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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
Donald J. TRUMP, Petitioner
v.
Cyrus R. VANCE, Jr., in His Official Capacity as District Attorney of the County of New York, et al.
No. 19-635
Supreme Court of the United States.
Argued May 12, 2020
Decided July 9, 2020
Jay A. Sekulow, Washington, DC, Solicitor General Noel J. Francisco for the United States, as amicus curiae, by special leave of the Court, for Petitioner.
Carey R. Dunne, New York, NY, for Respondents.
William S. Consovoy, Alexa R. Baltes, Consovoy McCarthy PLLC, 1600 Wilson Boulevard, Ste. 700, Arlington, VA, Patrick Strawbridge, Consovoy McCarthy PLLC, Ten Post Office Square, 8th Floor South Pmb #706, Boston, MA, Jay Alan Sekulow, Counsel of Record, Stuart J. Roth, Jordan Sekulow, Constitutional Litigation and Advocacy Group, P.C., 1701 Pennsylvania Ave, NW, Ste. 200, Washington, DC, for president Donald J. Trump.
Caitlin Halligan, Ryan W. Allison, David A. Coon, Selendy & Gay PLLC, 1290 Sixth Avenue, New York, NY, Walter Dellinger, Duke University Law School, Science Drive &, Towerview Road, Durham, NC, Carey R. Dunne, Christopher Conroy, Solomon B. Shinerock, James H. Graham, Sarah Walsh, Allen J. Vickey, New York County, District Attorney's Office, One Hogan Place, New York, NY, for Respondent Cyrus R. Vance.
Jay Alan Sekulow, Stuart J. Roth, Jordan Sekulow, Constitutional Litigation and Advocacy Group, P.C., 1701 Pennsylvania Ave, NW, Ste. 200, Washington, DC, Stefan C. Passantino, Michael Best & Friedrich LLP, 1000 Maine Ave. SW, Ste. 400, Washington, DC, William S. Consovoy, Thomas R. McCarthy, Alexa R. Baltes, Jordan M. Call, Consovoy McCarthy PLLC, 1600 Wilson Boulevard, Ste. 700, Arlington, VA, Patrick Strawbridge, Consovoy McCarthy PLLC, Ten Post Office Square, 8th Floor South PMB #706, Boston, MA, for Petitioners.
Chief Justice ROBERTS delivered the opinion of the Court.
In our judicial system, "the public has a right to every man's evidence." Since the earliest days of the Republic, "every man" has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves-so far as we and the parties can tell-the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.
I
In the summer of 2018, the New York County District Attorney's Office opened an investigation into what it opaquely describes as "business transactions involving multiple individuals whose conduct may have violated state law." Brief for Respondent Vance 2. A year later, the office-acting on behalf of a grand jury-served a subpoena duces tecum (essentially a request to produce evidence) on Mazars USA, LLP, the personal accounting firm of President Donald J. Trump. The subpoena directed Mazars to produce financial records relating to the President and business organizations affiliated with him, including "[t]ax returns and related schedules," from "2011 to the present." App. to Pet. for Cert. 119a.
The President, acting in his personal capacity, sued the district attorney and Mazars in Federal District Court to enjoin enforcement of the subpoena. He argued that, under Article II and the Supremacy Clause, a sitting President enjoys absolute immunity from state criminal process. He asked the court to issue a "declaratory judgment that the subpoena is invalid and unenforceable while the President is in office" and to permanently enjoin the district attorney "from taking any action to enforce the subpoena." Amended Complaint in No. 1:19-cv-8694 (SDNY, Sept. 25, 2019), p. 19. Mazars, concluding that the dispute was between the President and the district attorney, took no position on the legal issues raised by the President.
The District Court abstained from exercising jurisdiction and dismissed the case based on Younger v. Harris , 401 U. S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), which generally precludes federal courts from intervening in ongoing state criminal prosecutions. 395 F.Supp.3d 283, 290 (SDNY 2019). In an alternative holding, the court ruled that the President was not entitled to injunctive relief. Ibid.
The Second Circuit met the District Court halfway. As to the dismissal, the Court of Appeals held that Younger abstention was inappropriate because that doctrine's core justification-"preventing friction" between States and the Federal Government-is diminished when state and federal actors are already in conflict, as the district attorney and the President were. 941 F.3d 631, 637, 639 (2019).
On the merits, the Court of Appeals agreed with the District Court's denial of a preliminary injunction. Drawing on the 200-year history of Presidents being subject to federal judicial process, the Court of Appeals concluded that "presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President." Id. , at 640. It also rejected the argument raised by the United States as amicus curiae that a state grand jury subpoena must satisfy a heightened showing of need. The court reasoned that the proposed test, derived from cases addressing privileged Executive Branch communications, "ha[d] little bearing on a subpoena" seeking "information relating solely to the President in his private capacity and disconnected from the discharge of his constitutional obligations." Id., at 645-646.
We granted certiorari. 589 U. S. ----, 140 S.Ct. 659, 205 L.Ed.2d 418 (2019).
II
In the summer of 1807, all eyes were on Richmond, Virginia. Aaron Burr, the former Vice President, was on trial for treason. Fallen from political grace after his fatal duel with Alexander Hamilton, and with a murder charge pending in New Jersey, Burr followed the path of many down-and-out Americans of his day-he headed West in search of new opportunity. But Burr was a man with outsized ambitions. Together with General James Wilkinson, the Governor of the Louisiana Territory, he hatched a plan to establish a new territory in Mexico, then controlled by Spain. Both men anticipated that war between the United States and Spain was imminent, and when it broke out they intended to invade Spanish territory at the head of a private army.
But while Burr was rallying allies to his cause, tensions with Spain eased and rumors began to swirl that Burr was conspiring to detach States by the Allegheny Mountains from the Union. Wary of being exposed as the principal co-conspirator, Wilkinson took steps to ensure that any blame would fall on Burr. He sent a series of letters to President Jefferson accusing Burr of plotting to attack New Orleans and revolutionize the Louisiana Territory.
Jefferson, who despised his former running mate Burr for trying to steal the 1800 presidential election from him, was predisposed to credit Wilkinson's version of events. The President sent a special message to Congress identifying Burr as the "prime mover" in a plot "against the peace and safety of the Union." 16 Annals of Cong. 39-40 (1807). According to Jefferson, Burr contemplated either the "severance of the Union" or an attack on Spanish territory. Id. , at 41. Jefferson acknowledged that his sources contained a "mixture of rumors, conjectures, and suspicions" but, citing Wilkinson's letters, he assured Congress that Burr's guilt was "beyond question." Id. , at 39-40.
The trial that followed was "the greatest spectacle in the short history of the republic," complete with a Founder-studded cast. N. Isenberg, Fallen Founder: The Life of Aaron Burr 351 (2007). People flocked to Richmond to watch, massing in tents and covered wagons along the banks of the James River, nearly doubling the town's population of 5,000. Burr's defense team included Edmund Randolph and Luther Martin, both former delegates at the Constitutional Convention and renowned advocates. Chief Justice John Marshall, who had recently squared off with the Jefferson administration in Marbury v. Madison , 1 Cranch 137, 2 L.Ed. 60 (1803), presided as Circuit Justice for Virginia. Meanwhile Jefferson, intent on conviction, orchestrated the prosecution from afar, dedicating Cabinet meetings to the case, peppering the prosecutors with directions, and spending nearly $100,000 from the Treasury on the five-month proceedings.
In the lead-up to trial, Burr, taking aim at his accusers, moved for a subpoena duces tecum directed at Jefferson. The draft subpoena required the President to produce an October 21, 1806 letter from Wilkinson and accompanying documents, which Jefferson had referenced in his message to Congress. The prosecution opposed the request, arguing that a President could not be subjected to such a subpoena and that the letter might contain state secrets. Following four days of argument, Marshall announced his ruling to a packed chamber.
The President, Marshall declared, does not "stand exempt from the general provisions of the constitution" or, in particular, the Sixth Amendment's guarantee that those accused have compulsory process for obtaining witnesses for their defense. United States v. Burr , 25 F.Cas. 30, 33-34 (No. 14,692d) (CC Va. 1807). At common law the "single reservation" to the duty to testify in response to a subpoena was "the case of the king," whose "dignity" was seen as "incompatible" with appearing "under the process of the court." Id. , at 34. But, as Marshall explained, a king is born to power and can "do no wrong." Ibid. The President, by contrast, is "of the people" and subject to the law. Ibid. According to Marshall, the sole argument for exempting the President from testimonial obligations was that his "duties as chief magistrate demand his whole time for national objects." Ibid. But, in Marshall's assessment, those demands were "not unremitting." Ibid. And should the President's duties preclude his attendance at a particular time and place, a court could work that out upon return of the subpoena. Ibid.
Marshall also rejected the prosecution's argument that the President was immune from a subpoena duces tecum because executive papers might contain state secrets. "A subpoena duces tecum," he said, "may issue to any person to whom an ordinary subpoena may issue." Ibid. As he explained, no "fair construction" of the Constitution supported the conclusion that the right "to compel the attendance of witnesses[ ] does not extend" to requiring those witnesses to "bring[ ] with them such papers as may be material in the defence." Id. , at 35. And, as a matter of basic fairness, permitting such information to be withheld would "tarnish the reputation of the court." Id. , at 37. As for "the propriety of introducing any papers," that would "depend on the character of the paper, not on the character of the person who holds it." Id. , at 34. Marshall acknowledged that the papers sought by Burr could contain information "the disclosure of which would endanger the public safety," but stated that, again, such concerns would have "due consideration" upon the return of the subpoena. Id. , at 37.
While the arguments unfolded, Jefferson, who had received word of the motion, wrote to the prosecutor indicating that he would-subject to the prerogative to decide which executive communications should be withheld-"furnish on all occasions, whatever the purposes of justice may require." Letter from T. Jefferson to G. Hay (June 12, 1807), in 10 Works of Thomas Jefferson 398, n. (P. Ford ed. 1905). His "personal attendance," however, was out of the question, for it "would leave the nation without" the "sole branch which the constitution requires to be always in function." Letter from T. Jefferson to G. Hay (June 17, 1807), in id. , at 400-401, n.
Before Burr received the subpoenaed documents, Marshall rejected the prosecution's core legal theory for treason and Burr was accordingly acquitted. Jefferson, however, was not done. Committed to salvaging a conviction, he directed the prosecutors to proceed with a misdemeanor (yes, misdemeanor) charge for inciting war against Spain. Burr then renewed his request for Wilkinson's October 21 letter, which he later received a copy of, and subpoenaed a second letter, dated November 12, 1806, which the prosecutor claimed was privileged. Acknowledging that the President may withhold information to protect public safety, Marshall instructed that Jefferson should "state the particular reasons" for withholding the letter. United States v. Burr , 25 F.Cas. 187, 192, (No. 14694) (CC Va. 1807). The court, paying "all proper respect" to those reasons, would then decide whether to compel disclosure. Ibid. But that decision was averted when the misdemeanor trial was cut short after it became clear that the prosecution lacked the evidence to convict.
In the two centuries since the Burr trial, successive Presidents have accepted Marshall's ruling that the Chief Executive is subject to subpoena. In 1818, President Monroe received a subpoena to testify in a court-martial against one of his appointees. See Rotunda, Presidents and Ex-Presidents as Witnesses: A Brief Historical Footnote, 1975 U. Ill. L. Forum 1, 5. His Attorney General, William Wirt-who had served as a prosecutor during Burr's trial-advised Monroe that, per Marshall's ruling, a subpoena to testify may "be properly awarded to the President." Id. , at 5-6. Monroe offered to sit for a deposition and ultimately submitted answers to written interrogatories.
Following Monroe's lead, his successors have uniformly agreed to testify when called in criminal proceedings, provided they could do so at a time and place of their choosing. In 1875, President Grant submitted to a three-hour deposition in the criminal prosecution of a political appointee embroiled in a network of tax-evading whiskey distillers. See 1 R. Rotunda & J. Nowak, Constitutional Law § 7.1(b)(ii), p. 996 (5th ed. 2012) (Rotunda & Nowak). A century later, President Ford's attempted assassin subpoenaed him to testify in her defense. See United States v. Fromme , 405 F.Supp. 578 (ED Cal. 1975). Ford obliged-from a safe distance-in the first videotaped deposition of a President. President Carter testified via the same means in the trial of two local officials who, while Carter was Governor of Georgia, had offered to contribute to his campaign in exchange for advance warning of any state gambling raids. See Carter's Testimony, on Videotape, Is Given to Georgia Gambling Trial, N. Y. Times, Apr. 20, 1978, p. A20 (Carter recounted that he "rejected the proposition instantly."). Two years later, Carter gave videotaped testimony to a federal grand jury investigating whether a fugitive financier had entreated the White House to quash his extradition proceedings. See Rotunda & Nowak § 7.1(b)(vi), at 997. President Clinton testified three times, twice via deposition pursuant to subpoenas in federal criminal trials of associates implicated during the Whitewater investigation, and once by video for a grand jury investigating possible perjury. See id. , § 7.1(c)(viii), at 1007-1008.
The bookend to Marshall's ruling came in 1974 when the question he never had to decide-whether to compel the disclosure of official communications over the objection of the President-came to a head. That spring, the Special Prosecutor appointed to investigate the break-in of the Democratic National Committee Headquarters at the Watergate complex filed an indictment charging seven defendants associated with President Nixon and naming Nixon as an unindicted co-conspirator. As the case moved toward trial, the Special Prosecutor secured a subpoena duces tecum directing Nixon to produce, among other things, tape recordings of Oval Office meetings. Nixon moved to quash the subpoena, claiming that the Constitution provides an absolute privilege of confidentiality to all presidential communications. This Court rejected that argument in United States v. Nixon , 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), a decision we later described as "unequivocally and emphatically endors[ing] Marshall's" holding that Presidents are subject to subpoena. Clinton v. Jones , 520 U.S. 681, 704, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997).
The Nixon Court readily acknowledged the importance of preserving the confidentiality of communications "between high Government officials and those who advise and assist them." 418 U.S. at 705, 94 S.Ct. 3090. "Human experience," the Court explained, "teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." Ibid. Confidentiality thus promoted the "public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking." Id. , at 708, 94 S.Ct. 3090.
But, like Marshall two centuries prior, the Court recognized the countervailing interests at stake. Invoking the common law maxim that "the public has a right to every man's evidence," the Court observed that the public interest in fair and accurate judicial proceedings is at its height in the criminal setting, where our common commitment to justice demands that "guilt shall not escape" nor "innocence suffer." Id. , at 709, 94 S.Ct. 3090 (internal quotation marks and alteration omitted). Because these dual aims would be "defeated if judgments" were "founded on a partial or speculative presentation of the facts," the Nixon Court recognized that it was "imperative" that "compulsory process be available for the production of evidence needed either by the prosecution or the defense." Ibid.
The Court thus concluded that the President's "generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial." Id. , at 713, 94 S.Ct. 3090. Two weeks later, President Nixon dutifully released the tapes.
III
The history surveyed above all involved federal criminal proceedings. Here we are confronted for the first time with a subpoena issued to the President by a local grand jury operating under the supervision of a state court.
In the
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_genapel1
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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 is to determine the nature of the first listed appellant.
F & S CONSTRUCTION COMPANY, Inc., an Arizona corporation, Appellant, v. Oliver Andrew JENSEN and Neldo M. Jensen, Appellees. F & S CONSTRUCTION COMPANY, Inc., an Arizona corporation, Appellant, v. Orval Eldan WINTERS and Ruth W. Winters, Appellees.
Nos. 7470, 7473.
United States Court of Appeals Tenth Circuit.
Sept. 1, 1964.
Rehearing Denied Nov. 5, 1964.
William E. Kenworthy, of Fugate, Mitchem & Hoffman, Denver, Colo., for appellant.
Robert G. Mcllhenny, Denver, Colo. (George Castillo, Denver, Colo., on the brief), for appellees.
Before PICKETT, LEWIS and HILL, Circuit Judges.
PICKETT, Circuit Judge.
These consolidated appeals present the question of the sufficiency of the amount in controversy to give the district court jurisdiction under the provisions of 28 U.S.C. § 1332(a). In each ease the complaint alleges that the plaintiff purchased a home in Adams County, Colorado from the defendant for a consideration of $10,-500; that the value of the property was increased to approximately $13,000 through improvements; that because of defects in the houses the properties were rendered valueless and the damages sustained by the plaintiffs was approximately $14,000. The allegations as to the value of the properties were denied, and in its answers, the defendant did not admit that the amount in controversy exceeded $10,000, but put the plaintiffs “to strict proof thereon.” Thereafter defendant moved to dismiss the actions upon the grounds that the plaintiffs could not in good faith assert that their damages exceeded the sum of $10,000. This motion was denied. The cases were tried to the court without a jury, and damages in the sum of $5,000 was awarded to each.
Upon the trial, plaintiffs established their damages as the difference between the value of the properties in an undamaged condition and the value after the defects occurred. The evidence was without conflict that plaintiffs’ properties as improved, without the defects and damages which occurred after the properties were purchased, would have a value of from $12,000 to $13,000. The highest cost for necessary repairs to the houses was given as $7,000, and as low as $5,000. The plaintiffs’ evidence was that the present fair market value of the houses at the time of trial was between $6,500 and $7,000. The Winters’ house sold for $7,500 at about the time the action was brought. It appears that the Jensens were living in their home at the time of trial. The record clearly shows that the plaintiffs never had a claim which would exceed $10,000, and that the allegation with reference thereto was inflated for jurisdictional purposes. In each case, the court found that the plaintiff’s claim for damages in excess of $10,000 could not have been made in good faith. Plaintiffs were denied their costs and judgment for the defendant for its costs was entered.
Prior to 1958 the amount in controversy necessary to give federal district courts jurisdiction in diversity cases was $3,000. To relieve the congestion caused by the rapidly increasing number of civil cases brought in federal courts, 28 U.S.C. § 1332(a) was amended to raise the jurisdictional amount to $10,000. Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890, rehearing denied 368 U.S. 870, 82 S.Ct. 24, 7 L.Ed.2d 70; U.S.Code Cong. & Adm. News 1958, Vol. 2, p. 3099. Section 1332 was also amended to authorize the district court to deny costs to the plaintiff and to impose defendant’s costs upon the plaintiff in any case where the plaintiff’s recovery was less than the sum or value of $10,000.
It is now settled that when there is an issue as to the sufficiency of the jurisdictional amount, the burden of proving jurisdiction is on the party asserting it. City of Lawton, Okl. v. Chapman, 10 Cir., 257 F.2d 601; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135. Furthermore, statutes conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved against federal jurisdiction. Aetna Ins. Co. v. Chicago, R. I. & P. R. R., 10 Cir., 229 F.2d 584; Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248.
Ordinarily the amount claimed by the plaintiff in pleadings controls if the claim is apparently in good faith, even though the recovery is less than the jurisdictional amount. But if it is established, as a matter of law, before trial or during the trial, that the plaintiff was not entitled to recover an amount equal to the jurisdictional requirement, the court does not have jurisdiction. The test enunciated in St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 is: “But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.” Similar language was used by this court in Wyoming Ry. Co. v. Herrington, 10 Cir., 163 F.2d 1004, 1006, where it was said:
“It is only where it appears to a legal certainty from the face of the complaint that the plaintiff cannot recover an amount within the jurisdiction of the court, or where it appears from the proof that the plaintiff never was entitled to recover that amount, and that the claim is merely colorable for the purpose-of conferring jurisdiction, that a suit of this kind will be dismissed for want of the requisite amount in controversy.”
See, also McAleer v. McNally Pittsburg Mfg. Corp., 3 Cir., 307 F.2d 220; Panama Transport Co. v. Greenberg, 1 Cir., 290 F.2d 125, cert. denied 368 U.S. 891, 82 S.Ct. 143, 7 L.Ed.2d 88; Matthiesen v. Northwestern Mut’l Ins. Co., 5 Cir., 286 F.2d 775; Fireman’s Fund Ins. Co. v. Railway Express Agcy., 6 Cir., 253 F.2d 780; Branding Iron Club v. Riggs, 10 Cir., 207 F.2d 720; Berger v. Austin, Nichols & Co., 7 Cir., 170 F.2d 330; National Surety Corp. v. City of Excelsior Springs, 8 Cir., 123 F.2d 573, 156 A.L.R. 422; 1 Barron & Holtzoff, Federal Practice and Procedure, § 24, p. 105, et seq.
Here the court, from substantial evidence, found in each case that the-allegation of the amount in controversy was not made in good faith. The theory of the plaintiffs’ damages in each case-establishes to a legal certainty that they were not and could not be damaged in an amount in excess of $10,000. We find no decision which has sustained federal jurisdiction in a diversity case where it was found that the allegation as to the amount in controversy was not made in good faith.
Reversed and remanded with instructions to dismiss the actions.
. The facts in these cases as to the cause of the damage to the same kind of houses are essentially the same as those in F & S Construction Co. v. Berube, 10 Cir., 322 F.2d 782. The attorneys for the plaintiffs here represented the plaintiffs in the Berube case and knew that the recovery did not approach the sum of $10,-000.
. These values were established by the testimony of a real estate dealer who had “handled a considerable number of houses in the Thornton area which have had damage similar to that of plaintiffs’ house.”
. The problem of the trial courts when the jurisdiction is challenged for insufficiency of amount in controversy is well expressed by Judge Kaufman in Brown v. Bodak, D.C.S.D.N.Y., 188 F.Supp. 532, 533-534, where it is said:
“The question is, then, whether the plaintiff is legitimately and honestly claiming that the amount of his damages exceeded the jurisdictional amount, or whether his claim is solely for the purpose of attaining federal jurisdiction. It is clear that this inquiry is not foreclosed merely because the plaintiff bases a portion of his claim for damages upon an allegation of pain and suffering; the court must still determine the good faith of these allegations. See Turner v. Wilson Line of Massachusetts, 1 Cir., 1957, 242 F.2d 414, 419; Leehans v. American Employers Ins. Co., 5 Cir., 1959, 273 F.2d 72. The inquiry should be a careful one, in light of the clear Congressional policy, expressed at the time of the recent amendment raising the requisite jurisdictional amount requirements. It was the intention of Congress to remove from the federal courts claims insubstantial in character, which contributed to the mounting backlogs of these courts. See 1958 U.S.Code Congressional and Administrative News pp. 2594-95. If plaintiffs could avoid the jurisdictional amount requirements merely by alleging damages in excess of the jurisdictional amount, the purpose of this amendment would be largely negated.”
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:
|
sc_issue_1
|
17
|
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.
ONE LOT EMERALD CUT STONES AND ONE RING v. UNITED STATES
No. 72-376.
Decided December 11, 1972
Per Curiam.
On June 5, 1969, Francisco Farkac Klementova entered the United States without declaring to United States Customs one lot of emerald cut stones and one ring. Klementova was indicted, tried, and acquitted of charges of violating 18 U. S. C. § 545 by willfully and knowingly, with intent to defraud the United States, smuggling the articles into the United States without submitting to the required customs procedures. Following the acquittal, the Government instituted a forfeiture action in the United States District Court, Southern District of Florida, under 18 U. S. C. § 545 and § 497 of the Tariff Act of 1930, 46 Stat. 728, 19 U. S. C. § 1497. Klementova intervened in the proceeding and argued that his acquittal of charges of violating 18 U. S. C. § 545 barred the forfeiture. The District Court held that the forfeiture was barred by collateral estoppel and the Fifth Amendment. The United States Court of Appeals for the Fifth Circuit reversed, holding that a forfeiture action pursuant to 19 U. S. C. § 1497 was not barred by an acquittal of charges of violating 18 U. S. C. § 545. We grant certiorari, affirm, and thereby resolve a conflict among the circuits as to whether a forfeiture is barred in these circumstances.
Collateral estoppel would bar a forfeiture under § 1497 if, in the earlier criminal proceeding, the elements of a § 1497 forfeiture had been resolved against the Government. Ashe v. Swenson, 397 U. S. 436, 443 (1970). But in this case acquittal on the criminal charge did not necessarily resolve the issues in the forfeiture action. For the Government to secure a conviction under § 545, it must prove the physical act of unlawful importation as well as a knowing and willful intent to defraud the United States. An acquittal on the criminal charge may have involved a finding that the physical act was not done with the requisite intent. Indeed, the court that tried the criminal charge specifically found that the Government had failed to establish intent. To succeed in a forfeiture action under § 1497, on the other hand, the Government need only prove that the property was brought into the United States without the required declaration; the Government bears no burden with respect to intent. Thus, the criminal acquittal may not be regarded as a determination that the property was not unlawfully brought into the United States, and the forfeiture proceeding will not involve an issue previously litigated and finally determined between these parties.
Moreover, the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel. The acquittal of the criminal charges may have only represented “ 'an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.’ ” Helvering v. Mitchell, 303 U. S. 391, 397 (1938). As to the issues raised, it does not constitute an adjudication on the preponderance-of-the-evidence burden applicable in civil proceedings. See Murphy v. United States, 272 U. S. 630 (1926); Stone v. United States, 167 U. S. 178 (1897).
If for no other reason, the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments. “Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.” Helvering v. Mitchell, supra, at 399. See also United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943). Forfeiture under § 1497 is a civil sanction. The provision was originally enacted as § 497 of the Tariff Act of 1922, 42 Stat. 964. The Tariff Act of 1930 re-enacted the forfeiture remedy, 46 Stat. 728, and added § 593, 46 Stat. 751, which became 18 U. S. C. § 545. The forfeiture provision fell within Title IY of the Act, which contained the “Administrative Provisions.” Part III of that title, of which § 1497 was a part, dealt with “Ascertainment, Collection, and Recovery of Duties.” Section 545, on the other hand, was part of the “Enforcement Provisions” and became part of the Criminal Code of the United States. The fact that the sanctions were separate and distinct and were contained in different parts of the statutory scheme is relevant in determining the character of the forfeiture. Congress could and did order both civil and criminal sanctions, clearly distinguishing them. There is no reason for frustrating that design. See Helvering v. Mitchell, supra, at 404.
The § 1497 forfeiture is intended to aid in the enforcement of tariff regulations. It prevents forbidden merchandise from circulating in the United States, and, by its monetary penalty, it provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses. In other contexts we have recognized that such purposes characterize remedial rather than punitive sanctions. See id., at 401; United States ex rel. Marcus v. Hess, supra, at 549-550; Rex Trailer Co. v. United States, 350 U. S. 148, 151-154 (1956). Moreover, it cannot be said that the measure of recovery fixed by Congress in § 1497 is so unreasonable or excessive that it transforms what was clearly intended as a civil remedy into a criminal penalty. Rex Trailer Co. v. United States, supra, at 154. See Murphy v. United States, supra; United States ex rel. Marcus v. Hess, supra.
“Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforcible by civil proceedings .... In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions.” Helvering v. Mitchell, supra, at 400.
The question of whether a given sanction is civil or criminal is one of statutory construction.- Id., at 399. It appears that the § 1497 forfeiture is civil and remedial, and, as a result, its imposition is not barred by an acquittal of charges of violating § 545.
Affirmed.
“Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or
“Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—
“Shall be fined not more than $10,000 or imprisoned not more than five years, or both.
“Proof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.
“Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States.
“The term ‘United States/ as used in this section, shall not include the Philippine Islands, Virgin Islands, American Samoa, Wake Island, Midway Islands, Kingman Reef, Johnston Island, or Guam.”
Title 19 U. S. C. § 1497 provides:
“Any article not included in the declaration and entry as made, and, before examination of the baggage was begun, not mentioned in writing by such person, if written declaration and entry was required, or orally if written declaration and entry was not required, shall be subject to forfeiture and such person shall be liable to a penalty equal to the value of such article.”
In United States v. Two Hundred and One Fifty-Pound Bags of Furazolidone, No. 71-1329 (1971), cert. denied, 405 U. S. 964 (1972), the Court of Appeals for the Eighth Circuit affirmed a summary judgment on the basis of a previous acquittal of charges of violating § 545 in favor of the owner of property in a forfeiture action commenced by the Government under 18 U. S. C. § 545 and 19 U. S. C. § 1460. The Court of Appeals for the First Circuit agrees with the view of the Fifth Circuit in the present case. See Leiser v. United States, 234 F. 2d 648, cert. denied, 352 U. S. 893 (1956).
We need not, and do not, decide whether an acquittal under § 545 bars a forfeiture under § 545.
The judge at the criminal trial specifically stated:
“He is, obviously, a sophisticated dealer in emeralds and other jewelry.
“I don’t condone nor do I approve, for one minute, what he did in this instance. I think he knew that that jewelry — that that ring and those emeralds should have been declared.
“He made a declaration of some cigarettes and some whiskey, several other little odd, meager items there, but I’m not persuaded beyond a reasonable doubt that he did what he did with the intent to defraud the United States.”
The difference in the issues involved in the criminal proceeding, on the one hand, and the forfeiture action, on the other, serves to distinguish Coffey v. United States, 116 U. S. 436 (1886), relied upon by the District Court in the present case. Coffey involved a forfeiture action commenced after an acquittal. This Court noted, in holding the forfeiture barred, that “[t]he information [for forfeiture] is founded on §§3257, 3450 and 3453; and there is no question, on the averments in the answer, that the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information, and covered by the verdict and judgment of acquittal, embraced all of the acts, attempts and intents averred in the information in this suit.” Id., at 442. The Court specifically distinguished the situation where “a certain intent must be proved to support the indictment, which need not be proved to support the civil action.” Id., at 443. See also Stone v. United States, 167 U. S. 178 (1897).
The District Court relied upon the following language in United States v. U. S. Coin & Currency, 401 U. S. 715, 718 (1971):
“But as Boyd v. United States, 116 U. S. 616, 634 (1886), makes clear, 'proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offences committed by him, though they may be civil in form, are in their nature criminal’ for Fifth Amendment purposes.” (Emphasis in United States v. U. S. Coin & Currency.)
Section 1497 does not result in a forfeiture by reason of the commission of a criminal offense. A forfeiture results from the act of importation without following customs procedures; no criminal offense, much less a criminal conviction, is required. Cf. id., at 718-722.
One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693 (1965), is likewise inapposite for it dealt with a forfeiture that could not be had without a “determination that the criminal law has been violated.” Id., at 701.
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
|
songer_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Helinda JIMENEZ, Appellant, v. UNITED STATES of America, Appellee.
No. 24698.
United States Court of Appeals, Fifth Circuit.
Feb. 9, 1970.
Marian S. Rosen, Clyde W. Woody, Houston, Tex., for appellant.
James R. Gough and Gerald Applewhite, Asst. U. S. Attys., Houston, Tex., for appellee.
Before AINSWORTH and SIMPSON, Circuit Judges, and SINGLETON, District Judge.
ON PETITION FOR REHEARING
PER CURIAM:
Helinda Jimenez was convicted on a two-count indictment charging her with violations of 21 U.S.C. § 174 (1964). Her conviction was based upon her discovered possession of heroin. We affirmed that conviction on June 26, 1968. We withheld a determination on this petition for rehearing pending action by the Supreme Court in two cases. That action has now been taken. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (January 20, 1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Neither Turner nor Leary casts doubt upon the validity of the conviction we consider here. The section 174 presumption re-maing viable with respect to heroin. The petition for rehearing is accordingly denied.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Edmund WINKLER, Appellant, v. Samuel W. PRINGLE and the Pennsylvania Railroad Company, a Corporation, Appellees.
Third Circuit.
No. 14365.
United States Court of Appeals Argued Oct. 17, 1963.
Decided Nov. 5, 1963.
Edmund Winkler, pro se.
Bruce R. Martin, Pringle, Bredin & Martin, Pittsburgh, Pa., for appellees.
Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.
PER CURIAM.
Appellant, a naturalized citizen and resident of Pennsylvania, sued the defendant railroad in the Court of the Common Pleas, Allegheny County, Commonwealth, of Pennsylvania, for alleged personal injuries and property damage as a result of a collision between his automobile which he was driving and a train of the railroad. The other defendant, an attorney, represented the railroad in that action. The trial judge, while he thought that the plaintiff’s “ * * * case is very, very slim * * * ” felt that “ * * * the jury should pass on it.” The jury did so and found in favor of the defendant railroad. Plaintiff in that trial claimed leg injuries as a result of the accident. In the course of the trial it appeared from plaintiff’s testimony that his legs had also been damaged from treatment received by him while a prisoner in a Russian prison camp during the last war. The closing arguments of counsel, if they were taken stenographically, have never been transcribed. It is claimed by appellant that in the summation by defendant Pringle he referred to appellant as a “foreigner”. Appellant’s attorney, summing up in that suit, did refer to appellant’s experience in a Russian prison camp. On a defense mistrial motion as to this, the trial judge, denying the motion, instructed the jury:
“I will say this to you twelve men and women — I believe in you, in all of you, and some experience that some litigant may have had in Russia hasn’t any part in this case at all; and neither is there any prejudice against the railroad nor does it have any place in this case at all. This case is to be decided by you twelve folks, unanimously, upon the facts and circumstances that existed on July 14,1956 and that alone. The question that you have to decide, as I see it, and I may as well say it now, is was the Railroad Company negligent, was Mr. Winkler contributorily negligent, was he negligent. That is all you have to decide.”
