Alexander, 275 U. S. 228, 48 S. Ct. 45, 72 L. Ed. 253; Maryland Casualty Co. v. United States, 251 U. S. 342, 353, 354, 40 S. Ct. 155, 64 L. Ed. 297; Kings County Savings Institution v. Blair, 116 U. S. 200, 6 S. Ct. 353, 29 L. Ed. 657; Nichols v. United States, 7 Wall. 122, 130, 19 L. Ed. 125.
“One object of such requirements is to advise the appropriate officials of the demands or claims intended to he asserted, so as to insure an orderly administration of the revenue, Nichols v. United States, supra, page 130 of 7 Wall. [19 L. Ed. 125], a purpose not accomplished with respect to the present demand by the bare declaration in respondent’s claim that it was filed ‘to protect all possible legal rights of the taxpayer.’ The claim for refund which section 1338 [26 USCA § 156] makes prerequisite to suit, obviously relates to the claim which may he asserted by the suit. Hence, quite apart from the provisions of the Regulation, the statute is not satisfied by the filing of a paper which gives no notice of the amount or nature of the elaim for which tho suit is brought, and refera to no facts upon which it may be founded.
“The Court of Claims, in allowing recovery, relied upon Tucker v. Alexander, supra, and upon the fact that, at the time when respondent filed its return and its claim for refund, the Treasury had consistently refused to allow deductions from gross income for exhaustion of patents. Consequently it held that the filing of a demand which was certain to he refused was a futile and unnecessary act. But in Tucker v. Alexander the right of tho government to insist upon compliance with the statutory requirement was emphasized. Only because that right was recognized was it necessary to decide whether it could bo waived. Tho Court held that it could, and that in that ease it had bean waived by the stipulation of the collector filed in court. Here there was no compliance with the statute, nor was there a waiver of its condition, since the Commissioner had no knowledge of the claim and took no action with respect to it.
“The necessity for filing a claim such as tho statute requires is not dispensed with because the elaim may he rejected. It is the rejection which makes the suit necessary. An anticipated rejection of the elaim, which the statute contemplates, is not a ground for suspending its operation. Even though formal, the condition upon which tho consent to suit is given is defined by the words of tho statute, and ‘they mark the conditions of the claimant’s light.’ Rock Island [A. & L.] R. R. Co. v. United States, 254 U. S. 141, 143, 41 S. Ct. 55, 56, 65 L. Ed. 188. Compliance may bo dispensed with by waiver, as an administrative act, Tucker v. Alexander, supra; but it is not within the judicial province to read out of: the statute the requirement of its words, Rand v. United States, 249 U. S. 503, 510, 39 S. Ct. 359, 63 L. Ed. 731.”
The appellant takes the position that in its original claim for refund, the Commissioner had called to his attention all the facts necessary to justify a reduction in its taxes on the basis of increased capital. However, it seems clear that the reference to the printing equipment presented in the original claim for refund was merely used as an illustration of the inability to determine the values of the invested capital in order to substantiate the right of the claimant to have its taxes assessed under sections 32.7 and 328 of the Revenue Act of 1918. It was merely incidental. There is no particular similarity between a elaim for refund based on ai right of special assessment and a elaim for refund based on the right to have the invested capital increased. In fact, the appellant took the position, when its claim for refund was originally presented, that the facts regarding its invested capital and value of property paid in for its stock, could not be determined, and for that reason, it insisted that its tax should he assessed as the average tax of representative corporations engaged in a like or similar trade or business. It may he that there is some confusion between the terms “facts” and “grounds” as used with reference to claims for tax refund. But the purpose in setting out facts is to advise the Commissioner of tho grounds for tax reduction, and the: original claim was predicated solely upon the right of special assessment. Any reference in the elaim to the status of its printing equipment was merely referred to in support of the taxpayer’s right to special assessment. At least, one object of the requirement to set forth the facts in substantiation of tho elaim for refund is to advise the Commissioner so that there may he an orderly administration of tho Revenue Department. United States v. Pelt & Tarrant Mfg. Co., supra. If tho appellant had in mind that it was entitled to a tax reduction on account of increased invested capital, there would have been no difficulty whatsoever in setting forth such a statement and asking for a reduction on such specific ground. The only purpose evidenced by appellant in filing its claims was to obtain a special assessment in view of certain abnormal conditions and circumstances set forth in considerable detail in its brief in support of its claim. The Commission was asked to allow a special assessment. In view of these circumstances, no other claim was presented. The Commission’s attention, before the claim was barred by the statute of limitations, was mot called to any other claim for refund.
The court, in the case of Mutual Life Ins. Co. of New York v. United States, 49 F.(2d) 662, 72 Ct. Cl. 204, seems to have had substantially this same question before it. On page 664 of 49 F.(2d), 72 Ct. Cl. 204, it said: “Although the claim of August 2 stated certain facts with reference to the reserve funds at the beginning and end of the taxable year from which the 4 per cent, of the mean of these reserve funds could be determined, they were stated, considered, and acted upon by the commissioner for an entirely different purpose than that upon which the plaintiff now relies. No claim for refund of the nature asserted in this suit was ever made to the commissioner until the application for reconsideration long after he had rejected the claim and after the statute of limitation for filing a claim had expired.”
The claim for refund was prepared by the attorneys for appellant with considerable care. Great pains were taken in presenting to the Commissioner a voluminous brief in support of its contention tjhat it was entitled to a special assessment. The Commissioner considered appellant’s application for some two years, and then formally denied it. If appellant intended to press a claim for refund before the statute of limitations expired on the grounds that its invested capital should be increased by certain printing equipment, there was no indication of any such intention prior to December 13,1926. The target at which appellant was aiming was the consent of the Commissioner to have its tax assessed according to sections 327 and 328 of the Revenue Act of 1918. The fact that, in aid of that objective, certain facts appeared that might .furnish grounds for a partial refund on an entirely different and inconsistent claim, could hardly be considered a preliminary requirement to a suit for such partial refund. Connell v. Hopkins (D. C.) 43 F.(2d) 773; Lucas v. Pilliod Lumber Co., 281 U. S. 245, 50 S. Ct. 297, 74 L. Ed. 829, 67 A. L. R. 1350; Maas & Waldstein Co. v. United States, 283 U. S. 583, 51 S. Ct. 606, 75 L. Ed. 1285.
In accordance with the views herein expressed, the judgment of the lower court is 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:
|
sc_petitioner
|
113
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
DAY & ZIMMERMANN, INC. v. CHALLONER et al.
No. 75-245.
Decided November 3, 1975
Per Curiam.
Respondents sued petitioner in the United States District Court for the Eastern District of Texas seeking to recover damages for death and personal injury resulting from the premature explosion of a 105-mm. howitzer round in Cambodia. Federal jurisdiction was based on diversity of citizenship. The District Court held that the Texas law of strict liability in tort governed and submitted the case to the jury on that theory. The Court of Appeals for the Fifth Circuit affirmed a judgment in favor of respondents. 512 F. 2d 77 (1975).
The Court of Appeals stated that were it to apply Texas choice-of-law rules, the substantive law of Cambodia, the place of injury, would certainly control as to the wrongful death, and perhaps as to the claim for personal injury. It declined nevertheless to apply Texas choice-of-law rules, based in part on an earlier decision in Lester v. Aetna Life Ins. Co., 433 F. 2d 884 (CA5 1970), cert. denied, 402 U. S. 909 (1971), which it summarized as holding that “[w]e refused to look to the Louisiana conflict of law rule, deciding that as a matter of federal choice of law, we could not apply the law of a jurisdiction that had no interest in the case, no policy at stake.” 512 F. 2d, at 80 (emphasis in original). The Court of Appeals further supported its decision on the grounds that the rationale for applying the traditional conflicts rule applied by Texas “is not operative under the present facts”; and that it was “a Court of the United States, an instrumentality created to effectuate the laws and policies of the United States.”
We believe that the Court of Appeals either misinterpreted our longstanding decision in Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487 (1941), or else determined for itself that it was no longer of controlling force in a case such as this. We are of the opinion that Klaxon is by its terms applicable here and should have been adhered to by the Court of Appeals. In Klaxon, supra, at 496, this Court said:
“The conflict of laws rules to be applied by the federal court in Delaware must conform to those prevailing in Delaware’s state courts. Otherwise, the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side. See Erie R. Co. v. Tompkins, [304 U. S. 64, 74-77 (1938)].” (Footnote omitted.)
By parity of reasoning, the conflict-of-laws rules to be applied by a federal court in Texas must conform to those prevailing in the Texas state courts. A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits. The Court of Appeals in this case should identify and follow the Texas conflicts rule. What substantive law will govern when Texas’ rule is applied is a matter to be determined by the Court of Appeals.
The petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings in conformity with this opinion.
It is so ordered.
Mr. Justice Douglas took no part in the consideration or decision of this case.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_casetyp1_7-3-4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities".
In re PRINCE et al. NEW YORK CREDIT MEN’S ASS’N v. SCHNUR.
No. 341.
Circuit Court of Appeals, Second Circuit.
May 3, 1937.
Reit & Kaminsky, of New York City (Max. Schnur and Hyman J. Reit, both of New York City, of counsel), for appellant.
Benjamin Siegel, of New York City (Benjamin Siegel and Benjamin Brown-stein, both of New York City, of counsel), for appellee New York Credit Men’s Ass’n.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
Meyer Prince and George Prince, a copartnership doing business as Paris Maid Dress Company, and also as Prince Dress Company, made agreements with the appellant Max Schnur under which they were to assign to Schnur certain of their accounts for merchandise as • collateral security- for loans thereon, and Schnur was to advance 70 per cent, of the face of the accounts. The agreements provided for payment by the borrowers of a service charge of 3 per cent, upon the net amount advanced by the lender for a period of thirty days. This charge was afterwards reduced to 2% per cent. The borrowers collected the accounts and the lender had nothing to do with them except to receive. the list on making the advances and to check them up with the invoices and to keep track of the collections and returns of merchandise by having an accountant examine the books of the borrowers. Any receipts from the assigned accounts in excess of the amounts required to repay Schnur belonged to the borrowers. The charges for the services were far in advance of the legal rate of interest and varied from 22% per cent, to 42 per cent, per annum. The arrangement was usurious under the New York law and was so held by the court below. The service charges made were for the benefit of Schnur and not for that of the borrowers. Although, under the terms of the written agreement, the lender might have collected the accounts, he did not do so and the services rendered by the auditor and others of his staff were in watching the collateral and otherwise safeguarding his loan. In that respect the services differed from those for which compensation has been allowed by courts to lenders such as for examination of title preliminary to making loans, for actually collecting pledged accounts and for work of attorneys in enforcing collections under agreements. Security Mortgage Co. v. Powers, 278 U.S. 149, 49 S.Ct. 84, 73 L.Ed. 236; In re Gotham Can Co. (C. C.A.) 48 F.(2d) 540, 542. In the case at bar the service charge was continuous from the time when the loan was made and was in fact a charge by the lender only “for a service he renders to himself.” Commercial Security Co. v. Holcombe, 262 F. 657, 662 (C.C.A. 5). Agreements to pay more than the legal rate of interest, though in form for services rendered, have been treated as usurious under circumstances such as we find here. Home Bond Co. v. McChesney, 239 U.S. 568, 36 S.Ct. 170, 60 L.Ed. 444; Commercial Security Co. v. Holcombe, 262 F. 657 (C.C.A.5); Grannis v. Stevens, 216 N.Y. 583, 111 N.E. 263; Quackenbos v. Sayer, 62 N.Y. 344. Such cases as Houghton v. Burden, 228 U.S. 161, 33 S.Ct. 491, 57 L.Ed. 780, and In re Mesibovsky (C.C.A.) 200 F. 562, where actual services were performed by the lender at an agreed rate of compensation in excess of legal interest are distinguishable. The court in Home Bond Co. v. McChesney, 239 U.S. 568, 36 S.Ct. 170, 60 L.Ed. 444, distinguished Houghton v. Burden, 228 U. S. 161, 33 S.Ct. 491,. 57 L. Ed. 780, on the ground that the services there were not a cover for usury.
The contention of the appellant that the transaction was a sale and not a loan is palpably without foundation. The agreement was: “To make advances to the
Customer from time to time, provided the Customer shall assign and deliver to the Company as collateral security for such advances, accounts receivable for goods actually sold and delivered by the Customer, or for work, labor and services actually performed and/or materials actually furnished by the Customer, or notes, or trade acceptances received in settlement thereof, which accounts, or notes, or trade acceptances shall be approved by and be acceptable to the Company, and which will hereinafter be designated as ‘Accounts’. Each advance to be seventy (70%) per cent, or less, óf the net face value of the accounts assigned.”
The assignments plainly were not sales but loans under arrangements made in order to obtain an excess rate of interest for the use of money in evasion of the usury law.
The question before us is the effect to be given to collections of the pledged accounts under the following circumstances: A petition in bankruptcy was filed against Meyer Prince and George Prince, and the appellant, New York Credit Men’s Association, was appointed receiver on November 6, 1935, and afterwards was elected and qualified as trustee. The receiver collected $2,729.19 on the assigned accounts and turned this sum over to Schnur under a stipulation whereby it was provided that the receiver should turn over to Schnur all moneys collected on the accounts, and that the delivery of such moneys should be “without prejudice to the rights of said * * * Receiver and/or Trustee in bankruptcy.” The fact that the accounts receivable were assigned upon a non-notification basis and that at the time of the filing of the petition in bankruptcy they were being collected by the bankrupts gave the bankruptcy court jurisdiction to determine the validity of all claims or liens thereto under the doctrine that the accounts were in cus-todia legis.
A situation similar to that before us here was discussed by Swan, J., in Matter of Borok (C.C.A.) 50 F.(2d) 75, 77, where he remarked that: “One cannot speak of ‘possession’ of a chose in action in the same sense as of tangibles; but if such terminology is to be used it would seem that the bankrupt was as much in ‘possession’ of the assigned accounts as he could be of any chose in action. He had the right to collect from the debtors and to use the proceeds as he saw fit. * * * Under such circumstances we believe that the bankruptcy court has power to determine summarily the respective rights of the trustee and the assignee in respect to the assigned accounts outstanding at the date of the petition.”
If in the present case the receiver had retained the proceeds of collection and turned them over to the trustee Schnur would have had to sue the latter who could have defended on the ground of usury under the following provisions of the - General Business Law of the State of New York (Consol.Laws, c. 20) :
“§ 370. Rate of interest The rate of interest upon the loan or forbearance of any money, goods, or things, in action, except as otherwise provided by law, shall be six dollars upon one hundred dollars, for one year, and at that rate, for a greater or less sum, or for a longer or shorter time.”
“§ 371. Usury forbidden. No person or corporation shall, directly or indirectly, take or receive in money, goods or things in action, or in any other way, any greater sum or greater value, for the loan or forbearance of any money, goods or things in action, than is above prescribed.”
Ҥ 373. Usurious contracts void. All bonds, bills, notes, assurances, conveyances, all other contracts or securities whatsoever, except bottomry and respondentia bonds and contracts, and all deposits of goods or other things whatsoever, whereupon or whereby there shall be reserved or taken, or secured or agreed to be reserved or taken, any greater sum, or greater value, for the loan or forbearance of any money, goods or other things in action, than is above prescribed, shall be void.
“Whenever it shall satisfactorily appear by the admissions of the defendant, or by proof, that any bond, bill, note, assurance, pledge, conveyance,, contract, security or any evidence of debt, has been taken or received in violation of the foregoing provisions, the court shall declare the same to be void, and enjoin any prosecution thereon, and order the same to be surrendered and canceled.”
We can see no distinction between a situation where the receiver or trustee in bankruptcy or a stakeholder holds the fund and the one here where there was a stipulation that the moneys collected from the accounts by the receiver should be turned over to Schnur, but such transfer should “be deemed to have been and to be without prejudice to the rights of said * * * receiver * * * and/or * * * trustee.”
The trustee in bankruptcy filed a petition in the District Court setting forth that the receiver had collected checks amounting to $2,729.19 from the assigned accounts and that the accounts were assigned under usurious agreements. The prayer of the trustee was to have the assignments adjudged void and Schnur directed to turn over the $2,729.19 to the trustee. Schnur answered the petition denying that the agreements were usurious and alleging that the percentages charged represented reasonable charges for services. The referee granted the petition and his action was affirmed by the District Court
In essence Schnur was a stakeholder whose holding under the stipulation was as agent for the trustee in bankruptcy and both the trustee and Schnur were subject to summary jurisdiction of the bankruptcy court. Lazarus v. Prentice, 234 U.S. 263, 34 S.Ct. 851, 58 L.Ed. .1305; Babbitt v. Dutcher, 216 U.S. 102, 113, 30 S.Ct. 372, 54 L.Ed. 402, 17 Ann.Cas. 969; In re Joseph R. Marquette, Jr., Inc. (C.C.A.) 254 F. 419. By virtue of the stipulation the accounts collected by the receiver are constructively in the possession of the bankruptcy court. To establish any right to them Schnur would be obliged to take affirmative action in that" court. The very object of the stipulation was to leave the parties in the same position as though the moneys had remained in the possession of the trustee and to give Schnur no rights he would not have had in that situation. In such circumstances the trustee need not repay the amount loaned with interest as a condition of recovering the moneys in custodia legis. While he is not a borrower who, by virtue of section 377 of the New York General Business Law, is empowered to recover without tender (Halsey v. Winant, 258 N.Y. 512, 529, 180 N.E. 253), he requires no equitable relief in order to prevail and under the stipulation, is in the position of one defending against a usurious claim. The assignments were void - under the New York Statute, and if Schnur had appropriated the $2,-729.19 the trustee could have recovered from him as for a conversion. Schroeppel v. Corning, 5 Denio (N.Y.) 236; Ramsdell v. Morgan, 16 Wend. (N.Y.) 574; Boughton v. Bruce, 20 Wend. (N.Y.) 234.
In Muller v. City of Philadelphia, 208 N.Y. 182, 183, 101 N.E. 762, beneficiaries under a will assigned their interest in an estate as collateral security for usurious loans. It was held that they were not obliged to pay their assignees the amounts loaned, as a condition of obtaining their legacies, but could recover their full share of the estate irrespective of the assignments which they had given as security for the loans. Cullen, Ch. J., said that the beneficiaries sought no equitable relief against their assignees but merely demanded that the executors pay to them from the estate. Here the trustee in effect seeks to retain property in the custody of the law against the claim of an assignee under a usurious loan. The decisions of this court In re L’Hommedieu, 146 F. 708, and In re Fishel, 198 F. 464, 468, are in accord with the foregoing ruling in Muller v. City of Philadelphia, as is our recent decision in Connecticut General Life Ins. Co. v. Benedict, 88 F.(2d) 436. See, also, Mortgage Securities Co. v. Levy, 11 F.(2d) 270 (C.C.A. 5), where a similar conclusion was reached in construing a Florida statute of usury; also, Vanderveer v. Holcomb, 17 N.J.Eq. 87, affirmed 17 N. J.Eq. 547.
The petition of the trustee required no equitable relief against the usurious assignment. The prayer that it be adjudged void is for nothing more than what a court does in an action at law when, because of section 373 of the New York General Business Law, it disregards an attempted legal transfer to secure a usurious loan. Merchants Exchange Nat. Bank v. Commercial Warehouse Co., 49 N.Y. 635. An action at law to recover the moneys deposited would have served as well as the summary proceeding in bankruptcy. In any event Schnur, who holds the deposit under the stipulation as a mere stakeholder, cannot obtain the beneficial ownership without affirmative action against which the trustee may set up the defense of usury. Accordingly, the order of the court below was right and the appeal must fail.
Order affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"?
A. bankruptcy - private individual (e.g., chapter 7)
B. bankruptcy - business reorganization (e.g., chapter 11)
C. other bankruptcy
D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)
E. antitrust - brought by government
F. regulation of, or opposition to mergers on other than anti-trust grounds
G. securities - conflicts between private parties (including corporations)
H. government regulation of securities
Answer:
|
songer_source
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Respondent, Burns and Roe, Inc., and White Construction Company, Intervenors.
No. 17180.
United States Court of Appeals Third Circuit.
Argued Dec. 5, 1968.
Decided April 25, 1969.
Fred R. Kimmel, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Daniel H. Jacoby, Attys., N. L. R. B., on the brief), for petitioner.
Earl S. Aronson, Newark, N. J. (Thomas E. Durkin, Jr., Newark, N. J., on the brief), for respondent.
Vincent J. Apruzzese, Apruzzese & McDermott, Newark, N. J., for inter-venors.
Before HASTIE, Chief Judge, and KALODNER, Circuit Judge.
OPINION OF THE COURT
HASTIE, Chief Judge.
This case is before us on a petition of the National Labor Relations Board for enforcement of a cease and desist order based upon the Board’s finding that the respondent, Local 825, International Union of Operating Engineers, violated section 8(b) (4) (D) of the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (D), by coercing White Construction Co., an employer, with the object of compelling White to assign the starting and stopping of an electric welding machine to operating engineers represented by Local 825 rather than to the iron-workers who used the machine and were represented by Ironworkers Local 350. The Board also found that in connection with the same controversy Local 825 had violated section 8(b) (4) (B) of the Act by conduct in the nature of a secondary boycott against other employers in an effort to - compel them to cease doing business with White. This conduct also was interdicted by the cease and desist order.
The Board’s factual findings relevant to the alleged section 8(b) (4) (D) violation are adequately supported by the record. It appears that White undertook as a subcontractor to construct the reactor building for a projected nuclear power plant. In the course of the job White assigned to its ironworker employees the work of starting and stopping an electric welding machine that they used in welding structural steel. At that time White had no contract with Local 825 though White’s work force included two members of that union, an engineer and an oiler wlm operated a crane.
At this juncture a representative of Local 825 demanded that White employ a member of that Union to push the buttons that started and stopped the welding machine. When White failed to comply and to sign an agreement giving Local 825 jurisdiction that would include electric welding machines, the crane engineer and oiler stopped work for one day. More prolonged work stoppages by the engineers occurred during the ensuing weeks. The Board found the union responsible for these work stoppages and the record fully supports that conclusion.
Both Local 825 and the Ironworkers’ Union were obligated by contract with the Building Trades Employers’ Association to recognize the jurisdiction of the National Joint Board for the Settlement of Jurisdictional Disputes and “to be bound by all decisions and awards” made by that body in exercise of its agreed jurisdiction. Accordingly, the matter of the work claimed by Local 825 in connection with the use of electric welding equipment was referred to the Joint Board. That Board issued an award confirming White’s assignment of the work in question to the ironworkers.
Although in its answer to the complaint in this case Local 825 admitted that it was bound, as its contract with the Employers’ Association provided, by the award of the Joint Board, it refused to respect the award when it was made. Rather, it persisted in its demand that the disputed work be assigned to operating engineers and in its coercive tactics to enforce that demand. This unfair labor practice proceeding followed.
The union asserts two principal defenses; first, that there was no such claim by the ironworkers to the work in question as would create a jurisdictional dispute; and second, that the present unfair labor practice decision is invalid because it was not preceded by and grounded upon a Board award of the claimed work to a particular craft in a section 10 (k) proceeding, 29 U.S.C. § 160(k).
The contention that there were no conflicting claims creating a jurisdictional dispute is without merit. The employer’s original assignment of iron-workers to start and stop the electric welding machines they were to use may well have been made routinely without any demand by those employees or their union. However, they did accept this work as an incident of their job. This entire dispute grows out of that work assignment and its acceptance.
More important, the Ironworkers Union and the Union of Operating Engineers were opposing parties in the ensuing proceeding before the Joint Board to determine which craft should perform the work in question. The Iron-workers prevailed, thereby establishing their right to the work under the procedure agreed to by all of the parties. Thereafter, ironworkers performed the work as a matter of established right. And they have not disclaimed that right. In these circumstances, it is specious to argue that the persisting demand of the ■operating engineers that the work be assigned to them does not create a jurisdictional dispute. Cf. N. L. R. B. v. Local 1291, International Longshoremen’s Ass’n, 3d Cir. 1966, 368 F.2d 107; N. L. R. B. v. Local 25, International Brotherhood of Electrical Workers, 2d Cir. 1967, 383 F.2d 449. “The fact that one union has the jobs and holds on to them in a polite, non-belligerent manner while the other union uses the forbidden tactics in an effort to get them, or some of them, does not mean that what Congress regarded as the evils of a jurisdictional dispute are not present.” International Brotherhood of Carpenters v. C. J. Montag & Sons, Inc., 9th Cir. 1964, 335 F.2d 216, 221.
The respondent’s second contention is that this unfair labor practice proceeding is premature because the Board did not first utilize a proceeding under section 10 (k) of the Act to make a decisive award of the work to one craft or the other.
In most cases a Board award under section 10 (k) and a refusal to abide by that award must precede an unfair labor practice proceeding based on a jurisdictional dispute. N. L. R. B. v. Radio and Television Broadcast Engineers, Local 1212 (C.B.S.), 1961, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302; N. L. R. B. v. United Ass’n of Journeymen, 3d Cir. 1957, 242 F.2d 722. However, we agree with the Board that in the circumstances of this case a section 10 (k) proceeding was not necessary. That section reads as follows :
“Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of Section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.”
It will be observed that the statute expressly provides for the discontinuance of a section 10 (k) proceeding where the parties show that they have “agreed upon methods for the voluntary adjustment of the dispute”. The present parties had agreed in advance upon a method of voluntary adjustment and did in fact utilize that method in this case. We cannot believe that Congress intended to require a section 10 (k) proceeding after a binding voluntary settlement of a dispute when the legislative scheme provides for the discontinuance of a section 10 (k) proceeding if such an adjustment shall occur during its pendency. Wood, Wire and Metal Lathers Union (Acoustical Contractors), 1958, 119 N.L.R.B. 1345, cited with approval, Carey v. Westinghouse Electric Corp., 1964, 375 U.S. 261, 264 n. 4, 84 S.Ct. 401, 11 L.Ed.2d 320. Indeed, in the present circumstances a section 10 (k) proceeding would be a pointless formality. For having agreed to the settlement of jurisdictional disputes by the Joint Board and having experienced an adverse ruling in this case, Local 825 is in no position to challenge the merits of that ruling before another tribunal. Cf. Electrical Workers Local 26 (McCloskey & Co.), 1964, 147 N.L.R.B. 1498.
Accordingly, we conclude that a violation of section 8(b) (4) (D) has been properly established.
Different issues arise under the charge of secondary boycott in violation of section 8(b) (4) (B). This charge involves contractors additional to White. Burns & Roe, Inc., was the general contractor for the entire nuclear power plant project. It subcontracted all of the construction work and thus had no construction employees. Chicago Bridge & Iron Co. and Poirier & McLane Corp., as well as White, were subcontractors working at the project site. The Board’s conclusion that section 8(b) (4) (B) had been violated was based on findings that the respondent had coerced Burns and its subcontractors other than White in an effort to force Burns to “cease doing business” with White.
The record amply justifies the conclusion that these contractors were subjected to coercion in the form of threats or walkouts, or both. The debatable issue is whether the object of this coercion was to force Burns to “cease doing business” with White within the meaning of section 8(b) (4) (B).
It was not the Board’s theory, nor does it seem seriously to be contended that the respondent sought to compel Burns to stop using the services of White or to terminate its contract with White. Indeed, such action would not have been advantageous to the respondent. Rather, it is said that the respondent undertook to “disrupt the business relation” between Burns and White so that the contractor would try to induce the subcontractor to comply with the respondent’s demands. The question is whether conduct so intended seeks to compel the one contractor to “cease doing business” with the other within the meaning of section 8(b) (4) (B).
We considered a similar situation in N. L. R. B. v. Local 825, International Union of Operating Engineers, 3d Cir. 1964, 326 F.2d 218, and concluded that the finding of a “cease doing business” objective was not warranted. It is now urged that this case is distinguishable from that one because in the earlier case the work stoppages, though to the neutral employer’s detriment, were not attended by any communication of the union with that employer. However, the disruption of the neutral employer’s business activity in connection with the primary employer and the objective of exerting pressure upon the primary employer through the neutral one was essentially the same there as here. Indeed, we quoted but did not approve the Board’s finding:
<«* * Even, assuming, arguen-do, that Respondent merely intended by its strike to force Selby and Elm-hurst to require Nichols to change its method of operation, this in itself would have disrupted or seriously curtailed the existing business relationship between Nichols and these two other contractors, which would have been tantamount to causing the latter employers to cease doing business with Nichols.” ’ 326 F.2d at 220.
Moreover, in neither case did the union admit a “cease doing business” objective but rather in both cases the circumstances compelled the inference that the union wanted the contractor to use its influence with the subcontractor to change the subcontractor’s conduct, not to terminate their relationship.
Accordingly, following our earlier decision, we hold that proof of coercive activity amounting to “disruption of a business relationship” and aimed at causing a neutral employer to put pressure on the primary employer is insufficient, without more, to establish an effort to compel the one employer to “cease doing business” with the other. The language of section 8(b) (4) (B) is apt to prohibit the classical secondary boycott where the attempt is made to coerce the primary employer by compelling others to stop trading or otherwise dealing with him. But we think the “cease doing business” language is not apt to cover the objective proved here, however objectionable or deserving of condemnation it may be. But cf. N. L. R. B. v. Carpenters District Council of New Orleans and Vicinity, AFL-CIO, 5th Cir., 407 F.2d 804, decided February 19, 1969. We think it is for Congress to broaden the language of section 8(b) (4) (B) if it desires to cover such situations as this.
Finally, we consider objections of the respondent to the breadth of the Board’s cease and desist order.
Paragraph 1(a) of the order restrains violations of section 8(b) (4) (B). That subparagraph will not be enforced because no violation of section 8(b) (4) (B) has been established.
An understanding of the controversy concerning the reach of paragraph 1(b) of the order requires quotation of that subparagraph in full. It prohibits the respondent from
“(b) Engaging in, or inducing or encouraging any individual employed by White Construction Company, Chicago Bridge & Iron Co., Poirier & McLane Corporation, or any other person engaged in commerce or an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to perform any services; or threatening, coercing, or restraining White Construction Company, Chicago Bridge & Iron Co., Poirier & McLane Corporation, Burns & Roe, Inc., or any other person, where, in either case, an object thereof is to force or require White Construction Company, or any other person engaged on the Oyster Creek, New Jersey, project, to assign any work to employees who are represented by the Respondent, rather than to employees who are represented by another labor organization, except insofar as any such action is permitted under Section 8(b) (4) (D) of the Act.”
We read this language as covering any jurisdictional dispute which may arise in connection with the performance of any contract or subcontract on the present nuclear power plant project, so long as the Board has not determined that members of a particular union craft are entitled to the work in question. To enforce this order would mean that, in any such case, the respondent would be guilty of contempt if by any coercive means it should seek a resolution of a jurisdictional dispute in its favor. The vice of this, the respondent argues, is that the union is forced to accept whatever work assignment the employer may make. For, under the scheme of the Act, the Board will not entertain a section 10 (k) proceeding to resolve a jurisdictional dispute unless it has reason to believe that a union is engaging in the very kind of activity which under the Board’s order would be contempt of court. See Local 478, International Union of Operating Engineers, 1968, 172 N.L.R.B. No. 221.
We think the union’s argument, whatever validity it might have in some cases, overlooks an important circumstance in this case. The contractors and the labor organizations in the building trades involved in this project have voluntarily agreed to the adjustment and resolution of jurisdictional disputes through resort to and decision by the Joint Board. Just as a contractor took the present dispute to the Joint Board, the respondent is free to take any similar future dispute concerning the assignment of work on the project to the Joint Board. The proposed decree would not in any way interfere with the utilization of that agreed method of settling jurisdictional disputes. Only if any employer should refuse to comply with a Joint Board award might the proposed order’s prohibition of coercive action unfairly restrain the respondent. Accordingly, we think appropriate language should be added at the end of the order to except from its prohibition coercive action aimed at enforcement of a Joint Board decision. Cf. Local 26, International Fur Workers, (Winslow Bro. & Smith Co.), 1950, 90 N.L.R.B. 1379. But, with that minor modification, we conclude that paragraph 1(b) of the Board’s order does not overstep that broad administrative discretion in fashioning appropriate remedies which we have repeatedly recognized. E. g. N. L. R. B. v. Local 542, International Union of Operating Engineers, 3d Cir. 1964, 329 F.2d 512; N. L. R. B. v. Highway Truck Drivers and Helpers, Local No. 107, 3d Cir. 1962, 300 F.2d 317. In reaching this conclusion we have considered the respondent’s persistent disposition to violate the provisions of section 8(b) (4) as demonstrated by the numerous cases in which this court has found it necessary to enforce Board orders against it and at least two cases in which we have found it necessary to invoke our contempt power to obtain the respondent’s compliance with our orders.
The order of the Board, modified and restricted in accordance with this opinion, will be affirmed.
. Whether this contention should fail here because it was not advanced before the Board, we do not decide.
. In an effort to avoid this conclusion the respondent has cited cases in -which a section 10 (k) hearing has been required after some third party has decided that one union rather than the other should be assigned the disputed work. B. g., International Union of Operating Engineers, Local 520 (Biebel Bros.), 1968, 170 N.L. R.B. No. 38; Plasterers Local Union 79, 1967, 167 N.L.R.B. No. 23; Albany Printing Pressmen, 1967, 166 N.L.R.B. No. 71; United Industrial Workers, Seafarers (Albin Stevedore Co.), 1967, 162 N.L.R.B. No. 96. But in none of these cases was the decision of the third parties one by which the parties were bound, whether by contractual agreement or otherwise.
. E. g., N.L.R.B. v. Weber, 3d Cir. 1967, 382 F.2d 387; N.L.R.B. v. Local 825, I.U.O.E., 3d Cir. 1964, 326 F.2d 213; N.L.R.B. v. Local 825, I.U.O.E., 3d Cir. 1963, 322 F.2d 478; N.L.R.B. v. Local 825, I.U.O.E., 3d Cir. 1963, 315 F.2d 695.
In addition, this court has found it necessary in one case to adjudge Local 825 in contempt for refusal to comply with our decree enforcing a Board order. N.L.R.B. v. Local 825, No. 14,331 Order of June 18, 1964. A second such proceeding is pending at Nos. 17,091 and 17,092.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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sc_issue_8
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27
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
CIVIL AERONAUTICS BOARD v. DELTA AIR LINES, INC.
No. 492.
Argued April 27, 1961.
Decided June 12, 1961.
John F. Davis argued the cause for petitioner in No. 492. On the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Loevinger, Assistant Attorney General Bicks, Richard A. Solomon, Irwin A. Seibel, O. D. Ozment and Franklin M. Stone.
Albert F. Grisard argued the cause and filed a brief for petitioner in No. 493.
R. S. Maurer argued the cause for respondent. With him on the briefs were James W. Callison and Robert Reed Gray.
Together with No. 493, Lake Central Airlines, Inc., v. Delta Air Lines, Inc., also on certiorari to the same Court.
Mr. Chief Justice Warren
delivered the opinion of the Court.
This case concerns the power of the Civil Aeronautics Board to alter a certificate of public convenience and necessity, granted to respondent Delta Air Lines, after that certificate had become effective under § 401 (f) of the Federal Aviation Act of 1958. 72 Stat. 731, 755, 49 U. S. C. § 1371 (f). The administrative proceedings from which the present dispute arises date back to May 1955, and involve consideration by the Board of a number of applications for new service between cities located in an area extending from the Great Lakes to Florida. The Board divided the proceedings into two general categories, consolidating the applications for long-haul service in the Great Lakes-Southeast Service Case and those for short-haul flights in the Great Lakes Local Service Investigation Case. In order to protect fully the interests of local service carriers, the Board allowed these carriers, including petitioner Lake Central Airlines, to intervene in the hearings on the long-haul applications.
At the conclusion of the Great Lakes-Southeast Service Case a number of awards were made, including one permitting Delta to extend an existing route northwest so as to provide service from Miami to Detroit and to add Indianapolis and Louisville as intermediate points on its existing Chicago-to-Miami route. Certain restrictions for the protection of local carriers were imposed on many of the awards, these restrictions generally providing that flights between specified intermediate cities had to originate at or beyond given distant points. The stated purpose of these restrictions was to prevent the long-haul carrier from duplicating so-called “turn-around” service already provided by existing local carriers. One such restriction was applied to Delta’s run between Detroit and various locations in Ohio but, by and large, Delta’s award was free of protective, limitations.
The Board’s order issued on September 30, 1958, and it specified that Delta’s certificate was to become effective on November 29, 1958, unless postponed by the Board prior to that date. Shortly thereafter,within time limits set by the Board, numerous petitions for reconsideration were filed, including one by Lake Central protesting the breadth of Delta’s certificate. Lake Central requested that, if the Board should be unable to decide its petition for reconsideration before November 29, the effective date of the certificate be put off. On November 28, one day before Delta’s certificate was to become effective, the Board issued a lengthy memorandum and order, which stated in substance that the requests for stays, with one immaterial exception, were denied, but that judgment on the merits of the petitions for reconsideration would be reserved. The Board explained that the parties had not made a sufficient showing of error to justify postponements and that, in view of the advent of the peak winter season, further delay would be particularly inappropriate; the Board then said:
“To the extent that we have considered the petitions for reconsideration in the present order we have done so only for the purposes of assessing the probability of error in our original decision. We feel that such action is necessary to a fair consideration of the stay requests, and is in no way prejudicial to the legal rights of those parties seeking reconsideration. Nothing in the present order forecloses the Board from full and complete consideration of the pending petitions for reconsideration on their merits.”
For reasons not presently pertinent, Delta’s certificate became effective on December 5, rather than November 29, 1958, and Delta commenced its newly authorized operations shortly thereafter. On May 7, 1959, the Board issued a new order disposing of the still-pending petitions for reconsideration. By this order, the Board amended Delta’s certificate in response to the restrictions proposed by Lake Central. Specifically, the Board barred Delta’s operations between ten pairs of intermediate cities unless the flights initiated at Atlanta or points farther south; the effect of this order was to bar certain •flights Delta was then operating. Even then, the Board’s action was not final; the Board reserved the power to lift these restrictions pending the outcome of the Great Lakes Local Service Case. , The Board’s disposition of the petitions was taken summarily, without formal notice to the parties or the opportunity for a hearing prior to decision.
Delta sought review of this order before the Board, challenging the Board’s power to change the terms of its certificate after the effective date thereof without notice or hearing. The Board overruled Delta’s objection, stating that: “[W]e believe we have such power, and we have exercised it in the past. Moreover, there is no showing, and we are unable to conclude, that any significant adverse effect will result to either Delta or the public from observance of the conditions here involved.” On review in the Court of Appeals for the Second Circuit, however, the Board’s order was overturned, the court reasoning that Congress had made notice and hearing a prerequisite to the exercise of the Board’s power to change an existing certificate. Delta Air Lines, Inc., v. Civil Aeronautics Board, 280 F. 2d 43.
The issue in this case is narrow and can be stated briefly: Has Congress authorized the Board to alter, without formal notice or hearing, a certificate of public convenience and necessity once that certificate has gone into effect? If not, should it make any difference that the Board has purported to reserve jurisdiction prior to certification to make summary modifications pursuant to petitions for reconsideration? We think that both these questions must be answered in the negative.
Whenever a question concerning administrative, or judicial, reconsideration arises, two opposing policies immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching what, ultimately, appears to be the right result on the other. Since these policies are in tension, it is necessary to reach a compromise in each case and petitioners have argued at length that the Board’s present procedure is a happy resolution of conflicting interests. However, the fact is that the Board is entirely a creature of Congress and the determinative question is not what the Board thinks it should do but what Congress has said it can do. See United States v. Seatrain Lines, 329 U. S. 424, 433. Cf. Delta Air Lines v. Summerfield, 347 U. S. 74, 79-80. This proposition becomes clear beyond question when it is noted that Congress has been anything but inattentive to this issue in the acts governing the various administrative agencies. A review of these statutes reveals a wide variety of detailed provisions concerning reconsideration, each one enacted in an attempt to tailor the agency’s discretion to the particular problems in the area. In this respect, the Federal Aviation Act is no exception since, in § 401 (f) and (g) of the Act, Congress has stated the limits of the Board’s power to reconsider in unequivocal terms. Section 401 (f) provides that “Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided.” The phrase “as hereinafter provided” refers to § 401(g), which states:
“Authority to Modify, Suspend, or Revoke
“(g) The Board upon petition or complaint or upon its own initiative, after notice and hearings, may alter, amend, modify, or suspend any such certificate, in whole or in part, if the public convenience and necessity so require, or may revoke any such certificate, in whole or in part, for intentional failure to comply with any provision of this title or any order, rule, or regulation issued hereunder or any term, condition, or limitation of such certificate: Provided, That no such certificate shall be revoked unless the holder thereof fails to comply, within a reasonable time to be fixed by the Board, with an order of the Board commanding obedience to the provision, or to the order (other than an order issued in accordance with this proviso), rule, regulation, term, condition, or limitation found by the Board to have been violated. Any interested person may file with the Board a protest or memorandum in support of or in opposition to the alteration, amendment, modification, suspension, or revocation of the certificate.” (Emphasis added.)
This language represents to us an attempt by Congress to give the Board comprehensive instructions to meet all contingencies and the Board’s duty is to follow these instructions, particularly in light of the fact that obedience thereto raises no substantial obstacles. It is true, of course, that statutory language necessarily derives much of its meaning from the surrounding circumstances. However, we think that, while there is no legislative history directly on point, the background of the Aviation Act strongly supports what we believe to be the plain meaning of § 401 (f) and (g). It is clear from the statements of the supporters of the predecessor of the Aviation Act — the Civil Aeronautics Act of 1938 — that Congress was vitally concerned with what has been called “security of route” — i. e., providing assurance to the carrier that its investment in operations would be protected insofar as reasonably possible. And there is no other explanation but that Congress delimited the Board’s power to reconsider its awards with precisely this factor in mind; hence the language that a certificate “shall he effective . . . until suspended or revoked as hereinafter provided” (emphasis supplied), language which is absent from several of the Acts to which reference has been made. Thus, the structure of the statute, when considered in light of the factor persuading Congress, indicates to us that the critical date in the mind of Congress was the date on which the carrier commenced operations, with the concomitant investment in facilities and personnel, not the date that abstract legal analysis might indicate as the “final” date. In other words, it seems clear to us that Congress was relatively indifferent to the fluctuations an award might undergo prior to the time it affected practical relationships, but that Congress was vitally concerned with its security after the wheels had been set in motion. In light of this, we think the result we reach follows naturally: to the extent there are uncertainties over the Board’s power to alter effective certificates, there is an identifiable congressional intent that these uncertainties be resolved in favor of the certificated carrier and that the specific instructions set out in the statute should not be modified by resort to such generalities as “administrative flexibility” and “implied powers.” We do not quarrel with those who would grant the Board great discretion to conjure with certificates prior to effectuation. But, we feel that we would be paying less than adequate deference to the intent of Congress were we not to hold that, after a certificate has gone into effect, the instructions set out in the statute are to be followed scrupulously.
However, petitioners argue that there is an implied exception to the statutory mandate when the Board, pursuant to a petition for reconsideration filed before the certificate’s effective date, makes a statement that the certificate is subject to later amendment after further deliberation upon the petition. Petitioners admit that there is no express statutory authority for the Board to entertain petitions for reconsideration even prior to the effective date of the certificate, but they assert, and we assume arguendo they are correct, that the Board has implied power to accept such petitions. This being the case, petitioners claim that the existence of an outstanding petition for reconsideration gives a double meaning to the term "effective” as used in the Act: certificates are "effective” on the date specified therein for the purpose of allowing the certificated carrier to commence operations, but they are not “effective” as the term is used in § 401 (f) so as to preclude modification outside the procedures specified in § 401 (g).
The appeal of this argument comes, in the main, from the general notion that an administrative order is not “final,” for the purposes of judicial review, until outstanding petitions for reconsideration have been disposed of. See, e. g., Outland v. Civil Aeronautics Board, 109 U. S. App. D. C. 90, 284 F. 2d 224; Braniff Airways, Inc., v. Civil Aeronautics Board, 79 U. S. App. D. C. 341, 147 F. 2d 152. Once it is established that the certificate is not “final” for one purpose, the argument runs, then it is logical to assume that the certificate lacks “finality” for another. The difficulties with this line of reasoning, however, are many. First, insofar as it is bottomed on cases such as Outland and Braniff, the argument relies on holdings that were never made. The Courts of Appeals in these cases decided only that petitions for review were timely if filed in time from the date on which the Board disposed of pending petitions for reconsideration; the question whether the Board’s action on the petitions for reconsideration should have been taken after notice and hearing did not arise. Furthermore, petitioners’ argument skips an important logical step; it assumes, without explanation, that questions of administrative finality present the same problems, and therefore deserve the same solutions, as questions concerning the timeliness of an appeal. In point of fact, this assertion is not only unsupported but erroneous. The pertinent statutory language is not similar in the two instances. and the other points under analysis are different. Thus, a court considering the timeliness of a litigant's appeal is concerned with the wisdom of exercising its own power to act, and the result depends on such factors as fairness to the appellant and the intent of Congress in passing a general statute — § 10 (c) of the Administrative Procedure Act— which applies equally to almost all administrative agencies. There is no call, as Outland, and similar cases illustrate by their omissions, for considering either the sections of a particular act which are not concerned with appellate review or the problem — which at that point is of historical interest only — whether the petition for reconsideration should have been decided summarily or after notice and hearing. One might argue, of course, that the question is similar in both instances because, if the Board’s action on the petition for reconsideration is too late, then an appeal which is timely only from the Board’s action on reconsideration is also too late. However, this line of reasoning overlooks the confines of the result we are reaching in this case. We are not saying that the Board cannot entertain petitions for reconsideration after effective certification, nor are we holding that such petitions cannot be denied summarily; all we hold is that the petitions cannot be granted and the certificated carrier’s operations curtailed without notice or hearing. Therefore, since the cases such as Outland concerned the denial of a petition for reconsideration, there is no conflict, express or implied, between those decisions and this one. In this connection, the statement of a leading commentator seems particularly pertinent:
. “The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has, and should have precisely the same scope in all of them runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.” Cook, The Logical and Legal Bases of the Conflict of Laws, 159.
Thirdly, were we to adopt the position urged by petitioners, we would have to hold that, in the words of a former chairman of the Board, the power to reconsider a case may be the lever for “nullify [ing] an express provision of the Act.” Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J. Air L. & Comm. 377, 384. As Commissioner Ryan indicated, the power the Board asks for in this case seems nothing more or less than the power to do indirectly what it cannot do directly. Parenthetically, it should be noted that, for purposes of this dispute, it is difficult to draw a distinction between a petition for reconsideration filed by a party and one initiated by the Board sua sponte. Sprague v. Woll, 122 F. 2d 128. This being the case, it is all the more significant that the Court in United States v. Seatrain Lines, 329 U. S. 424, while overruling the Interstate Commerce Commission’s contention that it had inherent power to reconsider effective certificates, paid no attention to the fact that the Commission had made the original certificate effective, subject “to such terms, conditions, and limitations as are now, or may hereafter be, attached to the exercise of such authority by this Commission.”
Although we feel that the language and background of the statute are sufficiently clear so that affirmance can rest solely on that basis, it seems appropriate, in light of petitioners’ vigorous assertion that policy reasons compel their result, to discuss some of the ramifications of our decision. In the first place, it bears repetition that we are not deciding that the Board is barred from reconsidering its initial decision. All we hold is that, if the Board wishes to do so, it must proceed in the manner authorized by statute. Thus, for example, the Board may reconsider an effective certificate at any time if it affords the certificated carrier notice and hearing prior to decision; or, if it feels uncertain about the decision prior to its effective date, it may postpone the effective date until all differences have been resolved; and, if neither of these procedures seem practical in a given case, the Board may issue a temporary certificate set to expire on the date the Board -prescribes for re-examination. Indeed, with all these weapons at its command, it is difficult to follow the argument that the Board should be allowed to improvise on the powers granted by Congress in order to preserve administrative flexibility.
Furthermore, it would seem that any realistic appraisal of the relative hardships involved in this case cuts in favor of the respondent. To be sure, the Board may be able to act quicker under the rule it espouses and, by eliminating the necessity of a new hearing, Lake Central will be spared the expense of preparing a new record. However, were the Board correct, respondent would be subjected to the loss of valuable routes, routes it had already begun to operate after considerable initial investment, without being heard in opposition. The Board points out that respondent had notice that the Board had reserved the right to amend the certificate. But it is not clear what comfort respondent could take from such notice; respondent could not hedge, since § 401 (f) of the Act provides that a certificated carrier may lose the right to conduct any service it does not initiate within 90 days of certification. Concededly, the fact of notice gives considerable surface appeal to petitioners’ assertions; they can and do argue that respondent knew what it was getting into and should not be heard to complain when the gamble turns out unfavorably. However, it must be remembered that the problem is not presented to us in the abstract; we are dealing with it in the context of this particular statute. And, as stated above, a major purpose behind the enactment of the Aviation Act was to eliminate the element of risk from a carrier’s operations. With Congress on record as affirmatively desiring to eliminate the necessity of gambling, we do not feel that the “assumption of the risk” argument carries much weight. The Board also argues that respondent “in substance” enjoyed the hearing contemplated by § 401 (g) because the matters impelling the Board to change its mind were matters that had been thrashed out during the hearings on the original certificate. However, this contention assumes a fact that we do not have before us — that a hearing would not have disclosed any further evidence or, perhaps more importantly, any post-certification events weighty enough to alter the Board’s thinking.
In short, our conclusion is that Congress wanted certificated carriers to enjoy “security of route” so that they might invest the considerable sums required to support their operations; and, to this end, Congress provided certain minimum protections before a certificated operation could be cancelled. We do not think it too much to ask that the Board furnish these minimum protections as a matter of course, whether or not the Board in a given case might think them meaningless. It might be added that some authorities have felt strongly enough about the practical significance of these protections to suggest that their presence may be required by the Fifth Amendment. See Seatrain Lines v. United States, 64 F. Supp. 156, 161; Handlon v. Town of Belleville, 4 N. J. 99, 71 A. 2d 624; see also 63 Harv. L. Rev. 1437, 1439.
Petitioners’ final argument is that their position is supported by consistent administrative construction and analogous case authority. The administrative construction argument appears less than substantial in light of the fact that, on the last and, it appears, only occasion when the present question was expressly considered, the Board said in dictum that it had “grave doubts” about proceeding in the manner followed in this case. Kansas City-Memphis-Florida Case, 9 C. A. B. 401; cf. Smith Bros., Revocation of Certificate, 33 M. C. C. 465. See generally Ryan, supra, where Commissioner Ryan went to great lengths to expose what he felt were the fallacies in the contentions now advanced by petitioners. With respect to prior cases, petitioners again are unable to cite any holdings on point. Petitioners rely heavily on Frontier Airlines, Inc., v. Civil Aeronautics Board, 104 U. S. App. D. C. 78, 259 F. 2d 808, but the dispute here involved was not raised in that case. The closest analogy in Frontier is to the argument put forward by a party whose petition for reconsideration had been denied; and the Court of Appeals reported this argument and the reasons for overruling it as follows:
“[T]he order on reconsideration is a nullity because it was rendered after the petition for judicial review had been filed and after the certificates previously issued had become effective; and, if that order is a nullity, the basic order is also a nullity because it fails to cover certain points.
“We do not find the order denying reconsideration invalid because rendered after this petition was filed. No harm was done. Had the Board been of a mind to grant reconsideration, it could have so indicated and a motion to remand would have been in order.”
Perhaps more favorable to petitioners is this Court’s decision in United States v. Rock Island Motor Transport Co., 340 U. S. 419, where it was held that the Interstate Commerce Commission could modify a motor carrier’s effective certificate pursuant to a reservation in the initial order. However, two important distinctions between that case and this are apparent: (1) the Motor Carrier Act makes express provision for summary modifications after certification, 49 U. S. C. § 308, and (2) the Court in Rock Island was very careful to limit its holding to the particular modification made in that case. Finally, the decision which is analytically most relevant to this case, United States v. Seatrain Lines, supra, furnishes support for respondent, rather than petitioners. While Seatrain may be distinguishable on its facts, the Court spoke in general terms of the rule that supervising agencies desiring to change existing certificates must follow the procedures “specifically authorized” by Congress and cannot rely on their own notions of implied powers in the enabling act. In short, we do not find that prior authority clearly favors either side; however, to the extent that a broad observation is permissible, we think that both administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute. Therefore, since the language and background of the statute are against, rather than for, the Board, the judgment of the Court of Appeals must be
Affirmed.
This section provides:
“Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided, or until the Board shall certify that operation thereunder has ceased, or, if issued for a limited period of time under subsection (d) (2) of this section, shall continue in effect until the expiration thereof, unless, prior to the date of expiration, such certificate shall be suspended or revoked as provided herein, or the Board shall certify that operations thereunder have ceased: Provided, That if any service authorized by a certificate is not inaugurated within such period, not less than ninety days, after the date of the authorization as shall be fixed by the Board, or if, for a period of ninety days or such other period as may be designated by the Board any such service is not operated, the Board may by order, entered after notice and hearing, direct that such certificate shall thereupon cease to be effective to the extent of such service.”
The Board’s regulations concerning petitions for reconsideration, 14 CFR § 302.37, provide in part that:
“Petition for reconsideration — (a) Time for filing. A petition for reconsideration, rehearing or reargument may be filed by any party to a proceeding within thirty (30) days after the date of service of a final order by the Board in such proceeding unless the time is shortened or enlarged by the Board, except that such petition may not be filed with respect to an initial decision which has become final through failure to file exceptions thereto. However, neither the filing nor the granting of such a petition shall operate as a stay of such final order unless specifically so ordered by the Board. After the expiration of the period of filing a petition, a motion for leave to file such petition may be filed; but no such motion shall be granted except on a showing of unusual and exceptional circumstances, constituting good cause for failure to make timely filing. Within ten (10) days after a petition for reconsideration, rehearing, or reargument is filed, any party to the proceeding may file an answer in support of or in opposition to the petition.”
A temporary stay was granted from November 29 to December 5 to enable the Court of Appeals to consider a request by Eastern Air Lines for a judicial stay of certain awards made in the original proceeding. Eastern did not get its stay nor was its challenge on the merits upheld. Eastern Air Lines v. Civil Aeronautics Board, 271 F. 2d 752.
We are informed that this case has now been completed but no further action has been taken on Delta’s restrictions.
See Tobias, Administrative Reconsideration: Some Recent Developments in New York, 28 N. Y. U. L. Rev. 1262, where the author observed:
“Re-examination and reconsideration are among the normal processes of intelligent living. Admittedly no warranty of correctness or fitness attaches to a decision or an action simply because it is a thing of the past. Every-day experience teaches the contrary: while the choice first made may well remain the course ultimately followed, often enough it is found on further consideration to require revision. On the other hand, constant re-examination and endless vacillation may become ludicrous, self-defeating, and even oppressive. Whether for better or for worse so far as the merits of the chosen course are concerned, a point may be reached at which the die needs to be cast with some 'finality.' An opposition may thus develop between the right result and the final one.”
See also the statement of the Board in its original opinion in this ease, denying a motion to reopen the record:
“Our general policy with respect to motions to reopen the record for receipt of data on the most recent operating experience has consistently reflected the requirement of the public interest that the record in major route cases be brought to a close as expeditiously as possible, consistent with the requirements of full hearings; so that final decision may be rendered promptly. Institution of needed new services could be endlessly delayed were we to permit the record to be reopened in the final procedural stages of a case for the submission of more recent operating data (and the attendant cross-examination and exchange of rebuttal-evidence). Only in the cases where the situation under consideration has changed radically would such a course of action be justified.”
Generally speaking, the less interested Congress has been in what has been called “security of certificate,” the wider the scope of reconsideration Congress has allowed to the supervising agency. See generally Davis, Res Judicata in Administrative Law, 25 Texas L. Rev. 199. It cannot be doubted that Congress was powerfully interested in “security of certificate” when it passed the Aviation Act. See 83 Cong. Rec. 6407.
No one contends that the changes made upon reconsideration constituted the correction of inadvertent errors. See American Trucking Assns., Inc., v. Frisco Transportation Co., 358 U. S. 133.
Speaking on behalf of the bill which became the predecessor of the Federal Aviation Act — the Civil Aeronautics Act of 1938— Congressman Lea, Chairman of the Committee on Interstate and Foreign Commerce which reported the bill, said:
“One hundred and twenty million dollars has already been invested in commercial aviation in the United States. It is the information of the committee that $60,000,000 of this sum has been wiped out. The fact that so much money has been put into commercial aviation shows the faith, the genius, and the courage of the American people in that they are willing to invest as they have in aviation up to this date. However, in the absence of legislation such as we have now before us these lines are going to find it very difficult if not impossible to finance their operations because of the lack of stability and assurance in their operations. You would not want to invest $200 or $2,000 a mile in a line that has no assurance of security of its route and no protection against cutthroat competition.
“Part of the proposal here is that the regulatory body created by the bill will have authority to issue certificates of convenience and necessity to the operators. This will give assurance of security of route. The authority will also exejcise rate control, requiring that rates be reasonable and giving power to protect against cutthroat competition. In my judgment, those two things are the fundamental and essential needs of aviation at this time, security and stability in the route and protection against cutthroat competition.
“These are the two economic fundamentals presented and it is this necessity that the bill seeks to meet. We want to give financial stability to these companies so they can finance their operations and finance them to advantage.” 83 Cong. Rec. 6406-6407.
The “finality” of an order for purposes of judicial review depends on § 10 (c) of the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009 (c). See 6 Stan. L. Rev. 531.
In addition to the reasons mentioned in the text, those cases involving orders, rather than certificates—see Western Air Lines v. Civil Aeronautics Board, 194 F. 2d 211—are distinguishable for the reasons stated in Seatrain, supra, at 432. Similarly, the cases involving certificates under the Federal Communications Act are distinguishable for the reasons stated by Commissioner Ryan. See Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J. Air L. & Comm. 377, 384-385.
See also Hancock, Fallacy of the Transplanted Category, 37 Can. B. Rev. 535. One might argue, of course, that judicial review and administrative reconsideration are the same since both threaten a reversal of the prior award. However, Congress has shown no intent to preclude reconsideration, either judicial or administrative, after notice and hearing.
Although the Board did not purport to issue a temporary certificate as prescribed in §401 (d)(2), petitioners now argue that the Board’s action was “equivalent” to a temporary certification. However, we do not find this proposition persuasive. As stated in the text, supra, we think that the Board must bow to the statutory procedure and cannot take short cuts. See note 15, infra. Moreover, the most natural reading of § 401 (d) (2) — which says that temporary certificates may be issued for “limited periods” — is that Congress was authorizing the Board to issue certificates running until a specified date. One reason for this construction is obvious; if a temporary certificate had unlimited duration, only subject to immediate revocation when the Board got around to considering various objections, it might play havoc with the ability of the carrier to accept advance reservations. Just such a contention was made by Delta before the Board in its petition for a stay of the Board’s May 7, 1959, order on reconsideration. Delta pointed out:
“It is a fact that schedules for May and June, and timetables showing this early morning Chicago-Indianapolis-Evansville and Evansville-Indianapolis-Chicago service, have been released to the public and many reservations have been booked for these months. Furthermore, pilot bidding procedures and problems involving equipment rotation prohibit the immediate cancellation of this flight on short notice.”
It appears clear, and the Board does not disagree, that the “hearing” specified in § 401 (g) means a “hearing” prior to decision. And, the Board does not contend that this requirement could have been satisfied by the allowance of a hearing after the decision on reconsideration was handed down. This course of action seems wise since (1) it is generally accepted on both principle and authority that a hearing after decision, although permissible in special circumstances, is not the equivalent of a predetermination hearing, see, e. g., Gelhorn and Byse, Administrative Law, 774; (2) it is not entirely clear that Delta could have procured a hearing after the Board’s decision. Delta sought a stay of the Board’s May 7 order until after the Great Lakes Local Service Investigation Case was decided, presumably with a view to introducing further evidence on the present point in that ease; the request for a stay was denied.
Since Kansas City, the Board has reconsidered an effective award on three occasions. United Western, Acquisition of Air Carrier Property, 11 C. A. B. 701; Service to Phoenix Case, Order E-12039 (1957); South Central Area Local Service Case, Order E-14219 (1959). United Western did not involve a certificate of public convenience and necessity and, thus, has no relevance. See note 10, supra. Service to Phoenix involved a denial of reconsideration except
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
|
songer_circuit
|
F
|
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.
MOOG INCORPORATED, Plaintiff-Appellant, v. PEGASUS LABORATORIES, INC., Defendant-Appellee.
No. 74-2190.
United States Court of Appeals, Sixth Circuit.
Sept. 5, 1975.
Alfonse J. D’Amico, Barnes, Kisselle, Raisch & Choate, Detroit, Mich., Kenneth R. Sommer, Buffalo, N. Y., for plaintiff-appellant.
Dale R. Small, Whittemore, Hulbert & Belkamp, Detroit, Mich., William L. Mathis, Washington, D. C., for defendant-appellee.
Before PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit Judges.
EDWARDS, Circuit Judge.
This case involves a United States Patent Office interference proceeding and a statute which regulates any private agreements which are employed to settle such disputes. This statute, 35 U.S.C. § 135(c) (1970), reads as follows:
(c) Any agreement or understanding between parties to an interference, including any collateral agreements referred to therein, made in connection with or in contemplation of the termination of the interference, shall be in writing and a true copy, thereof filed in the Patent Office before the termination of the interference as between the said parties to the agreement or understanding. If any party filing the same so requests, the copy shall be kept separate from the file of the interference, and made available only to Government agencies on written request, or to any person on a showing of good cause. Failure to file the copy of such agreement or understanding shall render permanently unenforceable such agreement or understanding and any patent of such parties involved in the interference or any patent subsequently issued on any application of such parties so involved. The Commissioner may, however, on a showing of good cause for failure to file within the time prescribed, permit the filing of the agreement or understanding during the six-month period subsequent to the termination of the interference as between the parties to the agreement or understanding.
The Commissioner shall give notice to the parties or their attorneys of record, a reasonable time prior to said termination, of the filing requirement of this section. If the Commissioner gives such notice at a later time, irrespective of the right to file such agreement or understanding within the six-month period on a showing of good cause, the parties may file such agreement or understanding within sixty days of the receipt of such notice.
We hold that this statute is designed to restrict monopolistic practices and (at least for purposes of this case) means just what it says and requires no interpretation. In the facts of this appeal the statute clearly required the District Judge and clearly requires us to find that the patent in suit is “permanently unenforceable.”
Plaintiff-appellant Moog, Inc., appeals from a holding by the United States District Court in the Eastern District of Michigan that Patent No. 3,228,423, held by Moog pertaining to a dry motor type electro-hydraulic servovalve is “permanently unenforceable” under 35 U.S.C. § 135(c) (1970). This litigation originated as a suit brought by Moog against Pegasus Laboratories, Inc., for alleged infringement of its servovalve patent. By answer and amended answer Pegasus pleaded the defense of unenforceability under 35 U.S.C. § 135(c) (1970), and sought summary judgment.