There was no objection to the alleged language of the defense at the time uttered or thereafter in plaintiff’s post trial motion. No appeal was taken from the judgment entered in favor of the defendant.
Later appellant sued the railroad and its attorney in the state court for defamation arising out of the alleged above noted remark. The defense demurrer to that action was sustained, 110 Pittsburgh L.J. 323 (1962). The appeal to the Pennsylvania Supreme Court was dismissed for failure to prosecute. This suit based on the same ground followed, plaintiff claiming a violation of his rights under the Fourteenth Amendment and the Civil Rights Act. The defendant moved to dismiss, contending that no cause of action was stated, no jurisdiction and that the Pennsylvania Statute of Limitations, 12 P.S. §§ 31, 32, barred the claim. The district court granted the motion. It held that this was clearly a suit by an individual asserting an invasion of his civil rights by individuals for which remedy must be had in the state courts unless diversity of citizenship exists between the parties. The opinion went on to state “Plaintiff does not argue or contend that any of the named parties in the above suit are anything but residents and domiciliaries of Pennsylvania.” The opinion further holds that in support of the bare assertion that the state court officials, including two of the three judges who comprised the court which dismissed the state defamation cause, conspired to deny appellant justice, appellant “ * * * does not aver a single fact upon which he can achieve his aim.”
Our review of the entire record on file in this court satisfies us that the action of the district court was proper.
In the original negligence trial, appellant’s suit was strongly attacked by the contentions that the proofs showed he had been at fault in the accident and that he had not been as badly hurt as contended. Any American citizen, as he is, in those circumstances might well have been exposed to an uncomplimentary view of his claim as presented by the other side. And so too with respect to the appellees’ brief in this appeal. Appellant in his pro se brief does use violent language which appellees characterize as “scandalous”. Appellant is upset about this but very largely brought it on himself. Nothing more need be said regarding it.
The judgment of the district court will be affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_usc2sect
|
846
|
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 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellee, v. Jesse COLLINS, Appellant. UNITED STATES of America, Appellee, v. Leon HAMMONDS, Appellant.
Nos. 76-1741 and 76-1766.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 14, 1977.
Decided March 28, 1977.
Rehearing Denied in No. 76-1741 May 5,1977.
Stephen J. Murphy, Affton, Mo., for Collins.
Clifford Schwartz, Clayton, Mo., for Hammonds. Charles M. Shaw, Clayton, Mo., on brief.
Richard A. Heidenry, Asst. U. S. Atty., St. Louis, Mo., for appellee. Barry A. Short, U. S. Atty., and Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., on briefs.
Before HEANEY and STEPEHENSON, Circuit Judges, and STUART, District Judge.
The Honorable William C. Stuart, United States District Judge for the Southern District of Iowa, sitting by designation.
STUART, District Judge.
Jesse Collins and Leon Hammonds appeal from judgments of conviction, entered following a jury trial, of conspiracy to distribute and distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Collins and Hammonds were charged in a four-count indictment. Count I charged both with conspiracy to distribute heroin from prior to October 15, 1975, until March 18, 1976, and Count II charged both with distribution of approximately 14.937 grams of heroin on October 15, 1975. Counts III and IV charged Hammonds with distribution of heroin on March 2 and 18, 1976, respectively-
Collins contends on appeal that there was insufficient evidence to sustain his conviction on Counts I and II. Both Collins and Hammond contend that the trial court’s instruction characterizing extrajudicial statements of appellants, which were introduced at trial, as confessions constituted prejudicial error. Appellant Hammonds asserts that there was insufficient evidence of his involvement in a conspiracy to warrant introduction into evidence of tape-recorded conversations between other alleged conspirators; that the trial court erred in permitting impeachment by a prior felony conviction when imposition of sentence had been suspended under Missouri law; and that the trial court erroneously instructed the jury on impeachment and reasonable doubt. We affirm the convictions on all issues raised on appeal.
The relevant evidence viewed in the light most favorable to the Government as the prevailing party, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) follows. On several occasions, prior to October 15, 1975, James C. Lewis, an informant for the United States Drug Enforcement Agency, telephoned Collins attempting to establish contact with one Donnell Pickens. Subsequently, Lewis, Special Agent Ankton and Collins drove to a house located at 7326 Midland View, St. Louis, Missouri. Eventually Pickens arrived and money and heroin were exchanged. Collins tested the heroin, received the money from Lewis and transferred it to Pickens. Collins was not, however, the one who purchased or sold heroin. On March 2, 1976, the federal agents bypassed Collins and dealt directly with Donnell Pickens. Upon receiving a quantity of money, Pickens obtained heroin from Hammonds and transferred it to the agents. A similar transaction took place between the agents, Pickens and Hammonds on March 18, 1976.
Sufficiency of the Evidence — Collins— Count I
Collins presents no serious challenge to the actual existence of a conspiracy; rather he asserts that although a conspiracy may have existed, the evidence is insufficient to establish that he was a part of it. In considering a challenge to the sufficiency of the evidence, this court must accept as' established all reasonable inferences from the evidence that tend to support the jury’s verdict. 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). It is the general rule that the evidence need not “exclude every reasonable hypothesis except that of guilt but simply that it be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty.” United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975). See also United States v. Jackson, 549 F.2d 517 (8th Cir., 1977). Mere association with those individuals engaged in the actual sale of heroin does not create an inference of guilt. United States v. Hassell, 547 F.2d 1048 (8th Cir., 1977); United States v. Frol, 518 F.2d 1134, 1137 (8th Cir. 1975); United States v. Quintana, 508 F.2d 867, 880 (7th Cir. 1975). Knowledge of the existence or acquiescence in a conspiracy does not serve to render one a part of the conspiracy. There must exist some element of affirmative cooperation or at least an agreement to cooperate. United States v. Hassell, supra; United States v. Amato, 495 F.2d 545, 550 (5th Cir.), cert. denied, 419 U.S. 1013, 95 S.Ct. 333, 42 L.Ed.2d 286 (1974); Miller v. United States, 382 F.2d 583, 587 (9th Cir. 1967), cert. denied, 390 U.S. 984, 88 S.Ct. 1108, 19 L.Ed.2d 1285, rehearing denied, 391 U.S. 971, 88 S.Ct. 2037, 20 L.Ed.2d 888 (1968). A particular individual’s participation in a conspiracy may be established by evidence that otherwise seems slight. United States v. Hassell, supra; United States v. Verdoorn, 528 F.2d 103, 105 (8th Cir. 1976); United States v. Baumgarten, 517 F.2d 1020, 1026 (8th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975); United States v. Overshon, supra.
We conclude that there was sufficient evidence to connect appellant Collins with the conspiracy. Collins secured the introduction of federal agents to Pickens, arranged and attended the meeting at which the sale took place, and was affirmatively involved in the transaction itself. There was clearly sufficient evidence for the jury to find Collins guilty of being involved in the conspiracy to distribute heroin. See United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976).
Sufficiency of the Evidence — Collins— Count II
Collins next contends that because his only involvement with the actual transaction was as a conduit in the exchange of money and heroin, the evidence is insufficient to sustain his conviction of actual distribution under 21 U.S.C. § 841(a)(1). This argument is clearly without merit. Collins was not charged with the sale of a controlled substance. Rather, he was charged under the provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970 which makes it unlawful to knowingly and intentionally distribute heroin. According to the statutory definition “distribute” means “to deliver * * * a controlled substance.” 21 U.S.C. § 802(11). Moreover, the statute defines “deliver” as the “actual, constructive or attempted transfer of a controlled substance, whether or not there exists an agency relationship.” 21 U.S.C. § 802(8). Collins’ actions, whether sufficient to support a conviction for the sale of heroin, are clearly within the scope of the statutory definition of distribution. The argument advanced by Collins in this respect has been rejected by every circuit which has considered it. See United States v. Snow, 537 F.2d 1166, 1169 (4th Cir. 1976); United States v. Marquez, 511 F.2d 62, 64 (10th Cir. 1975); United States v. Oquendo, 505 F.2d 1307, 1310 (5th Cir. 1975); United States v. Pierce, 162 U.S.App.D.C.170, 498 F.2d 712 (1974); United States v. Pruitt, 487 F.2d 1241 (8th Cir. 1973); United States v. Hernandez, 480 F.2d 1044 (9th Cir. 1973); United States v. Masullo, 489 F.2d 217 (2d Cir. 1973). As chief Judge Gibson observed:
These prior concepts have been discarded in the Controlled Substances Act which contains no sale or buying requirement to support a conviction; there is now an offense of participation in the transaction viewed as a whole. * * *
Any individual who participates in any manner in the unauthorized distribution of such “controlled substances” is amenable to the Act and the sanctions provided therein.
United States v. Pruitt, supra at 1245. The contention in this regard is without merit.
Instruction Concerning Extrajudicial Statements
Both Collins and Hammonds next assert that the trial court’s instruction concerning certain extrajudicial statements made prior to trial was prejudicial. The instruction submitted provided in pertinent part:
Evidence relating to any statement, or act or omission, claimed to have been made or done by a defendant outside of court, and after a crime has been committed, should always be considered with caution and weighed with great care; and all such evidence should be disregarded entirely, unless the evidence in the case convinces the jury beyond a reasonable doubt that the statement, or act or omission, was knowingly made or done.
# * * * * *
If the evidence in the case does not convince beyond a reasonable doubt that a confession was made voluntarily and intentionally, you should disregard it entirely. On the other hand, if the evidence in the case does show beyond a reasonable doubt that a confession was in fact voluntarily and intentionally made by a defendant, you may consider it as evidence in the case against the defendant who voluntarily and intentionally made the confession.
Appellants do not dispute that certain inculpatory statements were made nor that they were properly admitted into evidence. They contend rather that characterizing the statements as confessions rather than as admissions invades the province of the jury and is prejudicial. However, it appears from the record that no objection was taken to any of the court’s instructions until after the jury had retired to begin its deliberations. Consequently, any objection to the jury instructions was untimely. Fed.R. Crim.P. 30 provides in part:
No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.
Accordingly, the right to assign as error the instruction now attacked has been waived. See Willis v. United States, 530 F.2d 308, 311 (8th Cir. 1976); United States v. Hinderman, 528 F.2d 100, 102 (8th Cir. 1976); United States v. Treatman, 524 F.2d 320, 322 (8th Cir. 1975); United States v. Freeman, 514 F.2d 171, 174 (8th Cir. 1975). There was no plain error affecting substantial rights of the appellants.
Tape-recorded Con versations- — Hammonds
The evidence shows that Agent Ankton and Lewis met on March 2, 1976. Lewis was outfitted with a body transmitter known as a Kel recorder. Exhibit 2 is a recording of a conversation between Lewis, Ankton and Donnell Pickens received from such transmitter. Government’s exhibit 3 is a tape-recording of a telephone conversation between Ankton and Pickens. Hammonds asserts that there was not sufficient evidence independent of these tape-recordings to establish that he was a part of the conspiracy to distribute heroin.
A statement by a coconspirator made during the course of and in furtherance of the conspiracy is not hearsay. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). It is, rather, admissible as the admission of a party opponent. Fed.R.Evid. 801(d)(2)(E); Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Williams, 529 F.2d 557 (8th Cir. 1976), cert. denied, 426 U.S. 908, 96 S.Ct. 2232, 48 L.Ed.2d 834 (1976); United States v. Buckhanon, 505 F.2d 1079, 1084 (8th Cir. 1974); United States v. Richardson, 477 F.2d 1280, 1282-83 (8th Cir.), cert. denied, 414 U.S. 843, 94 S.Ct. 104, 38 L.Ed.2d 82 (1973). The evidence shows that on March 2, 1976, Ankton, Lewis and Pickens met with appellant Hammonds in the parking lot of a Burger Chef restaurant at De Valviere and Pershing. Pickens received $1,100 from the agents, entered the car driven by Hammonds and returned with a quantity of heroin. On March 18, 1976, Ankton and Special Agent Archie Luss again met with Pickens at the same Burger Chef parking lot. Pickens made a telephone call and upon the arrival of Hammonds received $2,050 from Luss, entered the Hammonds vehicle and returned with what was later analyzed as heroin.
From these facts we conclude that there was sufficient evidence to support the district court’s ruling permitting the tape-recorded conversation into evidence. The fact that on March 2 and 18 Pickens was unable to deliver any heroin until contacting and meeting Hammonds is sufficient to establish Hammonds as part of the conspiracy to distribute heroin. Consequently there can be no question that the statements were admissible against him. United States v. Amato, supra; Miller v. United States, 382 F.2d 583, 587 (8th Cir. 1967), cert. denied, 390 U.S. 984, 88 S.Ct. 1108, 19 L.Ed.2d 1285 rehearing denied, 391 U.S. 971, 88 S.Ct. 2037, 20 L.Ed.2d 888 (1968).
Suspended Sentence Used for Impeachment
Hammonds next contends that the trial court erred in allowing his testimony to be impeached, and instructing the jury on impeachment by the use of a prior felony conviction. He bases this argument on the fact that he had received a suspended sentence and under Missouri law a suspended sentence is not a final judgment of conviction. However, since Hammonds appeals a federal conviction we need not reach this question of interpretation of Missouri law. In a federal criminal prosecution federal standards are to be applied to determine the admissibility of evidence. Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934); United States v. Dudek, 530 F.2d 684, 689 (6th Cir. 1976). We think this issue is controlled by our recent decision in United States v. Rose, 526 F.2d 745 (8th Cir. 1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). In Rose at the time of trial the jury had returned a verdict against the witness Simmons but judgment had not been entered thereon. In discussing the use of this conviction we said:
We find no significant difference between the jury’s finding of guilt and the entry of judgment thereon as far as probative value for impeachment purposes. United States v. Canaday, 466 F.2d 1191, 1192 (9th Cir. 1972); see United States v. Turner, 497 F.2d 406, 407-408 (10th Cir. 1974).
United States v. Rose, supra at 747. See also United States v. Bianco, 419 F.Supp. 507, 509-510 (E.D.Pa.1976).
In addition we think this situation is substantially analogous to those cases in which a prior felony conviction was utilized in a subsequent trial when the conviction is pending appeal. In United States v. Williams, 484 F.2d 428 (8th Cir. 1973), this court undertook a full and comprehensive discussion concerning use of prior felony convictions, subsequently reversed on appeal, for both establishing a substantive element of the offense of illegal possession of a firearm and as an impeachment tool. Relying on an opinion from the Ninth Circuit, United States v. Liles, 432 F.2d 18 (9th Cir. 1970), we said:
The Ninth Circuit held that Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 “speaks only of conviction of a felony. It contains no requirement that the conviction be finally upheld on appeal.” Id. at 20. It specifically held that Liles’ possession of a gun “was unlawful for one of his status at the time he possessed it. It is not made lawful by the subsequent reversal of his conviction.” Id. at 21. We agree with the rationale of this holding and apply it to this case. See also DePugh v. United States, 393 F.2d 367 (8th Cir. 1968).
In Williams, supra, the court went on to discuss the views of the various circuits concerning admissibility of a prior felony conviction which was pending on appeal. The District of Columbia will not allow such impeachment when an appeal of the conviction is pending. See Fenwick v. United States, 102 U.S.App.D.C. 212, 252 F.2d 124, 126 (1958). However, the majority of courts which have directly considered the issue allow the use of convictions for impeachment even though the case is on appeal. See United States v. Shaver, 511 F.2d 933, 934 (4th Cir. 1975); United States v. Aloi, 511 F.2d 585, 596-97 (2d Cir. 1975); United States v. Franicevich, 471 F.2d 427, 429 (5th Cir. 1973); United States v. Empire Packing Co., 174 F.2d 16, 20 (7th Cir.), cert. denied, 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758 (1949). This circuit follows the majority view. United States v. Rose, supra. See also Peterson v. United States, 508 F.2d 1222, 1223 (8th Cir. 1975); Fed.R.Evid. 609(c). For the purposes asserted herein this court fails to find a distinction between a conviction whose finality is still pending during appeal or which has been reversed on appeal and a conviction which is final but upon which a suspended sentence was imposed. Appellant’s contention in this regard is without merit.
Appellant also belatedly raises the fact that the prior felony was also an offense involving the possession of heroin. This fact is asserted to create such a prejudicial effect as to require reversal of the instant conviction. However, having determined that the prior conviction was properly admitted, it cannot be asserted that the fact that it involved heroin created prejudicial error.
Other Instructions
Hammonds next challenges the jury instructions given on reasonable doubt and those containing reference to the existence of other conspirators who were not named in the indictment. As to the reasonable doubt instruction, the trial court instructed the jury as follows:
It is not required that the Government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — the kind that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly. Putting it another way, a reasonable doubt means a doubt based on reason and not the mere possibility of innocence.
This is precisely the instruction which we recently approved. See United States v. Conley, 523 F.2d 650, 655 (8th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1125, 47 L.Ed.2d 327 (1976). See also United States v. Knight, 547 F.2d 75 (8th Cir., 1976); United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir. 1976); United States v. Cole, 453 F.2d 902, 906 (8th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972). This court has repeatedly held that an instruction on reasonable doubt should be couched in terms of hesitation to act. This is the substance of the instruction given here and, accordingly, appellant’s contention in this regard is without merit.
The final contention of appellant. Hammonds is that the trial court erred in instructing the jury that he could be convicted of a conspiracy with reference to other unnamed conspirators. The contention is also without merit. The record fully warrants the inference that other persons were involved. The instruction given was a standard instruction fully supported by the applicable law. See Devitt and Blackmar, Federal Jury Practice and Instructions § 29.11. See also Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 95 L.Ed. 344 (1951); United States v. Sacco, 436 F.2d 780, 783 (2d Cir. 1971); United States v. Green, 421 F.2d 1237 (2d Cir. 1970); United States v. Fischetti, 450 F.2d 34 (5th Cir. 1971).
Affirmed.
. The Honorable James H. Meredith, Chief Judge, United States District Court for the Eastern District of Missouri.
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 21? Answer with a number.
Answer:
|
songer_genapel2
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
In re MIFFLIN CHEMICAL CORPORATION. SHERIDAN et al. v. ROTHENSIES, Collector of Internal Revenue.
No. 7692.
Circuit Court of Appeals, Third Circuit.
Decided Oct. 29, 1941.
Harry Shapiro and Morris M. Wexler, both of Philadelphia, Pa. (Wexler & Weisman, of Philadelphia, Pa., on the brief), for trustees.
John E. Shea, of Washington, D. C., and Gerald A. Gleeson, U. S. Atty., and J. Barton Rettew, Jr., Asst. U. S. Atty., both of Philadelphia, Pa. (Julian R. Eagle, of Philadelphia, Pa., Atty., Bureau of Internal Revenue, on the brief), for appellee.
Before CLARK, JONES, and GOODRICH, Circuit Judges.
GOODRICH, Circuit Judge.
This case presents an appeal’ from an order of the District Court allowing against the Mifflin Chemical Corporation, a debtor corporation under § 77B, 11 U.S.C.A. § 207, a tax claim in the principal amount of $187,-488 on denatured alcohol diverted to beverage purposes. The claim is for unpaid taxes on such alcohol sold between August 27 and December 30, 1935. The District Court had referred the matter to a special master who, after a series of meetings, filed a report in which a disallowance of the claim was recommended. The District Judge did not accept this recommendation. The principal arguments of the appellant and the facts relating to them will be dealt with individually.
I. Appellant complains that the lower court erred in allowing the claim for taxes without remanding the case to the master and without giving the trustees for the debtor corporation an opportunity to offer testimony in opposition to said claim. Cases involving disallowances of claims by referees are cited in support of this argument.-
There are two answers to the point. The first is that the function of the referee is not the same as that of the special master. The ordinary reference of a case to a referee makes him a court for that purpose. The master functions in an advisory capacity only. The reference in this case is under § 77B of the Bankruptcy Act, prior to the Chandler Act. The order of reference authorized the special master “to make * * * findings of fact and conclusions of law on the issues of insolvency, creditors’ claims, * * * and to report thereon to the Court.” The special master thus did not sit as a court; it was his function to hear and report his findings of fact and conclusions of law. Nor were his powers increased by the fact that apart from this reference he was a referee.
The argument is likewise inapplicable as a matter of fact, because the trustees were given an opportunity to be heard. But they did not choose to offer testimony. At the conclusion of the hearings the special master stated, and no objection was made, that it was not necessary to act on various motions by both counsel because no further testimony was to be offered by either side and therefore, the case was to be decided on the record already before him. Counsel for the trustees did say that he might want to offer evidence after action of the master on his motion to strike out certain testimony. But this too was never done despite the fact that in his ruling on that motion, the master again offered an opportunity to the debtor corporation to bring forth witnesses. Further, in response to an order obtained by the government, counsel for the trustees informed the special master that they would not offer any testimony. Nor was any request to do so made until after the case was decided by the District Court adversely to the debtor corporation. We think this mere statement of facts is sufficient to show that there was no denial of the right of the debtor corporation to offer testimony. It chose to refrain from doing so and therefore does not have a right now to obtain another opportunity because of an adverse decision.
II. Appellant makes the point that the imposition of the tax lacked basis in fact because of the absence of foundations and certainty with regard to the amount of alcohol which the government claimed was so diverted as to become subject to taxation. This subject, however, was considered at length and with care by the learned judge who had the testimony before him and who reviewed it in his opinion. Where he felt that the proof was not clear he reduced the amount which was claimed against the debtor and that reduction was considerable. The original assessment was for $254,746.80 which the trial judge reduced to $187,488. We cannot say that there was no substantial basis for his finding and the point is governed by the ordinary rule with regard to -the findings" of fact in the court below.
III. The remaining "arguments of the appellant are directed to the application of the taxing statutes and the regulations thereunder to the facts of this case. To their answer a brief resumé of the history of the present legislation is indicated. Originally, denatured alcohol was subject to the same tax as alcohol intended for beverage purposes. In 1873 for the first time Congress provided for an exemption from the tax where alcohol was used for specified scientific purposes. Then in 1894 a rebate of the tax on alcohol to be used for non-beverage purposes was ordered. In 1906 the Denatured Alcohol Act was passed. This authorized alcohol for industrial purposes to be withdrawn from bonded warehouses without payment of the usual tax. The same plan was incorporated in Title III of the National Prohibition Act, which also empowered the Commissioner of Internal Revenue to issue regulations concerning alcohol “to secure the revenue, to prevent diversion of the alcohol to illegal uses * * Pursuant to this authorization a regulation was promulgated to the effect that
“The sales of this product must be confined to persons legitimately engaged in a bona fide drug trade, * * *. Failure to comply with these requirements and to confine sales to such persons, or the making of sales to such persons in quantities in excess of their reasonable requirements will constitute bad faith on the part of the permittee and grounds for the revocation of his permit.”
The taxing act in effect at the time in question was Section 2 of the Liquor Taxing Act of 1934 which provided for a unit tax of $2. Coupled with this act, however, and also applicable, is the Act of August 27, 1935.
It is to be noted that the liability which is the basis of the claim in this case does not arise from any regulation, but from the statute itself. The Act of 1934 sets the unit tax. The 1935 statute provides for payment of the tax if denatured alcohol is withdrawn and distributed in violation of the statute or regulations. The regulations do not impose the tax; they simply provide for the manner in which the tax-free alcohol is to be distributed. Mifflin’s contention that alcohol improperly withdrawn is not subject to tax but only subjects a producer or seller to revocation of permit is without foundation.
We think that there is no force in the argument either that the amount of alcohol in excess of reasonable requirements cannot be ascertained at all or was not ascertained in this case. The tax sought to be imposed here is for alcohol which found its way into the channels of illicit trade. Illicit distribution is not within the ^reasonable requirements of anybody’s legitimate business.
The final question, however, is whether Mifflin is to be charged with responsibility of knowledge of facts concerning such distribution. It is assumed for the purpose of argument, though not decided, that it becomes liable for the tax only if responsibility for knowing of improper diversion may be attributed to it. The District Court pointed out and properly emphasized the very considerable growth in the company’s sales of this product during the period in question. This fact alone may not be conclusive but it certainly is one which should suggest an inquiry to the company’s management. And of course, under such circumstances the failure to investigate will not excuse one from the consequences of what an investigation, if made, would have disclosed.
The scheme for the illegal diversion of this alcohol was carried out by salesmen for Mifflin in New York and Philadelphia. There is no dispute that these men had full knowledge of the transactions. Mifflin argues, however, that such knowledge is not to be attributed to it because in carrying out the unlawful plans its agents were acting contrary to the company’s interests; therefore, their knowledge is not attributable to the employer. The evidence on this point is somewhat equivocal. But for the purpose of the discussion it may be assumed that the salesmen did not tell their superiors for fear of disapproval of the scheme. Added to that is another piece of evidence to the effect that one of them received a commission or gift from one of the bootleggers for help given.
Even then, we believe unquestionably that Mifflin is charged with responsibility for the knowledge of its employees. As Judge Holly puts the legal proposition: “It is elementary law that the knowledge of an agent or employee obtained within the sphere of his agency or employment will be imputed to the corporation.” The very job these salesmen were employed to do was to sell alcohol and selling alcohol they were, although in an improper way. Of course they were doing it to make money; the difference between doing it in a proper and an improper way was that doubtless they made more by the latter course. But: “The mere fact that the agent’s primary interests are not coincident with those of the principal does not prevent the latter from being affected by the knowledge of the agent if the agent is acting for the principal’s interests.” Restatement, Agency § 282, Comment b.
Counsel for Mifflin have cited authorities where courts have held that when an agent departs from his employment and acts adversely to his principal the latter is no longer responsible for facts known to the wrongdoing employee. But in these cases the agent was found either to be actively cheating or defrauding his principal or acting adversely as the other party to the same transaction in which he was serving as his'principal’s agent.
Zito v. United States, 7 Cir., 1933, 64 F.2d 772 is a case presenting facts not dissimilar in this respect to the case at bar. The knowledge of the agent in that case was sufficient to charge the company with criminal responsibility. In the instant case the question is not that of punishment or penalty, but simply that of the payment of a tax because the conditions on which non-liability was conditioned have not been complied with. One need not talk about actual knowledge by Mifflin or a presumption that the employer knows everything that the employee knows. It has been conceded that these employees were violating instructions and that they concealed from their superiors in the Mifflin organization the knowledge of their activities in promoting illegal diver-son of the alcohol. That does not, on principles of agency, ipso facto relieve the employer of liability. Responsibility of an employer for things his agent does is not imposed on the basis' of knowledge in fact, but under the general rule of respondeat superior. No reliance need be made on any fictional attributing of knowledge to Mifflin. The employers are responsible for the knowledge of the facts had by their agents in doing the very business for which they were employed. The learned trial judge correctly concluded that the tax was due and payable.
The order of the District Court is affirmed.
In re John H. Livingston Co., 2 Cir., 1905, 144 F. 971; In re Crandall, 9 Cir., 1913, 205 F. 689; In re Arthur E. Pratt Co., D.C.N.D.N.Y. 1918, 252 F. 917; In re Tenenbaum & Abramowitz, D.C.S.D.N.Y.1931, 56 F.2d 217.
In re Williams Supply Co., Inc., 2 Cir., 1935, 77 F.2d 909, certiorari denied, 1935, 296 U.S. 612, 56 S.Ct. 131, 80 L.Ed. 434. Of course his findings are subject to review by the bankruptcy court. § 2, sub. a(10) of the Chandler Act, 11 U. S.C.A. § 11.
Subdivision (c) (11) authorized the judge to “refer any matters to a special master, who may be one of the referees in bankruptcy, for consideration and report, * * 11 U. S.C.A. 207, sub. c (11).
“The chief distinction between reference to a special master and to a referee is in the greater power which the referee ordinarily wields. The orders of the referee are those of the court, whereas the reports of a special master, which are merely advisory, need confirmation by the judge before they are made effective.” 2 Collier on Bankruptcy, 14th Ed.1940, 416, 417. The rule is established that the findings of fact made by the special master are to be accepted “unless clearly erroneous”. General Bankruptcy Order 47, 11 U.S.C.A. following section 53, and Rule 53(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723(c). But it still lies in the discretion of the court to consider the master’s report and to act thereon. And: “Where * * * the district judge refuses to accept or sets aside the master’s findings, such findings are without controlling force in the circuit court of appeals.” 2 Collier on Bankruptcy, 14th Ed.1940, 967. See id. at 415, 1505 ; 3 Moore’s Federal Practice, 1938, 3145.
The foregoing is an answer also to appellant’s contention that it was error for the District Judge to set aside findings of fact of the special master. But it is not essential that we pass on the propriety of that procedure. Here the District Judge, because of a matter of law, disapproved certain findings of the master. He disagreed with the latter as to the importance of the fact that the debtor corporation might not have had actual knowledge of what its salesmen knew or did. Under such circumstances we need not pass upon the effect to be given to normal findings of fact in a master’s report. We need pass merely on the legal question.
“Frequently judges may refer to a referee as a special master certain issues in a proceeding that have not already been referred to a referee by a general reference, or certain issues upon which the referee cannot act as a referee. The referee then has only the powers and performs only the duties usually performed by special masters within the scope of the reference, and does not act as a referee.” 2 Collier on Bankruptcy, 14th Ed.1940, 418.
“At first sight, it might appear that the retaking of evidence, or the taking of new evidence, could, justly" wrong no one, for the making of more truth to appear would afford greater opportunity for just judgment. But affording chances for retaking testimony after judgment might not always, and probably would not often, tend to the elucidation of truth. Temptations would be furnished' which it is the policy of the law to avoid.” Witters v. Sowles, C.C.D.Vt.1887, 31 F. 5, 11.
See Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723(c). '
Act of February 21, 1873, C. 173, 17 Stat. 468. « •
Act of August 27, 1894, C. 349, § 61, 28 Stat. 509, 567.
34 Stat. 217, 26 U.S.C.A.Int.Rev. Code, §§ 3070, 3072, 3073.
41 Stat. 319, 27 U.S.C.A. § 71 et seq.
Art. 146 of Regulations 3, as amended by Treasury Decision 4541, approved April 17, 1935, Volume 33, Treasury Decisions, Internal Revenue, 90, 93.
48 Stat. 313, 26 U.S.C.A.Int.Rev. Code, § 2800(a) (1).
49 Stat. 873, 27 U.S.C.A. 153. Section 4 provides:
“Any person who shall produce, withdraw, sell, transport, or use denatured alcohol * * * in violation of laws or regulations now or hereafter in force pertaining thereto, and all such denatured alcohol * * * shall be subject to all provisions of law pertaining to alcohol tliat is not denatured, including those reqxrirmg the payment of tax thereon; and the person so producing, withdrawing, selling, transporting, or using the denatured alcohol * * * shall be required to pay such tax.”
The purpose of this act, stated by the Senate Committee on the bill, Senate Report No. 1330, dated August 15, 1985, was as follows:
“ * * * Denatured alcohol, denatured rum, and articles, if lawfully produced and used are tax free and not subject to many of the restrictions to which other distilled spirits are subject; but in order to prevent frauds upon the revenue it is essential that this tax-free alcohol * * * be subjected to the taxes and other provisions of law relating to alcohol that is not denatured if the Government requirements as to production, withdrawal, sale, transportation, or use are not observed.”
As against 32,000 gallons monthly in January and February of 1935, Mifflin withdrew 64,000 gallons of denatured alcohol per month from August to December of that year. Further the price per gross rose from $11.25 on September 12 to $13.00 on November 2.
See Morgenthau v. Mifflin Chemical Corp., 3 Cir., 1937, 93 F.2d 82, 86, 88.
See Judge Bard’s opinion in the lower court. In re Mifflin Chemical Corp., D.C.E.D.Pa.1940, 34 F.Supp. 164, 169, 173.
United States v. Van Schaack Bros. Chemical Works, Inc., D.C.N.D.Ill.1940, 33 F.Supp. 822, 833.
Schutz v. Jordan, 1891, 141 U.S. 213, 11 S.Ct. 906, 35 L.Ed. 705; Thomson-Houston Electric Co. v. Capitol Electric Co., 6 Cir., 1894, 65 F. 341; Bank of Overton v. Thompson, 8 Cir., 1902, 118 F. 798; Dixie Guano Co. v. Wessel, 4 Cir., 1924, 296 F. 433, 35 A.L.R. 322. In other eases cited it was found that the agent was not in the scope of his authority. American Surety Co. v. Pauly, 1898, 170 U.S. 133, 18 S.Ct. 552, 42 L.Ed. 977; Hart v. Bier, C.C.E.D.La.1896, 74 F. 592.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_subst
|
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Calvin WILLIAMS, Defendant-Appellant.
No. 289, Docket 27665.
United States Court of Appeals Second Circuit.
Argued March 9, 1964.
Decided March 9, 1964.
Daniel H. Brown, Legal Aid Society, New York City, for appellant.
Robert J. McGuire, Asst. U. S. Atty., Southern District of New York (Robert M. Morgenthau, U. S. Atty., and James M. Brachman, Asst. U. S. Atty., on the brief), for appellee.
Before SMITH, KAUFMAN and MARSHALL, Circuit Judges.
PER CURIAM:
Appellant seeks to reverse a conviction for possessing goods stolen from interstate commerce, knowing them to be stolen, and for conspiracy related thereto, 18 U.S.C. § 659 and § 371, in the United States District Court for the Southern District of New York, Edward J. Dimock, District Judge. Appellant claims that the evidence on which his arrest and conviction were based was the fruit of an unconstitutional search and seizure. Agents acting on a tip from a reliable informant as to a stolen goods drop, staked out a floor in an office building on which floor two co-defendants of Williams had rented a room. The two, with Williams, who was known to agents as a truckman, came to the floor with a carton and the other two entered the room, leaving the door open. The agents entered, observed from markings on the carton that it had been moving in interstate commerce consigned to J. C. Penney Co. in Mississippi, asked for proof of ownership and receiving a negative response arrested the men in the room (none of whom was the appellant).
Putting to one side the issue raised by the government of Williams’ standing to raise the question of illegal search, we find no error in the court’s determination that the search, if it be termed such, and arrest of the co-defendants were not illegal. The premises were open to the public, the office door marked with “J & B Jobbers” was open, compare United States v. Rabinowitz, 339 U.S. 56, 64, 70 S.Ct. 430, 94 L.Ed. 653 (1950), the stolen - goods identifiable as such by observation of the carton markings within plain sight. Probable cause existing for the arrest, the search of the carton and seizure of the stolen goods was justified. United States v. Rabinowitz, supra,; Ellison v. United States, 93 U.S.App.D.C. 1, 206 F.2d 476 (1953).
The court commends the diligent and thorough presentation of appellant’s case by Daniel H. Brown, appointed counsel.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_treat
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America v. Claude CARTER.
No. 6037.
Circuit Court of Appeals, Ninth Circuit.
March 12, 1930.
Before DIETRICH and WILBUR, Circuit Judges, and KERRIGAN, District Judge.
PER CURIAM.
Ordered appeal dismissed, and mandate issued forthwith pursuant to stipulation.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_district
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Diego Ricardo ITZCOVITZ, a permanent resident alien residing in New York, New York, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NUMBER 6, NEW YORK, NEW YORK, et al., Defendants-Appellees.
No. 820, Docket 35664.
United States Court of Appeals, Second Circuit.
Argued June 8, 1971.
Decided Sept. 1, 1971.
See publication Words and Phrases for other judicial constructions and definitions.
Burt Neuborne, New York City (Paul Chevigny and Alan H. Levine), New York Civil Liberties Union, New York City (David Orlin, New York City, of counsel), for plaintiff-appellant.
Daniel Riesel, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, Alan B. Morrison, Asst. U. S. Atty., of counsel), for defendants-appellees.
Before FRIENDLY, Chief Judge, and HAYS and OAKES, Circuit Judges.
OAKES, Circuit Judge:
Appellant, Diego Ricardo Itzcovitz, a permanent resident alien, seeks a declaratory judgment enabling him to leave the United States for a brief time and a limited purpose, without the threat of being declared an excludable alien upon his return. The purpose of his proposed trip is to attend a special training course in Tel Aviv conducted by his employer, El A1 Israel Airlines. He asserts and the Government concedes that, because he exercised his treaty right as an Argentine national to claim exemption from U. S. military service, he would be excludable upon re-entry into the United States, under the provisions of the Immigration and Nationality Act of 1952, 66 Stat. 163 as amended, and his name would therefore be placed in the “Lookout Book,” the Immigration and Naturalization Service’s list of currently excludable aliens who might be seeking re-entry, apparently distributed to INS agents at points of entry into the United States. Appellant contends that insofar as the provisions of the Immigration and Nationality Act of 1952 do brand him an excludable alien, the provisions place an impermissible burden on his rights under the Argentine Treaty which, incidentally, is similar to fifteen other treaties, principally of Friendship, Commerce and Navigation in granting exemption from military service. Appellant concedes for purposes of this appeal that by exercising his treaty right he has waived his eligibility for citizenship under Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951), but he argues that such a waiver does not mean he may be declared an excludable alien.
Alternatively, appellant claims that as an alien lawfully admitted for permanent residence, temporarily leaving the country at the behest- and under the requirements of his employer, he would not be making an “entry” into the United States upon his return from Israel.
The court below did not reach the merits, but found the case unripe, and dismissed the action for lack of a “justi-ciable controversy,” without prejudice to appellant’s right later to seek relief from an exclusion order, if and when issued. We disagree with the court below and think that appellant should not be forced into the cul de sac of leaving the country, only to be “subjected,” on his return, “to the wearisome routine of immigration procedure as though [he] had never lived here,” ILWU Local 37 v. Boyd, 347 U.S. 222, 226, 74 S.Ct. 447, 449, 98 L.Ed. 650 (1954) (dissenting opinion), and the probability, in this case, of exclusion. Our view is taken from the perspective of the extensive INS-Itz-covitz history, and has in sight the concession made on argument that appellant would upon departure immediately take his place in the pages of the “Lookout Book.” That extensive history follows.
Appellant came to this country from Argentina with his parents in 1966 and was admitted as a permanent resident alien. Although he had completed his Argentine military obligation, he was required as a permanent resident alien of draft age to register with our Selective Service System. 50 U.S.C.App. § 453. He did so and was classified I-A on October 24, 1966. On March 29, 1967, he received a notice to report for induction. The Argentine Consulate in New York advised him that he was entitled to exemption from military service pursuant to the Argentine Treaty, and he thereupon applied to our Department of State for exemption. Despite the State Department’s best efforts, Itzcovitz was advised by Selective Service, erroneously, as it later turned out, that the draft exemption granted by the Treaty had been impliedly abrogated by the passage of the Selective Service Act. On May 22, 1967, one day before he was required under threat of arrest and prosecution to report for induction, he left the United States and was reclassified IV-C as an alien who had fled to avoid military service. On December 16, 1968, Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), held that there may be pre-induction judicial review of the classification of a registrant for the purposes of determining the applicability of unequivocal statutory exemptions. Three weeks later Itzcovitz sued for injunctive relief against the Selective Service System’s outstanding induction order and against INS’s refusal to permit him to return to the United States.
The late Judge Herlands ruled that he had jurisdiction under Oestereich, supra, that Selective Service had no authority to deny Itzcovitz his claimed treaty exemption to which he had a “plain and unequivocal” right, and granted him in-junctive relief against Selective Service, but denied injunctive relief against the INS on the ground that Itzcovitz had not exhausted his administrative remedies. Itzcovitz v. Selective Service System, 301 F.Supp. 168 (S.D.N.Y.1969). Itzcovitz appealed from the denial of relief against the Immigration Service, and the Government cross-appealed from the granting of relief against the Selective Service System, but shortly before oral argument in this court the Government withdrew its cross-appeal. During oral argument a panel of this court consisting of (then Chief) Judge Lumbard, Judge Kaufman and Judge Hays suggested that Itzcovitz be permitted to return to this country and resume his permanent resident status. On November 26, 1969, in a letter to that panel, the Government agreed that it was “now prepared to admit Itzcovitz,” without conceding his eligibility for citizenship, and affirmed to the court that “upon [Itzeovitz’s] return” he would “not be subject to an exclusion proceeding and will be deemed to have resumed his permanent resident status.” Subsequently, on February 10, 1970, the District Director of INS notified the United States Attorney for the Southern District of New York that “steps have been initiated to have Mr. Itzeovitz’s name removed from our Service lookout book.” He had returned on January 24, 1970. His appeal was then dismissed as moot by the panel in a per curiam opinion noting that “the government has conceded the propriety of admitting Itzcovitz into the country, and the parties have informed us of his return.” Itzcovitz v. Selective Service Local Board No. 6, 422 F.2d 828 (2d Cir. 1970).
Only after the Immigration Service had ignored letters written on March 12, June 18 and September 23, 1970, inquiring whether a brief departure from the country would result in his classification as an excludable alien on his return, did appellant institute this action for declaratory judgment. Appellant alleges that he is employed by El A1 Israel Airlines as a passenger agent at Kennedy International Airport, and that one of El Al’s employment requirements is a three-week course, given in Tel Aviv, on the prevention of airline hijackings. El A1 requested that the plaintiff attend a session to be conducted from October 18 until November 10, 1970.
Both appellant and INS moved for summary judgment below, INS claiming, among other things, that as an alien ineligible for citizenship under § 315(a) of the Act, 8 U.S.C. § 1426(a), Itzcovitz may be an excludable alien under § 212(a) of the Act, 8 U.S.C. § 1182(a) (22).
We disagree with the conclusion of the court below that this controversy is not ripe for adjudication. Having once been unlawfully excluded, appellant rightfully wonders whether a two- or three-week departure on employer’s business would raise again the spectre of exclusion, this time possibly without the grace of an INS retrenchment allowing appellant to re-enter and resume his status as a permanent resident alien. The Immigration Service admits and makes it very clear — clearer to us, perhaps, than it did to the court below— that it would seek to exclude appellant after his sojourn in Tel Aviv. Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), tells us that the ripeness doctrine “is to prevent the courts * * * from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized * * We are required to “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” 387 U.S. 149, 87 S.Ct. 1515.
We believe there is hardship in the case of this appellant, who has spent years seeking to retain his permanent resident alien status and is still left to guess whether he can go to Israel for a brief training course required by his employer. His case is not abstract, nor the issue without immediate concurrent significance. The issue is one which the courts can and appropriately should decide. Cf. Loos v. INS, 407 F.2d 651 (7th Cir.), cert. denied, 396 U.S. 877, 90 S.Ct. 150, 24 L.Ed.2d 135 (1969). The Government’s suggestion that within two years the appellant could apply to the Attorney General for a waiver of the excludability bar under 8 U.S.C. § 1182(c) is not meaningful since such a waiver can be applied for only by an alien who has voluntarily proceeded abroad, thus subjecting himself to exclusion. Similarly, the Government’s suggestion that within 3% years appellant could apply for citizenship under 8 U.S. C. § 1427(a) and thus obtain administrative and judicial review then is without merit, for on such an application the only issue would be whether he were validly declared ineligible for citizenship, a point which he concedes, and it would be unnecessary at the hearing thereon to reach the question of his excludability as an alien if he departed from the United States. This is a proper case for declaratory relief under 28 U.S.C. § 2201.
We do not reach the question of the apparent clash between appellant’s rights under the treaty and the immigration laws, for we conclude that appellant’s return to the United States after his proposed trip to Tel Aviv would not constitute an “entry” within § 101(a) (13) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101(a) (13), and the INS would therefore have no authority to exclude him under § 212, 8 U.S.C. § 1182, Rosenberg v. Fleuti, 374 U.S. 449, 452, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). We reach this result having in mind not the history of Itzcovitz's case but the history of § 101(a) (13) of the Act. As early as 1947, this court, in an opinion by Chief Judge Learned Hand, held that an alien convicted of robbery did not re-enter the United States when he went by sleeping car from Buffalo to Detroit, passing through Canada en route. Di Pasquale v. Karnuth, 158 F.2d 878 (2d Cir. 1947). The alien was held to have “a vested interest in his residence,” and was not to “be subject to meaningless and irrational hazards”; while he could have learned by inquiry that the train would take him out of the United States and back into it, there was no evidence that he “knew or had any intention of leaving the United States or of entering Canada.” 158 F.2d at 878-879. Pointing out that “[djeportation can be the equivalent of banishment or exile,” the Supreme Court eleven months after Di Pasquale, supra, relied upon it and followed it, in Delga-dillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17 (1947). There an alien merchant seaman, also later convicted of robbery, was rescued after his ship was torpedoed in World War II and taken to Havana, Cuba; his re-entry into the United States by way of Florida was held not to be an “entry” within the Act as it then read, the Court noting that “the exigencies of war, not his voluntary act, put him on foreign soil.” 332 U.S. at 391, 68 S.Ct. at 12. In Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 (1953), the Supreme Court held an alien lawfully admitted to permanent residence was not deprived of the rights of a resident upon his return to the United States from a voyage as a merchant seaman when he had stopped at but remained aboard the vessel at foreign ports of call. The Court found the alien entitled, under the due process clause of the Fifth Amendment, to a hearing on his objections to deportation, a right he would not have enjoyed without his resident status. In a 5-4 decision the Supreme Court in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), held that an alien who had traveled abroad and remained in Hungary for nineteen months could be treated as an “entering alien,” and be detained on Ellis Island without a hearing on his threatened exclusion. 345 U.S. at 213, 73 S.Ct. 625. Kwong Hai Chew was distinguished by the majority on the grounds that Kwong’s maritime service was continuous residence for naturalization purposes and that Kwong was pursuing his vocation for four months aboard an American ship. 345 U.S. at 213-214, 73 S.Ct. 625. Mezei did not affect the holdings in Delgadillo, Di Pasquale, or other cases following them, e. g., Carmichael v. Delaney, 170 F.2d 239 (9th Cir. 1948)' (no “entry” occurred after ship to which resident alien was assigned stopped at many ports and alien debarked, because of ship movements pursuant to Navy orders) ; Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947) (no “entry” occurred after ship carrying resident alien back from seasonal cannery work in Alaska made unscheduled stop in Vancouver, B. C.). In Savoretti v. United States ex rel. Pincus, 214 F.2d 314 (5th Cir. 1954), decided after Mezei but relying on Delgadillo and Di Pasquale, a resident alien was held not to have made a new entry after the fishing boat on which he was sleeping (after some serious drinking) made an unscheduled stop in Bimini to sit out heavy weather. Delgadillo and Di Pasquale, in fact, were incorporated into the 1952 Immigration and Nationality Act by § 101(a) (13), 8 U.S.C. § 1101(a) (13), which provides that an alien
shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves * * * that his departure * * * was not intended or reasonably to be expected by him or his presence in a foreign port or place * * * was not voluntary.
Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804 (1963) (5-4) construed this provision to mean that a resident alien had not made an “entry” when he returned to the United States from a two hour trip to Ensenada, Mexico. The Court, relying on both Delgadillo and Di Pasquale, examined extensively the legislative history, saying
The most basic guide to congressional intent as to the reach of the exceptions is the eloquent language of Di Pasquale and Delgadillo themselves, beginning with the recognition that the “interests at stake” for the resident alien are “momentous,” 158 F.2d, at 879, and that “[t]he stakes are indeed high and momentous for the alien who has acquired his residence here,” 332 U.S., at 391, 68 S.Ct. 12. This general premise of the two decisions impelled the more general conclusion that “it is * * * important that the continued enjoyment of * * * [our] hospitality once granted, shall not be subject to meaningless and irrational hazards.” 158 F.2d at 879. See also Delgadillo, supra, 332 U.S. at 391, 68 S.Ct. 12. Coupling these essential principles of the two decisions explicitly approved by Congress in enacting § 101(a) (13) with the more general observation, appearing in Delgadillo as well as elsewhere, that “[d]eportation can be the equivalent of banishment or exile,” it is difficult to conceive that Congress meant its approval of the liberalization wrought by Di Pasquale and Del-gadillo to be interpreted mechanistically to apply only to cases presenting factual situations identical to what was involved in those two decisions.
374 U.S. at 458-459, 83 S.Ct. at 1810 (footnote omitted).
The decision concludes, significantly for our case, “that it effectuates congressional purpose to construe the intent exception to § 101(a) (13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” 374 U.S. at 462, 83 S.Ct. at 1812. The Court mentions three factors —the length of time of absence, the purpose of the visit, and the necessity of procuring travel documents, id., but leaves the development of these and “other possibly relevant” factors to “ ‘the gradual process of judicial inclusion and exclusion,’ Davidson v. New Orleans, 96 U.S. 97, 104 * * *., 24 L.Ed. 616.” 374 U.S. at 462, 83 S.Ct. at 1812.
That process helps to point the way for us.
The Ninth Circuit, following Di Pasquale and Fleuti, supra, in Wadman v. INS, 329 F.2d 812 (9th Cir. 1964), held that a five day absence from the United States by an alien vacationing in Mexico was not an interruption of “continuous” physical presence permitting deportation. Even more apposite, perhaps, is the Seventh Circuit decision in Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir.), cert. denied, 381 U.S. 925, 85 S.Ct. 1559, 14 L.Ed.2d 683 (1965). There the court, quoting at length from Fleuti, held that neither a five- or six-day “harmless, innocent” vacation in Canada in 1952 nor a less than 24-hour trip to Canada in 1953 constituted an illegal “entry” within § 101(a) (13) of the Immigration and Nationality Act of 1952.
We believe the Congressional purpose underlying the Act would best be served by a similar holding here. The time factor is, to be sure, longer than in Zimmerman, Wadman or Fleuti, but it is still limited to three weeks, and is fairly characterized as only temporary. The purpose of Itzcovitz’s planned trip is in a real sense for the benefit of his employer; he is not merely vacationing, as were the petitioners in the other cases just mentioned. True, he doesn’t have to go, but whether he would be able to keép his job, much less advance himself, without going to Tel Aviv is doubtful. In any event, he has been directed by his employer to go. In a general sense Itzcovitz “intends” to go to Tel Aviv, just as Fleuti intended to go to Mexico. But appellant is not in the posture of having taken the trip in disregard of the immigration consequences; rather he has here sought relief in advance. The purpose of his trip is entirely bona fide, honorable and lawful. He has every intention of retaining permanently his residence in the United States. And, indeed, the sole purpose of the three week trip is to qualify him for more useful employment service as he continues his permanent residence. Under these circumstances — and we consider them limited — we do not think appellant’s trip to Tel A„viv will be “meaningfully interrup-tive” of his permanent residence “within the meaning and ameliorative intent of the exception to § 101(a) (13).” Rosenberg v. Fleuti, supra, 374 U.S. at 461, 462, 83 S.Ct. at 1812.
Our task in this, a case of statutory interpretation, has been made a little easier since Congress has had the gloss of Fleuti before it, for seven years, without tightening subsection (13) of the statute, or indeed changing it, even while changing provision after provision of subdivision (a) of § 101.
Accordingly, we reverse and remand with direction to the court below to grant appellant’s motion for summary judgment and declare that appellant may take his proposed business trip.
. The Treaty of Friendship, Commerce and Navigation between the United States and Argentina, July 7, 1853, 10 Stat. 1005, hereinafter the Argentine Treaty.
. Section 315, 8 U.S.C. § 1426; Section 212 (a) (22), 8 U.S.C. § 1182(a) (22).
. Article X of the Argentine Treaty provides :
The citizens of the United States residing in the Argentine Confederation, and the citizens of the Argentine Confederation residing in the United States, shall be exempted from all compulsory military service whatsoever, whether by sea or by land, and from all forced loans, requisitions or military exactions; and they shall not be compelled, under any pretext whatsoever, to pay any ordinary charges, requisitions, or taxes, greater than those that are paid by native citizens, of the contractive parties respectively.
. Opinion of the Attorney General, 42 Op. Atty.Gen.No.28 (April 1, 1968), at pp. 1-2. Provisions similar to Article X are found in treaties with China, Costa Rica, Ireland, Italy, Paraguay, Spain, Swiss Confederation, Thailand and Yugoslavia.
. See Astrup v. INS, 402 U.S. 509, 91 S.Ct. 1583, 29 L.Ed.2d 68 (1971).
. This time has been extended, we were advised on oral argument, by the employer, and this opinion assumes that such an extension is in effect.
. While ILWU Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954), has never been expressly overruled, it has been politely overlooked by the Supreme Court for at least ten years.
. The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.
8 U.S.C. § 1101(a) (13).
. Appellant’s reply brief states that counsel has been informed that Itzcovitz’s future with El A1 “is contingent upon his ability to undergo such training in Tel Aviv.” But we not rest our holding on this narrow an interpretation of § 101(a) (13).
. See Historical Note, following 8 U.S. C.A. § 1101.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_casedisposition
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
UNION BANK v. WOLAS, chapter 7 trustee for the ESTATE OF ZZZZ BEST CO., INC.
No. 90-1491.
Argued November 5, 1991
Decided December 11, 1991
Stevens, J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion, post, p. 163.
John A. Graham argued the cause for petitioner. With him on the briefs were Lesley Anne Hawes, Donald Robert Meyer, and Stephen Howard Weiss.
Herbert Wolas, pro se, argued the cause for respondent. With him on the brief was Terry A. Ickowicz.
Briefs of amici curiae urging reversal were filed for the American Bankers Association by John J. Gill III and Michael F. Crotty; for the American Council of Life Insurance et al. by Phillip E. Stano, Robert M. Zinman, Richard E. Barnsback, Bruce Hyman, and Christopher F. Graham; for the California Bankers Association by Robert L. Morrison and Kenneth N. Russak; for the New York Clearing House Association by Richard H. Klapper, John L. Warden, Robinson B. Lacy, and Michael M. Wiseman; and for Robert Morris Associates by Raymond K. Denworth, Jr.
Justice Stevens
delivered the opinion of the Court.
Section 547(b) of the Bankruptcy Code, 11 U. S. C. § 547(b), authorizes a trustee to avoid certain property transfers made by a debtor within 90 days before bankruptcy. The Code makes an exception, however, for transfers made in the ordinary course of business, § 547(c)(2). The question presented is whether payments on long-term debt may qualify for that exception.
On December 17,1986, ZZZZ Best Co., Inc. (Debtor), borrowed $7 million from petitioner, Union Bank (Bank). On July 8, 1987, the Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code. During the preceding 90-day period, the Debtor had made two interest payments totaling approximately $100,000 and had paid a loan commitment fee of about $2,500 to the Bank. After his appointment as trustee of the Debtor’s estate, respondent filed a complaint against the Bank to recover those payments pursuant to § 547(b).
The Bankruptcy Court found that the loans had been made “in the ordinary course of business or financial affairs” of both the Debtor and the Bank, and that both interest payments as well as the payment of the loan commitment fee had been made according to ordinary business terms and in the ordinary course of business. As a matter of law, the Bankruptcy Court concluded that the payments satisfied the requirements of § 547(c)(2) and therefore were not avoidable by the trustee. The District Court affirmed the Bankruptcy Court’s summary judgment in favor of the Bank.
Shortly thereafter, in another case, the Court of Appeals held that the ordinary course of business exception to avoidance of preferential transfers was not available to long-term creditors. In re CHG Int'l, Inc., 897 F. 2d 1479 (CA9 1990). In reaching that conclusion, the Court of Appeals relied primarily on the policies underlying the voidable preference provisions and the state of the law prior to the enactment of the 1978 Bankruptcy Code and its amendment in 1984. Thus, the Ninth Circuit concluded, its holding in CHG Int'l, Inc. dictated a reversal in this case. 921 F. 2d 968, 969 (1990). The importance of the question of law decided by the Ninth Circuit, coupled with the fact that the Sixth Circuit had interpreted § 547(c)(2) in a contrary manner, In re Finn, 909 F. 2d 903 (1990), persuaded us to grant the Bank's petition for certiorari. 500 U. 5. 915 (1991).
I
We shall discuss the history and policy of § 547 after examining its text. In subsection (b), Congress broadly authorized bankruptcy trustees to "avoid any transfer of an interest of the debtor in property" if five conditions are satisfied and unless one of seven exceptions defined in subsection (c) is applicable. In brief, the five characteristics of a voidable preference are that it (1) benefit a creditor; (2) be on account of antecedent debt; (3) be made while the debtor was insolvent; (4) be made within 90 days before bankruptcy; and (5) enable the creditor to receive a larger share of the estate than if the transfer had not been made. Section 547 also provides that the debtor is presumed to have been insolvent during the 90-day period preceding bankruptcy. § 547(f). In this case, it is undisputed that all five of the foregoing conditions were satisfied and that the interest and loan commitment fee payments were voidable preferences unless excepted by subsection (c)(2).
The most significant feature of subsection (c)(2) that is relevant to this case is the absence of any language distinguishing between long-term debt and short-term debt. That subsection provides:
“The trustee may not avoid under this section a transfer—
“(2) to the extent that such transfer was—
“(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
“(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
“(C) made according to ordinary business terms.”
Instead of focusing on the term of the debt for which the transfer was made, subsection (c)(2) focuses on whether the debt was incurred, and payment made, in the “ordinary course of business or financial affairs” of the debtor and transferee. Thus, the text provides no support for respondent’s contention that § 547(c)(2)’s coverage is limited to short-term debt, such as commercial paper or trade debt. Given the clarity of the statutory text, respondent’s burden of persuading us that Congress intended to create or to preserve a special rule for long-term debt is exceptionally heavy. United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241-242 (1989). As did the Ninth Circuit, respondent relies on the history and the policies underlying the preference provision.
II
The relevant history of §547 contains two chapters, one of which clearly supports, and the second of which is not inconsistent with, the Bank’s literal reading of the statute. Section 547 was enacted in 1978 when Congress overhauled the Nation’s bankruptcy laws. The section was amended in 1984. For purposes of the question presented in this case, the original version of §547 differed in one significant respect from the current version: It contained a provision that the ordinary course of business exception did not apply unless the payment was made within 45 days of the date the debt was incurred. That provision presumably excluded most payments on long-term debt from the exception. In 1984 Congress repealed the 45-day limitation but did not substitute a comparable limitation. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. 98-353, § 462(c), 98 Stat. 378.
Respondent contends that this amendment was intended to satisfy complaints by issuers of commercial paper and by trade creditors that regularly extended credit for periods of more than 45 days. Furthermore, respondent continues, there is no evidence in the legislative history that Congress intended to make the ordinary course of business exception available to conventional long-term lenders. Therefore, respondent argues, we should follow the analysis of the Ninth Circuit and read § 547(c)(2) as protecting only short-term debt payments. Cf. In re CHG Int’l, 897 F. 2d, at 1484.
We need not dispute the accuracy of respondent’s description of the legislative history of the 1984 amendment in order to reject his conclusion. For even if Congress adopted the 1984 amendment to redress particular problems of specific short-term creditors, it remains true that Congress redressed those problems by entirely deleting the time limitation in § 547(c)(2). The fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning. Toibb v. Radloff, 501 U. S. 157, 164 (1991).
Respondent also relies on the history of voidable preferences prior to the enactment of the 1978 Bankruptcy Code. The text of the preference provision in the earlier Bankruptcy Act did not specifically include an exception for payments made in the ordinary course of business. The courts had, however, developed what is sometimes described as the “current expense” rule to cover situations in which a debtor’s payments on the eve of bankruptcy did not diminish the net estate because tangible assets were obtained in exchange for the payment. See Marshall v. Florida Nat. Bank of Jacksonville, 112 F. 2d 380, 382 (CA5 1940); 3 Collier on Bankruptcy ¶ 60.23, p. 873 (14th ed. 1977). Without such an exception, trade creditors and other suppliers of necessary goods and services might have been reluctant to extend even short-term credit and might have required advance payment instead, thus making it difficult for many companies in temporary distress to have remained in business. Respondent argues that Congress enacted § 547(c)(2) in 1978 to codify that exception, and therefore the Court should construe § 547(c)(2) as limited to the confines of the current expense rule.
This argument is not compelling for several reasons. First, it is by no means clear that § 547(c)(2) should be construed as the statutory analogue of the judicially crafted current expense rule because there are other exceptions in § 547(c) that explicitly cover contemporaneous exchanges for new value. Those provisions occupy some (if not all) of the territory previously covered by the current expense rule. Nor has respondent directed our attention to any extrinsic evidence suggesting that Congress intended to codify the current expense rule in § 547(c)(2).
The current expense rule developed when the statutory preference provision was significantly narrower than it is today. To establish a preference under the Bankruptcy Act, the trustee had to prove that the challenged payment was made at a time when the creditor had “reasonable cause to believe that the debtor [was] insolvent.” 11 U. S. C. § 96(b) (1976 ed.). When Congress rewrote the preference provision in the 1978 Bankruptcy Code, it substantially enlarged the trustee’s power to avoid preferential transfers by eliminating the reasonable cause to believe requirement for transfers made within 90 days of bankruptcy and creating a presumption of insolvency during that period. See 11 U. S. C. §§ 547(b), (c)(2), (f); H. R. Rep. No. 95-595, p. 178 (1977). At the same time, Congress created a new exception for transfers made in the ordinary course of business, 11 U. S. C. § 547(c)(2). This exception was intended to “leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor’s slide into bankruptcy.” H. R. Rep. No. 95-595, at 373.
In light of these substantial changes in the preference provision, there is no reason to assume that the justification for narrowly confining the “current expense” exception to trade creditors before 1978 should apply to the ordinary course of business exception under the 1978 Code. Instead, the fact that Congress carefully reexamined and entirely rewrote the preference provision in 1978 supports the conclusion that the text of § 547(c)(2) as enacted reflects the deliberate choice of Congress.
III
The Bank and the trustee agree that § 547 is intended to serve two basic policies that are fairly described in the House Committee Report. The Committee explained:
“A preference is a transfer that enables a creditor to receive payment of a greater percentage of his claim against the debtor than he would have received if the transfer had not been made and he had participated in the distribution of the assets of the bankrupt estate. The purpose of the preference section is two-fold. First, by permitting the trustee to avoid prebankruptcy transfers that occur within a short period before bankruptcy, creditors are discouraged from racing to the courthouse to dismember the debtor during his slide into bankruptcy. The protection thus afforded the debtor often enables him to work his way out of a difficult financial situation through cooperation with all of his creditors. Second, and more important, the preference provisions facilitate the prime bankruptcy policy of equality of distribution among creditors of the debtor. Any creditor that received a greater payment than others of his class is required to disgorge so that all may share equally. The operation of the preference section to deter ‘the race of diligence’ of creditors to dismember the debtor before bankruptcy furthers the second goal of the preference section — that of equality of distribution.” Id., at 177-178.
As this comment demonstrates, the two policies are not entirely independent. On the one hand, any exception for a payment on account of an antecedent debt tends to favor the payee over other creditors and therefore may conflict with the policy of equal treatment. On the other hand, the ordinary course of business exception may benefit all creditors by deterring the “race to the courthouse” and enabling the struggling debtor to continue operating its business.
Respondent places primary emphasis,- as did the Court of Appeals, on the interest in equal distribution. See In re CHG Int’l, 897 F. 2d, at 1483-1485. When a debtor is insolvent, a transfer to one creditor necessarily impairs the claims of the debtor’s other unsecured and undersecured creditors. By authorizing the avoidance of- such preferential transfers, § 547(b) empowers the trustee to restore equal status to all creditors. Respondent thus contends that the ordinary course of business exception should be limited to short-term debt so the trustee may order that preferential long-term debt payments be returned to the estate to be distributed among all of the creditors.
But the statutory text — which makes no distinction between short-term debt and long-term debt — precludes an analysis that divorces the policy of favoring equal distribution from the policy of discouraging creditors from racing to the courthouse to dismember the debtor. Long-term creditors, as well as trade creditors, may seek a head start in that race. Thus, even if we accept the Court of Appeals’ conclusion that the availability of the ordinary business exception to long-term creditors does not directly further the policy of equal treatment, we must recognize that it does further the policy of deterring the race to the courthouse and, as the House Report recognized, may indirectly further the goal of equal distribution as well. ' Whether Congress has wisely balanced the sometimes conflicting policies underlying § 547 is not a question that we are authorized to decide.