The District Judge accepted for purposes of Pegasus’ summary judgment motion Moog’s own proposed findings of facts. The District Judge entered two opinions, Moog, Inc. v. Pegasus Laboratories, Inc., 376 F.Supp. 439 (E.D.Mich. 1973); Moog, Inc. v. Pegasus Laboratories, Inc., 376 F.Supp. 445 (E.D.Mich. 1974). The first dealt with Moog’s procedural objections to consideration of the Pegasus defense based on § 135. No appellate issue is presented on this score. The District Judge also held, however, that § 135 should not be read as requiring the filing on pain of permanent unenforceability of a supplemental agreement providing “only incidental modification to a termination agreement” where “there are no antitrust implications, real or potential.” 376 F.Supp. at 445. He set the case for hearing upon the question as to whether there was a “definite link between the settlement of an interference and the [disputed] agreement or understanding.” 376 F.Supp. at 443, 448.
After further proceedings to develop the complete documentary record of the negotiation, execution and ultimate filing of the supplemental agreement, the District Judge entered a second opinion summarizing the pertinent facts:
Two interferences were involved. The first was declared in December of 1959, the second in August of 1962. The opposing parties in each case were plaintiff Moog and the Bell Aerospace Corporation. Both parties were notified by the Patent Office of the filing requirements of section 135(c). On August 21, 1964, the parties entered into a written agreement which provided for a settlement procedure requiring the exchange of proofs, to be followed by concessions of priority. The parties also granted each other nonexclusive royalty-free cross-licenses under their respective applications, and each granted the other the right to sublicense third parties. This agreement was properly filed with the Patent Office for both interferences. After proofs had been exchanged and concessions filed, Moog and Bell entered into a written supplemental agreement dated March 16, 1965, which revoked the previously agreed-upon right of each to sublicense any patent awarded to the other as a result of the interference proceedings. This supplemental agreement was later filed, but not within the time prescribed in the statute.
* * # * s}s ¡Je
On February 10, 1965, Moog and Bell exchanged documents relating to proof of priority, as provided for in the 1964 agreement. On February 15, 1965, Oser (Bell’s attorney) telephoned Sommer (Moog’s attorney) and reported that Bell was willing to concede priority to Moog in one interference, and Sommer indicated that Moog was tentatively willing to concede priority to Bell in the other. On February 17 Sommer telephoned Oser to report that the cross-concessions were acceptable. It was agreed that the respective concessions were to be prepared and signed but not filed until an understanding could be reached concerning revision of the 1964 settlement agreements to eliminate the sublicens-ing provisions. Sommer suggested such a revision; Oser was to advise Sommer as to Bell’s position on Som-mer’s proposal. On February 25, after consulting with his client, Oser telephoned Sommer advising that Bell had no objection to the proposed revision. Oser agreed to prepare a draft of the supplemental agreement. The concessions were mailed simultaneously on March 3, and were received in the Patent Office on March 4 and 5. Unexe-cuted copies of the supplemental agreement were mailed by Bell’s Attorney to Moog’s attorney on March 3. These were signed on behalf of Moog and on March 8 were returned to Bell for completion. They were signed on behalf of Bell and dated on March 16. On May 11 the Patent Office acknowledged the filing and sufficiency of the concessions and terminated the interferences. Copies of the supplemental agreement were not submitted to the Patent Office until May 2, 1966.
376 F.Supp. at 447. (Footnotes omitted.)
The District Judge then concluded:
From this sequence of events several conclusions can be drawn. First, the purpose and effect of eliminating the sublicensing provisions in the original settlement agreement was to eliminate the potential for competition in the granting of licenses which would result from each party having the power independently to license third parties under either patent. The result was to restore to each patentee the exclusive power to grant further licenses under its own patent. Second, there was an understanding between Moog and Bell as of February 25, 1965, that such a modification of the 1964 agreement was to be made prior to the filing of the parties’ concessions of priority. And third, this understanding was a condition precedent to the filing of those concessions, which was in turn a condition precedent to termination of the interferences.
376 F.Supp. at 447-48. (Footnotes omitted.)
Since the facts in this record appear to us to support (indeed to compel!) the District Judge’s findings of fact and conclusions of law as arrived at in his second opinion, we find no need to deal in this case with the questions considered in his first opinion.
The patent law of the United States is not designed to allow private parties to determine amongst themselves who shall have the right to a legal monopoly. Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 815-16, 65 S.Ct. 993, 89 L.Ed. 1381 (1945). Even less is it intended to support the negotiated grant of two patents upon one invention where the purpose and effect may be that any potential licensee must pay tribute to two separate patentholders. See generally United States v. Addyston Pipe and Steel Co., 85 F. 271, 282-83 (6th Cir. 1898), aff’d, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899).
Moog’s brief discusses its rationale for desiring this result:
[The] desire to revoke the sublicense provisions was motivated by a lawful business purpose. Having determined that Wolpin et al. was entitled to the broad “flexure member” claims of Interference No. 90,770, but that W. C. Moog was entitled to the specific “flexure tube” claims of Interference No. 92,963, it became apparent to attorney Sommer that the Wolpin et al. and W. C. Moog applications would issue as blocking patents. That is, the Wolpin et al. patent would have a dominant “flexure member” claim, while the W. C. Moog patent would be subservient having a “flexure tube” claim. But since every “flexure tube” is necessarily a “flexure member”, a prospective licensee who might desire to practice Moog’s specific “flexure tube” invention would have to obtain rights under the dominant Wolpin et al. patent, as well as under the subservient W. C. Moog patent. Rights under both patents would be necessary regardless of whether such prospective licensee approached either Bell or Moog. Under the 1964 Agreements, Bell could grant a license under Wol-pin et al. and a sublicense under the W. C. Moog patent; conversely, Moog could grant a license under the W. C. Moog patent and a sublicense under Wolpin et al. But it must be remembered that such prospective licensee had no assurance that either Bell or Moog would grant such rights. Only the possibility existed.
Realizing that blocking patents would issue, attorney Sommer foresaw that the sublicense provisions in the 1964 Agreements would be undesirable to Moog for two practical reasons. First, Moog would not be able to pursue an infringer of its own specific “flexure tube” patent without fearing that such infringer might possibly negotiate a sublicense under Moog’s own patent from Bell. Secondly, the 1964 Agreements did not require Bell to account to Moog for any royalties Bell might receive by granting sublicenses under Moog’s own patent.
The practical effect of the patents as issued under the filed agreements with the cross-licensing features would have been at least the equivalent from the public point of view of joint ownership of one patent. As Moog points out, there might even have been competition in relation to licensing- between Moog and Bell.
Actually, however, unbeknown to the Patent Office, Moog and Bell had also negotiated another agreement by which they revoked their prior undertaking, filed with the Patent Office, that granted licenses and the right to sublicense to each other. The effect of revocation was that neither party could thereafter grant sublicences under the other’s patent. This agreement was formally executed on March 16, 1965, well before May 11, 1965, the date on which the Patent Office terminated the interference. Indeed, the patent in suit did not issue until January 11, 1966. The supplementary agreement was not filed until May 2, 1966, well after each and all of the potential filing dates specified in the provisions of § 135(c).
It appears to this court that this record shows that Moog and Bell did exactly what § 135 was designed to prevent. Their agreement to abrogate their previously filed agreement for cross-sub-licensing was illegally withheld from the Patent Office. It represented the very sort of antitrust violation which § 135 was designed to restrain. If it had been disclosed as § 135 required, the nature of the agreement would have been likely to provoke “adverse” action by the Patent Office or the Justice Department.
In the course of consideration of § 135 before the Senate, the Department of Justice over Acting Attorney General Katzenbach’s signature outlined the antitrust purpose contemplated for the bill and suggested the unenforceability provision which was enacted:
The Supreme Court in holding a private interference settlement to be so inequitable as to preclude the enforcement of the resulting patent stated in Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 815-816, 65 S.Ct. 993, 89 L.Ed. 1381 (1945):
“ * * * The possession and assertion of patent rights are ‘issues of great moment to the public’ [citing cases]. A patent by its very nature is affected with a public interest. As recognized by the Constitution, it is a special privilege designed to serve the public purpose of promoting the ‘progress of science and useful arts’. At the same time, a patent is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope. The facts of this case must accordingly be measured by both public and private standards of equity.”
The purpose of this legislation is to make it more difficult for patent applicants to use an interference settlement agreement as a means of violating the antitrust laws. It seeks to accomplish this purpose by providing that no such agreement or understanding shall be enforceable unless all of its terms are in writing and filed prior to the termination of the interference proceeding. It is our view that this prohibition would not adequately deter violations of the antitrust laws. It is therefore suggested that the measure be amended to provide that parties to an interference settlement agreement shall be precluded from enforcing the resulting patent unless a copy of the settlement agreement has been filed with the Patent Office prior to the termination of the interference. In order to protect innocent parties who inadvertently fail to file a copy of their settlement agreement, the Commissioner of Patents should be given the authority to entertain, at any time during the 6-month period subsequent to the termination of the interference, a petition by either party for leave to file a copy of the agreement, which petition may be granted on a showing of good cause for the failure to file within the time prescribed. Further, it is suggested that the bill should provide a right of action in the United States to obtain a civil penalty for failure to file a copy of an interference agreement.
S.Rept.No.2169, 87th Cong., 2d Sess., Reported in 2 U.S.Code Cong. & Admin.News, pp. 3286, 3289 (1962).
The Senate Report on § 135 recited its central purpose:
The purpose of this bill is to amend the patent laws to require the filing in the Patent Office of agreements settling patent interference proceedings. When two or more applicants claim substantially the same invention an interference is declared in order to determine which applicant is entitled to priority. Interference proceedings may be terminated in a manner hostile to the public interest by using patent interference settlement agreements as a means of restricting competition. To make such a practice more difficult the bill requires the filing of such agreements in the Patent Office.
Id. U.S.Code Cong. & Admin.News, 1962 at p. 3286.
As we see this matter (and as the District Judge saw it), the withholding of the supplemental agreement cannot be considered an inadvertence. Cf. Esso Research & Engineering Co. v. Brenner, 165 U.S.P.Q. 486 (D.C.Cir. 1970). The District Court was right in finding a causal relationship between the withholding and the termination of the interference. He was also right in holding that the patent in suit was “permanently unenforceable” under § 135(c).
The judgment of the District Court is affirmed.
. By noting this, we do not mean to pass on what the legal effect of an opposite conclusion would be.
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_stpolicy
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Maurice Mickey MANDEL, Appellant, v. David M. HERITAGE, Warden, United States Penitentiary, McNeil Island, Washington, Appellee.
No. 16376.
United States Court of Appeals Ninth Circuit.
June 5, 1959.
Maurice Mickey Mandel, in pro. per.
Charles P. Moriarty, U. S. Atty., David J. Dorsey, Asst. U. S. Atty., Seattle, Wash., Charles W. Billinghurst, Tacoma, Wash., for appellee.
Before POPE, CHAMBERS and HAMLEY, Circuit Judges.
PER CURIAM.
Mandel has had trouble with “forged securities” in interstate commerce— some operation involving “bad checks.” 18 U.S.C. § 415. The record here begins in August, 1948, in the Northern District of Oklahoma. In a total of seven similar counts found in four indictments or in-formations he was sentenced on August 17,1948, to serve ten years on each count, all sentences to run concurrently. A week later, on August 24, on another similar count in another information or indictment he was sentenced to serve five years, the time to be concurrent with that of the sentences of August 17. He was received at Leavenworth penitentiary on August 26, 1948, where apparently the time of his sentence was established as having started to run as of the date of the first sentence: August 17, 1948. On September 8, 1954, he was released conditionally from the Federal Prison Camp at Tucson, Arizona, a notation being made on his record that there remained' 1438 days to be served.
On October 26, 1954, a member of the U. S. Board of Parole issued a warrant for Mandel’s arrest upon the ground that the latter had violated the conditions of his release. On January 5, 1955, pursuant to the warrant he was arrested in Omaha, Neb., and on January 14, 1955, he was returned to Leavenworth penitentiary. There he was given credit for having begun to serve time as of January 5, 1955. Apparently while incarcerated he is a good prisoner, and he was released on June 16, 1957, on a reconditional release, a notation then being made on the record that there were 544 days remaining to be served.
Out once again, Mandel was soon in trouble, and on February 7, 1958, a member of the U. S. Board of Parole issued a warrant for rearrest for violation of the terms of the reconditional release. Pursuant to the warrant, arrest was made at Oakland, Calif., on November 5, 1958, and he was returned this time to the federal penitentiary at McNeil Island, State of Washington. There his time was noted as having started to run again as of November 5, 1958.
It would appear that actual time served is as follows:
Aug. 17, 1948, to Sept. 8, 1954.
6 years and 22 days
Jan. 5, 1955, to June 16, 1957.
2 years, five months, 11 days
Nov. 5, 1958, to date.
Approximately 6 months.
November 4, 1959, has been set by the prison authorities as the prisoner’s prospective release date.
Upon a petition for habeas corpus, the district court on January 9, 1959, denied issuance of the writ, after having required the respondent warden to show cause in writing.
While the petition is lengthy, somehow Mandel seems to believe that he has not lost his credit for “good time” served during his first two periods of incarceration or that the prison authorities credited on his “time schedules” an excessive amount of “good time” and somehow this is to his advantage now.
We have considered carefully Sections 4161, 4168, 4164, 4165, 4205, and 4207 of Title 18 U.S.Code, which appear to have application here.
We are certain that the prisoner on rearrest is not entitled to take advantage of an erroneous calculation of time made previously (if such it is) and that on rearrest his “good time” theretofore earned or credited was properly and legally forfeited. This leads to the conclusion that the prisoner is now only entitled to such “good time” as he may earn on the period of time remaining unserved (without allowance for “good time” previously credited) at the time of his last rearrest. Yates v. Looney, 10 Cir., 250 F.2d 956; Morneau v. U. S. Board of Parole, 8 Cir., 231 F.2d 829.
The judgment of the district court is affirmed.
Now 18 U.S.C.A. § 2314.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appnonp
|
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 "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Basdeo BALKISSOON; Gloria Balkissoon, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 92-2078.
United States Court of Appeals, Fourth Circuit.
Argued May 7, 1993.
Decided June 11, 1993.
Brett Weiss, Olney, MD, argued, for petitioners-appellants.
David Alan Shuster, Tax Div., U.S. Dept, of Justice, Washington, DC, argued (James A Bruton, Acting Asst. Atty. Gen., Gary R. Allen, Gilbert S. Rothenberg, Tax Div., U.S. Dept, of Justice, on brief), for respondent-appellee.
Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.
OPINION
ERVIN, Chief Judge:
On May 5, 1986, the Commissioner of Internal Revenue (“Commissioner”) mailed by regular post a notice of deficiency to Basdeo and Gloria Balkissoon (“Taxpayers”) detailing a $33,268.58 deficiency in Taxpayers’ 1981 federal income tax paid. By way of the notice of deficiency, the Commissioner also assessed tax additions due to negligent failure to file pursuant to Internal Revenue Code (“IRC”) sections 6651(a)(1), 6653(a)(1), and 6653(a)(2), and interest on the deficiency pursuant to IRC section 6621(d). Taxpayers made a timely petition to the United States Tax Court for review of the deficiency and additions on July 21,1986. In two separate orders the tax court affirmed the Commissioner’s imposition of the deficiency and the additions. Taxpayers appeal directly to this court from the tax court pursuant to 26 U.S.C.A. § 7482. Finding no error in the orders of the tax court, we affirm.
I
Taxpayers filed a joint federal tax return for the 1981 tax year. The form was mailed on August 20, 1982, and was received by the Internal Revenue Service (“IRS”) on August 30, 1982. At no time prior to the receipt of the 1981 tax-year filing did the IRS receive a request for an extension beyond the April 15, 1982 deadline from Taxpayers. On their 1981 return, Taxpayers claimed substantial losses suffered by Satin Sewell Mining Program and Satin Sewell # 2 Mining Association, two partnerships in which Taxpayers had invested as limited partners.
The Commissioner determined that these losses were impermissible deductions and, on May 5, 1986, mailed Taxpayers a notice of deficiency by regular post. On July 21,1986, Taxpayers made a timely petition to the tax court for a redetermination of the deficiency. Taxpayers also entered into a stipulation of settlement with the Commissioner. Under the terms of the stipulations, the parties agreed to be bound by the outcome of Zimmerman v. Commissioner, a factually identical case already before the tax court. The parties also agreed that the applicability of section 6621(c) additions to the tax liability would be determined by the outcome in Zimmerman,
The tax court filed its opinion in Zimmerman on October 20, 1987. See Zimmerman v. Commissioner, No. 4661-85, 1987 WL 48830, 1987 Tax Ct. Memo LEXIS 526 (Oct. 20, 1987). The court held that the taxpayer in that case was not entitled to his claimed partnership losses based on the finding that the partnership was not “organized and operated with the primary objective of realizing an economic profit.” Zimmerman, 1987 WL 48830, 1987 Tax Ct. Memo LEXIS 526, at * 37-38. The Zimmerman court also found that the underpayment of tax was a tax-motivated transaction subject to the penalty provisions of section 6621(c). Id., 1987 WL 48830, 1987 Tax Ct. Memo LEXIS 526, at * 48-50.
About five months after the tax court issued its opinion in Zimmerman, it ordered the parties in this case to submit a computation and stipulated decision or alternatively to demonstrate just cause why a decision should not be entered. Taxpayers responded that the taxpayer in Zimmerman had failed to put forth a good faith defense, and that they could establish, by expert testimony, that the losses were deductible. The tax court rejected Taxpayers’ contentions, mainly based on a determination that Taxpayers’ expert testimony would be irrelevant to the substantiation of deductible losses. Therefore, the tax court concluded that the parties were bound by the stipulations. The tax court did rule, however, that Taxpayers were not subject to section 6653(a)(1) and 6653(a)(2) additions. The tax court then restored the case to the general docket for trial to resolve any' remaining issues.
At their December 13, 1991 trial, Taxpayers raised the jurisdictional issue of the inadequacy of their notice of deficiency. Taxpayers pointed to IRC section 6212(a), which “authorize[s the Commissioner] to send notice of ... deficiency to the taxpayer by certified mail or registered mail.” 26 U.S.C.A. § 6212(a) (West Supp.1989). Taxpayers testified that they had received the notice of deficiency by ordinary mail sometime in May 1986. The Commissioner was unable to prove' certified or registered delivery, leading Taxpayers to contend that the notice was invalid and could not serve as the basis for the assessment of a deficiency and penalties.
The tax court held that the Commissioner was not required to send notices of deficiency by registered or certified mail, and therefore upheld the determination of deficiency. As to the penalties, the tax court held that the section 6621(c) adjustments were controlled by the stipulations and that these adjustments should be made on the basis of the court’s prior opinion in Zimmerman. The tax court reiterated its prior conclusion that Taxpayers were not subject to section 6653(a)(1) and (2) additions. Finally, the court held that the addition to tax pursuant to section 6651(a)(1) was appropriate. Taxpayers appeal the adequacy of the notice of deficiency, the enforceability of the stipulations, and the assessment of additions pursuant to sections 6621(c) and 6651(a)(1).
II
This appeal presents three issues: (1) whether a notice of deficiency actually received by Taxpayers without prejudicial delay is valid despite the fact that it was not sent by certified or registered mail; (2) whether the tax court abused its discretion in refusing to relieve Taxpayers from their stipulations binding them to certain issues in a related tax court ease; and (3) whether certain additions and interest charges were properly assessed against Taxpayers.
The application of the notice requirements of IRC section 6212(a) is a question of law which we review de novo. See Scar v. Commissioner, 814 F.2d 1363, 1366 (9th Cir. 1987). Whether a stipulation entered into by parties to a tax case should be set aside is a matter within the sound discretion of the tax court, which we review for an abuse of that discretion. See Marshall v. Emersons, Ltd., 593 F.2d 565, 568 (4th Cir.1979). The additions and interest charges not found to be governed by the stipulations are proper unless their assessment represents an abuse of discretion.
A.
IRC section 6212(a) provides that “[i]f the Secretary determines that there is a deficiency in respect of any tax ..., he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.” 26 U.S.C.A. § 6212(a) (West Supp.1989). The issue in this case centers on whether the section 6212 authorization is mandatory or permissive. Taxpayers suggest that section 6212(a) mandates the use of registered or certified mail. The Commissioner contends that the statute’s language provides a safe harbor — a method of notice by which the Commissioner can be guaranteed that the limitations period for filing a petition of redetermination begins to run. If it uses a method of delivery for notices of deficiency other than registered or certified mail, the Commissioner contends, it gains no benefit from the section 6212(a) safe harbor and must prove that the taxpayer actually received the notice before it can benefit from the expiration of the period for filing a petition of redetermination.
Taxpayers rely on our decision in United States v. Ball, 326 F.2d 898 (4th Cir.1964), to support their position. In Ball there was some question as to whether the taxpayer, who had been out of the country since filing the tax form from which the deficiency in question derived, had ever received actual notice of the deficiency. Addressing the sufficiency of the notice, we said that
notice under § 6212(a) must be by registered mail.... The failure to send notice by registered mail in compliance with § 6212(a) is fatal to a jeopardy assessment, during the period that § 6212(a) permitted only notice by registered mail.
Id. at 901. In the context of determining the validity of a tax lien against a taxpayer who possibly had not received actual notice of the deficiency, we stressed the need for strict compliance with section 6212(a)’s notice requirements. Although the language used in Ball seems to mandate the use of registered mail, the holding is limited to the situation in which the Commissioner does not have evidence of actual notice and must rely on the safe harbor of section 6212(a) to establish compliance with the IRC’s notice requirements.
Section 6212(a) does not require that the taxpayer actually receive the notice of deficiency. Instead, the Commissioner must show only that it sent a notice by registered or certified mail to the taxpayer’s' last known address. Jones v. United States, 889 F.2d 1448, 1450 (5th Cir.1989). As the Fifth Circuit described it,
[t]he statutory scheme ... provides a method of notification which insures that the vast majority of taxpayers will be informed that a tax deficiency has been determined against them without imposing on the Commissioner the virtually impossible task of proving that the notice actually has been received by the taxpayer.
Id. If the taxpayer actually does receive notice of deficiency by some method of delivery, the Commissioner’s failure to comply with the authorization in section 6212(a) inviting the use of registered or certified mail proves to be a technical, but harmless violation.
The circuits that have addressed this issue directly all have reached this conclusion, holding in essence, that “a notice of deficiency that is actually received without delay prejudicial to the taxpayer’s ability to petition the Tax Court is sufficient to toll the statute of limitations as of the date of mailing.” Scheldt v. Commissioner, 967 F.2d 1448, 1450-51 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 81.1, 121 L.Ed.2d 684 (1992); see also Mulvania v. Commissioner, 769 F.2d 1376, 1378 (9th Cir.1985) (holding that “a notice of deficiency actually, physically received by a taxpayer is valid under § 6212(a) if it is received in sufficient time to permit the taxpayer, without prejudice, to file a petition to the Tax Court even though the notice is erroneously addressed’’); Pugsley v. Commissioner, 749 F.2d 691, 693 (11th Cir.1985) (holding that technical violation of not sending notice to “last known address” was not prejudicial because taxpayer received actual notice of deficiency with ample time remaining to file a petition); Clodfelter v. Commissioner, 527 F.2d 754, 756 (9th Cir. 1975) (holding that section 6212(a) deals only with those instances in which actual notice was not given or cannot be proved), cert. denied, 425 U.S. 979, 96 S.Ct. 2184, 48 L.Ed.2d 805 (1976); Berger v. Commissioner, 404 F.2d 668, 673 (3d Cir.1968) (holding that section 6212(a) authorization that notice of deficiency be sent by registered or certified mail does not forbid any other method of notice), cert. denied, 395 U.S. 905, 89 S.Ct. 1744, 23 L.Ed.2d 218 (1969); Boren v. Riddell, 241 F.2d 670, 672-74 (9th Cir.1957) (holding that essential purpose of statute was accomplished when taxpayer got actual notice in sufficient time to petition tax court despite technical violation of not using registered mail); cf. Powell v. Commissioner, 958 F.2d 53, 56 (4th Cir.) (invoking section 6212(a) safe harbor in situation in which the notice was admittedly not delivered to taxpayers), cert. denied, — U.S.-, 113 S.Ct. 440, 121 L.Ed.2d 369 (1992).
In this case Taxpayers readily admit that they received the notice of deficiency and were able to petition the tax court for rede-termination. Therefore, any prejudice to them associated with the failure of the Commissioner to send the notice by registered or certified mail is inconsequential. Following the lead of the other circuits that have addressed the issue, we identify section 6212(a) as a safe harbor to be relied upon only in those situations in which the taxpayer did not receive actual notice. Such is not the case for Taxpayers; therefore, their notice of deficiency was valid upon timely receipt.
B.
Next, Taxpayers challenge the enforceability of the stipulations in which they entered with the Commissioner to control the outcome of their case. Tax Court Rule 91(e) states:
A stipulation shall be treated, to the extent of its terms, as a conclusive admission by the parties to the stipulation, unless otherwise permitted by the Court or agreed upon by those parties. The Court will not permit a party to a stipulation to qualify, change, or contradict' a stipulation in whole or in part, except that it may do so where justice requires.
Tax Ct.R. 91(e). The tax court’s decision whether to relieve a party from a previous stipulation should “not ordinarily be interfered with, except where a manifest abuse of discretion is disclosed.” Brast v. Winding Gulf Colliery Co., 94 F.2d 179, 181 (4th Cir. 1938).
In this case Taxpayers demonstrate disapproval of the way Zimmerman defended his ease and now seek to be released from the outcome of the Zimmerman case. Taxpayers argue that the parties were mutually mistaken about Zimmerman’s willingness to defend his case and therefore should be relieved of their duty to comply with the stipulations. Taxpayers’ contentions are merit-less. They are unhappy with the fact that Zimmerman lost and that they are bound by that outcome. They cannot make out any conceivable theory to support mutual mistake, as the Commissioner did not believe at any time that Zimmerman or the other partners had a defense to the nonpayment of taxes based on spurious partnership loss deductions. Therefore, we conclude that the tax court did not abuse its discretion by binding Taxpayers under the stipulations.
C.
Finally, Taxpayers seek to avoid the imposition of additions and interest. Once the Commissioner makes an assessment, the assessment is.presumed correct and the taxpayer bears the burden of establishing the absence of the necessary elements forming the basis of the assessment. Business Ventures Internati v. Olive, 893 F.2d 641, 646 (3d Cir.1990); Hall v. Commissioner, 729 F.2d 632, 635 (9th Cir.1984). Therefore, the Commissioner need only establish, the basis for the addition, and it did so in its notice of deficiency. Without presenting evidence to the contrary, Taxpayers cannot avoid the conclusion that their failure to pay was in violation of the IRC and subject to penalty. Taxpayers suggest no reason why the imposition of the additions was in error. They merely assert that the tax court did not discuss the additions specifically in its order and that the absence of specific reference precludes their assessment. The absence of specific reference actually appears to mean that the additions were uncontested before the tax court. See supra note 5. Taxpayers have demonstrated no substantive reason why they should be allowed to avoid the additions.
Ill
Taxpayers have failed to establish the inadequacy of their notice of deficiency, the unenforceability of the stipulations, or the invalidity of the additions to tax made by the Commissioner. Therefore, the orders of the tax court are
AFFIRMED.
. The sections of the IRC authorizing the applicable tax additions provide, in pertinent parts, that
[i]n case of failure ... to file any return required ... on the date prescribed therefor (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate....
26 U.S.C.A. § 6651(a)(1) (West Supp.1989). Additions also are authorized under sections 6653(a)(1) and 6653(a)(2):
If any part of any underpayment ... of tax required to be shown on a return is due to negligence (or disregard of rules or regulations), there shall be added to the tax an amount equal to 5 percent of the underpayment.... There shall not be taken into account under this subsection any portion of an underpayment attributable to fraud with respect to which a penalty is imposed under subsection (b).
Id. §§ 6653(a)(1) & (2).
The Commissioner adds interest to a taxpayer’s taxes due when the taxpayer makes a substantial underpayment and that underpayment is attributable to tax-motivated transactions. Id. § 6621(c).
.The tax court issued two orders, one on November 16, 1990 by Judge John J. Pajak reviewing the assessment of additions and interest pursuant to the parties’ stipulations and one on June 8, 1992 by Judge Jules G. Korner, III affirming the adequacy of the Taxpayers' notice of deficiency and the determination of the deficiency.
. Section 7482 provides that
[t]he United States Court of Appeals (other than the United States Court of Appeals for the Federal Circuit) shall have exclusive jurisdiction to review the decisions of the Tax Court ... in the same manner and'to the same extent as decisions of the district courts in civil actions tried without a jury....
26 U.S.C.A. § 7482(a)(1) (West Supp.1989).
. If a taxpayer chooses to challenge a deficiency, she must file a petition with the tax court for a redetermination of the deficiency within 90 days after the notice of deficiency is mailed. 26 U.S.C.A. § 6213(a) (West Supp.1989).
. Taxpayers failed to raise objection to the section 6651(a)(1) addition in their Second (and final) Amended Petition. The tax court concluded that the Taxpayers had abandoned their challenge to the section 6651(a)(1) addition.
. Under the version of section 6212(a) applicable at the time Ball was decided, the Commissioner was authorized to use only registered mail. Congress later amended the statute to include certified mail as well. Pub.L. No. 85-866, § 89(b), 72 Stat. 1661, 1665 (1958) (codified as amended at 26 U.S.C.A. § 6212(a) (West Supp.1989)).
. Taxpayers contend that, through testimony and an expert report, they can establish the validity of the contested deduction. The tax court carefully reviewed the nature and content of the evidence and determined that it either was repetitive of that presented in the Zimmerman case or irrelevant.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
sc_petitioner
|
143
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
TAYLOR v. STURGELL, ACTING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 07-371.
Argued April 16, 2008
Decided June 12, 2008
Adina H. Rosenbaum argued the cause for petitioner. With her on the briefs were Brian Wolfman, Scott L. Nelson, and Michael John Pangia.
Douglas Hallward-Driemeier argued the cause for the federal respondent. With him on the brief were former Solicitor General Clement, Acting Assistant Attorney General Bucholtz, Deputy Solicitor General Kneedler, Leonard Schaitman, and Robert D. Kamenshine.
Catherine E. Stetson argued the cause for respondent Fairchild Corporation. With her on the brief were Christopher T Handman and N. Thomas Connolly.
Briefs of amici curiae urging reversal were filed for the American Association for Justice by John Vail and Kathleen Flynn Peterson; for Civil Procedure and Complex Litigation Professors by David L. Shapiro and John Leubsdorf, both pro se; for the National Security Archive et al. by Meredith Fuchs; and for Lavonna Eddy et al. by James A. Feldman and Gerald S. Hartman.
Mark L. Shurtleff, Attorney General of Utah, and Philip S. Lott and Peggy E. Stone, Assistant Attorneys General, filed a brief for the State of Utah as amicus curiae urging affirmance.
Jack R. Bierig filed a brief for the American Dental Association as amicus curiae.
Justice Ginsburg
delivered the opinion of the Court.
“It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U. S. 32,40 (1940). Several exceptions, recognized in this Court’s decisions, temper this basic rule. In a class action, for example, a person not named as a party may be bound by a judgment on the merits of the action, if she was adequately represented by a party who actively participated in the litigation. See id., at 41. In this case, we consider for the first time whether there is a “virtual representation” exception to the general rule against precluding nonparties. Adopted by a number of courts, including the courts below in the case now before us, the exception so styled is broader than any we have so far approved.
The virtual representation question we examine in this opinion arises in the following context. Petitioner Brent Taylor filed a lawsuit under the Freedom of Information Act seeking certain documents from the Federal Aviation Administration. Greg Herrick, Taylor’s friend, had previously brought an unsuccessful suit seeking the same records. The two men have no legal relationship, and there is no evidence that Taylor controlled, financed, participated in, or even had notice of Herrick’s earlier suit. Nevertheless, the D. C. Circuit held Taylor’s suit precluded by the judgment against Herrick because, in that court’s assessment, Herrick qualified as Taylor’s “virtual representative.”
We disapprove the doctrine of preclusion by “virtual representation,” and hold, based on the record as it now stands, that the judgment against Herrick does not bar Taylor from maintaining this suit.
The Freedom of Information Act (FOIA or Act) accords “any person” a right to request any records held by a federal agency. 5 U. S. C. § 552(a)(3)(A) (2006 ed.). No reason need be given for a FOIA request, and unless the requested materials fall within one of the Act’s enumerated exemptions, see § 552(a)(3)(E), (b), the agency must “make the records promptly available” to the requester, § 552(a)(3)(A). If an agency refuses to furnish the requested records, the requester may file suit in federal court and obtain an injunction “order[ing] the production of any agency records improperly withheld.” § 552(a)(4)(B).
I
The courts below held the instant FOIA suit barred by the judgment in earlier litigation seeking the same records. Because the lower courts’ decisions turned on the connection between the two lawsuits, we begin with a full account of each action.
A
The first suit was filed by Greg Herrick, an antique aircraft enthusiast and the owner of an F-45 airplane, a vintage model manufactured by the Fairchild Engine and Airplane Corporation (FEAC) in the 1930’s. In 1997, seeking information that would help him restore his plane to its original condition, Herrick filed a FOIA request asking the Federal Aviation Administration (FAA) for copies of any technical documents about the F-45 contained in the agency’s records.
To gain a certificate authorizing the manufacture and sale of the F-45, FEAC had submitted to the FAA’s predecessor, the Civil Aeronautics Authority, detailed specifications and other technical data about the plane. Hundreds of pages of documents produced by FEAC in the certification process remain in the FAA’s records. The FAA denied Herrick’s request, however, upon finding that the documents he sought are subject to FOIA’s exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” § 552(b)(4). In an administrative appeal, Herrick urged that FEAC and its successors had waived any trade-secret protection. The FAA thereupon contacted FEAC’s corporate successor, respondent Fairchild Corporation (Fairchild). Because Fairchild objected to release of the documents, the agency adhered to its original decision.
Herrick then filed suit in the U. S. District Court for the District of Wyoming. Challenging the FAA’s invocation of the trade-secret exemption, Herrick placed heavy weight on a 1955 letter from FEAC to the Civil Aeronautics Authority. The letter authorized the agency to lend any documents in its files to the public “for use in making repairs or replacement parts for aircraft produced by Fairchild.” Herrick v. Garvey, 298 F. 3d 1184,1193 (CA10 2002) (internal quotation marks omitted). This broad authorization, Herrick maintained, showed that the F-45 certification records held by the FAA could not be regarded as “secre[t]” or “confidential” within the meaning of § 552(b)(4).
Rejecting Herrick’s argument, the District Court granted summary judgment to the FAA. Herrick v. Garvey, 200 F. Supp. 2d 1321, 1328-1329 (Wyo. 2000). The 1955 letter, the court reasoned, did not deprive the F-45 certification documents of trade-secret status, for those documents were never in fact released pursuant to the letter’s blanket authorization. See id., at 1329. The court also stated that even if the 1955 letter had waived trade-secret protection, Fairchild had successfully “reversed” the waiver by objecting to the FAA’s release of the records to Herrick. Ibid.
On appeal, the Tenth Circuit agreed with Herrick that the 1955 letter had stripped the requested documents of trade-secret protection. See Herrick, 298 F. 3d, at 1194. But the Court of Appeals upheld the District Court’s alternative determination — i. e., that Fairchild had restored trade-secret status by objecting to Herrick’s FOIA request. Id., at 1195. On that ground, the appeals court affirmed the entry of summary judgment for the FAA.
In so ruling, the Tenth Circuit noted that Herrick had failed to challenge two suppositions underlying the District Court’s decision. First, the District Court assumed trade-secret status could be “restored” to documents that had lost protection. Id., at 1194, n. 10. Second, the District Court also assumed that Fairchild had regained trade-secret status for the documents even though the company claimed that status only “after Herrick had initiated his request” for the F-45 records. Ibid. The Court of Appeals expressed no opinion on the validity of these suppositions. See id., at 1194-1195, n. 10.
B
The Tenth Circuit’s decision issued on July 24,2002. Less than a month later, on August 22, petitioner Brent Taylor— a friend of Herrick’s and an antique aircraft enthusiast in his own right — submitted a FOIA request seeking the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed a complaint in the U. S. District Court for the District of Columbia. Like Herrick, Taylor argued that FEAC’s 1955 letter had stripped the records of their trade-secret status. But Taylor also sought to litigate the two issues concerning recapture of protected status that Herrick had failed to raise in his appeal to the Tenth Circuit.
After Fairchild intervened as a defendant, the District Court in D. C. concluded that Taylor’s suit was barred by claim preclusion; accordingly, it granted summary judgment to Fairchild and the FAA. The court acknowledged that Taylor was not a party to Herrick’s suit. Relying on the Eighth Circuit’s decision in Tyus v. Schoemehl, 93 F. 3d 449 (1996), however, it held that a nonparty may be bound by a judgment if she was “virtually represented” by a party. App. to Pet. for Cert. 30a-31a.
The Eighth Circuit’s seven-factor test for virtual representation, adopted by the District Court in Taylor’s case, requires an “identity of interests” between the person to be bound and a party to the judgment. See id., at 31a. See also Tyus, 93 F. 3d, at 455. Six additional factors counsel in favor of virtual representation under the Eighth Circuit’s test, but are not prerequisites: (1) a “close relationship” between the present party and a party to the judgment alleged to be preclusive; (2) “participation in the prior litigation” by the present party; (3) the present party’s “apparent acquiescence” to the preclusive effect of the judgment; (4) “deliberate] maneuvering]” to avoid the effect of the judgment; (5) adequate representation of the present party by a party to the prior adjudication; and (6) a suit raising a “public law” rather than a “private law” issue. App. to Pet. for Cert. 31a (citing Tyus, 93 F. 3d, at 454-456). These factors, the D. C. District Court observed, “constitute a fluid test with imprecise boundaries” and call for “a broad, case-by-case inquiry.” App. to Pet. for Cert. 32a.
The record before the District Court in Taylor’s suit revealed the following facts about the relationship between Taylor and Herrick: Taylor is the president of the Antique Aircraft Association, an organization to which Herrick belongs; the two men are “close associate^],” App. 54; Herrick asked Taylor to help restore Herrick’s F-45, though they had no contract or agreement for Taylor’s participation in the restoration; Taylor was represented by the lawyer who represented Herrick in the earlier litigation; and Herrick apparently gave Taylor documents that Herrick had obtained from the FAA during discovery in his suit.
Fairchild and the FAA conceded that Taylor had not participated in Herrick’s suit. App. to Pet. for Cert. 32a. The D. C. District Court determined, however, that Herrick ranked as Taylor’s virtual representative because the facts fit each of the other six indicators on the Eighth Circuit’s list. See id., at 32a-35a. Accordingly, the District Court held Taylor’s suit, seeking the same documents Herrick had requested, barred by the judgment against Herrick. See id., at 35a.
The D. C. Circuit affirmed. It observed, first, that other Circuits “vary widely” in their approaches to virtual representation. Taylor v. Blakey, 490 F. 3d 965, 971 (2007). In this regard, the D. C. Circuit contrasted the multifactor balancing test applied by the Eighth Circuit and the D. C. District Court with the Fourth Circuit’s narrower approach, which “treats a party as a virtual representative only if the party is ‘accountable to the nonparties who file a subsequent suit’ and has ‘the tacit approval of the court’ to act on the nonpart[ies’] behalf.” Ibid, (quoting Klugh v. United States, 818 F. 2d 294, 300 (CA4 1987)).
Rejecting both of these approaches, the D. C. Circuit announced its own five-factor test. The first two factors— “identity of interests” and “adequate representation” — are necessary but not sufficient for virtual representation. 490 F. 3d, at 971-972. In addition, at least one of three other factors must be established: “a close relationship between the present party and his putative representative,” “substantial participation by the present party in the first case,” or “tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment.” Id., at 972.
Applying this test to the record in Taylor’s case, the D. C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that Taylor and Herrick sought the same result — release of the F-45 documents. Moreover, the D. C. Circuit observed, Herrick owned an F-45 airplane, and therefore had, “if anything, a stronger incentive to litigate” than Taylor, who had only a “general interest in public disclosure and the preservation of antique aircraft heritage.” Id., at 973 (internal quotation marks omitted).
Turning to adequacy of representation, the D. C. Circuit acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. See id., at 973-974 (citing Perez v. Volvo Car Corp., 247 F. 3d 303, 312 (CA1 2001), and Tice v. American Airlines, Inc., 162 F. 3d 966, 973 (CA7 1998)). Disagreeing with these courts, the D. C. Circuit deemed notice an “important” but not an indispensable element in the adequacy inquiry. The court then concluded that Herrick had adequately represented Taylor even though Taylor had received no notice of Herrick’s suit. For this conclusion, the appeals court relied on Herrick’s “strong incentive to litigate” and Taylor’s later engagement of the same attorney, which indicated to the court Taylor’s satisfaction with that attorney’s performance in Herrick’s case. See 490 F. 3d, at 974-975.
The D. C. Circuit also found its “close relationship” criterion met, for Herrick had “asked Taylor to assist him in restoring his F-45” and “provided information to Taylor that Herrick had obtained through discovery”; furthermore, Taylor “did not oppose Fairchild’s characterization of Herrick as his ‘close associate.’” Id., at 975. Because the three above-described factors sufficed-to establish virtual representation under the D. C. Circuit’s five-factor test, the appeals court left open the question whether Taylor had engaged in “tactical maneuvering.” See id., at 976 (calling the facts bearing on tactical maneuvering “ambigu[ous]”).
We granted certiorari, 552 U. S. 1136 (2008), to resolve the disagreement among the Circuits over the permissibility and scope of preclusion based on “virtual representation.”
II
The preclusive effect of a federal-court judgment is determined by federal common law. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U. S. 497, 507-508 (2001). For judgments in federal-question cases — for example, Herrick’s FOIA suit — federal courts participate in developing “uniform federal rule[s]” of res judicata, which this Court has ultimate authority to determine and declare. Id., at 508. The federal common law of preclusion is, of course, subject to due process limitations. See Richards v. Jefferson County, 517 U. S. 793, 797 (1996).
Taylor’s case presents an issue of first impression in this sense: Until now, we have never addressed the doctrine of “virtual representation” adopted (in varying forms) by several Circuits and relied upon by the courts below. Our inquiry, however, is guided by well-established precedent regarding the propriety of nonparty preclusion. We review that precedent before taking up directly the issue of virtual representation.
A
The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as “res judicata.” Under the doctrine of claim preclusion, a final judgment forecloses “successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.” New Hampshire v. Maine, 532 U. S. 742, 748 (2001). Issue preclusion, in contrast, bars “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,” even if the issue recurs in the context of a different claim. Id., at 748-749. By “precluding] parties from contesting matters that they have had a full and fair opportunity to litigate,” these two doctrines protect against “the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U. S. 147, 153-154 (1979).
A person who was not a party to a suit generally has not had a “full and fair opportunity to litigate” the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the “deep-rooted historic tradition that everyone should have his own day in court.” Rickards, 517 U. S., at 798 (internal quotation marks omitted). Indicating the strength of that tradition, we have often repeated the general rule that “one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry, 311 U. S., at 40. See also, e. g., Richards, 517 U. S., at 798; Martin v. Wilks, 490 U. S. 755, 761 (1989); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 110 (1969).
B
Though hardly in doubt, the rule against nonparty preclusion is subject to exceptions. For present purposes, the recognized exceptions can be grouped into six categories.
First, “[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement.” 1 Restatement (Second) of Judgments §40, p. 390 (1980) (hereinafter Rest
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_respond1_1_3
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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.
JOHN B. HULL, INC., The Sandmeyer Oil Company, Community Petroleum Products, Inc., and Dutchess Auto Co., Plaintiffs-Appellees, v. WATERBURY PETROLEUM PRODUCTS, INC., Defendant-Appellant.
No. 21, Docket 78-7136.
United States Court of Appeals, Second Circuit.
Argued Oct. 18, 1978.
Decided Nov. 30, 1978.
Michael F. Dowley, Middletown, Conn. (Dzialo, Pickett & Allen, P. C., Middletown, Conn.), for appellant.
James R. Hawkins, II, Stamford, Conn. (Cummings & Lockwood, Stamford, Conn.), for appellee.
Before SMITH, TIMBERS and VAN GRAAFEILAND, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from an order in a civil antitrust action granting a preliminary injunction against defendant’s pricing practices for heating oil, entered in the United States District Court for the District of Connecticut, T. Emmet Clarie, Chief Judge. We find the scope of the order somewhat broader than justified, modify the order and, as modified, affirm.
This controversy involves five companies engaged in the sale of heating oil (also known as “fuel oil Number 2”) to homes, schools and some businesses in an area referred to as the Northwest Corner, which encompasses parts of northwest Connecticut, southwest Massachusetts and the adjacent area of New York. On one side of the controversy are John B. Hull, Inc., The Sandmeyer Oil Company, Community Petroleum Products, Inc., and Dutchess Auto Company (“the plaintiffs”). Together they account for a substantial portion of the sales of heating oil in the Northwest Corner. On the other side is Waterbury Petroleum Products, Inc. (“WPP”), which has about 2% of the market in the Northwest Corner.
WPP originally operated exclusively in Waterbury, Connecticut, outside of the Northwest Corner. In 1975, it purchased the assets of the Canaan Oil Company, located in Canaan, Connecticut, and thereby expanded its business into the Northwest Corner. For reasons unrelated to this action, all three former employees of the Canaan Oil Company subsequently left WPP and began working for one of its competitors. As a result, WPP started to lose customers in the Northwest Corner. At about the same time, WPP lost the use of its Canaan storage facility in a dispute over the ownership of the property.
In September 1976, WPP sought to reverse its declining fortunes in the Northwest Corner by lowering the price of heating oil there to 35.9 cents per gallon. WPP continued to sell its heating oil in the Waterbury area at a price of 40.9 cents per gallon. Over the next four months, increases in the cost of obtaining oil caused WPP to raise the price charged to Waterbury customers to 48.9 cents per gallon. During the same period, WPP only increased its price in the Northwest Corner to 39.9 cents per gallon.
WPP’s new pricing policy proved successful in recapturing old customers and acquiring new ones, some of whom previously purchased oil from the plaintiffs. As might be expected, the plaintiffs were not pleased with the loss of customers that WPP’s pricing policy produced. Thus they commenced this action against WPP, alleging that its pricing policy constituted unlawful price discrimination in violation of § 2(a) of the Clayton Act as amended by the RobinsonPatman Act, 15 U.S.C. § 13(a). The plaintiffs sought preliminary and permanent injunctive relief against WPP’s pricing policy, as well as trebled damages for the losses which they sustained as a result of that policy.
The district court, pursuant to 28 U.S.C. § 636, referred the matter to a magistrate, who conducted an evidentiary hearing to determine whether a preliminary injunction should be issued. The hearing lasted five days, after which the magistrate submitted his recommended ruling, including specific findings of fact. The district court “adopted, ratified and confirmed” the recommended ruling and issued an order granting the preliminary injunction.
WPP appeals from that order, arguing that the district court lacked subject matter jurisdiction, that there was manifest error in the issuance of the injunction, and that the injunction as issued is too broad and should be modified. We find no merit in appellant’s first two contentions, but agree that the relief granted was too broad and therefore modify the preliminary injunction and, as modified, affirm.
WPP contends that the district court lacked jurisdiction of the subject matter of this action because there was no proof of injury to competition. We of course must consider this argument although it was not raised below, Woodward v. D. H. Overmyer Co., 428 F.2d 880, 882 (2d Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 460, 27 L.Ed.2d 441 (1971), as jurisdiction over the subject matter provides the basis for the court’s power to act, and an action must be dismissed whenever it appears that the court lacks such jurisdiction. Fed.R.Civ.P. 12(h)(3).
WPP cites several cases from the Fifth Circuit for the proposition that proof of injury to competition is a jurisdictional requirement under the Robinson-Patman Act. This element was explicitly described as a prerequisite to jurisdiction in Hampton v. Graff Vending Co., 516 F.2d 100, 101-02 (5th Cir. 1975), which relied on Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 208 (5th Cir. 1969). In neither case, however, was the existence of an adverse effect on competition in issue. Moreover, the court in Cliff Food Stores did not speak in terms of jurisdiction, but rather in terms of the proof necessary to “maintain an action.”
We know of no other court which has adopted the position taken in Hampton. Commentators have concluded that proof of injury to competition is not a jurisdictional requirement. See, e. g., 16B J. Von Kalinowski, Business Organizations: Antitrust Laws and Trade Regulation, ch. 23; Rowe, Discriminatory Sales of Commodities in Commerce: Jurisdictional Criteria Under the Robinson-Patman Act, 67 Yale L.J. 1155, 1156 (1958). We respectfully decline to follow the Fifth Circuit’s dictum. Proof of injury to competition is not a jurisdictional prerequisite, but instead is part of a Robinson-Patman plaintiff’s substantive burden in demonstrating a violation of the Act.
The district court applied the proper standard for the issuance of a preliminary injunction, requiring the plaintiffs to demonstrate “either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973). (Emphasis in original.) The court determined that the plaintiffs had satisfied both prongs of this test. Our review is limited to a consideration of whether there was an abuse of discretion, Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), or a clear mistake of law, 414 Theater Corp. v. Murphy, 499 F.2d 1155, 1159 (2d Cir. 1974), in the district court’s application of the Sonesta test.
15 U.S.C. § 13(a) requires a plaintiff to show that a defendant, (1) who was engaged in commerce, (2) has discriminated in price between purchasers of commodities (3) of like grade and quality, (4) where the effect may be substantially to lessen competition. WPP admitted that it was engaged in commerce and that the sales in question took place in commerce. The district court adopted the magistrate’s findings of fact that the other three elements were also satisfied. We conclude that the district court acted well within its discretion in finding a probability that the plaintiffs ultimately will succeed on the merits of their claim.
Price discrimination, for the purposes of the Robinson-Patman Act, is “merely a price difference.” FTC v. Anheuser-Busch, Inc., 363 U.S. 536, 549, 80 S.Ct. 1267, 4 L.Ed.2d 1385 (1960). WPP concededly charged different prices to different customers at the same time. The district court found that WPP was selling a commodity of like grade and quality in Water bury and the Northwest Corner. In so finding, the court rejected as factually unsupported WPP’s contention that the products sold in the two areas were different in that the price charged in Waterbury purportedly included 24-hour burner service and easier credit terms, not offered in the Northwest Corner. The court also rejected WPP’s defense that the price difference was justified by a difference in the costs of providing heating oil to the two areas. The court characterized the testimony of WPP’s expert as “beyond the realm of believability” and concluded that WPP was operating at a loss in the Northwest Corner as a result of its lowered price. While we offer no opinion as to the eventual resolution of these issues, we find the district court’s conclusions to be not clearly erroneous on the basis of the existing record.
The district court’s conclusion on the issue of anticompetitive effect also is supported by the record. In this circuit, proof of price discrimination satisfies a plaintiff’s initial burden of showing injury to competition and shifts to the defendant the burden of proving that its acts did not substantially lessen competition. Samuel H. Moss, Inc. v. FTC, 148 F.2d 378, 379 (2d Cir.), cert. denied, 326 U.S. 734, 66 S.Ct. 44, 90 L.Ed. 438 (1945). WPP did not discharge this burden. Injury to competition may also be shown by proof of predatory intent, Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 696-98, 702, 87 S.Ct. 1326, 18 L.Ed.2d 406 (1967), which can be inferred from proof of sales below cost. Id., at 696 n. 12. The district court’s finding that WPP sold below cost was justifiable.
WPP argues that because it has only 2% of the Northwest Corner market and is not a powerful nationwide corporation, while the plaintiffs hold a much larger share of the market, there can be no anti-competitive effect of the kind contemplated by the Robinson-Patman Act. This contention runs counter to the language of Utah Pie, 386 U.S. at 702-03 n. 14, 87 S.Ct. at 1336, where the Supreme Court said:
Nor does the fact that a local competitor has a major share' of the market make him fair game for discriminatory price cutting free of Robinson-Patman Act proscriptions. “The Clayton Act proscription as to discrimination in price is not nullified merely because of a showing that the existing competition in a particular market had a major share of the sales of the product involved.” [Citation omitted.]
We next consider whether the plaintiffs demonstrated the possibility that irreparable injury would result if temporary injunctive relief were not granted. The district court found two elements of irreparable harm: (1) the “extreme likelihood” that Dutchess Auto Company (“Dutchess”) would go out of business, and (2) the loss to “the goodwill and reputations” of the plaintiffs. Although we are not sure that we would have come to the same conclusion as did the district court, that is not the standard by which its determination must be judged. We cannot say that we have a “definite and firm conviction that a mistake has been committed.” United States v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). We conclude that the finding of irreparable injury finds support in the record and relief based upon it did not constitute abuse of the court’s discretion.
The district court determined that Dutchess was in danger of losing many customers to whom it had given discounts in an attempt to match WPP’s price, and that, if it lost those customers, it would probably be forced out of the heating oil business. A threat to the continued existence of a business can constitute irreparable injury. Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970). Although Dutchess might have done a more thorough job of proving the possibility that it would go out of business, we cannot say that the court’s finding was without some evidentiary support.
The finding of irreparable harm through loss of goodwill and reputation raises a more difficult issue. WPP concedes that loss of goodwill in certain circumstances can constitute irreparable injury, as in Interphoto Corp. v. Minolta Corp., 417 F.2d 621, 622 (2d Cir. 1969), and Supermarket Services, Inc. v. Hartz Mountain Corp., 382 F.Supp. 1248 (S.D.N.Y.1974). However, it contends on appeal that the loss of goodwill claimed here amounts to nothing more than a claim that the plaintiffs are losing customers to WPP’s lower price. WPP argues that to issue a preliminary injunction on that basis would mandate a preliminary injunction in every price discrimination case, thereby destroying the preliminary injunction’s status as an extraordinary remedy.
WPP’s argument has considerable force. Those cases in which loss of goodwill previously has been held to constitute irreparable injury have involved the termination of franchise or distributorship relationships. See, e. g., Jacobson & Co. v. Armstrong Cork Co., 548 F.2d 438 (2d Cir. 1977); Interphoto Corp. v. Minolta Corp., supra, 417 F.2d 621; Bergen Drug Co. v. Parke Davis & Co., 307 F.2d 725 (3d Cir. 1962); Carlo C. Gelardi Corp. v. Miller Brewing Co., 421 F.Supp. 233 (D.N.J.1976); Supermarket Services, Inc. v. Hartz Mountain Corp., supra, 382 F.Supp. 1248. In that situation, the plaintiff is deprived totally of the opportunity to sell an entire line of merchandise and may incur injury to its goodwill and reputation “as a dependable distributor which offers a full line” of goods. Supermarket Services, Inc. v. Hartz Mountain Corp., 382 F.Supp. at 1256. That kind of loss of goodwill is quite different from the loss of a customer that results simply from a competitor’s lower price. Cf. Automatic Radio Manufacturing Co. v. Ford Motor Co., 390 F.2d 113, 116-17 (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968) (goodwill resulted from “mercurial market” geared to price and demand for personnel rather than from attractiveness of trade name). Every Robinson-Patman plaintiff must prove that the defendant’s price discrimination has caused damage to him, Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969), and the most common form of damage to a plaintiff competing seller would likely be lost profits because of a loss of customers. We would have serious doubts about the wisdom or propriety of finding irreparable injury to exist every time that the defendant’s lower price has attracted customers.
Here, however, WPP has waived the argument which it now seeks to raise on appeal. 28 U.S.C. § 636(b)(1) provides that any party who objects to the magistrate’s proposed findings and recommendations “may serve and file written objections . as provided by rules of court.” The United States District Court for the District of Connecticut has adopted Rules for United States Magistrates. Rule 2 requires that “[a]ny party wishing to object must . serve on all parties, and file with the Clerk, written objection which shall specifically identify the ruling, order, proposed findings and conclusions, or part thereof to which objection is made and the factual and legal basis for such objection.” (Emphasis added.) WPP objected to the magistrate’s conclusion on the grounds that any loss of goodwill resulted from fair competition and that the scale of the alleged loss was too small to warrant preliminary injunctive relief. WPP did not, however, “specifically identify the . . . legal basis” on which it now seeks to challenge the magistrate’s conclusion. This failure to satisfy Rule 2 resulted in this argument not being considered by the district court and thus it has not been properly preserved for appeal. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Wilkerson v. Meskill, 501 F.2d 297, 298 (2d Cir. 1974).
Although we agree that the district court acted within its discretion in determining that a preliminary injunction should be granted, we believe that the injunction entered was too broad and should be modified. The plaintiffs’ complaint sought relief restraining WPP from selling heating oil in the Northwest Corner at a price below that which it charged in Waterbury. The magistrate’s recommended ruling proposed a preliminary injunction which would achieve that result by requiring WPP to charge the same price in both areas. The district court’s order, however, imposed a number of additional restrictions which exceeded the relief requested. The injunction prohibits WPP from granting any discounts which are not cost justified in either the Northwest Corner or Waterbury. None of the plaintiffs, however, competes with WPP in Waterbury, and no complaint has been made as to WPP’s pricing policy there. “[A] decree cannot enjoin conduct about which there has been no complaint,” United States v. Spectro Foods Corp., 544 F.2d 1175, 1180 (3d Cir. 1976), nor may it “enjoin ‘all possible breaches of the law.’ ” Hartford-Empire Co. v. United States, 323 U.S. 386, 410, 65 S.Ct. 373, 385, 89 L.Ed. 322 (1945) (footnote omitted). Furthermore, the injunction’s emphasis on allowing only cost justified discounts could be construed to prohibit WPP from offering discounts in order to meet those offered by its competitors, all of whom concededly grant discounts which may or may not be cost justified. The injunction therefore should be modified so as to regulate discounts only in the Northwest Corner and to make clear that WPP may engage in pricing policies that are allowed under the “meeting competition” defense afforded by 15 U.S.C. § 13(b). The burden of proving the justification for any discounts offered in order to meet competition will remain on WPP, as provided by the statute.
WPP also has attempted to raise two alleged evidentiary errors which it failed to preserve for our review because of its failure to include them in its objections to the recommended ruling. Because these issues are likely to arise again during the trial on the merits, we shall comment on them briefly. The first involved the admission as an exhibit of a list of customers whom plaintiff John B. Hull, Inc. allegedly lost to WPP. This exhibit presents a close question of admissibility even under the liberal criteria of Fed.R.Evid. 803(6), as it appears to be a list compiled under the special circumstances of WPP’s price cut rather than a record kept as a “regular practice” of the plaintiff’s business. The second objection concerned the qualifications of the plaintiffs’ expert witness. The record suggests that he was adequately qualified to give expert testimony under Fed.R.Evid. 702. The weight to be given his testimony of course remains for the trier of fact to determine.
The order of the district court is modified and, as modified, is affirmed.
. The parties stipulated that the Northwest Corner includes the following locations: Sharon, Lakeville, Canaan, North Canaan, East Canaan, Salisbury, Falls Village, Norfolk, Lime Rock and Cornwall in the State of Connecticut; Millerton in the State of New York; and Great Barrington and Sheffield in the State of Massachusetts.
. About twenty million gallons of heating oil are consumed annually in the Northwest Corner. The plaintiffs collectively sell more than ten million gallons of heating oil annually; however, it is not clear from the record what portion of those sales are made in the Northwest Corner. It is clear that the plaintiffs service a larger share of the market than does the defendant, Waterbury Petroleum Products, Inc.
. The court said:
To maintain an action under section 13(a) the plaintiff must allege and prove, inter alia: (1) That the defendant is engaged in commerce; (2) that, in the course of such commerce, the defendant has discriminated in price between different purchasers of commodities of like grade and quality; (3) that “either or any of the purchases involved in such discrimination are in commerce”', and (4) that there is likely to be a severe, adverse effect on competition.
417 F.2d at 208. (Emphasis in original.)
. As the discussion below will show, the plaintiffs made a showing of probable effect on competition sufficient to satisfy any jurisdictional requirement, if one had existed.
. The magistrate clearly found against WPP on the former ground. The latter ground might have weight if we were applying the “balancing of hardships” test, but it does not rebut the contention that a possibility of irreparable injury existed.
. The injunction provided, in relevant part:
It is therefore:
ORDERED that the defendant, Waterbury Petroleum Products, Inc., shall establish a single price for sales of fuel oil Number 2. Nothing herein shall prohibit the defendant from granting discounts from such base price, so long as such discounts are cost justified. Examples of such permissible cost justified discounts are discounts relating to tank size and annual volume consumed by the account (including multiple accounts). Any such discounts must be offered uniformly to all customers of Waterbury Petroleum Products, wherever located. Specifically, no discount shall be granted to any of Waterbury Petroleum Products’ customers which purports to be for payment within a specified period of time or Waterbury Petroleum Products’ non-provision of burner service. Nothing herein shall affect the prices which defendant shall charge its customers where such prices have been or will be hereafter established by contract following public competitive bidding. Subject to the foregoing, the prices which the defendant shall charge its customers for fuel oil Number 2 shall be solely a matter of defendant’s business judgment. This injunction mandates full compliance with Section 2(a) of the Robinson-Pat-man Act on the part of Waterbury Petroleum Products, Inc. . .
. The injunction shall be modified to read as follows:
It is therefore:
ORDERED that the defendant, Waterbury Petroleum Products, Inc,, shall establish a single base price for sales of fuel oil Number 2. Nothing herein shall prohibit the defendant from granting discounts from such base price, so long as any discounts given to customers in the Northwest Comer are cost justified, Examples of such permissible cost justified discounts are discounts relating to tank size and annual volume consumed by the account (including multiple accounts). No discount shall be granted to any of Waterbury Petroleum Products’ customers in the Northwest Corner which purports to be for payment within a specified period of time or for Waterbury Petroleum Products’ non-provision of burner service. Nothing herein shall affect the prices which defendant shall charge its customers where such prices have been or will be hereafter established by contract following public competitive bidding. Any conduct which is permissible under the “meeting competition” defense afforded by 15 U.S.C. § 13(b) shall be permissible under the terms of this preliminary injunction, and shall not be deemed a violation thereof. Subject .to the foregoing, the prices which the defendant shall charge its customers for fuel oil Number 2 shall be solely a matter of defendant’s business judgment. This injunction mandates full compliance with Section 2(a) of the Clayton Act as amended by the Robinson-Patman Act on the part of Waterbury Petroleum Products, Inc. .
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_usc1sect
|
2001
|
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 38. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Kenneth H. WALTERMYER, Appellant, v. ALUMINUM COMPANY OF AMERICA, Appellee.
No. 86-3156.