IV
In sum, we hold that payments on long-term debt, as well as payments on short-term debt, may qualify for the ordinary course of business exception to the trustee’s power to avoid preferential transfers. We express no opinion, however, on the question whether the Bankruptcy Court correctly concluded that the Debtor’s payments of interest and the loan commitment fee qualify for the ordinary course of business exception, § 547(e)(2). In particular, we do not decide whether the loan involved in this case was incurred in the ordinary course of the Debtor’s business and of the Bank’s business, whether the payments were made in the ordinary course of business, or whether the payments were made according to ordinary business terms. These questions remain open for the Court of Appeals on remand.
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.
The Bankruptcy Court found that the Bank and Debtor executed a revolving credit agreement on December 16, 1986, in which the Bank agreed to lend the Debtor $7 million in accordance with the terms of a promissory note to be executed and delivered by the Debtor. No. 87-13692 (Bkrtcy. Ct. CD Cal., Aug. 22, 1988), App. to Pet. for Cert. 12a. On December 17, 1986, the Debtor executed and delivered to the Bank a promissory note in the principal sum of $7 million. The promissory note provided that interest would be payable on a monthly basis and would accrue on the principal balance at a rate of 0.65% per annum in excess of the Bank’s reference rate. Ibid.
App. to Pet. for Cert. 14a.
Ibid.
In re ZZZZ Best Co., Inc., No. 88-6285, 1989 U. S. Dist. LEXIS 17500, *1 (CD Cal., Aug. 4, 1989).
In so holding, the Ninth Circuit rejected the Bank's argument that the revolving line of credit in this case was not "long-term" because it was for less than one year. 921 F. 2d, at 969. Because we hold that the ordinary course of business exception applies to payments on long-term as well as short-term debt, we need not decide whether the revolving line of credit was a "long-term" debt.
11 U. S. C. § 547(b) provides:
"Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property-
"(1) to or for the benefit of a creditor;
"(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
"(3) made while the debtor was insolvent;
"(4) made-
"(A) on or within 90 days before the date of the ffling of the petition; or
"(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
"(5) that enables such creditor to receive more than such creditor would receive if-
"(A) the case were a case under chapter 7 of this title;
"(B) the transfer had not been made; and
"(C) such creditor received payment of such debt to the extent provided by the provisions of this title."
Nor does the definitional section of the Bankruptcy Code, which defines the term “debt” broadly as a “liability on a claim,” 11 U. S. C. § 101(11), distinguish between short-term debt and long-term debt.
As enacted in 1978, § 547(c) provided, in relevant part:
“The trustee may not avoid under this section a transfer—
“(2) to the extent that such transfer was—
“(A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee;
“(B) made not later than U5 days after such debt was incurred;
“(C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
“(D) made according to ordinary business terms.” 92 Stat. 2598 (emphasis added).
We use the term “presumably” because it is not necessary in this case to decide whether monthly interest payments on long-term debt were protected by the initial version of § 547(c)(2). Cf. In re Iowa Premium Serv. Co., Inc., 695 F. 2d 1109 (CA8 1982) (en banc) (holding that interest obligations are “incurred” when they become due, rather than when the promissory note is signed). We refer to “most” instead of “all” long-term debt payments because of the possibility that a debtor’s otherwise avoidable payment was made within 45 days of the date the long-term loan was made.
Because payments to a commercial paper purchaser within 90 days prior to bankruptcy may be preferential transfers under § 547(b), a purchaser could be assured that the payment would not be avoided under the prior version of § 547(c)(2) only if the commercial paper had a maturity of 45 days or less. Commercial issuers thus complained that the 45-day limitation lowered demand for commercial paper with a maturity in excess of 45 days. See Hearings on S. 3023 before the Subcommittee on Judicial Machinery of the Senate Committee on the Judiciary, 96th Cong., 2d Sess., 8-27 (1980) (statements of George Van Cleave, partner, Goldman, Sachs & Co., and James Ledinsky, Senior Vice President, A. G. Becker & Co.).
Trade creditors stated that normal payment periods in many industries exceeded 45 days and complained that the arbitrary 45-day limitation in § 547(c)(2) deprived these trade creditors of the protection of the ordinary course of business exception to the trustee’s power to avoid preferential transfers. See, e. g., Hearings on Bankruptcy Reform Act of 1978 before the Subcommittee on Courts of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 259-260 (1981) (statement of Vyto Gestautas on behalf of the National Association of Credit Management).
Section 60 of the 1898 Bankruptcy Act, as amended and codified in 11 U. S. C. § 96 (1976 ed.), provided in relevant part:
“(a)(1) A preference is a transfer, as defined in this title, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this title, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class.
“(b) Any such preference may be avoided by the trustee if the creditor receiving it or to be benefited thereby or his agent acting with reference thereto has, at the time when the transfer is made, reasonable cause to believe that the debtor is insolvent. Where the preference is voidable, the trustee may recover the property ... .”
Thus, for example, § 547(c)(1) exempts a transfer to the extent that it was a “contemporaneous exchange for new value given to the debtor,” and § 547(c)(4) exempts a transfer to a creditor “to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor . ..
In fact, the legislative history apparently does not even mention the current expense rule. See Broome, Payments on Long-Term Debt as Voidable Preferences: The Impact of the 1984 Bankruptcy Amendments, 1987 Duke L. J. 78, 97.
Indeed, the House Committee Report concludes its discussion of the trustee’s avoidance powers with the observation that the language in the preference section of the earlier Bankruptcy Act was “hopelessly complex” and had been “subject to varying interpretations. The bill undoes the numerous amendments that have been heaped on section 60 during the past 40 years, and proposes a unified and coherent section to deal with the problems created by prebankruptcy preferential transfers.” H. R. Rep. No. 95-595, p. 179 (1977). Respondent’s assumption that § 547(c)(2) was intended to preserve pre-existing law is at war with this legislative history.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
sc_certreason
|
L
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
HINES et al. v. ANCHOR MOTOR FREIGHT, INC., et al.
No. 74-1025.
Argued November 12, 1975
Decided March 3, 1976
White, J., delivered the opinion of the Court, in which Brennan, Stewart, Marshall, Blackmun, and Powell, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 572. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 573. Stevens, J., took no part in the consideration or decision of the case.
Niki Z. Schwartz argued the cause and filed briefs for petitioners.
Bernard S. Goldfarb argued the cause and filed a brief for respondent Anchor Motor Freight, Inc. David Leo Uelmen and Eugene Green filed a brief for respondent Local Union No. 377. David Previant and George Kauj-mann filed a brief for respondent International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America.
Arthur L. Fox II filed a brief for Prod, Inc., et al. as amici curiae urging reversal.
Mr. Justice White
delivered the opinion of the Court.
The issue here is whether a suit against an employer by employees asserting breach of a collective-bargaining contract was properly dismissed where the accompanying complaint against the union for breach of duty of fair representation has withstood the union’s motion for summary judgment and remains to be tried.
I
Petitioners, who were formerly employed as truck drivers by respondent Anchor Motor Freight, Inc. (Anchor), were discharged on June 5, 1967. The applicable collective-bargaining contract forbade discharges without just cause. The company charged dishonesty. The practice at Anchor was to reimburse drivers for money spent for lodging while the drivers were on the road overnight. Anchor’s assertion was that petitioners had sought reimbursement for motel expenses in excess of the actual charges sustained by them. At a meeting between the company and the union, Local 377, International Brotherhood of Teamsters (Union), which was also attended by petitioners, Anchor presented motel receipts previously submitted by petitioners which were in excess of the charges shown on the motel’s registration cards; a notarized statement of the motel clerk asserting the accuracy of the registration cards; and an affidavit of the motel owner affirming that the registration cards were accurate and that inflated receipts had been furnished petitioners. The Union claimed petitioners were innocent and opposed the discharges. It was then agreed that the matter would be presented to the joint arbitration committee for the area, to which the collective-bargaining contract permitted either party to submit an unresolved grievance. Pending this hearing, petitioners were reinstated. Their suggestion that the motel be investigated was answered by the Union representatives’ assurances that "there was nothing to worry about” and that they need not hire their own attorney.
A hearing before the joint area committee was held on July 26, 1967. Anchor presented its case. Both the Union and petitioners were afforded an opportunity to present their case and to be heard. Petitioners denied their dishonesty, but neither they nor the Union presented any other evidence contradicting the documents presented by the company. The committee sustained the discharges. Petitioners then retained an attorney and sought rehearing based on a statement by the motel owner that he had no personal knowledge of the events, but that the discrepancy between the receipts and the registration cards could have been attributable to the motel clerk’s recording on the cards less than was actually paid and retaining for himself the difference between the amount receipted and the amount recorded. The committee, after hearing, unanimously denied rehearing “because there was no new evidence presented which would justify a reopening of this case.” App. 212.
There were later indications that the motel clerk was in fact the culprit; and the present suit was filed in June 1969, against Anchor, the Union, and its International. The complaint alleged that the charges of dishonesty made against petitioners by Anchor were false, that there was no just cause for discharge, and that the discharges had been in breach of contract. It was also asserted that the falsity of the charges could have been discovered with a minimum of investigation, that the Union had made no effort to ascertain the truth of the charges, and that the Union had violated its duty of fair representation by arbitrarily and in bad faith depriving petitioners of their employment and permitting their discharge without sufficient proof.
The Union denied the charges and relied on the decision of the joint area committee. Anchor asserted that petitioners had been properly discharged for just cause. It also defended on the ground that petitioners, diligently and in good faith represented by the Union, had unsuccessfully resorted to the grievance and arbitration machinery provided by the contract and that the adverse decision of the joint arbitration committee was binding upon the Union and petitioners under the contractual provision declaring that “[a] decision by a majority of a Panel of any of the Committees shall be final and binding on all parties, including the employee and/or employees affected.” Discovery followed, including a deposition of the motel clerk revealing that he had falsified the records and that it was he who had pocketed the difference between the sums shown on.the receipts and the registration cards. Motions for summary judgment filed by Anchor and the Unions were granted by the District Court on the ground that the decision of the arbitration committee was final and binding on the employees and “for failure to show facts comprising bad faith, arbitrariness or perfunctoriness on the part of the Unions.” 72 CCH Lab. Cas. ¶ 13,987, p. 28,131 (ND Ohio 1973). Although indicating that the acts of the Union “may not meet professional standards of competency, and while it might have been advisable for the Union to further investigate the charges . . . ,” the District Court concluded that the facts demonstrated at most bad judgment on the part of the Union, which was insufficient to prove a breach of duty or make out a prima facie case against it. Id., at 28,132.
After reviewing the allegations and the record before it, the Court of Appeals concluded that there were sufficient facts from which bad faith or arbitrary conduct on the part of the local Union could be inferred by the trier of fact and that petitioners should have been afforded an opportunity to prove their charges. To this extent the judgment of the District Court was reversed. The Court of Appeals affirmed the judgment in favor of Anchor and the International. Saying that petitioners wanted to relitigate their discharges because of the recantation of the motel clerk, the Court of Appeals, quoting from its prior opinion in Balowski v. International Union, 372 F. 2d 829 (CA6 1967), concluded that the finality provision of collective-bargaining contracts must be observed because there was “[n]o evidence of any misconduct on the part of the employer . . .” and wholly insufficient evidence of any conspiracy between the Union and Anchor. 506 F. 2d, at 1157, 1158.
It is this judgment of the Court of Appeals with respect to Anchor that is now before us on our limited grant of the employees’ petition for writ of certiorari. 421 U. S. 928 (1975). We reverse that judgment.
II
Section 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185, provides for suits in the district courts for violation of collective-bargaining contracts between labor organizations and employers without regard to the amount in controversy. This provision reflects the interest of Congress in promoting “a higher degree of responsibility upon the parties to such agreements . . ..” S. Rep. No. 105, 80th Cong., 1st Sess., .17 (1947). The strong policy favoring judicial enforcement of collective-bargaining contracts was sufficiently powerful to sustain the jurisdiction of the district courts over enforcement suits even though the conduct involved was arguably or would amount to an unfair labor practice within the jurisdiction of the National Labor Relations Board. Smith v. Evening News Assn., 371 U. S. 195 (1962); Atkinson v. Sinclair Rfg. Co., 370 U. S. 238 (1962); Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962); Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962). Section 301 contemplates suits by and against individual employees as well as between unions and employers; and contrary to earlier indications § 301 suits encompass those seeking to vindicate “uniquely personal” rights of employees such as wages, hours, overtime pay, and wrongful discharge. Smith v. Evening News Assn., supra, at 198-200. Petitioners' present suit against the employer was for wrongful discharge and is the kind of case Congress provided for in § 301.
Collective-bargaining contracts, however, generally contain procedures for the settlement of disputes through mutual discussion and arbitration. These provisions are among those which are to be enforced under § 301. Furthermore, Congress has specified in § 203 (d), 61 Stat. 154, 29 U. S. C. § 173 (d), that “[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes . . . .” This congressional policy “can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.” Steelworkers v. American Mfg. Co., 363 U. S. 564, 566 (1960). Courts are not to usurp those functions which collective-bargaining contracts have properly “entrusted to the arbitration tribunal.” Id., at 569. They should not undertake to review the merits of arbitration awards but should defer to the tribunal chosen by the parties finally to settle their disputes. Otherwise “plenary review by a court of the merits would make-meaningless the provisions that the arbitrator’s decision is final, for in reality it would almost never be final.” Steelworkers v. Enterprise Corp., 363 U. S. 593, 599 (1960).
Pursuant to this policy, we later held that an employee could not sidestep the grievance machinery provided in the contract and that unless he attempted to utilize the contractual procedures for settling his dispute with his employer, his independent suit against the employer in the District Court would be dismissed. Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965). Maddox nevertheless distinguished the situation where “the union refuses to press or only perfunctorily presses the individual’s claim .... See Humphrey v. Moore, 375 U. S. 335; Labor Board v. Miranda Fuel Co., 326 F. 2d 172.” Id., at 652 (footnote omitted).
The reservation in Maddox was well advised. The federal labor laws, in seeking to strengthen the bargaining position of the average worker in an industrial economy, provided for the selection of collective-bargaining agents with wide authority to negotiate and conclude collective-bargaining agreements on behalf of all employees in appropriate units, as well as to be the employee’s agent in the enforcement and administration of the contract. Wages, hours, working conditions, seniority, and job security therefore became the business of certified or recognized bargaining agents, as did the contractual procedures for the processing and settling of grievances, including those with respect to discharge.
Necessarily “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents . . . Ford Motor Co. v. Huffman, 345 U. S. 330, 338 (1953). The union’s broad authority in negotiating and administering effective agreements is “undoubted,” Humphrey v. Moore, 375 U. S. 335, 342 (1964), but it is not without limits. Because “[t]he collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all. employees in a bargaining unit,” Vaca v. Sipes, 386 U. S. 171, 182 (1967), the controlling statutes have long beén interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, “the responsibility and duty of fair representation.” Humphrey v. Moore, supra, at 342. The union as the statutory representative of the employees is “subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, supra, at 338. Since Steele v. Louisville & N. R. Co., 323 U. S. 192 (1944), with respect to the railroad industry, and Ford Motor Co. v. Huffman, supra, and Syres v. Oil Workers, 350 U. S. 892 (1955), with respect to those industries reached by the National Labor Relations Act, the duty of fair representation has served as a “bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca v. Sipes, supra, at 182.
Claims of union breach of duty may arise during the life of a contract when individual employees claim wrongful discharge or other improper treatment at the hands of the employer. Contractual remedies, at least in their final stages controlled by union and employer, are normally provided; yet the union may refuse to utilize them or, if it does, assertedly may do so discriminatorily or in bad faith. “The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures.” Vaca v. Sipes, supra, at 185.
Humphrey v. Moore, supra, involved a seniority dispute between the employees of two transportation companies whose operating authorities had been combined. The employees accorded lesser seniority were being laid off. Their grievances were presented to the company and taken by the union to the joint arbitration committee pursuant to contractual provisions very similar to those now before us. The decision was adverse. The employees then brought suit in the state court against the company, the union, and the favored employees, asserting breach of contract by the company and breach of its duty of fair representation by the union. They sought damages and an injunction to prevent implementation of the decision of the joint arbitration committee. The union was charged with dishonest and bad-faith representation of the employees before the joint committee. The unions and the defendant employees asserted the finality of the joint committee’s decision, if not as a final resolution of a dispute in the administration of a contract, as a bargained-for accommodation between the two parties. The state courts issued the injunction. Respondents argued here that “the decision of the Committee was obtained by dishonest union conduct in breach of its duty of fair representation and that a decision so obtained cannot be relied upon as a valid excuse for [their] discharge under the contract.” 375 U. S., at 342. We reversed the judgment of the state court but only after independently determining that the union’s conduct was not a breach of its statutory duties and that the joint committee’s decision was not infirm for that reason. Our conclusion was that the disfavored employees had not proved their case: “Neither the parties nor the Joint Committee exceeded their power under the contract and there was no fraud or breach of duty by the exclusive bargaining agent. The decision of the committee, reached after proceedings adequate under the agreement, is final and binding upon the parties, just as the contract says it is.” Id., at 351.
In Vaca v. Sipes, supra, the discharged employee sued the union alleging breach of its duty of fair representation in that it had refused in bad faith to take the employee’s grievance to arbitration as it could have under the contract. In the course of rejecting the claim that the alleged conduct was arguably an unfair practice within the exclusive jurisdiction of the Labor Board, we ruled that “the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” 386 U. S., at 186 (footnote omitted). This was true even though “the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies . . . ,” for “the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process ... were it not for the union’s breach of its statutory duty of fair representation . . . .” Id., at 185. We could not “believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer upon unions such unlimited discretion to deprive injured employees of all remedies for breach of contract.” Id., at 186. Nor did we “think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrongful union conduct in the enforcement of such agreements.” Ibid. At the same time “we conclude [d] that a union does not breach its duty of fair representation . . . merely because it settled the grievance short of arbitration.” Id., at 192. “If the individual employee could compel arbitration of his grievance regardless of its merit,” that is, compel both employers and unions to make full use of the contractual provisions for settling disputes by arbitration, “the settlement machinery provided by the contract would be substantially undermined,” for curtailing the “power to settle the majority of grievances short of the costlier and more time-consuming steps” might deter the parties to collective-bargaining agreements from making “provision] for detailed grievance and arbitration procedures of the kind encouraged by L. M. R. A. § 203 (d).” Id., at 191-192. We also expressly indicated that suit against the employer and suit against the union could be joined in one action. Id., at 187.
Ill
Even though under Vaca the employer may not insist on exhaustion of grievance procedures when the union has breached its representation duty, it is urged that when the procedures have been followed and a decision favorable to the employer announced, the employer must be protected from relitigation by the express contractual provision declaring a decision to be final and binding. We disagree. The union’s breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union’s breach also removes the bar of the finality provisions of the contract.
It is true that Vaca dealt with a refusal by the union to process a grievance. It. is also true that where the union actually utilizes the grievance and arbitration procedures on behalf of the employee, the focus is no longer on the reasons for the union’s failure to act but on whether, contrary to the arbitrator’s decision, the employer breached the contract and whether there is substantial reason to believe that a union breach of duty contributed to the erroneous outcome of the contractual proceedings. But the judicial remedy in Humphrey v. Moore was sought after the adverse decision of the joint arbitration committee. Our conclusion in that case was not that the committee’s decision was unreviewable. On the contrary, we proceeded on the basis that it was reviewable and vulnerable if tainted by breach of duty on the part of the union, even though the employer had not conspired with the union. The joint committee’s decision was held binding on the complaining employees only after we determined that the union had not been guilty of malfeasance and that its conduct was within the range of acceptable performance by a collective-bargaining agent, a wholly unnecessary determination if the union’s conduct was irrelevant to the finality of the arbitral process.
In Vaca “we accept [ed] the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion,” 386 U. S., at 191, and our ruling that the union had not breached its duty of fair representation in not pressing the employee’s case to the last step of the grievance process stemmed from our evaluation of the manner in which the union had handled the grievance in its earlier stages. Although “the Union might well have breached its duty had it ignored [the employee’s] complaint or had it processed the grievance in a perfunctory manner,” “the Union conclude [d] both that arbitration would be fruitless and that the grievance should be dismissed” only after it had “processed the grievance into the fourth step, attempted to gather sufficient evidence to prove [the employee’s] case, attempted to secure for [him] less vigorous work at the plant, and joined in the employer’s efforts to have [him] rehabilitated.” Id., at 194.
Anchor would have it that petitioners are foreclosed from judicial relief unless some blameworthy conduct on its part disentitles it to rely on the finality rule. But it was Anchor that originated the discharges for dishonesty. If those charges were in error, Anchor has surely played its part in precipitating this dispute. Of course, both courts below held there were no facts suggesting that Anchor either knowingly or negligently relied on false evidence. As far as the record reveals it also prevailed before the joint committee after presenting its case in accordance with what were ostensibly wholly fair procedures. Nevertheless there remains the question whether the contractual protection against re-litigating an arbitral decision binds employees who assert that the process has fundamentally malfunctioned by reason of the bad-faith performance of the union, their statutorily imposed collective-bargaining agent.
Under the rule announced by the Court of Appeals, unless the employer is implicated in the Union’s malfeasance or has otherwise caused the arbitral process to err, petitioners would have no remedy against Anchor even though they are successful in proving the Union’s bad faith, the falsity of the charges against them, and the breach of contract by Anchor by discharging without cause. This rule would apparently govern even in circumstances where it is shown that a union has manufactured the evidence and knows from the start that it is false; or even if, unbeknownst to the employer, the union has corrupted the arbitrator to the detriment of disfavored union members. As is the case where there has been a failure to exhaust, however, we cannot believe that Congress intended to foreclose the employee from his § 301 remedy otherwise available against the employer if the contractual processes have been seriously flawed by the union’s breach of its duty to represent employees honestly and in good faith and without invidious discrimination or arbitrary conduct.
It is urged that the reversal of the Court of Appeals will undermine not only the finality rule but the entire collective-bargaining process. Employers, it is said, will be far less willing to give up their untrammeled right to discharge without cause and to agree to private settlement procedures. But the burden on employees will remain a substantial one, far too heavy in the opinion of some. To prevail against either the company or the Union, petitioners must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union. As the District Court indicated, this involves more than demonstrating mere errors in judgment.
Petitioners are not entitled to relitigate their discharge merely because they offer newly discovered evidence that the charges against them were false and that in fact they were fired without cause. The grievance processes cannot be expected to be error-free. The finality provision has sufficient force to surmount occasional instances of mistake. But it is quite another matter to suggest that erroneous arbitration decisions must stand even though the employee’s representation by the union has been dishonest, in bad faith, or discriminatory; for in that event error and injustice of the grossest sort would multiply. The contractual system would then cease to qualify as an adequate mechanism to secure individual redress for damaging failure of the employer to abide by the contract. Congress has put its blessing on private dispute settlement arrangements provided in collective agreements, but it was anticipated, we are sure, that the contractual machinery would operate within some minimum levels of integrity. In our view, enforcement of the finality provision where the arbitrator has erred is conditioned upon the union’s having satisfied its statutory duty fairly to represent the employee in connection with the arbitration proceedings. Wrongfully discharged employees would be left without jobs and without a fair opportunity to secure an adequate remedy.
Except for this case the Courts of Appeals have arrived at similar conclusions. As the Court of Appeals for the Ninth Circuit put it in Margetta v. Pam Pam Corp., 501 F. 2d 179, 180 (1974): “To us, it makes little difference whether the union subverts the arbitration process by refusing to proceed as in Vaca or follows the arbitration trail to the end, but in so doing subverts the arbitration process by failing to fairly represent the employee. In neither case, does the employee receive fair representation.”
Petitioners, if they prove an erroneous discharge and the Union’s breach of duty tainting the decision of the joint committee, are entitled to an appropriate remedy against the employer as well as the Union. It was error to affirm the District Court’s final dismissal of petitioners’ action against Anchor. To this extent the judgment of the Court of Appeals is reversed.
So ordered.
Mb. Justice Stevens took no part in the consideration or decision of this case.
Two of the original petitioners, Burtice A. Hines and Arthur D. Cartwright, are deceased. Charles A. Hines and Chyra J. Cartwright have been substituted as party petitioners. 423 U. S. 816, 982 (1975).
The contractual grievance procedure is set out in Art. 7 of the Central Conference Area Supplement to the National Master Automobile Transporters Agreement. App. 226-233. Grievances were to be taken up by the employee involved and if no settlement was reached, were then to be considered by the business agent of the local union and the employer representative. If the dispute remained unresolved, either party had the right to present the case for decision to the appropriate joint area arbitration committee. These committees are organized on a geographical area basis and hear grievances in panels made up of an equal number of representatives of the parties to the collective-bargaining agreement. Cases that deadlocked before the joint area committee could be taken to a panel of the national joint arbitration committee, composed like the area committee panels of an equal number of representatives of the parties to the agreement. If unresolved there, they would be resolved by a panel including an impartial arbitrator. The joint arbitration committee for the Detroit area is involved in this case.
The provision is contained in § 5 of Art. 7. App. 231. In addition, § 7 (e) of the same article provides that all decisions of the national and area committees with respect to the interpretation of the contract “shall be final and conclusive and binding upon the •Employer and the Union, and the employees involved.” App. 232.
As summarized by the Court of Appeals, the allegations relied on were:
“They consist of the motel clerk’s admission, made a year after the discharge was upheld in arbitration, that he, not plaintiffs, pocketed the money; the claim of the union’s failure to investigate the motel clerk’s original story implicating plaintiffs despite their requests; the account of the union officials’ assurances to plaintiffs that ‘they had nothing to worry about’ and ‘that there was no need for them to investigate’; the contention that no exculpatory evidence was presented at the hearing; and the assertion that there existed political antagonism between local union officials and plaintiffs because of a wildcat strike led by some of the plaintiffs and a dispute over the appointment of a steward, resulting in denunciation of plaintiffs as ‘hillbillies’ by Angelo, the union president.” 506 F. 2d 1153, 1156 (CA6 1974).
The quoted segment of the opinion in Balowski v. International Union, 372 F. 2d, at 833, was:
“ 'It is apparent that what plaintiff is attempting to do is to relitigate his grievance in this proceeding. This he cannot do when the collective bargaining agreement provides for final and binding arbitration of all disputes, absent a showing of fraud, misrepresentation, bad faith, dishonesty of purpose, or such gross mistake or inaction as to imply bad faith on the part of the Union or the employer.'” 506 F. 2d, at 1157 (citation omitted).
The rule in the Sixth Circuit, under Balowski, would appear to have been that an employee could litigate his discharge in court if he proved bad faith or gross mistake on the part of either the union or the employer.
One judge, otherwise concurring, dissented as to affirming summary judgment against Anchor because “issues of fact . . . presented by the pleadings concerning plaintiffs’ charges against the employer . . . should not have been dealt with on summary judgment.” 506 F. 2d, at 1158.
Our order of April 21, 1975, was as follows:
“Certiorari granted limited to Question 1 presented by the petition which reads as follows:
“ ‘1. Whether petitioners’ claim under LMRA § 301 for wrongful discharge is barred by the decision of a joint grievance committee upholding their discharge, notwithstanding that their union breached its duty of fair representation in processing their grievance so as to deprive them and the grievance committee of overwhelming evidence of their innocence of the alleged dishonesty for which they were discharged?”’
The affirmance of summary judgment in favor of the International is therefore not before us. Nor is the judgment of the Court of Appeals reversing the summary judgment in favor of Local 377, since the Union has not sought review of this ruling.
§301 (a), 29 U. S. C. §185 (a):
“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”
Czosek v. O’Mara, 397 U. S. 25 (1970), which arose under the Railway Labor Act, 44 Stat. 577, as amended, 45 U. S. C. § 151 et seq., involved a claim that a railroad had wrongfully deprived plaintiff of his seniority and that the union had failed in its duty to protest. The suit against the union was sustained by the Court of Appeals, but dismissal of the claim against the railroad was affirmed absent allegation that the company had participated in the union’s breach. In affirming the judgment we upheld the Court of Appeals’ ruling against the union, but did not reach the question whether the railroad was properly dismissed over the employee’s objections, since the latter did not challenge the judgment in this respect.
Mr. Justice Black, for one, was of the view that where the union refused to process a grievance, the employee should be allowed his suit in court without proof of the union’s breach of duty. Vaca v. Sipes, 386 U. S. 171, 203 (1967) (dissenting opinion).
Steinman v. Spector Freight System, Inc., 441 F. 2d 599 (CA2 1971); Butler v. Local Union 823, International Brotherhood of Teamsters, 514 F. 2d 442 (CA8), cert. denied, 423 U. S. 924 (1975); Margetta v. Pam Pam Corp., 501 F. 2d 179 (CA9 1974); Local 13, International Longshoremen’s & Warehousemen’s Union v. Pacific Maritime Assn., 441 F. 2d 1061 (CA9 1971), cert. denied, 404 U. S. 1016 (1972). See also Bieski v. Eastern Automobile Forwarding Co., 396 F. 2d 32, 38 (CA3 1968); Rothlein v. Armour & Co., 391 F. 2d 574, 579-580 (CA3 1968); Harris v. Chemical Leaman Tank Lines, Inc., 437 F. 2d 167, 171 (CA5 1971); Andrus v. Convoy Co., 480 F. 2d 604, 606 (CA9), cert. denied, 414 U. S. 989 (1973).
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_respond2_1_4
|
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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
Jane G. KELLY v. Agnes J. Reeves GREER and Mellon National Bank and Trust Company Jane G. Kelly, Individually and/or on Behalf of Her Children, Richard Greer Raese, John Reeves Raese, David Aubrey Raese and Jane Kelly, Appellants. Jane G. KELLY v. Agnes J. Reeves GREER and Pittsburgh National Bank.
Nos. 15372, 15373.
United States Court of Appeals Third Circuit.
Argued Dec. 10, 1965.
Reargued May 19, 1966.
Decided Sept. 7, 1966.
See also, D.C., 354 F.2d 209.
Henry W. Sawyer, III, Philadelphia, Pa. (Drinker, Biddle & Reath, Philadelphia, Pa., on the brief), for appellants.
Gilbert J. Helwig, Pittsburgh, Pa. (G. Donald Gerlach, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., Richard F. Stevens, Baker, Hostetler & Patterson, Cleveland, Ohio, on the brief), for appellees.
Before STALEY, Chief Judge, and KALODNER and FORMAN, Circuit Judges.
OPINION OF THE COURT
KALODNER, Circuit Judge.
These are appeals from a Memorandum Order of the District Court for the Western District of Pennsylvania entered April 14, 1965 dismissing all pending motions in this action and requiring the parties to proceed to carry out the terms of a “Settlement Stipulation” in accordance with the District Court’s instructions. The Order was a consequence of a Mandate sent down by this Court, following our Opinion in these preceedings, 334 F.2d 434 (1964), which vacated earlier Orders of the District Court and remanded the cause for further proceedings.
Plaintiff, Jane G. Kelly, complains that the Memorandum Order of the District Court is improper in that it deprives her of her right to pursue her legal remedies. We find no merit in this contention.
For the purposes of this appeal, the history of this long, drawn-out litigation involving an intrafamily dispute between daughter, Jane G. Kelly, and mother, Agnes J. Reeves Greer, may be summarized as follows: In 1959 the present plaintiff brought an action in the Western District against the present defendant and the Mellon National Bank and Trust Company seeking an adjudication regarding her rights in certain shares of stock of the Union Gas Company of Canada, Ltd. held by the Bank. In 1961 plaintiff brought a second action in the Western District against the defendant and the Pittsburgh National Bank to recover dividends deposited in the Pittsburgh Bank in defendant’s name. Both of these suits were in rem actions, service of the defendant having been accomplished pursuant to 28 U.S.C.A. § 1655. In May 1961, the District Court consolidated the two actions, and this was upheld on appeal. Kelly v. Greer, 295 F.2d 18 (3 Cir. 1961).
There followed a period of extensive discovery and pretrial extending to January 1963. The parties then began negotiations -to settle the litigation as well as all other existing disputes between them. From time to time, the District Court assisted in these negotiations. On January 22, 1963 the parties advised the District Court that a settlement had been reached and submitted a “Stipulation and Agreement” which provided for a general resolution of all disagreements between the parties and called for the dismissal of all actions then pending between plaintiff and defendant. The “Stipulation and Agreement” was then made part of the record. Pursuant to its terms, counsel executed a Stipulation for the dismissal of the civil actions in the Western District, and the District Court entered an Order dismissing the suits with prejudice on January 23, 1963.