United States Court of Appeals, Third Circuit.
Argued Sept. 30, 1986.
Decided Nov. 7, 1986.
Rehearing and Rehearing En Banc Denied Dec. 1, 1986.
Mary T. Koehmstedt (argued), John F. Cordes, Attys., Appellate Staff, Richard K. Willard, Asst. Atty. Gen., Civ. Div., Dept, of Justice, Washington, D.C., J. Alan Johnson, U.S. Atty., Pittsburgh, Pa., for appellant; George Salem, Sol., John Depenbrock, Associate Sol., William H. Berger, Department of Labor, Washington, D.C., of counsel.
Ralph W. Waechter (argued), Aluminum Company of America, Pittsburgh, Pa., for appellee.
Before WEIS, MANSMANN and HUNTER, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
The question in this case is whether a National Guardsman is entitled to pay from his employer for a holiday that occurs during his leave of absence for the annual two-week military training period. The collective bargaining agreement limited eligibility for holiday pay to individuals who worked during that week, but exempted from that requirement persons in a number of categories who were absent for reasons beyond their control. Because of the similarity between military leave of absence and those exempted classifications, we conclude that the Vietnam Era Veterans’ Readjustment Assistance Act, 38 U.S.C. §§ 2001, et seq., requires that the guardsman be treated the same as those in the exempted classifications who receive holiday pay. Accordingly, we will reverse the district court’s judgment in favor of the employer.
After the district court entered summary judgment for defendant employer and denied the plaintiff’s motion, plaintiff appealed. The facts are not in dispute. Plaintiff has been an employee of defendant since 1966. He is also a member of the Pennsylvania Air National Guard, and during its annual two-week training period defendant has granted leaves of absence as required by 38 U.S.C. § 2024(d).
In 1982, the two-week training period began on July 3, and included the Independence Day holiday. In 1984, the Memorial Day holiday occurred during the training period that began on May 19. Relying on his union’s collective bargaining agreement, which designated the two days as paid holidays, plaintiff contended that he was entitled to two days’ wages. Defendant refused on the ground that plaintiff had not met the prerequisite to holiday pay set out in the collective bargaining agreement.
ALCOA’s agreement with the plaintiff’s union provides that full-time employees receive pay for designated holidays if, during the payroll week (Monday through Sunday) in which the holiday occurs, the employee is:
1. At work; or
2. On a scheduled vacation; or
3. On a layoff under specified conditions; or
4. Performing jury service; or
5. A witness in a court of law; or
6. Qualified for bereavement pay; or
7. Absent because of personal illness and certain sick leave conditions apply-
Plaintiff maintained that because he was on active military duty during the holiday weeks he qualified for holiday pay, as did employees in the exempted categories, e.g., jurors or witnesses in court. He asserted that the holiday pay is “an incident or advantage of employment” under the the Vietnam Era Veterans Readjustment Assistance Act, 38 U.S.C. §§ 2021, et seq., and may not be withheld from those on leaves of absence to participate in military training.
The district court, relying on Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981), concluded that plaintiff could not recover because he sought greater rights than those available to fellow-employees. Although several groups of ALCOA employees received holiday pay despite their absence during the critical weeks, the court observed that plaintiff did not fit within the distinct categories exempted by the collective bargaining agreement. In these circumstances, to require holiday pay for the plaintiff “would enlarge the obligation of the employer beyond the simple statutory command. We find that plaintiff has not suffered any discrimination by being denied any benefit to which other employees are entitled.” Waltermyer v. Aluminum Company of America, 633 F.Supp. 6, 8 (W.D.Pa.1986). The court, therefore, entered judgment for the employer.
I
On appeal, plaintiff asserts that since some employees receive more favorable treatment than others, the statute requires that he be placed on equal footing with those workers in the privileged group. Alcoa argues that its treatment of plaintiff was consistent with that of all other employees on leaves of absence.
The statutory provisions relevant here had their origins in World War II, and originally were designed to provide reemployment for veterans on their return to civilian life. Pub.L. No. 54-783, § 8, 54 Stat. 885, 890 (1940). Various amendments were enacted over the years, and in 1960, National Guardsmen, in addition to reservists, became protected from employment discrimination because of absences from work during short-term military training exercises. 38 U.S.C. 2024(c).
Section 2024(d) provides that employees “shall upon request be granted a leave of absence” by their employers for the period of active duty required for training. Once released from active duty, the employees “shall be permitted to return” to their positions “with such seniority, status, pay, and vacation” as the employees would have enjoyed had they not taken leave for military training.
The Department of Labor concluded that § 2024(d) inadequately responded to the special problems reservists had encountered and, therefore, proposed legislation that Congress adopted in 1968. Codified at 38 U.S.C. § 2021(b)(3), the amendment provides that a person shall not be “denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.”
The Supreme Court first construed § 2021(b)(3) in Monroe v. Standard Oil. In earlier cases the Court had reviewed provisions of the Act which applied to veterans with more lengthy service who then returned to civilian life. See, e.g., Alabama Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977) (worker entitled to pension credit for 30-month break in employment spent in military).
In reviewing the legislative history of § 2021(b)(3), the Monroe Court observed that the Senate and House Reports agreed on the aim of the statute: to insure reservists “the same treatment afforded their coworkers not having such military obligations.” 452 U.S. at 558, 101 S.Ct. at 2515. The thrust of the legislation, according to the Court, was to prevent discrimination against reservists but not to grant them preferential treatment. Following that theme, the Court found nothing in the legislative history to indicate the statute was designed to give reservists on leave all the incidents of employment accorded working employees, including regular and overtime pay.
Monroe had contended that the statute obligated his employer to reschedule his hours of work so that time lost as a result of weekend National Guard duty could be made up on other days of the week. The Court rejected his argument because it “would require work-assignment preferences not available to any nonreservist employee at the respondent’s refinery.” 452 U.S. at 561, 101 S.Ct. at 2517.
Before Monroe reached the Supreme Court, courts of appeals had applied the statute in several cases. In Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1024 (1st Cir.1979), the court held that a state trooper’s reassignment to a less desirable shift because of his six-week absences for military training violated § 2021(b)(3). In determining whether the plaintiff was a victim of discrimination, the court of appeals did not compare him to those co-workers away on nonmilitary leave of absence but concluded the standard should be based on the more inclusive class of “co-workers not having [reserve] obligations.” 609 F.2d at 1027.
The court in West v. Safeway Stores, Inc., 609 F.2d 147 (5th Cir.1980), adopted a standard that would require an employer “in applying the collective bargaining agreement to treat reservists as if they were constructively present during their reserve duty in similar contexts.” Id. at 150. The dispute in that case centered on the employer’s agreement with the union to provide forty hours of work per week. To the extent that the factual situations are similar, Monroe may have substantially weakened West.
Carney v. Cummins Engine Co., 602 F.2d 763 (7th Cir.1979), required an employer to grant reservists opportunities for overtime work equivalent to those available to other employees. The court refused to enforce a provision of the collective bargaining agreement less favorable to reservists than other employees.
The facts of Kidder v. Eastern Air Lines, 469 F.Supp. 1060 (S.D.Fla.1978), resemble those presented here. The Kidder collective bargaining agreement denied holiday pay to employees on leave during a holiday. Because the required two-week training program forced the plaintiff to be absent, the employer disallowed holiday pay. The district court held that an employer must treat a National Guardsman as if he had remained at work and must not deprive him of benefits that accrued during that time if due by virtue of mere presence there.
Whether Kidder’s broad holding remains valid in light of Monroe’s more restrictive interpretation of the Act is questionable. Interestingly, however, in Eagar v. Magma Copper Company, 389 U.S. 323, 88 S.Ct. 503, 19 L.Ed.2d 557 (1967), the Supreme Court reversed per curiam a court of appeals judgment denying holiday pay to veterans who had returned to employment after two years of military service. The collective bargaining agreement conditioned holiday pay on the employees having been on the payroll continuously for three months before the holiday. The employer contended the veteran was not eligible because he returned to work less than three months before the holiday. Although the court’s order did not explain the reversal, and the case involved veterans rather than reservists, the fact situation itself is significant.
Eagar should be compared with Foster v. Dravo Corp., 420 U.S. 92, 95 S.Ct. 879, 43 L.Ed.2d 44 (1975), also a returning veteran case, in which the Court held that an employee earns vacation time as a result of days worked, rather than merely gaining it as a benefit of seniority. Consequently, the veteran’s claim for vacation rights accruing during his eighteen months of military service failed. However, in Coffy v. Republic Steel Corp., 447 U.S. 191, 100 S.Ct. 2100, 65 L.Ed.2d 53 (1980), a veteran was found entitled to supplemental unemployment benefits based partially on time spent in military service. In that instance, the benefit was considered an incident of seniority because the collective bargaining agreement provided credit for “weeks in which the employee is paid for any hours not worked, as for jury duty.” Id. at 202, 100 S.Ct. at 2107.
II
In addressing the circumstances of this case, we begin by recognizing that plaintiff is not entitled to preferential treatment. As the Senate report observed, § 2021 was designed “to prevent reservists and National Guardsmen not on active duty who must attend week end drills or summer training from being discriminated against because of their Reserve membership.” S.Rep. No. 1477, 90th Cong., 2d Sess. 102 (1968). See also 38 U.S.C. 2021 note.
Although the statute establishes equality as the test, we must look to the collective bargaining agreement to determine the rights of ALCOA employees to various benefits. Generally, Alcoa employees do not receive the extra wages unless they have worked every day in the week that the holiday falls. The reason for including this limitation in the collective bargaining agreement is obvious — to protect the employer from excessive absenteeism during a holiday week. Some employees find irresistable the temptation to make it a “long weekend” or stretch the holiday by taking a day or two before or after, even if required to take leave without pay. Employers have found ample basis for restrictions to prevent production disruption during holiday weeks.
However, the collective bargaining agreement does reflect employee equities as well; workers whose absence during the holiday week is involuntary and through no fault of their own receive holiday pay. Thus, employees on jury duty or testifying in court are exempt from the work requirement. In those instances the government compels the employees’ attendance and the worker, presumably, does not choose when to comply with this obligation. In addition, the employee does not attempt to enlarge the holiday; this time off would take place no matter when the holiday occurred. Finally, the absence caused by the exempted categories would not generally be of extended duration. In these particular instances the employees also receive their regular pay.
The collective bargaining agreement further exempts employees who are absent without pay because of defined illness or layoff. Again, the common thread is the lack of choice by the employees.
Each of these characteristics holds true when the leave of absence is for military training. Particularly important is the fact that the guardsmen have no individual voice in selecting the weeks they will be on active duty. Military superiors set the time for training which is both compulsory and short. Although not listed in the collective bargaining agreement, military leave shares the essential features of those exemptions designated for employees not in the reserve. Thus, we hold that plaintiff must receive pay for those holidays occurring while he is on active duty.
As noted earlier, we are conscious that the plaintiff’s rights must equal, and not exceed those of employees covered by the collective bargaining agreement. However, as the Court stated in Accardi v. Pennsylvania R.R. Co., 383 U.S. 225, 229, 86 S.Ct. 768, 771, 15 L.Ed.2d 717 (1966): “employers and unions are [not] empowered by the use of transparent labels and definitions to deprive a veteran [or reservist] of substantial rights guaranteed by the Act.”
Viewed in this light, relieving those on military leave from the work requirement merely establishes equality for National Guardsmen and reservists, not preferential treatment. Analysis of the reason for the collective bargaining agreement exemptions and their prerequisites demonstrates that the group to which they apply provides the appropriate standard against which the guardsman’s claims are to be measured, rather than the larger group of all employees on leaves of absence.
It is important, too, that work during a holiday week be seen only as establishing eligibility for holiday pay, not compensation for the other days not worked. In this respect, the guardsman here seeks less than employees called for jury duty who are entitled to their regular wages in addition to juror fees. We do not confine the group establishing the appropriate standard of comparison here to those who receive their regular wages while away from work. We include those who do not, but are nevertheless entitled to holiday pay under the terms of the collective bargaining agreement. We limit our holding to the claim to holiday pay presented here.
We conclude, therefore, that plaintiff has established his right to holiday pay under the provisions of the Act; accordingly, the judgment will be reversed and the case will be remanded to the district court for entry of a judgment in favor of plaintiff.
. Section 2024(d) speaks to members of the reserve forces not covered by subsection (c), which in turn applies to those ordered to periods of service longer than twelve consecutive weeks. Section 2024(f) says that a National Guard member’s full-time training constitutes active duty for purposes of subsection (d). In this context, therefore, section 2024(d) is applicable to members of the National Guard called to full-time training for less than three consecutive months.
Subsection (c) provides more extensive protection for reservists or guardsmen called for longer than twelve consecutive weeks; read as a whole, therefore, the statute suggests a distinction in benefits for Guardsmen called for the usual two-week training periods and those called for more than twelve weeks. The situation is far from clear and it must be noted that section 2021(b)(3) (pertaining to reservists’ reemployment rights after training) does not differentiate between short and long terms of service.
. This provision applies to both reservists and National Guardsmen. Monroe v. Standard Oil, 452 U.S. at 552 n. 2, 101 S.Ct. at 2512 n. 2.
. We realize a planned vacation is different from the other exceptions on the list. Vacation is earned time away from work, and this exception merely recognizes that an employee should not be prejudiced, in the form of lost holiday pay, for taking an earned vacation.
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 38? Answer with a number.
Answer:
|
songer_state
|
47
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Appellant, v. F. Boyd FOWLER, d/b/a Fowler & Chaney Coal Company and Glen A. Smith, d/b/a Loose Jaw Coal Company, Appellees.
No. 80-1259.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 4, 1981.
Decided April 21, 1981.
Rehearing and Rehearing En Banc Denied July 2,1981.
John S. Edwards, U. S. Atty., Enoch E. Ellison, Sp. Asst. U. S. Atty., Roanoke, Va. (Thomas R. King, Jr., Asst. U. S. Atty., Roanoke, Va., on brief), for appellant.
Eugene K. Street, Grundy, Va. (Street, Street & Street, Grundy, Va., on brief), and Thomas W. McCandlish, Richmond, Va. (Richard L. Williams, Robert E. Payne, McGuire, Woods & Battle, Richmond, Va., on brief), for appellees.
Before MURNAGHAN and ERVIN, Circuit Judges, and MERHIGE , District Judge.
The Honorable Robert R. Merhige, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.
ERVIN, Circuit Judge:
The government appeals denial of its motion for partial summary judgment, the district court, 484 F.Supp. 843 having certified an issue as a controlling question of law, which permits an interlocutory appeal under 28 U.S.C. § 1292(b). We affirm.
I.
Between 1970 and 1976, the Secretary of the Interior (the Secretary) inspected coal mines operated by J. Boyd Fowler d/b/a Fowler & Chaney Coal Company (Fowler) and Glen Smith d/b/a Loose Jaw Coal Company (Smith) and issued numerous notices of violations of the mandatory safety standards of the Federal Coal Mine Health and Safety Act of 1969, Pub.L. 91-173, 83 Stat. 742, 30 U.S.C. § 801 et seq. (the Act). Pursuant to section 104(b) of the Act, the inspector fixed times for the abatement of the violations.
In order to avoid having their mines closed, both Fowler and Smith abated the alleged violations within the allotted times, but they refused to pay the civil penalties assessed by the Secretary under section 109(a)(1) of the Act. The Secretary brought enforcement proceedings in district court, and the cases were consolidated for trial.
Fowler and Smith denied having committed the violations and requested a de novo trial by jury under section 109(a)(4) of the Act, which provides in pertinent part:
The [district] court shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order and decision of the Secretary [under section 109(a)(3)] or it may remand the proceedings to the Secretary for such further action as it may direct. The court shall consider and determine de novo all relevant issues, except issues of fact which were or could have been litigated in review proceedings before a court of appeals under section 106 of this title, and upon the request of the respondent, such issues of fact which are in dispute shall be submitted to a jury. On the basis of the jury’s findings, the court shall determine the amount of the penalty to be assessed.
30 U.S.C. § 819(a)(4).
The government moved for partial summary judgment on the issue of liability, arguing that because the validity of the violations could have been litigated under the review procedures of sections 105 and 106 of the Act, only the amount of penalty could be determined de novo in the district court under section 109(a)(4). Section 105(a)(1), providing for review by the Secretary, reads in part:
An operator issued an order pursuant to the provisions of section 104 of this title, or any representative of miners in any mine affected by such order or by any modification or termination of such order, may apply to the Secretary for review of the order within thirty days of receipt thereof or within thirty days of its modification or termination. An operator issued a notice pursuant to section 104(b) or (i) of this title, or any representative of miners in any mine affected by such notice, may, if he believes that the period of time fixed in such notice for the abatement of the violations is unreasonable, apply to the Secretary for review of the notice within thirty days of the receipt thereof.... Upon receipt of such application, the Secretary shall .. . enable the operator and the representative of miners in such mine to present information relating to the issuance and continuance of such order or the modification or termination thereof or to the time fixed in such notice.
30 U.S.C. § 815(a)(1).
And section 106(a), outlining procedures for judicial review of the Secretary’s orders and decisions, reads in part:
Any order or decision issued by the Secretary or the Panel under this Act, except an order or decision under section 109(a) of this Act, shall be subject to judicial review by the United States court of appeals for the circuit in which the affected mine is located, or the United States Court of Appeals for the District of Columbia Circuit, upon the filing in such court within thirty days from the date of such order or decision of a petition by any person aggrieved by the order or decision praying that the order or decision be modified or set aside in whole or in part, except that the court shall not consider such petition unless such person has exhausted the administrative remedies available under this Act.
30 U.S.C. § 816(a).
Fowler and Smith argued that a section 104(a) violation notice is not reviewable under section 106, although a withdrawal order is: a section 105 administrative appeal must precede review by a court of appeals under section 106, and under section 105 administrative review of notices is limited to whether the abatement time is reasonable. Because they chose to correct the alleged violations within the allotted time, they argue, they could no longer contest the reasonableness of the time and therefore had no administrative remedy. There was, they contended, no order or decision of the Secretary for an appellate court to review under the statutory scheme of section 106, and section 109(a)(4) therefore does not preclude de novo review in this case.
The district court agreed with Fowler and Smith and denied the government’s motion, interpreting section 105(a)(1) to be applicable in notice eases only for review of the abatement time, not for review of the underlying violations. It found that section 109(a)(4) excludes de novo review in notice cases only of the reasonableness of the abatement period.
II.
In order to decide whether Fowler and Smith are now entitled to review on the merits, we must determine whether they could have litigated the validity of the violations notices under section 106, for if they could have done so, they are precluded from making the challenge de novo in a section 109 enforcement proceeding. The outcome of this inquiry depends upon whether they could have had a section 105(a)(1) administrative review of the underlying violations or merely of the reasonableness of the abatement time: without administrative review of the merits of the charges, there could have been no judicial review of the merits under section 106.
In our opinion, the language of section 105(a)(1) is plain: the only challenge an operator issued a notice may make is to the reasonableness of the abatement time, although one issued an order may get administrative review on the merits. This interpretation is based on the clear distinction in section 105(a)(1) between the review procedures for withdrawal orders and violations notices. An operator receiving an order may, without condition, “apply to the Secretary for review of the order,” and may “present information relating to the issuance and continuance of such order.” 30 U.S.C. § 815(a)(1). An operator receiving a notice, however, “may, if he believes that the period of time fixed in such notice for the abatement of the violation is unreasonable, apply to the Secretary for review of the notice,” and may “present information relating ... to the time fixed in such notice.” Id. (emphasis added). The necessary implication is that a violations notice is subject to agency review, and therefore appellate court review, only of the reasonableness of the allotted abatement time.
An operator receiving a notice thus may take one of three avenues available under sections 105, 106 and 109. He may seek review prior to abating the alleged violation, with review being limited to the reasonableness of the time allotted. He may choose to abate the violation, at which time the issue of reasonableness becomes moot and he is no longer entitled to agency review; any review on the merits would be available only through a section 109 enforcement proceeding. See Lucas Coal Co. v. Interior Board of Mine Operations Appeals, 522 F.2d 581, 587 (3d Cir. 1975). In addition the operator may refuse to abate the violation within the allotted time, according the Secretary the right to issue a withdrawal order under section 105(a)(1); the operator could then receive full review on the merits. Id.
Unless, therefore, the operator issued a notice is willing to subject his mines to closure, he is unable under section 105(a)(1) to contest the validity of the underlying violation on an agency appeal, and hence cannot qualify for section 106 appellate review. Because section 109 does not preclude review de novo of the alleged violation unless the operator has had the opportunity to contest it in the court of appeals, that breadth of review will not be precluded in this case. Operators such as Smith and Fowler who have corrected noticed violations without questioning the reasonableness of the abatement period — thereby foreclosing section 105 and section 106 review of the charges either on the reasonableness issue or on the merits — are entitled to de novo review in a section 109 enforcement proceeding.
We recognize that this result is at odds with the Sixth Circuit’s decision in Andrus v. Double “Q”, Inc., 617 F.2d 602 (1980), aff’g 466 F.Supp. 8 (E.D.Tenn.1977) (de novo trial under section 109(a)(4) only of the amount of penalty and not of the underlying violation, impliedly because the existence of the violation was a factual determination that would have been reached in the appellate review process). We decline, however, to follow Double “Q”.
The district court’s reasoning in Double “Q”, adopted by the Sixth Circuit, fails to convince us for two reasons. First, the district court’s interpretation of the statute ignores the clear distinction made between “notices” and “orders.” Second, the court’s only support for holding that abated violations could be litigated under sections 105-106 came in the form of dictum in National Independent Coal Operators’ Ass’n. (NICOA) v. Kleppe, 423 U.S. 388, 96 S.Ct. 809, 46 L.Ed.2d 580 (1976). In that case, during a broad background description of the enforcement scheme of section 109, the Court noted that “[ujnder § 105, 30 U.S.C. § 815, an operator may apply to the Secretary for review of the factual basis of any order or notice issued under § 104, or for review of the amount of time allowed for abatement of violations.” Id. at 391. The issue before the court in NICOA, however, was whether the Secretary is required to prepare a decision with formal findings of fact before assessing a civil penalty if the mine operator fails to request an administrative hearing. Not before the court was the scope of review under section 105, and we reject the Double “Q” court’s reading of the above-quoted language as controlling on the issue.
We instead are persuaded by the District of Columbia Circuit’s cogent and convincing analysis in UMW v. Andrus, 581 F.2d 888, cert. denied sub nom. Carbon Fuel Co. v. Andrus, 439 U.S. 928, 99 S.Ct. 313, 58 L.Ed.2d 321 (1978), offered in support of its conclusion that an operator served with a violation notice is not entitled to administrative review of the charge on the merits prior to issuance of a withdrawal order. The court’s determination was based on the distinction section 105(a)(1) “plainly made between administrative review of withdrawal orders and of violation notices,” 581 F.2d at 893, and its reading of the “fortunately unambiguous” legislative history. Id. at 892. The court additionally recognized the policy behind denial of immediate review of the merits in notice cases:
Congress ... in staking out goals for the 1969 Act ... solemnly declared that “[t]he first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource — the miner . .. . ” That priority was reflected in the Act’s review provisions, which did not tolerate either temporary relief from notices of violation or, as we now hold, review on the merits of the violation charged while miners continued to work in the affected area. Only when the miners had been removed, or after the violation had been abated and civil-penalty proceedings instituted, did the operator become entitled to challenge the existence of conditions allegedly trespassing upon the Act. That, we think, was Congress’ decree, and we must respect it. Id. at 894 (footnotes omitted).
We agree with the District of Columbia Circuit’s reading of section 105(a)(1) and find that, because no administrative review was available to Fowler and Smith after abatement of the alleged violations, neither was section 106 judicial review of the merits available, and Fowler and Smith are entitled to de novo review of both the violations and penalties in the district court.
AFFIRMED.
. Although the 1969 Act was substantially altered by the Federal Mine Safety and Health Amendments Act of 1977, Pub.L. 95-164, 91 Stat. 1290, 30 U.S.C. § 801 et seq., the 1977 Act is not at issue in this case.
. Section 104 provides two procedures mine inspectors are to follow if health and safety standards have not been met. Section 104(a) provides that if “an imminent danger exists,” then a withdrawal “order” is to issue. Section 104(b) provides, however, that if “there has been a violation of any mandatory health or safety standard but the violation has not created an imminent danger,” then a “notice” shall be issued “fixing a reasonable time for the abatement of the violation.” The alleged violations for which Fowler and Smith were cited did not rise to the level of danger requiring issuance of a withdrawal order. If, however, they had failed to abate the violations, the Secretary would have been entitled to issue a withdrawal order. 30 U.S.C. § 814(b).
. The demarcation between notices and orders is evident throughout sections 104-106, 108. See, e. g., 30 U.S.C. §§ 814(b), 814(e), 815(a)(1), 815(d), 816(c)(1). There is wisdom, based on differing degrees of urgency, in granting two procedures.
. In dictum elsewhere in NICOA, moreover, the court said:
[t]he Government has suggested that trial de novo is available on the factual basis of the violation as well as on the amount of penalty. The statutory scheme is less than clear on this matter.
423 U.S. at 393 n.3, 96 S.Ct. at 812 n.3. It is interesting to note at this juncture that the government in NICOA advocated the very interpretation now advanced by Fowler and Smith. See also 43 C.F.R. § 4.530(d) (in effect from August 1971 to April 1978).
. Because we have found the language of the statute to be clear and to permit only one interpretation, we have not resorted to use of legislative history in our analysis.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_casetyp1_7-2
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
KEYSTONE METAL COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 12672.
United States Court of Appeals Third Circuit.
Argued Dec. 16, 1958.
Decided Feb. 26, 1959.
Lee W. Eckels, Pittsburgh, Pa. (Henry A. Morrow, Jr., Thorp, Reed & Armstrong, Pittsburgh, Pa., on the brief), for petitioner.
Karl Schmeidler, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson, Attorneys, Department of Justice, Washington, D. C., on the brief), for respondent.
Before BIGGS, Chief Judge, and MeLAUGHLIN and HASTIE, Circuit Judges.
HASTIE, Circuit Judge.
This is a petition for review of a decision of the Tax Court upholding the Commissioner’s finding of a deficiency in petitioner’s 1953 income tax return. The Tax Court held that in the circumstances of this case statutory penalties paid to the City of Pittsburgh and the School District of Pittsburgh for late payment of certain mercantile taxes are not deductible from gross incomes as “ordinary and necessary” business expenses within the meaning of Section 23(a) of the Internal Revenue Code of 1939. 26 U.S.C., 1952 ed., § 23(a). The deductions were disapproved on the ground that their allowance would directly and seriously frustrate the public policy of Pennsylvania by mitigating punishment imposed for failure to pay taxes when due.
The facts are these. In 1947 the Pennsylvania legislature passed the Pennsylvania School Mercantile License Tax Act and also authorized the City of Pittsburgh to levy a similar tax. The school tax was a tax of % mill on each dollar of annual gross business transacted by a wholesale vendor within the district. The incidence of the city tax was the same, but the rate was one mill on each dollar. The taxes became effective in 1948.
With these taxes in force, petitioner, whose business is buying and selling nonferrous metals, sought legal advice as to whether the proceeds of sales of copper scrap by a Pittsburgh seller to a Pittsburgh buyer were properly included as taxable gross receipts, where the scrap metal was procured from various places outside of Pennsylvania and delivered in New Jersey for use there, as directed by the Pennsylvania buyer. Counsel advised petitioner that the involvement of interstate commerce was such that the proceeds of these transactions were probably not subject to the local taxes and, moreover, that no tax should be tendered in this doubtful situation because the Pennsylvania cases clearly held that a voluntary payment of tax precludes any subsequent recovery of the money. H. J. Heinz Co. v. School District of Pittsburgh, 1952, 170 Pa.Super. 441, 87 A.2d 85; Phipps v. Kirk, 1939, 333 Pa. 478, 5 A.2d 143; Wilson v. School District of Philadelphia, 1937, 328 Pa. 225, 195 A. 90, 113 A.L.R. 1401. Only by withholding' payment could the doubtful question of liability be tested. Accordingly, petitioner did not include these sales in its 1948 return.
Thereafter, a deficiency was assessed against petitioner and the question was fully litigated. The final ruling in the case was a denial in 1953 of petitioner’s application to the Supreme Court for a writ of certiorari to the Supreme Court of Pennsylvania. Keystone Metal Co. v. City of Pittsburgh, 1953, 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391, rehearing denied 346 U.S. 917, 74 S.Ct. 273, 98 L.Ed. 413. The ruling of the State Supreme Court, 1953, 374 Pa. 323, 97 A.2d 797, had upheld a decision of the Court of Common Pleas of Allegheny County that the sales were taxable, but had reversed a holding that the statutory penalty of 1% per month for late payment should not be imposed in this case. As to this the state court of last resort said: “The interest charge in the present instance of 6% per annum is not an unusual rate, and the penalty of 1% per month is not so unduly harsh or sufficient in amount to be calculated to deter or intimidate a party affected thereby from resorting to the courts in order to test the construction or validity of this legislation.” 374 Pa. at page 333, 97 A.2d at pages 801-802. At the conclusion of the litigation the taxpayer paid the penalty and then claimed that amount in its 1953 income tax return as a deduction.
Section 23(a) of the Internal Revenue Code of 1939 permits deductions from gross income of a business for “ordinary and necessary” expenses. In the application of this subsection an expense which is “ordinary and necessary” in business contemplation may nevertheless be disallowed because its allowance would frustrate some proper state or national public policy. Commissioner of Internal Revenue v. Heininger, 1943, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171. This principle is frequently applied to prevent the deduction of sums paid to the state as statutory penalties. Burroughs Building Material Co. v. Commissioner, 2 Cir., 1931, 47 F.2d 178; Helvering v. Superior Wines & Liquors, Inc., 8 Cir., 1943, 134 F.2d 373; DeLaney v. City and County of Denver, 10 Cir., 1950, 185 F.2d 246. “The sense of the rule that statutory penalties are not deductible from gross income is that the penalty is a punishment inflicted by the state upon those who commit acts violative of the fixed public policy of the sovereign, wherefore to permit the violator to gain a tax advantage through deducting the amount of the penalty as a business expense, and thus to mitigate the degree of his punishment, would frustrate the purpose and effectiveness of the public policy.” Commissioner of Internal Revenue v. Longhorn Portland Cement Co., 5 Cir., 1945, 148 F.2d 276, 277.
This rule and its normal application have most recently been reaffirmed in Tank Truck Rentals, Inc. v. Commissioner, 1958, 356 U.S. 30, 78 S.Ct. 507, 2 L.Ed.2d 562, and the companion case, Hoover Motor Express Co. v. United States, 1958, 356 U.S. 38, 78 S.Ct. 511, 2 L.Ed.2d 568. However, in the Tank Truck Rentals case the Court carefully qualified its ruling by saying that “the rule as to frustration of sharply defined national or state policies is [not] to be viewed or applied in any absolute sense. * * * Although each case must stand on its own facts * * * the test of nondeductibility always is the severity and immediacy of the frustration resulting from allowance of the deduction. The flexibility of such a standard is necessary if we are to accommodate both the congressional intent to tax only net income, and the presumption against congressional intent to encourage violation of declared public policy.” 356 U.S. 35, 78 S.Ct. at page 510. Significantly, the Court cited with approval as an illustration of this limitation, Jerry Rossman Corp. v. Commissioner, 2 Cir., 1949, 175 F.2d 711, in which a tax deduction of the amount of a statutory penalty was found proper and not offensive to any defined public policy. Cf. Commissioner of Internal Revenue v. Sullivan, 1958, 356 U. S. 27, 78 S.Ct. 512, 2 L.Ed.2d 559, decided the same day as Tank Truck Rentals, Inc. v. Commissioner, supra; National Brass Works v. Commissioner, 9 Cir., 1950, 182 F.2d 526, 20 A.L.R.2d 590. See also the division of the Court of Appeals for the Tenth Circuit on the question whether state policy was in fact frustrated in any serious or significant way in a given situation in United States v. Winters, 10 Cir., 1958, 261 F.2d 675.
It follows that decision in this case must turn upon the question whether in the actual circumstances as they appear here the allowance of a federal tax deduction in the amount of the state imposition would directly and in a significant way frustrate a defined state policy against the conduct which resulted in the penalty.
In sustaining the very “penalty” involved in this case the Supreme Court of Pennsylvania clearly indicated that it is not the policy of Pennsylvania to prevent or deter a taxpayer from postponing the payment of a tax beyond the due date where such delay is necessary for a bona fide test of a doubtful question as to the validity or applicability of the tax. Keystone Metal Co. v. City of Pittsburgh, supra. Accord, Graybar Electric Co. v. School District of Pittsburgh, 1954, 378 Pa. 294, 106 A.2d 413. Indeed, a state’s legitimate concern that taxes be paid promptly must be subordinated to the overriding public policy of dealing fairly with the individual by affording him an opportunity, free of coercion, to challenge and test in the courts any tax of doubtful legality. Oklahoma Operating Co. v. Love, 1920, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596; Wadley Southern R. Co. v. State of Georgia, 1915, 235 U.S. 651, 35 S.Ct. 214, 59 L.Ed. 405. Thus, it is neither factually correct nor legally permissible to characterize the imposition of the statutory “penalty” in the circumstances of this case as an effort to punish, prevent or deter conduct violative of state policy. The Tax Court’s conclusion that allowance of the claimed deduction would frustrate Pennsylvania public policy was unwarranted.
The decision will be reversed.
. We are not impressed by an argument of tlie Commissioner that the taxpayer ‘ failed to take advantage oí a subsequent change in this legal situation. It was not until 1952 that the City and the School District adopted regulations providing for the first time for payment of mercantile taxes under protest as a basis for suit for refund. The deficiency in the taxpayer’s 1948 mercantile tax had long since been assessed and litigation of the matter in the Pennsylvania courts was well advanced. At that late date taxpayer could not be expected to make a fresh start utilizing the newly available method of contesting liability to avoid risk of additional penalty for late payment.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_state
|
31
|
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".
GILLETTE SAFETY RAZOR CO. v. ESSEX RAZOR BLADE CORPORATION.
No. 5760.
Circuit Court of Appeals, Third Circuit.
March 5, 1936.
Henry R. Ashton, of New York City, and Pitney, Hardin & Skinner, of Newark, N. J., for appellant.
C. Palmer, of New York City, and Saul Lehr, of Elizabeth, N. J., for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
This case concerns the art of Gillette safety razors. We are so familiar with the use for years of such razors that it is hard for us to conceive there could now be any marked improvement therein. The original Gillette patent was before this court in Clark Blade & Razor Co. v. Gillette Safety Razor Co., 194 F. 421. In a later case, American Safety Razor Corporation v. Frings Bros. Co., 62 F.(2d) 416, 417, this court noted “that the safety razor art is a thoroughly occupied field. Originally novel and radical in character and for years the subject of patentable novelty and the source of large profits, the field has been thoroughly developed, and as a result thereof and the employment of skilled engineering in its progress, improvement and development are naturally to be looked for.” Adhering to those views, we approach the questions involved in the present case and inquire first whether the patentee, Gaisman, disclosed anything useful and a material improvement in the razor art; and secondly, if so, was it merely the engineering progress incident to, and to be expected in, that art, or was it such a departure along new lines as to amount to invention? As the opinion of the trial judge was not printed in the record, we here refer to it, 13 F.Supp. 505, and make it part of the record.
In Clark Blade & Razor Co. v. Gillette Safety Razor Co., 194 F. 421, 422, two propositions were by this court determined: First, that “a ribbon or wafer razor-blade, so thin as to require external support of its cutting edge, was original with Gillette”; and, second, his claim for such a blade was. not invalid, because the blade was not per se operative, but, citing authorities, we held: “As to our fifth conclusion, we note it should be added that claim 2 is not invalid because not for an operative device, for, if such were the law, patentability must have been denied to Elias Howe for ‘the grooved and eye-pointed needle’ which constituted his seventh claim.”
Based on this holding, the Gillette Company enjoyed, until their patent expired, a monopoly of their so-called safety razor. We say “so-called safety razor,” for in point of fact it was not a safety razor, as the experience of users of this original Gillette razor has been that they have cut themselves on it quite frequently and now continue to do so. Indeed, the statement of the trial judge, “I generally cut myself,” is the experience of all of us safety razor users. During the eighteen years that have passed between the year 1904, when the Gillette patent was granted, and 1922, when the problem of a non-face cutting razor was solved, no one solved, or indeed recognized, that problem, although this record is replete with patents many in number, evidencing attempts to improve the safety razor.
Indeed, the only attempt in the line of safety is the patent of Fretwell, No. 1,467,-930, considered by this court in Fretwell v. Gillette Safety Razor Co., 78 F.(2d) 868, the object of which was to provide a blade of such character “that in the event of an insane person seeking to pick at the blade with a view to removing the same, the blade will be broken into fragments and rendered unfit for use.” But this patent, as also that of Hartman, left no impress on the art and were but abortive conceptions with no factory birth or sales maturity.
Curiously enough, the solution of safety came not from the efforts of the Gillette engineering staff in an attempt to extend the monopoly of its expiring patent, but from a competing company. The latter’s president, Gaisman, was an experienced razor man. His first effort to improve safety razor blades was his patent No. 1,011,-938, which had aimed to reduce the breaking of blades when bent, by tempering the outer or cutting edge of the blade to the desired degree and annealing or tempering to a lower degree the central longitudinal portion. The object of such treatment was “to permit the blade to bend or to curve between the longitudinal edges without danger of breaking or cracking.” While this patent is not here involved, it is of interest as showing Gaisman’s first effort to improve was along the line of preventing blade breaking and not preventing blade cutting of the face. It is also of interest as showing for the first time in the art the pictorial idea of a square opening in a blade but to which no function was attributed.
On November 21, 1922, when Gillette’s patent for’ the flexible blade had expired, Gaisman applied for, and was granted, patent No. 1,633,739, here in suit. From his specification we see his object was to improve the thin, Jribbon-like strip of the Gillette razor which he was now free to use. This is shown by the first nineteen lines of the specification. Fie there points to the fact that in that type of razor' “the blade and the backing are retained from rotation on the guard by the cooperation of said pins with the guard and the clamping of the blade between the guard member and the backing member, so that the blade performs no function in retaining any of said parts with relation one to another.”
We here note, as above stated, that in this Gillette type of razor Gaisman sought to improve, the blade was a passive, non-controlling and nonoperating element in fixing, determining, or maintaining the relation of the backing member and the guard member, and that his invention was in now making the blade the dominating and exclusive factor which positioned, maintained, and kept in proper cutting position, first, the backing member; second, the guard member; and, third, the proper cutting edge of the blade itself. This he set forth in his specification in simple clearness, viz.: “The object of my invention is to provide a safety razor wherein a blade will cooperate with a guard member to retain the blade in shaving relation thereto and the blade will also cooperate with a backing member to retain the latter in proper relation to the blade for shaving purposes, so that the position of the backing member with regard to the guard member is maintained by the blade and not by the cooperation of said members together in the well known manner I have described above.”
That no one had done this, or even conceived this, before, is clear, but its significance and effectiveness in making the Gillette Razor a non-face cutting and an actual safety razor is not apparent at first sight.
Addressing ourselves to a study thereof, we note the basic fact that the cutting edge of the blade must be accurately placed initially with reference to the guard that when so placed or positioned, the guard will keep the cutting edge from being so far forward as to cut the face and yet from being so far back that it will not cut the beard. Now this position zone between face cutting and nonshaving has been accurately determined and is proven without any contradiction by the production engineer of the plaintiff as follows:
“Q. To what extent is a safety razor a precision instrument, Mr. Smith? A. It is a precision instrument because it must be made so that there is the least possible variation in blade exposure.
“Q. What are the limits that you found possible commercially or desirable commercially? A. Blade exposure must not be less than zero nor preferably more than 8-1/1000 of an inch.”
It therefore follows that the usable, permissible, workable position zone within which the blade will cut 'the beard, and not cut the flesh, is the almost microscopic zone of 8/1000 of an inch in breadth. Outside of that zone the blade will either flesh-cut or non-hair-cut, and the zone" is so narrow that it cannot be located by sight or determined by touch. Indeed, as the diajneter of a hair is 1/250 of an inch, which is equivalent to 4/1000 of an inch, the width of the proper cutting position zone may be aptly described as a “hair breadth.” From this it follows that if it is done, the razor must necessarily automatically do two things, first, locate the cutting edge of the blade initially in this microscopic safety zone, and, secondly, must immovably hold it there during the shaving operation. And if the patentee’s device so acts as to effect these two things, the device would seem to be of high merit, an important advance, and one worthy of patent protection. If after having gotten the proper cutting edge of the blade, it were to be soldered or fastened in that position, that might solve the problem, but you cannot do that in a razor. It must be capable of being taken apart and put together often and speedily. To do this rapidly and safely, the parts must not be too rigidly or too firmly attached. These facts created another necessary factor for which due allowance must be made and counteracted, that is the element called “tolerance,” which created a limited freedom of motion, movement or “slack.” This tolerance problem was met by the patent in suit. To illustrate: The uncontradicted proo f in that regard is as follows : “In an old style Gillette razor the two outer pins on the cap positioned both the blade relative to the cap and the guard relative to the cap. In order that the blade shall fit on the studs and that the guard shall fit on these studs, the holes have to be somewhat larger than the pins. In this arrangement it is possible for the blade to move in one direction, to take up the clearance between the large holes and the small studs, and for the guard to move in the opposite direction. The result is that the amount of blade exposure which is an important characteristic of the safety razor may vary on account of this necessary looseness by about 5-1/1000 of an inch.”
Remembering the testimony earlier quoted that the zone of movement of the cutting edge was but 8/1000 of an inch, we can see that when thus limited 8/1000 of an inch of allowable blade exposure was still subject to 5/1000 shift due to the “tolerance” factor, and consequently the proper cutting edge exposure might be thus changed to an over or under exposure position. And the difference between the old type Gillette blade and the Gaisman blade is proven without contradiction, viz.: “There is only a 3-1/1000 of an inch, a reduction as compared with the Gillette method of positioning of 2-1/1000, or 40 per cent.” The effect of this 2/1000 reduction is established by the uncontradicted proof, which is:
“Q. And do I understand correctly that allowing the same manufacturing tolerance for the two types of structures you will get more accurate determination of the blade exposure with the Gaisman construction than with the old Gillette construction ? A. Yes, sir, 40 per cent, more accurate as far as those features are concerned.
“Q. So by the same token you might allow greater manufacturing tolerances with the Gaisman construction and still get as good results as with the old Gillette construction, is that correct? A. Yes, sir.
“Q. Which would be cheaper ? A. Yes, sir.”
The Gaisman device and how it operates and overcomes these difficulties is clearly and tersely set forth in the specifications as follows: “In carrying out my invention I provide a guard member and a blade having cooperative means to retain the blade in shaving position on the guard, a backing member for the blade, means cooperative between the blade and the backing member whereby the blade retains the backing member in operative relation to the blade and the guard, and means to cause the guard member and backing member to clamp the blade therebetween.”
The details of its operation, the Goodwill razor in which the plaintiff embodies the Gaisman patent which it has acquired, and the defendant’s alleged infringing blade, are all set forth in the accompanying illustrative sketch:
And the plaintiff’s brief correctly states in language which we adopt, viz.:
“The guard of the Gaisman razor is provided with a diamond shaped (non-circular) projection lb. The blade is provided with a complementary opening 2a which fits over the projection lb. This positions the blade, and consequently also its cutting edges accurately with respect to the teeth of the guard. With the blade thus accurately positioned on the guard, the next step is to position the cap accurately with respect to both the blade and guard. This is accomplished by means of the four recesses 2b near each of the four corners of the blade which are entered by the four projections 6 on the cap. The screw-threaded spindle 4 on the cap passes through the center of the blade and through the opening 8 in the guard and serves merely to draw the parts together when the razor handle is screwed up. The two ends of the guard are cut away at 7 so that there is no engagement whatsoever of the cap projections 6 with the guard. And, similarly, there is no engagement whatsoever of the guard projection lb with the cap, the central zone 3a of the cap being recessed to prevent any such engagement.
“Thus it clearly appears that the blade is the sole connecting link between the guard and cap of the razor and it serves, because of its engagement in its central area with the projection lb of the guard and its engagements at its four corners with the projections 6 of the cap, as a key whereby the guard and cap are both accurately positioned with respect to each other and also with respect to the cutting edges of the blade.
“Exactly the same is true of defendant’s blade as used in the Gillette Goodwill razor. Referring to the righthand column of the Exhibit, it will be seen that the guard is provided with two, instead of one, diamond shaped (non-circular) projections lb over which fit the complementary openings 2a in defendant’s blade. These two projections lb on the guard and the openings 2a in the blade position, and consequently also its cutting edges, accurately with respect to the teeth of the guard. Similarly the cap is positioned accurately with respect to both the blade and guard by means of the four recesses 2b at each of the four corners of the blade which are entered by the four projections 6 on the cap. Also, as in the Gaisman razor already described, the screw-threaded spindle 4 on the cap passes through the opening 8 in the guard and serves merely to draw the parts together when the razor handle is screwed up. The guard of the Goodwill razor is likewise cut away at 7 so that there is no engagement whatsoever of the cap projections 6 with the guard. Nor is there any engagement between the projections lb of the guard and the cap, the cap being cut away at 3a to prevent any such engagement.”
Such being the case, it will be seen that Gaisman’s disclosure warranted the grant of his claims, viz.:
“1. A blade having a non-circular opening. substantially centrally disposed to retain the blade in shaving relation to a guard member, said blade having means spaced from said opening to cooperate with a clamping member to retain the latter in •shaving relation to the blade independent of the guard member.
“2. A blade having an angularly shaped opening disposed substantially centrally in the blade to cooperate with a guard member to retain the blade in shaving position thereon, and said blade being provided with means spaced from said opening to cooperate with a backing member to retain the latter in shaving relation to the blade and to the guard member.”
This combination was, as a whole, new in the art. By its blade, through its corner slots, co-operating with the four studs of the cap or backing and by the blade’s angular, noncircular opening co-operating with the angular, noncircular projection of the guard on the other member, the hitherto passive, flexible blade of the old Gillette razor became the dominant factor which mechanically determined the initial and safe position of the cutting edge and mechanically held it in that safe and efficient position, rigidly and without variance or shadow of turning. For the first time in the art it produced a safe, non-face cutting Gillette razor, and the fact that, as shown by the uncontradicted proofs, millions of such new razors have been made and sold by the plaintiff, demonstrates its worth. That the defendant’s blade is substantially a copy of Gaisman’s device is clear. The defendant makes no razor of its own, it is usable on plaintiff’s Goodwill razor, and the inference of its being made for use on Gillette razors leaves no doubt in our mind that the officers of defendant, who were former Gillette officers and were familiar with it, manufacture it for such use and that they are contributory infringers. In view of the above, the record is remanded with instructions tq enter a decree of validity of the claims and for an injunction and accounting.
Lest it should appear we have overlooked it, we mention the Canadian decision, which, we have duly considered before arriving at our conclusion.
It is to be noted that while Ridge Thomas’ decision in 60 F. (2d) 1019, was reversed in 64 F. (2d) 10, alone on the ground of non-infringement, his conclusions on patent validity were not questioned. As evidencing his estimate of the Gaisman patent, his accurate and lucid statement is here quoted:
“The principal utility of the Gaisman invention lies in the fact that it permits less accurate standards of manufacture while maintaining equal accuracy of positioning the cutting edges of the blade with relation to the cap and guard member of the razor. The accumulated error which is possible in the Gaisman razor is less than the accumulated error of the ‘old style’ Gillette razor. It appears from the evidence that the Gaisman principle reduces the variation of the blade cutting edge exposure approximately one-third or, if the same tolerance and clearances are maintained, the Gaisman principle improves the average qualities of the razor by about one-third.
“Plaintiff’s witness T. L. Smith, the production engineer, testified that the greater the tolerance, the lower the cost, and that the greater the precision required, the greater the cost of manufacture. If the tolerances are reduced one-third, the costs would perhaps be doubled (pages 310, 311), and there is no controversion of this testimony in the record. Therefore the effect of the Gaisman invention is either to permit manufacture with less accurate measurements of a razor which will shave satisfactorily or, if the same accuracy is maintained, to produce a more accurate, and therefore a better shaving instrument."
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_counsel1
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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
TITAN HOLDINGS SYNDICATE, INC., et al., Plaintiffs, Appellees, v. The CITY OF KEENE, NEW HAMPSHIRE, Defendant, Appellant.
No. 89-1381.
United States Court of Appeals, First Circuit.
Heard Sept. 11, 1989.
Decided March 15, 1990.
Mary Louise Caffrey with whom Ernest L. Bell, III, and Bell, Falk & Norton, P.A., Keene, N.H., were on brief for defendant, appellant.
Sharon A. Spickler with whom Paul R. Cox, Kevin P. Landry and Burns, Bryant, Hinchey, Cox & Schulte, P.A., Dover, N.H., were on brief for plaintiffs, appellees.
Before SELYA, Circuit Judge, COFFIN and FAIRCHILD, Senior Circuit Judges.
Of the Seventh Circuit, sitting by designation.
FAIRCHILD, Senior Circuit Judge.
At issue in this action for declaratory judgment is the scope of the “pollution exclusion” clauses in two liability insurance policies. We are asked to decide whether the district court erred by holding that the clauses relieve the policy issuers from defending a complaint brought against the City of Keene, New Hampshire, for damage allegedly caused by the City’s operation of a sewage treatment plant.
On March 23, 1987, Jack and Mary Mean-en brought a two-count lawsuit in a New Hampshire court against the City of Keene, New Hampshire. In it, they alleged that they “have been continuously bombarded by and exposed to noxious, fetid and putrid odors, gases and particulates, to loud and disturbing noises during the night, and to unduly bright night lighting” emanating from the City’s sewage treatment plant which abuts their land. Count I, which included claims characterized as pleas of trespass and nuisance, alleges that the operation of the plant has “unreasonably and substantially interfered with [their] quiet enjoyment of the homestead and has substantially deprived [them] of the use of the homestead” and that the Meanens suffered injury through “losing the value and enjoyment of the use of the homestead, suffering physically from nauseousness; and suffering mentally while fearing for their safety and well-being as a result of the noxious fúmes and while being exposed to public ridicule and jest.” Count II, characterized as a plea of law, incorporates the allegations in Count I, and alleges that the City is liable for the Meanens’ bodily injury, personal injury, and property damage pursuant to N.H.Rev.Stat.Ann. 507-B:9 I (1988 Cum.Supp.) (a provision which actually limits the liability of governmental units due to pollutant incidents).
Titan Holdings Syndicate, Inc. (Titan), through Illinois Insurance Exchange, and Great Global Assurance Company (Great Global) each issued to the City liability policies which cover part of the time period during which the Meanens claim damages. After the Meanens filed their suit, Titan and Great Global filed a “petition” in federal district court seeking a declaration that the pollution exclusion clauses of their policies avoided any obligation to defend or indemnify the City with respect to the Meanens’ lawsuit. Both parties moved for summary judgment, and the district court in an unpublished order granted summary judgment for the insurance companies, holding that the liabilities claimed in the Meanens’ suit against the City were not covered because they fell within the pollution exclusion clauses.
The City appeals, arguing that (1) excessive light and noise are not “pollutants” under the policies, so the policies cover liability for damages from “loud and disturbing noises during the night” and “unduly bright night lighting;” (2) because the exclusion clauses are ambiguous, coverage for the claims is owed for the Meanens’ entire claim; and (3) the Meanens’ claims are for “personal injury” as defined in the policies and the exclusion clauses do not apply to liability for “personal injury.” The City also asks us to award fees and costs.
I.
The policies issued to the City by the appellees each provide two broad areas of protection — coverage for bodily injury and property damage liability, and coverage for personal injury and advertising injury liability. Each policy also has a pollution exclusion clause excluding, from bodily injury and property damage liability coverage only, damage “arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.” The policies define “pollutants” as
any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.
Joint Appendix at 46, 66, 107 & 109.
Setting aside for the moment that portion of the Meanens’ claim for bodily injury and property damage caused by the “noxious, fetid and putrid odors, gases and particulates,” the City argues that the pollution exclusion clauses do not exclude coverage for the Meanens’ claim to have suffered from the “loud and disturbing noises during the night,” and “unduly bright night lighting,” since excessive noise and bright lights are not “pollutants” under the policies.
The district court, in holding that the Meanens’ entire claim fell within the exclusions, did not treat the claim based on light and noise separately from the claim concerning the noxious odors, gases and particulates. The court interpreted the clauses as “essentially intended to exclude coverage under the insurance policy for damages and injuries occurring as a result of pollution related activities of the insured.” (Emphasis added.) Since the source of the Meanens’ discomfort was a sewage treatment plant, which certainly is a “site or location used ... for the handling, storage, disposal, processing or treatment of waste,” the court held the claims were excluded from coverage.
When deciding whether a claim comes within an express exclusion, the question is “whether the ordinary layman in the position of the insured could reasonably be expected to understand that certain exclusions qualified the policy’s grant of coverage.” New Hampshire Ins. Co. v. Schofield, 119 N.H. 692, 694, 406 A.2d 715, 717 (1979) (quoting Commercial Union Assurance Cos. v. Gollan, 118 N.H. 744, 745, 394 A.2d 839, 841 (1978)). First of all, the exclusion language does not support the district court’s understanding of an exclusion for all “pollution related activities.” The clauses expressly exclude only bodily and property damage liability “arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.” To read the clauses as excluding all claims for damages from all “pollution related activity” stretches the exception beyond its express language, and provides less coverage than agreed to.
It is undisputed that the sewage treatment plant is “a site ... used ... for the handling, storage, disposal, processing or treatment of waste.” What is at issue is whether the excessive light and noise are “pollutants” within the meaning of the policy, so that any injury suffered by the Meanens on account of them is excluded from coverage. The appellees say they are. While we agree that excessive light and noise possibly could be considered “pollutants,” as that term is sometimes used, the relevant definition of the word is explicitly provided by the policies. According to the policies, a pollutant is “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” Excessive noise and light may be “irritants,” but they are not solid, liquid, gaseous or thermal irritants. Nor are they generally thought of as similar to smoke, vapor, soot, fumes, acids, alkalis, chemicals or waste, the illustrative terms used in the policy definition. Noscitur a sociis. Since the policies’ definition of “pollutants” does not include excessive noise and light, the policies protect the City from any portion of the Meanens’ claim based on liability for bodily injury or property damage due to the noise and light coming from the City’s sewage treatment plant.
The appellees try to characterize the Meanens’ complaints of excessive light and noise as “peripheral” to their complaints of noxious emissions, and argue they have no duty to defend or indemnify the City for such claims. Whether or not the complaints about light and noise are peripheral is irrelevant. The insurers have a duty, provided by the terms of the respective policies, to defend any suit seeking damages for liability covered by the policies. Joint Appendix at 46, 47 & 98. “It is well-settled law in New Hampshire that an insurer’s obligation to defend its insured is determined by whether the cause of action against the insured alleges sufficient facts in the pleadings to bring it within the express terms of the policy, even though the suit may eventually be found to be without merit.” United States Fidelity & Guaranty Co., Inc. v. Johnson Shoes, Inc., 123 N.H. 148, 151-52, 461 A.2d 85, 87 (1983) (citing Hersey v. Maryland Casualty Co., 102 N.H. 541, 542-43, 162 A.2d 160, 162 (1960)). If some of the claims against the insured fall within the terms of coverage, and some without, the insured must still defend the entire claim (at least until it is apparent that no recovery under the covered theory can be had) but need only indemnify for liability actually covered. See, e.g., Western Cas. & Sur. v. Intern. Spas of Ariz., 130 Ariz. 76, 79-80, 634 P.2d 3, 6-7 (App.1981); Rimar v. Continental Cas. Co., 50 A.D.2d 169, 376 N.Y.S.2d 309, 312-13 (Ct.App.1975); John Alan Appleman, 7C Insurance Law and Practice, § 4684.01 at 102-07 (Berdal ed. 1979); 41 A.L.R.2d 434 (1980 Supp.). Therefore, the appellees are obligated to defend the entire claim brought by the Meanens, but eventually need only indemnify (under the bodily injury and property damage coverage) for bodily injury and property damage arising from the plant's alleged excessive noise and light.
II.
After arguing that light and noise do not come within the policy definition of the term “pollutant,” the City claims the entire definition of the term “pollutant” is ambiguous, and should be construed in its favor to provide coverage of liability for all damages alleged by the Meanens, not just for damages caused by excessive light and noise. The City asserts that “[t]he wording of the exclusion is so broad and vague that its literal reading could result in unreasonably excluding coverage for every conceivable incident connected with any plant dealing with pollutants.” Just because the parties dispute the scope of a policy’s coverage does not mean it is ambiguous; the meaning of the language must be unclear, and the parties’ dispute based upon reasonable differences about the language’s interpretation. Town of Goshen v. Grange Mutual Ins. Co., 120 N.H. 915, 918, 424 A.2d 822, 825 (1980); Laconia Rod & Gun Club v. Hartford Acc. & Indemn. Co., 123 N.H. 179, 182, 459 A.2d 249, 251 (1983).
The very precision of the City’s distinction between noxious fumes and excessive light and noise shows that the policy definition of pollutants is workable, and defeats its claim of ambiguity. Although the terms within the definition of pollutant —“irritant” and “contaminant”—are not defined, the drafter of a policy need not define each word in the policy ad infini-tum, but may rely on the ordinary meaning of words, Robbin’s Auto Parts, Inc. v. Granite State Ins. Co., 121 N.H. 760, 764, 435 A.2d 507, 509 (1981), and on the use of illustrative examples. In any case, the City fails to explain how any imprecision remaining in the meanings of “irritant” or “contaminant” affects this case, since there is no real dispute over whether the emissions of the sewage treatment plant are irritants or contaminants, just whether they are the kind of irritant or contaminant excluded from coverage.
The City also seems to claim that since it was reasonable for the City to expect coverage for claims such as the Meanens’, the claims are in fact covered. An insured’s expectations of coverage play two roles in New Hampshire law. When policy language is ambiguous, the language subject to different interpretations is construed in favor of the insured, and the insured’s reasonable expectations of coverage are considered. Trombly v. Blue Cross/Blue Shield, 120 N.H. 764, 771-72, 423 A.2d 980, 985 (1980). In the absence of truly ambiguous policy language, though, consideration of an insured’s expectations about coverage is limited to cases where “a policy is so constructed that a reasonable man in the position of the insured would not attempt to read it.” Storms v. U.S. Fidelity & Guar. Co., 118 N.H. 427, 429-30, 388 A.2d 578, 580 (1978). This rule originated in reaction to unnecessarily complex and confusing insurance policies which hid important qualifications or limitations under an avalanche of verbiage. See De Lancey v. Insurance Co., 52 N.H. 581, 787-88 (1873); Storms, 118 N.H. at 429-30, 388 A.2d at 580. If so, coverage
will not be delimited by the policy language, regardless of the clarity of one particular phrase among the Augean stable of print. When such a policy is involved, the insured may rely on the representations of the agent or even solely on his own understanding of the insurance he is purchasing, as long as that reliance is reasonable. Considered would be such matters as the insured’s purpose for procuring the policy and any discussions that the insured had with the agent on the meaning of the policy.
Storms, 118 N.H. at 429-30, 388 A.2d at 580. The City makes no claim that the two policies issued by the appellants are unreadable, or that the pollution exclusion clauses were surprises buried in Augean stables. The policies are fairly long and involved, but the exclusion clauses are clearly set out on separate pages, not hidden in fine print. See Joint Appendix at 66 6 107. We cannot say that a person in the position of a city purchasing general liability insurance could have reasonable expectations of coverage beyond the express terms of the policies.
III.
The pollution exclusion clauses only apply to liability for “bodily injury and property damage”; they do not apply to coverage for “personal injury or advertising injury” liability. The City argues that the Meanens’ entire claim is covered under the policies’ separate personal injury coverage.
Both policies covered liability for damages because of “personal injury to which this insurance applies.” In the world of liability insurance policies, coverage for “personal injury” liability depends not primarily on the type of injury sustained, but whether the injuries arose from the commission of certain offenses. See Appleman, 7 Insurance Law, § 4501.14. Titan’s policy defines “personal injury” as follows:
“Personal injury” means injury, other than bodily injury, arising out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
e. Wrongful entry into, or eviction of a person from, a room, dwelling or premises that the person occupies;
d. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; or
e. Oral or written publication of material that violates a person’s right of privacy.
Joint Appendix at 51. Great Global’s definition is quite similar:
“Personal Injury” means injury arising out of one or more of the following offenses committed during the policy period:
(1) false arrest, detention, imprisonment, or malicious prosecution;
(2) wrongful entry or eviction or other invasion of the right of private occupancy;
(3) a publication or utterance
(a) of a libel or slander or other defamatory or disparaging material, or
(b) in violation of an individual’s right of privacy.
Joint Appendix at 98. Because the policies only cover injuries arising out of certain enumerated offenses, we are not concerned with the type of injury alleged, but rather whether the injury arose from one of the listed offenses.
In deciding the scope of a liability policy’s coverage, a court must compare the policy language with the facts pled in the underlying suit to see if the claim falls within the express terms of the policy; the legal nomenclature the plaintiff uses to frame the suit is relatively unimportant. See, e.g., Johnson Shoes, 123 N.H. at 151-52, 461 A.2d at 87. The burden of proof is on the insurer to show the lack of coverage. N.H.Rev.Stat.Ann. 491:22-a. The basic gist of the Meanens’ lawsuit is that the City of Keene is running a sewage treatment plant which gives off noxious fumes, and produces excessive light and noise. They claim this has injured them in various ways: causing mental distress and worries about health effects, making them nauseous, subjecting them to public ridicule, and interfering with the quiet enjoyment and use of their home. Except for one possibility, we agree with the appellees the Mean-ens’ have not brought a suit for which the personal injury coverage provides protection.
The City does not argue that the Meanens’ suit alleges injury due to false arrest, detention, imprisonment, or malicious prosecution. Nor do we accept the City’s argument that because the Meanens claim to have suffered public ridicule on account of the sewage plant, their complaint falls within the policies’ personal injury coverage. To come within the personal injury coverage, a suit must be based upon allegations of an offense for which the City might become liable. The Mean-ens’ writ contains no allegations that the City defamed them or which could otherwise support the City’s liability for damages based on “ridicule and jest.” The allegations of public ridicule merely elaborate on the claim of mental suffering.