Execution of the “Agreement” was to be carried out in accordance with paragraph XX which read:
“XX. Prior to March 1, 1963, the attorneys for the parties will draw up the definitive agreement needed to carry out the above plan and will establish a calendar for the transfer of assets or delivery of documents or dismissals needed. It is intended that the details of this settlement will be carried out before May 1, 1963, except that all pending suits shall be dismissed with prejudice forthwith.”
Later, a dispute arose between the parties concerning compliance with the terms of the settlement agreement. On March 11, 1963 plaintiff filed a motion to vacate the dismissal Order and to compel performance of the “Settlement Stipulation.” On April 5, 1963 this motion was withdrawn, and an ancillary complaint was filed seeking damages for alleged breach of the settlement agreement. On July 9, 1963 a second ancillary complaint was filed requesting a judgment declaring that the settlement agreement was valid and enforceable. Defendant moved to dismiss the complaints for lack of personal jurisdiction, and plaintiff moved for summary judgment on her second ancillary complaint. On October 17, 1963 the District Court dismissed the complaints for lack of jurisdiction. Thereafter, plaintiff moved to vacate the dismissal Order of January 23, 1963. The motion was denied on November 13, 1963 and plaintiff appealed.
In Kelly v. Greer, 334 F.2d 434 (3 Cir., 1964), we held that “the district court has jurisdiction to vacate its own orders of dismissal which were based upon the stipulation of the parties in reliance upon their settlement agreement.” (334 F.2d at 436). We vacated “the orders of October 17 and November 13, 1963”, and remanded “the cause to the district court with directions to vacate its orders dismissing the original actions and reinstate them to the status quo existing immediately prior to the entry of the orders of dismissal, i. e., following the reading into the record of the settlement agreement but prior to the orders dismissing the actions.” (334 F.2d at 437)
In accordance with the Mandate of this Court, an Order was entered by the District Court on September 23, 1964 vacating its Orders of October 17 and November 13, 1963 and setting a time for a hearing on all matters presently pending in the litigation; viz., the question of reinstating plaintiff’s original actions, and the status of plaintiff’s two ancillary complaints and the motion for summary judgment. Prior to that hearing, plaintiff filed two additional motions; one for the entry of a consent judgment, nunc pro tunc, and the other for injunctive relief pendente lite.
On December 17, 1964, a hearing was held at which time the District Court dismissed the petition for injunctive relief and reserved ruling on the other pending motions. Subsequent to this hearing plaintiff filed an amended motion for injunctive relief and a motion to calendar her ancillary complaints for jury trial. On April 14,1965 the District Court entered the Memorandum Order under review. This Order stated that “the parties are bound by the terms of the settlement stipulation read into the record on January 22, 1963”, and that “it is hereby ordered that the same be complied with.” The District Court in the Order established a calendar to effectuate compliance.
Plaintiff has appealed from this Memorandum Order claiming that the District Court has selected her remedy for her. We do not agree. The Order is not an attempt to seek remedies for the parties involved in this litigation, but an exercise of the District Court’s power to summarily enforce settlement agreements entered into with its approval. It is settled that the District Court acted within its powers.
In Cummins Diesel Michigan, Inc. v. The Falcon, 305 F.2d 721 (7 Cir. 1962), the Court stated:
“Federal and State Courts have held under a great variety of circumstances that a settlement agreement or stipulation voluntarily entered into cannot be repudiated by either party and will be summarily enforced by the Court.” (at 723)
In Main Line Theatres, Inc. v. Paramount Film Distributing Corporation, 298 F.2d 801 (3 Cir. 1962), cert. den. 370 U.S. 939, 82 S.Ct. 1585, 8 L.Ed.2d 807, Judge Hastie in discussing the effect to be given to a settlement agreement said:
“We are satisfied that the parties entered into a valid contract to settle, upon condition that the other suits also be settled. Thereafter, neither party was free to repudiate the agreement during the short period required to accomplish the settlement of the other suits.” (at 804)
Similar expressions are to be found in the state courts. The Pennsylvania Supreme Court in reviewing a court’s power over a settlement agreement in Melnick v. Binenstock, 318 Pa. 533, 179 A. 77 (1935) concluded that:
“Where the right of one of the parties to such an agreement compromising pending litigation is contested, the true interpretation of the agreement should be found by the court in which the litigation was pending or if in equity, within the terms of the decree entered in accordance with the compromise. * * * A compromise or settlement of litigation is always referable to the action or proceeding in the court where the compromise was effected; it is through that court the carrying out of the agreement should thereafter be controlled. Otherwise the compromise,, instead of being an aid to litigation,, would be only productive of litigation as a separate and additional impetus.”' (318 Pa. at 536, 179 A. at 78)
The District Court’s Order is consistent with the above stated principle and with the Mandate of this Court. The litigation having been restored by our Mandate to a position where the “Stipulation and Agreement” had been read into the record but the suits not yet dismissed, the District Court quite properly ordered that both parties comply with it.
Finally, plaintiff’s belief that the District Court’s Order will deprive her of certain legal rights is without foundation. More particularly, plaintiff contends that the Memorandum Order prevents her from seeking damages she claims to have suffered by reason of alleged breaches of the “Stipulation and Agreement” by defendant following the dismissal of the suits on January 23, 1963. The record of the December 17, 1964 hearing makes quite clear the District Court’s readiness to hear the question of breach of the agreement. At that time, the trial judge said:
“ * * * I believe the Court of Appeals has recognized the fact that it is necessary to look into the question of who breached the agreement. I am perfectly willing to hear evidence, arguments or anything else on these points. * * *”
******
“Mr. Arkin: ‘Will your Honor impanel a jury for the issues with respect to breach if that is determined?’
“The Court: T would expect to do so if counsel requested it, probably an advisory jury.’ ”
We do not see how the Memorandum Order estops plaintiff from pursuing her remedies for breach of the settlement agreement and the granting of appropriate relief. See All States Investors, Inc. v. Bankers Bond Company, Inc., 343 F.2d 618, 624 (6 Cir. 1965), cert. den. 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74.
For the reasons stated, the Memorandum Order of the District Court will be affirmed without prejudice to the plaintiff to make subsequent application to the District Court for recompense for any damages she might have sustained as a result of any breach by defendant of the “Agreement”.
. Plaintiff is a citizen of Florida and defendant is a citizen of West Virginia. Neither resides in the Western District but the property which is the subject of the suits is located there.
. Defendant, of course, vigorously denies any such breaches.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellant, v. Howard C. HAYES and Gladys I. Hayes, his wife, Stanwood P. Whiteley and Margaret Whiteley, his wife, Appellees.
No. 20374.
United States Court of Appeals Ninth Circuit.
Dec. 8, 1966.
John W. Douglas, Asst. Atty. Gen., Morton Hollander, Walter H. Fleischer, Martin Jacobs, Attys., Civil Div., U. S. Dept. of Justice, Washington, D. C., Richard L. McVeigh, U. S. Atty., Anchorage, Alaska, for appellant.
Robert Boochever, of Faulkner, Ban-field, Boochever & Doogan, Juneau, Alaska, for appellees.
Before JERTBERG and ELY, Circuit Judges, and FOLEY, Jr., District Judge.
ELY, Circuit Judge:
This appeal is from a judgment of dismissal entered by the District Court following a trial. The appellant, plaintiff below, had sought recovery of the unpaid portion of an obligation which had been guaranteed by appellees. The obligation arose from a loan made by the Reconstruction Finance Corporation, whose functions have since been transferred to the Small Business Adminstration. 22 Fed.Reg. 4633, 71 Stat. 647 (1957). The jurisdiction of the District Court is fixed by 28 U.S.C. § 1345, and our jurisdiction is conferred by 28 U.S.C. § 1291.
On May 28, 1953, Gastineau Corporation and Chicagof Corporation were the two partners of a partnership known as Hayes and Whiteley Enterprises. On the mentioned date they, as copartners, executed a promissory note in favor of the Reconstruction Finance Corporation. The note called for the payment of $49,-200, and its maturity date was December 15, 1955. It was secured by a first mortgage on certain land and chattels owned by the partnership. The principal officers of the debtor corporations were Howard C. Hayes and Stanwood P. Whiteley, and on the date of the note’s execution, they, together with their wives, executed a written guaranty of the obligation.
After the debt was reduced by a few payments, the copartnership fell into financial difficulty and was adjudicated a bankrupt. The Small Business Administration, as assignee of the Reconstruction Finance Corporation, instituted suit upon the note. The two partner corporations, although served, took no action in defense and defaulted. The trustee of the bankrupt partnership entered a general appearance, but, in effect, consented to the judgment which was sought and, on April 5, 1958, obtained. The judgment, in the amount of $48,983.72, included the unpaid principal, the accrued interest, $4,000 in attorney’s fees, and $4,968.49 to reimburse the plaintiff in that suit for “care and preservation of the mortgaged property.” The appel-lee guarantors were not joined as defendants in the suit which resulted in this judgment. They claim that Mr. Hayes and Mr. Whiteley had been told by the “receiver” to stay away from the mortgaged property, that they had assisted the Reconstruction Finance Corporation by furnishing á requested affidavit, and that they abandoned interest in the suit against the note’s principal obligors when one of them was told by a representative of the Reconstruction Finance Corporation that “ * * * as long as the property was so badly dissipated, he could see no way * * * [R.F.C.] * * * could hold * * * [them] * * * personally responsible.”
In its brief in our court, the appellant concedes that “During the time that the property had been under the control of the Trustee, it had depreciated in value, through vandalism and theft, and the property did not satisfy the judgment in full.” After the proceeds of the foreclosure had been applied to the judgment debt, there remained, according to a Return on Execution filed on June 30, 1958, an unsatisfied balance of $30,691.-67. Over three years thereafter, in September, 1962, the plaintiff instituted the present action. In paragraph V of its complaint, it alleged “That the Judgment * * * [of April 5, 1958] * * * remains unpaid in the principal amount of $30,691.57 together with interest accrued to the 30th day of August, 1962, in the amount of $7,811.00 together with interest at the rate of six (6%) percent per annum from the 30th day of August, 1962 until fully paid.” The appellees denied the allegation. They also pleaded that the action was barred by an Alaskan statute of limitations and that an authorized representative of the plaintiff had orally released them from liability under the guaranty agreement.
In connection with a pre-trial conference conducted by the District Court, the appellant submitted a pre-trial memorandum which, among other things, recited, “Plaintiff expects to prove the allegations set forth in its complaint which are not admitted by the defendant’s answer to wit: paragraph 5 and 6.”
When, at the commencement of the trial, the district judge remarked, “ * * * the contested issues of fact and law * * * are * * * first, the amount due as principal and interest to date from defendant to plaintiff * * the appellant’s counsel commented, “I think the issues have been covered in the pre-trial memorandum, and also in the Court’s present statement.” Immediately thereafter, the appellant undertook to prove its case as it had represented in its pre-trial memorandum that it expected to do. It tendered a statement of account containing a self-serving declaration of the amount for which it claimed the appel-lees were indebted. Upon objection, the tender was rejected, and the appellant does not here challenge the correctness of the court’s ruling in that respect. The appellant then produced a witness through whom it would have sought oral testimony as to the unpaid obligation, but the court, following the procedure upon which agreement had been reached at the pre-trial conference, refused to hear the testimony. The appellant had represented in its pre-trial memorandum that it would produce no witnesses. It repeated this representation as the trial began. It did not request to be relieved from its commitment, it did not request a continuance, and it does not now contend that the District Court erred in refusing to permit it to examine the witness.
Following the two efforts which have been described, the appellant did not attempt further proof. The appellees offered none which pertained to the amount of remaining debt, if any, and the challenged judgment of dismissal was entered. Essentially, it was based upon the court’s conclusion that the appellant had failed to meet its burden of proof.
To us, the appellant vigorously urges that the District Court erred in its conclusion that the burden of proof on the disputed issue rested upon it. Incidental to this principal contention is the claim of error on the part of the court in finding that the true evidence of the amount of the indebtedness rested primarily within the knowledge and control of the appellant.
The appellant invokes a rule that a judgment obtained in a suit against a principal debtor is prima facie evidence of the liability of his guarantor or surety in a subsequent suit. Our attention is particularly directed to Moses v. United States, 166 U.S. 571, 600, 17 S.Ct. 682, 41 L.Ed. 1119 (1897), Lake County, for Use and Benefit of Baxley v. Massachusetts Bonding & Insurance Co., 75 F.2d 6, 8 (5th Cir. 1935), Massachusetts B. & Ins. Co. v. Robert E. Denike, Inc., 92 F.2d 657 (3rd Cir. 1937), Commonwealth, to Use of Ulshofer v. Turner, 340 Pa. 468, 17 A.2d 352, 354 (1941), and Home Ins. Co. of New York v. Savage, 231 Mo.App. 569, 103 S.W.2d 900 (1937).
Assuming that such a rule might be sometimes applicable, we agree with the District Court that it should not be operative here. In Home Ins. Co. of New York v. Savage, supra, which appellant emphasizes, the guarantors were joined in the suit in which judgment was taken against the principal. In other cases in which it has been said that a prior judgment constitutes prima facie evidence of the liability of a guarantor in a subsequent suit, it does not appear that the judgment obligation had been reduced by payment. See, e. g., Lake County for Use and Benefit of Baxley v. Massachusetts Bonding & Insurance Co., supra. In the present ease, it was shown by the appellant’s own allegations that some payments had been made toward the reduction of the indebtedness established by the judgment of April, 1958.
Appellees advance another exception to the rule upon which appellant now relies. This exception arises when the creditor’s judgment against the principal, in a suit in which the guarantor is not joined, is taken by default or obtained by confession. Restatement, Security § 139(3) (1941). In the comment to the cited subsection of the Restatement, it is said, “Such a judgment against the principal does not create a rebuttable presumption of the principal’s liability, in an action between creditor and surety.” Restatement, Security § 139(3), comment e (1941). We support this proposition, and we are inclined to believe that the courts of Alaska, when confronted with the problem, will support it also. The Supreme Court of Alaska has frequently relied on Restatement rules. See, e. g., Thrift Shop, Inc. v. Alaska Mutual Savings Bank, 398 P.2d 657 (Alaska 1965). The issue is not whether the judgment is admissible as evidence. It is the effect which is to be given to the judgment after its admission. It is a matter of substance and as such is controlled by Alaskan law. United States v. Maryland Cas. Co., 204 F.2d 912, 915 (5th Cir. 1953). When a creditor, without suing a guarantor, obtains a judgment against the principal by consent or default, suspicion arises that the creditor and the principal may have conspired improperly for advantage to themselves and the ultimate disadvantage of the guarantor. When, therefore, a creditor has obtained a judgment against the principal in an action which the principal has not contested, that judgment, in the creditor’s subsequent and first suit against the guarantor, cannot and should not, of itself alone, constitute prima facie evidence of the amount of the guarantor’s obligation. See United States v. Maryland Cas. Co., supra.
The appellees had been disassociated from the corporations which were the judgment debtors for approximately eight years before the institution of suit against them. For the same extended period of time they had been divested of interest, direct and indirect, in the property which secured the original obligation and which was the subject of the foreclosure proceedings. We have already seen that the appellant, for reasons not for our speculation, did not join them in the suit which fixed the amount of liability against the principal obligors alone. The appellees were remote from events, including the payment of amounts toward satisfaction of the judgment and the manner of the payments. Under these circumstances, it was noKerror for the District Court to find that the proper amounts which should be credited to satisfaction of the original judgment rested “chiefly or entirely” within the knowledge of the appellant as the creditor. It is well settled that in the interest of fairness the burden of proof ordinarily resting upon one party as to a disputed issue may shift to his adversary when the true facts relating to the disputed issue lie peculiarly within the knowledge of the latter. See, e. g., United States v. New York, N. H. & H. R. R. Co., 355 U.S. 253, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957), wherein the Supreme Court stated, “The ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.” 355 U.S. 256 n. 5, 78 S.Ct. 214 n. 5
It is said that appellees may have availed themselves of adequate knowledge by recourse to the trustee of the bankrupt partnership or to his records. Aside from possible disinclination to rely upon an official who had not- contested the original suit wherein the judgment included a $5,000 loss for which he himself may have been responsible, the appellees were not obliged, in the circumstances which we have outlined, to secure the, proof.
The appellant, in its pre-trial memorandum, had represented that it would prove its principal allegation, the just amount of indebtedness. We must assume, absent request for modification of, or relief from, the pre-trial commitment, that the appellees relied upon the representation which appellant made. Had the appellant, at the time of the pretrial conference, taken the position which it now takes, that it had no obligation as to proof other than to introduce the original judgment, it is not unlikely that ap-pellees would have attempted to prepare themselves with evidence relating to the disputed amount. That the appellant’s representation in its pre-trial memorandum evidenced its understanding of its burden is confirmed by the fact that it did indeed undertake to offer proof in the presentation of its case in chief. It is essential to the orderly disposition of litigation that parties, as well as courts, be able to rely on procedural courses which have-been clearly defined and established in properly conducted pre-trial proceedings.
The entire record supports the District Court’s conclusion that the burden of proof in this case rested upon appellant. It had agreed to meet it, and it did not do so. The judgment is
Affirmed.
. This amount, $48,983.72, is itemized in the District Court’s Finding of Fact number 4 and found to have been the total amount of the judgment in Finding of Fact number 5. It conforms with the judgment which was introduced as plaintiff’s Exhibit C although it is inconsistent with a recitation in paragraph (4) of the “STATEMENT OF ADMITTED FACTS” in the court’s “PRE-TRIAL ORDER” that the judgment was for the sum of $58,075.04. This latter amount appears to have represented a tax obligation for which the United States of America had attached a lien upon the mortgaged property. The administrator of the Small Business Administration, plaintiff in the original suit, had named the United States as a defendant.
. The successful bid, made by the Small Business Administration itself, was only $16,500.
. On the plaintiff’s complaint there is a file stamp which shows that the complaint was filed on September 24, 1962. The pre-trial order recites, in paragraph (7) of the “STATEMENT OF ADMITTED FACTS,” that “For the sole purpose of establishing that defendants received a demand for payment before the filing of suit, it was stipulated that the date of filing suit was December 17, 1962.”
. Accordingly, the pre-trial order states, “Plaintiff indicated that it did not intend to call any witnesses.” Recognizing that the parties might reexamine their plans as to the production of witnesses, the pre-trial order provided, “Witnesses not listed herein may be called by either party provided the names and addresses of such additional witnesses together with a brief statement of the nature or general subject matter of the testimony expected to be given by each such witness are served on opposing counsel and filed with the Clerk at least fifteen (15) days in advance of the date set for trial.”
. The opinion in Moses v. United States, supra, rendered in 1897, contains language claimed to express a contrary rule. We are not certain that it does. In Moses, a surety had executed a $12,000 bond conditioned on an army officer’s faithful discharge of his duties. The United States, after having recovered a judgment of $101,257.08 against the officer for his misappropriation of public funds, instituted suit against the surety. The surety contended that the original judgment was inadmissible for any purpose, and the Supreme Court, in rejecting the contention, stated, as to the judgment, “It proved, at least, prima facie, a breach of the bond by showing the amount of public moneys which Howgate, the principal, had failed to faithfully expend and honestly account for. It was far beyond the penalty in the bond, and, unexplained, the judgment was sufficient evidence of the breach of condition.” (Citations omitted.) 166 U.S. at 600, 17 S.Ct. at 693. It is significant that the thrust of the language is to the point that the judgment was prima facie evidence of “a breach of the bond” and a “breach of condition,” not of the amount of the unsatisfied portion of the original judgment. We note also that in Moses there was apparently no denial by the surety, as there was in the instant case, of the creditor’s allegation of the amount of the surety’s obligation. It is clear from the opinion in Moses that there was no dispute over the fact that the unsatisfied portion of the original judgment far exceeded the amount of the surety’s bond. Moreover, while the judgment against the principal was taken after the principal had failed to file an answer, the opinion recites that the principal “appeared in the action by an attorney.” In any event, the Supreme Court in Moses was concerned with the application of federal law, whereas our obligation is to apply Alaskan law as it is or as it may reasonably be foreseen.
. That this was true as between the appellant and appellees can hardly be questioned. The challenged finding was a finding of fact, based upon a consideration of all the circumstances, not excluding the court’s awareness of the original award, at the least questionable, of an attorney’s fee for $4,000 for the work involved in filing a suit upon a promissory note and in obtaining a judgment by default against the principal obligors and a judgment by consent against a trustee in bankruptcy. Furthermore, we cannot ignore the fact that the original judgment included the sum of approximately $5,000 to reimburse appellant for its expenses in connection with the “care and preservation of the mortgaged property” when the appellant concedes that depreciation in value, resulting from “vandalism and theft,” occurred when the property was “under the control of the trustee.”
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:
|
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.
TAYLOR v. ILLINOIS
No. 86-5963.
Argued October 7, 1987
Decided January 25, 1988
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Scalia, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 419. Blackmun, J., filed a dissenting opinion, post, p. 438.
Rickard E. Cunningham argued the cause for petitioner. With him on the briefs were Paul P. Biebel, Jr., Robert P. Isaacson, and Emily Eisner.
Michael Shabat argued the cause for respondent. On the brief were Neil F. Hartigan, Attorney General of Illinois, Jill Wine-Banks, Deputy Attorney General, Roma J. Stewart, Solicitor General, and Joan G. Fickinger, Assistant Attorney General.
Solicitor General Fried, Assistant Attorney General Weld, Deputy Solicitor General Bryson, Paul J. Larkin, Jr., and Sidney M. Glazer filed a brief for the United States as amicus curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
As a sanction for failing to identify a defense witness in response to a pretrial discovery request, an Illinois trial judge refused to allow the undisclosed witness to testify. The question presented is whether that refusal violated the petitioner’s constitutional right to obtain the testimony of favorable witnesses. We hold that such a sanction is not absolutely prohibited by the Compulsory Process Clause of the Sixth Amendment and find no constitutional error on the specific facts of this case.
I
A jury convicted petitioner in 1984 of attempting to murder Jack Bridges in a street fight on the south side of Chicago on August 6,1981. The conviction was supported by the testimony of Bridges, his brother, and three other witnesses. They described a 20-minute argument between Bridges and a young man named Derrick Travis, and a violent encounter that occurred over an hour later between several friends of Travis, including petitioner, on the one hand, and Bridges, belatedly aided by his brother, on the other. The incident was witnessed by 20 or 30 bystanders. It is undisputed that at least three members of the group which included Travis and petitioner were carrying pipes and clubs that they used to beat Bridges. Prosecution witnesses also testified that petitioner had a gun, that he shot Bridges in the back as he attempted to flee, and that, after Bridges fell, petitioner pointed the gun at Bridges’ head but the weapon misfired.
Two sisters, who are friends of petitioner, testified on his behalf. In many respects their version of the incident was consistent with the prosecution’s case, but they testified that it was Bridges’ brother, rather than petitioner, who possessed a firearm and that he had fired into the group hitting his brother by mistake. No other witnesses testified for the defense.
Well in advance of trial, the prosecutor filed a discovery motion requesting a list of defense witnesses. In his original response, petitioner’s attorney identified the two sisters who later testified and two men who did not testify. On the first day of trial, defense counsel was allowed to amend his answer by adding the names of Derrick Travis and a Chicago police officer; neither of them actually testified.
On the second day of trial, after the prosecution’s two principal witnesses had completed their testimony, defense counsel made an oral motion to amend his “Answer to Discovery” to include two more witnesses, Alfred Wormley and Pam Berkhalter. In support of the motion, counsel represented that he had just been informed about them and that they had probably seen the “entire incident.”
In response to the court’s inquiry about defendant’s failure to tell him about the two witnesses earlier, counsel acknowledged that defendant had done so, but then represented that he had been unable to locate Wormley. After noting that the witnesses’ names could have been supplied even if their addresses were unknown, the trial judge directed counsel to bring them in the next day, at which time he would decide whether they could testify. The judge indicated that he was concerned about the possibility “that witnesses are being found that really weren’t there.”
The next morning Wormley appeared in court with defense counsel. After further colloquy about the consequences of a violation of discovery rules, counsel was permitted to make an offer of proof in the form of Wormley’s testimony outside the presence of the jury. It developed that Wormley had not been a witness to the incident itself. He testified that prior to the incident he saw Jack Bridges and his brother with two guns in a blanket, that he heard them say “they were after Ray [petitioner] and the other people,” and that on his way home he “happened to run into Ray and them” and warned them “to watch out because they got weapons.” On cross-examination, Wormley acknowledged that he had first met defendant “about four months ago” (i e., over two years after the incident). He also acknowledged that defense counsel had visited him at his home on the Wednesday of the week before the trial began. Thus, his testimony rather dramatically contradicted defense counsel’s representations to the trial court.
After hearing Wormley testify, the trial judge concluded that the appropriate sanction for the discovery violation was to exclude his testimony. The judge explained:
“THE COURT: All right, I am going to deny Wormley an opportunity to testify here. He is not going to testify. I find this is a blatent [sic] violation of the discovery rules, willful violation of the rules. I also feel that defense attorneys have been violating discovery in this courtroom in the last three or four cases blatantly and I am going to put a stop to it and this is one way to do so.
“Further, for whatever value it is, because this is a jury trial, I have a great deal of doubt in my mind as to the veracity of this young man that testified as to whether he was an eyewitness on the scene, sees guns that are wrapped up. He doesn’t know Ray but he stops Ray.
“At any rate, Mr. Wormley is not going to testify, be a witness in this courtroom.” App. 28.
The Illinois Appellate Court affirmed petitioner’s conviction. 141 Ill. App. 3d 839, 491 N. E. 2d 3 (1986). It held that when “discovery rules are violated, the trial judge may exclude the evidence which the violating party wishes to introduce” and that “[t]he decision of the severity of the sanction to impose on a party who violates discovery rules rests within the sound discretion of the trial court.” The court concluded that in this case “the trial court was within its discretion in refusing to allow the additional witnesses to testify.” Id., at 844-845, 491 N. E. 2d, at 7. The Illinois Supreme Court denied leave to appeal and we granted the petition for certiorari, 479 U. S. 1063 (1987).
In this Court petitioner makes two arguments. He first contends that the Sixth Amendment bars a court from ever ordering the preclusion of defense evidence as a sanction for violating a discovery rule. Alternatively, he contends that even if the right to present witnesses is not absolute, on the facts of this case the preclusion of Wormley’s testimony was constitutional error. Before addressing these contentions, we consider the State’s argument that the Compulsory Process Clause of the Sixth Amendment is merely a guarantee that the accused shall have the power to subpoena witnesses and simply does not apply to rulings on the admissibility of evidence.
II
In the State’s view, no Compulsory Process Clause concerns are even raised by authorizing preclusion as a discovery sanction, or by the application of the Illinois rule in this case. The State’s argument is supported by the plain language of the Clause, see n. 1, supra, by the historical evidence that it was intended to provide defendants with subpoena power that they lacked at common law, by some scholarly comment, and by a brief excerpt from the legislative history of the Clause. We have, however, consistently given the Clause the broader reading reflected in contemporaneous state constitutional provisions.
As we noted just last Term, “[o]ur cases establish, at a minimum, that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury-evidence that might influence the determination of guilt.” Pennsylvania v. Ritchie, 480 U. S. 39, 56 (1987). Few rights are more fundamental than that of an accused to present witnesses in his own defense, see, e. g., Chambers v. Mississippi, 410 U. S. 284, 302 (1973). Indeed, this right is an essential attribute of the adversary system itself.
“We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” United States v. Nixon, 418 U. S. 683, 709 (1974).
The right to compel a witness’ presence in the courtroom could not protect the integrity of the adversary process if it did not embrace the right to have the witness’ testimony heard by the trier of fact. The right to offer testimony is thus grounded in the Sixth Amendment even though it is not expressly described in so many words:
“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Washington v. Texas, 388 U. S. 14, 19 (1967).
The right of the defendant to present evidence “stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States.” Id., at 18. We cannot accept the State’s argument that this constitutional right may never be offended by the imposition of a discovery sanction that entirely excludes the testimony of a material defense witness.
Ill
Petitioner’s claim that the Sixth Amendment creates an absolute bar to the preclusion of the testimony of a surprise witness is just as extreme and just as unacceptable as the State’s position that the Amendment is simply irrelevant. The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory Process Clause provides him with an effective weapon, but it is a weapon that cannot be used irresponsibly.
There is a significant difference between the Compulsory Process Clause weapon and other rights that are protected by the Sixth Amendment — its availability is dependent entirely on the defendant’s initiative. Most other Sixth Amendment rights arise automatically on the initiation of the adversary process and no action by the defendant is necessary to make them active in his or her case. While those rights shield the defendant from potential prosecutorial abuses, the right to compel the presence and present the testimony of witnesses provides the defendant with a sword that may be employed to rebut the prosecution’s case. The decision whether to employ it in a particular case rests solely with the defendant. The very nature of the right requires that its effective use be preceded by deliberate planning and affirmative conduct.
The principle that undergirds the defendant’s right to present exculpatory evidence is also the source of essential limitations on the right. The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent’s case. The trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses’ testimony. Neither may insist on the right to interrupt the opposing party’s case, and obviously there is no absolute right to interrupt the deliberations of the jury to present newly discovered evidence. The State’s interest in the orderly conduct of a criminal trial is sufficient to justify the imposition and enforcement of firm, though not always inflexible, rules relating to the identification and presentation of evidence.
The defendant’s right to compulsory process is itself designed to vindicate the principle that the “ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” United States v. Nixon, 418 U. S., at 709. Rules that provide for pretrial discovery of an opponent’s witnesses serve the same high purpose. Discovery, like cross-examination, minimizes the risk that a judgment will be predicated on incompíete, misleading, or even deliberately fabricated testimony. The “State’s interest in protecting itself against an eleventh-hour defense” is merely one component of the broader public interest in a full and truthful disclosure of critical facts.
To vindicate that interest we have held that even the defendant may not testify without being subjected to cross-examination. Brown v. United States, 356 U. S. 148, 156 (1958). Moreover, in United States v. Nobles, 422 U. S. 225 (1975), we upheld an order excluding the testimony of an expert witness tendered by the defendant because he had refused to permit discovery of a “highly relevant” report. Writing for the Court, Justice Powell explained:
“The court’s preclusion sanction was an entirely proper method of assuring compliance with its order. Respondent’s argument that this ruling deprived him of the Sixth Amendment rights to compulsory process and cross-examination misconceives the issue. The District Court did not bar the investigator’s testimony. Cf. Washington v. Texas, 388 U. S. 14, 19 (1967). It merely prevented respondent from presenting to the jury a partial view of the credibility issue by adducing the investigator’s testimony and thereafter refusing to disclose the contemporaneous report that might offer further critical insights. The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth. Deciding, as we do, that it was within the court’s discretion to assure that the jury would hear the full testimony of the investigator rather than a truncated portion favorable to respondent, we think it would be artificial indeed to deprive the court of the power to effectuate that judgment. Nor do we find constitutional significance in the fact that the court in this instance was able to exclude the testimony in advance rather than receive it in evidence and thereafter charge the jury to disregard it when respondent’s counsel refused, as he said he would, to produce the report.” Id., at 241 (emphasis added).
Petitioner does not question the legitimacy of a rule requiring pretrial disclosure of defense witnesses, but he argues that the sanction of preclusion of the testimony of a previously undisclosed witness is so drastic that it should never be imposed. He argues, correctly, that a less drastic sanction is always available. Prejudice to the prosecution could be minimized by granting a continuance or a mistrial to provide time for further investigation; moreover, further violations can be deterred by disciplinary sanctions against the defendant or defense counsel.
It may well be true that alternative sanctions are adequate and appropriate in most cases, but it is equally clear that they would be less effective than the preclusion sanction and that there are instances in which they would perpetuate rather than limit the prejudice to the State and the harm to the adversary process. One of the purposes of the discovery rule itself is to minimize the risk that fabricated testimony will be believed. Defendants who are willing to fabricate a defense may also be willing to fabricate excuses for failing to comply with a discovery requirement. The risk of a contempt violation may seem trivial to a defendant facing the threat of imprisonment for a term of years. A dishonest client can mislead an honest attorney, and there are occasions when an attorney assumes that the duty of loyalty to the client outweighs elementary obligations to the court.