The City also attempts to portray the Meanens’ writ as alleging that the plant’s fumes, noise and light constitute a wrongful entry of, or eviction from, their property. While we have been unable to find any New Hampshire cases defining a tort of wrongful entry, we think it most closely resembles that of trespass. (Indeed, the Meanens labelled Count I of their writ as sounding in “trespass and nuisance.”) The New Hampshire Supreme Court, in a case where the plaintiff was suing for damages caused by water released from an allegedly negligently maintained dam, held that such claims require an intentional, not just negligent, invasion of the plaintiff’s property. Moulton v. Groveton Papers Co., 112 N.H. 50, 54, 289 A.2d 68, 72 (1972). See also Restatement (Second) of Torts § 158 (1965). The court refused to recognize that the defendant’s alleged negligence could constitute the “constructive intent” necessary to support a trespass action. Id. The Meanens’ writ does allege that the City is intentionally operating a sewage treatment plant, but does not allege that the discharges from the plant constitute an intentional invasion of the Meanens’ property. The allegation which comes closest is that the City, “by operating the plant, has continued, negligently, if not intentionally, to expose Plaintiffs and the homestead to the odors, gases, particulates, noise, and light.” We do not deem this an allegation of intentional invasion meeting the requirement of Moulton. Nor do we think the Meanens’ action is properly considered one for wrongful eviction, since there is no allegation of a tenant-landlord relationship between the Meanens and the City. See, e.g., 52 C.J.S. Landlord & Tenant §§ 455 & 460(1).
One difference between the two policies’ personal injury liability coverages is significant in this case, and merits separate treatment. Great Global’s policy, unlike Titan’s, includes coverage in its personal injury section for liability arising out of “wrongful entry or eviction or other invasion of the right of private occupancy.” According to the New Hampshire Supreme Court, an invasion of the right of private occupancy need not involve “an appreciable and tangible interference with the physical property itself.” Town of Goshen, 120 N.H. at 917, 424 A.2d at 824. In Town of Goshen, a § 1983 claim alleging that the Town and its officials had wrongfully refused to grant a property owner permission to develop a subdivision, causing him economic hardships and monetary losses, and denying him the right to the free enjoyment of his property, was held to constitute an allegation of an invasion of the right of private occupancy. The court held that the scope of coverage provided by the clause was unclear, and so read the policy to provide coverage for the insured. Id. at 917-18, 424 A.2d at 824-25. Two years after Town of Goshen, the New Hampshire Supreme Court held that a policy containing the same clause did not cover an underlying suit raising claims like those in Town of Goshen. Town of Epping v. St. Paul Fire & Marine Ins., 122 N.H. 248, 444 A.2d 496 (1982). In Town of Epping, the Supreme Court agreed that the clause “other invasions of the right of private occupancy” lacks precise definition. Explaining that the rule requiring ambiguous clauses to be construed in favor of the insured is only a presumption which can be defeated by evidence that the parties did not intend to provide for coverage for certain claims, it considered extraneous evidence of the parties’ intentions regarding coverage. Id. at 252-53, 444 A.2d at 499. The record showed that when shopping for liability insurance, the Town had decided to purchase a policy providing coverage essentially identical to its prior one, consciously forgoing the option of buying additional coverage expressly providing protection for suits alleging official misconduct. Because the record supported the trial court’s conclusion “that both parties knew that the town had not purchased protection” which would cover the underlying claim, no coverage existed. Id.
The underlying claim in this case contains allegations that the City’s sewage treatment plant’s noxious odors, noise and light have “unreasonably and substantially interfered with [the Meanens’] quiet enjoyment of the homestead and have substantially deprived [them] of the use of the homestead.” Town of Goshen does not require an allegation of physical invasion before a claim comes within coverage for liability arising from “other invasion of the right of private occupancy.” Therefore, construing the clause in favor of the insured, it is reasonable and consonant with the ordinary meaning of the clause to hold that the Meanens’ suit alleges just such an invasion, and so is covered by Great Global’s policy. As already noted, Town of Epping permits the use of extraneous evidence to show the parties’ agreement on a different meaning. It is true that Great Global made no showing on its motion for summary judgment of the existence of such evidence. Perhaps the matter might be left there. Town of Epping, however, seems to have escaped everyone’s attention, and it seems fair to permit Great Global, on remand, to produce the type of evidence relied on in Town of Epping, if it exists.
IV.
Finally, the City asks us to award reasonable attorney’s fees and costs for defending this suit. The availability of attorney’s fees in diversity cases depends upon state law, Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 259 n. 31, 95 S.Ct. 1612, 1622 n. 31, 44 L.Ed.2d 141 (1975), and this holds true in declaratory judgment actions. See, e.g., Mercantile Nat. Bank at Dallas v. Bradford Tr. Co., 850 F.2d 215, 218 (5th Cir.1988); Iowa Mut. Ins. Co. v. Davis, 689 F.Supp. 1028, 1031-32 (D.Mont.1988); Western World Ins. Co. v. Hartford Mut. Ins. Co., 602 F.Supp. 36, 37 (D.Md.1985), aff'd in part, rev’d in part, 784 F.2d 558 (4th Cir.1986). Cf. Volpe v. Prudential Property and Cas. Ins. Co., 802 F.2d 1, 4-5 (1st Cir.1986) (denying fees under Federal Declaratory Judgment Act when state declaratory action, which allows for award of fees, was unavailable).
New Hampshire law provides for a declaratory judgment remedy. N.H.Rev. Stat.Ann. 491:22. “In any action to determine coverage of an insurance policy pursuant to RSA 491:22,” the insured is entitled to attorney’s fees and costs, if the insured prevails. N.H.Rev.Stat.Ann. 491:22-b. Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), state remedies are available in federal diversity actions. The complaint which began this action, however, stated that it was brought under the Federal Declaratory Judgment Act, which does not explicitly provide for attorney’s fees awards. 28 U.S.C. § 2201. See Volpe, 802 F.2d at 5. The appellees cannot avoid liability for attorney’s fees simply by choosing to base their complaint on the federal act, though. The availability of attorney’s fees still turns on state law, and state law now shows a clear intention to make attorney’s fees available for actions brought to determine liability coverage in federal court. N.H.Rev.Stat.Ann. 491:22 (see footnote 8 for text).
V.
CONCLUSION
The Meanens’ claims of liability for bodily injury or property damage arising from loud and disturbing noises during the night and from unduly bright night lighting are not excluded from the coverage afforded by either policy. The Meanens’ claims of liability for interference with quiet enjoyment and use of their home arising from any means alleged, including pollutants, fall within the Personal Injury coverage afforded by the Great Global policy and are not excluded by the pollution exclusion clause (unless a showing sufficient to trigger Town of Epping can be made). Accordingly, the City is entitled to a declaratory judgment that appellees are bound to defend the City from the Meanens’ suit and to indemnify to the extent any recovery is based on the claims covered by the policies. We therefore reverse the judgment appealed from and remand for entry of a declaratory judgment and further proceedings consistent with this opinion. The City is entitled on remand to an award of reasonable attorney’s fees for the defense of this suit in the district court and the prosecution of its appeal before us.
We take no view as to the effect, if any, upon the amount of attorney’s fees allowable under New Hampshire’s Chapter 491:22, of the fact that the prevailing insured did not win on every claim it asserted. Cf. Hensley v. Eckerhart, 461 U.S. 424, 434-37, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (considering the issue in regard to 42 U.S.C. § 1988).
Reversed and Remanded.
. Jurisdiction is based on diversity of citizenship. The parties agree that New Hampshire law controls substantive questions.
. The pollution exclusion clause in the policy issued by Titan appears both as exclusion (f) on the first printed page of the "Commercial General Liability Policy," and in a separate endorsement. Joint Appendix at 46 & 66. It excludes coverage for
(1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants:
(a) At or from premises you own, rent or occupy;
(b) At or from any site or location used by or for you or others for the handling, storage, disposal, processing or treatment of waste;
(c) Which are at any time transported, handled, stored, treated, disposed of, or processed as waste by or for you or any person or organization for whom you may be legally responsible; or
(d) At or from any site or location on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations:
(i) if the pollutants are brought on or to the site or location in connection with such operations; or
(ii) if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize the pollutants.
(2) Any loss, cost, or expense arising out of any governmental direction or request that you test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants.
Great Global's exclusion clause (appearing in two separate endorsements modifying the standard printed exclusion clause) is identical in all relevant aspects. Joint Appendix at 107, 109.
. One theory of quantum mechanics posits light as consisting of "massless, energetic and momentum-transporting particles” called photons. 14 McGraw-Hill Encyclopedia of Science & Technology at 562 (6th ed. 1987). Nonetheless, we do not think the reasonable person in the position of the insured would consider light to be a "solid” irritant.
. Although we found no New Hampshire Supreme Court case which specifically adopts what the Arizona court in Western Cas. & Sur. called the "apparent majority rule,” we think New Hampshire case law is consistent with this principle and that the New Hampshire courts would apply it if faced with a similar case.
. Titan's policy provides:
We will pay those sums that the insured becomes legally obligated to pay as damages because of personal injury or advertising injury to which this insurance applies.... We will have the right and duty to defend any suit seeking those damages.
Joint Appendix at 47. Great Global’s policy provides:
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of personal injury or advertising injury to which this insurance applies, sustained by any person or organization arising out of the conduct of the named insured's business, within the policy territory, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such injury, even if any of the allegations of the suit are groundless, false or fraudulent....
Joint Appendix at 98.
. We note that the two policies also contain endorsements modifying the printed definitions of "personal injury." Titan’s policy provides
The following is added to paragraph 10 ["Personal injury”] of the DEFINITIONS SECTION:
f. Mental injury, anguish or shock;
g. Discrimination;
h. Humiliation;
i. Assault and battery resulting from the use of reasonable force to protect persons or property.
Joint Appendix at 55. Great Global’s policy has a similar endorsement, which reads:
It is agreed that:
(1) the definition of "personal injury” is amended to include:
(a) mental injury, anguish or shock;
(b) discrimination;
(c) humiliation;
(d) assault and battery not committed by or with the knowledge or consent of the insured unless such injury arises solely from the use of reasonable force for the purpose of protecting persons or property.
Joint Appendix at 91. These endorsements, by adding "mental injury, anguish or shock” and "humiliation” to the definition of "personal injury” seem to expand the scope of coverage for personal injury to include claims against the insured based upon the type of injury suffered, rather than just claims for injuries arising from specifically enumerated offenses. However, because the City has yet to even mention these endorsements, let alone base an argument on them, we do not address any possible applicability to the Meanens’ claims.
. We also question whether the alleged spreading of fumes, noise and light falls within the ordinary meaning of wrongful entry of property. We need not, however, decide that issue, since the writ otherwise fails to meet the requirements of a claim for wrongful entry.
. This is true despite the somewhat broad statement in Volpe, 802 F.2d at 5, that "the State declaratory judgment remedy, with its accompanying attorneys’ fees, is not available to litigants proceeding in federal court," citing Jackson v. Federal Ins. Co., 127 N.H. 230, 233, 498 A.2d 757, 759 (1985). Jackson was a declaratory judgment action brought in state court to determine whether a liability insurance policy obligated the insurer to defend a suit filed against its insured. The underlying suit against the insured was brought in federal court. The New Hampshire declaratory judgment statute provides a six-month limitation period "after the filing of the writ which gives rise to the question” when a declaratory judgment is sought determining coverage of an insurance policy. N.H.Rev.Stat.Ann. 491:22 (emphasis added). Reading the statute quite literally, the state supreme court held that because federal actions are begun by "complaint” rather than by "writ,” the legislature must have intended only to provide declaratory judgments to determine an insurer's duty to defend state court suits, but not federal ones. Jackson, 127 N.H. at 233, 498 A.2d at 759-60. The state supreme court held that since the underlying action was filed in federal court, the state trial court was correct to dismiss the declaratory judgment action. Id. In Volpe, as in Jackson, the state remedy was deemed unavailable since the underlying action had been brought in federal court. See 802 F.2d at 1. In this case, though, the underlying action was brought by writ in state court, so the state remedy was available.
We note that in 1987, shortly before the commencement of the present action, the New Hampshire legislature amended Chapter 491 by adding 491:22-c, which provides that
The remedy of declaratory judgment to determine the coverage of a liability insurance policy under RSA 491:22, 22-a, and 22-b shall also be available in the United States district court for the district of New Hampshire when that court may properly adjudicate the matter under the laws of the United States.
Whatever the full effect of this amendment, it at least makes certain that the statement above quoted from Volpe does not apply when, as in this case, the underlying action is in state court.
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_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRANITE STATE MINERALS, INC., Respondent.
No. 81-1346.
United States Court of Appeals, First Circuit.
Argued Nov. 2, 1981.
Decided March 23, 1982.
Linda B. Weisel, Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John G. Elligers, Washington, D. C., were on brief, for petitioner.
Richard W. Gleeson, Boston, Mass., with whom Stoneman, Chandler & Miller, Boston, Mass., was on brief, for respondent.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
BREYER, Circuit Judge.
The issues in this case arise out of a union representation election held under an NLRB “consent” procedure. That is to say, the election was to be run according to the terms of a Stipulation agreed to by Granite State Minerals (the “Company”), Local 1947, International Longshoremen’s Association (the “Union”), and the Board. The Board found that the Union won the seven-vote election by four votes to three. But, the Company objected that the election was run improperly; it refused to recognize the Union; the Board consequently found it guilty of an unfair labor practice; and the Board brings this petition for enforcement. We refuse to enforce the Board’s order because we believe both of the Company’s objections to the election are valid.
1. The Company first objects to certain changes the Board made unilaterally in the terms of the Stipulation. The Stipulation provided that all employees in the bargaining unit would vote in the Company’s garage in Portsmouth, New Hampshire, on May 9, 1980. On May 1, however, the Board learned from the Union that one employee, Ronald Nadeau, would be in Wisconsin at “crane school” on May 9. After confirming this fact with the Company, the Board allowed the Union to drive Nadeau to the Board’s Boston office on May 2 and to cast his vote there one week early. The Company consistently objected to this departure from the literal terms of the consent agreement.
While no one denies that, as a general matter, the Board has broad discretion to determine the conditions for conducting representation elections, NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); NLRB v. Morgan Health Care Center, Inc., 618 F.2d 127, 128 (1st Cir. 1980), we here deal with an election held under a consented-to stipulation. This fact narrows the Board’s discretion significantly for it would be manifestly unfair to allow the Board to obtain all the procedural advantages that flow from gaining the other parties’ consent yet to excuse it from living up to its part of the bargain. Thus, a party “is entitled to insist that the Board and all parties adhere to provisions of the election stipulation that are designed to ensure a fair election.” Summa Corp. v. NLRB, 625 F.2d 293, 296 (9th Cir. 1980). As we have written, “the relevant legal standard is whether any breach in the stipulation was sufficiently prejudicial or sufficiently material to warrant setting the election aside.” New England Division of Diamond International Corp. v. NLRB, 646 F.2d 1, 3 (1st Cir. 1981).
In this instance, regardless of whether the Company has proved actual prejudice, cf. Summa Corp. v. NLRB, 625 F.2d at 296 n.2, the potential for prejudicing the election was great enough and the terms important enough to make it improper for the Board to have changed those terms and then proceeded with the “stipulated” election. First, it is undisputed that the Company intended to begin an election “campaign,” consisting of low-key interviews with the employees in the week of May 2. While one Company supervisor spoke to Nadeau on May 2, the opportunity for the Company to present its case to him and for him to think about it and discuss it with others was curtailed, at least arguably to the disadvantage of both. See NLRB v. Colvert Dairy Products Co., 317 F.2d 44, 46 (10th Cir. 1963); NLRB v. Lenkhurt Elec tric Co., 438 F.2d 1102, 1108 (9th Cir. 1971). Second, the Board’s election notices, mailed on April 30, had not yet been posted by May 2. These notices, provided for by the Stipulation, make clear that the Board is neutral, that it “does not endorse any choice in the election,” and that the employee is completely free to accept or to reject the Union. Nadeau had no opportunity to see them. Cf. Thermalloy Corp., 233 N.L.R.B. 428, 429 (1977). Third, any consequent harm was aggravated by the fact that, instead of Nadeau making his own way to a poll, held on the Company’s premises and clearly organized by the Board, Nadeau was driven to a special voting place by a union representative who had arranged for Nadeau to vote separately in the Board’s offices. Whatever advantage or “neutrality” the Company saw in its agreeing to the Stipulation’s voting conditions was turned on its head by this set of events, which could have suggested a “special” relationship between Union and Board. Fourth, the Company felt that it was unable to provide at such short notice “non-supervisory employees” as observers; it rejected the offer to have its lawyers observe; hence Nadeau’s balloting took place without Company observation. Moreover, there is no evidence in the record that the Company was at fault in bringing about this situation by deliberately sending Nadeau to Wisconsin at election time. Rather, the Company had been trying for two years to place employees at this school; it learned of openings for a May session in late April; attendance at the school was viewed as primarily for Nadeau’s benefit; and it was voluntary on his part.
The ALJ recognized these features, which indicate that the Stipulation’s breach was an important one, but he found an offsetting factor in the importance of guaranteeing Nadeau “his right to vote.” To weigh this undoubtedly important factor against the others, however, misses the point. The issue is not whether the election was to be held with or without Nadeau, it was whether the NLRB could proceed with a stipulated election, changing important terms in the agreement without the Company’s consent. In order to secure Nadeau’s participation, the Board could have sought the employer’s agreement for a mail ballot or for postponing the election until his return. Had it failed to obtain the Company’s consent to any reasonable arrangement providing for Nadeau’s participation, it might have had strong grounds for refusing to go forward with the election as stipulated and to have ordered an election with different conditions on fair terms over the employer’s objection. Indeed, the Board has recognized that “unusual circumstances or newly discovered facts may warrant the rescheduling of an election.” Versail Manufacturing Co., Inc., 212 N.L.R.B. 592, 593 (1974). But we do not have before us a case in which the Board explored with the employer other reasonable alternatives or sought to order a new election on grounds of lack of adequate opportunity to participate. See NLRB v. W. S. Hatch Co., Inc., 474 F.2d 558, 560-61 (9th Cir. 1973). Rather, here the Board proceeded with a stipulated election breaching a material term in that stipulation. That it could not do. New England Lumber Division v. NLRB, supra; Summa Corp. v. NLRB, supra.
2. The Company also contends that the NLRB inadequately investigated and wrongly failed to provide a hearing about its claim that an employee was coerced to vote for the Union by threats. It is established that if there is significant evidence presented to the Board’s Regional Director suggesting that there has been objectionable conduct which affected the election, the Director must investigate, examining the evidence carefully. Electronic Components Corp. v. NLRB, 546 F.2d 1088, 1092 (4th Cir. 1976). Where the evidence calls for it, he should “communicate with the witnesses, question them about the specified events, and follow up any leads developed.” Id. at 1093. And, a hearing is required if there is enough evidence of “the existence of ‘substantial and material factual issues,’ which, if resolved in [the Company’s] favor would require the setting aside of the representation election.” NLRB v. Bristol Spring Manufacturing Co., 579 F.2d 704, 706-07 (2d Cir. 1978). Under these established standards, the Company’s contention, on the basis of the record before us, is correct.
The Company submitted to the Regional Director a detailed affidavit of one of its employees which said (1) another employee — Employee A as he is called in the Regional Director’s Report — had told the affi-ant that he had received a threatening phone call, (2) Employee A’s brother also told the affiant that someone told Employee A that if he did not vote for the Union, he should not show up for work the next day, and (3) when Employee A was asked for more details, he said that “the old cow had smartened up now and wasn’t going to say anything more.” The Regional Director’s investigation of this matter evidently consisted of asking Employee A if he had been threatened and asking an unnamed person at the Union if the Union had threatened Employee A. Not surprisingly, both answered “no.”
Given the fact that Employee A’s negative response is consistent with his “smart cow” remark, common sense suggests that the Director ought to have gone on to ask Employee A if he had ever spoken of threats or made the other remarks mentioned in the affidavit and asked him to explain statements to the contrary. The Director should also have asked Employee A’s brother about what he heard. Given the conflicting statements about the matter, a hearing was called for, at least in the absence of a somewhat more detailed, negative preliminary investigation. Instead, the Director and the ALJ rested their conclusion in large part upon the ground that there was no evidence that the Union had made any such threat. This court has specifically held, however, that where coercion threatening the freedom of an election is at issue, it does not matter “whether coercive acts are shown to be attributable to the union itself.” Cross Baking Co. v. NLRB, 453 F.2d 1346, 1348 (1st Cir. 1971). Given the small number of persons in the bargaining unit, the closeness of the vote, the consequently likely importance of a single coercive threat, and the detailed nature of the evidence suggesting the threat, we believe that either a more detailed investigation or a hearing was called for. See Monmouth Medical Center v. NLRB, 604 F.2d 820 (3d Cir. 1979).
For these reasons, the Board’s petition to enforce its order is denied.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
sc_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 v. FIRST CITY NATIONAL BANK OF HOUSTON et al.
No. 914.
Argued February 20-21, 1967.
Decided March 27, 1967.
Assistant Attorney General Turner argued the cause for the United States in both cases. With him on the brief were Solicitor General Marshall and Richard A. Posner.
David T. Searls argued the cause for appellees First City National Bank of Houston et al. in No. 914. With him on the brief were Harry M. Reasoner, Leon M. Payne and William R. Lummis. Frederic L. Ballard argued the cause for appellees Provident National Bank et al. in No. 972. With him on the brief were Charles I. Thompson, Jr., Tyson W. Coughlin and Richard C. Bull. Eugene J. Metzger in No. 914 and Joseph J. O’Malley in No. 972 argued the- cause for appellee Comptroller of the Currency. With them on the brief were Robert Bloorh, Charles H. McEnerney, Jr., and Philip L. Roache, Jr.
Together with No. 972, United States v. Provident National Bank et al., on appeal from the United States District Court for the Eastern District- of Pennsylvania, argued February 21, 1967.
Mr. Justice Douglas
delivered the opinion of the Court.
These civil suits were filed by the United States under § 7 of the Clayton Act, 38 Stat. 731, as amended, 64 Stat. 1125, 15 U. S. C. § 18, to prevent two bank mergers — one in Texas between the First City National Bank of Houston and the Southern National Bank of Houston, and one in Pennsylvania between the Provident National Bank and the Central Penn National Bank, both in Philadelphia.
The Comptroller of the Currency approved the mergers under the Bank Merger Act of 1966, 80 Stat. 7,12 U. S. C. § 1828 (e) (1964 ed., Supp. II). The United States thereupon brought these suits in the respective District Courts and the Comptroller intervened in them. The District Courts dismissed the complaints. No. 914 (unreported) ; No. 972, 262 F. Supp. 397. The United States appealed, 32 Stat. 823, as amended, 15 U. S. C. § 29, and we noted probable jurisdiction, 385 U. S. 1023, 1024.
I. ■
It is suggested that the complaints are defective in that they fail to state that the actions are brought under the Bank Merger Act of 1966, do not even mention the Act, and that, therefore, these cases should be remanded to allow the Government to amend the complaints.
The Bank Merger Act of 1966 provides that “[a]ny action brought under the antitrust laws” shall be brought within a specified time (12 U. S. C. § 1828 (c)(7)(A)); it also specifies the standards to be applied by a court in a judicial proceeding challenging a bank merger “on the ground that the merger . . . constituted a violation of any antitrust laws other than section 2 of [the Sherman Act]” (12 U. S. C. § 1828 (c)(7)(B)); and it provides immunity from such an attack if those standards are met. Section 1828 (c)(8) provides that, “[f]or the purposes of [§ 1828 (c) ], the term ‘antitrust laws’ means . . . [the Sherman Act, the Clayton Act], and any other Acts in pari materia.” (Emphasis added.) Thus, an action challenging a bank merger on the ground of its anticompeti-tive effects is brought under the antitrust laws. Once an action - is brought under the antitrust laws, the Bank Merger Act provides a new defense or justification to the merger’s proponents — “that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” 12 U. S. C. § 1828 (c)(5)(B). There is no indication that an action challenging a merger on the ground of its anticompetitive effects is bottomed on the Bank Merger. Act rather than on the antitrust, laws. What is apparent is that Congress intended that a defense or justification be available once it had been determined that a transaction would have anticompetitive effects, as judged by the standards normally applied in antitrust actions. Thus, the Government’s failure to base the actions on the Bank Merger Act of 1966 does not constitute a defect in its pleadings. Nor is the Government’s failure to mention the Bank Merger Act fatal, for, as we shall see, the offsetting community “convenience and needs,” as, specified in 12 U. S. C. § 1828 (c)(5)(B), must be pleaded and proved by the defenders of the merger.
. - n.
An application for approval of- the Texas merger was made to the Comptroller of the Currency pursuant to 12 U. S. C. § 1828 (c)(5)(B), which provides that he shall not approve the merger “whose effect in any section of*the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be-in restraint of trade, unless [he] finds that the - anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” Requests were made of the Attorney General and the Federal Reserve Board pursuant to 12 U. S. C. § 1828 (c) (4) for their views- and both submitted reports to the Comptroller that the merger would have serious anticompetitive effects. The Comptroller nonetheless approved it.
The same procedure was followed in the Pennsylvania case, and the Attorney General and Federal Reserve, submitted adverse reports. Nonetheless the Comptroller approved this merger also. And, as we have said, these civil suits were instituted to enjoin the mergers under § 7 of the Clayton Act.
Section 7 of the Clayton^ Act condemns mergers where “the effect of such acquisition may be substantially to lessen competition.” The Bank Merger Act of 1966 did not change that standard or the machinery for obtaining the prior approval of the Comptroller and a preliminary expression of views by the Attorney General and the Federal Reserve, but it added an additional standard for the Comptroller. Section 1828 (c)(5)(B) says, as already noted, that no merger shall be approved where the effect “may be substantially to lessen competition” unless the responsible agency, in this case the Comptroller, “finds that the anti-competitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” And that subsection goes on to say: “In every case, the responsible agency shall take into consideration the financial and managerial resources and future prospects of the existing and proposed institutions, and the convenience and needs of the community! to be served.”
Section 1828 (c) (7) (B) provides that in a judicial proceeding attacking a merger on the ground that it violates the antitrust laws “the standards applied by the court shall be identical with” those the banking agencies must apply. Arid 12 U. S. C. § 1828 (c)(7)(A) states that “In any such action, the court shall review de novo the issues presented.” (Emphasis added.)
Section 1828 (c)(7)(A) also provides that the commencement of an antitrust action in the courts “shall stay the effectiveness of the agency’s approval unless the court shall otherwise specifically order.”
It is around these new provisions of the 1966 Aet and their interplay with §.7 of the Clayton Act that the present controversy turns.
First is the question whether the burden of proof is on the defendant banks to establish that an anticom-petitive merger is within the exception of 12 U, 8. C. § 1828 (c) (5) (B) or whether it is on the Government. We think it plain that the banks carry , the burden.' That is the general rule where one claims the benefits of an exception to the prohibition of a statute, Federal Trade Commission v. Morton Salt Co., 334 U. S. 37, 44-45. The House Report (No. 1221, 89th Cong., 2d Sess.) makes clear that antitrust standards were the norm and anticompetitive bank mergers, the exception: “. . . the bill acknowledges that the general principle of the antitrust- laws — that substantially anticompetitive mergers are prohibited — applies to banks, but permits an exception in cases where it is clearly shown that a given merger is so beneficial to the convenience and needs of the community to be served . . . that it would be in the public interest to permit it ” (Emphasis added.) Id., at 3-4.
The sponsor of the bill that was finally enacted, Congressman Patman, flatly stated: “It should be clearly noted that the burden of establishing such 'convenience and needs' is on the banks seeking to merge; and when we say clearly outweighed we mean outweighed' by the preponderance of the evidence.” 112 Cong. Rec.' 2333-2334 (Feb. 8, 1966).
We therefore disagree with the views ■ of the lower courts to the contrary. *
This problem is, of course, subtly merged with the question whether judicial review of the Comptroller’s decision is in the category of other administrative rulings which are sustained unless a court is persuaded that the agency’s action is clearly unsupported or not supported by substantial evidence.
The 1966 Act was the product of powerful contending forces, each of which in the aftermath claimed more of a victory than it deserved, leaving the controversy that finally abated in Congress to be finally resolved in the courts. So far as review of administrative agency action is concerned, we have only this to say. Prior to the 1966 Act administrative approval of bank mergers was necessary. Yet in an antitrust action later brought to enjoin them we never stopped to consider what weight, if any, the agency’s determination should have in the antitrust case. See United States v. Philadelphia National Bank, 374 U. S. 321; United States v. First Nat. Bank, 376 U. S. 665. Traditionally in antitrust actions involving regulated industries, the courts have never given presumptive weight to a prior agency decision, for the simple reason that Congress put such suits on a different axis than was familiar in administrative procedure. United States v. Radio Corporation of America, 358 U. S. 334; United States v. El Paso Natural Gas Co., 376 U. S. 651; United States v. Philadelphia National Bank, supra; United States v. First Nat. Bank, supra. We have found no indication that Congress designed judicial review differently under the 1966 Act than had earlier obtained.
In fact, as already noted, “the standards applied by the court shall be identical with those that the banking agencies are directed to apply.” 12 U. S. C. § 1828 (c) (7)(B). This language does not express the conventional standard, i. e., whether the agency’s action is supported by substantial evidence. In the latter instance it is the agency’s function to determine whether the law has been violated, while it is the court’s function to ascertain whether, absent error in statutory construction, the agency’s action has substantial support in the evidence.
There is no indication that Congress took that course here. Indeed the 1966 Act provides that the court in an antitrust action “shall review de novo the issues presented.” (Emphasis added.) 12 U. S. C. § Í828 (c)(7)(A). It is argued that the use of the word “review” rather than “trial” indicates a more limited scope to judicial action. The words “review” and “trial” might conceivably be used interchangeably. The critical words seem to us to be “de novo” and “issues presented.” They mean to us that the court should make an independent determination of the issues. Congressman Patman, the Chairman of the House Committee that drafted the Act, in speaking of this de novo review, said that the court would “completely and On its own make a determination as to whether the challenged bank merger should .be approved under the standard set forth in paragraph 5 (B) of the bill.” He added that the “court is not to give any special weight to the determination of the bank supervisory agency on this, issue.” 112 Cong.' Rec. 2335 (Feb. 8, 1966). Indeed the momentum of judicial precedents is in .that direction. For immunity from antitrust laws “is not lightly implied.” California v. Federal Power Commission, 369 U. S. 482, 485. And .the grant of administrative power to give immunity unless the agency's decision is arbitrary; 'capricious, or unsupported by substantial evidence, would be a long step in that direction. • Moreover, the Comptrollér’s action is informal, no hearings in the customary sense having been held prior to the 1966 Act (United States v. Philadelphia National Bank, supra, at 351) and none being required by Congress in the 1966 Act. We would therefore have to assume that Congress made a revolutionary innovation by making administrative action well nigh conclusive, even though no hearing had been held and no record in the customary sense created.
The courts may find the Comptroller’s reasons persuasive or well nigh conclusive. But it is the court’s judgment, not the Comptroller’s, that finally determines whether the merger is legal. That was the practice prior to the 1966 Act; and we cannot find a purpose on the part of Congress to change the rule. This conclusion does not raise serious constitutional questions by making the courts perform non judicial tasks. The “rule of reason,” long prevalent in the antitrust field (see, e. g., Chicago Board of Trade v. United States, 246 U. S. 231), has been administered by the courts. A determination of tiie effect on competition within the meaning of § 7 of the Clayton Act is a familiar judicial task. The area of “the convenience and needs of the community to be served,” now in focus as part of the defense under the 1966 Act, is related, though perhaps remotely, to the failing-company, doctrine, long known to the courts in antitrust merger cases. United States v. Diebold, Inc., 369 U. S. 654. The appraisal of competitive factors is grist for the antitrust mill. See, e. g., United States v. Philadelphia National Bank, supra, 357-367. The courts are not left at-large as planning agencies. The effect on competition is the standard; and it is a familiar one. If the anticompeti-tive effect is adverse, then it is to be excused only if “the convenience and needs of the community to be served” clearly outweigh it. We see no problems in bringing these standards into the area of judicial competence. There are no constitutional problems here not present in the “rule of reason” cases.
There is left only the stay issue; As we have seen, the 1966 Act provides that a timely antitrust action “shall stay the effectiveness of the agency’s approval unless the court shall otherwise specifically order.” 12 U. S. C. § 1828 (c)(7)(A). The lower courts dissolved the statutory stays on dismissing the antitrust suits.
Our remand will direct that the stays continue until the hearings below are completed and any appeal is had. A stay of course is not mandatory under any and all circumstances. But absent a frivolous complaint by the United States, which we presume will be infrequent, a stay is essential until the judicial remedies have been exhausted. The caption of the 1966 Act states that it is designed “[t]o establish a procedure for the review of proposed bank mergers so as to eliminate the necessity for the dissolution of merged banks.” Moreover, bank mergers may not, absent emergency conditions, be consummated until 30 days after approval by the Comptroller in order to enable the Attorney General to commence an antitrust action, 12 U. S. C. § 1828 (c)(6), which, apart from emergency situations, must be started within 30 days of the agency’s approval, 12 U. S. C. § 1828 (c)(7)(A). The legislative history is replete with references to the difficulty of unscrambling two or more banks after their merger. The normal procedure therefore should be maintenance of the status quo until the antitrust litigation has run its course, lest consummation take place and the unscrambling process that Congress abhorred in the case of banks be necessary.
Reversed.
Mr. Justice Clark took no part in the consideration or decision of these cases.
12 U. S. C. §1828 (e)(5)(B) provides, as we have seen, that a merger shall not be approved “whose effect.in any section of the country may be substantially to lessen competition.” It is pointed out that that standard omits the phrase “in-any line of commerce” which is present in § 7 of the Clayton Act. It is argued that Con-' gress meant that commercial banking is no longer to be considered as an area of effective competition and that the Act establishes in banking “a market test measürable only by larger commercial realities.”
We do not reach this question and we intimate no opinion on it nor any views on the merits of these mergers or on the justifications that are urged in their support. All questions except the procedural ones treated in the opinion are reserved.
The Chairman of the Federal Reserve System testified in the hearings that preceded enactment of the Bank Merger Act of 1966 that “a Federal court order cannot recreate the two banks that formerly existed .... [N]o matter how one may feel about whether the merger should have taken place in the first instance, there is no turning back. To unscramble the resulting bank clearly'poses serious problems not only for the bank but for its customers and the community.” Hearings on S. 1698 and related bills before the Subcommittee on Domestic Finance of the Hous§. Committee on Banking and Currency, 89th Cong., 1st Sess., 11. The president of the American Bankers Association declared that “ ‘[u]nmerging’ a bank after the two banks have operated as a single unit is nightmarish even in the abstract.” Hearings on S. 1698 before a Subcommittee of the Senate Committee on Banking and Currency, 89th Cong., 1st Sess., 63.. Senator Robertson stated, “you are dealing with a physical impossibility,” and “the community gets hurt,” when divestiture is attempted in a bank merger case. Id., at 4. Senator Proxmire spoke of “the agony and the inequity and the financial loss, disruption of the economy in the community, of being required . . . to unscramble.” Id., at 202.
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_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.
CONTINENTAL CASUALTY COMPANY, Appellant, v. William T. MUSGROVE, Appellee.
No. 19122.
United States Court of Appeals Fifth Circuit.
July 6, 1962.
See also 191 F.Supp. 1.
Reid B. Barnes, Birmingham, Ala., Lange, Simpson, Robinson & Somerville, Birmingham, Ala., of counsel, for appellant.
Charles A. Poellnitz, Florence, Ala., Mitchell, Poellnitz & Cox, Florence, Ala., of counsel, for appellee.
Before HUTCHESON, CAMERON and GEWIN, Circuit Judges.
CAMERON, Circuit Judge.
Appellant Continental Casualty Company sued appellee Musgrove in a diversity action to recover damages sustained by appellant in defending a suit brought by Mrs. Gladys Leith Holmes for the death of her husband Oliver "Wendell Holmes, which suit was based upon an oral binder of insurance made by Musgrove as agent for appellant which purported to extend coverage on the life of said Holmes while he was piloting an airplane. This Court held that Musgrove had no authority to bind Continental as he essayed to do and reversed a judgment which had been rendered against the insurance company upon the basis of Musgrove’s binder, Continental Casualty Company v. Holmes et al., 5 Cir., 1959, 266 F.2d 269.
In the action before us, Continental claimed in its original complaint that it was wrongfully required to expend the sum of $25,000.00 in the successful defense of that suit based, as aforesaid, upon the unwarranted and illegal action of its agent, Musgrove, in issuing the binder on Holmes’ life. Musgrove filed a motion to dismiss the complaint against him on the ground that attorneys’ fees were not recoverable in a suit by an insurance company against its agent under the laws of Alabama, asserting that the sum included as attorneys’ fees should be stricken from the complaint and that the balance of the claim was less than ten thousand dollars. The complaint was in effect amended so as to present to the court below, as the sole issue involved, the question of the collectibility of attorneys’ fees. This question will, therefore, be discussed in advance of a detailed consideration of the procedural question of whether the amount involved did really measure up to the minimum amount necessary to confer federal jurisdiction.
We think that the court below correctly held that under Alabama law as established in the case of Phoenix Insurance Co. v. Seegers, 1915, 192 Ala. 103, 68 So. 902, attorneys’ fees were not collectible. The facts of the Seegers case are identical with those in the present case, and we are convinced that the Seegers case is still the law of Alabama. As pointed out in the opinion of the lower court, the case has been cited with approval (on another point) as late as March, 1957 in British General Insurance Co., Ltd. v. Simpson Sales Co., 265 Ala. 683, 93 So.2d 763; and its authority has never been questioned in any decision of an Alabama court.
Appellant cites a number of cases holding contrary to the Seegers case, but they are all from other states. The textbooks cite the Seegers case as announcing the minority rule and as aligning the State of Alabama with the minority. Cf. 16 Appleman, Insurance, § 8781, pp. 210-211; 82 C.J., Insurance, § 152, p. 1074, including Note 25; and 44 C.J.S. Insurance § 159, pp. 834-835.
The rule in Alabama, as stated in Seegers, is thus epitomized in the first syllabus:
“1. Insurance ^83 — Liability of Agent — -Expenses of Suit.
“In an action by an insurance company against its agent to recover the amount which it had been compelled to pay on a policy issued by the agent without authority, the plaintiff’s claim of attorney’s fees for defending the suit against it on its policy was properly stricken.”
The District Judge, a competent and experienced Alabama lawyer, made a detailed study of the Seegers case and exactly what was involved in it. The appellant supplied the court below with certain original papers from the court files in Seegers and the trial court considered those papers along with all available data concerning that case which would reveal the true meaning and extent of its holding. The opinion of the court below is carefully prepared, and shows that the court applied the teachings of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, in following the law announced by the Supreme Court of Alabama in the decision of the case on this point, citing also City of Albertville, Ala. v. United States Fidelity & Guaranty Company, 5 Cir., 1959, 272 F.2d 594, along with Matthiesen v. Northwestern Mutual Insurance Co., 5 Cir., 1961, 286 F.2d 775. Being convinced that the court was correct in its holding under the law of Alabama, we do not find it necessary to discuss the-cases from other states relied upon by appellant.
We think that the record in the' court below was sufficient to support its holding that the amount involved did not in fact measure up to the minimum requirements of jurisdiction. While the complaint initially stated that Continental claimed $25,000 as damages against Musgrove, when the issue was presented to the Judge, it was clear that, stripped of the item of attorneys’ fees, Continental’s claim was less than half of the jurisdictional minimum. The trial court held a pre-trial conference and entered an order defining the issues, a portion of which is reproduced in the margin.
The “admissions by the plaintiff as to the amount of damages incurred” were filed by the plaintiff in the form of an itemization of plaintiff’s damages, showing full details of what each item included. The aggregate was $21,417.43, of which, by the plaintiff’s admissions, less than $5,000.00 was expended for items other than payments to the attorneys. The final order entered by the court below analyzed the amounts claimed as damages by Continental, and concluded that, eliminating what had been paid to the attorneys, the remainder was less than the amount necessary to vest jurisdiction in the court. The trial court, accordingly struck the items making up the attorneys’ fees and dismissed the claim for the balance. This, we think, was in consonance with the Federal Rules of Civil Procedure and applicable decisions of the Supreme Court, e. g., Bell v. Preferred Life Assurance Society of Montgomery, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15; St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845; and Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890. Finding, therefore, that the judgment of the court below was right, it is
Affirmed.
. “Defendant moves to strike tlie damages as to attorneys’ fees, and it appears that this motion is well taken under the authority of Phoenix Insurance Co. v. Seegers, 192 Ala. 103, 68 So. 902. Accordingly, the motion to strike the claim for attorneys’ fees be and the same is hereby granted and the same is hereby stricken.
“The defendant asserts that without the attorneys’ fees, the jurisdiction of the Court is lacking as to tbe jurisdictional amount. The Court will reserve a ruling on this matter pending admissions by the plaintiff as to the amount of damages incurred.
“It is, therefore, ordered by the Court that all of the above named allowances and agreements be, and the same are hereby binding upon all parties in the above styled cause, unless this order be hereafter modified by the Court * * * "
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_appel1_1_3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task 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.
FIRST NATIONAL BANK AND TRUST COMPANY, et al., Appellants, v. NATIONAL CREDIT UNION ADMINISTRATION, et al. FIRST NATIONAL BANK AND TRUST COMPANY, et al., Lexington State Bank, Appellants, v. NATIONAL CREDIT UNION ADMINISTRATION.
Nos. 91-5262, 91-5336.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 16, 1992.
Decided April 2, 1993.
Michael S. Heifer, with whom William J. Kolasky, Jr., John J. Gill, and Michael F. Crotty, were on the brief, for appellants.
Jonathan R. Siegel, Atty., Dept, of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay P. Stephens, U.S. Atty., and Douglas N. Letter, Atty., Dept, of Justice, were on the brief, for appellee Nat. Credit Union Admin.
Paul J. Lambert and Teresa Burke were on the brief, for appellees AT&T Family Federal Credit Union and Credit Union National Association, Inc.
Edward C. Winslow and William C. Scott were on the brief, for amicus curiae North Carolina Alliance of Community Financial Institutions.
Before: WALD, SILBERMAN, and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Concurring opinion filed by Circuit Judge WALD.
SILBERMAN, Circuit Judge:
Appellants, four North Carolina banks and the American Bankers Association, challenged the National Credit Union Administration’s (NCUA) approval of several recent applications by AT & T Family Federal Credit Union (AT & T Family) to expand its membership. According to appellants, the NCUA’s decisions violated the requirement of the Federal Credit Union Act (FCUA) that membership in federal credit unions be limited to “groups having a common bond of occupation or association.” 12 U.S.C. § 1759. The banks complain that, by allowing AT & T Family improperly to extend its membership and thereby its number of potential borrowing customers, the NCUA has made the credit union a formidable competitor. The district court applied the “zone of interests” tests for prudential standing and determined that appellants lacked standing to sue. Although we agree with the district court that the appellants were not intended beneficiaries of the FCUA, we think that they are suitable challengers because the statute arguably prohibits the competition of which they complain. This case thus falls within the rationale of Clarke v. Securities Industry Association, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987), and Investment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971). We reverse and remand to the district court.
I.
Passed in 1934 in the midst of the Great Depression, the FCUA, 12 U.S.C. §§ 1751-1795k (1988), was designed to improve access to credit for people of “small means.” S.Rep. No. 555, 73d Cong., 2d Sess. 1 (1934). For many working Americans, credit at reasonable rates had essentially disappeared in the years following the stock market crash. Lacking the security necessary to obtain loans from banks, working Americans turned to loan sharks who typically charged usurious interest rates, which was thought to reduce the overall purchasing power of American consumers. See 78 Cong.ReC. 12,223 (1934). Congress saw the solution to this problem in a system of federal credit unions that would provide credit at reasonable rates and thus would help spur economic recovery. See id. at 7260, 12,223-25.
To ensure that credit unions fulfilled their purpose of meeting members’ credit needs, Congress restricted credit unions’ management and business activities. For example, a federal credit union is owned and controlled by its members, see 12 U.S.C. §§ 1757-1761, and it can make loans only to members or to other credit unions, see id. § 1757(5). Congress expected that such measures guaranteeing democratic self-government would infuse the credit union with a spirit of cooperative self-help and ensure that the credit union would remain responsive to its members’ needs.
A related provision of the FCUA, the common bond requirement, is at the heart of this case. Section 109 of the Act restricts membership in federal credit unions to "groups having a common bond of occupation or association.” 12 U.S.C. § 1759. For much of the Act’s history, the NCUA interpreted this provision to require all members of a credit union to share the same bond. In the 1980s, however, the NCUA issued a series of Interpretive Ruling and Policy Statements (IRPS) construing the statute to allow a number of different groups, each having its own bond, to form a credit union, even though no overall common bond united the different groups. See 47 Fed.Reg. 26,808 (1982) (IRPS 82-3); 48 Fed.Reg. 22,899 (1983); 49 Fed.Reg. 46,-536 (1984) (IRPS 84-1); 54 Fed.Reg. 31,165 (1989) (IRPS 89-1). The NCUA's most recent interpretation, IRPS 89-1, made clear that a credit union could comprise a “combination of distinct, definable occupational and/or associational groups.” 54 Fed.Reg. 31,165, 31,170 (1989).
Appellants challenged several decisions in which the NCUA applied IRPS 89-1 to approve applications by AT & T Family to expand its field of membership. Until recently, AT & T Family’s membership consisted primarily of employees of AT & T Technologies, Inc., AT & T Network Systems, and Bell Telephone Labs. In late 1989 and 1990, AT & T Family filed eight applications to extend its membership to include groups of employees from other companies such as the American Tobacco Company, Western Auto Supply Company, and WGHP-TV, to name but a few. In all, the NCUA approved the extension of AT & T Family’s membership to 16 new employee groups. Appellants claimed before the agency and in the district court that IRPS 89-1 ignored the statutory language by allowing groups lacking any common bond between them to join together in a credit union. The banks contended that by allowing AT & T Family to expand to 71,000 members in violation of the statute, the NCUA has allowed the credit union, which is exempt from state and federal income taxes, see 12 U.S.C. § 1768, to become a formidable competitor to banks.
The district court granted NCUA’s motion to dismiss for lack of standing. The court determined that appellants were not pressing claims “arguably within the zone of interests” protected by the FCUA. See First Nat’l Bank & Trust Co. v. National Credit Union Admin., 772 F.Supp. 609, 611-13 (D.D.C.1991). Relying on the language of this court’s post-Clarke decisions on prudential standing, see, e.g., Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918 (D.C.Cir.1989) (HWTC IV); Hazardous Waste Treatment Council v. United States Envtl. Protection Agency, 861 F.2d 277 (D.C.Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989) (HWTC II), the district court said that “[t]hose not regulated by an agency have standing only if they are the intended beneficiaries of the specific statute or are nonetheless ‘suitable challengers’ to the statute because their interests coincide with the interests which Congress did intend to protect.” First Nat’l Bank, 772 F.Supp. at 611. The banks were not intended beneficiaries of the Act, thought the district court, because “the Act was passed to establish a place for credit unions within the country’s financial market, and specifically not to protect the competitive interest of banks.” Id. at 612; see also Branch Bank & Trust Co. v. National Credit Union Admin. Bd., 786 F.2d 621 (4th Cir.1986), cert. denied, 479 U.S. 1063, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). Under applicable precedent, the district court believed that the banks were not suitable challengers either. Because the banks and the credit union competed for the same business, any coincidence in their interests “would be at best fortuitous.” First Nat’l Bank, 772 F.Supp. at 612. The banks, according to the district court, could not rely on the Supreme Court’s cases, see, e.g., Clarke v. Securities Industry Ass’n, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987); Investment Co. Inst. v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971) (ICI); Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), that granted standing to competitors as suitable challengers because, unlike the competitors in those cases, the banks were not suing under an entry-restricting statute. See First Nat’l Bank, 772 F.Supp. at 613.
II.
It should be noted that no one questions appellants’ Article III standing; that appellants will suffer competitive or economic injury is not in doubt. The question before us is whether under the FCUA the banks can claim prudential standing as well. In other words, are they pursuing an interest (not just an objective), see HWTC IV, 885 F.2d at 925, arguably within the zone of interests Congress intended either to regulate or protect, and, thus, are they among the class of persons entitled to sue to enforce FCUA’s restrictions? See Clarke, 479 U.S. at 396, 107 S.Ct. at 755; Data Processing, 397 U.S. at 153, 90 S.Ct. at 829. This “zone of interests” test ensures that standing is granted only to plaintiffs who will not distort congressional objectives. It excludes those plaintiffs whose “interests are so marginally related-to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399, 107 S.Ct. at 757. Because the banks are not regulated by the common bond requirement, we must inquire whether the banks can be thought to have been “protected” by that statutory limitation on the activities of credit unions. Litigants can qualify as “protected” by a statute if they are intended beneficiaries of the legislation or are nevertheless what we have termed suitable challengers, see HWTC IV, 885 F.2d at 923-24; that is, if their interests are sufficiently congruent with those of the intended beneficiaries that the litigants are not “more likely to frustrate than to further the statutory objectives.” Clarke, 479 U.S. at 397 n. 12, 107 S.Ct. at 756 n. 12.
Appellants claim that they qualify both as intended beneficiaries and as suitable challengers under the FCUA. We agree with the district court, however, that Congress did not, in 1934, intend to shield banks from competition from credit unions. Indeed, the very notion seems anomalous, because Congress’ general purpose was to encourage the proliferation of credit unions, which were expected to provide service to those would-be customers that banks disdained. See 78 Cong.Rec. 7259 (1934) (statement of Sen. Barkley) (“[B]ank[s] ... cannot extend credit to many of these people, because they do not have the required security.”); id. at 12,225 (statement of Rep. Luce) (noting that credit unions would serve those “who do not use and cannot use banks ... for small borrowings”). The common bond requirement, an existing characteristic of state credit unions, was designed, in combination with the restriction that permitted credit unions to loan only to members, to ensure that credit unions would effectively meet members’ borrowing needs. It would seem, therefore, that Congress assumed implicitly that a common bond amongst members would ensure both that those making lending decisions would know more about applicants and that borrowers would be more reluctant to default. That is surely why it was thought that credit unions, unlike banks, could “loan on character.” See id. at 12,-223. The common bond was seen as the cement that united credit union members in a cooperative venture, and was, therefore, thought important to credit unions’ continued success.
To be sure, as time passed — as credit unions flourished and competition among consumer lending institutions intensified— bankers began to see the common bond requirement as a desirable limitation on credit union expansion. To that end, in the 1970s bankers, according to appellants, became active in lobbying Congress to urge the maintenance of the common bond requirement. But that fact, assuming it is true, hardly serves to illuminate the intent of the Congress that first enacted the common bond requirement in 1934. And we find no indication that Congress was, at that earlier time, concerned about the competitive position of banks.
There remains, however, the more subtle question, whether banks can be thought suitable challengers to enforce a requirement designed to benefit the members— particularly potential borrowers — of credit unions. Appellants rely on the Supreme Court’s reasoning in ICI and Clarke, and it seems to us the parallels between those cases and the present one are striking. In ICI the securities industry challenged a ruling by the Comptroller of the Currency that would have permitted banks to slip the Glass-Steagall leash and enter what was considered a part of the securities business. See ICI, 401 U.S. at 618-19, 91 S.Ct. at 1092-93. As the Supreme Court later explained in Clarke, the Glass-Steagall Act, which limited the securities underwriting and investment activities of banks, was designed to protect bank depositors from risky bank activities — not to insulate investment bankers, or indeed, any noncommercial bankers, from competition. See Clarke, 479 U.S. at 398 & n. 13, 107 S.Ct. at 756 & n. 13. Nevertheless, because the investment bankers pursued interests congruent with those of the intended beneficiaries, they were permitted to sue in ICI to enforce Glass-Steagall’s restrictions on banks.
Similarly, in Clarke the ever-vigilant securities industry was permitted to challenge a Comptroller decision that authorized a national bank to offer discount brokerage services not only at its established branches, but also at locations both inside and outside the bank’s home state. The challenge was based on the McFadden Act, which restricts the interstate branching of national banks. See Clarke, 479 U.S. at 391, 107 S.Ct. at 752. The Act was designed to establish competitive equality between national and state banks and thus to protect smaller banks from competition from out-of-state leviathans, see First Nat’l Bank v. Walker Bank & Trust Co., 385 U.S. 252, 261, 87 S.Ct. 492, 497, 17 L.Ed.2d 343 (1966), not to protect investment bankers. Nevertheless, the investment bankers had standing to sue. The Supreme Court relied on the correlative congressional objective of preventing national banks from gaining too much (“monopoly”) control over credit and money through “unlimited branching.” Clarke, 479 U.S. at 402, 107 S.Ct. at 758. Given that general congressional purpose, the Court thought that the securities industry, which was a competitor at least with respect to discount brokerage services, was a suitable challenger. In other words, even though the Congress that passed the McFadden Act was not at all concerned with the spread of discount brokerage— only branch-banking — and the securities industry was a competitor with regard to the former, not the latter, it was nevertheless permitted to challenge the spread of discount brokerage through the McFadden Act, again because of the congruence of plaintiffs’ interests with those of the intended beneficiaries.
We take from these cases the principle that a plaintiff who has a competitive interest in confining a regulated industry within certain congressionally imposed limitations may sue to prevent the alleged loosening of those restrictions, even if the plaintiffs interest is not precisely the one that Congress sought to protect. The limitations may be restrictions on entry — geographic or product line — or they might be, as in our case, limitations on growth, which are akin to entry restrictions. Like more classic entry restrictions, the common bond requirement, by limiting a credit union’s customer base, effectively prevents the credit union from offering its services and competing in a broader market.
We previously have recognized the particular significance of statutory entry restrictions on prudential standing. In HWTC II, we distinguished the case before us from the Supreme Court’s cases granting standing to competitors {Data Processing, ICI, and Clarke), on the grounds that it did not involve an “entry-restricting” statute. See HWTC II, 861 F.2d at 284. Similarly, in Panhandle Producers & Royalty Owners Ass’n v. Economic Regulatory Administration, 822 F.2d 1105 (D.C.Cir.1987), we noted that “[cjompeti-tors have a seemingly unbroken record of success in securing standing” in eases involving regulatory systems that “restrict[ ] entry into a particular field or transaction.” Id. at 1109. Indeed, the district court attempted to distinguish this case from ICI and Clarke on the grounds that the common bond requirement was not an entry restriction. See First Nat’l Bank, 112 F.Supp. at 613.
Appellees, sidestepping the entry-restriction cases, rely primarily on our refinement of prudential standing analysis in HWTC IV. In that case, an organization of companies that treated hazardous waste and marketed products derived from processed waste sued to force the EPA to adopt stricter environmental regulations on other companies so as to create a greater market for their own services and products. We held that HWTC’s interests (irrespective of its particular objectives in the case before us) were not sufficiently congruent with those of the intended beneficiaries of the statute to make HWTC a suitable challenger. See HWTC IV, 885 F.2d at 924. The treatment firms’ interest was in selling more services and equipment to the regulated companies, and therefore the firms would seek regulations that would increase demand for their product regardless of the effects on the statute’s intended beneficiaries. We concluded that to have standing under the statute, HWTC would have to have shown a systematic alignment of interests with the statute’s beneficiaries, see id. at 924, a standard that appellees understandably claim was stricter than our prior characterization of Clarke as a test requiring “less than a showing of congressional intent to benefit but more than a marginal relationship to the statutory purposes.” HWTC II, 861 F.2d at 283.
Our decision did not rest on a conclusion that the economic interests of the treatment firms were somehow less deserving than the environmental interests the statute was designed to foster; nor was it based on a view that the firms’ economic incentives were inherently less worthy than the economic objectives of the securities industry plaintiffs in ICI and Clarke. On the contrary, the economic motivations could be thought analogous. If the watchword of the treatment firms in HWTC IV was “treatment is good and more treatment is better,” HWTC IV, 885 F.2d at 925, it might be said that the watchword of all competitors with regard to their potential rivals must be “regulation is good and more restrictive regulation is better.” And one cannot base standing on one’s mere status as an economic beneficiary of government regulation of others. In Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the Supreme Court said:
[T]he failure of an agency to comply with a statutory provision requiring “on the record” hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be “adversely affected within the meaning” of the statute.
Id. at 883, 110 S.Ct. at 3186.
The distinction between HWTC IV and the Supreme Court’s Lujan hypothetical on the one hand and ICI and Clarke on the other must be that in ICI and Clarke the potentially limitless incentives of competitors were channelled by the terms of the statute into suits of a limited nature brought to enforce the statutory demarcation dividing the banking and securities industries. The interests the securities industry plaintiffs sought to protect were thus less open-ended and more confined than were the economic interests pursued in HWTC IV, and as a result there was a reduced danger of distorting congressional purpose. By contrast, nothing in the statute in HWTC IV could ensure that there would be any connection at all between the treatment firms’ interests and the statutory purpose. “[TJhere is not the slightest reason to think that treatment firms’ interest in getting more revenue by increasing the demand for their particular treatment services will serve [the statute’s] purpose of protecting health and the environment.” HWTC IV, 885 F.2d at 924. There is, however, a reason to think that a competitor’s interest in patrolling a statutory picket line will bear some relation to the congressional purpose, because the entry-like restriction itself reflects a congressional judgment that the constraint on competition is the means to secure the statutory end. The restriction connects the economic interests of competitors to the purposes of the statute and yet constrains competitors to a limited role in guarding a congressionally drawn boundary. In these circumstances the plaintiffs can be thought to have interests “systematically aligned” with those the statute is designed to benefit.
The securities industry plaintiffs in ICI and Clarke were not seeking to impose new regulations on banks in areas unrelated to an existing, specific statutory norm simply to provide a demand for their services or to weaken banks as competitors. We certainly would not accept as a suitable plaintiff a party who had only a general economic interest in harming a competitor and who, accordingly, sought to impose some new, more onerous regulation upon that competitor. See, e.g., Calumet Indus., Inc. v. Brock, 807 F.2d 225, 228 (D.C.Cir.1986). But, when the plaintiff seeks to enforce a statutory restriction on his competitor — a restriction the plaintiff enjoys as well as the statutory beneficiaries — there is a good deal less risk that recognizing the plaintiffs standing will lead to a misdirection of a statutory scheme.
Our reasoning in HWTC suggests that our reaction might be different if the banks appeared before us, not asking to patrol the common bond picket line, but seeking a new regulation that would squeeze the credit unions into a smaller market or even eliminate them from the market altogether. It is unnecessary, however, to extend our holding into a definitive answer to appellants’ hypotheticals; we concede that the general issue is devilishly complex. We feel confident, however, that this case is a good deal closer to the paradigm of ICI and Clarke than it is to HWTC, and, therefore, we hold that appellants have standing. The judgment of the district court is reversed and the case remanded.
. In HWTC IV, we emphasized that "it is the interests that the challenger seeks to protect and not the challenge with which we must be concerned.” HWTC IV, 885 F.2d at 925.
. The Senate report on the bill praised credit unions for their record of successful service during the Depression, a record that contrasted sharply with a grim history of bank failures, and attributed the success largely to credit unions’ self-government and attentiveness to members’ needs. See Sen.Rep. No. 555, 73d Cong., 2d Sess. 2-4 (1934).
. We cannot agree with the pre-Clarke reasoning of Branch Bank & Trust Co. v. National Credit Union Administration Board, 786 F.2d 621 (4th Cir.1986), in which the Fourth Circuit focused exclusively on the question whether banks’ interests were intended to be protected under the FCUA and concluded that banks do not have standing under the FCUA, see id. at 626. The subsequent explication of the suitable challenger route to standing in Clarke empties the Branch Bank decision of its persuasiveness.
. We have expressed concern in the past about allowing potential plaintiffs to gain standing through a facile assertion that they are enforcing entry-restricting legislation (a concern that again highlights the importance we have implicitly attached to entry restrictions in standing cases). See HWTC II, 861 F.2d at 284. This, of course, is not such a case.
. Perhaps it is also relevant — in considering whether a plaintiff has prudential standing, if not Article III standing, see Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974)— to ask whether, as the Supreme Court may well have in ICI, one can be confident that the intended beneficiaries had sufficient incentive and organizational resources to sue. See HWTC II, 861 F.2d at 284.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Appellant, v. The COMMERCIAL NATIONAL BANK OF KANSAS CITY and the Boatmen’s National Bank of St. Louis, Appellees.
No. 9741.
United States Court of Appeals Tenth Circuit.
May 29, 1968.
Certiorari Denied Dec. 16, 1968.
See 89 S.Ct. 487.
Bennet N. Hollander, Washington, D. C. (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Melva M. Graney, Louis M. Kauder, Attys., Dept. of Justice, and Newell A. George, U. S. Atty., with him on the brief) for appellant.
James J. Melching, Kansas City, Mo., for appellees.
Before MURRAH, Chief Judge, MARVIN JONES, Senior Judge, United States Court of Claims, and BREITENSTEIN, Circuit Judge.
Sitting by designation of the Chief Justice.
MARVIN JONES, Senior Judge:
On June 19, 1954, decedent Frank E. Washburn had executed a revocable trust under which the income was to be paid to himself during his lifetime, thereafter to his wife Lucy Tullock Washburn if she survived him, or to his sister if she survived him and his wife. Upon the death of the last income beneficiary, the trust estate was to be terminated and the principal distributed evenly among two charitable organizations and four of decedent’s nephews.
Paragraph 5 of the trust empowered the trustee to invade the principal for the benefit of decedent’s wife. Because the meaning of this paragraph is crucial to the decision of this case, we quote it in full:
5. In the event that the Grantor’s wife, Lucy Tullock Washburn, shall survive the Grantor, and the Trust Estate hereby created shall not have theretofore been terminated, then in that event, if at any time or times during the lifetime of the Grantor’s said wife, some emergency or contingency shall arise making it necessary or advisable in the sole judgment of the Trustee to pay or distribute to or apply for the benefit of the Grant- or’s said wife for her comfort, welfare, contentment and happiness, a portion or portions of the principal of said Trust Estate, the Trustee shall have full power and authority to pay or distribute to her, or to use or apply for her benefit for her comfort, wel-fore, contentment and happiness, such portion of the principal of said Trust Estate as the Trustee in its sole discretion shall deem necessary or advisable in all of the circumstances then existing. In determining the necessity or advisability of making such payments or distributions out of principal to the Grantor’s said wife from the Trust Estate, the Trustee may take into consideration other income and cash resources available to the Grantor’s said wife, and the Trustee shall take into consideration that said Trust Estate is created by the Grant- or for the purpose and with the intention of providing for the comfort, welfare, contentment and happiness of the Grantor’s said wife throughout her entire lifetime, and in order that she may continue to live in the manner in which she has been accustomed to live; and that while said Trust Estate should not be depleted by payments or distributions from principal to the extent that the carrying out of said purposes and intentions will be endangered so long as the Grantor’s said wife shall live, her enjoyment of the benefits of said Trust Estate should be considered as paramount to the conserving of assets in said Trust Estate for the benefit of the distrib-utees hereinafter named in paragraph 9 of this Trust Agreement.