We presume that evidence that is not discovered until after the trial is over would not have affected the outcome. It is equally reasonable to presume that there is something suspect about a defense witness who is not identified until after the 11th hour has passed. If a pattern of discovery violations is explicable only on the assumption that the violations were designed to conceal a plan to present fabricated testimony, it would be entirely appropriate to exclude the tainted evidence regardless of whether other sanctions would also be merited.
In order to reject petitioner’s argument that preclusion is never a permissible sanction for a discovery violation it is neither necessary nor appropriate for us to attempt to draft a comprehensive set of standards to guide the exercise of discretion in every possible case. It is elementary, of course, that a trial court may not ignore the fundamental character of the defendant’s right to offer the testimony of witnesses in his favor. But the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests. The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance.
A trial judge may certainly insist on an explanation for a party’s failure to comply with a request to identify his or her witnesses in advance of trial. If that explanation reveals that the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness’ testimony. Cf. United States v. Nobles, 422 U. S. 225 (1975).
The simplicity of compliance with the discovery rule is also relevant. As we have noted, the Compulsory Process Clause cannot be invoked without the prior planning and affirmative conduct of the defendant. Lawyers are accustomed to meeting deadlines. Routine preparation involves location and interrogation of potential witnesses and the serving of subpoenas on those whose testimony will be offered at trial. The burden of identifying them in advance of trial adds little to these routine demands of trial preparation.
It would demean the high purpose of the Compulsory Process Clause to construe it as encompassing an absolute right to an automatic continuance or mistrial to allow presumptively perjured testimony to be presented to a jury. We reject petitioner’s argument that a preclusion sanction is never appropriate no matter how serious the defendant’s discovery violation may be.
IV
Petitioner argues that the preclusion sanction was unnecessarily harsh in this case because the voir dire examination of Wormley adequately protected the prosecution from any possible prejudice resulting from surprise. Petitioner also contends that it is unfair to visit the sins of the lawyer upon his client. Neither argument has merit.
More is at stake than possible prejudice to the prosecution. We are also concerned with the impact of this kind of conduct on the integrity of the judicial process itself. The trial judge found that the discovery violation in this case was both willful and blatant. In view of the fact that petitioner’s counsel had actually interviewed Wormley during the week before the trial began and the further fact that he amended his Answer to Discovery on the first day of trial without identifying Wormley while he did identify two actual eyewitnesses whom he did not place on the stand, the inference that he was deliberately seeking a tactical advantage is inescapable. Regardless of whether prejudice to the prosecution could have been avoided in this particular case, it is plain that the case fits into the category of willful misconduct in which the severest sanction is appropriate. After all, the court, as well as the prosecutor, has a vital interest in protecting the trial process from the pollution of perjured testimony. Evidentiary rules which apply to categories of inadmissible evidence — ranging from hearsay to the fruits of illegal searches — may properly be enforced even though the particular testimony being offered is not prejudicial. The pretrial conduct revealed by the record in this case gives rise to a sufficiently strong inference that “witnesses are being found that really weren’t there,” to justify the sanction of preclusion.
The argument that the client should not be held responsible for his lawyer’s misconduct strikes at the heart of the attorney-client relationship. Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has — and must have — full authority to manage the conduct of the trial. The adversary process could not function effectively if every tactical decision required client approval. Moreover, given the protections afforded by the attorney-client privilege and the fact that extreme cases may involve unscrupulous conduct by both the client and the lawyer, it would be highly impracticable to require an investigation into their relative responsibilities before applying the sanction of preclusion. In responding to discovery, the client has a duty to be candid and forthcoming with the lawyer, and when the lawyer responds, he or she speaks for the client. Putting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer’s decision to forgo cross-examination, to decide not to put certain witnesses on the stand, or to decide not to disclose the identity of certain witnesses in advance of trial. In this case, petitioner has no greater right to disavow his lawyer’s decision to conceal Wormley’s identity until after the trial had commenced than he has to disavow the decision to refrain from adducing testimony from the eyewitnesses who were identified in the Answer to Discovery. Whenever a lawyer makes use of the sword provided by the Compulsory Process Clause, there is some risk that he may wound his own client.
The judgment of the Illinois Appellate Court is
Affirmed.
The Sixth Amendment provides, in part: “In all criminal prosecutions, the accused shall enjoy the right... to have compulsory process for obtaining witnesses in his favor . . . .” This right is applicable in state as well
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Answer:
|
songer_genresp2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
OELBERMANN et al. v. NATIONAL CITY BANK OF NEW YORK.
No. 27.
Circuit Court of Appeals, Second Circuit.
Nov. 4, 1935.
Shearman & Sterling, of New York City (Carl A. Mead, Herbert C. Smyth, and M. Van Voorhies, all of New York City, of counsel), for appellant.
Spence, Hopkins & Walser, of New York City (Ralph B. Evans and Richardson Dilworth, both of Philadelphia, Pa., of counsel), for appellees.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
MANTON, Circuit Judge.
Appellees, the plaintiffs below, are wool merchants of Philadelphia, Pa., and they financed the operations of Robert Smith Company (China), Limited, at Tientsin, China, in the purchase and exporting of wool, by causing a Philadelphia bank to issue, in favor of Smith, its letters of credit which he negotiated at the Tientsin branch of the appellant. At the commencement of such business relations, these were documentary letters of credit, that' is, letters under which Smith could draw only on delivery of documents showing shipment of the goods purchased. But since it developed that Smith’s capital was limited and the purchases were made in the interior, there was inserted, in the letters of credit, a clause, known as the “Red Clause,” authorizing the negotiating bank to make advances to the beneficiary without delivery of documents in the event the beneficiary of the attached credit required advances to enable it to pay for wool for the purchase and shipment of which the credit was opened. Thisr authorization, contained in the Red Clause, extended to advances to the extent of 50 per cent, of the credit. The advances were to be repaid when shipping bills and documents were delivered to the bank. Such repayment was guaranteed by the issuing bank.
At the time Smith secured the letters of credit, a separate account known as the “wool account” was opened to handle this part of Smith’s business, to differentiate it from a general account Smith had with the appellant’s Tientsin branch, known as the “fur account” since it was secured largely by furs. The “fur account” was a credit extended to Smith for his personal business and has also been spoken of in the record as his “general account.”
In accordance with the banking custom in China, Smith did not discount notes with the bank for this credit, but was authorized to draw against the bank up to a fixed overdraft limit. To keep the different phases of Smith’s business distinct, it was agreed and the practice was to mark all checks from the wool account with that designation.
The contention of appellees, as to the fraud perpetrated, is that two checks Smith drew on the wool account for the Red Clause credit authorized by letter of credit 1030 were deposited in the general account on February 7 and March 25, 1929, after the branch manager of the bank suggested that Smith might do so. These checks were made payable to the order of the appellant and on the days of issuance, when deposited in the fur account, reduced the overdraft of that account by $50,000 — the total of both checks. [The currency in China was taels, hut we speak of the sums here in dollar equivalents.] The Red Clause advances made by the appellant under letter of credit No. 1030, as . alleged in the complaint, were fully repaid by shipments to appellees. The Red Clause advances on the letter of credit No. 1138, which was not repaid by shipments, amounted to $67,250, and the Red Clause advances under letter of credit No. 3156, which was not repaid by shipment, amounted to $85,250 plus interest — a total of $161,435.12. Some time after the deposit of March 25th, the appellant allowed Smith to withdraw the full amount of these two last Red Clause credits and Smith misapplied some of the proceeds by speculating in furs. The issuing bank in Philadelphia repaid the negotiating bank in Tientsin for the advances the latter had made and was in turn paid by the appellees before these transactions in Tientsin were known. The appellee seeks a recovery of these sums from the appellant.
The theory of the claim is fraud. It is conceded that the negotiating bank owed the appellees no contractual duty, that it was not a trustee, and that it owed the appellees no duty of care.
Mr. Smith testified that prior to the drawing of the two checks which were deposited in the fur account, this account was above the overdraft limit and that appellant’s branch manager suggested that as the wool account was not overdrawn, it could have been used to cut down this overdraft.
However, this testimony that North suggested the transfer is so strongly attacked as to make its acceptance doubtful; certainly it is not sufficient to warrant submission to the jury of the issue of actual fraud. It was shown that Smith was unfriendly to the bank and would not withhold evidence that could be used against it. His first explanation of these checks was that they were to repay the advances made from the fur account in the purchase of wool. A member of the appellee’s firm went to China investigating and seeking the evidence to fix liability upon the appellant. Despite exhaustive questioning, he failed to bring out the information contained in Smith’s testimony. After a threat of criminal prosecution by appellees, held over .Smith, the evidence of the alleged suggestion of the branch manager was elicited, and further that when he had complained of the stoppage of his withdrawals of the fur account'at the bank, the-branch manager told him he could ■ use the wool account for general business purposes.. It was not testified that the branch manager required the reduction of the overdraft; it' was 'merely a suggestion, according to Mr. Smith.' But he also testified that at this time the manager told him that “we- were allowed to draw on the fur account provided the fur account was kept within reasonable limits by shipments and by cash payments as we sold cargo in Tientsin and from time to time we had cash deposits in other resources.”
The appellees did business on a large scale with Smith and had no security whatever from him for large cash advances, authorized by the Red Clause under these letters of credit. There was no evidence that they ever asked the appellant to take any' precaution whatever as to' the use made by Smith of the sums advanced, nor did they in any way communicate with it. The Red Clause imposed upon the appellant no duty whatever in this respect. The particular form of the Red Clause in these instances required the bank to get nothing more from Smith when he desired the money. His purpose to purchase wool with the money was left to inference only. Smith’s withdrawal of the money and later misapplication was a wrong to the appellees, but it is not a wrong for which the bank may be held responsible. It is not shown that the appellant knew of Smith’s contemplated misapplication nor that it acquiesced or assisted him in it. The record does not show that the branch manager knew that Mr. Smith, who owned 98 per cent, of the stock of Smith Company, subsequently misappropriated moneys of the appellees.
The theory of appellant’s liability seems to be that these two deposits of the funds from the Red Clause credits reduced Smith’s indebtedness to the bank. The court charged the jury that the bank was liable “if the defendant suggested to, Smith that he .use the Red Clause credits, not for the purchase of w;ool or to pay for wool, but to reduce his own indebtedness to the National City Bank.”
The two checks so drawn on the wool account and deposited in the general account did not decrease Smith’s total indebtedness to the bank. Smith’s aggregate indebtedness to the bank on both accounts -before and after the deposit of February 7, 1929, was 166,297.24 taels, and on both accounts both before and after the second deposit of March 25, 1929, was 288,623.72 taels. On February 7, 1929, Smith’s debit balance in the general account before the deposit was (minus) -166,447.10 taels; credit balance in wool account before deposit of 36,000 taels was (plus) +149.86; a total indebtedness to the bank before deposit February 7, 1929, of • (minus) -166,297.24. Smith’s debit balance in the general account after deposit was (minus) -130,447.10 taels; Smith’s .debit balance in the wool . account after, deposit was (minus) -35,850.-14 taels. Smith’s total indebtedness after deposit of February 7, 1929,.-was (minus) -166,297.24 taels. Smith’s debit bal-, anee in the general account before deposit- of 35,000 taels on March 25, 1929, was (minus) -252,340.56 taels.. • Smith’s debit balance in the wool account before deposit of 35,000 taels on March 25, 1929, was (minus) -36,283.16. The total indebtedness before transfer (minus) -288,623.-72 taels; Smith’s total balance in the general account after deposit of 35,000 taels on March 25, 1929, was (minus) -217,340.56. Smith’s debit balance in the wool account after deposit on March 25, 1929, was (minus) -71,213.16, a total of 288,623.72 taels.
Thus Smith’s indebtedness to the bank was not decreased in the slightest by these deposits and the liability -of the appellees on their guarantee of repayment of the advances was not increased by these deposits in the general account.
The question is different from that presented where a bank has knowledge of the misapplication of funds by a depositor in a special account. A check drawn upon a special account, and used ■to pay an indebtedness to the bank, would give notice that the funds were being misapplied. Bischoff v. Yorkville Bank, 218 N. Y. 106, 112 N. E. 759, L. R. A. 1916F, 1059; Manhattan Web Co. v. Aquidneck Nat. Bank, 133 F. 76 (C. C. R. I.); Squire v. Ordemann, 194 N. Y. 394, 87 N. E. 435; Ward v. City Trust Co., 192 N. Y. 61, 84 N. E. 585.
But if a trustee or corporate officer withdraws trust or corporate funds from a special account and deposits them to his own individual account, the bank is not put on notice making it liable for subsequent defalcations. Havana Central R. Co. v. Central Trust Co. of New York, 204 F. 546, L. R, A. 1915B, 715 (C. C. A. 2) ; Batchelder v. Central Nat. Bank, 188 Mass. 25, 73 N. E. 1024.
The permissive overdraft and account is used in foreign banking similarly to a checking account in which a certain credit would be set up in this country. This is shown in Philippine Nat. Bank v. Bowring & Co., 123 Misc. 89, 204 N. Y. S. 327, affirmed 240 N. Y. 658, 148 N. E. 747, where the party receiving the benefit of an order of credit, containing a Red Clause authorizing advances to pay for merchandise on the delivery of the beneficiary’s receipt, had a personal overdraft account with the defendant bank. On presentation of drafts with the required receipt, the bank did not set up a separate account, but merely advanced the credit limit of his personal account by the amount of the drafts. He misapplied the funds and the bank was held not liable. The case is analogous to the one at bar. There it was held that the clause providing such cash as may be required to pay for the merchandise did not impose on the bank a duty to go behind the assurance of the beneficiary; that he was using the bank other than in accordance with the letter of credit.
However, it is argued the amount owed in Smith’s general account was reduced and that owed under the Red Clause (wool) correspondingly increased, and in this amount it is said that the bank was benefited by receiving the guaranteed payment behind the letter of credit, where before it had only Smith’s resources to depend on. Assuming this to be the fact, it would not make the bank liable under the circumstances here for nowhere in the evidence does it appear that the appellant caused or assisted in causing this withdrawal and deposit to be made in the general account. Under the circumstances, it was not wrong for the bank to receive a deposit to the general account drawn on the wool account. Empire Trust Co. v. Cahan, 274 U. S. 473, 47 S. Ct. 661, 71 L. Ed. 1158, 57 A. L. R. 921; First Nat Bank v. G. V. B. Mining Co., 89 F. 439 (C. C. Idaho). Indeed, some of Smith’s private funds had been used in the purchase of wool and this transfer could have been nothing more than a repayment. It would have been different, to be sure, if fraud was shown. In the absence of fraud, satisfaction of the requirements of the letter of credit before making the advances make a bank fred from liability. Merchants’ Bank v. Griswold, 72 N. Y. 472, 28 Am. Rep. 159. A negotiating bank owes no duty of care, contract, oías trustee to the person who originally-caused the issuance of the letter of credit. Kunglig Jarnvagsstyrelsen v. Nat. City Bank, 20 F.(2d) 307 (C. C. A. 2); Courteen Seed Co. v. Hong Kong & S. B. Corporation, 245 N. Y. 377, 157 N. E. 272, 56 A. L. R. 1186.
Moreover, at the time of the deposits — February 7 and March 25, 1929— there was but one letter of credit outstanding, No. 1030. It expired November 30, 1929, and not until that time could the appellant have known that Smith would not repay the advances made under it by shipments nor did it have any notice of the misappropriation of these advances. The letter of credit was ultimately fully repaid on November 9, 1929, by shipments of wool. Consequently, the appellants suffered no loss by reason of these transfers as they were repaid by-shipments for all advances made under that letter of credit. The advances misappropriated by Smith were made under Red Clauses contained in later letters of credit — No. 1138 of April 23, 1929; No. 3156 of June 3, 1929. Assuming that appellant had notice that Smith was misappropriating Red Clause advances made under letter of credit No. 1030 which was not established, that alone would not have been sufficient to charge the appellant with bad faith in continuing to deal with Smith under later letters of credit which were entirely distinct contracts and as to which the appellant has not been shown to have had any notice of irregularities. Goetz v. Bank of Kansas City, 119 U. S. 551, 560, 7 S. Ct. 318, 30 L. Ed. 515; Lancaster County Nat. Bank v. Garber, 178 Pa. 91, 35 A. 848.
Judgment reversed.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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).
John PARKER, Plaintiff-Appellant, v. Ray GRAVES, Defendant-Appellee.
No. 72-2265.
United States Court of Appeals, Fifth Circuit.
June 13, 1973.
John Parker, pro se.
W. C. O’Neal, Gainesville, Fla., for defendant-appellee.
Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges.
PER CURIAM:
John Parker, a second-year law student, was employed by the University of Florida Athletic Association as a dormitory advisor, assistant track coach and meal checker at the athletic training table. He was discharged from his duties and sought relief by bringing a civil rights action against Ray Graves, the athletic director of the University. From an adverse decision in the trial court, D.C., 340 F.Supp. 586, Parker timely pursued the present appeal.
At the outset we are confronted with the determination of whether or not a motion to dismiss the complaint for failure to state a claim for which relief could be granted and for a lack of subject matter jurisdiction should have been granted.
The caption of the complaint names the defendant in his individual capacity without reference to his official capacity as an agent of the State University system. An action under 42 U. S.C. § 1983 does not lie as against a private person in his individual capacity. It is only where the person acts to deprive another of his federal rights under color of state law that § 1983 provides authority for a federal claim. An action against a state official is not authorized by § 1983 where the official has acted in a purely private individual capacity.
A person’s capacity need not be pled except to the extent required to show the jurisdiction of the court. Fed.R.Civ.P. 9(a). Failure to allege the official capacity in the caption is merely a formal error and not a fatal defect. 5 Wright and Miller, Federal Practice and Procedure, § 1321 (1969). The allegations in the complaint must be examined in order to determine the nature of the plaintiff’s cause of action.
In his pro se complaint, Parker alleged that his dismissal was premised on constitutionally impermissible reasons and was procured by the defendant acting under color of state law in his official capacity as the University’s athletic director. The allegations taken as a whole bring the case within the authorization of 42 U.S.C. § 1983, and therefore the motion to dismiss was properly denied.
The district court entered findings to the effect that the plaintiff was discharged for being remiss in his assigned duties and ineffective as an employee. The findings are based on conflicting evidence and we have determined that they are not clearly erroneous.
The judgment of the district court is affirmed.
. The trial court did strike two allegations of causes of action.
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_suffic
|
B
|
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".
UNITED STATES of America, Appellee, v. Sally DI STEFANO and Linda Di Stefano, Appellants.
Nos. 994, 1085, Dockets 76-1581, 76-1582.
United States Court of Appeals, Second Circuit.
Argued April 27, 1977.
Decided May 16, 1977.
Irving Engel, Brooklyn, N.Y., for appellant Sally Di Stefano.
William J. Gallagher, New York City (The Legal Aid Society, Federal Defender Services Unit, David J. Gottlieb, New York City, of counsel), for appellant Linda Di Stefano.
Lee A. Adlerstein, Asst. U. S. Atty., Brooklyn, N.Y. (David G. Trager, U. S. Atty., E.D.N.Y., Bernard J. Fried, Asst. U. S. Atty., Brooklyn, N.Y., of counsel), for appellee.
Before MANSFIELD, Circuit Judge, SMITH, Chief Judge, and PALMIERI, District Judge.
Of the United States District Court for the District of Montana, sitting by designation.
Of the United States District Court for the Southern District of New York, sitting by designation.
PALMIERI, District Judge.
Sally Di Stefano (“Sally”) and Linda Di Stefano (“Linda”) appeal from judgments of the United States District Court for the Eastern District of New York, Platt, J., convicting them, after a jury trial, of bank robbery and conspiracy to rob a bank. 18 U.S.C. §§ 2113, 2, and 371. The indictment charged appellants Ronald Blanda, and Patrick Edwards with three crimes arising out of a robbery of the Chemical Bank in Holtsville, New York on May 28, 1976. Counts I and II charged the defendants with bank robbery and bank robbery with use of a dangerous weapon, respectively. Count III charged them with conspiracy. Sally was found guilty on all three Counts; Linda was found guilty on Counts I and III, and not guilty on Count II.
Prior to trial, Sally moved to suppress a bank bag and $223 in currency seized by FBI agents and Suffolk County police officers at the time of her arrest on June 2, 1976. The Court conducted a suppression hearing at which a Suffolk County police officer and an FBI agent testified. This testimony established that Patrick Edwards and Ronald Blanda were arrested at approximately 9:00 a.m. on June 2, 1976 and taken to the Suffolk County Police Station for questioning. After being advised of his rights, Edwards was interviewed by an FBI agent and a detective. Edwards stated that he had been involved in the bank robbery and that the Di Stefano sisters had participated. He stated that Sally had driven the car used by the robbers and that Linda had “cased” the bank prior to the robbery. The information provided by Edwards was partially corroborated by other information the agents had at that time. Specifically, they knew that a female had been seen driving the car used by the robbers and that the Di Stefano sisters and Ronald Blanda were friends.
Based on this information, the agents and officers proceeded to Sally’s house in Cen-tereach. They knocked on the door and were admitted either by Sally or her child. Sally was placed under arrest. She was wearing a nightgown and bathrobe at the time, and the agents requested that Sally retire into her bedroom to get dressed. Officer Roseanne Christie accompanied Sally into the bedroom. Sally opened the door to a closet which was approximately three feet from Officer Christie. On the floor of the closet on top of various other articles, Officer Christie observed what appeared to be a bank money bag. Because of the design of the room and the location of the closet, Officer Christie could not view Sally’s movements or the closet without entering the bedroom. The bank money bag was later seized by the Suffolk County police after they were advised of its presence by Officer Christie.
While she was getting dressed, Sally removed from a pocket in her robe a quantity of currency wrapped in a rubber band. Sally handed this money to Officer Christie, stating “This is mine and I want this back.” She also stated that this was money to be used for food stamps.
At the time of Sally’s arrest and the seizure of these items, the officers did not have an arrest or search warrant. Based on the testimony at the suppression hearing, the district court denied the suppression motion.
The evidence adduced at the trial, viewed 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. Mariani, 539 F.2d 915 (2d Cir. 1976), established that Edwards had known Sally for many years and that, through her, he had become acquainted with her sister, Linda. He was also a friend of Ronald Blanda, with whom he traveled daily to and from a methadone treatment clinic. Approximately four months before the robbery, Blanda and Edwards began discussing the idea of robbing a bank. Blanda suggested that a particular branch of the Chemical Bank in Holtsville, where he was a customer, seemed to be a good bank to rob. Blanda took Edwards to look this bank over approximately a month before the robbery in order to determine whether there were any guards or bank surveillance cameras, how many tellers there were, and how much money the bank took in. At about this time Edwards sawed off part of the barrel of a shotgun he owned in order to make it easier to conceal.
About two days before the robbery, Blan-da showed Edwards a newspaper clipping describing a bank robbery which Blanda claimed he had committed and from which he stated he obtained $2,000. On the morning of May 28, 1976, when Edwards awoke, he discovered that Blanda was sitting in the parlor of his house in Ronkonkoma. During their ride to the methadone treatment clinic, the two men decided to rob the Chemical Bank that day. They discussed the robbery further on their trip back to Edwards’ house from the treatment clinic. When they returned to Edwards’ house, they collected the sawed-off shotgun and some clothing and placed them in a bag. One of them telephoned Sally in order to obtain a car. While waiting for the car to arrive, Edwards and Blanda decided that they should make a final check of the bank before the robbery in order to determine if there was a guard or if the counters had been moved.
Shortly thereafter, Linda and Mary Lou Morra, a maid employed by Sally, met Edwards and Blanda in a car. Morra was driving the car. Edwards or Blanda told her to stop at the bank so that Linda could get change. Edwards testified that the purpose of this stop was to allow Linda to check the bank for guards and camera locations. This purpose, however, was not discussed in the car because Edwards and Blanda did not want Morra to know of the bank robbery. Edwards testified that he did not know how he or Blanda communicated to Linda that she was to inspect the bank for guards and cameras. When they stopped at the bank, Blanda or Edwards gave Linda a dollar and sent her into the bank for change. When Linda returned, she nodded her head which Edwards testified was an indication to him that “everything was the same, there was no guard and the cameras were in the same position.” Nothing was said in this regard by Blanda, Edwards or Linda. After a brief stop at Blanda’s house, the four proceeded to Sally’s residence at which time Linda and Morra departed.
Sally assisted Edwards and Blanda with their disguises by providing them with stockings for masks and a big floppy hat. Sally telephoned a friend named Boyle to ask if she could borrow his car. After the car was delivered, Sally drove Edwards and Blanda to a parking lot at Suffolk Community College where they changed the license plates on the car and then proceeded to the bank. Edwards and Blanda committed the robbery while Sally waited in the car. Edwards entered the bank first and ordered everyone present to get down. He was wearing the big floppy hat and carrying the shotgun concealed under a jacket. Blanda then entered with a stocking covering his face and vaulted the counter. After collecting approximately $4,700 in coins and currency, Blanda jumped back over the counter, and the two men ran to the ear. As they fled from the bank, Blanda was driving and Sally was crouched between the two men in the front seat.
Blanda drove to the Suffolk Community College parking lot where he and Edwards removed the license plates. They then drove to Sally’s brother’s house, which was nearby, where Blanda and Edwards removed their outer clothing. Sally then drove the others to Blanda’s mother’s house where she left them to return the car to Boyle. Blanda and Edwards hid the shotgun in the basement and divided up the money obtained from the bank. Blanda and Edwards each took $2,000, leaving the “singles” and two-dollar bills (approximately $700) for Sally. No money was set aside for Linda. Sally subsequently returned to the house by taxi cab.
That evening, Sally, Blanda, Edwards, and a friend of Edwards drove to Manhattan and purchased cocaine. Although Edwards testified that he did not give Sally her $700 share of the proceeds of the robbery and did not see Blanda do so, Edwards did testify that he saw Sally hand Blanda a “stack of singles” that evening for the purchase of the cocaine.
Edwards’ testimony with respect to the details of the robbery was corroborated by the testimony of other witnesses. In addition, two customers at the bank testified that they observed the car used by the robbers and their descriptions of it matched the description of Boyle’s car. Boyle testified that Sally had borrowed his car on the day of the robbery. The license plates on the car used by the robbers, which were observed by witnesses at the bank, matched those which had been stolen in February 1976 from a car parked next door to Sally’s house.
Linda was arrested on June 2, 1976 when she arrived at Sally's house while Sally was being taken into custody by the police. Officer Christie testified that at the time of Linda’s arrest Sally was “quite emotional”., screaming obscenities and trying to kick one of the officers. Officer Christie testified that Linda tried to calm her sister down. Linda was then taken to the Suffolk County Police Department, advised of her rights, and interviewed by FBI agent Sweeney. Sweeney testified that Linda stated to him that she had spent most of the day of May 28, 1976 at her parents’ home in Centereach; that she had been to the Chemical Bank in Holtsville occasionally; that she was positive that she had not been in the bank on May 28; that she could not recall any time at which she was together with Blanda, Edwards, and Sally; that she was positive that the four of them had not been together on May 28; and that to the best of her knowledge neither she nor Sally had ever borrowed a car from Boyle. Agent Sweeney made handwritten notes of his interview with Linda which he used in dictating his narrative report of the interview. When he received the typewritten report, Sweeney compared it with his notes, and, being satisfied that the report was correct, destroyed the notes “as normal procedure”.
Although neither defendant testified in her own behalf, Sally called two witnesses. The first, a next-door neighbor, testified that she saw Sally being carried out of her house on the day of the arrest. She testified that the police “dropped her [Sally] on the stoop because she was screaming” and dragged her to the police car. The second defense witness, an employee of the Suffolk County Department of Social Services, testified that Department records showed that Sally received $200 per month in public support payments which would normally arrive at her residence in the mail at approximately the first day of the month. Linda called no witnesses.
The Admission of the Bank Money Bag and Currency
Sally first claims that the district court erred in admitting in evidence the bank money bag and currency seized from her at the time of her arrest. Although not delineated as such, Sally bases her argument on five separate grounds: (1) the officers lacked sufficient probable cause to arrest her because the source of the information known to the officers at the time of the arrest, Edwards, had not been shown to be reliable or trustworthy; (2) the officers did not properly announce themselves before entering Sally’s house; (3) the warrantless entry was not justified by “exigent circumstances”; (4) the seizure of the bank money bag was the product of a search which was not properly incident to an arrest; and (5) Officer Christie was not justified in being present in Sally’s bedroom where she observed the bank money bag.
The Government asserts that only the fifth ground was raised by defense counsel at the suppression hearing and that, therefore, the other grounds were waived below and cannot be asserted now. See United States v. Rollins, 522 F.2d 160, 165 (2d Cir. 1975), cert, denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976). The transcript of the suppression hearing shows that defense counsel did raise, at least indirectly, something more than the argument that Officer Christie was improperly in the bedroom. Defense counsel stated initially that there was no search warrant and he contested that the allegation that the bag was found in an open closet was “enough to make a search”. During the examination of the FBI agent called by the Government, both sides fully inquired into the basis of the arrest, thus exploring the issue of probable cause extensively. Under the circumstances, this court finds that Sally did not waive her objections to the admission of this evidence based on grounds (1) and (4), supra.
There is no merit to any of the three contentions Sally did raise at the suppression hearing. First, she argues that the information known to the officers at the time of the arrest was insufficient to constitute probable cause because it came from a source whose reliability and trustworthiness had not been demonstrated in the past. This argument is untenable in light of this court’s holdings in United States v. Miley, 513 F.2d 1191 (2d Cir.), cert, denied, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 62 (1975) and United States v. Rueda, 549 F.2d 865 (2d Cir. 1977). Although it is well-established that an informant’s trustworthiness must be demonstrated before there can be a finding of probable cause based on information he supplies, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), this Circuit and others have held that there is no need to show past reliability where the informant is in fact a participant in or witness to the very crime at issue. E.g., United States v. Miley, supra; United States v. McCoy, 478 F.2d 176, 179 (10th Cir.), cert, denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973); United States v. Bell, 457 F.2d 1231, 1238 (5th Cir. 1972); United States v. Mahler, 442 F.2d 1172, 1174-75 (9th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971).
The facts presented here are comparable to those presented in United States v. Rueda, supra. In both cases Government agents received information from a participant in the crime, based on that individual’s personal knowledge of events establishing the defendant’s complicity. If a prior showing of reliability were required of a participant in a crime, the information which that person is uniquely able to supply would be unavailable to Government agents. The agents here properly relied on Edwards’ statements as tending to establish probable cause to arrest Sally. Moreover, as in Rueda, the information supplied by the participant in the crime was corroborated in part by other information known to the agents at the time of the arrest. The agents knew from witnesses to the robbery that a female had been seen driving the car used by the robbers. They also knew that Blanda, whom they had arrested and believed was a participant in the robbery, was a friend of the Di Stefano sisters. Although there is less corroborating evidence here than was present in Rueda, it is sufficient along with Edwards’ statements to the agents to constitute probable cause.
Sally next contends that the seizure of the bank money bag was improper because it was the product of a search which was not incident to an arrest. The evidence adduced at the suppression hearing, however, clearly establishes that there was no search of the bedroom by Officer Christie. The money bag was in Officer Christie’s plain view when Sally opened the door to the closet. It is well-established that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968).
Finally, Sally argues that Officer Christie was not justified in being present in Sally’s bedroom where she observed the bank money bag. Based on the testimony at the suppression hearing, the district court found that it was necessary for Officer Christie to stand right alongside Sally in order to maintain complete control of the situation. The court found that the officer would not have been in complete control if she had stood at the doorway of the bedroom. These findings are fully supported by the evidence and proper.
The officers had a duty to find clothing for Sally to wear or to permit her to do so. United States v. Titus, 445 F.2d 577 (2d Cir.), cert, denied, 404 U.S. 957, 92 S.Ct. 323, 30 L.Ed.2d 274 (1971). Having permitted Sally to retire to her bedroom to dress, Officer Christie was clearly justified in accompanying her to maintain a “watchful eye” on her and to assure that she did not destroy evidence or procure a weapon. Cf. United States v. Montiell, 526 F.2d 1008, 1010 (2d Cir. 1975). Since the evidence shows that the officer’s entry into the bedroom was solely for the purpose of maintaining control over Sally while she dressed, it is clear that the discovery of the money bag in plain view was “inadvertent”. Coolidge v. New Hampshire, 403 U.S. 443, 465-66, n. 24, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
Sally’s Identification by a Bank Witness
Sally contends that the testimony of the bank’s drive-in window teller that Sally “looks like [she] might be” the girl who drove the robbers' car was improperly received in evidence because it was tainted by an out-of-court confrontation between the witness and Sally. Sally further asserts that the identification was incompetent evidence because the witness had neither the opportunity nor the ability to view the car used in the robbery. These arguments are not supported by the record and are rejected.
The witness saw Sally sitting in a hallway of the courthouse when the witness was being escorted to the witness room by FBI agent Sweeney. The trial judge denied Sally’s application for a hearing on the hallway confrontation prior to the witness’s testifying on the ground that the confrontation was purely accidental. The court did, however, through its own questions to the witness, bring to the attention of the jury the fact that this witness had seen Sally in the hallway of the courthouse that morning, thus enabling the jury to consider what effect, if any, that out-of-court confrontation had on the witness’s ability to identify Sally. Moreover, after the witness had testified, the court did conduct a hearing on the confrontation. At that hearing, Agent Sweeney testified that he was unaware of Sally’s presence in the hallway when he brought the witness through it and that he only became aware of her presence when the witness pointed it out to him. The record also establishes that this incident occurred at approximately fifteen minutes after the time the court had directed all attorneys and clients to be present in the courtroom. Under the circumstances, the trial court handled the matter properly. Since there was no showing that the incident was arranged by the Government or that the in-court identification was the result of an impermissively suggestive confrontation, the identification testimony was properly admitted. See United States v. Gentile, 530 F.2d 461, 468 (2d Cir.), cert, denied, 425 U.S. 903, 96 S.Ct. 1493, 47 L.Ed.2d 753 (1976).
Sally’s argument with respect to the competence of the identification testimony is likewise without merit. Although the witness was near-sighted, not wearing her glasses, and only saw the defendant for a brief period of time, this alone does not render her incompetent to testify to a partial identification. Sally’s argument is addressed to the weight, rather than the admissibility of the testimony. Sally had ample opportunity to cross-examine the witness with respect to her ability to make the identification. The weight to be accorded this partial identification was properly for the jury.
The Adequacy of Sally’s Representation by Counsel
Sally argues that she was inadequately represented by counsel based on several assertions contained in a letter which she wrote to the trial judge after the trial. Each of these assertions is clearly contradicted by the record, and it would serve no useful purpose to address them individually. The trial judge stated at a hearing prior to sentencing that her attorney was “a very competent lawyer”. The record bears this statement out, and accordingly, Sally’s argument that her representation was inadequate cannot be accepted.
Sally’s Additional Claims
Finally, Sally raises several arguments on her own behalf which are set forth “without comment by her appellate counsel”. These issues involve (1) the court’s consideration of the pre-sentence report; (2) the court’s charge that the jury could convict on circumstantial evidence; (3) the death of co-defendant Ronald Blanda on the eve of trial; (4) the disparity between the sentence she received and that which her sister received; and (5) Sally’s allegation that she was “severely abused and bruised at the time of her arrest”.
None of these contentions has merit. The trial court considered Sally’s objections to the pre-sentence report and conducted a hearing at which Sally and other witnesses for her and for the Government testified. The court’s charge on circumstantial evidence was entirely proper. Sally’s assertion concerning Blanda’s death raises matters which are not part of the record on appeal, and this court will not consider them. Sally’s objection to the disparity between her sentence and that of her sister is not a matter which this court will generally review. It is sufficient to note for appellate purposes that Sally’s sentence was well within the limitations set forth in the statute, United States v. Seijo, 537 F.2d 694, 700 (2d Cir. 1976), and that the disparity between her sentence and Linda’s is fully justified by the evidence of their respective involvement in the robbery. Finally, Sally’s assertion that she was mishandled at the time of her arrest appears to be an afterthought. It was not raised at the suppression hearing, where it might have been relevant, and will not be considered at this time.
The Sufficiency of the Evidence Against Linda
Linda argues that the evidence was insufficient as a matter of law to sustain her convictions for conspiracy and aiding and abetting a bank robbery. We agree. Even viewing the-evidence in the light most favorable to the Government, this court finds that the evidence failed to establish that there was a knowing agreement to rob a bank, of which Linda was a part, or that Linda consciously assisted the commission of the specific crime in an active way.
The only evidence which connected Linda to the bank robbery was Edwards’ testimony that he and Blanda sent Linda into the bank to see if a guard was present and if the bank cameras had been moved. Edwards testified that they did not discuss in the car what he claims was the true purpose of Linda’s trip into the bank because of the presence of the maid. Under questioning by the court, Edwards testified that he did not know or could not remember how he and Blanda told Linda what to do in the bank. In addition, Edwards testified that on her return from the bank, Linda indicated by “a nod or something like that” that there was no guard and that the cameras were in the same position as before.
This testimony is insufficient to establish that Linda knew that Blanda and Edwards intended to rob the bank and that she participated knowingly in the commission of that crime. Although willful participation in a criminal enterprise may be established by evidence which is completely circumstantial, United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973), cert, denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974), there must be some evidentiary basis for inferring that the defendant knew about the enterprise and intended to participate in it or to make it succeed. United States v. Cirillo, 499 F.2d 872, 883 (2d Cir.), cert, denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974). The facts adduced at trial do not show that Linda knew about the bank robbery. Although Edwards testified that he and Blanda sent Linda into the bank on the day of the robbery to see if the bank had a guard or cameras, there was no evidence with respect to when or how he directed her to do so. His testimony shows that he and Blanda decided to commit the robbery only on the morning of May 28, and there was no evidence that he or Blanda ever informed Linda of this decision, either on May 28 or at any time before it. His testimony, in fact, shows that they deliberately did not discuss the robbery with Linda during their ride to the bank because of the presence of Morra in the car. Moreover, although Edwards testified that Linda “indicated” by “a nod” to him that there was no guard in the bank and that the cameras were positioned as they had been before, this testimony is insufficient to establish that she knew a bank robbery was to be committed or joined in a concert of purpose with the other defendants to rob the bank. Cf. United States v. Peoni, 100 F.2d 401, 403 (2d Cir. 1938). Under the circumstances, the evidence is insufficient to support the inference that Linda knew that a bank robbery was planned and intended to participate in it by “casing” the bank. United States v. Cirillo, supra.
For the same reasons, the aiding and abetting conviction cannot be sustained. This court in United States v. Maria ni, 539 F.2d 915 (2d Cir. 1976), reaffirmed the well-established rule that in order to be convicted of aiding and abetting a “defendant must be shown to have knowingly associated with and participated in the criminal venture in a manner designed to accomplish its goal.” Id., at 919. In the absence of evidence that Linda knew that a bank robbery was planned, it cannot be said that she knowingly participated in the criminal venture. The evidence establishes only that she associated with guilty parties, was present at the scene of the crime a few hours before the crime was committed, and entered the bank to change a dollar bill, perhaps with some awareness that some illegal venture was contemplated by her companions, (e. g., passing a forged check). United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977). These facts alone are insufficient to sustain her conviction for aiding and abetting. See United States v. Johnson, 513 F.2d 819 (2d Cir. 1975); Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969).
The Trial Court’s Instruction on Linda’s False Exculpatory Statement
In its charge to the jury, the trial court instructed:
Evidence has been introduced that the defendant in this case, Linda Di Stefano, made certain exculpatory statements or claimed statements outside of this courtroom, explaining her actions.
If the jury finds such statements were untrue and the defendant made them with knowledge of their falsity, the jury may consider them as circumstantial evidence of the defendant’s guilt, (emphasis supplied)
It is clear that this charge was incorrect. False exculpatory statements are not admissible as evidence of guilt, but rather as evidence of consciousness of guilt. United States v. Johnson, supra, at 824; United States v. Parness, 503 F.2d 430, 438 (2d Cir. 1974), cert, denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975). The Government contends that the omission of the word “consciousness” does not constitute reversible error where, as here, defense counsel failed to object to that portion of the charge. United States v. Montalvo, 271 F.2d 922 (2d Cir. 1959), cert, denied, 361 U.S. 961, 80 S.Ct. 589, 4 L.Ed.2d 543 (1960). We disagree.
Although defense counsel did not object to the charge as required by Rule 30, Fed.R.Crim.P. and thus must demonstrate “plain error”, United States v. Pelose, 538 F.2d 41 (2d Cir. 1976), under the particular facts of this case we find sufficient error in the charge to warrant reversal. In United States v. Johnson, supra, this court stated that
falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant’s innocence as it is to the Government’s theory of guilt. 513 F.2d at 824.
See also United States v. Kearse, 444 F.2d 62 (2d Cir. 1971) where this court reversed defendant’s conviction based on the insufficiency of the evidence notwithstanding false statements by the defendant on the witness stand intended to extricate himself from suspicious circumstances.
In Johnson, the court’s charge on false exculpatory statements was a correct one. Where, as here, the charge is incorrect and prejudicial to the defendant, there is an even more persuasive basis for reversal. Accordingly, we hold that under the facts of this case, where the evidence of guilt is weak, it was plain error for the district court to have given an incorrect charge on Linda’s false exculpatory statements.
The FBI Agent’s Destruction of His Notes
After her arrest Linda was interviewed by FBI agent Sweeney, who made handwritten notes of her statements. Sweeney used these notes to compile his 302 Report of Interview, and then destroyed them as normal procedure. Linda asserts that the destruction of these notes of her interview requires reversal of her conviction. Although two Circuits have suggested that sanctions might be imposed, United States v. Harris, 543 F.2d 1247 (9th Cir. 1976); United States v. Harrison, 173 U.S. App.D.C. 260, 524 F.2d 421 (1975); Contra United States v. Harris, 542 F.2d 1283 (7th Cir. 1976); United States v. Pacheco, 489 F.2d 554 (5th Cir. 1974), cert, denied, 421 U.S. 909, 95 S.Ct. 1558, 43 L.Ed.2d 774 (1975), we need not reach this issue here because of our disposition of the other issues raised by Linda.
The judgments of conviction are affirmed as to Sally Di Stefano and reversed as to Linda Di Stefano.
. Co-Defendant Ronald Blanda was killed at the Metropolitan Correctional- Center in New York City on July 23, 1976, on the eve of trial.
. Patrick Edwards pleaded guilty to the bank robbery count and testified for the Government. He was sentenced on December 10, 1976 to an indeterminate period of incarceration not to exceed 10 years, pursuant to 18 U.S.C. § 4253.
. The head teller of the bank testified that this type of bag was the same type used by the bank for bagging coins.
. The transcript of Edwards’ testimony reads as follows:
A Yes. We told her, more or less, to stop and get some change and sent Linda into the bank to see if the bank had a camera or a guard there.
Q Was anything said in the car concerning the interior of the bank with reference to the camera or the guard?
A I don’t know if there was anything said in the car. I really don’t remember exactly how it went because we didn’t want to let the driver know so we cut some shade on it and when we got to the bank Linda got out, one of us gave her a dollar to get some change with, and said to see if the guard was there.
The Court: What did you tell her?
The Witness: To go and get some change. We told the maid to pull into the bank so if we’re going to get some change they wouldn’t think we were casing the bank. Linda went to the bank with the money to get the change, came out and indicated everything was the same, there was no guard and the cameras were in the same position. The Court: Wait a minute. How did Linda know to come back and tell you when all you did was give her a dollar to get some change
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_habeas
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Michael W. HURLEY, Plaintiff-Appellant, v. PATAPSCO & BACK RIVERS RAILROAD COMPANY, a body corporate, Defendant-Appellee.
No. 89-2909.
United States Court of Appeals, Fourth Circuit.
Argued June 8, 1989.
Decided Nov. 1, 1989.
Gerald Francis Gay (Herbert J. Arnold, Arnold, Beauchemin & Tingle, P.A., Baltimore, Md., on brief), for plaintiff-appellant.
Rudolph Lee Rose (Robert T. Franklin, P. Matthew Darby, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for defendant-appellee.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation; WIDENER and CHAPMAN, Circuit Judges.
PER CURIAM:
The questions presented are whether the district court erred in granting appellee’s motion for a directed verdict at the end of appellant’s case and in granting appellee’s motion in limine to exclude certain evidence. We find no error, and accordingly affirm.
I.
Appellant Michael W. Hurley has been employed by appellee railroad company since July 7,1974, as an expert machinist in the Locomotive Repair Shop. Prior to this employment, he completed a four year apprenticeship program involving 8,000 hours of training. Appellant is the only employee in the shop who is qualified to operate the Reed-Prentice lathe. As such, appellant manages his own schedule and determines how each lathe job will be set up. He conducts his own inspections of the lathe and is responsible for ensuring that it is safe to operate.
On October 21, 1985, appellant began using the lathe to file down a sheave, a piece of equipment designed to hold multiple fan belts. As was his standard practice, appellant secured the sheave in the lathe with a C-clamp. Because he was cold, he wore a loose-fitting sweater he had brought from home. At approximately 8:50 a.m., he “leaned in to file the burrs off the sheave.” Testimony of Michael W. Hurley, Joint Appendix (“J.A.”) at 67. His sweater was caught on the C-clamp, and appellant was pulled into the lathe. He suffered a collapsed right lung, left rib fractures, and a fractured left scapula.
Appellant brought this action in the District of Maryland pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51. Prior to trial, the district court granted appellee’s motion in limine and excluded all evidence concerning alternative designs for the lathe, including alternative guarding procedures. Thus, appellant was precluded from presenting evidence that other lathes on appellee’s premises were equipped with guards over the clamp.
The case was tried to a jury on November 30 and December 1, 1988. Appellant’s primary contention at trial was that appel-lee provided inadequate lighting and that this negligence caused appellant’s injuries. The Reed-Prentice lathe receives light from two sources: a series of overhead lucalux lights and daylight through a large bank of windows eight to ten feet from the lathe. Unlike some of the other machines in the shop, the Reed-Prentice lathe did not have an individual fluorescent light.
Appellant testified that the windows were dirty and had not been cleaned for years. Appellant also testified that, as a result of the poor lighting, his body cast a shadow over the lower part of the lathe and that there was no direct illumination at the point where his sweater was pulled into the lathe. He further testified that he had requested individual lighting for the Reed-Prentice lathe four or five years before the accident. He never repeated this request.
At the close of appellant’s case, appellee moved for a directed verdict pursuant to Fed.R.Civ.P. 50(a). During argument on this motion, the district court judge repeatedly asked appellant’s counsel to indicate what evidence there was of negligence by appellee. See J.A. at 133-135, 152, 164. After argument, the court granted appel-lee’s motion. The court emphasized appellant’s status as a highly trained employee with exclusive responsibility for the safe operation of the Reed-Prentice lathe. The court also found that a four or five year old request for direct lighting was not legally sufficient evidence to support an inadequate lighting claim. The court concluded that the evidence left no doubt that appel-lee was not negligent and that appellant was solely responsible for the accident.
II.
An FELA claim must survive a motion for a directed verdict and proceed to the jury if “the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). But the plaintiff still has the burden of proving some act of negligence by the railroad. See Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 243, 4 L.Ed.2d 198 (1959); Ambold v. Seaboard Air Line R.R. Co., 345 F.2d 30, 33 (4th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965). Even viewing the facts in the light most favorable to appellant, we cannot find any legally sufficient evidence of appellee’s alleged negligence.
Appellant operated the Reed-Prentice lathe under these lighting conditions without incident for many years before the accident. Although he once requested direct lighting, he did not consider the request important enough to mention again. Appellant was the only employee qualified to operate the Reed-Prentice lathe. Without notice from appellant as to possibly dangerous conditions not evident to a layperson, appellee had no opportunity to correct these conditions and cannot be found negligent. Cf. Inman, supra, 361 U.S. at 140, 80 S.Ct. at 243 (considering the absence of similar accidents in the past and the absence of complaints about the allegedly dangerous conditions probative of an absence of negligence by the railroad).
The only evidence appellant presented in support of his inadequate lighting claim was his own testimony and three photographs taken in the repair shop on October 21, 1985. The district court found that the jury could not discern from the photographs the amount of light in the repair shop generally or at the Reed-Prentice lathe. See J.A. at 165. Even if the amount of light were discernible from the photographs, appellant presented no evidence that the light was inadequate for safe operation of the lathe. He did not, for example, present the testimony of an expert witness regarding the proper lighting conditions for safe operation of a Reed-Prentice lathe. His own conclusory assertions that the lighting was inadequate are not sufficient to survive a motion for a directed verdict. Appellant’s evidence in this case was such that the jury could have reached a verdict in his favor only by speculating. As such, the district court’s granting of appellee’s motion for a directed verdict was proper and must be affirmed. See Kuberski v. New York Central R.R. Co., 359 F.2d 90, 92 (2d Cir.1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1475, 18 L.Ed.2d 600 (1967).
Furthermore, appellant never provided an evidentiary link between the allegedly inadequate lighting and his accident. He presented no evidence as to why the lighting in the repair shop made operation of the lathe dangerous or how direct lighting could have prevented this accident. Indeed, appellant testified that he had worked the 3:00 p.m. to 11:00 p.m. shift and had never had a similar accident, in spite of the lack of any natural illumination from the windows after sundown.
Given the evidence presented, the district court properly concluded that plaintiffs negligence was the sole proximate cause of the accident. Appellant was injured because he wore a loose-fitting sweater and “leaned in” too close to the lathe. Absent speculation, no act or omission of appellee can be said to have played any role in causing appellant’s injuries. When an employee’s own negligence is the sole proximate cause of his injuries, the employer cannot be found liable pursuant to FELA. See Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 411, 88 L.Ed. 520 (1944); Barnett v. Terminal R.R. Assoc. of St. Louis, 228 F.2d 756 (8th Cir.), cert. denied, 351 U.S. 953, 76 S.Ct. 850, 100 L.Ed. 1476 (1956). Thus, the district court properly granted appellee’s motion for a directed verdict.
III.
Appellant contends that the district court erred in excluding testimony by appellant that he observed guards covering the rotating machine chuck on another lathe in another machine shop on appellee’s premises. In support of this contention, appellant notes Eggert v. Norfolk & Western Ry. Co., 538 F.2d 509 (2d Cir.1976). In Eggert, the plaintiff fell and struck his knee on a brake valve lever. The court held that “evidence of the practices of other railroads with respect to brake valve guards is highly relevant since the existence of alternatives would be significant on the issue of whether defendants acted reasonably in the present case.” Id. at 512.
The significance of such evidence, however, is directly related to the similarity between the two situations being compared. In this case, plaintiff was the only employee qualified to operate the Reed-Prentice lathe. That lathe was unlike any other lathe operated on appellee’s premises. Absent some evidence of similarity between the lathe observed with a guard and the Reed-Prentice lathe, evidence with respect to the guarded lathe is irrelevant to the issue of appellee’s negligence. Without additional evidence, appellant would be asking the jury to speculate that, because a different lathe had a guard, appellee should have provided a guard for the Reed-Prentice lathe. The district court properly excluded this unsupported and speculative testimony.
IV.
We think the district court correctly granted appellee’s motion to exclude evidence of guards on other lathes and appel-lee’s motion for a directed verdict at the end of appellant’s case. The judgment of the district court is therefore
AFFIRMED.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Richard Lee GILPIN, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
No. 13327.
United States Court of Appeals Sixth Circuit.
May -14, 1959.
Richard Lee Gilpin, in pro. per.
Russell E. Ake, U. S. Atty., Cleveland, Ohio, Richard M. Colasurd, Asst. U. S. Atty., Toledo, Ohio, for appellee.
Before MARTIN, Chief Judge, SIMONS, Circuit Judge, and BOYD, District Judge.
PER CURIAM.
Appellant, who is confined in the Federal Correctional Institution at Milan, Michigan, has appealed from his conviction in the District Court for the Northern District of Ohio, Western Division.
Prior to consideration of this appeal, appellant’s request, filed April 17, 1959, for the assignment of counsel to represent him in this proceeding, was overruled as having already been heard and properly denied in an opinion dated March 28, 1959, 6 Cir., 265 F.2d 203, by Judge Miller of this Court.
There being no merit in the points raised by appellant in his brief, the judgment of the district court is affirmed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
TITUS v. UNITED STATES.
No. 3104.
Circuit Court of Appeals, Tenth Circuit.
June 26, 1945.
Rehearing Denied July 24, 1945.
Robert Ash, of Washington, D. C. (Ray S. Fellows, of Tulsa, Okl., and W. T. Durant, of Washington, D. G, on the brief), for appellant.
John F. Costelloe, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and Carlton Fox, Sp. Assts. to Atty. Gen., and Whit Y. Mauzy, U. S. Atty., of Tulsa, Okl., on the brief), for appellee.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
HUXMAN, Circuit Judge.
C. W. Titus, the appellant, as an individual, filed suit to recover alleged overpayment of taxes for the years 1939 and 1940. The taxes in question were paid by the C. W. Titus Company, a trust, upon corporate tax form returns. Judgment was entered for the government, and Titus has appealed.
There is no conflict in the evidence. C. W. Titus organized C. W. Titus, Inc., a corporation, in 1926, and transferred all his oil producing and other properties to it. Of the 3,000 shares of the corporation, 2,998 were issued to him, one share was issued to his wife, and one share was issued to his sister. These last two shares were issued as qualifying shares, but were never removed from the stock books of the corporation. Later, in 1926, the corporation sold all its oil and gas properties and invested more than $1,500,000 of the proceeds in stocks and bonds. The business of the corporation was continued until December 31, 1927, at which time the three stockholders by written agreement created a trust under the name of C. W. Titus Company. The next day the entire stock of the corporation was transferred to the trust. During 1928, 2,850 shares of the stock were transferred back to the corporation in exchange for certain of its assets. In 1931 the trustee transferred the balance of the stock to the corporation in exchange for the balance of its assets, and the corporation was then dissolved. No taxable gain was reported by either the trust or the appellant at the time of the surrender of the corporate stock for the corporate assets. On the contrary, the trust and the corporation filed consolidated or joint tax returns until the corporation was dissolved. Thereafter, and including the years in question, appellant filed his individual income tax returns and the trust filed a corporate tax return as an association, under Section 3797 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 3797.
The grounds upon which appellant sought to recover are that since he was the sole owner of both the corpus and the income of the trust assets, and as trustee was in absolute control of the management of 'the assets of the trust, without accountability to anyone, the trust therefore was not a separate taxable entity under the doctrine of Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, and that therefore the income attributable to the trust should have been included in his personal income tax liability for the years in question. It is urged that the government was not misled to its detriment by the corporate tax returns of the trust, because it at all times had access to its books and knew its true status.
Was the trust an association within the meaning of the applicable provisions of the Revenue Act? The trust instrument was executed by Titus, his wife, and his sister. The life of the trust was fixed at 21 years. Titus was named sole trustee for life, with absolute power to conduct the affairs of the trust. The trust instrument provided that the trustee should have power and authority to conduct the business of the trust and to buy, sell, exchange, pledge, mortgage and generally deal in stocks and other securities, to carry on the business of investing and dealing in stocks, bonds and other securities; to take, purchase or otherwise acquire, own, hold, sell, exchange, hire, lease, pledge, mortgage and otherwise deal in real estate, personal property, chattels, chattels real and choses in action; to acquire, own, mortgage, sell, lease or otherwise dispose of lands containing oil, gas or other minerals, oil wells, gas wells and oil royalties, and manage and develop such properties; to purchase, hold, sell, assign, transfer, mortgage or otherwise dispose of the capital stock or evidences of indebtedness issued by corporations; to enter into contracts of every kind and nature, execute promissory notes, bonds, debentures or other negotiable or transferable instruments; to make and adopt bylaws, rules and regulations, to establish and maintain offices, select a manager or managers, appoint agents, officers, committees and boards to conduct and promote the business of the trust, and to declare and pay dividends from time to time. The instrument further provided for the issuance of capital stock of no par value, and for the issuance of stockholders’ certificates of beneficial interests which were transferable on the books of the trust.
The instrument provided that the 300,000 authorized shares should be issued to Titus, his wife, and his sister; that the trustee might increase the authorized capital stock from time to time and issue and dispose of such increase from time to time as he saw fit; that the trustee might pay dividends to certificate holders of record without being under obligation to look beyond the record to ascertain the rights of any claimed assignees. It provided that the shareholders had no right or title to the trust property; that they could not call for partition or call for a dissolution of the trust; that the death of a beneficiary did not dissolve the trust. It absolved the certificate holders from personal liability, and provided that creditors could look only to trust assets for satisfaction of their claims.
Under the trust agreement Titus was under no obligation to declare dividends. If dividends were declared “the amount of such dividends and the times of declaration and payment thereof shall be wholly in the discretion of the trustee, as also the determination of what constitutes such net profits or surplus.”
It is urged that the trust was in fact the alter ego of Titus; that the assets, both before and after the creation of the trust, were in effect his sole property and that he alone enjoyed the full economic benefit of the income which was reported for the trust on corporate tax form returns, and- that therefore the income of the trust should be charged to him, together with his other personal income.
The contention made by Titus in this case is a most unusual one. Ordinarily the taxpayer is in court contending that the trust which he created is a pure or traditional trust divesting him of his interest in the property and that the income thereof is attributable to the named beneficiaries. This is the first time a taxpayer has appeared before this court contending that a trust which he created is a nullity; that it has no substance; and is but an empty shell, and asking this court to disavow his offspring and deposit the fruit thereof under his tree.
Taxpayers will not be judged, however, by what they say but by what they have done. Whether the trust in question is an association within the meaning of Section 3797 of the Revenue Code is to be determined from the four corners of the instrument itself. When so considered, we have no difficulty in concluding that the trust instrument created an association such as contemplated by Section 3797. As has been stated repeatedly, the inclusion of associations with corporations for tax purposes implies resemblance and not identity. Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263; Commissioner v. Nebo Oil Co., Trust, 10 Cir, 126 F.2d 148; Commissioner v. City National Bank & Trust Co., 10 Cir., 142 F.2d 771.
An analysis of the instrument in question leads to the conclusion that the test laid down in these cases has been met. The trust has centralized management, continuity of existence during the period of the term, uninterrupted by the death of any of the members, limitation of personal liability, and means of transfer of beneficial interests. Neither is it correct to say, as asserted by Titus, that there are no associates. True, there were only three at its inception, Titus, his wife, and his sister. It is also true that his wife and his sister each had only one of the 300,000 trust shares and that he owned all the rest, but that one share gave them an interest in the corpus of the estate and entitled them to a share in the profits. Furthermore, the declaration of trust contemplates further and additional shareholders. It provides for the issuance and sale of additional units by the trustee. It provides that all future shareholders shall be bound by the provisions of the trust agreement. The trust certainly contemplates carrying on business. It provides for this in the broadest possible terms. In fact, the instrument meets all the requirements to make the trust an association within the meaning of the applicable provisions of the Revenue Act.
But we are asked to disregard the clear, express provisions of the trust agreement and look to the actualities of the situation. In substance, it is argued that when thus viewed it becomes apparent that not only was Titus the king-bee, but also that he was the only bee in this hive. Parties are not at liberty to say that their purpose in perfecting an organization was different or narrower than that which they formally set forth in their solemn instrument of writing. Helvering v. Coleman-Gilbert, 296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278; Commissioner v. City National Bank & Trust Co., supra.
For all practical purposes, Titus was the sole owner of this business. He, however, purposely chose a form other than his personal efforts by which to carry on his business. He first created a corporation under the laws of Oklahoma, consisting of himself, his wife and his sister. The interest of the wife and sister in the corporation was limited to one share each, and even that was not issued to them. They were members of the corporation apparently for the sole purpose of making possible its formation under Oklahoma law. The validity of the corporation was not, however, affected by the fact that they were only nominal stockholders, without any real voice in its affairs. Shortly thereafter Titus decided to discard the corporation as a medium through which to carry on his business, and determined to carry on his business through an association similar to a corporation. For this purpose he formed the trust in question. To make it effective, it was necessary to have associates. For this purpose he gave his wife and sister only a nominal interest in the association, the same as they had had in the corporation. If this arrangement was effective to create a corporation it is difficult to see why it would not constitute an association in the nature of a corporation, all other elements necessary to make such an association being present.
Whether the government could challenge the nature of the trust is quite a different question. That matter is not before us. Titus himself cannot do so. He set up a trust by written instrument which meets all the tests of an association in the nature of a corporation. He carried on his business thereby, he filed corporate income tax returns for years, and he will not now at his behest be heard to say that the association was other than what he said it was in his written instrument.
As was said by the Supreme Court in Higgins v. Smith, 308 U.S. 473, 477, 60 S.Ct. 355, 358, 84 L.Ed. 406, the government cannot be compelled to acquiesce in the selection by a taxpayer of a form for carrying on his business which is most advantageous to him. It may look to actualities, and upon determining that the form employed is clearly all a sham, may sustain or disregard the effects of the fiction as best serves the purpose of the tax statute. In the absence of such action by the government, the taxpayer, however, “is free to adopt such organization for his affairs as he may choose and having elected to do some business as a corporation, he must accept the tax disadvantages.” This is precisely what Titus did. He deliberately created a trust by written instrument which meets all the tests of an association in the nature of a corporation. He carried on his business thereunder, filed corporate income tax returns for years, which were accepted by the government, and he himself will not now be heard to say that the association is other than what he made it by his solemn instrument of writing.
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Charles Michael RIVAS, Defendant-Appellant.
No. 72-3222
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 11, 1973.
G. Paul Shoop, Dallas, Tex. (Court Appointed), for defendant-appellant.
William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
Before GEWIN, COLEMAN and MORGAN, Circuit Judges.
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
The defendant, Charles Michael Rivas, was charged on May 18, 1972, in a two count indictment as follows:
Count I
Knowingly and intentionally possessing with intent to distribute for remuneration approximately two pounds and five ounces of marijuana in violation of 21 U.S.C., § 841(a)(1).
Count II
Knowingly and intentionally possessing a quantity of marijuana in violation of 21 U.S.C., § 844(a).
On June 2, 1972, Rivas was arraigned on the first count, it being specifically stated in open court that the second count was to be dismissed. The defendant, represented by counsel, was thoroughly interrogated not only by the United States Attorney but, ultimately, by the Court. In addition, the defendant stated that his counsel had gone over his rights with him “in detail”.
On September 29, almost four months after the arraignment, and a week before he was sentenced, represented by a different attorney, Rivas filed a motion to be allowed to withdraw his plea of guilty.
After a hearing on October 2, 1972, this motion was denied. Sentence was imposed October 5. Rivas now appeals from the denial of his motion to withdraw the guilty plea.
We affirm the action of the District Court because our perusal of the record convinces us beyond peradventure of a doubt that Rivas at all times thoroughly understood his rights, was exhaustively informed as to his situation, and knew that what might have been an “included offense” in the first count was being dismissed as embodied in the second count.
This appellant has in no way been over-reached, misinformed, or uninformed either as to his rights prior to the entry of the plea or as to the alternatives he might have pursued.
The judgment of the District Court is
Affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
GRAVES, Inc. v. COMMISSIONER OF INTERNAL REVENUE.
No. 14092.
United States Court of Appeals Fifth Circuit.
Feb. 27, 1953.
Rehearing Denied March 26, 1953.
William Saunders Henley, Hazlehurst, Miss., for petitioner.
George F. Lynch, S. Dee Hanson, Sp. Assts. to Atty. Gen., Charles S. Lyon, Asst. Atty. Gen., Ellis N. Slack, Acting Asst. Atty. Gen., Mason B. Leming, Acting Chief Counsel, Bur. Int. Rev., and Claude R. Marshall, Sp. Atty., Washington, D. C., for respondent.
Before HUTCHESON, Chief Judge, and STRUM and RIVES, Circuit Judges.
RIVES, Circuit Judge.
Only a few of the facts fully stated in the report of the opinion of the Tax Court, 16 T. C. 1566, need be repeated here. The authorized capital stock of Graves, Inc., a corporation organized under the laws of Mississippi, was increased early in 1943 from $10,-000.00 to $100,000.00. On April 8, 1943, $40,000.00 of the additional stock was issued to Mrs. Viola Graves, and $50,000.00 to Mrs. Margaret W. Graves. Payment for the stock was made in the following manner. The two Mrs. Graves each executed and delivered two promissory notes to the Sopaco Finance Company, hereinafter called Sopaco. The two notes of Mrs. Viola Graves were each in the amount of $20,000, and those of Mrs. Margaret W. Graves were in the amount of $25,000. All four notes were due and payable January 1, 1944, and carried interest at 6% per annum. The stock issued by Graves, Inc. was pledged as security. Sopaco, in turn, executed and delivered to Graves-, Inc. three promissory notes, payable on demand, each in the amount of $30,000 and bearing interest at 2%. Sopaco and its successor, the Wilson Investment Company, had sufficient cash and liquid assets to pay the three $30,000 demand- notes at any time that Graves, Inc. may have requested. Each year the Wilson Investment Company paid Graves, Inc. the interest due on the three demand notes, and dividends were paid on the additional stock issued to the two Mrs. Graves.