A federal estate tax return was filed on behalf of decedent’s estate on June 25, 1958, in which taxpayer attempted to deduct from the gross estate the value of the charitable remainders under Int. Rev.Code of 1954, § 2055(a) (2). Upon an audit of this return, the charitable deductions were disallowed on the ground that Paragraph 5 of the trust does not provide an ascertainable standard for the invasion of the trust principal. Taxpayer paid the deficiency and filed a claim for refund, which was denied. Taxpayer then brought this suit for refund under 28 U.S.C. § 1346(a) (1) in the United States District Court for the District of Kansas. The district court granted taxpayer’s motion for summary judgment, Commercial National Bank v. United States, 265 F.Supp. 806 (D.Kan.1966), and the government has appealed.
Int.Rev.Code of 1954, § 2055(a) (2) allows a deduction from a decedent’s gross estate in the amount of transfers to charitable organizations. Treas.Reg. § 20.2055-2(a) covers situations where the charitable transfer consists of a remainder interest with the intervening life estate belonging to a noncharitable beneficiary. This regulation states that a “deduction may be taken of the value of the charitable beneficial interest only insofar as that interest is presently ascertainable, and hence severable from the noncharitable interest. * * * Thus, if money or property is placed in trust to pay the income to an individual during his life * * * and then to pay the principal to a charitable organization, the present value of the remainder is deductible.” Where a trustee has a power to divert the principal to a non-charitable use, “the deduction will be limited to that portion, if any, of the property or fund which is exempt from an exercise of the power.” Treas.Reg. § 20.2055-2 (b).
Two Supreme Court cases have established what have become traditional rules of thumb in applying Section 2055 and its regulations to specific instruments. In Ithaca Trust Company v. United States, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647 (1929), the trust allowed the life beneficiary to withdraw from the principal any amount “that may be necessary to suitably maintain her in as much comfort as she now enjoys.” Justice Holmes, in allowing a charitable deduction, remarked that “the standard was fixed in fact and capable of being stated in definite terms of money. It was not left to the widow’s discretion. The income of the estate at the death of the testator * * * was more than sufficient to maintain the widow as required. There was no uncertainty appreciably greater than the general uncertainty that attends human affairs.” 279 U.S. at 154, 49 S.Ct. at 291.
The second Supreme Court case, Merchants National Bank of Boston v. Commissioner of Internal Revenue, 320 U.S. 256, 64 S.Ct. 108, 88 L.Ed. 35 (1943), involved a trust in which the grantor authorized the trustee to invade corpus “for the comfort, support, maintenance, and/or happiness” of his wife. The grantor stated further that “it is. my wish * * * that * * * my said Trustee shall exercise its discretion with liberality to my said wife, and consider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust.” The Court denied the charitable deduction, stating that “the extent to which the principal might be used was not restricted by a fixed standard based on the widow’s prior way of life. Compare Ithaca Trust Co. v. United States, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647. Here, for example, her ‘happiness’ was among the factors to be considered by the trustee.” 320 U.S. at 261, 64 S.Ct. at 111. The Court was willing to assume the unlikelihood of invasion. Nevertheless,
* * * Congress has required a more reliable measure of possible expenditures and present value than is now available for computing what the charity will receive. The salient fact is that the purposes for which the widow could, and might wish to have the funds spent do not lend themselves to reliable prediction. This is not a “standard fixed in fact and capable of being stated in definite terms of money.” Cf. Ithaca Trust Co. v. United States, supra. Introducing the element of the widow's happiness and instructing the trustee to exercise its discretion with liberality to make her wishes prior to the claims of residuary beneficiaries brought into the calculation elements of speculation too large to be overcome, notwithstanding the widow’s previous mode of life was modest and her own resources substantial. [320 U.S. at 262-263, 64 S.Ct. at 112.]
From these Supreme Court pronouncements there have been distilled generally accepted principles. For a charitable remainder subject to invasion to be deductible, it must first be established that the instrument contains an ascertainable standard of invasion, i. e., one which is capable of being stated in definite terms of money. In all cases allowing the deduction, this ascertainable standard has been the standard-of-living criterion, either expressly stated or implied from the language of the instrument. If no such standard exists, the charitable deduction is denied, no matter how remote the possibility of invasion might be. If the instrument contains such a standard, then the court will determine the likelihood of invasion. See e. g., Salisbury v. United States, 377 F.2d 700, 703 (2d Cir. 1967); Rev.Rul. 54-285, 1954-2 Cum.Bull. 302; Taggart, Charitable Deductions for Transfers of Remainder Interests Subject to Invasion, 21 Tax L.Rev. 535, 562 (1966); Albert, Merchants National Bank v. Commissioner and its Uncharitable Aftermath, 67 Dick.L.Rev. 145, 148 (1963).
In determining whether an ascertainable standard exists, we must interpret the instrument’s language in conformity with state law. See Blodget v. Delaney, 201 F.2d 589 (1st Cir. 1953). Thus our problem may be stated as whether, under the law of Kansas, Paragraph 5 of the trust limits the invasion of principal to the standard-of-living criterion.
Similar problems under section 2055 and its predecessor havé often been resolved by deciding whether the language of the instrument in question more nearly resembled that in Ithaca or Merchants Bank. Paragraph 5 of the trust before us contains language similar to the invasion-of-principal clauses in both Ithaca and Merchants Bank. It resembles Merchants Bank in two respects. First, principal may be invaded for the “comfort, welfare, contentment and happiness” of grantor’s wife. The phrase in Merchants Bank was “comfort, support, maintenance, and/or happiness.” Secondly, the trustee in the case before us is admonished that
while said Trust Estate should not be depleted by payments or distributions from principal to the extent that the carrying out of said purposes and intentions will be endangered so long as the Grantor’s said wife shall live, her enjoyment of the benefits of said Trust Estate should be considered as paramount to the conserving of assets in said Trust Estate for the benefit of the distributees * * *.
In Merchants Bank the admonitory clause stated that the trustee should “exercise its discretion with liberality to my said wife, and consider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust.”
The following language of Paragraph 5 resembles the trust in Ithaca:
In determining the necessity or advisability of making such payments or distributions out of principal * * * the Trustee shall take into consideration that said Trust Estate is created by the Grantor for the purpose and with the intention of providing for the comfort, welfare, contentment and happiness of the Grantor’s said wife throughout her entire lifetime, and in order that she may continue to live in the manner in which she has been accustomed to live * * *.
The trust in Ithaca allowed withdrawal of such sums as “may be necessary to suitably maintain her in as much comfort as she now enjoys.”
The government argues that because principal may be invaded for the “happiness” of the life beneficiary and because the trustee is admonished that the life beneficiary’s “enjoyment of the benefits of the said trust estate shall be considered as paramount to the conserving of assets * * * for the benefit of the distributees,” the standard of invasion falls within the rule of Merchants Bank as being to indefinite. The government recognizes that the standard-of-living clause meets the requirement for definiteness, but argues that where an instrument contains both a broad and a narrow standard of invasion, the instrument must be treated as permitting invasion to the extent of the broader standard. In other words, the broad or indefinite standard establishes the outermost limit of invasion, not the narrow or definite one. See Union Trust Company v. Tomlinson, 355 F.2d 40 (5th Cir. 1966).
Taxpayer contends that Merchants Bank and all the other decisions denying a charitable deduction have involved instruments which contained no standard-of-living clause, and that where such a clause is present, words such as “happiness” are of no importance since they must be interpreted to mean the same thing as the standard-of-living clause.
We do not agree with this argument. It is not true, as taxpayer asserts, that “all of the decisions denying charitable deductions in computing estate tax are those having no standard-of-living clause.” Several cases denying the deduction have involved instruments with either an express standard-of-living clause or language which is commonly construed as establishing a standard-of-living criterion. The fatal defect of those instruments was that they contained, in addition to the definite standard, language which went beyond the permissible limits established by Ithaca and Merchants Bank.
In Union Trust Company v. Tomlinson, 355 F.2d 40 (5th Cir. 1966), the trust expressly established a standard-of-living test for invasion of principal. The trust went on to say, however, that the trustee should “give sympathetic consideration to any requests that my wife may make from time to time,” and the trustee was authorized “to be generous in the exercise of this discretion even though there may be considerable depletion of the Trust Estate.” It was held that the latter language made the standard of invasion too indefinite to permit the deduction.
Likewise, in State Bank & Trust Company v. United States 313 F.2d 29 (1st Cir. 1963), the will allowed invasion of principal for the benefit of the widow as the trustees “in their uncontrolled discretion may deem necessary or advisable for her comfortable support and maintenance and for any other reasonable requirement * * The court held that “comfortable support and maintenance” established the standard-of-Iiving test, but that “any other reasonable requirement” authorized a higher and immeasurable standard. See also Gammons v. Hassett, 121 F.2d 229 (1st Cir.), cert. denied, 314 U.S. 673, 62 S.Ct. 136, 86 L.Ed. 539 (1941); Marine Trust Company of Western New York v. United States, 247 F.Supp. 278 (W.D.N.Y. 1965); Yaccaro v. United states, 224 F.Supp. 307 (D. Mass. 1963).
These authorities support the government’s contention that where an instrument contains both a broad and a narrow standard of invasion, the broad standard should be given effect. It seems that to do otherwise would require the court to ignore the broader language.
Taxpayer argues, however, that under Kansas law the word “happiness” does not enlarge the standard-of-living test, Taxpayer relies on one Kansas case to support this proposition, In re Estate of Woods Trust, 181 Kan. 271, 311 P.2d 359 (1957). Paragraph b of the instrument in Woods gave the income to testator’s wife for life’ then stated that
uP°n the death <>f wife, if my daughter Catherine has survived her, it *s my * * * that if and when my said daughter’s personal funds become depleted, from that time on the entire net income from said trust es-^ate Pa^d to my sadd daughter * *. [311 P-2d at 364.]
Paragraph d allowed invasion of corpus for the benefit of testator’s wife and daughter according to the standard-of-living criterion. In Paragraph e, testator stated that the “essence” of his testament was first to provide for the “comfort and happiness” of his wife and daughter and directed that the funds be applied to that purpose “without stint or quibble ”
Testator’s daughter, a cotrustee, f ought to establish her right to receive tbe mcome from f,he trust after the death °f ber mother’ alleging that her personal funds had become depleted withm the meaning of Paragraph b The trial court denied the dauShter s claim 011 ^ound that her funds were not suffieiently depleted The Supreme Court of Kansas reversed on this point. The su?remf. court stated that m Kansas the intention a testator must be deter-™med from thf Yhole will-from the ^ °f tha instrument. 311 P.2d at 365‘ From Paragraphs b, d, and e the court determined that testator intended *or bhe daufhter to receive income when her funds were so depleted as to prevent her from maintaining the standard of living she had grown accustomed to in testator’s lifetime. The daughter’s funds were sufficiently depleted to allow her to share in the in-come. 311 P.2d at 366-367.
Woods does offer some support for the proposition that under Kansas law the word “happiness” does not broaden the standard-of-living test. However, it is far from a direct holding to that effect. The court did not have occasion to pass upon the permissible scope of the power of invasion. The question before it was whether the beneficiary’s funds had been sufficiently “depleted” to allow her to receive income from the trust. The court never considered the question of whether she was entitled to funds in excess of those necessary to maintain her standard of living. Only if it had, would the question before us have been decided. In view of the almost unanimous holdings of other courts that “happiness” creates a broader, more subjective test than the standard-of-living clause, we are unable to conclude from Woods that Kansas would limit invasion of corpus in the instant ease to the standard-of-living criterion.
Taxpayer also relies on United States v. Powell, 307 F.2d 821 (10th Cir. 1962). The trustee in Powell was authorized to invade principal “for the maintenance, welfare, comfort or happiness” of the beneficiaries and was admonished that, before principal was invaded, he should “deem that the purpose for which the payments are to be made, justifies the reduction in the principal * *
The court found “happiness” to have the same meaning as “welfare” and “comfort,” which are commonly construed to impose the standard-of-living test. Merchants Bank was distinguished on the ground that there the trustee had been given a broader power of invasion:
It is clear, we think, that the court accorded such broader connotation to the word “happiness,” because of the context in which it was found and, particularly, the instructions to the trustee to exercise its discretion with liberality to the wife and to consider her welfare, comfort and happiness prior to the claims of the residuary beneficiaries. [307 F.2d at 827.]
The instrument in Powell, on the contrary, “indicated that the power should be exercised with restraint and only when the purpose justified a reduction of the corpus * * 307 F.2d at 828.
We believe that Powell is distinguishable from the instant case for the same reason it was distinguished from Merchants Bank. The trustee in the instant case was told in the second sentence of Paragraph 5 that the life beneficiary’s “enjoyment of the benefits of said Trust Estate should be considered as paramount to the conserving of assets * * for the benefit of the distributees * This language is comparable to the admonitory clause in Merchants Bank which was used by the Powell court to explain the broad interpretation of “happiness” in Merchants Bank.
The phrase “said Trust Estate should not be depleted by payments or distributions from principal to the extent that the carrying out of said purposes and intentions will be endangered so long as the Grantor’s said wife shall live” does not so restrict the power of invasion as to bring the trust in this case within the scope of Powell. The “purposes and intentions” referred to are: “providing for the comfort, welfare, contentment and happiness of the Grantor’s said wife throughout her entire lifetime, and in order that she may continue to live in the manner in which she has been accustomed to live * * Thus the aforementioned phrase means only that the principal is not to be depleted so rapidly as to exhaust it before the life beneficiary’s death, and is not inconsistent with an interpretation of “happiness” in accord with Merchants Bank and the vast majority of subsequent cases.
The question we must decide is whether a Kansas court would allow invasion of the trust principal under Paragraph 5 beyond the standard-of-living criterion. Although Woods and Powell indicate that in Kansas “happiness” is not a magic word compelling the automatic consequence of indefinitely broad powers of invasion, we do not construe Paragraph 5 as limiting the trustee to the standard-of-living criterion.
Powell establishes that we are to gather the intent of the testator from the instrument as a whole. It is clear that the whole of Paragraph 5, save for the phrase “and in order that she may continue to live in the manner in which she has been accustomed to live,” indicates the intent to allow invasion of principal beyond the standard-of-living test. In 1954 when this trust was drafted, Merchants Bank had for 11 years been a landmark decision in this area of the law. To all lawyers practicing in the estate tax field, the Supreme Court’s interpretation of “happiness” must have been abundantly clear. The consequences of an admonitory clause stating that the life beneficiary’s enjoyment was to be “paramount” to the conserving of assets for the remainderman must also have been apparent. Powell and Woods, the two cases relied upon by taxpayer to show that Kansas would interpret Paragraph 5 as establishing a standard-of-living test, were not decided until after this trust was drafted. The inclusion of the standard-of-living test does not nullify the purport of the entire remainder of Paragraph 5. Its effect is to create a definite, minimum standard of invasion in addition to the indefinite standard established by the rest of the paragraph. Under the reasoning of Union Trust and State Street, the scope of invasion cannot be limited to the standard-of-living clause. Since the standard of invasion is fatally indefinite, it is unnecessary to inquire into the probability of invasion.
Reversed and remanded.
. The Boatmen’s National Bank of St. Louis, trustee, and the Commercial National Bank of Kansas City, administrator of decedent’s will, are herein referred to collectively as “taxpayer.”
. The deficiency was based on several other issues in addition to the disallowance of the charitable deductions, but only the latter issue is before us.
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_casesource
|
026
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
FALLS CITY INDUSTRIES, INC. v. VANCO BEVERAGE, INC.
No. 81-1271.
Argued October 13, 1982
Decided March 22, 1983
Blackmun, J., delivered the opinion for a unanimous Court.
Howard Adler, Jr., argued the cause for petitioner. With him on the briefs was Lionel Kestenbaum.
Deputy Solicitor General Shapiro argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Baxter, John H. Garvey, Barry Grossman, and Nancy C. Garrison.
John T. Cusack argued the cause for respondent. With him on the briefs was Gordon B. Nash.
Justice Blackmun
delivered the opinion of the Court.
Section 2(b) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. § 13(b), provides that a defendant may rebut a prima facie showing of illegal price discrimination by establishing that its lower price to any purchaser or purchasers “was made in good faith to meet an equally low price of a competitor.” The United States Court of Appeals for the Seventh Circuit has concluded that the “meeting-competition” defense of §2(b) is available only if the defendant sets its lower price on a customer-by-customer basis and creates the price discrimination by lowering rather than by raising prices. We conclude that § 2(b) is not so inflexible.
HH
From July 1, 1972, through November 30, 1978, petitioner Falls City Industries, Inc., sold beer f.o.b. its Louisville, Ky., brewery to wholesalers throughout Indiana, Kentucky, and 11 other States. Respondent Vaneo Beverage, Inc., was the sole wholesale distributor of Falls City beer in Vanderburgh County, Ind. That county includes the city of Evansville. Directly across the state line from Vanderburgh County is Henderson County, Ky., where Falls City’s only wholesale distributor was Dawson Springs, Inc. The city of Henderson, Ky., located in Henderson County, is less than 10 miles from Evansville. The two cities are connected by a four-lane interstate highway. The two counties generally are considered to be a single metropolitan area. App. 124.
Vaneo and Dawson Springs each purchased beer from Falls City and other brewers and resold it to retailers in Van-derburgh County and Henderson County, respectively. The two distributors did not compete for sales to the same retailers. This was because Indiana wholesalers were prohibited by state law from selling to out-of-state retailers, Ind. Code §7.1-3-3-5 (1982), and Indiana retailers were not permitted to purchase beer from out-of-state wholesalers. See §7.1-3-4-6. Indiana law also affected beer sales in two other ways relevant to this case. First, Indiana required brewers to sell to all Indiana wholesalers at a single price. §7.1-5-5-7. Second, although it was ignored and virtually unenforced, see Tr. 122-123, 135-136, state law prohibited consumers from importing alcoholic beverages without a permit. § 7.1-5-11-1.
In December 1976, Vaneo sued Falls City in the United States District Court for the Southern District of Indiana, alleging, among other things, that Falls City had discriminated in price against Vaneo, in violation of §2(a) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. § 13(a), by charging Vaneo a higher price than it charged Dawson Springs. Vaneo also claimed that Falls City had violated §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2, by conspiring with other brewers and unnamed wholesalers to maintain higher prices in Indiana than in Kentucky.
After trial, the District Court dismissed Vanco’s Sherman Act claims, finding no evidence to support the allegations of conspiracy or monopolization. 1980-2 Trade Cases ¶ 63,357, pp. 75,809, 75,820. The court held, however, that Vaneo had made out a prima facie case of price discrimination under the Robinson-Patman Act. The District Court found that Vaneo competed in a geographic market that spanned the state border and included Vanderburgh and Henderson Counties. Id., at 75,813-75,814. Although Vaneo and Dawson Springs did not sell to the same retailers, they “competed for sale of [Falls City’s] beer to . . . consumers of beer from retailers situated in [that] market area.” Id., at 75,814. Falls City charged a higher price for beer sold to Indiana distributors than it charged for the same beer sold to distributors in other States, including Kentucky. Ibid. This pricing policy resulted in lower retail prices for Falls City beer in Kentucky than in Indiana, because Kentucky distributors passed on their savings to retailers who in turn passed them on to consumers. Finding that many customers living in the Indiana portion of the geographic market ignored state law to purchase cheaper Falls City beer from Henderson County retailers, the court concluded that Falls City’s pricing policies prevented Vaneo from competing effectively with Dawson Springs, id., at 75,815-75,816, and caused it to sell less beer to Indiana retailers. Id., at 75,814-75,817, 75,818.
“It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce ... and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . .
The District Court rejected Falls City’s § 2(b) meeting-competition defense. The court reasoned that, instead of reducing its prices to meet those of a competitor, Falls City had created the price disparity by raising its prices to Indiana wholesalers more than it had raised its Kentucky prices. Instead of “adjusting prices on a customer to customer basis to meet competition from other brewers,” id., at 75,822, Falls City charged a single price throughout each State in which it sold beer. The court concluded that Falls City’s higher Indiana price was not set in good faith; instead, it was raised “for the sole reason that it followed the other brewers ... for its profit.” Ibid.
The United States Court of Appeals for the Seventh Circuit, by a divided vote, affirmed the finding of liability. 654 F. 2d 1224 (1981). The court held that Vaneo had established a prima facie case of illegal price discrimination and that Falls City had not demonstrated that the discrimination “was a good faith effort to defend against competitors.” Id., at 1230. We granted certiorari to review the Court of Appeals’ holdings respecting injury to competition and the “meeting-competition” defense. 455 U. S. 988 (1982).
HH HH
To establish a prima facie violation of § 2(a), one of the elements a plaintiff must show is a reasonable possibility that a
price difference may harm competition. Corn Products Refining Co. v. FTC, 324 U. S. 726, 742 (1945). In keeping with the Robinson-Patman Act’s prophylactic purpose, § 2(a) “does not ‘require that the discriminations must in fact have harmed competition.’” J. Truett Payne Co. v. Chrysler Motors Corp., 451 U. S. 557, 562 (1981), quoting Com Products, 324 U. S., at 742. This reasonable possibility of harm is often referred to as competitive injury. Unless rebutted by one of the Robinson-Patman Act’s affirmative defenses, a showing of competitive injury as part of a prima facie case is sufficient to support injunctive relief, and to authorize further inquiry by the courts into whether the plaintiff is entitled to treble damages under §4 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. §15 (1976 ed., Supp. V). J. Truett Payne Co. v. Chrysler Motors Corp., 451 U. S., at 562.
Palls City contends that the Court of Appeals erred in relying on FTC v. Morton Salt Co., 334 U. S. 37 (1948), to uphold the District Court’s finding of competitive injury. In Morton Salt this Court held that, for the purposes of § 2(a), injury to competition is established prima, facie by proof of a substantial price discrimination between competing purchasers over time. 334 U. S., at 46, 50-51; see id., at 60 (Jackson, J., dissenting in part). In the absence of direct evidence of displaced sales, this inference may be overcome by evidence breaking the causal connection between a price differential and lost sales or profits. F. Rowe, Price Discrimination Under the Robinson-Patman Act 182 (1962) (Rowe); see Chrysler Credit Corp. v. J. Truett Payne Co., 670 F. 2d 575, 581 (CA5 1982).
According to Falls City, the Morton Salt rule should be applied only in cases involving “large buyer preference or seller predation.” Brief for Petitioner 31. Falls City does not, however, suggest any economic reason why Morton Saifs “self-evident” inference, 334 U. S., at 50, should not apply when the favored competitor is not extraordinarily large. Although concerns about the excessive market power of large purchasers were primarily responsible for passage of the Robinson-Patman Act, see generally Rowe, at 3-23; U. S. Dept. of Justice, Report on the Robinson-Patman Act 101-139 (1977) (1977 Report), the Act “is of general applicability and prohibits discriminations generally,” FTC v. Sun Oil Co., 371 U. S. 505, 522 (1963). The determination whether to alter the scope of the Act must be made by Congress, not this Court, as is recognized by the commentators on which Falls City relies. See 1977 Report, at 221-228 and 290-291; ABA Antitrust Section, Monograph No. 4, The Robinson-Patman Act: Policy and Law, Vol. 1,102-103 (1980).
The Morton Salt rule was not misapplied in this case. In a strictly literal sense, this case differs from Morton Salt because Vaneo and Dawson Springs did not compete with each other at the wholesale level; Vaneo sold only to Indiana retailers and Dawson Springs sold only to Kentucky retailers. But the competitive injury component of a Robinson-Patman Act violation is not limited to the injury to competition between the favored and the disfavored purchaser; it also encompasses the injury to competition between their customers — in this case the competition between Kentucky retailers and Indiana retailers who, under a District Court finding not challenged in this Court, were selling in a single, interstate retail market.
After observing that Falls City had maintained a substantial price difference between Vaneo and Dawson Springs over a significant period of time, the Court of Appeals, like the District Court, considered the evidence that Vanco’s loss of Falls City beer sales was attributable to factors other than the price difference, particularly the marketwide decline of Falls City beer. Both courts found it likely that this overall decline accounted for some — or even most — of Vanco’s lost sales. Nevertheless, if some of Vanco’s injury was attributable to the price discrimination, Falls City is responsible to that extent. See Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 144 (1968) (White, J., concurring).
The Court of Appeals agreed with the District Court’s findings that “the major reason for the higher Indiana retail beer prices was the higher prices charged Indiana distributors,” and “the lower retail prices in Henderson County attracted Indiana customers away from Indiana retailers, thereby causing the retailers to curtail purchases from Vaneo.” 654 F. 2d, at 1229. These findings were supported by direct evidence of diverted sales, and more than established the corn-petitive injury required for a prima facie case under § 2(a). See J. Truett Payne Co. v. Chrysler Motors Corp., 451 U. S., at 561-562; Morton Salt, 334 U. S., at 50-51. We therefore turn to Falls City’s “meeting-competition” defense.
hH I — I HH
When proved, the meeting-competition defense of § 2(b) exonerates a seller from Robinson-Patman Act liability. Standard Oil Co. v. FTC, 340 U. S. 231, 246-247 (1951). This Court consistently has held that the meeting-competition defense “‘at least requires the seller, who has knowingly discriminated in price, to show the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor.’ ” United States v. United States Gypsum Co., 438 U. S. 422, 451 (1978), quoting FTC v. A. E. Staley Mfg. Co., 324 U. S. 746, 759-760 (1945); see Great A&P Tea Co. v. FTC, 440 U. S. 69, 82 (1979). The seller must show that under the circumstances it was reasonable to believe that the quoted price or a lower one was available to the favored purchaser or purchasers from the seller’s competitors. See United States Gypsum Co., 438 U. S., at 451. Neither the District Court nor the Court of Appeals addressed the question whether Falls City had shown information that would have led a reasonable and prudent person to believe that its lower Kentucky price would meet competitors’ equally low prices there; indeed, no findings whatever were made regarding competitors’ Kentucky prices, or the information available to Falls City about its competitors’ Kentucky prices.
Instead, the Court of Appeals reasoned that Falls City had otherwise failed to show that its pricing “was a good faith effort” to meet competition. 654 F. 2d, at 1230. The Court of Appeals considered it sufficient to defeat the defense that the price difference “resulted from price increases in Indiana, not price decreases in Kentucky,” ibid., and that the higher Indiana price was the result of Falls City’s policy of following the Indiana prices of its larger competitors in order to enhance its profits. The Court of Appeals also suggested that Falls City’s defense failed because it adopted a “general system of competition,” rather than responding to “individual situations.” Ibid. The court believed that FTC v. A. E. Staley Mfg. Co., supra, supported this holding. 654 F. 2d, at 1230.
A
On its face, §2(b) requires more than a showing of facts that would have led a reasonable person to believe that a lower price was available to the favored purchaser from a competitor. The showing required is that the “lower price . . . was made in good faith to meet” the competitor’s low price. 15 U. S. C. § 13(b) (emphasis added). Thus, the defense requires that the seller offer the lower price in good faith for the purpose of meeting the competitor’s price, that is, the lower price must actually have been a good-faith response to that competing low price. See Rowe, at 234-235. See generally Kuenzel & Schiffres, Making Sense of Robinson-Patman: The Need to Revitalize Its Affirmative Defenses, 62 Va. L. Rev. 1211, 1237-1255 (1976). In most situations, a showing of facts giving rise to a reasonable belief that equally low prices were available to the favored purchaser from a competitor will be sufficient to establish that the seller’s lower price was offered in good faith to meet that price. In others, however, despite the availability from other sellers of a low price, it may be apparent that the defendant’s low offer was not a good-faith response.
In Staley, this Court applied that principle. The Federal Trade Commission (FTC) had proceeded against Staley and six competing manufacturers of glucose, all of whom adhered to the same Chicago basing-point pricing system. See C. Edwards, Price Discrimination Law 372-379 (1959). See generally FTC Policy Toward Geographic Pricing Practices, 1 CCH Trade Reg. Rep. ¶¶3601.27, 3601.40-3601.42, pp. 5346, 5351-5352 (10th ed. 1959). Like its competitors, Staley, whose plant was located in Decatur, Ill., sold glucose to candy and syrup manufacturers at a delivered price that included the freight rate from Chicago to the point of delivery. Purchasers nearer Decatur thus were charged an element of “phantom” freight, while Staley “absorbed” an element of freight in sales to buyers nearer Chicago. 324 U. S., at 749. Customers located near Staley’s Decatur plant were harmed because, despite being located closer to the plant, they were forced to pay more for glucose than did their Chicago area competitors. Id., at 756.
The FTC eventually charged all seven manufacturers individually with price discrimination and jointly under the Federal Trade Commission Act with price fixing. See Corn Products Refining Co., 47 F. T. C. 587 (1950). At the time of the Staley decision, both the FTC and this Court had determined that use of the pricing system by Staley’s competitors was illegal under §2(a). See Com Products Refining Co. v. FTC, 324 U. S., at 732, 737-739. And, although neither the FTC nor this Court directly relied on the fact in finding price discrimination, Staley itself had been found to be a party to an interseller conspiracy aimed at maintaining “oppressive and uniform net delivered prices” throughout the country. See A. E. Staley Mfg. Co. v. FTC, 4 F. T. C. Stat. & Dec. 795, 805 (1943).
The Court observed that § 2(b) could exonerate Staley only if that section permitted a seller to establish “an otherwise unlawful system of discriminatory prices” in order to benefit from “a like unlawful system maintained by his competitors.” 324 U. S., at 753. Staley could not claim that its low Chicago prices were set for the purpose of meeting the equally low prices of competitors there; the Chicago prices could be seen only as part of a collusive pricing system designed to exact artificially high prices throughout the country. Since the low prices were set “in order to establish elsewhere the artificially high prices whose discriminatory effect permeates respondents’ entire pricing system,” id., at 756, the Court sustained the FTC’s finding “that respondents’ price dis-criminations were not made to meet a ‘lower’ price and consequently were not in good faith,” id., at 758.
Thus, even had Staley been able to show that its prices throughout the country did not undercut those of its competitors, its lower price in the Chicago area was not a good-faith response to the lower prices there. Staley had not priced in response to competitors’ discrete pricing decisions, but from the outset had followed an industrywide practice of setting its prices according to a single, arbitrary scheme that by its nature precluded independent pricing in response to normal competitive forces.
B
Almost 20 years ago, the FTC set forth the standard that governs the requirement of a “good-faith response”:
“At the heart of Section 2(b) is the concept of ‘good faith’. This is a flexible and pragmatic, not a technical or doctrinaire, concept. The standard of good faith is simply the standard of the prudent businessman responding fairly to what he reasonably believes is a situation of competitive necessity.” Continental Baking Co., 63 F. T. C. 2071, 2163 (1963).
Whether this standard is met depends on “ ‘the facts and circumstances of the particular case, not abstract theories or remote conjectures.’ ” United States v. United States Gypsum Co., 438 U. S., at 454, quoting Continental Baking Co., 63 F. T. C., at 2163.
The “facts and circumstances” present in Staley differ markedly from those present here. Although the District Court characterized the Indiana prices charged by Falls City and its competitors as “artificially high,” there is no evidence that Falls City’s lower prices in Kentucky were set as part of a plan to obtain artificially high profits in Indiana rather than in response to competitive conditions in Kentucky. Falls City did not adopt an illegal system of prices maintained by its competitors. The District Court found that Falls City’s prices rose in Indiana in response to competitors’ price increases there; it did not address the crucial question whether Falls City’s Kentucky prices remained lower in response to competitors’ prices in that State.
Vaneo attempts to liken this case to Staley by arguing that the existence of industrywide price discrimination within the single geographic retail market itself indicates “tacit or explicit collusion, or . . . market power” inconsistent with a good-faith response. Brief for Respondent 39. By its terms, however, the meeting-competition defense requires a seller to justify only its lower price. See Staley, 324 U. S., at 753. Thus, although the Sherman Act would provide a remedy if Falls City
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Answer:
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songer_typeiss
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine 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.
JOHN BLUE COMPANY, Incorporated, Appellant, v. DEMPSTER MILL MFG. CO., Appellee.
No. 16179.
United States Court of Appeals Eighth Circuit.
March 15, 1960.
David E. Varner, Washington, D. C. (C. Willard Hayes, Washington, D. C., E. G. Garvey, Omaha, Neb., and Cushman Darby & Cushman, Washington, D. C., and Crawford, Garvey, Comstock & Nye, Omaha, Neb., on the brief) for appellant.
Ferd Bing and Thomas F. McWilliams, Chicago, Ill. (Mann, Brown & McWilliams, Chicago, Ill., on the brief), for appellee.
Before GARDNER and VOGEL, Circuit Judges, and MICKELSON, District Judge.
MICKELSON, District Judge.
This is a patent infringement action brought by the plaintiff, John Blue Company, Inc., an Alabama Corporation, against the defendant, Dempster Mill Mfg. Co., a Nebraska Corporation, alleging the infringement of Patents No. 2,696,785 and No. 2,771,846. The trial court held both patents invalid but no appeal was taken from the trial court’s ruling regarding Patent No. 2,771,846. This appeal is from the judgment and findings of the trial court that plaintiff’s Patent No. 2,696,785 (hereinafter called the Blue and Johnston Patent) is invalid on two grounds: (1) That the joinder of Johnston as a joint inventor after the original issue of the patent here in question was not proper under Title 35 U.S. C.A. § 256; and, (2) That the Blue and Johnston Patent did not involve invention. The trial court’s memorandum opinion is reported in D.C.Neb.1958, 172 F. Supp. 23. The parties will be referred to as they were designated in the trial court. The question of infringement is not involved in this appeal because of the findings and judgment of the trial court that the Blue and Johnston Patent was invalid. The Blue and Johnston Patent relates to a device for the metering and regulation of the flow of anhydrous (liquefied gas) ammonia as it is applied to the soil for fertilizing purposes.
The findings of the trial court will not be set aside unless clearly erroneous, and due regard will be given to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 52(a) F.R.Civ.P. 28 U.S.C.A. A finding of fact by a district court is not “clearly erroneous” so as to justify this court in setting it aside unless it is unsupported by substantial evidence, contrary to the clear weight of the evidence, or induced by an erroneous view of the law. Sbicca-Del Mac, Inc. v. Milius Shoe Co., 8 Cir., 1944, 145 F.2d 389; Sears, Roebuck & Co. v. Talge, 8 Cir., 1944, 140 F.2d 395; Gasifier Mfg. Co. v. General Motors Corp., 8 Cir., 1943, 138 F.2d 197.
The facts as found by the trial court and as supported by substantial evidence in the record, insofar as they are pertinent to this appeal, are as follows:
Prior to the year 1948, plaintiff was a well established manufacturer of wheel-driven distributors for dry or solid fertilizers. This machinery could be pulled by tractor or animals, and plaintiff found most of its business in the cotton fields.
During 1947 and the early part of 1948, interest in the use of anhydrous ammonia as a fertilizer was running high due to a shortage of solid fertilizers. Early experimentation in the use of anhydrous ammonia as a fertilizer and particularly on how to apply it to the soil in known and accurate amounts was carried on by Mississippi State College at its Delta Experimental Station.
In February of 1948, John Blue, president of the plaintiff company, together with his son, James, and W. D. Tucker, Jr., general manager of plaintiff, made a trip to the experiment station, and on this trip Blue conceived a metering apparatus for applying anhydrous ammonia to the soil as a fertilizer. This original conception resulted in Patent No. 2,594,-284, application filed December 21, 1948, issued April 29, 1952 (hereinafter referred to as the Blue Patent). The Blue Patent is not involved in this action except as defense material upon the basis of which lack of invention in the Blue and Johnston Patent is urged. On the occasion of this trip to the experiment station, Blue made sketches showing his conception of a tractor-mounted adjustable stroke metering pump driven from the wheel of a tractor, acting to meter the anhydrous ammonia and to feed the same to ground tools for application to the soil. Upon his return to plaintiff’s plant at Huntsville, Alabama, Blue turned the sketches over to his son, who made drawings thereof, and these drawings formed a good representation of the Blue concept. No pump was ever built in conformity with these drawings; however, the concept was subsequently used as the basis for the Blue and Johnston Patent here in suit. The Blue concept therefore established the threshold upon which the work of Blue and Johnston began.
After Blue and Tucker returned from the experiment station, it was decided that plaintiff would make an attempt to build a mechanical metering device for anhydrous ammonia. Plaintiff then had no skilled engineers in its employ and did not possess any precision manufacturing equipment necessary for the development and production of an accurate pump-type metering device for anhydrous ammonia.
There existed in Huntsville, Alabama, at that time the General Fluid Machinery Corporation (hereinafter referred to as General Fluid), which had been organized in 1945 for the manufacture of domestic water pumping systems for deep wells, and they had also gone into the manufacture of hydraulic jacks and related equipment. Douglas Johnston, a highly educated engineer of wide experience in high pressure hydraulic work, and in the design and manufacture of pumps, was the president and chief engineer of this corporation. The corporation was equipped with both engineering and precision manufacturing facilities, but due to serious financial difficulties was looking for contract or job work.
It was decided that the plaintiff would secure the services of General Fluid to do further design work on a metering device for anhydrous ammonia. Blue, Tucker and Johnston made another trip to the experiment station primarily to enable Johnston to become acquainted with the problems involved in the handling and use of anhydrous ammonia. As a result of this trip and by agreement between Johnston and Tucker, as general manager of the plaintiff, the design work that was to be done by General Fluid was undertaken. Work progressed rapidly, and after preparation of certain drawings under the supervision of Johnston, a pump was made and subsequently tested at the experiment station in August of 1948. It was found that the pump “had some bugs” and changes were thereafter made. The rebuilt pump was demonstrated at the experiment station the following month. In this rebuilt pump, jointly designed and built by Blue and Johnston during the spring and summer of 1948, the original Blue concept of a wheel-driven, adjustable stroke metering pump had been changed in the following respects; (1) A pressure balanced valve had been substituted as the outlet valve in place of the spring-biased type of valve usually employed in pumps; (2) A vent had been added for discharging the accumulated ammonia from the pump cylinder to allow the pump cylinder to fill with liquid ammonia; and (3) A heat exchanger had been added to cool the incoming liquid ammonia and minimize the possibilities of flashing or bubbling. This was essentially the pump described in plaintiff’s Patent No. 2,696,-785, the Blue and Johnston Patent.
The application for a patent on the Blue and Johnston built pump was originally prepared by plaintiff’s attorneys naming Blue and Johnston as joint inventors. The name of Johnston was stricken from the patent application by Mr. Tucker, and the application submitted to The United States Patent Office on March 11, 1949, by Blue as the sole inventor. Letters Patent No. 2,696,785 were issued on December 14, 1954, to plaintiff, Blue having assigned his rights therein shortly after the application was filed.
After the patent was issued, and after the defendant had been charged with infringement, but before this case was filed, application was made under the provisions of Title 35 U.S.C.A. § 256 to the Commissioner of Patents, and a certificate was issued adding the name of Johnston as a joint inventor with Blue. At the same time Johnston assigned all of his rights in the patent to plaintiff.
Plaintiff’s first assignment of error on this appeal is the finding and conclusion by the trial court that the omission of Johnston’s name as a joint inventor was not such an error as could be corrected under the provisions of Title 35 U.S.C.A. § 256. In view of our conclusion hereinafter expressed that the judgment of the trial court should be affirmed on the ground that the Blue and Johnston Patent did not involve invention and was therefore invalid, we do not deem it necessary to decide this point.
We therefore pass to the second point involved on this appeal, namely, the decision of the trial court that the Blue and Johnston Patent in suit is invalid because it lacked patentable invention. As hereinbefore stated, the original concept of a tractor-mounted adjustable stroke metering pump driven from the wheel of a tractor, acting to meter anhydrous ammonia and to feed the same through ground tools for application to the soil as a fertilizer, was that of Blue. Johnston had no part in this original conception, and the conception was reduced to drawings before Johnston became associated with Blue. The trial court found that the Blue and Johnston Patent was merely the basic pump conceived solely by Blue modified by the addition of three components, namely, (1) a pressure balanced valve, (2) a venting device, and (3) a heat exchanger. The court concluded that the assembly of these well known components to “iron out the bugs” in the pump described in Blue’s earlier Patent was not a patentable invention; that Blue and Johnston had merely brought together segments of prior art; that nothing had been added to the stock of knowledge, and to allow a monopoly on this aggregation would diminish the resources available to skillful men.
In applying 35 U.S.C.A. § 103, this court follows the standards of patentability set out by the United States Supreme Court in Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. There, 340 U.S. at pages 152, 153, 71 S.Ct. at page 130, the Court said:
“Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements. The function of a patent is to add to the sum of useful knowledge. Patents cannot be sustained when, on the contrary, their effect is to subtract from former resources freely available to skilled artisans. A patent for a combination which only unites old elements with no change in their respective functions, such as is presented here, obviously withdraws what already is known into the field of its monopoly and diminishes the resources available to skillful men. This patentee has added nothing to the total stock of knowledge, but has merely brought together segments of prior art and claims them in congregation as a monopoly.”
If a trial court has failed to apply proper legal standards in determining the presence or absence of invention, its finding upon that issue will be reversed on appeal as clearly erroneous. Caldwell v. Kirk Mfg. Co., 8 Cir., 1959, 269 F.2d 506; Koochook Co. v. Barrett, 8 Cir., 1946, 158 F.2d 463, 465; Frank Adam Electric Co. v. Colt’s Patent Fire Arms Mfg. Co., 8 Cir., 1945, 148 F.2d 497, 502-503. We do not find error in the trial court’s findings or application of legal standards.
We next discuss the utility of the three components and the prior knowledge of their respective arts.
The Pressure Balanced Valve
This valve is a bypass line from the pumping chamber to a chamber behind the outlet valve. Thus, the pressure from the ammonia is the same on both sides of the outlet valve. With the pressure equalized, a relatively light spring holds the valve shut until hit by the piston. If a balanced valve were not used, a much more powerful spring would be necessary to hold the valve shut when the ammonia pressure built up, and a much more powerful piston thrust would be needed to open the valve. A spring, without this equalized pressure, was contemplated in the Blue concept, and it appears undisputed that it was a substitute for the spring-biased outlet valve of the Blue Patent. Johnston was familiar with a balanced valve and its operation (Johnston’s own Patent No. 2,508,609), and using it for the first time as an outlet valve does not involve invention. An explanation of a pressure balanced valve appears in a 1941 engineering encyclopedia, and in a mechanical dictionary published in 1882, which dealt with steam pressure. We agree with the finding of the trial court that the utilization of this valve involved nothing more than the ordinary skill in the art.
The Venting Device
The venting device is merely a device to let the air or gaseous ammonia out of the pump chamber, to avoid the problem of vapor lock or gas lock. It also serves to prime the pump with liquid and starts the cooling action of the heat exchanger, so that the pump will meter accurately at the beginning of a fertilizer run. We agree with the findings of the trial court that there was nothing new or novel in this venting device, either in the principle or its application.
The Heat Exchanger
The idea of a heat exchanger was not new when Blue and Johnston began their work together. A heat exchanger on an anhydrous ammonia applicator was known as early as 1948 and was on the device manufactured by the New Holland Company, Baggette Patent, et al., No. 2,612,760, application filed December 9, 1948. The Kniskern Patent, No. 2,007,-251, application dated April 14,1934, had a heat exchanger. Other patents are cited by the defendant showing prior knowledge and art, but we see no reason for prolonging this opinion with a discussion of them. The heat exchanger was not new to Blue and Johnston and there was no inventive genius in the application they made of it. Nothing was added to the total stock of knowledge by them either in its use or by its construction. See, Boston Metals Co. v. Air Products, Inc., 4 Cir., 1951, 193 F.2d 535, holding Anderson Patent, No. 2,480,093 cited here as prior art invalid for lack of invention.
The plaintiff argues that the trial court erred in considering the Blue Patent as an anticipation of the Blue and Johnston Patent and as prior art, because the Blue Patent was not issued until subsequent to the filing of the application for the Blue and Johnston Patent. These two applications were co-pending. It is true that the application for the Blue Patent cannot be considered as prior art in the technical sense, but it is a widely recognized rule that the application for such patent can nevertheless be used as defense material to prove that Blue and Johnston were not the original and first inventors or discoverers of the metering pump described in their patent. Permo, Inc. v. Hudson-Ross, Inc., 7 Cir., 1950, 179 F.2d 386; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 1943, 138 F.2d 197. And such appears to be the way the trial court considered it.
The plaintiff further contends that the Blue and Johnston pump was reduced to practice prior to the filing of the application for the Blue Patent and that therefore the Blue application cannot be considered as defense material against the Blue and Johnston Patent. We think it can be stated, based upon the findings and conclusions of the trial court, and upon our review of the record in this case, that the pump described in the Blue Patent and the pump described in the Blue and Johnston Patent were reduced to practice simultaneously. The Blue and Johnston pump was nothing more than the original Blue pump modified by the addition of the three components hereinbefore discussed, and this modification did not constitute patentable invention. The mere aggregation of these components which in the aggregation perform or produce no new or different function or operation than that theretofore performed or produced by them is not patentable invention. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 151, 71 S.Ct. 127, 95 L.Ed. 162.
The trial court had before it a large volume of documentary and expert evidence introduced by the defendant to show prior knowledge and art, which we do not deem necessary to refer to in detail. Suffice it to say that such evidence constituted a sufficient evidentiary basis for the findings that the Blue and Johnston Patent was invalid for lack of invention. The credibility of expert witnesses and the weight of expert testimony is ordinarily for the trier of the facts to determine. Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 1943, 138 F.2d 197.
The judgment of the trial court is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_erron
|
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's use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. 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".
ROMEO J. ROY, INC., et al., Plaintiffs, Appellants, v. NORTHERN NATIONAL BANK, et al., Defendants, Appellees. In re SOUTH PORTLAND SHIPYARD AND MARINE RAILWAYS, INC. Creditors’ Committee of South Portland Shipyard, Appellant. In re SOUTH PORTLAND SHIPYARD AND MARINE RAILWAYS, INC. Creditors’ Committee of South Portland Shipyard, Debtor, Appellant.
Nos. 83-1743, 83-1753 and 83-1765.
United States Court of Appeals, First Circuit.
Argued March 5, 1984.
Decided Aug. 7, 1984.
Gregory A. Tselikis, Portland, Me., with whom Charles E. Miller, and Bernstein, Shur, Sawyer & Nelson, Portland, Me., were on brief, for Creditors’ Committee of South Portland Shipyard and Creditors’ Committee of South Portland Shipyard ex rel. debtor.
Stephen G. Morrell, Bangor, Me., with whom Thomas M. Brown, and Eaton, Peabody, Bradford & Veague, P.A., Bangor, Me., were on brief, for Romeo J. Roy, Inc., et al.
Gerald F. Petruccelli, Portland, Me., with whom Andrew G. Siket, and Petruccelli, Cohen, Erler & Cox, Portland, Me., were on brief, for Northern Nat. Bank.
Alan L. Lefkowitz, Charles F. Vihon, Gaston Snow & Ely Bartlett, Daniel M. Glosband, Gayle M. Merling, Goldstein & Manello, Frederick G. Fisher, Jr., Hale & Dorr, Andrew A. Rainer, and Goodwin, Procter & Hoar, Boston, Mass., on brief for the Boston Bar Association and the Massachusetts Bar Association, amici curiae.
Before CAMPBELL', Chief Judge, BOWNES, Circuit Judge, and GIERBOLINI, District Judge. ,
Of the District of Puerto Rico, sitting by designation.
PER CURIAM.
The instant appeal is a consolidation of two cases from the Bankruptcy Court for the District of Maine, 32 B.R. 240, 31 B.R. 770. Complaints were filed in the bankruptcy court after the expiration of the stay of judgment in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The bankruptcy court dismissed the cases for lack of subject matter jurisdiction. The United States District Court for the District of Maine, 32 B.R. 1008, 32 B.R. 1012, affirmed on the ground that Local Rule 41, the emergency rule providing for continued operation of the bankruptcy courts, was invalid. The district court determined that it retained jurisdiction to consider bankruptcy matters, but held that it could not exercise jurisdiction in cases filed exclusively in the bankruptcy court.
The recent passage of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (1984), moots the present appeal. Section 101(a) of the Act amends 28 U.S.C. § 1334 to establish jurisdiction in the district courts over “all cases under title 11” and over “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” Section 104(a) of the Act adds to title 28 a new chapter governing bankruptcy judges, including a section providing for references of proceedings from the district courts (new 28 U.S.C. § 157). Because Rule 41 of the local rules was explicitly limited in duration “until Congress enacts appropriate remedial legislation in response to the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,” the rule has lapsed. We decline to review the constitutionality of a rule that no longer has any operative effect. DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). According to the appropriate practice in the federal courts, we vacate the district court’s judgment of dismissal. United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950).
During the period between the expiration of the Marathon stay and the enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Rule 41(b) provided that all bankruptcy filings be made in the bankruptcy courts. Section 115(a) of the Act provides that,
On the date of the enactment of this Act the appropriate district court of the United States shall have jurisdiction of—
(1) cases, and matters and proceedings in cases, under the Bankruptcy Act that are pending immediately before such date in the bankruptcy courts continued by section 404(a) of the Act of November. 6, 1978 (Public Law 95-598; 92 Stat. 2687), and
(2) cases under title 11 of the United States Code, and proceedings arising under title 11 of the United States Code, or arising in or related to cases under title 11 of the United States Code, that are pending immediately before such date in the bankruptcy courts continued by section 404(a) of the Act of November 6, 1978.
This language removes the district court’s concern over exercising jurisdiction in cases filed in the bankruptcy courts. We therefore remand to the district court for further proceedings in accordance with the Bankruptcy Amendments and Federal Judgeship Act of 1984.
Vacated and remanded.
Question: Did the court's use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NORFOLK & W. RY. CO. v. TRAUTWEIN.
No. 8213.
Circuit Court of Appeals, Sixth Circuit.
May 10, 1940.
James I. Boulger, of Columbus, Ohio (Bannon, Bannon & Lynn, of Portsmouth, Ohio, on the brief), for appellant.
W. K. Sullivan, of Cleveland, Ohio (Newcomb, Nord & Hornbeck, of Cleveland, Ohio, on the brief), for appellee.
Before HICKS, HAMILTON, and ARANT, Circuit Judges.
HICKS, Circuit Judge.
Appellee, plaintiff below, sued appellant for damages for personal injuries. Appellant challenges the denial of a directed verdict and the correctness of certain features of the court’s charge and of certain special instructions.
The action was brought under the Federal Employers’ Liability Act. The evidence is, that appellant operated a line of railroad in interstate commerce between the states of Ohio and West Virginia and that appellee was in the employ of appellant as a bridge carpenter.
For about three weeks before appellee was injured he and the crew with which he was working were engaged in repairing a bridge over which appellee operated interstate trains. At the time he was injured appellee was painting the bridge. We think that he was engaged in work so closely related to interstate transportation as to be a part of it, Chicago & N. W. Ry. v. Bolle, 284 U.S. 74, 78, 52 S.Ct. 59, 76 L.Ed. 173, and that the District Court had jurisdiction. We do not deem it nec- • essary to undertake a differentiation of the decided cases on this particular subject.
The bridge was about twelve feet above the ground and the two abutments were about thirty feet apart. In order to do the painting a scaffold was necessary. It was constructed at the south end of the bridge under the supervision of an assistant foreman and by a crew of four men. Three pine boards were used, each of them 2 inches by 10 inches and 16 feet long and weighing from 75 to 100 pounds. The railway running north and south over the bridge had double tracks. The bridge had two outside girders and one center girder between the tracks. The scaffold was constructed under the southbound track by suspending, by means of lines, a board parallel with and just outside the south girder and another board parallel with the middle girder. A third board was laid crosswise from one to the other of the parallel boards. The whole was suspended about a foot and a half or two feet below the girders. The lines were tied to the parallel boards near each end thereof and were secured to some part of the bridge overhead, except the line tied to the south end of the outside board, which ran up the outside of the girder across its top and down the inside, where it was again attached to the board. It was thus looped around the girder. Appellee testified that he did not at any time know that the line was tied back to the board.
There is evidence tending to show that this particular line was tied by one Media, a fellow workman of appellee, but appellee was called away before it was tied. He was sent to paint at another point on the bridge and after working there for an hour or more was sent by the foreman to paint the outside of the south girder. To get to his working place he stepped from the top of the northern abutment of the bridge on to the north end of the outside board. He had with him a bucket of paint and a brush and he painted one section of the girder between two “stiffeners,” a space of about four feet. He then stepped sideways some three or four feet to the next section and just as he started to stoop over to put the bucket down, the board suddenly kicked under the girder and knocked him off. Appellee testified that it seemed to him “like it scissored or sheared right under the girder,” that it scissored or sheared against the cross plank. There is evidence tending to show that in its normal position about half of the width of the board was under the girder, leaving only about six inches upon which appellee could stand and paint.
We think that the motion for a directed verdict was properly overruled. It was peculiarly a question for the jury to determine whether Media, who looped the line, should have anticipated that the weight of the painter upon the board would have so tensioned the looped line as to cause the inside end thereof to tilt the board and pull it under the girder. There were circumstances to indicate that this occurred and fairminded men might reasonably conclude that Media should have anticipated it. If he should, it follows that appellee is responsible under the Federal Employers’ Liability Act, Title 45, Ch. 2, Sec. 51, U.S.C., 45 U.S.C.A. § 51.
We cannot say as a matter of law that appellee assumed the risk of standing upon the board. This was likewise a question for the jury. Appellee testified that he did not know that the lines were tied differently at each end of the board and it was a question for the jury to determine whether the loop arrangement at the south end of the board was observable to and appreciated by him while he was at work. The risk was something more than an ordinary one.
It is urged that the court erred in reading to the jury, in the course of the charge, the allegations of the petition, (1) that the scaffold was not constructed in the customary way; (2) that it was constructed under the direction of appellant’s foreman upon whose skill and knowledge appellee relied; and (3) that appellee did not know its dangerous and unsafe condition. The objection is upon the ground that there was no evidence to support any of these averments. We have pointed out the evidence touching the last two, and with reference to the first, there was evidence tending to show that a three board scaffold with the parallel boards swung lengthwise instead of crosswise of the bridge was unusual. These allegations were traversed in appellant’s answer and it was altogether proper for the court to point out to the jury the issues joined.
Appellant complains that the court erred in reading the Federal Employers’ Liability Act to the jury by the terms of which an employer is liable for injuries resulting from negligence by reason of any defect or insufficiency in its cars, engines, appliances, machinery, tracks, roadbed, works, boats, wharves or other equipment; and in then stating to the jury that if “you find that the defendant violated this statute, and was negligent in any of the respects condemned by the statute charged in the petition, and that such negligence resulted as a proximate cause in injury to the plaintiff, then the defendant would be liable to plaintiff.” (Italics ours.)
It will be noted that the court did not predicate a charge of negligence upon any other features than those “charged in the petition.” We do not think the jury could have been misled as to the issues.
Finally, it is said that, the following special request read to the jury was erroneous, to wit: “The plaintiff in this case assumed the risks and dangers ordinarily incident to his employment. The plaintiff had a right to assume that his employer had exercised proper care with respect to providing a reasonably safe place to work and a reasonably safe scaffold upon which to perform his duties and is not to be treated as assuming a risk attributable to the employer’s negligence, if you find the employer was negligent, until he became aware of it, or it was so plainly observable that he must be presumed to have known of it. The plaintiff was not obliged to exercise care to discover dangers not ordinarily incident to the employment, but which resulted from the employer’s negligence.”
We think the request embodies a fair statement of the applicable law. We find no prejudicial error in the charge or upon the record, and the judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond1_1_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
R. H. LINDSAY CO. v. GREAGER.
No. 4562.
United States Court of Appeals Tenth Circuit.
May 1, 1953.
Rehearing Denied June 8, 1953.
Charles J. Moynihan, Montrose, Colo., for appellant.
Harold C. Greager, Fort Collins, Colo., for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.
PICKETT, Circuit Judge.
R. H. Lindsay Company, a corporation, brought this suit against O. H. Greager to specifically enforce a contract for the sale and purchase of wool and for damages. The complaint alleges than on October 29, 1950, the defendant agreed to sell, and the plaintiff agreed to buy, the defendant’s 1951 wool clip, not to exceed 38,000 pounds, at 80$ per pound; that the purchase and sale agreement was reduced to writing and signed by the defendant; that the defendant notified the plaintiff that he would re-' fuse to deliver the wool in accordance with the' agreement. The material part of the' answer denied the existence of the contract. It was also alleged that contract was ' void under the Statute of Frauds.
To eliminate the necessity of proving the value of the wool for the purposes of the action the parties stipulated that value to be $1 per pound. It was further stipulated that the defendant would deliver his wool to the plaintiff; that the plaintiff would pay the defendant 800 per pound therefor; that in the event the court should find that there was no effective contract of purchase, the plaintiff would pay the defendant an additional 200 per pound for the wool; and that in the event the purchase contract was upheld, the plaintiff would not be fur-, ther obligated to the defendant. Pursuant to the stipulation, the wool was delivered to the plaintiff and the defendant was paid 800 per pound therefor.
Upon trial, the court concluded that the plaintiff did not sustain its burden of proof “that a mutually joint oral contract of purchase and sale of defendant’s wool was made, or intended to be made,” and that the plaintiff’s right to relief rested upon the wool purchase contract. The court refused to enforce the written contract because it lacked mutuality, and entered judgment for the defendant in accordance with the stipulation. This appeal is from that judgment.
The action was clearly one for the enforcement of an oral sale and presents two questions. 1. Was there an oral agreement between the parties for the purchase and sale of defendant’s wool? 2. Was there a sufficient memorandum signed' 'by the party to be charged to satisfy the Colorado Statute of Frauds? We answer both questions in the affirmative.
The evidence is not in substantial conflict. The defendant was a wool grower and G. A. Hanson was a wool purchasing agent for the plaintiff. The agent testified that he and another wool buyer met the defendant in a cafe in Norwood, Colorado and talked to him about purchasing his 1951 wool clip. The defendant then invited them to his home where the discussion continued. The plaintiff’s agent told the defendant that he was paying 750 to 800 for wool, and the defendant asked the agent if he would pay that much for his wool. After some dickering as to the price, the agent told the defendant that he would pay him 800 for his wool, and the defendant replied that that was a good price, and that he would talk with his wife. The defendant left the room, returned and said, “I will sell my wool for that price if you will pay it,” and the agent replied, “All right, I will pay it.” Whereupon the defendant said, “Proceed to make your contract out.” The agent asked the defendant if he desired an advance payment, but the defendant replied that he did not need the money because he did not want to pay interest on it. The agent further testified that he told the defendant he would pay him 800 per pound for the wool and pay for it when it was delivered at Mont-rose, Colorado. The written memorandum was then made out, signed by defendant and a copy delivered to him. This testimony was corroborated by the other wool buyer.
The defendant testified that he met plaintiff’s agent and buyer at a cafe in Norwood; that they went from the cafe to plaintiff’s home where, after some negotiations, the agent, who was also a wool grower, said that he had sold his wool for 800 and asked, “Would you take 800 for your wool?”; that after some hesitation he told the agent, “You just write up that contract”; and that he then v^ent to the kitchen and told his wife that he had contracted his wool for 800. Defendant further testified that he refused an advance on his wool at that time. On March 28, 1951, defendant’s attorney wrote to the plaintiff stating that: ““After careful consideration of said contract it is my opinion that Mr. Greager is not bound thereunder because, among other things, the contract lacks mutuality under Colorado law, and is therefore not binding upon either party. Accordingly, I have advised Mr. Greager that he is privileged to withdraw and he has elected to do so. His notice of withdrawal is enclosed herewith.” The notice of withdrawal signed by the defendant stated that “Inasmuch as you have not accepted, ratified or executed the wool purchase contract, dated October 29, 1950 * * * you are hereby notified that I withdraw from said contract.” The defendant did not deny that Hanson had offered him 80$) for his wool, or that he had agreed to sell for that price. He sought to repudiate the sale because the plaintiff had not signed the memorandum.
The Uniform Sales Act effective in Colorado, states “A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price.” ’35 C.SA. Ch. 143A, Sec. 1; 46 Am.Jur., Sales, Sec. 2. We think, considering all the facts and circumstances in the case, there was a definite offer by plaintiff to purchase the wool at a price of 80{5 per pound and an unqualified acceptance of that price by the seller. The oral agreement of purchase and sale was complete, certain and definite and so considered by the defendant until several months later. The finding of the trial court to the contrary is clearly erroneous. It is true that the parties intended that the terms of the agreement should be incorporated in the so-called “Wool Purchase Contract” but this was not a condition to the validity of the offer and acceptance. The document was only a memorial of the completed oral agreement and did not affect its validity. 1 Restatement, Contracts, Sec. 26; Rosenfield v. U. S. Trust Co., 290 Mass. 210, 195 N.E. 323, 122 A.L.R. 1210, Annotation 1217; Nigro v. Conti, 319 Mass. 480, 66 N.E.2d 353, 165 A.L.R. 752, Annotation 756. It is quite obvious that the memorandum executed by the defendant was for the purpose of satisfying the Statute of Frauds.
This leaves the question of the sufficiency of the memorandum signed by the party to be charged, to satisfy the Statute of Frauds. ’35 C.S.A. Ch. 143A, Sec. 4(1) provides:
“A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.”
Generally speaking, a memorandum is sufficient if it sets forth with reasonable certainty the names of the parties to' the contract, a description of the goods to which the contract relates and the essential terms and conditions constituting the oral contract, including the consideration. 1 Restatement, Contracts, Sec. 207; North American Seed Co. v. Cedarburg Supply Co., 247 Wis. 31, 18 N.W.2d 466, 159 A.L.R. 250; Block v. Sherman, 109 Ind.App. 330, 34 N.E.2d 951; Micheli v. Taylor, 114 Colo. 258, 159 P.2d 912; Eppich v. Clifford, 6 Colo. 493. All the essential provisions of the purchase and sale agreement are found in the memorandum. The defendant contends that the written memorandum is insufficient because it does not contain any requirement that the plaintiff purchase the wool. It provides that the plaintiff will pay by draft, the amount due on the purchase price when the wool is delivered. This is clearly understandable to a sheep man and imports an obligation to purchase.
The judgment is reversed and the cause remanded with instruction to enter judgment for the plaintiff pursuant to the stipulation of the parties. , .
. The written memorandum was attached to the complaint and the material portions thereof read as follows:
“No buyer or employee of R. H. Lindsay Company has authority to change the printed terms of this contract.
“In consideration of One dollars (§1.00) received by me/us as part payment I/we have sold to R. H. Lindsay Company of Boston, Massachusetts, my/our entire 3951 clip of wool, not to exceed 38,000 lbs., from about 3.000 ewes, 500 yearlings, 75 fine and grade bucks which are all the sheep I/we now own and which are in the County of San Miguel, State of Colo., the price to be Eighty cents (80$) per pound, * * *
♦ * * * * * #
“I/we agree to shear the above wool at Norwood, Colo., on or about May 1st and to deliver the wool to said R. H. Lindsay Company, or their representative free on board cars at Montrose, Colo., not later than May 30th, 3951.
“The balance of the purchase money to be paid at time of delivery of the wool, payment by draft on It. II. Lindsay Company.
*******
“Signed O. A. Greager,
Address Norwood, Colorado.
“Witness G. A. Hanson.”
. Defendant’s testimony is as follows:
“Q. Will you tell the Court all of the circumstances leading up to your signing that instrument? — A. I met Mr. Hanson and Mr. Kelley at the Lone Pine Cafe, not by appointment, just happened that way. Naturally, the conversation drifted into wool. He said, ‘We would like to come down to the house to see you.’ I said, ‘O.K.’ After we arrived at the house, the subject was on wool. I don’t remember, just kinda by-play, so to speak, and Mr. Hanson says, ‘I feel kinda weak today. Would you take 78 cents for your wool today?’ I said, ‘No, I would not.’ And there had been a little off conversation. I don’t recall, and then he said, ‘Would you take 80 cents for your wool?’ I hesitated. He says, ‘That is what I sold mine for.’ Ho reached over into his form book. He said, ‘I sold mine for 80é. Here’s my contract.’ I thought for a moment, there was no further conversation for just a little while. I said, ‘You just write up that contract.’ While he was writing it up, I went to the dinette — not the kitchen — and told the Missus, my wife, ‘I am contracting my wool at 80 cents.’ That was the extent, and the contract was signed, and it was my copy — it was handed to mo. Mr. Hanson did say, ‘Do you want an advance?’ I said, ‘No;’ there was no money paid and no money offered to be paid by either one of these two plaintiffs.
“Q. Well, they must have offered to pay yon SO cents if yon had contracted it at SO1 cents? — A. I thought they did. I thought they did. I changed my mind when I saw that signature.”
. In the Micheli case it is said [114 Colo. 258, 159 P.2d 913]:
“As we declared in Eppich v. Clifford, 6 Colo. 493, the memorandum to comply with the statute, ‘must show on its face, or by reference to other writings, first, the names of the parties, vendor and vendee; second, the terms and conditions of the contract; third, the interest or property affected; and fourth, the consideration to be paid therefor,’ and further, ‘If the names and intention of the contracting parties can be determined with reasonable certainty from the language of the instrument, and a valid contract is thereby disclosed, specific performance may be decreed thereon.’ The memorandum in the Eppich case is strikingly similar to that in the case at bar, and it was there held that the agreement to purchase, and names of the parties were sufficiently shown. Here, the words ‘received * * * one Dollar and other valuable consideration for my entire interest’ import obligation to sell, and the words, ‘purchase price balance of $7000 to be paid,’ import obligation to purchase.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES ex rel. CRIST v. RAGEN.
No. 8933.
Circuit Court of Appeals, Seventh Circuit.
Oct. 29, 1946.
George F. Barrett and William C. Wines, both of Chicago, 111., for appellant.
No appearance for appellee.
Before MAJOR and MINTON, Circuit Judges, and BRIGGLE, District Judge.
MAJOR, Circuit Judge.
This is an appeal from an order entered June -26, 1945, granting a discharge to petitioner Crist upon his petition for a writ of habeas corpus. The required certificate of probable cause appears in the record and this court therefore has jurisdiction.
The following pertinent facts appear in the record: Petitioner Crist was convicted in March 1926, of grand larceny and sentenced by the Circuit Court of Iroquois County to serve a term of not less than one year or more than 10 years in the Illinois State Penitentiary at Joliet, Illinois. Petitioner was incarcerated in the Illinois Penitentiary until December 1929, when he was paroled, at his own request, to Detroit, Michigan. Petitioner admittedly violated his parole by failing to submit required reports and also by returning to Illinois. He was arrested on April 19, 1930, in Decatur, Illinois, on suspicion of having, with others, committed several robberies throughout central Illinois. A warrant for parole violation was issued on April 22, 1930, by the Warden of the Illinois Penitentiary and forwarded to the Sheriff at Decatur. Before the Sheriff received this parole violator’s warrant, he had surrendered petitioner to Indiana authorities upon presentation by them of papers signed by the Governor of Illinois permitting extradition. After this extradition, petitioner was convicted of bank robbery in the Indiana court and sentenced to life imprisonment. He started service of this sentence in May 1930, and was released by the Indiana authorities in October 1943. Upon his release by the Indiana officials, he was returned to Illinois, upon a parole violator’s warrant, declared a parole violator by the Illinois parole board and reincar-cerated in the Illinois Penitentiary to serve the remainder of his sentence.
After such incarceration, petitioner filed petitions for writs of habeas corpus in the Iroquois County Circuit Court (county of conviction), Will, County Circuit Court (county of incarceration) and the Illinois Supreme Court, which petitions were denied. He sought certiorari to review the action of the Illinois Supreme Court but did not petition for certiorari to review the action of the other two courts. It is pertinent to note that the record discloses that the petitions, which were denied in the Illinois courts, contained the same allegations as are herein present.
Upon the facts as stated, the District Court decided that it had jurisdiction, that the petitioner had exhausted his state court remedies, and that the State of Illinois waived jurisdiction of petitioner by extraditing him while he was on parole from its penal institution.
The respondent contends (1) that the federal court had no jurisdiction because (a) no federal question was presented by the petition, (b) there was no exhaustion of state court remedies, and (2) that even if the first contention be incorrect the lower court’s determination of the merits is erroneous.
The petition raises this question: Does the allowance by the Governor of Illinois of extradition of petitioner (admittedly a parole violator) while on parole amount to a pardon or commutation of the remainder of petitioner’s sentence as yet unserved and to a waiver of the right of the State of Illinois to reincarcerate petitioner for service of the remainder of his sentence?
We are of the opinion that the question stated presents a problem properly justiciable under the laws of Illinois. ■ The effect of the Governor’s action, in our opinion, presents a non-federal question. Therefore, the lower court should have refused to entertain the petition for a writ of habeas corpus. White v. Ragen, 324 U. S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; United States ex rel. Mazy v. Ragen, 7 Cir., 149 F. 2d 948, 950. We are-further of the view that “we cannot say that the refusal [of the Illinois courts] to entertain the petitions for habeas corpus * * * does not rest on an adequate non-federal ground,” and thé petition should have been dismissed. White v. Ragen, supra, 324 U.S. 760, 766, 65 S.Ct. 982, 89 L.Ed. 1348. Furthermore, assuming that a federal question is presented, the petition still should have been dismissed because of the failure to exhaust state court remedies. White v. Ragen, supra; Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 88 L.Ed. 572; United States ex rel. Mazy v. Ragen, supra; United States ex rel. Johnston v. Carey, 7 Cir., 141 F.2d 967, 968; Kelly v. Dowd, 7 Cir., 140 F.2d 81, 82; Herzog v. Colpoys, 79 U.S.App.D.C. 81, 143 F.2d 137, 138; Davis v. Smyth, 4 Cir., 155 F.2d 3, 5.
The judgment of the lower court is reversed, with directions to dismiss the petition for a writ of habeas corpus.
MINTON, Circuit Judge, concurs in the result.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
The NARDA MICROWAVE CORPORATION, Plaintiff-Appellant-Cross-Appellee, v. GENERAL MICROWAVE CORPORATION, Defendant-Appellee-Cross-Appellant.
Nos. 663, 709, Dockets 81-7222, 81-7262.
United States Court of Appeals, Second Circuit.
Argued Jan. 13, 1982.
Decided April 12, 1982.
Rehearing Denied May 14,1982.
Frank W. Ford, Jr., New York City (Robert Neuner, James J. Maune, Brumbaugh, Graves, Donohue & Raymond, New York City, Eisenman, Allsopp & Strack, Wood-bury, N. Y., of counsel), for plaintiff-appellant-cross-appellee, The Narda Microwave Corp. .
Paul H. Blaustein, New York City (Benita J. Rohm, Hopgood, Calimafde, Kalil, Blaustein & Judlowe, New York City, Morton C. Jacobs, Millman & Jacobs, Philadelphia, Pa., of counsel), for defendant-appellee-cross-appellant, General Microwave Corp.
Before OAKES, NEWMAN and WINTER, Circuit Judges.
OAKES, Circuit Judge:
This hotly contested — perhaps overly contested — litigation involves patents and devices in the field of microwave radiation detection. This field became of general importance to consumers only after the microwave oven became available in the late 1960s. Even before then, however, the detection of microwave radiation was important to the military and to the safety of its personnel; indeed one of the patents in issue arose out of an Air Force contract.
Three of the four patents in issue are held by The Narda Microwave Corporation (Narda), which commenced this action for their infringement against General Microwave Corporation (General) in the United States District Court for the Eastern District of New York, George C. Pratt, Judge. Narda’s Patent No. 3,641,439 (the ’439 patent) for a “Near-Field Radiation Monitor” (that is, a microwave-oven monitor) was held valid but not infringed by General’s devices. The court found that Narda’s second patent, No. 3,794,914 (the ’914 patent), for a radiation detector employing thermocouples with resistive elements, was invalid because anticipated by the invention embodied in General’s Patent No. 3,931,573 (the ’573 patent), even though the filing and issue dates of the ’573 patent were later than those of the ’914 patent. General’s ’573 patent was in turn held valid and infringed by Narda’s monitoring devices. Both the Narda ’914 and the General ’573, as used in the companies’ respective monitoring devices, measure microwave radiation over a broad spectrum of microwave activity. The court held the final patent involved in this appeal, Narda’s Design Patent No. 211,588 (the design patent), which pertained to the design of Narda’s probe, invalid under 35 U.S.C. § 102(b), though novel, because it had been on sale for more than one year prior to the patent’s filing date.
We affirm regarding the validity but noninfringement of Narda’s ’439 patent and the invalidity of Narda’s ’914 patent. With respect to the district court’s finding that General’s ’573 patent was infringed, we reverse on the basis of the doctrine of “file wrapper estoppel.” We affirm the district court’s finding of the invalidity of the Narda design patent, though on a different ground: lack of novelty.
BACKGROUND
The frequency of radio (i.e., electromagnetic) waves is measured in cycles per second, the preferred term for which is Hertz (Hz). The term “microwave radiation” is generally used to refer to radio waves of certain high frequencies. A megacycle or megahertz (MHz) is a unit of frequency equal to one million cycles per second. A gigacycle or gigahertz (GHz) is equal to one thousand megacycles.
Microwaves are given off not only by cooking ovens but also by industrial devices for drying materials, by radar and other communications devices used by the military, and by various other broadcasting devices. The radio frequency (rf) of microwaves varies enormously so that there is a broad band of microwave activity. The district court found as a fact that “[e]xposure to excessive amounts of microwave radiation can cause severe damage to a human, including burning of the eyes and body.”
Before 1968 some devices were available to monitor microwave radiation at points in the “far field” (that is, distant from the source of radiation). But those devices could not accurately measure microwave radiation in the “near field.” The National Bureau of Standards (NBS) had worked unsuccessfully in the area of near-field radiation detection for five years prior to 1968, at which time the advent of microwave ovens greatly increased the need for a near-field radiation monitoring device. Manufacturers required a microwave-oven monitor in order to protect their potential consumers against excessive radiation and to protect themselves against potential products-liability actions. In October 1968 Congress enacted a law to establish standards governing the emission of hazardous radiation from electronic equipment.
The growing need in the field also led the National Center for Radiological Health to convene a meeting of persons skilled in the art. At that meeting on July 31, 1968, Edward Aslan, an employee of Narda and the inventor of Narda’s patents, described a far-field probing device that Narda had acquired from the Sperry Corp. As indicated by the minutes of the meeting, which were in evidence below, a skilled employee of NBS also spoke. He advised his audience of the compelling need for a probe that would be “lightly” or loosely coupled to the field, would not perturb the near field, and could be “metered” or measured through conventional signal-generating means, such as thin-film thermocouples, which would convert radio frequency waves to heat.
I. Narda’s ’439 Patent
Following the July 31 meeting Aslan set to work to solve the problem posed by the NBS. In approximately one month he developed the prototype of the Narda Model 8100 portable microwave radiation detector, to which the ’439 patent is specifically directed. The radiation detector consisted of a probe to absorb rf waves, connected to a meter. The central feature of the Model 8100 probe was its sensor assembly, which is described in the district court’s finding set forth in the margin.
Claim One of the ’439 patent, the broader of its first two claims, was as follows:
A radiation detector comprising antenna means operative in response to an electric field to produce an electric current, including thermally and electrically conductive films forming a dipole; and a thin film thermocouple connected as a load to said antenna means, the hot junction of said thermocouple being formed by overlapping end portions of thin resistive strips of dissimilar metal films having a thickness that is small relative to the skin depth of the wave energy of said electric field, and the cold junctions of said thermocouple being formed by overlapping the other end portions of said thin resistive strips with said thermally and electrically conductive films; said thermocouple and said antenna means being substantially disposed within a plane.
The Model 8100 radiation detector made under the ’439 patent was new in the art. It had a high range of accuracy and a high sensitivity to weak electromagnetic fields. Its sensor was attuned to the 2,450 MHz frequency at which most microwave ovens operated, but could be converted to operation at the 915 MHz frequency of the General Electric microwave oven by the attachment of antenna extender strips to the base of the conical tip.
The Narda 8100 won an industrial research award as one of the one hundred outstanding new products introduced in 1969 and met with immediate commercial success. As the district court found, the device “was an important step forward in the measurement of microwave radiation, and was the first instrument that was satisfactory for accurately measuring rf. energy emitted from microwave ovens.” The court held that the ’439 patent, for which Narda applied on August 8, 1969, and which was issued on February 8, 1972, was valid as to both Claim One and the narrower Claim Two.
II. Narda’s ’914 Patent
On November 19, 1971, before the ’439 patent was issued, Narda filed a continuation-in-part of the original Aslan application. The continuation-in-part application, which issued as Patent ’914 on February 26, 1974, disclosed ’439 and further embodiments of it. In one of those embodiments, the sensor assembly was formed entirely of a single thermocouple made up of resistive films and without a separate antenna. That the films were resistive distinguished them from the conductive films to which the ’439 claim referred, although the resistive films in the ’914 claim were also partly conductive. In another embodiment, overlapping resistive films formed into thermocouples that simultaneously performed the receptor function and the transducer or signal-measuring function. The trial court found that the ’439 patent contemplated separate elements for the dipole antenna and the thermocouple while the ’914 patent consisted of a thermocouple or a series of thermocouples that performed not only the signal-measuring function of the ’439 thermocouple but also the receptor function of the ’439 dipole antenna. Thus the patents were distinct and the ’914 was not entitled to the earlier filing date of the ’439.
III. General’s RAHAM Models 1 and 3
In late 1974 General introduced its RA-HAM Model 1 detector, which used the Model 81 probe based on General’s ’573 patent, discussed infra. The RAHAM Model 1 was similar in appearance to the Narda 8100 in that it used a foam spacer tip and a cable extending from the base of the probe to a meter. However, its sensor assembly included upper and lower dielectric substrates sandwiched between thermally conductive ceramic discs, on which were formed thin-film resistive strips of connected thermocouples arranged in zigzag arrays having perpendicular orientation. The overlapping resistive strips of dissimilar materials formed each thermocouple, with alternating points of contact forming hot junctions and cold junctions. Projections on the thermally conductive ceramic discs conducted heat away from the cold junctions. The thermocouples of the RAHAM Model 1 directly absorbed radiation without perturbing the field, and converted it to heat which in turn generated the current to be conducted through the resistive leads to the meter or measuring device. As in the Narda ’914 patent, the RAHAM Model 1— and the similar Model 3 introduced in 1976 —had no separate dipole antenna connected to a thermocouple as a load but rather used serially connected thermocouples to perform both the receptor and the signal-generating functions. The district court found that the RAHAM radiation detectors did not infringe the Narda ’439 patent, which described a conventional lossless dipole antenna using a thermocouple as a load.
IV. General’s ’573 Patent
The General ’573 patent, like the RA-HAM detectors and Narda’s ’914 patent, operated on a broad band by using a thermocouple array that performed both antenna and signal-generating functions. General applied for the ’573 patent after Narda applied for the ’914, and referred to the ’914 as prior art. The ’573 was actually conceived in May 1970, however, when General drew tentative plans and spent approximately $10,000 in development costs to prepare a submission to the Air Force.
On May 21, 1971, the Rome Air Development Center (RADC) awarded General a contract to produce a monitor with a frequency range of 20 KHz to 12.4 GHz. Narda had previously become aware of the proposed contract and expressed to the Air Force its view that such a monitor could not be built. Air Force personnel did not disclose the configuration or construction of the monitor that General proposed to develop, but General’s technical proposal disclosed the concept of a broad-band radiation hazards monitor employing linked thermocouples to form resistive strips, essentially as described later in the ’573 patent. The contract granted patent rights to the government and required General to notify the Air Force of any inventions conceived or reduced to practice under the contract and of the filing of any patent applications thereon.
In mid-1972 radiation monitors constructed by General were sent to the RADC and then to the NBS for final acceptance tests, which revealed that the monitors failed to meet the contract requirements below 600 MHz. General’s efforts continued over the next eighteen months. During that time General did not disclose its application for the ’573 patent in any of the research and development reports it filed with the government. On the contrary, General represented in a letter that “there were no inventions resulting from work on the referenced contract which reasonably appear to be patentable.” When questioned by the government, however, General finally disclosed its patent application and the government issued a royalty-free confirmatory license.
The Patent Office examiner responsible for prosecution of the ’573 patent rejected Claims 1 to 4 and 14 to 42, citing the Aslan ’914 patent. General then filed an amendment on October 2, 1974, in which it argued that the claims in its application were distinguishable over the Aslan patent. On May 5, 1975, General canceled the rejected Claim 1 and provoked an interference with the Aslan ’914 patent by filing a continuation-patent application that asserted four claims copied from the ’914. Interference was declared on May 18, 1976. Moving to dissolve the interference, Narda argued that two articles by Aslan describing the Narda Model 8100, and the filing for Narda’s ’439 patent, made the counts in interference unpatentable to General’s inventor Hopfer under 35 U.S.C. §§ 102 and 103. The Board of Patent Interference granted Narda’s motions and dissolved the interference without determining which party had the prior invention.
The district court found that Narda’s ’914 patent was invalid as anticipated by Hop-fer’s prior invention that became the basis for the valid ’573 patent. The court also found that Narda’s Models 8300 and 8600, which were substantially as described in the ’914 patent, infringed General’s ’573.
V. Narda’s Design Patent
The design of Narda’s probe, which the district court found to be “novel, distinctive and ornamental,” included a conical tip and a cylindrical handle having three sections of different diameters and different lengths. One section served as a handle. The central section had the longest length and the smallest diameter. A copy of the design is printed below:
General’s defense to infringement of the design patent was that Narda’s Model 8100 probe, which incorporated the design, was on sale prior to March 23, 1969, one year before the patent’s filing date.
Narda began efforts to sell the Model 8100 probe before the end of 1968. When the initial orders were taken the design, and more particularly the conical tip, had not yet been completed. Narda and its inventor Aslan later decided to incorporate a conical spacer tip on the 8100 probes which were to be delivered, and on or about December 30 Aslan signed a manufacturing drawing including the conical tip. On or about January 2, 1969, the conical tip was released for production and on March 22, 1969, the first two production probes were transferred into Narda’s inventory. Deliveries to customers were made after April 1, 1969. The court concluded that the probe detectors incorporating the design covered by the design patent were on sale before March 23, 1969, and therefore held the design patent invalid under 35 U.S.C. § 102(b).
DISCUSSION
I. Narda’s ’439 Patent
Narda’s principal argument on appeal is that the district court erred as a matter of law in failing to accord its ’439 patent a sufficiently broad range of equivalents. Narda maintains that the ’439 patent discloses a broad and technologically important invention and is therefore entitled to a liberal construction, and that General’s RAHAM Models 1 and 3 are fully equivalent to the invention claimed by the ’439 patent. The argument must fail, however, in light of the district court’s findings, which are not “clearly erroneous.”
The district court found that the ’439 patent utilized a dipole antenna formed of conductive films to which was connected a thermocouple formed of resistive films. The thermocouple array used in the RA-HAM detectors and under the ’573 patent, however, has no dipole antenna. The validity of the ’439 patent did not depend on its use of an integrated antenna-thermocouple. In fact, Narda took a contrary position before the Patent Office. Its Claims 1 and 2 recited a dipole antenna means and a separate thin-film thermocouple as a load. Its Claims 11 and 13 likewise referred to antenna means. In arguing that his patent claims were not anticipated by Moles Patent No. 2,365,207, Aslan emphasized in an amendment that his invention combined a “distinct” antenna and a separate thin-film thermocouple. Another amendment similarly emphasized that the thermocouple and the antenna were separate elements. Narda now argues that the doctrine of equivalents should be applied to expand the scope of its ’439 claims, but as Learned Hand, then a district judge, observed in Quinn v. J. H. Faw, Inc., 235 F. 166, 169 (S.D.N.Y.1916),
[tjhis case is the common one in which the applicant assents to conditions imposed in the Patent Office, and then, having got his patent, tries to expand it to cover exactly what he agreed it should not. Such a game of hide and seek the courts have always refused to allow. He had his remedy by appeal, and only by appeal, if the examiner was wrong.
See also Keith v. Charles E. Hires Co., Inc., 116 F.2d 46, 48 (2d Cir. 1940). This holds equally true with respect to Narda’s Claim 13, which it argues was canceled “without prejudice.” See Musher Foundation, Inc. v. Alba Trading Co., 150 F.2d 885, 888 (2d Cir. 1945). See also Capri Jewelry Inc. v. Hattie Carnegie Jewelry Enterprises, Ltd., 539 F.2d 846, 852 (2d Cir. 1976).
II. Narda’s '914 Patent
Narda also asserts that its ’914 patent is entitled as a matter of law to the benefit of the August 8, 1969, filing date of the ’439 patent. It argues that the first element of the combination claimed by the ’914 patent, namely “thin film orthogonal [right angled] thermocouple means forming dipoles,” is supported by the specification of the ’439 patent. We disagree. The ’914 patent described a broad-band radiation monitor, while the ’439 patent related only to narrow-band radiation detection. Like the General ’573 patent, the ’914 patent utilized resistive or “ohmic” interaction with the incoming radiation. The resistive strips had a sufficiently high resistance to provide the broad-band absorbing property with a low degree of reflectivity. The detector described in the ’439 patent, however, incorporated highly conductive antennas with negligible resistance, which created frequency sensitivity, narrow-band operation, and reflection in the field. The use of high resistance in the ’914 patent distinguished it significantly from Narda’s ’439. The Narda expert at trial and Narda’s counsel on appeal consider the word “resistive” to mean essentially the same as “conductive,” but this imprecision might well make Claim 1 of Narda’s ’439 so indefinite as to be invalid. We find that the distinction between conductive films and resistive films is significant, even though resistive films have some conductive qualities, and we conclude that the invention sought to be patented in the ’914 was not disclosed in the ’439. The new matter claimed in the continuation-in-part application therefore was not entitled to the patent filing date, 35 U.S.C. § 120, and the effective date of the ’914 patent was its filing date, November 19, 1971.
III. General’s 573 Patent
The district court properly held the ’914 patent invalid. The ’914 was anticipated by the Hopfer invention, of which Narda became aware before it applied for the ’914 patent. Indeed, Newsday had already carried a photograph of the thermocouple array that General had built and an electronics newsletter had announced General’s “array of thin-film . . . thermocouples.” A General employee had discussed the General thermocouple array with Narda’s chief engineer, who told Narda’s new-products committee what he had learned as early as mid-September 1971. Through these means Narda learned of General’s concept of a thermocouple array that did not use a conducting surface. Narda thereafter directed its own research away from the use of conductive antennae. Inasmuch as the ’914 is not entitled to the filing date of the ’439 patent, but must stand on its own; no device had been built under the ’914 patent before it was filed; and the ’914 was anticipated by the Hopfer invention as disclosed by Newsday, the electronics newsletter, and the General employee, the ’914 patent must fall.
IV. File-Wrapper Estoppel
This does not mean, however, that Narda’s Model 8300 and 8600 radiation detectors, which were produced under the invalid ’914 patent, infringed General’s ’573 patent. General’s patent is subject to the doctrine of file-wrapper estoppel.
It is a well-settled principle of patent interpretation that the extent of an invention is determined by the patent claims, together with the “file wrapper” history in the Patent Office. Under the doctrine of file-wrapper estoppel, a claim that has been narrowed for the purpose of obtaining the patent cannot be expanded to include that which was eliminated. See Graham v. John Deere Co., 383 U.S. 1, 33, 86 S.Ct. 684, 701, 15 L.Ed.2d 545 (1966). See generally 4 Deller, Walker on Patents § 234 (2d ed. 1965). A patentee who has limited a claim to circumvent a prior-art rejection by the examiner is foreclosed from later claiming an .interpretation or using the doctrine of equivalents effectively to reinstate the elements that were previously eliminated. See Exhibit Supply Co. v. Ace Patents Corp., 315 U.S. 126, 136, 62 S.Ct. 513, 518, 86 L.Ed. 736 (1942); Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 220-21, 61 S.Ct. 235, 239, 85 L.Ed. 132 (1940); Capri Jewelry Inc. v. Hattie Carnegie Jewelry Enterprises, Ltd., 539 F.2d at 851-52. The doctrine thus prevents a patentee from taking a position in the courts that contradicts the position he took in the Patent Office.
A review of the file-wrapper history of General’s ’573 patent reveals the following: General first applied for the patent in April 1972. On March 19, 1973, all sixteen of its claims were rejected. General amended its application and added five new claims on July 13, 1973. On October 15, 1973, the Patent Office allowed General’s Claims 12 and 13, rejected Claims 1-4, 14-17, 19, and 21, and stated that Claims 5-11, 18, and 20 would be allowed if rewritten in independent form. In February and March of 1974 General again amended its application, sought reconsideration of the rejected claims, and added claims to its application. On April 18,1974, the Patent Office allowed General’s Claims 5-13 but rejected Claims 1-4 and 14-42, now citing “Aslan (914)” as prior art anticipating the claim under 35 U.S.C. § 102 or from which the claim was obvious under 35 U.S.C. § 103, over which ’573 was unpatentable. On September 30,1974, General canceled Claim 2, added two claims, and amended a number of other claims. In requesting reconsideration of the Patent Office’s rejection of its claims, General repeatedly sought to distinguish its claim from “Aslan (’914).” On December 13, 1974, the Patent Office allowed Claims 5-13 but rejected the other claims “as unpatentable over Aslan (914).” In May and June 1975 General canceled Claim 1 and sought reconsideration of its remaining claims with some amendment. On June 23, 1975, the Patent Office allowed General’s remaining claims.
It is clear from the foregoing that General, whether or not it acknowledged Narda’s Patent ’914 to be “prior art,” narrowed its claims in order to obtain the issuance of a patent by distinguishing its claims from the ’914. In a September 10, 1974 request for an extension of time to respond to the Patent Office’s action of April 18, 1974, General did indicate that it “is now engaged in preparing a response to the Patent Office Action, but finds that a complete response will require the preparation of an Affidavit Under Rule 131 [37 C.F.R. § 1.131] to swear back of the prior art.” Then on May 5, 1975, General advised the Patent Office that it was copying certain ’914 claims under 37 C.F.R. § 1.205 for the purpose of provoking an interference to determine priority between the ’573 and the ’914. While General thus preserved its claim that the ’914 was not prior art, General also represented to the Patent Office that the ’573 was different from the ’914.
Although there are only slight differences between Narda’s Model 8300 and General’s ’573 patent, under the doctrine of file-wrapper estoppel General may not claim that its ’573 patent was infringed by Narda’s Model 8300 and the derivative 8600. General narrowed and amended its claims in order to distinguish them from the ’914. Therefore, General is now estopped from claiming an interpretation of ’573 that extends to radiation detectors described in Narda’s ’914.
V. Narda’s Design Patent
Finally, with respect to the Narda design patent, we disagree with the district court that the design was novel or unique. We think it was obvious. 35 U.S.C. § 103. The handgrip looks like any handgrip. The tip over the sensor shaped like a cone, with a base diameter to accommodate the antenna strips and an altitude equal to the desired space, does not reflect any exceptional talent. Arrows, weathervanes, microphones and other items in common use have the same general shape. See generally Lancaster Colony Corp. v. Aldon Accessories, Ltd., 506 F.2d 1197 (2d Cir. 1974); G. B. Lewis Co. v. Gould Products, Inc., 436 F.2d 1176, 1178 (2d Cir. 1971).
VI. Conclusion
The other numerous arguments made by both parties need not be addressed. The many motions filed by the parties seeking to strike or dismiss issues, briefs, appeals, etc. are denied as moot. Motions for leave to file briefs, answering papers, memoranda, etc. are granted.
Judgment in accordance with opinion; costs to neither party.
. “The Radiation Control for Health and Safety Act of 1968,” 42 U.S.C. §§ 263b-263n.
. The central feature of the Model 8100 is the sensor assembly which was constructed through thin film technology involving the deposition on a dielectric substrate of various metals by an evaporation process so as to create extremely thin films of those metals. The films were formed essentially into two parts: a dipole antenna consisting of copper, connected by silver to a thermocouple made of overlapping strips of bismuth and antimony. The thermocouple was placed in the same plane as the dipole antenna and terminated the antenna ‘as a load’. The entire sensor element was approximately A of an inch in length. An identical sensor element was positioned immediately above the original one, but perpendicular to it, in essentially the same plane, an arrangement that eliminated any problem of polarized electrical fields. The remainder of the invention followed relatively conventional lines, adopting a probe format with the sensor assembly at one end of the probe, connected to a meter by semi-conductive lead wires designed to draw off direct current generated by the antenna-thermocouple device.
(Emphasis added.) The tip of the probe, permitting operation of the sensor within two inches of the device being measured, was composed of styrofoam, which has the same electrical properties as free space.
. An antenna is a conductive structure transmitting or receiving radio waves to or from space. Since AM radio waves have vertical polarization, automotive antennae are usually vertical; television radio waves are horizontal so that TV antennae have horizontal Wires. A dipole is a simple antenna.
. In the ’914 patent — and in Narda’s 8300 radiation monitor — the rows are spaced close to one another, whereas in the ’573 patent and General’s Model 81 probe the spacing between the rows is greater than the width of the individual rows. Furthermore, in Narda’s monitors the free ends of the thermocouples that overlap to form cold junctions have film areas that are larger and therefore dissipate greater heat than the areas of the ends that overlap to form hot junctions. In the '573 patent and the Model 81 probe, thermally conductive ceramic discs engage the cold junctions of the thermocouples and conduct heat away from the free ends to maintain them at a lower temperature than the hot junctions in response to induced currents.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOSEPH ANTELL, INC., Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MALONE KNITTING COMPANY, Respondent.
Nos. 6619, 6657.
United States Court of Appeals First Circuit.
Heard March 4 and April 5,1966.
Decided April 20, 1966.
No. 6619:
Warren M. Davison, Atty., N. L. R. B., Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Ma-noli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., N. L. R. B., Washington, D. C., were on brief, for petitioner.
Lawrence M. Kearns, Boston, Mass., with whom Loretta W. Holway, Boston, Mass., Arthur P. Menard, Boston, Mass, and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for respondent. No. 6657:
Margaret M. Farmer, Atty., N. L. R. B., Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., N. L. R. B., Washington, D. C., were on brief, for petitioner.
Paul R. Cox, Dover, N. H., with whom Stanley M. Burns and Bums, Bryant, Hinchey & Nadeau, Dover, N. H., were on brief, for respondent.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
At two separate sittings we have been presented with two unconnected petitions to enforce orders of the National Labor Relations Board which we will combine in one opinion for, hopefully, the greater clarification of each. Only one issue merits discussion in either case. This question, in both cases, is whether the Board’s finding that the discharge of a particular employee was an unfair labor practice was supported by the necessary evidence, NLRB v. Whitin Machine Works, 1 Cir., 1953, 204 F.2d 883, of knowledge on the part of the employer of the employee’s union activities. In the first case we find it was not, in the second we find that it was.
We consider first Joseph Antell, Inc. This company operates retail ladies’ shoe stores, one of which is in Boston. It has, normally, ten shoe salesmen in the Boston store. On a certain Thursday, after a conversation in which Joseph Antell had told the applicant, one Orr, that there was a union decertification proceeding pending and Orr had replied that he had no interest in the union, Orr was employed as a Boston salesman, starting Monday. On the following Wednesday or Thursday, Orr asked permission to order some shoes for himself from the supplier’s catalogue and Matthew Antell told him he could order whatever he wanted. On Thursday evening, at an off-the-premises meeting, Orr urged his fellow employees to vote in favor of the union. Saturday he was discharged, allegedly because respondent had, through a misunderstanding, overstaffed itself.
In the second case, two outside organizers stood near the plant of Malone Knitting Company of Wolfeboro, New Hampshire on April 6, distributing flyers announcing a union meeting on April 8. On April 9 employee Ruth Oulton distributed five or six union cards while at her machine, and received them back in the same area. In addition, she spoke to three or four employees about the merits of the union. Her testimony that this occurred “in the plant” was not cross-examined. On April 12 Oulton was “laid off” allegedly because of the slowness of her work. Admittedly she did no less work, and did better quality work, than some other employees who were not discharged. Oulton had been with the company ten years, during all of which time her work was slow, but she had never been warned that she was in danger of discharge. Because of the short supply of labor capable of operating an admittedly difficult machine, the company was obliged to replace her with untrained, inexperienced help.
In both cases, the Board found that the benign reason the company assigned for the discharge was not the true reason, and that the real reason was the employee’s union activity. In both cases, admittedly, there was no direct evidence that the employer knew of this activity.
In Antell, the trial examiner based his finding of knowledge upon “the small number of employees in the store, and all the foregoing circumstances,” i. e., other facts, some of which we have mentioned. The majority of the Board affirmed, on the same grounds. The opinion stated that the- third member of the panel agreed with the trial examiner’s conclusion without relying upon the small number of employees. It is, accordingly, a necessary implication that the majority felt obliged to rely, in some measure, upon this factor.
In Malone Knitting Company, the majority of the panel found against the employer, stating,
“[T]he lack of direct evidence as to whether Respondent knew of Oulton’s union activities does not preclude us from finding, on the basis of the strong circumstantial evidence as to such knowledge, the hurried and precipitate nature of the discharge, and Respondent’s unconvincing explanation therefor, that Respondent was in fact motivated in discharging her by its opposition to her union activities.”
One member dissented, characterizing the “circumstantial evidence as to * * knowledge” as ‘ principally, the small size of Respondent’s plant and the community where it was located.” This, in his opinion, was not enough.
We are thus faced squarely with the so-called small plant doctrine, of which it has been said that this court was the father. NLRB v. Abbott Worsted Mills, Inc., 1 Cir., 1942, 127 F.2d 438. Whether we are the parent or not, we recognize it, to the extent that we do, not as a rubric, but only insofar as it furnishes a logical basis for an inference. It could not be inferred, for example, that because of the small number of employees in Antell’s store it was more likely that there was an undetected informer present. If anything, the inference should be the other way. The Board may have thought here that the leader of the decertification movement had reported to the employer, but this should have been a matter of inquiry, which was not made, not of suspicion. NLRB v. Ace Comb Co., 8 Cir., 1965, 342 F.2d 841, 848. Actually, the term small plant doctrine is quite misleading. The smallness of the plant, or staff, may be material, but only to the extent that it may be shown to have made it likely that the employer had observed the activity in question. Cf. NLRB v. Abbott Worsted Mills, supra, 127 F.2d at 439 (“common talk in the mill”). This can have no application to an off-hour, off-the-premises, meeting, which was all that was proved in Antell. Hadley Mfg. Corp., 1954, 108 N.L.R.B. 1641; cf. NLRB v. Roberto Alvaro Mfg. Inc., 1 Cir., 1964, 327 F.2d 998; NLRB v. Chicago Perforating Co., 7 Cir., 1965, 346 F.2d 233. See also NLRB v. National Paper Co., 5 Cir., 1954, 216 F.2d 859, 862-863; NLRB v. Ace Comb Co., supra. To apply a small plant rule in such circumstances would in effect put an entirely arbitrary burden on operators of small establishments — a burden that we could not support.
It follows that since a majority of the Board in Antell was unwilling to find against the respondent without giving weight to “the small number of employees in the store,” which, on the facts shown, was of no probative value and therefore could not add weight, this aspect of the Board’s order in that case cannot be supported. In Malone Kitting Company, the employee’s activity took place openly in the plant, during business hours. Standing alone, since there was no affirmative evidence that management saw her, this might still be a weak and insufficient basis to infer knowledge. However, unlike Antell, where there was not even a possibility of observation, and therefore not even a weak basis for an inference which could be reinforced, here there was at least a possibility which might be thought sufficient if there was other, affirmative, evidence indicating the likelihood that the employer in fact knew.
The majority of the Board found this reinforcement in the nature of the discharge. This was not by the mere disbelief of the employer’s given reason. The mere disbelief of testimony of itself establishes nothing. Janigan v. Taylor, 1 Cir., 1965, 344 F.2d 781, 784, cert. den. 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120. Affirmative proof, however, that the reason given was false warrants the inference that some other reason was being concealed. Cf. Dirring v. United States, 1 Cir., 1964, 328 F.2d 512, cert. den. 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (false alibi). If the employer is independently shown to have an antiunion animus which the discharge would gratify, it may be a fair inference that this was the true reason.
Such a chain of circumstances, which was the case in Malone Knitting Company, where respondent was shown to have given a reason inconsistent with its previous practice, against its apparent interest and inconsistent with its subsequent actions, in our opinion strengthened the inference that the employer’s opportunity for observation of the union activity in fact bore fruit. We accordingly hold the decision of the Board to have been warranted.
In case No. 6619 only that part of the order which relates to the section 8(a) (1) violation will be enforced.
In case No. 6657 the order will be enforced.
. Another issue in each instance, the employer’s contest of a section 8(a) (1) finding based upon incidents unrelated to the ones under consideration, is adequately covered in the Board’s opinions. Forecasts by an employer of dire financial consequences in ease of unionization may be regarded as threats if they are not shown to be based upon fact. NLRB v. Whitelight Prod. Div., 1 Cir., 1962, 298 F.2d 12, 14, cert. den. 369 U.S. 887, 82 S.Ct. 1161, 8 L.Ed.2d 288. In Case No. 6657 there was, in addition, a discharge of an employee not referred to in the body of our opinion. We find the Board’s treatment of that matter dispositive.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_usc2
|
18
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Plaintiff-Appellee, v. William ALOISIO et al., Defendants-Appellants.
Nos. 17799-17802.
United States Court of Appeals, Seventh Circuit.
March 10, 1971.
Rehearing Denied in No. 17802, April 9, 1971.
Frederick F. Cohn, Martin S. Gerber, Ronald P. Alwin, George F. Callaghan, Julius L. Echeles, Jo-Anne F. Wolfson, Chicago, Ill., for appellants.
William J. Bauer, U. S. Atty., Joseph K. Luby, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.
Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
CUMMINGS, Circuit Judge.
In July 1968 the four appellants and four others were indicted for conspiring to counterfeit United States Treasury Notes in the northern district of Illinois, commencing in September 1967, in violation of the general conspiracy provision found in 18 U.S.C. § 371. Bartoli was also charged in Count Two with forging 99 counterfeit United States Treasury Notes in Rockford, Illinois, in January 1968, in violation of 18 U.S.C. § 471. In Count Seven, he was charged with having a counterfeit $10,000 Treasury Note in his possession on January 20, 1968, in Chicago, intending to sell it, in violation of 18 U.S.C. § 474. Jasinski was also charged with having the same Treasury Note in his possession in Chicago on January 16, intending to sell it, in violation of the same provision. Aloisio, Jasinski, and Solomon were named in three other counts concerning actions with respect to the 99 counterfeit $10,000 Treasury Notes, allegedly violating 18 U.S.C. §§ 472, 473, and 474. After a jury trial, the four appellants were found guilty as charged. Solomon and Bartoli received 10-year concurrent sentences on the substantive counts and five-year concurrent sentences on the conspiracy count; Aloisio and Jasinski received 5-year concurrent sentences. Having considered the various grounds urged for reversal, we affirm.
I. The Validity of the Indictment.
A. Use of Hearsay Evidence.
Defendants first challenge the validity of the indictment against them on the ground that it was based “largely if not wholly” upon hearsay testimony.
In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, the Supreme Court categorically refused to invalidate an indictment based upon hearsay evidence under either the Fifth Amendment or its supervisory powers over federal courts. This Court has repeatedly rejected similar attacks upon the quality of evidence relied upon by grand juries. See, e. g., United States v. Daddano, 432 F.2d 1119, 1125 (7th Cir. 1970), certiorari denied, 39 U.S.L.W. 3450; United States v. Braico, 422 F.2d 543, 545 (7th Cir. 1970). Nor is there any suggestion in this case that the “integrity of the judicial process” is jeopardized by the manner in which the Grand Jury reached its determination. See United States v. Leibowitz, 420 F.2d 39, 42 (2d Cir. 1969).
B. Failure to Preserve Testimony.
Defendants next ask that the indictment be dismissed because the Government failed to record and preserve the testimony of witnesses before the Grand Jury. They argue that such a requirement is necessary in order to implement the right of a defendant to access to a witness’ grand jury testimony on subjects about which he subsequently testifies at trial. See United States v. Amabile, 395 F.2d 47, 53 (7th Cir. 1968), certiorari denied, 39 U.S.L.W. 3361.
The basic rules relating to federal grand juries are set forth in Rule 6 of the Federal Rules of Criminal Procedure. Rule 6(d) presently permits, but does not demand, the presence of a stenographer for the purpose of recording evidence. This approach, though justifiably criticized on several grounds, has nevertheless been uniformly observed by other Circuits. See Schlinsky v. United States, 379 F.2d 735, 740 (1st Cir. 1967); United States v. Cianchetti, 315 F.2d 584, 591 (2d Cir. 1963); United States v. Kind, 433 F.2d 339, 340 (4th Cir. 1970); Baker v. United States, 412 F.2d 1069, 1073 (5th Cir. 1969), certiorari denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509; United States v. Hensley, 374 F.2d 341, 352 (6th Cir. 1967); United States v. Franklin, 429 F.2d 274, 276 (8th Cir. 1970); United States v. Ybarra, 430 F.2d 1230, 1233 (9th Cir. 1970); McCaffrey v. United States, 372 F.2d 482, 484 (10th Cir. 1967), certiorari denied, 387 U.S. 945, 87 S.Ct. 2078, 18 L.Ed.2d 1332. While we agree that the preservation of grand jury testimony is the wise practice, we are presently unwilling to bind the various district courts of this Circuit to such a practice. Rather, we will rely upon the individual district courts to exercise their local rule-making powers in this area pending any amendment to Rule 6(e) of the Federal Rules of Criminal Procedure.
II. Sufficiency of the Evidence as to Aloisio and Jasinski.
A. Aloisio
At the inception of the conspiracy in August 1967, defendant Grace Cosentino, whose trial was severed, told informer Ted Kay that she and her partners were planning to counterfeit United States government securities, and that she and her boy-friend “Smokes,” later identified as Aloisio, were going to supply an unidentified banker friend with $1,500,000 worth of such securities. On January 11, 1968, she told Kay that she and “Smokes” were all set with such securities for their banker friend. Kay agreed to supply her with a purchaser for some of the counterfeit Treasury Notes. Mrs. Cosentino agreed to have “Smokes” or Solomon present at the time of delivery to protect the proposed deal. Five days later, she reiterated to Kay and Agent Gibbs that Solomon or “Smokes” would be present at the closing to protect all parties. Gibbs expressed some suspicion of “Smokes,” but Mrs. Cosentino assured him that “Smokes” knew of the counterfeiting venture and could be trusted.
On the evening of January 17, Aloisio phoned Mrs. Cosentino’s home from a restaurant and lounge at 1202 West Grand Avenue, Chicago. He told Mrs. Cosentino’s daughter, Antonia, to call her mother and have her call him at HA 1-8760. Antonia relayed this message to'her mother who was then in Agent Gibbs’ room in the Chicago Airways Motel. Mrs. Cosentino told Gibbs that her close friend “Smokes” was concerned about her and had just asked her, through Antonia, to call him at HA 1-8760. Mrs. Cosentino tried that number and received a busy signal. Thereafter, Aloisio again telephoned Antonia and told her that he had not yet heard from Mrs. Cosentino. Antonia then called her mother again, and Mrs. Cosentino told Gibbs that “Smokes” had called again and was concerned about her.
Thereafter, Mrs. Cosentino called HA 1-8760 from Gibbs’ room. He overheard her say that “she was with the man [Gibbs] at the motel room at that time, and was talking to him about the deal, and told this individual [Aloisio] that he had nothing to worry about; that I [Gibbs] was a gentleman, and she didn’t see where anything could go wrong and told him not to worry.” She also asked him where he was going to be later and told him that she would see him later that day. After she hung up, she told Gibbs “that was her friend Smokes who was very concerned about her.” She stated that “he felt that the deal she was entering into with me [Gibbs] might be a setup, and that because he was such a close friend he was concerned about her welfare and didn’t want her to get into any trouble.” Over objection the foregoing testimony was admitted into evidence. It indicates that Aloisio was involved in the conspiracy as early as August 1967. Moreover, his telephone conversation with Mrs. Cosentino revealed his knowledge of the conspiracy and his concern for its success.
Through Antonia Cosentino and the telephone number testimony, the Government showed that Aloisio was the person to whom Mrs. Cosentino was talking from Gibbs’ motel room. Accordingly, the testimony of Mrs. Cosentino’s conversation with Aloisio was competent (United States v. Bucur, 194 F.2d 297, 304 (7th Cir. 1952) ) and evidenced a conspiracy in which Aloisio was involved. The remainder of Mrs. Cosentino’s statement to Gibbs was also admissible against Aloisio as a statement of a co-conspirator in furtherance of the conspiracy. Aloisio’s January 22 appearance with Jasinski outside the motel, surveying the motel for about 30 minutes with the car motor on, corroborated Mrs. Cosentino’s and Solomon’s statements to Gibbs that morning that they had partners across the street covering the deal. We conclude that there was ample evidence to link Aloisio with this conspiracy and to make him an aider and abettor as to the three substantive counts in which he was named.
B. Jasinski
On January 22, 1968, when Solomon and Mrs. Cosentino were delivering $1,-000,000 in counterfeit Treasury Notes to Agent Gibbs in his motel room, they told Gibbs that two of their partners were across the street from the motel in an automobile for the protection of all concerned. At the same time, Agent Tucker had observed Jasinski and Aloisio watching the motel for about 30 minutes from their parked car with the motor on. Mrs. Cosentino’s and Solomon’s remarks to Gibbs clearly linked Jasinski and Aloisio to the scheme. Jasinski was also linked by his right thumbprint found on a “Saturday Evening Post” covering a sample of the counterfeit Treasury Notes that Mrs. Cosentino delivered to Gibbs on January 16. Since the conspiracy had already been established, this evidence, viewed in the light most favorable to the Government, sufficed to connect Jasinski with the conspiracy. The evidence also established his culpability as an aider and abettor of the commission of the substantive offenses with which he was charged.
III. The Constitutionality of the Identification of Aloisio.
Ted Kay, an unindicted coconspirator, began to cooperate with the Government in this investigation in September 1967. He, Solomon, and Mrs. Cosentino were arrested in Agent Gibbs’ room at the Chicago Airways Motel on the morning of January 22, 1968. The Government has advised us that informer Kay was taken to the United States Marshal’s lockup along with the other defendants for his own protection. At 11:00 a. m. in the lockup, before being placed in a cell, Kay was with “some of the defendants” and John Varelli. In response to a question as to what Varelli said to Aloisio, Kay replied:
“Well, the best as I can recall, I remember him [Varelli] saying, ‘Hi, Smokes.’ And Smokes spoke back to him in Italian. I could understand a couple of the words, but I didn’t recall the whole conversation. In Italian, he [Aloisio] said not to say anything.”
Relying upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, defendant Aloisio now asserts that Kay’s identification of him as “Smokes” should not have been admitted because the conversation occurred in the federal lockup after his arrest without benefit of counsel. We disagree.
The defendants did not show that the purpose of placing Kay in the cell in the Marshal’s lockup was to obtain information for this case. Kay himself testified that the Secret Service did not tell him to overhear what might be said in the Marshal’s office or in the lockup cells. He was placed in a cell by himself and had no idea how many people were in the adjoining cell except that Varelli was in it during part of the hour that Kay remained in his cell. The transcript does not reveal that Kay heard any conversations from other cells. Kay’s subterfuge of being a codefendant had already been pierced, for, while standing in the lockup hallway with other apprehended persons, Aloisio saw Solomon kick Kay in the groin and later admonished Varelli in Italian “not to say anything.” Kay was not placed in the lockup to elicit admissions, nor was Varelli’s knowledge of Aloisio as “Smokes” deliberately elicited. In these circumstances, the admission into evidence of the volunteered statement of a non-defendant clearly did not vitiate Aloisio’s conviction. United States ex rel. Milani v. Pate, 425 F.2d 6 (7th Cir. 1970); United States ex rel. Baldwin v. Yeager, 428 F.2d 182, 184 (3d Cir. 1970); United States v. De Leo, 422 F.2d 487, 496 (1st Cir. 1970), certiorari denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648; United States v. Mitchell, 417 F.2d 1246, 1249 (7th Cir. 1969); United States v. Fioravanti, 412 F.2d 407, 413 (3d Cir. 1969), certiorari denied; Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88; cf. Miller v. Carter, 434 F.2d 824, 825 (9th Cir. 1970).
IV. The Suppression of Fingerprints.
Defendant Jasinski urges that the fingerprints obtained from him after his January 22, 1968, arrest were subject to Fourth Amendment protection because his arrest was without probable cause. This objection was not made at the trial but may be considered here under Rule 52(b) of the Federal Rules of Criminal Procedure.
Even though the complaint against Jasinski was dismissed before his indictment, this record shows that there was probable cause for his January 22nd arrest. On the morning of January 22, in Agent Gibbs’ room at the Chicago Airway Motel, Solomon and Mrs. Cosentino told Gibbs that they had two “partners” across the street covering the action, and Gibbs shortly thereafter so advised Agent Cozza. In turn, he communicated by radio to Agent Tucker on the street. Tucker told Cozza that Jasinski and Aloisio had been in the parking lot for half an hour seated in a car with the motor running and observing the motel. Theirs was the only car in the parking lot with anyone inside. Because of the information communicated to Gibbs by Mrs. Cosentino and Solomon, and because of Aloisio’s and Jasinski’s suspicious behavior on the motel parking lot, Tucker had probable cause to arrest them that morning. Therefore Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 and Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1958), do not require the suppression of the fingerprints.
V. Improper Reference to Photographs.
Defendants Aloisio and Bartoli contend that they were denied a fair trial because references to their so-called “mug shots” informed the jury of their prior criminal records. We have carefully studied the three brief passages in the transcript concerning these photographs and note that the references were not elicited by the Government but occurred in cross-examination by defense counsel. Although the testimony revealed that the photographs were seen by Agents Sheriff and Tucker in the Chicago office of the Secret Service, they were merely described as bust photos with their names written on the reverse sides. The evidence did not disclose that these were “mug shots” or contained police numbers thereon, nor was there any mention of prior criminal activities of these two defendants. No reversible error resulted from the innocuous comments concerning the two photographs. United States v. Robinson, 406 F.2d 64, 66 (7th Cir. 1969); United States v. Schwartz, 398 F.2d 464, 470 (7th Cir. 1969).
VI. Examination of Agent Tucker.
Aloisio urges that reversal is required because of the following question asked by an Assistant United States Attorney:
“By Mr. Weber:
Q. Agent Tucker, going back to January 17th at 9:00 p. m., in the vicinity of Grace Cosentino’s house, what if any information did you have as to whether Mr. Aloisio was there on business or on pleasure ?
Mr. Callaghan: Oh, objection.
*****«•
The Court: The objection is sustained.
Mr. Weber: I have no further questions.”
Aloisio’s defense was that he was merely a social friend of Mrs. Cosentino. However, the Government was entitled to question that defense by asking Agent Tucker whether he had information that Aloisio’s visit was indeed for business purposes, and government counsel was careful to phrase his question in the alternative. In any event, Aloisio’s argument must fail, since the objection was sustained and the jury was instructed that it was to consider only properly admitted evidence.
VII. Entrapment Instructions.
Solomon contends that the trial judge should have given three proffered entrapment instructions. However, the evidence does not reveal that any government agent induced Solomon to commit this offense. In fact, on January 18, 1968, informer Kay offered Solomon an opportunity to avoid participation. The trial court was correct in ruling that there was no evidence of entrapment, so that entrapment instructions were inapposite.
VIII. Comment on Defendants’ Failure to Testify.
Solomon and Aloisio assert that Agent Gibbs commented on their failure to testify. During his cross-examination by defendant Solomon, Gibbs was asked whether he was wearing his “mickey mouse” watch when he met Solomon on January 18, and Gibbs replied, “You will have to put on one of your clients to determine that conclusion.” No objection was made to this answer. The exchange occurred during the Government’s case, when it was not known whether or no Solomon would take the stand. We do not view the remark as a comment on Solomon’s failure to testify. Moreover, the jury was properly instructed that a defendant has the right not to testify and not to draw any inference against him because of a failure to do so.
IX. Cross-Examination of Informer Kay.
Aloisio asserts that the defendants’ rights were denied by the limitation of the cross-examination of informer Kay in three particular instances.
First, the district judge sustained the Government’s objection as to whether Kay was guilty of filing false income tax returns. The defense was permitted to show that there was a pending indictment against Kay with respect to filing a false income tax return, thus permitting defendant to attack his credibility. As we noted in United States v. Varelli, 407 F.2d 735, 751 (7th Cir. 1969), cross-examination on such matters is subject to a self-incrimination exception, so that the court’s ruling was correct.
Because of Kay’s Fifth Amendment rights, the district judge also properly sustained an objection as to whether Kay had transported a $100,000 bond in interstate commerce. Again counsel was permitted to demonstrate Kay’s indictment for that offense as affecting his credibility.
In a belated attempt to show that the Government posted the informer’s bond, Aloisio urges that Kay should have been permitted to say who put up his $50,000 bond. In light of the extensive examination of the witness on all other possible links with the prosecution, if still questioned, the district court’s ruling that the question of the source of bond money was irrelevant was not an abuse of discretion. Moreover, Aloisio’s own counsel’s closing argument indicated that Kay’s mother raised the money.
Our examination of the voluminous cross-examination of witness Kay convinces us that extremely broad latitude was allowed defense counsel. They were given great freedom in their efforts to show that Kay was a biased perjuror with obligations to the Government, and that his testimony had been “bought” by the Secret Service. His unsavory background was thoroughly explored by defense counsel. Kay denied that he was testifying in the present lawsuit in order to be freed of the income tax and stolen bond charges, and the jury was entitled to credit his denial. The strictures of Varelli and similar eases dealing with the scope of cross-examination were abundantly satisfied.
X. The Prosecutor’s Closing Argument.
Aloisio and Bartoli assail the prosecutor’s closing argument to the effect that (1) Kay’s testimony was so well corroborated by Secret Service agents that the jury would have to disbelieve the prosecutor and agents if it disbelieved Kay, (2) it was not the Government’s intention to send innocent men to the penitentiary, and (3) the Government was standing by its agents. These remarks are rather typical of the highflown rhetoric used in closing arguments by both sides. The prosecutor was not impermissibly speaking of facts outside the record or within his own personal knowledge. In the context of his closing, he was referring to what was in the record and rebutting the attack of the defense on the integrity of the prosecution, including “the manufacturing of crime.” The comments of government counsel were quite clearly provoked by the vigorous defense and do not merit reversal. Lawn v. United States, 355 U.S. 339, 359-360, 78 S.Ct. 311, 2 L.Ed.2d 321 note 15; United States v. Battiato, 204 F.2d 717, 719 (7th Cir. 1953).
The judgments are affirmed.
. The American Bar Association’s Special Committee on Federal Rules of Procedure has, for the second time, recommended to the Supreme Court’s Advisory Committee an amendment to Rule 6(e) of the Federal Rules of Criminal Procedure which would mandate recording of all testimony before an accusatorial grand jury. 52 F.R.D. -, -; see also 38 F.R.D. 95, 106.
. Commendably, the United States District Court for the Northern District of Illinois has already adopted an appropriate rule tp that effect:
Local Rule 1.04(c). Official Reporter to Attend Sessions of the Grand Jury. An Official Reporter of this Court shall attend and record all testimony of witnesses appearing before every Grand Jury. Such record shall be filed with the Clerk of the Court and transcribed and released to the Court upon order or to the United States Attorney upon request and payment of the appropriate fees to the Official Reporter.
See United States v. Gramolini, 301 F.Supp. 39 (D.R.I.1969), for a perceptive study of this problem.
. This objection was not made at the trial but will be considered in view of its constitutional nature. Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (per curiam).
. United States v. Blassick, 422 F.2d 652, 654 (7th Cir. 1970).
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_genapel1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Maida Ludvik SHERIS, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee. Maida Ludvik SHERIS, Appellee, v. The TRAVELERS INSURANCE COMPANY, Appellant.
Nos. 73-1462, 73-1463.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 7, 1973.
Decided Feb. 12, 1974.
James H. Simmonds, Arlington, Va., and Richard A. Mehler, Washington, D. C. (Lawrence S. Schaffner, Washington, D. C., on brief), for Maida Ludvik Sheris.
James C. Gregg, Washington, D. C., for The Travelers Ins. Co.
Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges.
BUTZNER, Circuit Judge:
This appeal questions the apportionment of an attorney’s fee between a workmen’s compensation carrier and the administratrix of an estate who recovered damages for the wrongful death of an employee. The district court used only the compensation installments actually paid as a basis for assessing the carrier’s proportionate share of the fee. We conclude that the entire compensation award furnished the appropriate basis for apportionment, subject to a credit allowable to the carrier. Accordingly, we vacate the judgment and remand the ease for further proceedings.
William T. Sheris perished in the crash of a transatlantic aircraft. Because his death occurred during the course of his employment, the Industrial Commission of Virginia awarded his widow and minor children compensation payable by his employer’s insurance carrier, the Travelers Insurance Company, in 400 weekly installments of $45, totaling $18,000. Mrs. Sheris, suing in district court as administratrix of her husband’s estate, also received $75,000 from the airline responsible for his death. From her share of the recovery against the airline, she paid an attorney’s fee of $25,000. Thus, while this litigation is cast in terms of apportioning an attorney’s fee, it is really an attempt by Mrs. Sheris to obtain from Travelers partial reimbursement for her outlay.
Before the court made final distribution of the $75,000, a dispute over Travelers’ right to subrogation was submitted to the Industrial Commission. In that forum, Mrs. Sheris contended .that the subrogation provisions of the Workmen’s Compensation Act were inapplicable because the airline’s liability rested on contractual aspects of the Warsaw Convention and the damages recovered by the estate were in the nature of insurance. The Industrial Commission ruled against Mrs. Sheris, holding that Travelers was subrogated to the estate’s rights against the airline. Consequently, it ordered that Travelers should be reimbursed for the weekly installments it had already paid, aggregating $5,040, and it relieved the company of future payments. Thus, Travelers was saved harmless from liability on the entire $18,000 award. The Supreme Court of Virginia affirmed, Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972). Neither the Commission nor the Court apportioned counsel fees.
Returning to the district court, the parties sought distribution of the award. Travelers asked to be repaid the sum of $5,040 without contribution for counsel fees, because Mrs. Sheris had opposed its right of subrogation. Mrs. Sheris urged that the carrier be assessed a fee of $6,000 based on the entire compensation award of $18,000. The court accepted neither party’s position. It ruled Travelers’ contribution for fees should be based on $5,040, the amount of compensation it had paid, rather than its potential liability of $18,000. It made no adjustment for Travelers on account of Mrs. Sheris’ opposition to subrogation. Accordingly, from the $75,000 recovery against the airline, the court awarded Travelers $5,040 less 33%% which it deducted for Travelers’ share of the fee. Dissatisfied, both parties appealed.
The Virginia Workmen’s Compensation Act allows either the employer or the employee to sue the person responsible for the employee’s injury except for reasons not pertinent to this case. If the employer sues, he may retain from the damages he recovers a sum sufficient to reimburse himself for the compensation paid, or payable, to the employee, but he must account to the employee for money collected in excess of the award. If the employee sues, the employer is entitled to be reimbursed for compensation already paid and to be discharged from liability for future payments to the extent that the judgment against the wrongdoer is sufficient to satisfy the compensation award. The balance may be retained by the employee. In either instance, the employer’s workmen’s compensation insurance carrier stands in the shoes of the employer.
For many years an employer who sued the wrongdoer has been authorized to deduct reasonable attorney’s fees before remitting to the employee. But before 1960 an employee who brought suit was not entitled to charge any attorney’s fees against the employer’s share of the recovery. Frequently these rules placed all of the expense of suing a wrongdoer on the injured employee or his survivors even though the employer or his compensation carrier benefited substantially. To remedy this inequity, the legislature amended the Workmen’s Compensation Act by apportioning attorney’s fees between the employer and employee as their respective interests may appear regardless of who instituted the suit.
The Supreme Court of Virginia has not been called upon to decide the correct basis for apportioning an attorney’s fee when the employee’s recovery against the wrongdoer is in excess of both the paid and unpaid portions of a compensation award. Several courts, however, have interpreted apportionment statutes similar, though not identical,-to Virginia’s. They have ruled that apportionment must be based on the full liability of the employer—the compensation it has paid in the past and the amount that it would be required to pay in the future were it not for the employee’s successful suit.
The reasoning of these cases is sound. It rests on the conclusion that there is no rational distinction between the benefit an employer enjoys from being reimbursed for compensation payments already made and the benefit of being released from the obligation to make future compensation payments. Therefore, as one court has pointed out, it is reasonable to assume that the legislature intended the attorney’s fee to be prorated to the extent of the benefits the employer received from the recovery against the wrongdoer. Stated negatively, there is nothing to indicate that when the Virginia legislature directed proration of the fees as the interests of the parties may appear, it intended that only part of the interest of the compensation carrier should be taken into account.
While some compensation awards may be modified with respect to future payments, the employee’s right of apportionment should not be defeated. The prospect of modification, however, is a factor that a court should consider in light of the contingency that may affect the award. In the case before us, the possibility of modification of the award presents no problem. Upon Travelers’ application, the Industrial Commission released it from future payments because Mrs. Sheris and her children recovered $75,000 from the airline.
Travelers asserts that cases from other jurisdictions are not persuasive because Va.Code Ann. § 65.1-42 (1973) expressly provides that the employer’s share of attorneys’ fees shall be deducted from the compensation actually paid. This provision, Travelers argues, shows conclusively that proration of attorneys’ fees must be based on installments of an award already paia, and not on the unpaid installments.
The difficulty with Travelers’ position is that it overlooks the significance of the 1960 amendment to the Compensation Act. The principal substantive change was the enactment of a new section recodified as § 65.1-43 providing that upon the recovery of damages by either the employer or the employee against the wrongdoer, the court should apportion reasonable attorney’s fees between the employer and the employee as their interests appear. To carry out this substantive change, the amendment modified two existing sections dealing respectively with suits brought by the employer and suits brought by the employee. These modifications are procedural. They are designed to insure that the attorney’s fees shall be apportioned in accordance with the substantive changes made in § 65.1-43 when the proceeds of the judgment against the wrongdoer are disbursed.
Section 65.1-42, on which Travelers relies, simply authorizes a deduction of a proportionate share of the fee from the reimbursement payable to the employer “as provided in § 65.1-43.’’ It is obvious, therefore, that § 65.1-42 is not, as Travelers contends, a limitation on the general apportionment statute, § 65.1-43. Section 65.1-42 does not deal expressly or by implication with the employer’s obligation for attorney’s fees arising out of the release of future payments that would have been due under the compensation award were it not for the employee’s successful suit. This question is governed by § 65.1-43, which explicitly states that apportionment must be made as the respective interests of the employer and employee appear.
Travelers’ interest in the recovery of $75,000 against the airline is substantially the same with respect to both the paid and unpaid portions of the compensation award. Travelers was relieved from liability from both parts of the award for precisely the same reason —Mrs. Sheris’ suit against the airline. Fortuities affecting the time required to bring that litigation to a successful conclusion determined in part the amount of compensation that remained unpaid. But these fortuities, similar to those attending all litigation, furnish no rational criteria for determining a just apportionment of the attorney’s fee. We conclude, therefore, that Travelers’ obligation to pay a part of the attorney’s fee must be based on the full compensation award of $18,000.
We turn next to Travelers’ cross appeal which charges that because of Mrs. Sheris’ opposition to its right of subrogation, the court erred in assessing any fees against it. Travelers’ argument, we believe, does not defeat Mrs. Sheris’ claim, but it is a factor the court must consider in apportioning the attorney’s fee between the parties.
The Compensation Act’s direction to apportion fees as the interests of the parties may appear is broad enough to encompass this situation. Travelers has benefited by Mrs. Sheris’ suit against the airline, and under the Act it must pay its share of the fee. But the company also had to spend its own money when Mrs. Sheris assumed an adversary position on the issue of subrogation. Therefore, the district court should allow as a deduction from the fee that Travelers would otherwise owe, the amount it reasonably expended to perfect its right of subrogation. In this way the mandate of the statute requiring consideration of the interests of both parties will be fully observed.
The judgment of the district court is vacated, and the ease is remanded for further proceedings consistent with this opinion. Each party shall bear its own costs.
. Va. Code Ann. §§ 65.1-41 and 42 (1973). The text is quoted in notes 14 and 15, infra.
. Va. Code Ann. § 65.1-41 (1973). The text is quoted in note 14, infra.
. Va. Code Ann. § 65.1-42 (1973). The text is quoted in note 15, infra. Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972).
. Va. Code Ann. § 65.1-112 (1973).
. See VEPOO v. Mitchell, 159 Va. 855, 164 S.E. 800, 167 S.E. 424, 425 (1933) (dictum).
. See Stancil v. United States, 200 F.Supp. 36, 44 (B.D.Va.1961) (dictum). Travelers’ reliance upon Stancil is misplaced. In Stancil claim was made only for apportionment of attorney’s fees on the basis of the compensation already paid, and, therefore, the court had no occasion to discuss the issue presented in the case now before us.
. Oh. 89, § 39.1 [1960] Va.Acts 108. This section has been recodified as Va.Code Ann. § 65.1—43 (1973). It provides:
“In any such action, or claim for damages, by such employee, his personal representative or other person against any person other than the employer, and in any such action brought, or claim asserted, by the employer under his right of subrogation provided for in § 65.1-41, if a recovery is effected, either by judgment or voluntary settlement, the reasonable expenses and reasonable attorney’s fees of such claimants shall be apportioned pro rata between the employer and the employee, his personal representative or other person, as their respective interests may appear.”
. Dowhy v. Moyer, Inc., 278 F.2d 753 (3rd Cir. 1960) ; Yeager v. Heckman, 158 F.Supp. 933 (E.D.Pa. 1957) ; Caputo v. Best Foods, Inc., 17 N.J. 259, 111 A.2d 261 (1955) ; Dante v. Gotelli, Inc., 17 N.J. 254, 111 A.2d 267 (1955) ; McMullen v. Maryland Casualty Co., 123 N.J.Super. 248, 302 A.2d 181 (1973) ; Wall v. Conn. Welding & Machine Co., 197 Pa.Super. 360, 179 A.2d 235 (1962) ; Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425 (1958) ; cf. Security Ins. Co. of Hartford v. Norris, 439 S.W.2d 68 (Ct.App.Ky. 1969) (apportionment based on equitable, not statutory, grounds) ; see Atleson, Workmen’s Compensation : Third Party Actions and the Apportionment of Attorney’s Fees 19 Buffalo L. Rev. 515, 532 (1970).
. See Yeager v. Heckman, 158 F.Supp. 933, 935 (E.D.Pa. 1957).
. See Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425, 428 (1958).
. See note 15, infra.
. Ch. 89, §§ 65-38, 39 and 39.1 [1960] Va. Acts 108. The Workmen’s Compensation Act was revised and recodified in 1968. Ch. 660, §§ 65.1-41, 42, and 43 [1968] Va. Acts 1130. The text of these sections was not affected by the 1968 recodification. For convenience, the recodified section numbers have been used in this opinion.
. The text of this section is quoted in note 7, supra.
. Section 65.1-41 of the Va. Code Ann. (1973) provides:
“The making of a lawful claim against an employer for compensation under this Act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce, in his own name or in the name of the injured emjdoyee or his personal representative, the legal liability of such other party. The amount of compensation paid by the employer or the amount of compensation to which the injured employee or his dependents are entitled shall not be admissible as evidence in any action brought to recover damages. Any amount collected by the employer under the provisions of this section in excess of the amount paid by the employer or for which he is liable shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less a proportionate share of such amounts as are paid by the employer for reasonable expenses and attorney’s fees as provided in § 65.1-43
[The 1960 Amendment is italicized].
. Section 65.1-42 of the Va. Code Ann. (1973) provides:
“In any such action by such employee, his personal representative or other person against any person other than the employer, the court shall, on petition or motion of the employer at any time prior to verdict, ascertain the amount of compensation paid and expenses for medical, surgical and hospital attention and supplies, and funeral expenses, incurred by the employer under the provisions of this Act, and deduct therefrom a proportionate share of such amounts as are paid by the plaintiff for reasonable expenses and attorney’s fees as provided in § 65.1-43; and in event of judgment against such person other than the employer the court shall in its order require that the judgment debtor pay such compensation and expenses of the employer, less said share of expenses and attorney’s fees, so ascertained by the court out of the amount of the judgment, so far as sufficient, and the balance, if any, to the judgment creditor-[The 1960 Amendment is italicized].
Question: What is the 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:
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sc_caseorigin
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160
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
PARHAM v. HUGHES
No. 78-3.
Argued January 15, 1979
Decided April 24, 1979
Stewart, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Rehnquist and SteveNS, JJ., joined. Powell, J., filed an opinion concurring in the judgment, post, p. 359. White, J., filed a dissenting opinion, in which BrenNAN, Marshall, and Blackmun, JJ., joined, post, p. 361.
Thomas E. Greer argued the cause for appellant. With him on the brief was Robert D. Tisinger.
A. Montague Miller argued the cause and filed a brief for appellee.
Mb. Justice Stewaet
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Mr. Justice Rehnquist, and Mr. Justice Stevens joined.
Under § 105-1307 of the Georgia Code (1978) (hereinafter Georgia statute), the mother of an illegitimate child can sue for the wrongful death of that child. A father who has legitimated a child can also sue for the.wrongful death of the child if there is no mother. A father who has not legitimated a child, however, is precluded from maintaining a wrongful-death action. The question presented in this case is whether this statutory scheme violates the Equal Protection or Due Process Clause of the Fourteenth Amendment by denying the father of an illegitimate child who has not legitimated the child the right to sue for the child’s wrongful death.
I
The appellant was the biological father of Lemuel Parham, a minor child who was killed in an automobile collision. The child’s mother, Cassandra Moreen, was killed in the same collision. The appellant and Moreen were never married to each other, and the appellant did not legitimate the child as he could have done under Georgia law. The appellant did, however, sign the child’s birth certificate and contribute to his support. The child took the appellant’s name and was visited by the appellant on a regular basis.
After the child was killed in the automobile collision, the appellant brought an action seeking to recover for the allegedly wrongful death. The complaint named the appellee (the driver of the other automobile involved in the collision) as the defendant, and charged that negligence on the part of the appellee had caused the death of the child. The child's maternal grandmother, acting as administratrix of his estate, also brought a lawsuit against the appellee to recover for the child’s wrongful death.
The appellee filed a motion for summary judgment in the present case, asserting that under the Georgia statute the appellant was precluded from recovering for his illegitimate child’s wrongful death. The trial court held that the Georgia statute violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, accordingly, denied a summary judgment in favor of the appellee. On appeal, the Georgia Supreme Court reversed the ruling of the trial court. 241 Ga. 198, 243 S. E. 2d 867. The appellate court found that the statutory classification was rationally related to three legitimate state interests: (1) the interest in avoiding difficult problems of proving paternity in wrongful-death actions; (2) the interest in promoting a legitimate family unit; and (3) the interest in setting a standard of morality by not according to the father of an illegitimate child the statutory right to sue for the child’s death. Accordingly, the court held that the statute did not violate either the Equal Protection or Due Process Clause of the Fourteenth Amendment. We noted probable jurisdiction of this appeal from the judgment of the Georgia Supreme Court. 439 U. S. 815.
II
State laws are generally entitled to a presumption of validity against attack under the Equal Protection Clause. Lockport v. Citizens for Community Action, 430 U. S. 259, 272. Legislatures have wide discretion in passing laws that have the inevitable effect of treating some people differently from others, and legislative classifications are valid unless they bear no rational relationship to a permissible state objective. New York City Transit Authority v. Beazer, 440 U. S. 568; Vance v. Bradley, 440 U. S. 93; Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314; Dandridge v. Williams, 397 U. S. 471, 485.
Not all legislation, however, is entitled to the same presumption of validity. The presumption is not present when a State has enacted legislation whose purpose or effect is to create classes based upon racial criteria, since racial classifications, in a constitutional sense, are inherently "suspect.” McLaughlin v. Florida, 379 U. S. 184; Brown v. Board of Education, 347 U. S. 483. And the presumption of statutory validity may also be undermined when a State has enacted legislation creating classes based upon certain other immutable human attributes. See, e. g., Oyama v. California, 332 U. S. 633 (national origin); Graham v. Richardson, 403 U. S. 365 (alienage); Gomez v. Perez, 409 U. S. 535 (illegitimacy) ; Reed v. Reed, 404 U. S. 71 (gender).
In the absence of invidious discrimination, however, a court is not free under the aegis of the Equal Protection Clause to substitute its judgment for the will of the people of a State as expressed in the laws passed by their popularly elected legislatures. “The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U. S., at 97 (footnote omitted). The threshold question, therefore, is whether the Georgia statute is invidiously discriminatory. If it is not, it is entitled to a presumption of validity and will be upheld “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Ibid.
Ill
The appellant relies on decisions of the Court that have invalidated statutory classifications based upon illegitimacy and upon gender to support his claim that the Georgia statute is unconstitutional. Both of these lines of cases have involved laws reflecting invidious discrimination against a particular class. We conclude, however, that neither line of decisions is applicable in the present case.
A
The Court has held on several occasions that state legislative classifications based upon illegitimacy — i. e., that differentiate between illegitimate children and legitimate children — violate the Equal Protection Clause. E. g., Trimble v. Gordon, 430 U. S. 762; Weber v. Aetna Casualty & Surety Co., 406 U. S. 164. The basic rationale of these decisions is that it is unjust and ineffective for society to express its condemnation of procreation outside the marital relationship by punishing the illegitimate child who is in no way responsible for his situation and is unable to change it. As Mr. Justice Powell stated for the Court in the Weber case:
“The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent.” Id., at 175.
It is apparent that this rationale is in no way applicable to the Georgia statute now before us. The statute does not impose differing burdens or award differing benefits to legitimate and illegitimate children. It simply denies a natural father the right to sue for his illegitimate child's wrongful death. The appellant, as the natural father, was responsible for conceiving an illegitimate child and had the opportunity to legitimate the child but failed to do so. Legitimation would have removed the stigma of bastardy and allowed the child to inherit from the father in the same manner as if born in lawful wedlock. Ga. Code § 74-103 (1978). Unlike the illegitimate child for whom the status of illegitimacy is involuntary and immutable, the appellant here was responsible for fostering an illegitimate child and for failing to change its status. It is thus neither illogical nor unjust for society to express its “condemnation of irresponsible liaisons beyond the bounds of marriage” by not conferring upon a biological father the statutory right to sue for the wrongful death of his illegitimate child. The justifications for judicial sensitivity to the constitutionality of differing legislative treatment of legitimate and illegitimate children are simply absent when a classification affects only the fathers of deceased illegitimate children.
B
The Court has also held that certain classifications based upon sex are invalid under the Equal Protection Clause, e. g., Reed v. Reed, 404 U. S. 71; Stanton v. Stanton, 421 U. S. 7; Frontiero v. Richardson, 411 U. S. 677; Craig v. Boren, 429 U. S. 190. Underlying these decisions is the principle that a State is not free to make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class. Thus, in Reed v. Reed, supra, the Court was faced with the question of the constitutionality of an Idaho probate code provision that gave men a mandatory preference over women, in the same degree of relationship to the decedent, in the administration of the decedent’s estate. The Court held that “[b]y providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause.” 404 U. S., at 77. Similarly, in Frontiero v. Richardson, supra, the Court invalidated the federal Armed Services benefit statutes that were based on the assumption that female spouses of servicemen were financially dependent while similarly situated male spouses of servicewomen were not. 411 U. S., at 690-691. And in the Stanton case, the Court held constitutionally invalid a Utah statute which provided that males had to reach a greater age than females to attain majority status. In reaching this result, the Court rejected the “old notion” that the female is “destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.” 421 U. S., at 14-15. See also Orr v. Orr, 440 U. S. 268.
In cases where men and women are not similarly situated, however, and a statutory classification is realistically based upon the differences in their situations, this Court has upheld its validity. In Schlesinger v. Ballard, 419 U. S. 498, for example, the Court upheld the constitutionality of a federal statute which provided that male naval officers who were not promoted within a certain length of time were subject to mandatory discharge while female naval officers who were not promoted within the same length of time could continue as officers. Because of restrictions on women officers’ seagoing service, their opportunities to compile records entitling them to promotion were more restricted than were those of their male counterparts. Thus, unlike the Reed and Frontiero cases where the gender-based classifications were based solely on administrative convenience and outworn cliches, the different treatment in the Schlesinger case reflected “not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service.” 419 U. S., at 508 (emphasis in original).
With these principles in mind, it is clear that the Georgia statute does not invidiously discriminate against the appellant simply because he is of the male sex. The fact is that mothers and fathers of illegitimate children are not similarly situated. Under Georgia law, only a father can by voluntary unilateral action make an illegitimate child legitimate. Unlike the mother of an illegitimate child whose identity will rarely be in doubt, the identity of the father will frequently be unknown. Lalli v. Lalli, 439 U. S. 259. By coming forward with a motion under § 74-103 of the Georgia Code, however, a father can both establish his identity and make his illegitimate child legitimate.
Thus, the conferral of the right of a natural father to sue for the wrongful death of his child only if he has previously acted to identify himself, undertake his paternal responsibilities, and make his child legitimate, does not reflect any overbroad generalizations about men as a class, but rather the reality that in Georgia only a father can by unilateral action legitimate an illegitimate child. Since fathers who do legitimate their children can sue for wrongful death in precisely the same circumstances as married fathers whose children were legitimate ab initio, the statutory classification does not discriminate against fathers as a class but instead distinguishes between fathers who have legitimated their children and those who have not. Such a classification is quite unlike those condemned in the Reed, Frontiero, and Stanton cases which were premised upon overbroad generalizations and excluded all members of one sex even though they were similarly situated with members of the other sex.
IV
Having concluded that the Georgia statute does not invidiously discriminate against any class,.we still must determine whether the statutory classification is rationally related to a permissible state objective.
This Court has frequently recognized that a State has a legitimate interest in the maintenance of an accurate and efficient system for the disposition of property at death. E. g., Lalli v. Lalli, supra; Trimble v. Gordon, 430 U. S. 762; Labine v. Vincent, 401 U. S. 532. Of particular concern to the State is the existence of some mechanism for dealing with “the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates.” Lalli v. Lalli, supra, at 265. See also Gomez v. Perez, 409 U. S., at 538.
This same state interest in avoiding fraudulent claims of paternity in order to maintain a fair and orderly system of decedent’s property disposition is also present in the context of actions for wrongful death. If paternity has not been established before the commencement of a wrongful-death action, a defendant may be faced with the possibility of multiple lawsuits by individuals all claiming to be the father of the deceased child. Such uncertainty would make it difficult if not impossible for a defendant to settle a wrongful-death action in many cases, since there would always exist the risk of a subsequent suit by another person claiming to be the father. The State of Georgia has chosen to deal with this problem by allowing only fathers who have established their paternity by legitimating their children to sue for wrongful death, and we cannot say that this solution is an irrational one. Cf. Lalli v. Lalli, 439 U. S. 259.
The appellant argues, however, that whatever may be the problem with establishing paternity generally, there is no question in this case that he is the father. This argument misconceives the basic principle of the Equal Protection Clause. The function of that provision of the Constitution is to measure the validity of classifications created by state laws. Since we have concluded that the classification created by the Georgia statute is a rational means for dealing with the problem of proving paternity, it is constitutionally irrelevant that the appellant may be able to prove paternity in another manner.
y
The appellant also alleges that the Georgia statute violates the Due Process Clause of the Fourteenth Amendment. Nowhere in the appellant’s brief or oral argument, however, is there any explanation of how the Due Process Clause is implicated in this case. The only decision of this Court cited by the appellant that is even remotely related to his due process claim is Stanley v. Illinois, 405 U. S. 645. In the Stanley case, the Court held that a father of illegitimate children who had raised these children was entitled to a hearing on his fitness as a parent before they could be taken from him by the State of Illinois. The interests which the Court found controlling in Stanley were the integrity of the family against state interference and the freedom of a father to raise his own children. The present case is quite a different one, involving as it does only an asserted right to sue for money damages.
Eor these reasons, the judgment of the Supreme Court of Georgia is affirmed.
It is so ordered.
Section 105-1307 provides:
“A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, unless said child shall leave a wife, husband or child. The mother or father shall be entitled to recover the full value of the life of such child. In suits by the mother the illegitimacy of the child shall be no bar to a recovery.” (Emphasis added.)
Under Ga. Code § 74A103 (1978), a natural father can have his child legitimated by court order. Section 74M03 provides:
“A father of an illegitimate child may render the same legitimate by petitioning the superior court of the county of his residence, setting forth the name, age, and sex of such child, and also the name of the mother; and if he desires the name changed, stating the new name, and praying the legitimation of such child. Of this application the mother, if alive, shall have notice. Upon such application, presented and fled, the court may pass an order declaring said child to be legitimate, and capable of inheriting from the father in the same manner as if born in lawful wedlock, and the name by which he or she shall be known.”
Under Ga. Code § 74-202 (1978), a father is required to support an illegitimate child until the child reaches 18, marries, or becomes self-supporting, whichever occurs first.
Georgia Code § 105-1309 (1978) provides:
“In cases where there is no person entitled to sue under the foregoing provisions of this Chapter [the wrongful-death Chapter], the administrator or executor of the decedent may sue for and recover and hold the amount recovered for the benefit of the next of kin. In any such case the amount of the recovery shall be the full value of the life of the decedent.”
In cases where statutory classifications affecting illegitimates are so precisely structured as to further a sufficiently adequate state interest, however, the Court has upheld the validity of the statutes. Lalli v. Lalli, 439 U. S. 259; Mathews v. Lucas, 427 U. S. 495; Labine v. Vincent, 401 U. S. 532.
The constitutionality of the legitimation provision of the Georgia statute has not been challenged and is not at issue in this ease.
As Mr. Justice Powell stated for the plurality in the Lalli case: “That the child is the child of a particular woman is rarely difficult to prove. Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy.” 439 U. S., at 268-269. (Citations omitted.)
In Glona v. American Guarantee & Liability Ins. Co., 391 U. S. 73, the Court held that a Louisiana statute that did not allow a natural mother of an illegitimate child to sue for its wrongful death violated the Equal Protection Clause. That cause was quite different from this one. The invidious discrimination perceived in that ease was between married and unmarried mothers. There thus existed no real problem of identity or of fraudulent claims. See Part IV, infra. Moreover, the statute in Olona excluded every mother of an illegitimate child from bringing a wrongful-death action while the Georgia statute at issue here excludes only those fathers who have not legitimated their children. Thus, the Georgia statute has in effect adopted “a middle ground between the extremes of complete exclusion and case-by-case determination of paternity.” Trimble v. Gordon, 430 U. S. 762, 771. Cf. Lalli v. Lalli, supra. We need not decide whether a statute which completely precluded fathers, as opposed to mothers, of illegitimate children from maintaining a wrongful-death action would violate the Equal Protection Clause.
See n. 2, supra.
The ability of a father to make his child legitimate under Georgia law distinguishes this case from Caban v. Mohammed, post, p. 380, decided today. The Georgia legitimation provision enables the father to change the child’s status, and thereby his own for purposes of the wrongful-death statute, and at the same time is a rational method for the State to deal with the problem of proving paternity. Lalli v. Lalli, supra; see Part IV, infra. In the Caban case, by contrast, the father could change neither his children’s status nor his own for purposes of the New York adoption statute.
Indeed, a similar uncertainty is evident in the present case. The appellee has been sued by both the administratrix of the estate and the appellant for the wrongful death of the child.
We thus need not decide whether the classification created by the Georgia statute is rationally related to the State’s interests in promoting the traditional family unit or in setting a standard of morality.
It cannot seriously be argued that a statutory entitlement to sue for the wrongful death of another is itself a “fundamental” or constitutional right.
Question: What is the court in which the case originated?
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Answer:
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songer_district
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F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Leo EDWARDS, Jr., Petitioner-Appellant, v. Lee Roy BLACK, Commissioner Mississippi Department of Corrections, Respondent-Appellee.
No. 89-4458.
United States Court of Appeals, Fifth Circuit.
June 17, 1989.
Clive A. Stafford Smith, Atlanta, Ga., for petitioner-appellant.
Mike Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.
Before CLARK, Chief Judge, and WILLIAMS and DAVIS, Circuit Judges.
PER CURIAM:
Edwards seeks in this successive writ petition a certificate of probable cause and stay of execution. For the reasons stated in the district court’s opinion of June 16, 1989, we are persuaded that Edwards has not demonstrated a “substantial showing of the denial of a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).
Accordingly, the application for certificate of probable cause and stay of execution is DENIED.
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_respond1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
SUPERSCOPE, INC., Plaintiff, Appellee, v. BROOKLINE CORP., etc., Defendant, Appellee. Robert E. Lockwood, Defendant, Appellant.
No. 83-1129.
United States Court of Appeals, First Circuit.
Argued Aug. 3, 1983.
Decided Aug. 31, 1983.
George L. Bernstein, Boston, Mass., for defendant, appellant.
Paul E. Heimberg, Brookline, with whom Julius Thannhauser, and Riemer & Braunstein, Boston, Mass., were on brief, for Superscope, Inc.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZGIMENEZ, District Judge.
Of the District of Puerto Rico, sitting by designation.
LEVIN H. CAMPBELL, Chief Judge.
Superscope, Inc., appellee, supplied Brookline Corp. with inventory for Brook-line’s chain of retail stores. Payment for the inventory was secured by a purchase money security interest. On November 14, 1980, appellant Lockwood, who was the president, treasurer, and clerk of Brookline, executed and delivered a personal guaranty to Superscope guaranteeing Brookline’s indebtedness in excess of $100,000. The guaranty provided that recourse to Lockwood would be had “simultaneous with proceeding against any security taken and held to satisfy all debt of [Brookline] to [Super-scope] and with exercising any other remedy available to [Superscope] against [Brook-line].”
On April 8, 1981, Brookline filed a petition for relief under Chapter 11 of the United States Bankruptcy Code. On April 13, 1981, Superscope brought the present action against Brookline and Lockwood in the district court. On April 8, 1982, the Chapter 11 proceeding was converted into a Chapter 7 liquidation.
After Superscope had moved for summary judgment in the instant case against both defendants, the parties stipulated that Brookline owed Superscope $176,814.19. Thereafter, the district court entered judgment in the amount of $76,814.19 against Lockwood, that being the portion of the stipulated amount owed by Brookline in excess of $100,000. From that judgment, Lockwood appealed to this court. We agree with the district court that Superscope established all the elements of its case and that no material factual dispute sufficient to defeat summary judgment was raised. Brookline’s underlying obligation is undisputed and fully liquidated. Lockwood does not deny the existence of the debt or his guaranty of a portion thereof. Brookline is clearly in default as the debt has been due and owing for over 30 days and it has filed for bankruptcy. The several letters sent by Superscope to Lockwood and Lockwood’s position in the corporation, as well as the filing of this suit, provided sufficient notice to Lockwood of Brookline’s default. Lastly, the furnishing of credit to Brookline on Lockwood’s promise is sufficient consideration; no benefit need pass directly to Lockwood.
The sole question on appeal is whether Superscope complied with the condition that it proceed simultaneously against both the security and the guarantor. Appellants argue that by filing a claim as an unsecured creditor, Superscope abandoned its security and therefore lost its right to proceed against Lockwood on the guaranty. The district court held, and we agree, that Superscope did not abandon its security and took all required action precedent to realizing on the guaranty.
Brookline’s petition for reorganization listed Superscope as a secured creditor. Under § 1111(a) of the Bankruptcy Code, a proof of claim is deemed filed under § 501 if that claim appears in the schedule filed by the debtor under § 521(1) so long as the claim is not scheduled as disputed, contingent or unliquidated. Thus, Superscope did not have to file a proof of claim for its secured interest because Lockwood had listed Superscope as a secured creditor in Brookline’s schedule. Superscope, to be sure, also filed a proof of claim as an unsecured creditor under § 501. But as the Committee notes to the Senate Report on § 501 explain, S.Rep. No. 989, 95th Cong., 2d Sess. 61, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5847, a creditor who is only partially secured, as Superscope appears to have been, may file a proof of claim as an unsecured creditor. Given its listing elsewhere as a secured creditor, Superscope’s filing as an unsecured creditor did not operate to abandon the security but merely gave Superscope claims both as a secured and an unsecured creditor. Nothmg in § 1112 or elsewhere suggests that when the case was converted to Chapter 7 the proof of claim deemed filed under § 1111 disappeared.
The only possible additional action that Superscope could have taken that it did not take was to seek relief from the automatic stay under § 362(d). Like the court below, we do not believe that the guaranty required Superscope to realize on its security before it could proceed against Lockwood. The condition merely required that it proceed simultaneously. The existence of a sufficient proof of claim as a secured creditor coupled with the filing of a proof of claim as an unsecured creditor and the bringing of this action meets this condition; thus, it was unnecessary for Superscope to seek relief from the stay.
Affirmed.
. Schedule A-2 entitled “Creditors Holding Security,” which was filed for Brookline by Lockwood himself, showed a debt to Superscope of $176,814.19; the schedule also showed that this amount was secured by $10,000 of inventory. It was explicitly stated in the schedule that the claim was not contingent, unliquidated or disputed.
. Since Superscope was only partially secured, it properly filed a proof of claim as an unsecured creditor in hope of realizing more than the $10,000 value of its security.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
In re Andrew L. STONE and M. Jeanne Stone, Petitioners.
No. 77-1967.
United States Court of Appeals, District of Columbia Circuit.
Jan. 18, 1978.
M. Carr Ferguson, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., was on the motion for respondent.
Edward F. Canfield and Joseph E. Casey, Washington, D. C., were on the opposition to the motion for petitioners.
Michael J. Roach, Atty., Dept. of Justice, Washington, D. C., entered an appearance for respondent.
Before McGOWAN, LEVENTHAL and ROBINSON, Circuit Judges.
Opinion
PER CURIAM.
PER CURIAM:
Andrew L. Stone and M. Jeanne Stone, petitioners in a case pending before the United States Tax Court, have petitioned this court for a writ of mandamus directing the Tax Court to impose sanctions against the Internal Revenue Service (IRS) on account of alleged misconduct by IRS attorneys. The IRS has moved to dismiss the petition for mandamus, on the ground that jurisdiction lies only in the Court of Appeals for the Eighth Circuit, and not in this court. We agree with the IRS position, and grant the motion to dismiss.
We are unable to locate any reported case addressing the question of the proper forum in which an extraordinary writ may be sought against the Tax Court. We therefore begin our consideration with 26 U.S.C. § 7482(b), which specifies venue for appeals from final judgments of the Tax Court. It reads in full as follows:
(b) Venue.—
(1) In general. — Except as otherwise provided in paragraph (2), such decisions may be reviewed by the United States court of appeals for the circuit in which is located—
(A) in the case of a petitioner seeking redetermination of tax liability other than a corporation, the legal residence of the petitioner,
(B) in the case of a corporation seeking redetermination of tax liability, the principal place of business or principal office or agency of the corporation, or, if it has no principal place of business or principal office or agency in any judicial circuit, then the office to which was made the return of the tax in respect of which the liability arises,
(C) in the case of a person seeking a declaratory decision under section 7476, the principal place of business, or principal office or agency of the employer,
(D) in the case of a person seeking a declaratory judgment under section 7477, the legal residence of such person if such person is not a corporation, or the principal place of business or principal office or agency of such person if such person is a corporation, or
(E) in the case of an organization seeking a declaratory decision under section 7428, the principal office or agency of the organization.
If for any person no subparagraph of the preceding sentence applies, then such decisions may be reviewed by the Court of Appeals for the District of Columbia. For purposes of this paragraph, the legal residence, principal place of business, or principal office or agency referred to herein shall be determined as of the time the petition seeking redetermination of tax liability was filed with the Tax Court or as of the time the petition seeking a declaratory decision under section 7428, 7476, or 7477 was filed with the Tax Court.
(2) By agreement. — Notwithstanding the provisions of paragraph (1), such decisions may be reviewed by any United States Court of Appeals which may be designated by the Secretary and the taxpayer by stipulation in writing.
The Stones (hereafter “taxpayers”) petitioned the Tax Court seeking redetermination of tax liability, so subsection (1)(A) applies. Taxpayers stipulated that their legal residence at the time they filed their petition in the Tax Court was in St. Louis, Missouri, within the Eighth Circuit. No agreement on a different venue under subsection (2) has been entered. Unless such a stipulation is entered in the future, appeal from the final judgment in this case will lie to the Eighth Circuit and not this court.
The All Writs Act, 28 U.S.C. § 1651(a), gives the federal courts power to issue writs, including mandamus, “in aid of their respective jurisdictions.” We have no appellate jurisdiction over the instant case, past, present, or future, which mandamus could “aid.” Therefore we lack jurisdiction to issue the writ. United States v. United States District Court (Alcoa), 334 U.S. 258, 263-64, 68 S.Ct. 1035, 92 L.Ed. 1351 (1948); Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25, 63 S.Ct. 938, 87 L.Ed. 1185 (1943).
The taxpayers present several arguments in support of our mandamus jurisdiction, despite their implicit concession that appeal from the final judgment in this case will lie only to the Eighth Circuit.
Subsection (1)(A) places venue in the Eighth Circuit only “in the case of a petitioner seeking redetermination of tax liability.” They argue that this petition for mandamus does not seek redetermination of tax liability, therefore it comes within the sentence at the end of subsection (1): “If for any reason no subparagraph of the preceding sentence applies, then such decisions may be reviewed by the Court of Appeals for the District of Columbia.” This interpretation would send all interlocutory review proceedings concerning the Tax Court to us. No court has ever so held. This reading of § 7482(b)(1) could not be harmonized with the All Writs Act, because it would give our court the power to issue writs in cases in which we have no appellate jurisdiction over the final judgment.
Furthermore, it is not entirely accurate to say that this petition for mandamus does not seek redetermination of tax liability. One of the alternative remedies the taxpayers seek is a writ directing the Tax Court to grant their motion for summary judgment. Granting that motion would produce a final judgment, a redetermination of tax liability, appealable only to the Eighth Circuit.
Taxpayers’ second argument is that the provision laying venue at the taxpayers’ residence was enacted to protect taxpayers from IRS appeals to inconvenient fora. The IRS, they argue, should not be allowed to take advantage of a statute intended to benefit taxpayers in order to defeat the taxpayers’ choice of forum. This argument would rewrite § 7482(b) to place venue (at least for appeals and petitions by taxpayers) in the circuit of the taxpayer’s choice. This is not what the statute says. It does allow venue in any circuit by stipulation of both parties, but if the IRS wants to hold the petitioning taxpayer to the venue specified in the statute, it may do so.
Third, the taxpayers point out that the Tax Court is physically located within the territorial jurisdiction of this court. This, of course, is true of the Tax Court, but not relevant in view of the All Writs Act and the specific venue provisions of § 7482(b).
Finally, they make an argument akin to forum non conveniens. Some of the hearings before the Tax Court in this case have taken place in Washington, and some in New York City. None has been held within the Eighth Circuit. Tax Court Rule 140 permits the taxpayer to request the trial venue of his choice, and directs the court to choose the venue most convenient to the taxpayer. Venue for trial and venue for appeal in Tax Court cases are wholly separate. Neither necessarily follows the other.
We conclude that under 28 U.S.C. § 1651(a), the proper court in which to seek an extraordinary writ directed against the United States Tax Court is the court which would have jurisdiction over an appeal from the final judgment of the Tax Court in the particular case. For these petitioners, that is the Court of Appeals for the Eighth Circuit. Therefore, we hold that we do not have jurisdiction over this petition, and the motion of the IRS to dismiss the petition is
Granted.
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_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
John C. WEBB and Helen H. Webb, Appellants, v. UNITED STATES of America, Appellee.
No. 7999.
United States Court of Appeals Fourth Circuit.
Argued Jan. 13, 1960.
Decided Jan. 18, 1960.
John C. Webb, pro se.
Hugh Nugent, Atty., Dept. of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., Leon H. A. Pierson, U. S. Atty., Baltimore, Md., and S. Billingsley Hill, Atty., Dept. of Justice, Washington, D. C., on brief), for appellee.
Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.
PER CURIAM.
Affirmed upon the opinion of the District Court, United States v. 72.71 Acres of Land, etc., 23 F.R.D. 635.
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_appel1_7_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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").
George Washington O’NEAL, Jr., et al., Plaintiffs-Appellants, Cross-Appellees, v. DeKALB COUNTY, GEORGIA, et al., Defendants-Appellees, Cross-Appellants.
No. 87-8682.
United States Court of Appeals, Eleventh Circuit.
July 25, 1988.
James W. Howard, Howard, Secret & Wilde, Atlanta, Ga., for plaintiffs-appellants, cross-appellees.
Albert Sidney Johnson, DeKalb County Attorneys Office, Decatur, Ga., Judson Graves, Alston & Bird, Paul J. Quiner, Wade H. Watson, III, Johnson & Montgomery, Atlanta, Ga., for defendants-appellees, cross-appellants.
Before KRAVITCH and CLARK, Circuit Judges, and NICHOLS , Senior Circuit Judge.
Honorable Philip Nichols, Jr., Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation.
KRAVITCH, Circuit Judge:
The survivors of a man killed in a police shootout in DeKalb Counly, Georgia brought this action pursuant to 42 U.S.C. § 1983 against the officers involved in the shootout, certain county officials, and the County. The district court granted the defendants’ motion for summary judgment on the ground that the decedent’s constitutional rights had not been violated and therefore no section 1983 action could be maintained, 667 F.Supp. 853. We affirm.
I.
On the evening of December 15, 1983, the decedent, George Washington O’Neal, Sr., a patient at Doctor’s Hospital in De-Kalb County, Georgia, went on a rampage through the hospital and stabbed seven people with a pocketknife. Officer Steven Waits, a DeKalb County police officer, arrived at the hospital in response to a police call. Waits, armed with his service revolver, found O’Neal on the second floor, holding a bloody knife. Waits identified himself as a police officer and ordered O’Neal to drop his knife. Ignoring Waits’s demand, O’Neal ran away down the hallway. As Waits chased O’Neal through the second floor corridors, he observed “a lot of blood on the floor ... a piece of intral [sic] of some kind” and a person with a severe stomach wound lying on the floor. Deposition of Steven W. Waits, at 54. He also noticed that the nursing supervisor had a stab wound in his back. Police Report, Plaintiffs Exhibit 2.
After Waits had chased O’Neal for approximately five minutes, Officer Rick Ro-seberry, armed with a shotgun, arrived at the hospital to assist Waits. Roseberry also saw “blood all over the floor” and walls and “a piece of human tissue lying there in [sic] the floor in front of me.” Deposition of Rickie Emmit Roseberry, at 66. Soon after Roseberry’s arrival, the two officers cornered O’Neal at the end of one of the second floor corridors so that O’Neal was standing only six feet from Roseberry and between five and six feet from Waits. With their weapons raised, the officers repeatedly ordered O’Neal to drop his knife and lie on the floor. Instead of complying, O’Neal rushed toward Rose-berry with the knife raised over his head; in response, both officers fired their weapons at O’Neal. Although struck by both shots, O’Neal did not fall, but rather twisted around from the force of the shots, still waving his knife above his head. Immediately after the first volley of shots, Rose-berry fired a second shot, which hit O’Neal in the small of the back and brought him to the ground. O’Neal died as a result of the gunshot wounds.
O’Neal’s survivors brought this section 1983 action against Waits, Roseberry, the Director of Public Safety of DeKalb County, the Chief of Police and Assistant Chief of Police of DeKalb County, and DeKalb County. The complaint alleged that Waits and Roseberry had deprived O’Neal of his constitutional rights by using excessive force against him, and that this use of excessive force was the result of a custom or policy of DeKalb County. Concluding that O’Neal’s constitutional rights had not been violated because the officers had not used excessive force, the district court granted summary judgment for all the defendants. In a separate order, the district court denied the defendants’ motion for attorney’s fees under 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 11. The plaintiffs appeal, arguing that the district court erred in granting summary judgment on the issue of excessive force. The defendants cross-appeal from the denial of attorney’s fees.
II.
To succeed on their section 1983 claim, the plaintiffs must establish that O’Neal was deprived of a constitutional right. Baker v. McCollan, 443 U.S. 137, 138, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. Unit A 1981). The plaintiffs advance two plausible constitutional theories to support their section 1983 action; they assert that the officers’ use of force against O’Neal violated his right to substantive due process and his rights under the fourth amendment. We will consider these assertions separately. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1499 (11th Cir.1985) (en banc) (analyzing claim of excessive force under both substantive due process and fourth amendment), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).
A. Substantive Due Process
The starting point for any discussion of a substantive due process claim in the context of police abuse is Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which the Supreme Court held that incriminating evidence obtained by subjecting a criminal suspect to a stomach pump was inadmissible. As the Court explained, substantive due process is violated when the government engages in actions that “ ‘offend those canons of decency and fairness which express the notions of English-speaking peoples even toward those charged with the most heinous offenses.’ ” Id. at 169, 72 S.Ct. at 208 (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 788-89, 89 L.Ed. 1029 (1945)). In other words, government conduct that “shocks the conscience,” id. at 172, 72 S.Ct. at 209, or “offend[s] even hardened sensibilities,” id., 72 S.Ct. at 210, transgresses the bounds of substantive due process.
Since Rochin, the lower courts have developed more definite standards for identifying substantive due process violations. In determining whether force used by police officers amounts to a constitutional deprivation, a court must consider “‘the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’” Gilmere v. City of Atlanta, 774 F.2d 1495, 1500-01 (11th Cir.1985) (en banc) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).
The plaintiffs’ substantive due process argument is two-tiered. First, they maintain that the use of gunfire against a suspect armed only with a knife was constitutionally excessive because less harmful methods of apprehension were available. Second, they argue that assuming the first volley of gunfire was constitutional, Rose-berry’s second shot was not. We reject both parts of the plaintiffs’ argument.
Unquestionably, the situation at Doctor’s Hospital on the evening of December 15, 1983 suggested the need for the application of force. O’Neal had just stabbed several people and, at the time he was shot, was charging at Roseberry with his knife raised over his head. He refused to respond to the officers’ demands that he surrender, leaving them with the definite impression that force was required to stop him from hurting Roseberry or someone else. Moreover, the amount of force used did not exceed the need for the use of force. The plaintiffs maintain that O’Neal’s rights were violated because the officers could have disarmed him by negotiating with him or by using a baton or stungun, instead of resorting to gunfire. However, they point to no authority holding that the Constitution requires police officers to use a minimum of force to apprehend a violent, dangerous suspect who is threatening the lives of the officers and others nearby. In this case, the use of gunfire to disarm O’Neal was not excessive in light of the obvious danger he posed to the lives of others. In addition, the undisputed evidence demonstrates that the officers fired their guns in a good faith effort to stop O’Neal, not out of a malicious desire to cause harm. Although the injury inflicted was the worst possible, death, the result of the use of force is but one factor to be considered in determining if such force was excessive. Despite the tragic outcome of Waits’s and Roseberry’s encounter with O’Neal, we remain convinced that they did not use excessive force in attempting to subdue him. In short, then-reaction to O’Neal’s violent behavior does not “shockQ the conscience” or “offend ... hardened sensibilities.” Rochin, 342 U.S. at 172, 72 S.Ct. at 209-10.
Our opinion does not change because Roseberry fired a second shot at O’Neal. As the plaintiffs admitted in their brief and at oral argument, Roseberry fired his second shot “immediately” after his first, and at the time of the second shot, O’Neal was still on his feet, holding his knife and spinning from the force of the first volley of shots. These undisputed facts convince us that Roseberry’s second shot was part of his initial reaction to O’Neal’s attempt to stab him, and not, as the plaintiffs would have us believe, a brutal, gratuitous use of force against a visibly disabled suspect. Viewed as part of his initial reaction to O’Neal’s attack, and in light of the unusual circumstances facing the officers that evening, Roseberry’s firing of two shots in rapid succession in an attempt to guarantee O’Neal’s apprehension did not constitute excessive force.
B. The Fourth Amendment
The plaintiffs also base their section 1983 action on the fourth amendment, which provides in pertinent part that “[t]he right of the people to be secure in then-persons ... against unreasonable searches and seizures shall not be violated.” As the Court recently noted in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Id. at 7, 105 S.Ct. at 1699. Reasonableness is determined by “ ‘balancing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Id. at 8, 105 S.Ct. at 1699 (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)).
Under this balancing test, the plaintiffs’ fourth amendment claim must fail. Although O’Neal’s “fundamental interest in his own life need not be elaborated upon,” id. at 9, 105 S.Ct. at 1700, even such a weighty interest may be counterbalanced by governmental interests in effective law enforcement, as in this case. Waits and Roseberry used deadly force to protect themselves and the people at the hospital from O’Neal, who was armed and, as the blood-covered floors and injured bodies demonstrated, extremely dangerous. Considering the trying circumstances that the officers faced, their reaction, including Ro-seberry’s second shot, was reasonable and hence within the bounds of the fourth amendment.
III.
On cross-appeal, the defendants argue that the district court abused its discretion in not granting them attorney’s fees under 42 U.S.C. § 1988 or Federal Rule of Civil Procedure 11. Pursuant to section 1988, a district court may award attorney’s fees to prevailing defendants if “ ‘the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)). “The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees.” Id., 101 S.Ct. at 178. Similarly, a court may require a party or its counsel to pay reasonable attorney’s fees to the prevailing party pursuant to Federal Rule of Civil Procedure 11 as a sanction for filing an action that has no factual or legal foundation. See Donaldson v. Clark, 819 F.2d 1551, 1555-56 (11th Cir.1987) (en banc).
Simply because the district court granted the defendants’ motion for summary judgment does not mean that the plaintiffs’ action was frivolous. As the district court pointed out in its order denying fees, in ruling on the motion for summary judgment, it “reviewed a great deal of caselaw [sic] on the issue of when deadly force constitutes unreasonable and excessive force within the meaning of the Constitution,” and “did not find any case with a fact situation similar to the one at hand.” We agree with the district court that although the plaintiffs’ section 1983 suit does not merit relief, their causes of action were plausible. Given this, we cannot say that the district court abused its discretion in denying attorney fees under section 1988 or Rule 11. Cf. Hughes v. Rowe, 449 U.S. at 15, 101 S.Ct. at 179 (allegations properly dismissed for failure to state a claim deserved and received careful attention of the courts and thus were not groundless or without foundation).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. The plaintiffs claim that O’Neal’s outburst was caused by medication he was given while a patient at the hospital.
. The complaint also asserted pendent state claims against Roseberry and Waits for wrongful death and against Doctor’s Hospital for wrongful death and medical malpractice. Upon granting summary judgment for the defendants, the district court dismissed the pendent claims without prejudice.
. In pertinent part, 42 U.S.C. § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
.The complaint alleged that the defendants had violated O’Neal’s rights "to life, equal protection of the laws, and freedom from cruel and unusual punishment under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution." The district court noted that “[i]n response to defendants’ motion for summary judgment, plaintiffs appear to assert that O’Neal’s life was unreasonably seized in violation of the Fourth Amendment." Accordingly, the district court analyzed the plaintiffs’ claim under the fourth amendment, even though it was not mentioned in their complaint. In their briefs to this court, the plaintiffs continue to argue that O’Neal’s rights under the fourth amendment were violated. Thus, we will also proceed on the assumption that the plaintiffs’ claim is brought under both the fourth and fourteenth amendments.
As for the remaining constitutional claims asserted in their complaint, the plaintiffs concede that their eighth amendment claim must fail as a matter of law; their equal protection claim is also groundless and does not merit discussion.
. The plaintiffs stress that Roseberry’s second shot hit O’Neal in the back, as if this conclusively demonstrates that this shot was fired "maliciously and sadistically for the very purpose of causing harm.” Gilmere, 774 F.2d at 1501. As the plaintiffs admit, however, Roseberry fired his second shot “immediately" after his first. At the time Roseberry fired his second shot he could not have known that O’Neal would twist around from the force of the first round of shots and consequently be hit in the back by the second shot. Ilius, the fact that Roseberry’s second shot hit O’Neal in the back does not transform Rosebenys conduct into a violation of substantive due process.
. The dissent maintains that summary judgment was improper because there is a conflict in the record regarding the proportionality of the force used, and "such conflict is for the ultimate fact finder, not this court, to resolve and then weigh against the fact that O’Neal lost his life.” The dissent, however, seems to confuse the process of finding historical facts, a function of the jury, with the distinct process of determining whether those historical facts constitute a substantive due process or fourth amendment violation, a function of the court. See Gilmere, 774 F.2d at 1500-01 (court must determine whether there was substantive due process violation by looking to four factors); Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (reasonableness under fourth amendment is question of law). The proportionality of the force used, the focus of the second prong of the Gilmere due process test and a factor in determining reasonableness under the fourth amendment, is for the court, not the jury, to consider. In a case such as this, where the historical facts are undisputed, it is this court's duty to decide, as a matter of law, whether the facts support the appellants’ constitutional claim.
. Citing Gamer, the plaintiffs argue that the officers violated O’Neal’s fourth amendment rights because they shot at him although he was not trying to escape. The passage from Gamer that the plaintiffs rely upon states as follows:
[I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
471 U.S. at 11-12, 105 S.Ct. at 1701.
We are not persuaded by this argument. Initially, we take issue with the plaintiffs’ underlying factual assumption that O’Neal was not trying to escape when he was shot. O'Neal’s attempt to stab Roseberry could very well be interpreted as an attempt to escape from the officers and continue his rampage through the hospital. Next, we note that the plaintiffs have misread Gamer to hold that a police officer can no longer use deadly force to defend himself against a suspect’s use of deadly force, unless the suspect is also trying to escape. A more sensible interpretation of the above quoted passage is that a police officer may, under certain circumstances, use deadly force to prevent the escape of a suspect; it does not mean that the use of deadly force is limited to those instances where a suspect is trying to escape.
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:
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sc_casesource
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158
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
EGELHOFF v. EGELHOFF, a minor, by and through her natural parent, BREINER, et al.
No. 99-1529.
Argued November 8, 2000
Decided March 21, 2001
William J. Kilberg argued the cause for petitioner. With him on the briefs were Thomas G. Hungar and Henry Haas.
Barbara McDowell argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Henry L. Solano, Nathaniel I. Spiller, and Elizabeth Hopkins.
Thomas G. Goldstein argued the cause for respondents. With him on the brief were Erik S. Jaffe and Michael W. Jordan.
Briefs of amici curiae urging reversal were filed for the AARP by Mary Ellen SignoHlle and Melvin Radowitz; for the Boeing Co. et al. by Bruce D. Corker, Kurt E. Lisnenmayer, Paul J. Ehlenbach, Loretta B. Kepler, Stephen A Bokat, and Jan Amundson; for the National Coordinating Committee for Multiemployer Plans by Denise M. Clark and Mark C. Nielsen; and for the Western Conference of Teamsters Pension Trust Fund by Robert S. Unger, Russell J. Reid, and Michael R. McCarthy.
Briefs of amici curiae urging affirmance were filed for the State of Washington et al. by Christine 0. Gregoire, Attorney General of Washington, Jay D. Geek, Assistant Attorney General, and William Berggren Collins, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Ken Salazar of Colorado, Thomas F. Reilly of Massachusetts, Joseph P. Mazurek of Montana, W A Drew Edmondson of Oklahoma, Jan Graham of Utah, William H. Sorrell of Vermont, and Darrell V McGraw, Jr., of West Virginia; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.
Justice Thomas
delivered the opinion of the Court.
A Washington statute provides that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. We are asked to decide whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, 29 U.S.C. §1001 et seq., preempts that statute to the extent it applies to ERISA plans. We hold that it does.
I
Petitioner Donna Rae Egelhoff was married to David A. Egelhoff. Mr. Egelhoff was employed by the Boeing Company, which provided him with a life insurance policy and a pension plan. Both plans were governed by ERISA, and Mr. Egelhoff designated his wife as the beneficiary under both. In April 1994, the Egelhoffs divorced. Just over two months later, Mr. Egelhoff died intestate following an automobile accident. At that time, Mrs. Egelhoff remained the listed beneficiary under both the life insurance policy and the pension plan. The life insurance proceeds, totaling $46,000, were paid to her.
Respondents Samantha and David Egelhoff, Mr. Egelhoffs children by a previous marriage, are his statutory heirs under state law. They sued petitioner in Washington state court to recover the life insurance proceeds. Respondents relied on a Washington statute that provides:
“If a marriage is dissolved or invalidated, a provision made prior to that event that relates to the payment or transfer at death of the decedent’s interest in a nonpro-bate asset in favor of or granting an interest or power to the decedent’s former spouse is revoked. A provision affected by this section must be interpreted, and the nonprobate asset affected passes, as if the former spouse failed to survive the decedent, having died at the time of entry of the decree of dissolution or declaration of invalidity.” Wash. Rev. Code § 11.07.010(2)(a) (1994).
That statute applies to “all nonprobate assets, wherever situated, held at the time of entry by a superior court of this state of a decree of dissolution of marriage or a declaration of invalidity.” § 11.07.010(1). It defines “nonprobate asset” to include “a life insurance policy, employee benefit plan, annuity or similar contract, or individual retirement account.” § 11.07.010(5)(a).
Respondents argued that they were entitled to the life insurance proceeds because the Washington statute disqualified Mrs. Egelhoff as a beneficiary, and in the absence of a qualified named beneficiary, the proceeds would pass to them as Mr. Egelhoff’s heirs. In a separate action, respondents also sued to recover the pension plan benefits. Respondents again argued that the Washington statute disqualified Mrs. Egelhoff as a beneficiary and they were thus entitled to the benefits under the plan.
The trial courts, concluding that both the insurance policy and the pension plan “should be administered in accordance” with ERISA, granted summary judgment to petitioner in both eases. App. to Pet. for Cert. 46a, 48a. The Washington Court of Appeals consolidated the cases and reversed. In re Estate of Egelhoff, 98 Wash. App. 314, 968 P. 2d 924 (1998). It concluded that the Washington statute was not pre-empted by ERISA. Id., at 317, 968 P. 2d, at 925. Applying the statute, it held that respondents were entitled to the proceeds of both the insurance policy and the pension plan. Ibid.
The Supreme Court of Washington affirmed. 139 Wash. 2d 557, 989 P. 2d 80 (1999). It held that the state statute, although applicable to “employee benefit plan[s],” does not “refefr] to” ERISA plans to an extent that would require pre-emption, because it “does not apply immediately and exclusively to an ERISA plan, nor is the existence of such a plan essential to operation of the statute.” Id., at 574, 989 P. 2d, at 89. It also held that the statute lacks a “connection with” an ERISA plan that would compel pre-emption. Id., at 576,989 P. 2d, at 90. It emphasized that the statute “does not alter the nature of the plan itself, the administrator’s fiduciary duties, or the requirements for plan administration.” Id., at 575, 989 P. 2d, at 90. Nor, the court concluded, does the statute conflict with any specific provision of ERISA, including the antialienation provision, 29 U. S. C. § 1056(d)(1), because it “does not operate to divert benefit plan proceeds from distribution under terms of the plan documents,” but merely alters "the underlying circumstances to which the distribution scheme of [the] plan must be applied.” 139 Wash. 2d, at 578, 989 P. 2d, at 91.
Courts have disagreed about whether statutes like that of Washington are pre-empted by ERISA. Compare, e. g., Manning v. Hayes, 212 F. 3d 866 (CA5 2000) (finding preemption), cert. pending, No. 00-265, and Metropolitan Life Ins. Co. v. Hanslip, 939 F. 2d 904 (CA10 1991) (same), with, e. g., Emard v. Hughes Aircraft Co., 153 F. 3d 949 (CA9 1998) (finding no pre-emption), and 139 Wash. 2d, at 557, 989 P. 2d, at 80 (same). To resolve the conflict, we granted certiorari. 530 U. S. 1242 (2000).
II
Petitioner argues that the Washington statute falls within the terms of ERISA’s express pre-emption provision and that it is pre-empted by ERISA under traditional principles of conflict pre-emption. Because we conclude that the statute is expressly pre-empted by ERISA, we address only the first argument.
ERISA’s pre-emption section, 29 U. S. C. § 1144(a), states that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. We have observed repeatedly that this broadly worded provision is “clearly expansive.” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995); see, e. g., Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992) (listing cases in which we have described ERISA pre-emption in broad terms). But at the same time, we have recognized that the term “relate to” cannot be taken “to extend to the furthest stretch of its indeterminacy,” or else “for all practical purposes pre-emption would never run its course.” Travelers, supra, at 655.
We have held that a state law relates to an ERISA plan “if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 97 (1988). Petitioner focuses on the “connection with” part of this inquiry. Acknowledging that “connection with” is scarcely more restrictive than “relate to,” we have cautioned against an “uncritical literalism” that would make pre-emption turn on “infinite connections.” Travelers, supra, at 656. Instead, “to determine whether a state law has the forbidden connection, we look both to ‘the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,’ as well as to the nature of the effect of the state law on ERISA plans.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A, Inc., 519 U. S. 316, 325 (1997), quoting Travelers, supra, at 656 (citation omitted).
Applying this framework, petitioner argues that the Washington statute has an impermissible connection with ERISA plans. We agree. The statute binds ERISA plan administrators to a particular choice of rules for determining beneficiary status. The administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents. The statute thus implicates an area of core ERISA concern. In particular, it runs counter to ERISA’s commands that a plan shall “specify the basis on which payments are made to and from the plan,” § 1102(b)(4), and that the fiduciary shall administer the plan “in accordance with the documents and instruments governing the plan,” § 1104(a)(1)(D), making payments to a “beneficiary” who is “designated by a participant, or by the terms of [the] plan.” § 1002(8). In other words, unlike generally applicable laws regulating “areas where ERISA has nothing to say,” Dillingham, 519 U. S., at 330, which we have upheld notwithstanding their incidental effect on ERISA plans, see, e. g., ibid., this statute governs the payment of benefits, a central matter of plan administration.
The Washington statute also has a prohibited connection with ERISA plans because it interferes with nationally uniform plan administration. One of the principal goals of ERISA is to enable employers “to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits.” Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 9 (1987). Uniformity is impossible, however, if plans are subject to different legal obligations in different States.
The Washington statute at issue here poses precisely that threat. Plan administrators cannot make payments simply by identifying the beneficiary specified by the plan documents. Instead they must familiarize themselves with state statutes so that they can determine whether the named beneficiary’s status has been "revoked” by operation of law. And in this context the burden is exacerbated by the choice-of-law problems that may confront an administrator when the employer is located in one State, the plan participant lives in another, and the participant’s former spouse lives in a third. In such a situation, administrators might find that plan payments are subject to conflicting legal obligations.
To be sure, the Washington statute protects administrators from liability for making payments to the named beneficiary unless they have "actual knowledge of the dissolution or other invalidation of marriage,” Wash. Rev. Code § 11.07.010(S)(a) (1994), and it permits administrators to refuse to make payments until any dispute among putative beneficiaries is resolved, § 11.07.010(3)(b). But if administrators do pay benefits, they will face the risk that a court might later find that they had “actual knowledge” of a divorce. If they instead decide to await the results of litigation before paying benefits, they will simply transfer to the beneficiaries the costs of delay and uncertainty. Requiring ERISA administrators to master the relevant laws of 50 States and to contend with litigation would undermine the congressional goal of “minimizing] the administrative and financial burden[s]” on plan administrators — burdens ultimately borne by the beneficiaries. Ingersoll-Rand Co. v. McClendon, 498 U.S. 138, 142 (1990).
We recognize that all state laws create some potential for a lack of uniformity. But differing state regulations affecting an ERISA plan's “system for processing claims and paying benefits” impose “precisely the burden that ERISA preemption was intended to avoid.” Fort Halifax, supra, at 10. And as we have noted, the statute at issue here directly conflicts with ERISA’s requirements that plans be administered, and benefits be paid, in accordance with plan documents. We conclude that the Washington statute has a “connection with” ERISA plans and is therefore pre-empted.
Ill
Respondents suggest several reasons why ordinary ERISA pre-emption analysis should not apply here. First, they observe that the Washington statute allows employers to opt out. According to respondents, the statute neither regulates plan administration nor impairs uniformity because it does not apply when “[t]he instrument governing disposition of the nonprobate asset expressly provides otherwise.” Wash. Rev. Code § 11.07.010(2)(b)(i) (1994). We do not believe that the statute is saved from pre-emption simply because it is, at least in a broad sense, a default rule.
Even though the Washington statute’s cancellation of private choice may itself be trumped by specific language in the plan documents, the statute does “dictate the ehoice[s] facing ERISA plans” with respect to matters of plan administration. Dillingham, supra, at 334. Plan administrators must either follow Washington’s beneficiary designation scheme or alter the terms of their plan so as to indicate that they will not follow it. The statute is not any less of a regulation of the terms of ERISA plans simply because there are two ways of complying with it. Of course, simple noneom-pliance with the statute is not one of the options available to plan administrators. Their only choice is one of timing, i. e., whether to bear the burden of compliance ex post, by paying benefits as the statute dictates (and in contravention of the plan documents), or ex ante, by amending the plan.
Respondents emphasize that the opt-out provision makes compliance with the statute less burdensome than if it were mandatory. That is true enough, but the burden that remains is hardly trivial. It is not enough for plan administrators to opt out of this particular statute. Instead, they must maintain a familiarity with the laws of all 50 States so that they can update their plans as necessary to satisfy the opt-out requirements of other, similar statutes. They also must be attentive to changes in the interpretations of those statutes by state courts. This “tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction” is exactly the burden ERISA seeks to eliminate. Ingersoll-Band, swpm, at 142.
Second, respondents emphasize that the Washington statute involves both family law and probate law, areas of traditional state regulation. There is indeed a presumption against pre-emption in areas of traditional state regulation such as family law. See, e. g., Hisquierdo v. Hisquierdo, 439 U. S. 572, 581 (1979). But that presumption can be overcome where, as here, Congress has made clear its desire for pre-emption. Accordingly, we have not hesitated to find state family law pre-empted when it conflicts with ERISA or relates to ERISA plans. See, e. g., Boggs v. Boggs, 520 U. S. 838 (1997) (holding that ERISA pre-empts a state community property law permitting the testamentary transfer of an interest in a spouse’s pension plan benefits).
Finally, respondents argue that if ERISA pre-empts this statute, then it also must pre-empt the various state statutes providing that a murdering heir is not entitled to receive property as a result of the killing. See, e. g., Cal. Prob. Code Ann. §§250-259 (West 1991 and Supp. 2000); 755 Ill. Comp. Stat., ch. 755, § 5/2 — 6 (1999). In the ERISA context, these "slayer” statutes could revoke the beneficiary status of someone who murdered a plan participant. Those statutes are not before us, so we do not decide the issue. We note, however, that the principle underlying the statutes — which have been adopted by nearly every State — is well established in the law and has a long historical pedigree predating ERISA. See, e. g., Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188 (1889). And because the statutes are more or less uniform nationwide, their interference with the aims of ERISA is at least debatable.
* * *
The judgment of the Supreme Court of Washington is reversed, and the ease is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
One can of course escape the conflict between the plan documents (which require making payments to the named beneficiary) and the statute (which requires maMng payments to someone else) by calling the statute an “invalidation” of the designation of the named beneficiary, and by observing that the plan documents are silent on whether “invalidation” is to occur upon divorce. The dissent employs just such an approach. See post, at 155-156 (opinion of Breyer, J.). Reading a clear statement as an ambiguous metastatement enables one to avoid all kinds of conflicts between seemingly contradictory texts. Suppose, for example, that the statute required that all pension benefits be paid to the Governor of Washington. That seems inconsistent with the plan documents (and with ERISA), but the inconsistency disappears if one calls the statute an “invalidation” of the principal and alternate beneficiary designations. After all, neither the plan nor ERISA actually says that beneficiaries cannot be invalidated in favor of the Governor. This approach exploits the logical inability of any text to contain a complete set of instructions for its own interpretation. It has the vice — or perhaps the virtue, depending upon one’s point of view — of draining all language of its meaning.
Respondents argue that in this case, the disposition dictated by the Washington statute is consistent with that specified in the plan documents. Because Mr. Egelhoff designated “Donna R. Egelhoff wife” as the beneficiary of the life insurance policy, they contend that once the Egelhoffe divorced, “there was no such person as ‘Donna R. Egelhoff wife) the designated person had definitionally ceased to exist.” Brief for Respondents 44 (emphasis in original); see also post, at 155 (BREYER, J., dissenting). In effect, respondents ask us to infer that what Mr. Egelhoff meant when he filled out the form was not “Donna R. Egelhoff, who is my wife,” but rather “a new legal person — -‘Donna as spouse/” Brief for Respondents 44. They do not mention, however, that below the “Beneficiary” line on the form, the printed text reads, “First Name [space] Middle Initial [space] Last Name [space] Relationship.” See Appendix to opinion of Breyer, 3., post. Rather than impute to Mr. Egelhoff the unnatural (and indeed absurd) literalism suggested by respondents, we conclude that he simply provided all of the information requested by the form. The happenstance that “Relationship” was on the same line as the beneficiary’s name does not, we think, evince an intent to designate “a new legal person.”
The dissent observes that the Washington statute permits a plan administrator to avoid resolving the dispute himself and to let courts or parties settle the matter. See post, at 158. This observation only presents an example of how the costs of delay and uncertainty can be passed on to beneficiaries, thereby thwarting ERISA’s objective of efficient plan administration. Cf. Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 9 (1987).
Contrary to the dissent's suggestion that the resolution of this ease depends on one’s view of federalism, see post, at 160-161, we are called upon merely to interpret ERISA. And under the text of ERISA, the fiduciary “shall” administer the plan “in accordance with the documents and instruments governing the plan,” 29 U.S. C. § 1104(a)(1)(D). The Washington statute conflicts with this command because under this statute, the only way the fiduciary can administer the plan according to its terms is to change the very terms he is supposed to follow.
Question: What is the court whose decision the Supreme Court reviewed?
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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_geniss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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".
Frank BURNS, Joseph Gizowsky, Mac Krieger, Robert McCruden, Joseph Serabonia, Henry D. Strube and John M. Tomchek, Plaintiffs-Appellees, v. Arthur A. McCRARY, Col., Commanding Officer, Signal Corps Pictorial Center, 35-11 35th Avenue, Long Island City, New York, William E. Leary, Major, Signal Corps Pictorial Center, 35-11 35th Avenue, Long Island City, New York, and Mary C. O’Connor, Chief Personnel Officer, Signal Corps Pictorial Center, 35-11 35th Avenue, Long Island City, New York, Defendants-Appellants.
No. 153, Docket 23762.
United States Court of Appeals Second Circuit.
Argued Dec. 21,1955.
Decided Jan. 11, 1956.
Samuel Resnicoff, New York City, for appellee.
Warren E. Burger, Washington, D. C., Leonard P. Moore, Brooklyn, N. Y., Paul A. Sweeney and John J. Cound, Washington, D. C., for appellants.
Before FRANK, HINCKS and LUM-BARD, Circuit Judges.
FRANK, Circuit Judge.
Plaintiffs are civilians employed by the United States as Photographer Equipment Repairers at the Army Signal Corps Pictorial Center, in Long Island City, New York. Some of plaintiffs are veterans. On February 2, 1955, each of them received official notice that he would be reduced in grade on February 20,1955. Before that date, each of plaintiffs filed an administrative appeal. The appeals of those who were veterans will be finally decided by the Civil Service Commission, Washington, D. C., and the appeals of those who were not veterans by the Secretary of the Army, Washington, D. C. While these appeals were pending and undecided, plaintiffs began this suit. They asked that the proposed reductions in grade be declared void and that the defendants be enjoined from carrying them out. On plaintiffs’ motion, the district court granted a preliminary injunction. Defendants have appealed.
When this suit began and when the preliminary injunction issued, plaintiffs had not exhausted their administrative remedies. Such exhaustion is essential to the maintenance of such a suit. The final administrative decisions will be made by officials residing in Washington, D. C., who have not been served. Accordingly, the district court had no jurisdiction to grant either a temporary or a final injunction.
Reversed and remanded with directions to dismiss for lack of jurisdiction.
. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 764, 67 S.Ct. 1493, 91 L.Ed. 1796; Macauley v. Waterman S.S. Corp., 327 U.S. 540, 66 S.Ct. 712, 90 L.Ed. 839; Myers v. Bethlehem Shipbuilding Co., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. Wettre v. Hague, 1 Cir., 168 E.2d 825 as interpreted in Fitzpatrick v. Snyder, 1 Cir., 220 F.2d 522, 525, holds that, where there is a “clear violation of some incontestable right,” administrative remedies need not be first exhausted. As here there is no “clear violation of some incontestable right,” we need not here decide whether or not to follow the Wettre doctrine; Cf. Young v. Higley, 95 U.S.App.D.C. 122, 220 F.2d 487.
. Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534; Reeber v. Rossell, 2 Cir., 200 F.2d 334; Cf. United States ex rel. Vassel v. Durning, 2 Cir., 152 F.2d 455.
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_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Robert HARRINGTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 29481
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
July 14, 1971.
Rehearing Denied Sept. 8, 1971.
Robert Harrington, pro se.
William A. Daniel, Jr., Robert W. Rust, U. S. Attys., Miami, Fla., Neal R. Sonnett, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
[1] Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.
DYER, Circuit Judge:
In Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, the Supreme Court held, inter alia, that the privilege against self-incrimination is a complete defense to a prosecution under 26 U.S.C.A. § 4744(a), the Marihuana Tax Act provision which requires payment of the tax upon acquisition of marihuana. This appeal presents the question whether that ruling shall have retrospective application. We conclude that it is to be so applied; and accordingly, we reverse the District Court’s denial of Robert Harrington’s motion under 28 U.S.C.A. § 2255 to vacate his judgment of conviction and sentence.
Harrington was indicted for acquiring approximately one kilogram of marihuana without having paid the transfer tax, in violation of 26 U.S.C.A. § 4744(a) (1); and for ■ transferring the same quantity of marihuana without the proper written order, in violation of 26 U.S. C.A. § 4742(a). He pled guilty under the first count, the “tax count”, whereupon the court dismissed the transfer count on motion of the Government. Harrington was sentenced under the tax count on April 2, 1969. He took no direct appeal, and thus the judgment became final prior to May 19, 1969, when the Supreme Court decided Leary.
I.
In United States v. United States Coin and Currency, 1971, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434, a forfeiture had been ordered against the petitioner for failing to register as a gambler and to pay the related gambling taxes. Previously in Marchetti v. United States, 1968, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, and Grosso v. United States, 1968, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, the Supreme Court had held that the imposition of these registration and taxation burdens on gamblers violated their privilege against self-incrimination. Concluding in United States Coin and Currency, supra, that such a forfeiture was a criminal sanction analogous to a conviction, the Court determined that Marchetti and Grosso would retrospectively apply to forfeitures instituted before those decisions. The Court said:
Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the fact-finding process at trial. Linkletter v. Walker, 381 U.S. 618 [85 S.Ct. 1731, 14 L.Ed.2d 601] (1965); Tehan v. Shott, 382 U.S. 406 [86 S.Ct. 459, 15 L.Ed.2d 453] (1966); Johnson v. New Jersey, 384 U.S. 719 [86 S.Ct. 1772, 16 L.Ed.2d 882] (1966); Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967). Rather Marchetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance. These cases held that gamblers in Angelini’s position had the Fifth Amendment right to remain silent in the face of the statute’s command that they submit reports which could incriminate them. In the absence of a waiver of that right, such persons could not properly be prosecuted at all. (Emphasis supplied)
“* * * [T]he conduct being penalized is constitutionally immune from punishment. No circumstances call more for the invocation of a rule of complete retroactivity.
402 U.S. at 723, 91 S.Ct. at 1045 (footnote omitted).
In Leary the order forms and . the transfer taxes considered were primarily intended to facilitate the prosecution of possessors and sellers of marihuana, just as in Marchetti-Grosso the forms and taxes were avenues to prosecution for gambling. In fact, the Leary Court observed, if “read according to its terms, the Marihuana Tax Act compelled petitioner to expose himself to a ‘real and appreciable’ risk of self-incrimination within the meaning of our decisions in Marchetti, Grosso and Haynes [Haynes v. United States, 1968, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923].” 395 U.S. at 16, 89 S.Ct. at 1537, 23 L.Ed.2d at 70.
Since the first part of Leary — i. e., that dealing with the constitutionality of the transfer tax provisions of § 4744— and Marchetti-Grosso are but variations of a single theme, both must be retroactive. Since Harrington was convicted for violating the statute overturned in the first part of Leary, that count of the conviction cannot stand. Cf. United States v. United States Coin and Currency, supra.
Our conclusion is buttressed by the holding in a case similar to the one sub judice. In United States v. Liguori, 2 Cir. 1970, 430 F.2d 842, the Second Circuit retrospectively applied the Leary ruling that the privilege against self-incrimination is a complete defense to a prosecution under the tax count. The Supreme Court recently denied the Government’s petition for certiorari in Liguori. 402 U.S. 948, 91 S.Ct. 1614, 29 L.Ed.2d 118 [1971].
That same day, the Supreme Court also denied certiorari in United States v. Lucia, 5 Cir. 1970, 423 F.2d 697, wherein this Court en banc had held that Mar-chetti v. United States, supra, is retroactive; and it vacated Decker v. United States, 6 Cir. 1970, 423 F.2d 726, in which the Sixth Circuit had held that Haynes v. United States, supra, is not retroactive. 402 U.S. 937, 91 S.Ct. 1604, 29 L.Ed.2d 106 [1971]. Haynes upheld the privilege against self-incrimination as a defense to prosecution for violating a provision of the National Firearms Act.
Denial of certiorari by the Supreme Court generally is not tantamount to a decision on the merits of an appeal. From the Supreme Court’s rulings in Liguori, Lucia, Decker and Coin and Currency, however, we can reach no conclusion other than the Court’s Leary tax count holding must be retrospective in effect.
We hold further that Harrington has timely asserted the privilege against self-incrimination. Prior to the Supreme Court’s decision in Leary, there had been no authoritative judicial decision upholding the privilege with regard to the tax count offense. Moreover, there was no final assurance that this aspect of Leary was retroactive until the Supreme Court denied certiorari in Liguori, the first ease in which the question was squarely presented. Our own Court held in abeyance cases presenting the question, until the Supreme Court ruled in the Coin and Currency and Liguori cases. This Court cannot charge persons convicted under the tax count with knowing that Leary would be retroactive, when we ourselves were uncertain of the eventual outcome. Therefore, Harrington’s motion to vacate his conviction and sentence under 26 U.S.C. A. § 4744(a) (1) must be granted.
II.
Obviously, Harrington pled guilty under the tax count to avoid the possibility of conviction for unlawful transfer of marihuana under 26 U.S.C.A. § 4742(a). The latter offense carries a mandatory minimum prison term of five years and a maximum of twenty years, as compared to the two and ten year provisions applicable to the tax count. 26 U.S.C.A. § 7237(a), (b). In many cases prior to Leary, the Government agreed to dismiss more serious charges of smuggling, sale, transfer, and so forth of marihuana when the defendant was willing to plead guilty under the tax count.
In his concurring opinion in Liguori, Chief Judge Lumbard opined that prosecution of the appellant on the other counts of his indictment alleging marihuana offenses was permissible. Judge Lumbard stated the applicable doctrine as follows:
In such a situation there appears to be every reason to permit the government either to reindict Liguori on the other counts, or to move in the district court to vacate the dismissal of the other counts. If the government elects to continue with the prosecution of Liguori it must do so promptly, as the acts charged occurred more than four years ago and the running of the statute of limitations will soon become a bar to any further prosecution. In the event the government does continue the prosecution, I do not think that the defense of double jeopardy will be a bar. See United States v. Chase, 372 F.2d 453 (4th Cir. 1967); Robinson v. United States, 284 F.2d 775 (5th Cir. 1960); Hensley v. United States, 82 U.S.App.D.C. 14, 160 F.2d 257, cert. denied, 331 U.S. 817, 67 S.Ct. 1305, 91 L.Ed. 1835 (1947).
430 F.2d at 851.
We are completely in agreement with this pronouncement. Where the tax count conviction resulted from an agreement to dismiss more serious Marihuana Tax Act or narcotic violation counts and the individual has served a relatively small part of the vacated sentence, then prosecution on the more serious count or counts may well be appropriate. By moving to vacate judgment on the tax count, Harrington tacitly repudiates the former plea bargain, whereby he obtained dismissal of other counts of the indictment. Harrington, for example, was also charged with transfer of a considerable quantity of marihuana in violation of a statute which the Supreme Court has held valid. Minor v. United States, 1969, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283. If the Government has substantial evidence that he committed the transfer offense, we are aware of no valid reason why he should not be tried for it.
The order appealed from is reversed, and the ease is remanded with directions to vacate the judgment of conviction and sentence of Harrington. The mandate of this Court will issue forthwith.
Reversed and remanded, with directions.
. We do not now decide whether the Leary holding invalidating the presumption of knowledge of unlawful importation of marihuana, which is stated in 21 U.S.C.A. § 176a, is to be given retrospective application.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_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".
SCHERZER ROLLING LIFT BRIDGE CO. v. CITY OF CHICAGO et al.
(Circuit Court of Appeals, Seventh Circuit.
February 19, 1926.)
No. 3606.
Patents <©=v>328 — No. 735,414, claim 9, for double-deck bascule bridge, held not to involve invention.
Scherzer & Kandeler patent, No. 735,414, claim 9, for a double-deck bascule bridge, held not to involve invention.
Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Suit by the Scherzer Rolling Lift Bridge Company against the City of Chicago and another. From a decree for defendants (2 F.[2d] 601), plaintiff appeals.
Affirmed.
Geo. I. Haight, of Chicago, 111., for appellant.
Geo. A. Chritton and Russell Wiles, both of Chicago, 111., for appellees.
Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.
PAGE, Circuit Judge.
In this action, •upon patent No. 735,414, now expired, invalidity was found. Claim 9, chiefly argued and relied on, is as follows:
“A double-deck baseule bridge comprising” (1) “a lifting span provided with two floors located one above the other,” (2) “and an approach having two corresponding floors or roadways,” (3) “the ends of the span floors which meet the approach floors or roadways being extended past the support by which the span is sustained,” (4) “and the end of the lower span floor which meets the lower approach or roadway being extended past the adjacent end of the upper span floor to a point outside of the path of the said end of the upper span floor.”
Baseule bridges and lifting spans are very old, and in Chicago long antedated the patent in question. Whether a truss-span shall carry one, two, or a dozen floors presents merely questions of loads, thrusts, strains, and stresses, to be determined by mathematical calculations, and does not get into the field of discovery or experimentation. The second element means nothing, except there are to be as many approaches as there are road levels on the bridge. The third and fourth elements present the problem of keeping the ends of the approaches out of the way of the shore end of the span, which must move in the are of a circle when raised and, lowered, clearly a matter within the knowledge of any engineer. Much stress is placed upon the admission of Gen. Goethals that designing such a bridge presented a problem, and that plaintiff’s patent solved that problem. That did not mean that the solution of problems necessarily means invention.
We are of opinion that no invention is shown.
Decree is 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_casetyp1_1-2
|
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 "criminal".
UNITED STATES of America, Appellee, v. Joseph P. CANDELLA et al., Defendants-Appellants.
No. 195, Docket 73-1894.
United States Court of Appeals, Second Circuit.
Argued Oct. 11, 1973.
Decided Nov. 26, 1973.
Certiorari Denied March 18, 1974.
See 94 S.Ct. 1563.
Howard Wilson, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.
Harvey Tropp, New York City (Gordon & Tropp, Joel R. Schweidel, New York City, of counsel), for defendants-appellants.
Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.
MULLIGAN, Circuit Judge:
Joseph P. Candella and John Kevin Gilgan were the principal officers and the sole owners of Beacon Moving and Storage, Inc., a Brooklyn-based moving company. In 1971, Beacon undertook to move the property of four commercial tenants, Lapchinsky Iron Works, Chelsea Desk Co., Precision Container Co. and G.A.L. Manufacturing Co., each of which had been forced to move from Manhattan and Brooklyn sites because of federally funded urban renewal projects. Their property had been condemned by the City of New York and each was entitled to reimbursement from the City for its moving expenses.
The tenants, who had the initial obligation of paying the mover for his services, assigned their claims for reimbursement from the City to the mover, as permitted by the United States Department of Housing and Urban Development (HUD) regulation (24 C.F.R. § 41.12). The City then had the responsibility to process and pay the claims made by the movers. The City, in turn, was entitled to reimbursement by HUD. The City agency in charge,, the Department of Relocation, based its payments on bills submitted by the moving company which were accompanied by so-called “bills of lading,” which detailed the number of man-hours worked on each day by the employees of the mover, plus an affidavit by the mover which attested to the accuracy of the bills of lading. The affidavits relating to the moves involved herein were executed on forms prepared by the City and not by HUD. The convictions appealed from were based on indictments charging that the bills of lading and affidavits submitted by the defendants for the four moves in question were false, in violation of 18 U.S.C. § 1001 and 18 U.S.C. § 2 (aiding and abetting).
Counts 1, 2, 3 and 5 related to false affidavits, and counts 6, 7, 8 and 10 charged that the bills of lading submitted exaggerated the amount of work performed. (Counts 4 and 9, which related to a fifth moving operation, were dismissed for jurisdictional reasons before trial with Government consent.) The jury trial was conducted before Hon. Dudley B. Bonsai, United States District Judge, Southern District of New York. The three defendants were found guilty on all eight counts on February 16, 1973, and judgments were entered on April 3, 1973. Judge Bonsai sentenced Candeda and Gilgan to concurrent prison terms of 60 days on each of the eight counts and fines of $1000 on each count. The corporate defendant Beacon was fined $2000 on each of the eight counts. This appeal followed.
I. JURISDICTION
Appellants first claim that counts 1, 2, 3 and 5 of the indictment, which charged that the “Affidavits by Moving Company for Moving Expenses” with respect to the four moves in question were false, should have been dismissed on defendants’ pre-trial motion for lack of jurisdiction of the subject matter. Appellants’ argument is based on the contention that the affidavits in question were not within the jurisdiction of HUD because they were not forms required by HUD, and were not only gratuitous but improper. Since the statute involved in this case prohibits the making of any false statements in any matter within the jurisdiction of a federal agency, the counts based upon the affidavits must fall if the affidavits were not in a matter within the jurisdiction of HUD.
The applicable HUD regulation is as follows:
(a) Form of claim. To obtain a relocation payment, site occupants shall file written claims with the agency on the appropriate HUD forms.
(b) Documentation in support of a claim. A claim shall be supported by the following:
(1) If for moving expenses; except in the case of a fixed payment, a receipted bill or other evidence of such expenses. By prearrangement between the agency, the site occupant, and the mover, evidenced in writing, the claimant or the mover may present an unpaid moving bill to the agency, and the agency may pay the mover directly.
(2) If for actual direct loss of property, written evidence thereof, which may include appraisals, certified prices, copies of bills of sale, receipts, canceled cheeks, copies of advertisements, offers to sell, auction records, and such other records as may be appropriate to support the claim.
(3) In any other case, such documentation as may be required by the agency, which may include income tax returns; withholding or information statements, and proof of age.
24 C.F.R. § 41.12.
This regulation is interpreted by appellants to preclude the use of the affidavit required by the City. They read § 41.-12(b)(3) to mean that the City may require other documentation in its discretion only in cases not covered by subdivisions (1) and (2). While § 41.-12(b)(1) requires that a claim for moving expenses be supported by a receipted bill (here the “bill of lading”), we cannot construe the regulation to hamstring the City so as to make the bill the sole and exclusive documentation to be submitted. The section in fact permits “other evidence of such expenses.” While HUD may not have provided its own forms for reimbursement in cases not involving moving expenses or direct property losses, there is no language at all in the regulation which precludes the City from employing supplemental documentation in a moving expense situation. We read the regulation as only requiring the minimum; if further documentation was meant to be excluded the regulation could have easily so provided.
The jurisdiction of HUD here is clear. The City entered contracts with the United States on specific urban renewal projects including those which prompted the moving here. The United States became ultimately responsible for paying 100% of the moving expenses incurred by the four concerns involved. The interest of HUD in this matter was made abundantly clear to the appellants. They agreed to be paid by the City instead of the tenants. The affidavits they executed to obtain reimbursement from the City fully explained their purpose and HUD’s involvement, reciting in part:
[T]his affidavit is sent to the City of New York, knowing that the said City of New York, will "rely thereon in making proper payment of Relocation payment for the moving of said Tenant by virtue of Section 114 of the Housing Act of 1949 as amended, and will make this affidavit available to the Department of Housing and Urban Development of the United States of America for the purpose of secur- . ing approval for full or partial reimbursement, and that any false statement will be a violation of the provisions of the United States Code subjecting the maker hereof to the penalties contained in the pertinent sections thereof.
It is thus clear beyond any doubt that the mover not only knew that the City would make the affidavits available to HUD for reimbursement purposes, but that any false statements contained therein would constitute violations of the United States Code subjecting him to criminal sanctions.
In arguing that the affidavits were not made in matters within the jurisdiction of any agency of the United States, appellants rely upon Lowe v. United States, 141 F.2d 1005 (5th Cir. 1944). in that case, an employee of a private shipbuilder made a false statement to his foreman as- to the number of hours he had worked on a particular day. The company had an agreement with the United States Maritime Commission under which it was reimbursed for its payroll costs. The court held that the payroll department of the shipyard company was not an agency of the United States, nor was it controlled or supervised by the federal agency. Hence, there was no offense against the United States. The fact pattern here was, of course, markedly different. Urban renewal is a joint enterprise of the City and the Federal Government. Each government cooperates in the funding of federally assisted projects. The City is responsible for administering federally funded projects, as well as those in which it provides the funding alone. The City’s procedures for direct payment to movers are subject to explicit regulation, supervision and audit by HUD.
In distinguishing Lowe, the Eighth Circuit in Ebeling v. United States, 248 F.2d 429, 435, cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261 (1957) stated:
We read the opinion as implying that there was in that case no charge, or anything to show, that the employee knew that the work which he was doing, and the wages which he claimed, had been made the subject of an express contract provision between his employer and the government, constituting them a matter of direct charge and reimbursing obligation on the part of the United States; that the working time which he turned in thus necessarily would be a matter which was to be used against the government and as to which it accordingly had a right of audit and adjustment; and that in making the false statement with which he was charged, he had turned it in on this basis and with the intent that it was to be accepted and used in that relationship.
The case here is even stronger since the appellants were not only made aware of the nature and purpose of the affidavit, but were further advised that false statements would be violative of the United States Code.
Appellants also argue that counts 1 and 6 of the indictment involving the affidavit and bill of lading submitted by the appellants for the moving of the Lapchinsky Iron Works should have been dismissed since they involved a payment of only $3300. HUD regulations require that all claims for moving expenses in excess of $10,000 be approved by HUD. In the case of claims under $10,000, the City is authorized to make payment without securing express approval from HUD, although the complete file on such claims must be kept available by the City for audit and inspection by HUD. The affidavits and bills presented in connection with the Lapchinsky move thus were not turned over to HUD. Because of this, appellants argue that counts 1 and 6 cannot be said to concern “matters within the jurisdiction” of HUD. Case law makes it clear, however, that a violation of § 1001 does not require that the false statement must actually have been submitted to a department or agency of the United States, but rather that it was contemplated that the statement was to be utilized in a matter which was within the jurisdiction of such department or agency. See United States v. Kraude, 467 F.2d 37, 38 (9th Cir.), cert. denied, 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664 (1972); United States v. Greenberg, 268 F.2d 120, 122 (2d Cir. 1959); United States v. Ebeling, supra, 248 F.2d at 434; United States v. Myers, 131 F.Supp. 525, 529-530 (N.D.Cal.1955).
II. VENUE
The appellants argue that venue was improperly laid in the Southern District of New York with respect to counts 1, 3, 6 and 8, which involved the affidavits and bills of lading of Lapchin-sky and Precision, both Brooklyn-based companies which were being moved from Brooklyn locations. The argument is that since the allegedly false statements were prepared, executed and handed to New York City officials in Brooklyn, the crime was committed there, and the venue is therefore proper only in the Eastern District of New York, which embraces Brooklyn. While the question of whether the trial is conducted almost literally at one end of the Brooklyn Bridge or the other might seem to be a quibble, questions of venue in criminal cases are of constitutional concern. United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 90 L.Ed. 562 (1944). Venue must be laid where the crime was committed, and that place is to be “determined from the nature of the crime alleged and the location of the act or acts constituting it.” United States v. Anderson, 328 U. S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946). The Government argues that venue properly lies in the Southern District because the affidavits and bills of lading in question were simply accepted at the City’s branch offices in Brooklyn for the convenience of parties seeking to file papers with the Department of Relocation and were then conveyed to the central office in Manhattan for examination and payment. The Lap-chinsky documents remained in the City’s Manhattan office for subsequent audit by HUD in New York. The Precision documents, involving expenses in excess of $10,000, were sent to the HUD office in Manhattan, where the City’s initial decision to make payment was approved. The appellants cite no authority for their position but seem to rely on the theory that since enough had been done to constitute a crime in the Eastern District, the crime therefore terminated.
However, under 18 U.S.C. § 3237(a), an offense begun in one district and completed in another, or committed in more than one district, may be prosecuted in any district in which such offense was “begun, continued, or completed.” Although enough was done in the Eastern District to constitute a crime there, as appellants admit (cf. United States v. Ruehrup, 333 F.2d 641 (7th Cir.), cert. denied, 379 U.S. 903, 85 S.Ct. 194, 13 L.Ed.2d 177 (1964)), it does not follow that the crime then terminated, and that what transpired in Manhattan was irrelevant for venue purposes. See United States v. Miller, 246 F.2d 486 (2d Cir.), cert. denied, 355 U.S. 905, 78 S.Ct. 332, 2 L.Ed.2d 261 (1957); De Rosier v. United States, 218 F.2d 420 (5th Cir.), cert. denied, 349 U.S. 921, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). Appellants seek to distinguish Miller and De Rosier because the City and not the defendants (as in those cases) forwarded the offending documents to Manhattan. The City’s accepting the papers in Brooklyn, however, no more confined the offense to Brooklyn than the Post Office Department’s acceptance of the documents in Miller and De Rosier confined the offense in those cases to the district in which the mailbox was located.
We think that venue is properly laid in “the whole area through which force propelled by an offender operates.” United States v. Johnson, supra, 323 U.S. at 275, 65 S.Ct. at 250. The force propelled here by the defendants immediately contemplated Manhattan. 18 U. S.C. § 1001 defines the offense as the making of a false or fraudulent statement or representation in a matter within the jurisdiction of a federal agency. The false statements here were intended to produce funds. The statements continued to be false and continued to be within the jurisdiction of the United States not only when initially presented but also upon arrival in Manhattan, where the decision was reached to make the funds available. See United States v. Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836 (1917). Venue for all counts thus was properly laid in the Southern District of New York.
III. EVIDENCE
The appellants urge that the court below erred in not directing a verdict of acquittal on the ground that the Government had not established that the bills of lading were false. The Government sought to establish falsity by comparing the man-hours for each moving job claimed on the bills of lading with the corporation’s own payroll books. The appellants argue that their payroll books were grossly inaccurate or that even if they were accurate, the Government arbitrarily deleted men and hours found in the payroll book from its computations. We are of course bound to view the evidence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959). There is ample evidence from which the jury could infer that the bills of lading were knowingly false and fraudulent. The claims of appellants were fully presented to the jury below, and we cannot substitute our view for that of the jurors who heard the evidence and observed the witnesses.
IV. CHARGE TO THE JURY
The trial court erroneously charged the jury with respect to the defendants’ position as to the bills of lading. While Judge Bonsai did say that the defendants denied their falsity, he further added: “As- I understand it, they contend here really that they were doing the best they could and that they thought that they should come out with something that was approximating at least the estimate, the City’s estimate of the cost of the job.” However, after objection to this characterization of the position of the defense was made, the trial judge corrected his statement and said: “Then, from the defense side, the defendants are contending here that the hours they did expend on these jobs did total the hours that were in the bills of lading, and I will tell you that that is what the defendants are so contending.” Appellants argue that the judgment below should be reversed because the erroneous charge was never expressly retracted by the trial judge but was merely supplemented.
We cannot agree that reversal is required on these facts. In addition to the corrective charge, the original erroneous charge was not one of law but of fact, and it had been preceded by the statement:
It may help you in your own recollection if I review what I understand to be the contentions here. But this again is a matter for your recollection. I am doing it only perhaps to help you with your recollection.
In light of the prior admonition and the subsequent correction, we cannot find the error so prejudicial as to require a new trial. As the appellants admit, the testimony of defendant Candella that the bills of lading were in fact accurate made the position of the appellants abundantly clear. It is equally clear that the jury did not accept it.
Affirmed.
. 18 U.S.C. § 1001 provides :
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
. Under HUD regulations, the City shares a responsibility to pay a portion of the moving expenses of the tenant. Present regulations continue to provide for City involvement. 24 C.F.R. § 41.13. Due to procedural problems detailed in the affidavit of a HUD official appearing in the record before us, the Comptroller General ruled that HUD would pay for all of the moving expenses involved in the projects here in issue. Thus, the City is not a gratuitious intruder in the auditing process but has a definite stake in assuring that the bills submitted accurately re-fleet the cost of moving. With the widespread publicity attendant upon raids of the City treasury, the affidavit requirement here cannot be at all characterized as improper but is in fact commendable.
. Cases involving erroneous charges of applicable principles of law are not apposite, since the jury is bound by the law enunciated by the judge. Where, as here, the misstatement is one of facts, the jurors’ own recollections of the facts as testified to are controlling and, as we have indicated, they were so advised by the court.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
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sc_lcdisagreement
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify 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.
CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, et al., Petitioners
v.
Teresa SHEEHAN.
No. 13-1412.
Supreme Court of the United States
Argued March 23, 2015.
Decided May 18, 2015.
Christine Van Aken, San Francisco, CA, for petitioners.
Ian H. Gershengornfor the United States as amicus curiae, by special leave of the Court, supporting vacatur in part and reversal in part.
Leonard Feldman, Seattle, WA, for respondent.
Dennis J. Herrera, City Attorney, Christine Van Aken, Chief of Appellate Litigation, Peter J. Keith, Counsel of Record, Deputy City Attorney, San Francisco, CA, for Petitioners.
Ben Nisenbaum, Law Offices of John Burris, Oakland, CA, Jill D. Bowman, Hunter O. Ferguson, Stoel Rives LLP, Seattle, WA, Leonard J. Feldman, Counsel of Record, Peterson Wampold, Rosato Luna Knopp, Seattle, WA, for Respondent.
Opinion
Justice ALITOdelivered the opinion of the Court.
We granted certiorari to consider two questions relating to the manner in which San Francisco police officers arrested a woman who was suffering from a mental illness and had become violent. After reviewing the parties' submissions, we dismiss the first question as improvidently granted. We decide the second question and hold that the officers are entitled to qualified immunity because they did not violate any clearly established Fourth Amendment rights.
I
Petitioners are the City and County of San Francisco, California (San Francisco), and two police officers, Sergeant Kimberly Reynolds and Officer Kathrine Holder. Respondent is Teresa Sheehan, a woman who suffers from a schizoaffective disorder. Because this case arises in a summary judgment posture, we view the facts in the light most favorable to Sheehan, the nonmoving party. See, e.g., Plumhoff v. Rickard,572 U.S. ----, ---- - ----, 134 S.Ct. 2012, 2017, 188 L.Ed.2d 1056 (2014).
In August 2008, Sheehan lived in a group home for people dealing with mental illness. Although she shared common areas of the building with others, she had a private room. On August 7, Heath Hodge, a social worker who supervised the counseling staff in the building, attempted to visit Sheehan to conduct a welfare check. Hodge was concerned because Sheehan had stopped taking her medication, no longer spoke with her psychiatrist, and reportedly was no longer changing her clothes or eating. See 743 F.3d 1211, 1218 (C.A.9 2014); App. 23-24.
Hodge knocked on Sheehan's door but received no answer. He then used a key to enter her room and found Sheehan on her bed. Initially, she would not respond to questions. But she then sprang up, reportedly yelling, "Get out of here! You don't have a warrant! I have a knife, and I'll kill you if I have to." Hodge left without seeing whether she actually had a knife, and Sheehan slammed the door shut behind him. See 743 F.3d, at 1218.
Sheehan, Hodge realized, required "some sort of intervention," App. 96, but he also knew that he would need help. Hodge took steps to clear the building of other people and completed an application to have Sheehan detained for temporary evaluation and treatment. See Cal. Welf. & Inst. Code Ann. § 5150 (West 2015 Cum. Supp.) (authorizing temporary detention of someone who "as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled"). On that application, Hodge checked off boxes indicating that Sheehan was a "threat to others" and "gravely disabled," but he did not mark that she was a danger to herself. 743 F.3d, at 1218. He telephoned the police and asked for help to take Sheehan to a secure facility.
Officer Holder responded to police dispatch and headed toward the group home. When she arrived, Holder reviewed the temporary-detention application and spoke with Hodge. Holder then sought assistance from Sergeant Reynolds, a more experienced officer. After Reynolds arrived and was brought up to speed, Hodge spoke with a nurse at the psychiatric emergency services unit at San Francisco General Hospital who said that the hospital would be able to admit Sheehan.
Accompanied by Hodge, the officers went to Sheehan's room, knocked on her door, announced who they were, and told Sheehan that "we want to help you." App. 36. When Sheehan did not answer, the officers used Hodge's key to enter the room. Sheehan reacted violently. She grabbed a kitchen knife with an approximately 5-inch blade and began approaching the officers, yelling something along the lines of "I am going to kill you. I don't need help. Get out." Ibid.See also id., at 284 ("[Q.] Did you tell them I'll kill you if you don't get out of here? A. Yes"). The officers-who did not have their weapons drawn-"retreated and Sheehan closed the door, leaving Sheehan in her room and the officers and Hodge in the hallway." 743 F.3d, at 1219. The officers called for backup and sent Hodge downstairs to let in reinforcements when they arrived.
The officers were concerned that the door to Sheehan's room was closed. They worried that Sheehan, out of their sight, might gather more weapons-Reynolds had already observed other knives in her room, see App. 228-or even try to flee through the back window, id., at 227. Because Sheehan's room was on the second floor, she likely would have needed a ladder to escape. Fire escapes, however, are common in San Francisco, and the officers did not know whether Sheehan's room had such an escape. (Neither officer asked Hodge about a fire escape, but if they had, it seems he "probably" would have said there was one, id., at 117). With the door closed, all that Reynolds and Holder knew for sure was that Sheehan was unstable, she had just threatened to kill three people, and she had a weapon.
Reynolds and Holder had to make a decision. They could wait for backup-indeed, they already heard sirens. Or they could quickly reenter the room and try to subdue Sheehan before more time elapsed. Because Reynolds believed that the situation "required [their] immediate attention," id., at 235, the officers chose reentry. In making that decision, they did not pause to consider whether Sheehan's disability should be accommodated. See 743 F.3d, at 1219. The officers obviously knew that Sheehan was unwell, but in Reynolds' words, that was "a secondary issue" given that they were "faced with a violent woman who had already threatened to kill her social worker" and "two uniformed police officers." App. 235.
The officers ultimately decided that Holder-the larger officer-should push the door open while Reynolds used pepper spray on Sheehan. With pistols drawn, the officers moved in. When Sheehan, knife in hand, saw them, she again yelled for them to leave. She may also have again said that she was going to kill them. Sheehan is "not sure" if she threatened death a second time, id., at 284, but "concedes that it was her intent to resist arrest and to use the knife," 743 F.3d, at 1220. In any event, Reynolds began pepper-spraying Sheehan in the face, but Sheehan would not drop the knife. When Sheehan was only a few feet away, Holder shot her twice, but she did not collapse. Reynolds then fired multiple shots.After Sheehan finally fell, a third officer (who had just arrived) kicked the knife out of her hand. Sheehan survived.
Sometime later, San Francisco prosecuted Sheehan for assault with a deadly weapon, assault on a peace officer with a deadly weapon, and making criminal threats. The jury acquitted Sheehan of making threats but was unable to reach a verdict on the assault counts, and prosecutors decided not to retry her.
Sheehan then brought suit, alleging, among other things, that San Francisco violated the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U.S.C. § 12101 et seq.,by subduing her in a manner that did not reasonably accommodate her disability. She also sued Reynolds and Holder in their personal capacities under Rev. Stat. § 1979, 42 U.S.C. § 1983, for violating her Fourth Amendment rights. In support of her claims, she offered testimony from a former deputy police chief, Lou Reiter, who contended that Reynolds and Holder fell short of their training by not using practices designed to minimize the risk of violence when dealing with the mentally ill.
The District Court granted summary judgment for petitioners. Relying on Hainze v. Richards,207 F.3d 795 (C.A.5 2000), the court held that officers making an arrest are not required "to first determine whether their actions would comply with the ADA before protecting themselves and others." App. to Pet. for Cert. 80. The court also held that the officers did not violate the Fourth Amendment. The court wrote that the officers "had no way of knowing whether [Sheehan] might escape through a back window or fire escape, whether she might hurt herself, or whether there was anyone else in her room whom she might hurt." Id.,at 71. In addition, the court observed that Holder did not begin shooting until it was necessary for her to do so in order "to protect herself" and that "Reynolds used deadly force only after she found that pepper spray was not enough force to contain the situation." Id.,at 75, 76-77.
On appeal, the Ninth Circuit vacated in part. Relevant here, the panel held that because the ADA covers public "services, programs, or activities," § 12132, the ADA's accommodation requirement should be read to "to encompass 'anything a public entity does,' " 743 F.3d, at 1232. The Ninth Circuit agreed "that exigent circumstances inform the reasonableness analysis under the ADA," ibid., but concluded that it was for a jury to decide whether San Francisco should have accommodated Sheehan by, for instance, "respect[ing] her comfort zone, engag[ing] in non-threatening communications and us[ing] the passage of time to defuse the situation rather than precipitating a deadly confrontation." Id.,at 1233.
As to Reynolds and Holder, the panel held that their initial entry into Sheehan's room was lawful and that, after the officers opened the door for the second time, they reasonably used their firearms when the pepper spray failed to stop Sheehan's advance. Nonetheless, the panel also held that a jury could find that the officers "provoked" Sheehan by needlessly forcing that second confrontation. Id.,at 1216, 1229. The panel further found that it was clearly established that an officer cannot "forcibly enter the home of an armed, mentally ill subject who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry." Id.,at 1229. Dissenting in part, Judge Graber would have held that the officers were entitled to qualified immunity.
San Francisco and the officers petitioned for a writ of certiorari and asked us to review two questions. We granted the petition. 574 U.S. ----, 135 S.Ct. 702, 190 L.Ed.2d 434 (2014).
II
Title II of the ADA commands that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The first question on which we granted review asks whether this provision "requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody." Pet. for Cert. i. When we granted review, we understood this question to embody what appears to be the thrust of the argument that San Francisco made in the Ninth Circuit, namely that " 'Title II does not applyto an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life.' " Brief for Appellees in No. 11-16401(CA9), p. 36 (quoting Hainze, supra,at 801; emphasis added); see also Brief for Appellees in No. 11-16401, at 37 (similar).
As San Francisco explained in its reply brief at the certiorari stage, resolving its "question presented" "does not require a fact-intensive 'reasonable accommodation' inquiry," since "the only question for this Court to resolve is whether any accommodation of an armed and violent individual is reasonable or required under Title II of the ADA." Reply to Brief in Opposition 3.
Having persuaded us to grant certiorari, San Francisco chose to rely on a different argument than what it pressed below. In its brief in this Court, San Francisco focuses on the statutory phrase "qualified individual," § 12132, and a regulation declaring that Title II "does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others." 28 CFR § 35.139(a) (2014). Another regulation defines a "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services." § 35.104. Putting these authorities together, San Francisco argues that "a person who poses a direct threat or significant risk to the safety of others is not qualified for accommodations under the ADA," Brief for Petitioners 17. Contending that Sheehan clearly posed a "direct threat," San Francisco concludes that she was therefore not "qualified" for an accommodation.
Though, to be sure, this "qualified" argument does appear in San Francisco's certiorari petition, San Francisco never hinted at it in the Ninth Circuit. The Court does not ordinarily decide questions that were not passed on below. More than that, San Francisco's new argument effectively concedes that the relevant provision of the ADA, 42 U.S.C. § 12132, may "requir[e] law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody." Pet. for Cert. i. This is so because there may be circumstances in which any "significant risk" presented by "an armed, violent, and mentally ill suspect" can be "eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services."
The argument that San Francisco now advances is predicated on the proposition that the ADA governs the manner in which a qualified individual with a disability is arrested. The relevant provision provides that a public entity may not "exclud[e]" a qualified individual with a disability from "participat [ing] in," and may not "den[y]" that individual the "benefits of[,] the services, programs, or activities of a public entity." § 12132. This language would apply to an arrest if an arrest is an "activity" in which the arrestee "participat[es]" or from which the arrestee may "benefi[t]."
This same provision also commands that "no qualified individual with a disability shall be ... subjected to discrimination by any [public] entity." Ibid.This part of the statute would apply to an arrest if the failure to arrest an individual with a mental disabilityin a manner that reasonably accommodates that disability constitutes "discrimination." Ibid.
Whether the statutory language quoted above applies to arrests is an important question that would benefit from briefing and an adversary presentation. But San Francisco, the United States as amicus curiae,and Sheehan all argue (or at least accept) that § 12132applies to arrests. No one argues the contrary view. As a result, we do not think that it would be prudent to decide the question in this case.
Our decision not to decide whether the ADA applies to arrests is reinforced by the parties' failure to address a related question: whether a public entity can be liable for damages under Title II for an arrest made by its police officers. Only public entities are subject to Title II, see, e.g.,Pennsylvania Dept. of Corrections v. Yeskey,524 U.S. 206, 208, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), and the parties agree that such an entity can be held vicariously liable for money damages for the purposeful or deliberately indifferent conduct of its employees. See Tr. of Oral Arg. 10-12, 22. But we have never decided whether that is correct, and we decline to do so here, in the absence of adversarial briefing.
Because certiorari jurisdiction exists to clarify the law, its exercise "is not a matter of right, but of judicial discretion." Supreme Court Rule 10. Exercising that discretion, we dismiss the first question presented as improvidently granted. See, e.g., Board of Trustees of Univ. of Ala. v. Garrett,531 U.S. 356, 360, n. 1, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001)(partial dismissal); Parker v. Dugger,498 U.S. 308, 323, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991)(same).
III
The second question presented is whether Reynolds and Holder can be held personally liable for the injuries that Sheehan suffered. We conclude they are entitled to qualified immunity.
Public officials are immune from suit under 42 U.S.C. § 1983unless they have "violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Plumhoff,572 U.S., at ----, 134 S.Ct., at 2023(internal quotation marks omitted). An officer "cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in [his] shoes would have understood that he was violating it," ibid., meaning that "existing precedent ... placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd,563 U.S. ----, ----, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). This exacting standard "gives government officials breathing room to make reasonable but mistaken judgments" by "protect [ing] all but the plainly incompetent or those who knowingly violate the law." Id.,at ----, 131 S.Ct., at 2085.
In this case, although we disagree with the Ninth Circuit's ultimate conclusion on the question of qualified immunity, we agree with its analysis in many respects. For instance, there is no doubt that the officers did not violate any federal right when they opened Sheehan's door the first time. See 743 F.3d, at 1216, 1223. Reynolds and Holder knocked on the door, announced that they were police officers, and informed Sheehan that they wanted to help her. When Sheehan did not come to the door, they entered her room. This was not unconstitutional. "[L]aw enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." Brigham City v. Stuart,547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). See also Kentucky v. King,563 U.S. ----, ----, 131 S.Ct. 1849, 1856-1857, 179 L.Ed.2d 865 (2011).
Nor is there any doubt that had Sheehan not been disabled, the officers could have opened her door the second time without violating any constitutional rights. For one thing, "because the two entries were part of a single, continuous search or seizure, the officers [were] not required to justify the continuing emergency with respect to the second entry." 743 F.3d, at 1224(following Michigan v. Tyler,436 U.S. 499, 511, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)). In addition, Reynolds and Holder knew that Sheehan had a weapon and had threatened to use it to kill three people. They also knew that delay could make the situation more dangerous. The Fourth Amendment standard is reasonableness, and it is reasonable for police to move quickly if delay "would gravely endanger their lives or the lives of others." Warden, Md. Penitentiary v. Hayden,387 U.S. 294, 298-299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). This is true even when, judged with the benefit of hindsight, the officers may have made "some mistakes." Heien v. North Carolina,574 U.S. ----, ----, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014). The Constitution is not blind to "the fact that police officers are often forced to make split-second judgments." Plumhoff, supra,at ----, 134 S.Ct., at 2020.
We also agree with the Ninth Circuit that after the officers opened Sheehan's door the second time, their use of force was reasonable. Reynolds tried to subdue Sheehan with pepper spray, but Sheehan kept coming at the officers until she was "only a few feet from a cornered Officer Holder." 743 F.3d, at 1229. At this point, the use of potentially deadly force was justified. See Scott v. Harris,550 U.S. 372, 384, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Nothing in the Fourth Amendment barred Reynolds and Holder from protecting themselves, even though it meant firing multiple rounds. See Plumhoff, supra,at ----, 134 S.Ct., at 2022.
The real question, then, is whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan's door rather than attempting to accommodate her disability. Here we come to another problem. San Francisco, whose attorneys represent Reynolds and Holder, devotes scant briefing to this question. Instead, San Francisco argues almost exclusively that even if it is assumed that there was a Fourth Amendment violation, the right was not clearly established. This Court, of course, could decide the constitutional question anyway. See Pearson v. Callahan,555 U.S. 223, 242, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)(recognizing discretion). But because this question has not been adequately briefed, we decline to do so. See id.,at 239, 129 S.Ct. 808. Rather, we simply decide whether the officers' failure to accommodate Sheehan's illness violated clearly established law. It did not.
To begin, nothing in our cases suggests the constitutional rule applied by the Ninth Circuit. The Ninth Circuit focused on Graham v. Connor,490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), but Grahamholds only that the " 'objective reasonableness' " test applies to excessive-force claims under the Fourth Amendment. See id.,at 388, 109 S.Ct. 1865. That is far too general a proposition to control this case. "We have repeatedly told courts-and the Ninth Circuit in particular-not to define clearly established law at a high level of generality." al-Kidd, supra,at ----, 131 S.Ct., at 2084(citation omitted); cf. Lopez v. Smith,574 U.S. ----, ----, 135 S.Ct. 1, 3-4, 190 L.Ed.2d 1 (2014)(per curiam). Qualified immunity is no immunity at all if "clearly established" law can simply be defined as the right to be free from unreasonable searches and seizures.
Even a cursory glance at the facts of Grahamconfirms just how different that case is from this one. That case did not involve a dangerous, obviously unstable person making threats, much less was there a weapon involved. There is a world of difference between needlessly withholding sugar from an innocent person who is suffering from an insulin reaction, see Graham, supra,at 388-389, 109 S.Ct. 1865, and responding to the perilous situation Reynolds and Holder confronted. Grahamis a nonstarter.
Moving beyond Graham,the Ninth Circuit also turned to two of its own cases. But even if "a controlling circuit precedent could constitute clearly established federal law in these circumstances," Carroll v. Carman,574 U.S. ----, ----, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014)(per curiam), it does not do so here.
The Ninth Circuit first pointed to Deorle v. Rutherford,272 F.3d 1272 (C.A.9 2001), but from the very first paragraph of that opinion we learn that Deorleinvolved an officer's use of a beanbag gun to subdue "an emotionally disturbed" person who "was unarmed, had not attacked or even touched anyone, had generally obeyed the instructions given him by various police officers, and had not committed any serious offense." Id.,at 1275. The officer there, moreover, "observed Deorle at close proximity for about five to ten minutes before shooting him" in the face. See id.,at 1281. Whatever the merits of the decision in Deorle,the differences between that case and the case before us leap from the page. Unlike Deorle, Sheehan was dangerous, recalcitrant, law-breaking, and out of sight.
The Ninth Circuit also leaned on Alexander v. City and County of San Francisco,29 F.3d 1355 (C.A.9 1994), another case involving mental illness. There, officials from San Francisco attempted to enter Henry Quade's home "for the primary purpose of arresting him" even though they lacked an arrest warrant. Id.,at 1361. Quade, in response, fired a handgun; police officers "shot back, and Quade died from gunshot woundsshortly thereafter." Id.,at 1358. The panel concluded that a jury should decide whether the officers used excessive force. The court reasoned that the officers provoked the confrontation because there were no "exigent circumstances" excusing their entrance. Id.,at 1361.
Alexandertoo is a poor fit. As Judge Graber observed below in her dissent, the Ninth Circuit has long read Alexandernarrowly. See 743 F.3d, at 1235(Graber, J., concurring in part and dissenting in part) (citing Billington v. Smith,292 F.3d 1177 (C.A.9 2002)). Under Ninth Circuit law,an entry that otherwise complies with the Fourth Amendment is not rendered unreasonable because it provokes a violent reaction. See id.,at 1189-1190. Under this rule, qualified immunity necessarily applies here because, as explained above, competent officers could have believed that the second entry was justified under both continuous search and exigent circumstance rationales. Indeed, even if Reynolds and Holder misjudged the situation, Sheehan cannot "establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided." Id., at 1190. Courts must not judge officers with "the 20/20 vision of hindsight.' " Ibid.(quoting Graham,490 U.S., at 396, 109 S.Ct. 1865).
When Graham,Deorle,and Alexanderare viewed together, the central error in the Ninth Circuit's reasoning is apparent. The panel majority concluded that these three cases "would have placed any reasonable, competent officer on notice that it is unreasonable to forcibly enter the home of an armed, mentally ill suspect who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry." 743 F.3d, at 1229. But even assuming that is true, no precedent clearly established that there was not "an objective need for immediate entry" here. No matter how carefully a reasonable officer read Graham,Deorle,and Alexanderbeforehand, that officer could not know that reopening Sheehan's door to prevent her from escaping or gathering more weapons would violate the Ninth Circuit's test, even if all the disputed facts are viewed in respondent's favor. Without that "fair notice," an officer is entitled to qualified immunity. See, e.g., Plumhoff,572 U.S., at ----, 134 S.Ct., at 2023.
Nor does it matter for purposes of qualified immunity that Sheehan's expert, Reiter, testified that the officers did not follow their training. According to Reiter, San Francisco trains its officers when dealing with the mentally ill to "ensure that sufficient resources are brought to the scene," "contain the subject" and "respect the suspect's "comfort zone," "use time to their advantage," and "employ non-threatening verbal communication and open-ended questions to facilitate the subject's participation in communication." Brief for Respondent 7. Likewise, San Francisco's policy is " 'to use hostage negotiators' " when dealing with " 'a suspect [who] resists arrest by barricading himself.' " Id.,at 8 (quoting San Francisco Police Department General Order 8.02, § II(B) (Aug. 3, 1994), online at http://www.sf-police. org (as visited May 14, 2015, and available in Clerk of Court's case file)).
Even if an officer acts contrary to her training, however, (and here, given the generality of that training, it is not at all clear that Reynolds and Holder did so), that does not itself negate qualified immunity where it would otherwise be warranted. Rather, so long as "a reasonable officer could have believed that his conduct was justified," a plaintiff cannot "avoi[d] summary judgment by simply producing an expert's report that an officer's conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless." Billington, supra,at 1189. Cf. Saucier v. Katz,533 U.S. 194, 216, n. 6, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)(GINSBURG, J., concurring in judgment) (" '[I]n close cases, a jury does not automatically get to second-guess these life and death decisions, even though a plaintiff has an expert and a plausible claim that the situation could better have been handled differently' " (quoting Roy v. Inhabitants of Lewiston,42 F.3d 691, 695 (C.A.1 1994))). Considering the specific situation confronting Reynolds and Holder, they had sufficient reason to believe that their conduct was justified.
Finally, to the extent that a "robust consensus of cases of persuasive authority" could itself clearly establish the federal right respondent alleges, al-Kidd,563 U.S., at ----, 131 S.Ct., at 2084, no such consensus exists here. If anything, the opposite may be true. See, e.g., Bates v. Chesterfield County,216 F.3d 367, 372 (C.A.4 2000)("Knowledge of a person's disability simply cannot foreclose officers from protecting themselves, the disabled person, and the general public"); Sanders v. Minneapolis,474 F.3d 523, 527 (C.A.8 2007)(following Bates, supra); Menuel v. Atlanta,25 F.3d 990 (C.A.11 1994)(upholding use of deadly force to try to apprehend a mentally ill man who had a knife and was hiding behind a door).
In sum, we hold that qualified immunity applies because these officers had no "fair and clear warning of what the Constitution requires." al-Kidd, supra,at ----, 131 S.Ct., at 2086-2087(KENNEDY, J., concurring). Because the qualified immunity analysis is straightforward, we need not decide whether the Constitution was violated by the officers' failure to accommodate Sheehan's illness.
* * *
For these reasons, the first question presented is dismissed as improvidently granted. On the second question, we reverse the judgment of the Ninth Circuit. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice BREYER took no part in the consideration or decision of this case.
Justice SCALIA, with whom Justice KAGANjoins, concurring in part and dissenting in part.
The first question presented (QP) in the petition for certiorari was "Whether Title II of the Americans with Disabilities Act [ (ADA) ] requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody." Pet. for Cert. i. The petition assured us (quite accurately), and devoted a section of its argument to the point, that "The Circuits Are In Conflict On This Question." Id.,at 18. And petitioners faulted the Ninth Circuit for "holding that the ADA's reasonable accommodation requirement applies to officers facing violent circumstances," a conclusion that was "in direct conflict with the categorical prohibition on such claims adopted by the Fifth and Sixth Circuits." Ibid.Petitioners had expressly advocated for the Fifth and Sixth Circuits' position in the Court of Appeals. See Appellees' Answering Brief in No. 11-16401 (CA9), pp. 35-37 ("[T]he ADA does not apply to police officers' responses to violent individuals who happen to be mentally ill, where officers have not yet brought the violent situation under control").
Imagine our surprise, then, when the petitioners' principal brief, reply brief, and oral argument had nary a word to say about that subject. Instead, petitioners bluntly announced in their principal brief that they "do not assert that the
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_opinstat
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B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
INSURANCE COMPANY OF NORTH AMERICA v. Daniel Lee McCLEAVE et al. Appeal of COMMITTEE ON CAMPS AND CONFERENCES OF the SOUTHERN NEW JERSEY ANNUAL CONFERENCE OF the UNITED METHODIST CHURCH (formerly known as Conference Center Commission in No. 71-1594. Appeal of BOARD OF TRUSTEES OF the SOUTHERN NEW JERSEY ANNUAL CONFERENCE OF the UNITED METHODIST CHURCH in No. 71-1595. Appeal of the BOARD OF EDUCATION OF the SOUTHERN NEW JERSEY ANNUAL CONFERENCE in No. 71-1596.
Nos. 71-1594 to 71-1596.
United States Court of Appeals, Third Circuit.
Argued April 17, 1972.
Decided May 10, 1972.
Prank F. Neutze, Jr., Cummins & Neutze, Pennsauken, N. J., for appellants.
William G. Bischoff, Taylor, Bischoff, Williams & Martin, Camden, N. J., for appellees.
Before ADAMS, GIBBONS and MAX ROSENN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
On July 28, 1955, while attending a camp operated by the defendants in this action other than himself, Daniel Me-Cleave, then a minor, sustained an injury which resulted in the loss of sight in one of his eyes. The operators of the camp had in effect at that time insurance policies with both the Insurance Company of North America [I.N.A.], the plaintiff here, and Continental Casualty Co. Timely notice of the injury was given to Continental which proceeded to make payments of hospital and medical expenses pursuant to the policy issued by it. Notice of the accident was not given to I.N.A., however, until September 9, 1968, more than thirteen years following the occurrence when Daniel McCleave issued a claim against the operators of the camp. I.N.A. then opened a file and began to investigate the claim. The investigation proved to be difficult because of the dimmed memories of those who had been present at the camp when the incident occurred, and because Continental had destroyed its files concerning the matter.
In June, 1969, Daniel McCleave filed suit in the New Jersey Superior Court against the other defendants in the present action based on the events occurring in 1955. The papers were forwarded by the defendants in the New Jersey action to I.N.A. which referred the matter to its counsel. By letter dated August 8, 1969, I.N.A. informed its assured that I.N.A. reserved all its rights to investigate and conduct the defense of the New Jersey suit brought by Daniel Mc-Cleave without waiving any of its defenses under the contract — late notice being one such defense.
In 1970, I.N.A. commenced the present action in the district court under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, against Daniel McCleave and the operators of the camp, requesting the court to declare that there was no coverage under the policy issued by I.N.A. for the injuries sustained by Daniel McCleave in 1955. After a trial without a jury, the district court entered judgment for I.N.A., and the defendant-operators of the camp appeal.
The only contention advanced by the appellants is that since I.N.A. waited eleven months before it sent a Reservation of Rights letter to the operators of the camp, it is now estopped from relying on the operators’ delay in notifying I.N.A. of the occurrence of the accident. Although a serious issue is raised by I. N.A. that the appellants waived their es-toppel defense by failing to litigate the question at the trial, in view of the disposition we make of the case, it is unnecessary to decide the waiver question.
It is a well established rule that the party seeking to take advantage of the doctrine of estoppel must have relied to his detriment on some action or inaction by the other party. See, 1 Williston on Contracts § 139 (3d Ed. 1957). And that concept is not foreign to this Court. “The appellants failing to show that they acted to their detriment in reasonable reliance on manifestations by RFC ... no question of estoppel is presented.” Bailis v. Reconstruction Finance Corp., 128 F.2d 857, 859 (3d Cir. 1942) (Emphasis added). See also, Allied Steel Construction Co. v. Employers Casualty Co., 422 F.2d 1369, 1371 (10th Cir. 1970).
The operators of the camp have failed to show any prejudice suffered by them as a result of their apparent assumption that I.N.A. would not disclaim coverage. Thus, the doctrine of estoppel may not now be invoked to defeat I.N.A.’s action for declaratory judgment.
Accordingly, the judgment of the district court will be affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
MacDONALD v. HUDSPETH, Warden.
No. 2351.
Circuit Court of Appeals, Tenth Circuit.
Jan. 12, 1942.
Gordon E. MacDonald, pro se.
Summerfield S. Alexander and Homer Davis, both of Topeka, Kan., for appellee.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
This is an appeal from a judgment denying discharge in a proceeding in habeas corpus.
The Appellant, herein called petitioner, was indicted in the Western District of Missouri. The indictment contained eleven counts, charging fraudulent use of the mails in violation of Section 215 of the Criminal Code, Title 18 U.S.C.A. § 338. He was removed from Mobile, Alabama to Kansas City, Missouri in February 1939 to answer the charges of the indictment.
Upon his arrival in Kansas City, and before his commitment to the Jackson County jail, he conferred with counsel, a Mr. Rucker of the Kansas City Bar, who had been engaged by a friend of the petitioner. Soon thereafter, he told the United States Attorney, “I have an attorney, he will do all my talking.” While in the Jackson County jail, pending trial in default of bond, he negotiated with at least two other attorneys of the Kansas City Bar, a Mr. Gardner, to whom he paid a fee of $25.00, and a Mr. Nugent. It is not shown that Mr. Gardner performed any legal services for him, but Mr. Nu-gent did present certain matters not here material.
The petitioner had several conferences with the United States Attorney, who gave him a copy of the indictment, and with the Post Office Inspector at Kansas City. After prolonged negotiations between the petitioner, his attorney, and the United States Attorney, he appeared in open court on September 18, 1939, with his counsel, Mr. Rucker. He entered his plea of guilty to each of the eleven counts contained in the indictment and was sentenced to serve a total of ten years in the penitentiary; five years on counts one and two to run consecutively and five years on counts three to eleven to run concurrently with count one. He was duly committed to the Penitentiary at Leavenworth, Kansas, to serve the sentence imposed.
Thereafter he applied to the District Court for the District of Kansas for a writ of habeas corpus, alleging that the various counts of the indictment failed to state an offense; that he lacked mental and physical capacity to understand the import and true meaning of his action in entering his plea of guilty to the several counts of the indictment; that the Post Office Inspector seized, confiscated and retained his private papers and documents without a search warrant; that he was held incommunicado in the Jackson County jail and was thereby prevented from obtaining his release on bail and preparing his defense; that he was induced to enter a plea of guilty by his attorney, Chris H. Rucker, on the representation that the sentence would not exceed two months in addition to the time that he had served in jail.
The Warden filed his answer in -which he admitted the guilty plea, and the sentence, but denied the other facts set up as grounds for discharge. The trial court denied the writ, based partly on ex parte evidence, which this court reversed in Case No. 2263 on authority of Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, and the proceedings here are supplemental to the former case.
Pursuant to the mandate of this court, a writ of habeas corpus was issued out of the District Court of Kansas, the appellant was removed from the Penitentiary at Leavenworth, Kansas, and appeared in person, together with his attorney appointed by the District Court. Witnesses who had been subpoenaed by the petitioner appeared in person, testimony was adduced and the parties were given an opportunity to brief the points involved, pursuant to which the court entered its order from which this appeal is taken.
The trial court found that the petitioner in person and by counsel voluntarily, freely, intelligently and competently entered his plea of guilty to the several counts in the indictment; that he was not held incommunicado in the Jackson County jail; that he was at all times represented by one Chris H. Rucker, an attorney of the Kansas City Bar, who fully advised him of his rights and the nature of the charges against him, appeared and represented petitioner at the time the plea of guilty was entered; that the petitioner was not insane at the time he entered the plea of guilty, but was above the average intelligence and perfectly rational; that he was not influenced or intimidated by his attorney; that he was given full and complete opportunity to be heard by the judge who sentenced him; and that none of his constitutional rights were denied him, either prior to or at the time he entered his plea of guilty.
The record amply supports the findings of the trial court. The indictment clearly charges offenses under Section 215 of the Criminal Code. Title 18 U.S. C.A. § 338. The trial court properly denied the writ.
Petitioner also complains in his supplemental petition for habeas corpus that the trial court was biased and prejudiced against him, and that he did not receive a fair trial.
No statutory affidavit was filed but petitioner stated at the hearing that he did not have sufficient time to meet the statutory requirements. The trial court made inquiry concerning the grounds for his disqualifications, in answer to which the petitioner stated that the trial judge was biased and prejudiced against the petitioner because he had formerly on August 27, 1940 denied the petitioner’s application for a writ without affording him an opportunity to appear in person to testify in his own behalf.
It is sufficient to say that there is nothing in the record, or which can be inferred from the record, or in statements made by the petitioner, that the trial court was disqualified to try the issues presented. The contentions of the petitioner in this respect are utterly without merit and the judgment of the trial court is affirmed.
No written opinion.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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