At a stockholders’ meeting held on March 13, 1946, a reduction of $70,000 in the outstanding capital stock of Graves, Inc. was authorized. The two Mrs. Graves surrendered for cancellation the $90,000 par value of stock certificates that had been issued to them, and each received a new certificate for $10,000 par value of stock.
On March 20, 1946, Graves, Inc. returned to the Wilson Investment Company the three $30,000 demand notes. No part of the principal amount of these notes had been paid. Thereupon, the Wilson Investment Company returned to the two Mrs. Graves the promissory notes they had executed and delivered to Sopaco, which notes were due and payable on January 1, 1944, but no portion of the principal amount of which had been paid.
The Tax Court held that the $90,000 covered by the notes of Sopaco to Graves, Inc. was not invested capital under Section 718 of the Internal Revenue -Code, 26 U.S. C.A. § 718, or a capital addition under Section 713, 26 U.S.C.A. § 713, for purposes of computing the excess profits credit.
With convincing logic, the petitioner urges upon us that the Tax Court’s opinion is based upon hindsight rather than upon the foresight of a reasonably prudent business man who would have anticipated that the increase in capital stock was required fo-r the additional lines of business that were contemplated, and that the additional capital was prudently invested.
Before reaching that insistence, however, the respondent urges upon us a proposition raised but not passed on in the Tax Court, and nevertheless properly presented here in support of the Tax Court’s decision. Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037; Helvering v. Gowran, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224. That proposition is thus stated in the respondent’s brief:
“Since the promissory notes given for the taxpayer’s stock were specifically void under Mississippi law, the amount thereof may not properly be included in the taxpayer’s equity invested capital for any purpose.”
The Mississippi Code Annotated (1942) provides as follows:
“§ 5327. Stock must be actually paid for. — A note, obligation, or security of any kind given or transferred by any subscriber for stock in any corporation shall not be considered, taken, or held as payment of any part of the capital stock of the company.”
The terms of the Mississippi statute seem plain and unambiguous. It inveighs against a note, obligation or security of any kind. It may seem inconsistent to permit a subscription for corporate stock to be paid in property, see Lea v. Cutrer, 96 Misc. 355, 51 So. 808, 27 L.R.A., N.S., 315, and yet to forbid its payment by a note, obligation, or security of any kind, words broad enough to include even government bonds. That is a matter, however, that addresses itself to the law making body of the State of Mississippi. It is not for us to gainsay the clear command of the statute evidently considered necessary 'by the Mississippi legislature to prevent watering of stock.
We turn to the construction of the statute by the Supreme Court of Mississippi. The. intendment of the section is “that all stock must be fully and actually paid for”. Alford v. Laurel Improvement Co., 86 Miss. 375, 38 So. 548. The payee of a note given in payment of stock in a Mississippi corporation cannot recover thereon, nor can a purchaser with notice. Ellis Jones Drug Co. v. Williams, 139 Miss. 170, 103 So. 810; Aldridge v. Rice, 161 Miss. 879, 138 So. 570; See Gordin v. Bank of Forest, 170 Miss. 56, 153 So. 375; Frazier v. Zachariah, 174 Miss. 378, 164 So. 893. The Mississippi statute applies to additional stock authorized and issued after the corporation has become a going concern. Merchants Bank & Trust Co. v. Walker, 192 Miss. 737, 6 So.2d 107. Contrary to the rule prevailing in Texas [see Brownfield State Bank v. Hudson, Tex.Civ.App., 73 S.W.2d 140] and generally elsewhere, see 18 C.J.S., Corporations, § 242, p. 680, Note 31, the Mississippi statute applies where the note given for ■ corporate stock is secured by collateral other than the stock itself. Merchants Bank & Trust Co. v. Walker, supra.
Turning to authorities outside of Mississippi, we note that the opinion in a Texas case, McCarthy v. Texas Loan & Guaranty Co., Tex.Civ.App., 142 S.W. 96, 99, draws a distinction, which, if valid in Mississippi, might apply to the facts of this case: “It is true a promissory note is ‘property’ in one sense of the word, as, for instance, when it is in the hands of a third person. It has frequently been so held; but, as between the original parties to the same, it is but a mere evidence of indebtedness * * *.” Unfortunately, there is no Mississippi case directly in point. Indeed an annotation in 58 A.L.R. 708, 717 comments that the Texas case is the only one expressly drawing that distinction, though that case in turn is cited with approval in Sohland v. Baker, 15 Del.Ch. 431, 141 A. 277, 284, 58 A.L.R. 693 to the proposition that, “Unless prohibited by its charter, or some constitutional or legislative provision, a good and collectable note of a subscriber, as well as that of a third person, would be a good consideration for the issuance of stock in a corporation.” We think that the Delaware Court has correctly stated a sound general proposition of law. See 1 Fletcher Cyclopedia, Corporations, Permanent Edition, Secs. 208, 216; 14 C.J. 439; 18 C.J.S., Corporations, § 242.
In Mississippi, however, any such construction seems foreclosed by the clear language of the statute covering “a note, obligation, or security of any kind”, and more specifically whether “given or transferred” by any subscriber. The notes executed by Sopaco were given to Graves, Inc. by, or at the direction of, the subscribers. They were not transferred in writing, but were purchased from Sopaco by the subscribers, and at their direction made payable to Graves, Inc. The transaction was the same in substance as if the Sopaco notes had been made payable to the subscribers and by them endorsed without recourse to Graves, Inc. Further, to apply the distinction drawn by the Texas case would hardly be consistent with the Mississippi ruling heretofore noted, different from the Texas law, that even a note secured by collateral other than the corporate stock cannot be used as payment for capital stock.
We conclude that the clear language of the Mississippi statute, in the light of its construction by the Supreme Court of Mississippi, requires us to hold that the notes of Sopaco in the amount of $90,000 given for the purchase of stock in Graves, Inc. were not legally enforcible obligations, and hence that they did not constitute invested capital under Section 718 of the Internal Revenue Code, 26 U.S.C.A. § 718, or a capital addition under Section 713, 26 U.S.C.A. § 713. The decision of the Tax Court is therefore
Affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_stateclaim
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" 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".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action.
NATURAL RESOURCES DEFENSE COUNCIL, INC., the Central Clearing House, Sally Rodgers, and Sandy Simons, Plaintiffs-Appellees, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Marcus A. Rowden, Victor Gilinsky, Richard T. Kennedy, New Mexico Environmental Improvement Agency, and Thomas E. Baca, Defendants, United Nuclear Corporation, Intervenor, and Kerr-McGee Nuclear Corporation and the American Mining Congress, Petitioners-to-Intervene Appellants, The Anaconda Company, Gulf Oil Corporation and Phillips Petroleum Company, Petitioners-to-Intervene.
Nos. 77-1996, 78-1069.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 12, 1978.
Decided June 15, 1978.
Neil M. Soltman, of O’Melveny & Myers, Los Angeles, Cal. (Philip F. Westbrook, Owen C. Olpin and Brian C. Lysaght, of O’Melveny & Myers, Los Angeles, Cal., and of counsel, Alfred Forsyth, Santa Fe, N. M., on the brief), for plaintiffs-appellee.
Peter J. Nickles, of Covington & Burling, Washington, D. C. (John Michael Clear and Gregg H. Levy, of Covington & Burling, and Bruce D. Black, of Campbell, Bingaman & Black, P.A., Santa Fe, N. M., on the brief), for appellant Kerr-McGee Nuclear Corp.
R. Brooke Jackson, of Holland & Hart, Denver, Colo. (Frank H. Morison, of Holland & Hart, Denver, Colo., Paul J. Kelly, Jr., of Hinkle, Cox, Eaton, Coffield & Hensley, Roswell, N. M., and of counsel, James R. Walpole, American Mining Congress, Washington, D. C., on the brief), for appellant the American Mining Congress.
Before DOYLE and LOGAN, Circuit Judges, and STANLEY, Senior District Judge.
Of the District of Kansas, sitting by. designation.
WILLIAM E. DOYLE, Circuit Judge.
The American Mining Congress and Kerr-McGee Nuclear Corporation seek review of the order of the United States District Court for the District of New Mexico denying their motions to intervene was a matter of right or on a permissive basis, pursuant to Rule 24(a)(2) and (b), Fed.R. Civil Proc.
The underlying action in which the mov-ants requested intervention was instituted by the Natural Resources Defense Council, Inc., and others. In the action, declaratory and injunctive relief is directed to the United States Nuclear Regulatory Commission (NRC) and the New Mexico Environmental Improvement Agency (NMEIA), prohibiting those agencies from issuing licenses for the operation of uranium mills in New Mexico without first preparing environmental impact statements. Kerr-McGee and United Nuclear are potential recipients of the licenses.
Congress, in the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, has authorized the NRC to issue such licenses. NMEIA is involved because under § 274(b) of the Act, 42 U.S.C. § 2021(b) (1970), the NRC is authorized to enter into agreements with the states allowing the states to issue licenses. Such agreements have been made with about 25 states including New Mexico. Thus, the action below in effect seeks to prevent the use of § 274(b) of the Act so as to avoid the requirement of an impact statement for which provision is made in the National Environmental Policy Act.
42 U.S.C. § 4332(2)(C) (1970) requires that a detailed environmental impact statement must be prepared by all federal agencies “in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” The complaint cites this requirement and alleges that an environmental impact statement would ordinarily be required here as a prerequisite to the issuance of licenses for the operation of uranium mills were it not for the arrangement which gives jurisdiction to the state. It further alleges that such statements are now prepared by the NRC in states that have not entered into agreements with the NRC, but that the NRC does not prepare such statements where there is an agreement with a state such as New Mexico. Plaintiff contends that the granting of licenses by state agencies predicated on delegation of authority from the NRC causes the NRC to consider the aspect of “major federal action” to be thereby eliminated. The New Mexico agency, NMEIA, which grants the license, does not prepare environmental impact statements since it is not a federal agency and is not required either by its agreement with NRC or by state law to prepare such a statement.
The relief sought by the plaintiffs’ complaint is, first, that NRC’s involvement in the licensing procedure in New Mexico is, notwithstanding the delegation to the state, sufficient to constitute major federal action, whereby the impact statement requirement is not eliminated. Second, that if an impact statement is not required in connection with the granting of licenses, the New Mexico program is in conflict with § 274(d)(2) of the Atomic Energy Act of 1954, 42 U.S.C. § 2021(d)(2) (1970).
The motion of United Nuclear Corporation to intervene is not opposed by the parties and was granted. On May 3, 1977, the date that the complaint herein was filed, NMEIA granted a license to United Nuclear to operate a uranium mill at Church Rock, New Mexico. The complaint seeks to enjoin the issuance of the license thus granted.
It was after that that Kerr-McGee Nuclear Corporation, Anaconda Company, Gulf Oil Corporation, Phillips Petroleum Company, and the American Mining Congress filed motions to intervene. These motions, insofar as they sought intervention as of right, were denied on the ground that the interests of the parties or movants would be adequately represented by United Nuclear. Permissive intervention was also denied. Kerr-McGee and the American Mining Congress both appeal denial of both intervention as of right and permissive intervention.
Our issue is a limited one. We merely construe and weigh Rule 24(a) of the Fed.R. Civ.P. (intervention as of right) and decide in light of the facts and considerations presented whether the denial of intervention was correct. The Rule provides as follows:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
We do not have a subsection (1) situation involving a statutory conferring of right to intervene. Accordingly, we must consider the standards set forth in subsection (2), which are:
1. Whether the applicant claims an interest relating to the property or transaction which is the subject of the action.
2. Whether the claimants are so situated that the disposition of the action may as a practical matter impair or impede their ability to protect that interest.
3. Whether their interest is not adequately represented by existing parties.
The district court’s order denying intervention by the several corporations focused on whether the interest of the party seeking to intervene was adequately represented by a fellow member of the industry. Our relatively recent decision in National Farm Lines v. ICC, 564 F.2d 381 (10th Cir. 1977), was held not determinative because the movants for intervention would be represented by a fellow member of the industry rather than by the United States Government, whose interests were different in National Farm Lines. The court decided that the interests of the movants were adequately protected by United Nuclear, which possessed the necessary experience and knowledge in a complex area of business, whereby the representative’s capability was competent to meet the demands. The court thought that to allow the intervention would engender delay and produce unwieldy procedure; and that the movants’ requirements were met by allowing the filing of amicus curiae briefs.
Our conclusion is that the interests of movants in the subject matter is sufficient to satisfy the requirements of Rule 24 and that the threat of loss of their interest and inability to participate is of such magnitude as to impair their ability to advance their interest.
I.
The position adopted by the trial court that Kerr-McGee was adequately represented dispensed with the need for the court to consider the question whether Kerr-McGee had an interest in the litigation before the court. Plairitiffs-appellees maintain that the appellants do not have the requisite interest because they are not directly involved; that the controversy centers on the effort of Natural Resources Defense Council, Inc. to prevent the issuance of a license to United Nuclear unless and until an environmental impact statement is issued. The question then is whether the contention made is a correct concept of interest. Strictly to require that the movant in intervention have a direct interest in the outcome of the lawsuit strikes us as being too narrow a construction of Rule 24(a)(2). Kerr-McGee argues that the meaning of interest is one which, if they do not prevail in the intervention, threatens them with a disposition of the action which may, as a practical matter, impair or impede their efforts to protect the interest. Thus, we are asked to interpret interest in relationship to the second criterion in Rule 24(a)(2), impairment or impeding ability to protect the interest.
The Supreme Court has said that the interest must be a significantly protectable interest. See Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). The Supreme Court held that a taxpayer did not have a right to intervene in a judicial enforcement proceeding seeking issuance of an Internal Revenue summons ordering production of business records of his employer. The narrowness of the summons proceeding was noted, and it was said that an objection of the taxpayer could be raised at the proper time in a subsequent trial.
Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 135-36, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967), held that the interest claimed by the applicant in intervention did not have to be a direct interest in the property or transaction at issue provided that it was an interest that would be impaired by the outcome. There Cascade’s source of supply would have been a new company created by an antitrust divestiture, a significant change. In view of this consequence of the litigation, it was held that Cascade had a sufficient interest. See also Allard v. Frizzell, 536 F.2d 1332, 1334 n.1(10th Cir. 1976). In Allard it was ruled that the applicant in intervention did not have a sufficient interest. Movant’s interest there was general and somewhat abstract.
In our case the matter of immediate interest is, of course, the issuance and delivery of the license sought by United Nuclear. However, the consequence of the litigation could well be the imposition of the requirement that an environmental impact statement be prepared before granting any uranium mill license in New Mexico, or, secondly, it could result in an injunction terminating or suspending the agreement between NRC and NMEIA. Either consequence would be felt by United Nuclear and to some degree, of course, by Kerr-McGee, which is said to be one of the largest holders of uranium properties in New Mexico. It operates a uranium mill in Grants, New Mexico, pursuant to an NMEIA license, which application for renewal is pending. A decision in favor of the plaintiffs, which is not unlikely, could have a profound effect upon Kerr-McGee. Hence, it does have an interest within the meaning of Rule 24(a)(2). This interest of Kerr-McGee is in sharp contrast to the minimal interest which was present in Allard, wherein it was an interest of environmental groups in the protection of living birds. This was considered insufficient to justify intervention in a case involving feathers which are part of Indian artifacts. Their interest was said to be limited to a general interest in the public. Id. at 1334. The interest asserted on behalf of Kerr-McGee and the American Mining Congress is one which is a genuine threat to Kerr-McGee and the members of the American Mining Congress to a substantial degree.
We do not suggest that Kerr-McGee could expect better treatment from state authorities than federal. We do recognize that a change in procedure would produce impairing complications.
II.
The next question is whether, assuming the existence of an interest, the chance of impairment is sufficient to fulfill the requirement of Rule 24(a)(2).
As already noted, the question of impairment is not separate from the question of existence of an interest. The appellants both claim an interest in licenses that are now before NMEIA or will be in the future. If the relief sought by the plaintiffs is granted, there can be little question but that the interests of the American Mining Congress and of Kerr-McGee would be affected. Plaintiffs contend, however, that appellants would not be bound by such a result if they are not participants. Kerr-McGee points out that even though it may not be res judicata, still it would have a stare decisis effect. Moreover, with NRC and NMEIA as parties, the result might be more profound than stare decisis.
It should be pointed out that the Rule refers to impairment “as a practical matter.” Thus, the court is not limited to consequences of a strictly legal nature. The court may consider any significant legal effect in the applicant’s interest and it is not restricted to a rigid res judicata test. Hence, the stare decisis effect might be sufficient to satisfy the requirement. See New York Public Interest Research Group, Inc. v. Regents of the University of New York, 516 F.2d 350, 352 (2d Cir. 1975). It is said that where, as here, the case is of first impression, the stare decisis effect would be important. See Nuesse v. Camp, 128 U.S. App.D.C. 172, 180, 385 F.2d 694, 702 (1967).
Finally, the considerations for requiring an environmental impact statement will be relatively the same in respect to the issuance of a uranium mining license in every instance. Hence, to say that it can be repeatedly litigated is not an answer, for the chance of getting a contrary result in a case which is substantially similar on its facts to one previously adjudicated seems remote. See Natural Resources Defense Council v. Costle, 183 U.S.App.D.C. 11, 16-18, 561 F.2d 904, 909 — 11 (1977); Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 405 (1967).
We are of the opinion, therefore, that appellants have satisfied the impairment criterion.
III.
The final question is whether the trial court was correct in its conclusion that United Nuclear would adequately represent Kerr-McGee and the American Mining Congress.
The finding and conclusion was that the representation would be adequate because United Nuclear, a fellow member of the industry, has interests which were the same as those of the appellants and possessed the same level of knowledge and experience with the ability and willingness to pursue the matter and could adequately represent Kerr-McGee and the members of the American Mining Congress.
We have held in accordance with Trbo-vich v. UMW, 404 U.S. 528, 538 n.10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972), that the burden continues to be on the petitioner or movant in intervention to show that the representation by parties may be inadequate. National Farm Lines v. ICC, 564 F.2d 381, 383 (10th Cir. 1977). We have also recognized the holding in Trbovich that the burden is minimal; that it is enough to show that the representation “may be” inadequate.
United Nuclear is situated somewhat differently in this case than are the other members of the industry since it has been granted its license. From this it is urged by Kerr-McGee that United Nuclear may be ready to compromise the case by obtaining a mere declaration that while environmental impact statements should be issued, this requirement need be prospective only, whereby it would not affect them. While we see this as a remote possibility, we gravely doubt that United Nuclear would opt for such a result. It is true, however, that United Nuclear has a defense of laches that is not available to Kerr-McGee or the others.
7A C. Wright & A. Miller, Federal Practice & Procedure, § 1909, at 524 (1972), says:
[I]f [an applicant’s] interest is similar to, but not identical with, that of one of the parties, a discriminating judgment is required on the circumstances of the particular case, but he ordinarily should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee.
While the interest of the two applicants may appear similar, there is no way to say that there is no possibility that they will not be different and the possibility of divergence of interest need not be great in order to satisfy the burden of the applicants under National Farm Lines, supra.
There are other reasons for allowing intervention. There is some value in having the parties before the court so that they will be bound by the result. American Mining Congress represents a number of companies having a wide variety of interests. This can, therefore, provide a useful supplement to the defense of the case. The same can be said of Kerr-McGee.
The trial court was concerned that the addition of these movants would make the litigation unwieldy. If the intervenors are limited to this group, unwieldiness does not become a problem which the trial court cannot control. It does not appear that there would be a need for additional parties in view of the presence of the American Mining Congress. While we do not express an opinion on the possibilities of further additions, we wish to make clear that the present holdings that the two applicants should be allowed to intervene does not say that others should be added. The two appellants here have satisfied their burden of the three requirements of Rule 24(a)(2). Consequently, they should be and they are hereby allowed to intervene. Accordingly, we need not determine whether the district court erred in denying permissive intervention under Rule 24(b).
The order of the district court is reversed and the cause is remanded with instructions to the trial court to grant the appellants, Kerr-McGee’s and American Mining Congress’, motions to intervene.
. Holloway, J., concurring in the result.
Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc2sect
|
7602
|
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 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Cameron O’CONNOR, Alias, Respondent, Appellant, v. John A. O’CONNELL, District Director of Providence District, Internal Revenue Service, Petitioner, Appellee.
No. 5267.
United States Court of Appeals First Circuit.
March 20, 1958.
Christopher Del Sesto, Providence, R. I., Jacob S. Temkin, Providence, R. I., on the brief, for appellant.
Joseph Mainelli, U. S. Atty., Providence, R. I., Arnold Williamson, Jr., and Samuel S. Tanzi, Asst. U. S. Attys., Providence, R. I., on the brief, for ap-pellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a district court order directing compliance with a summons issued by a Special Agent of the Internal Revenue Service directing the appellant to appear at a specified time and place to testify as to his and his wife’s tax liabilities for the calendar years 1943 to 1947, inclusive. A motion by the appellee to dismiss the appeal for lack of jurisdiction lays first claim upon our attention.
The assertion is that the order of the District Court is not appealable for the reason that it is neither a “final decision” within the meaning of § 1291 of Title 28 U.S.C., nor any one of the interlocutory orders, decrees or judgments made appealable by § 1292 of the same Title. We do not agree for we consider the District Court’s order to be a “final decision” and hence appeal-able under § 1291. In Ellis v. Interstate Commerce Commission, 1915, 237 U.S. 434, 442, 35 S.Ct. 645, 59 L.Ed. 1036, the Court, relying upon Interstate Commerce Commission v. Baird, 1904, 194 U.S. 25, 24 S.Ct. 563, 48 L.Ed. 860, and distinguishing Alexander v. United States, 1906, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686, said that there was “no doubt” that an appeal lay from a district court order entered on a petition of the Interstate Commerce Commission under § 12 of the act, 49 U.S.C.A. § 12, to regulate commerce for enforcement of a summons issued by it directing the appellant to answer certain questions propounded and to produce certain papers called for by the Commission. In explanation of its holding the Court said [237 U.S. 434, 35 S.Ct. 646]: “The order is not like one made to a witness before an examiner or on the stand in the course of a proceeding inter alios in court.” Instead, the Court pointed out: “It is the end of a proceeding begun against the witness.”
In the later case of Cobbledick v. United States, 1940, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783, upon which the appel-lee relies, the Court was not confronted with the problem in the Ellis case or with the problem which confronts us here. The question in Cobbledick was whether a district court order denying a motion to quash a subpoena duces tecum requiring the person named therein to appear with papers and testify before a grand jury was a “final decision” and hence appealable to a court of appeals. The Circuit Court of Appeals for the Ninth Circuit, Palmuth v. U. S., 107 F.2d 975, had held that the order was not a final decision and the Supreme Court affirmed. But in doing so the Court was careful to distinguish, not to overrule, the Ellis case and to perpetuate, indeed to elaborate upon, the distinction between it and the Alexander case. After discussing the Ellis case and the distinction therein drawn with Alexander, the Court in Cobbledick, 309 U.S. at page 330, 60 S:Ct. at page 543 said that it found “a sufficient justification for treating these controversies [i. e. those with respect to subpoenas issued in aid of administrative proceedings] differently from those arising out of court proceedings unrelated to any administrative agency.” It said:
“The doctrine of finality is a phase of the distribution of authority within the judicial hierarchy. But a proceeding like that under § 12 of the Interstate Commerce Act may be deemed self-contained, so far as the judiciary is concerned — as much so as an independent suit in equity in which appeal will lie from an injunction without the necessity of waiting for disobedience. After the court has ordered a recusant witness to testify before the Commission, there remains nothing for it to do. Not only is this true with respect to the particular witness whose testimony is sought; there is not, as in the case of a grand jury or trial, any further judicial inquiry which would be halted were the offending witness permitted to appeal. The proceeding before the district court is not ancillary to any judicial proceeding. So far as the court is concerned, it is complete in itself.”
Observing this distinction, we follow the Ellis case and hold that the order of the District Court from which this appeal is taken is a “final decision” and hence appealable to this court under Title 28 U.S.C. § 1291. In accord see particularly Capital Co. v. Fox, 2 Cir., 1936, 85 F.2d 97, 99, 106 A.L.R. 376, certiorari denied 1936, 298 U.S. 672, 56 S.Ct. 937, 80 L.Ed. 1394; Falsone v. United States, 5 Cir., 1953, 205 F.2d 734, 737, certiorari denied 1953, 346 U.S. 864, 74 S.Ct. 103, 98 L.Ed. 375. And, sub silentio, First National Bank of Mobile, Ala. v. United States, 1925, 267 U.S. 576, 45 S.Ct. 231, 69 L.Ed. 796, and, in this circuit, McDonough v. Lambert, 1 Cir., 1938, 94 F. 2d 838; and Pacific Mills v. Kenefick, 1 Cir., 1938, 99 F.2d 188.
We have discussed the question of our jurisdiction at some length only because of the appellee’s heavy reliance upon Jarecki v. Whetstone, 7 Cir., 1951, 192 F.2d 121, which holds that an order of the kind under consideration is not final and hence not appealable. The Jarecki case undoubtedly supports the appellee’s contention. But we reject it as authority, for in it the court relied upon the Alexander and Cobbledick cases without any notice of the Ellis case and the distinction drawn therein and emphasized in Cobbledick between an order enforcing a subpoena issued in the course of a judicial proceeding and an order enforcing a subpoena issued in aid of an administrative proceeding.
Having determined that the order appealed from is within our jurisdiction, we turn to the merits.
A Special Agent of the Internal Revenue Service, as the delegate of the Secretary of the Treasury, on February 7, 1957, issued a summons pursuant to § 7602 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7602, directing the appellant to present himself at the office of the Intelligence Division of the Internal Revenue Service in Providence, Rhode Island, at 9:30 a. m. on February 18, 1957, to testify with respect to his and his wife’s tax liabilities for the calendar years 1943 to 1954, inclusive. By agreement the date of appearance was advanced to February 15, and on that day the appellant accompanied by counsel appeared in response to the summons. He was not put under oath but he was asked about and freely discussed matters pertaining to his and his wife’s taxes for the years 1951 to 1954. As a result a basis for the settlement of claimed deficiencies for those years was agreed upon. He was informed that no deficiencies were claimed for the years 1948 to 1950, and then the years 1943 to 1947 came up for discussion. At this juncture appellant’s counsel pointed out that there was no claim that the appellant had failed to file returns for any of those years and that no waivers for any of the years, except 1944, had ever been requested, and that the last of five waivers granted by the appellant for that year had long since expired. He therefore asserted that in the absence of fraud2 the statute of limitations prevented the assessment or collection of tax deficiencies for the years 1943 to 1947 and that he would advise his client not to discuss those years until some reasonable ground for the possible belief that the appellant had fraudulently understated his taxable income for those years had been shown. Counsel said: “We want to make it perfectly clear, however, that if and when there is any evidence submitted that would show, or tend to show, fraud for those years, Mr. O’Connor is willing to testify as to those years.”
The Revenue Agents in attendance at the hearing admitted that the appellant had filed returns for the years in question and that the years were “closed” except for fraud. But, although they conceded that the appellant’s return for 1943 had been destroyed in accordance with established administrative practice, they asserted that calculations based on the tax paid by the appellant for 1943, and his returns for later years, indicated a substantial untaxed increase in his net worth during the years in question. Appellant’s counsel replied that proof of a deficiency alone was not proof of fraud and further that calculations based only on the amount of tax paid could not possibly show the amount of gross income reported or the nature and amount of the deductions claimed. And he reasserted his position that discussion with respect to the years 1943 to 1947 “will depend [upon] whether or not you can show us any evidence of fraud. The minute you show us any evidence of fraud, Mr. O’Connor would discuss those years freely and without reservation.” The Agents maintained that they did not need to make any such showing as a prerequisite to discussion of those years and the interview came to an amicable end.
Soon thereafter the appellee filed a petition in the court below for an order directing the appellant to comply with the subpoena insofar as the so-called “closed” years of 1943 through 1947, closed that is except for fraud, were concerned. The appellant moved to dismiss the petition and to quash the subpoena and the matter came on for hearing. At the hearing appellant’s counsel maintained the same position he had taken at the interview and the appellee took the position that the testimony of the agent that from his investigation he honestly suspected that the taxpayer-appellant had filed false and fraudulent returns for the years in question was all that had to be shown to support an order of the court directing the appellant to comply with the summons and testify as to those years. The District Court agreed with the Government’s contention. It said:
“The respondent contends that the burden is upon the Government to establish either the returns for the years in question were fraudulent or at least probable cause for me to conclude that the returns were fraudulent. I don’t think that that is the test. I am dealing here with an authorization conferred by Congress on the Secretary or his delegate to investigate tax liabilities and to compel payment of taxes where taxes are justly due and owing. It is not for the courts to unnecessarily hamper or restrict the activities of the Commissioner of Internal Revenue in this regard. I think it is safe to say the overwhelming weight of authority where the question of the power of the Secretary or his delegate to issue a subpoena under this particular section has been brought into issue is to the effect that it is sufficient to entitle the delegate to an order from the Court compelling obedience of his subpoena, that the Court be satisfied that the agent from his investigation of the matters available to him had grounds to conclude that there was reasonable suspicion that the taxpayer had made a false or fraudulent return.”
******
“In this case there is testimony by Mr. Katz that the substantial increases in the net worth of the respondent here during the years in question led him to strongly suspect that the respondent taxpayer had grossly understated his income during those years, and that his return may have been false and fraudulent.
“It seems to me, gentlemen, that that sworn testimony of Mr. Katz is, in the light of the decided cases, sufficient authority for the exercise of the power to subpoena granted to the Secretary or his delegate under Section 7602 of the Internal Revenue Code of 1954.”
Wherefore the District Court issued the order requiring the applicant to comply with the summons issued by the Internal Revenue agent from which this appeal has been taken.
We are not here concerned with an inquiry into a “closed” year for the purpose of determining a deficiency in an “open” one, or with inquiries directed to a taxpayer’s agent or employee, as in Falsone v. United States, 5 Cir., 1953, 205 F.2d 734, certiorari denied 1953, 346 U.S. 864, 74 S.Ct. 103. Our concern is with what the tax authorities must show to warrant enforcement of a summons directing a taxpayer himself to testify with respect to possible deficiencies in his taxes for years “closed” by the statute of limitations except for fraud. The question is: Do the tax authorities only need to show the enforcing court that they entertain a bona fide suspicion of fraud on the part of the taxpayer for those years, or must they establish to the satisfaction of the court that there is probable cause or a reasonable basis for it to believe that in those years the taxpayer perpetrated a fraud upon the revenue ?
Although the Court of Appeals for the Second Circuit in Application of United States (In re Carroll), 2 Cir., 1957, 246 F.2d 762 certiorari denied 1957, 355 U.S. 857, 78 S.Ct. 85, 2 L.Ed.2d 64, found no need to answer this precise question it nevertheless gave rather detailed consideration to the conflicting authorities bearing upon it. No useful purpose would be served by repeating Judge Medina’s discussion and exhaustive citations here, for many of the cases he cites are somewhat vague and in only a few of them is the question given more than cursory consideration. It will suffice to say that although perhaps the numerical weight of authority supports the position taken by the Government and by the court below, we think the taxpayer’s position is supported by the better reason.
Chapter 78 of the Internal Revenue Code of 1954, after authorizing the issuance of summons by the Secretary or his delegate in § 7602, and providing for enforcement of such summons by the local district court in § 7604, 26 U.S.C.A. § 7604, provides in § 7605(b), 26 U.S. C.A. § 7605(b), under the subtitle “Restrictions on examination of taxpayer”:
“No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer’s books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.”
We entertain no doubt that the Secretary or his delegate is entitled as a matter of right to an order enforcing compliance with any reasonable summons issued by him directing a taxpayer to testify and to produce his records with respect to any year not barred by the statute of limitations, provided, of course, the specific statutory restrictions on his investigatory powers imposed in § 7605(a) are observed. These examinations may well be burdensome to the taxpayer but by no other means can the tax laws be enforced. As the years pass, however, the burden of such examinations on the taxpayer increases, for memories fade, records may be lost or mislaid, indeed to conserve space honest taxpayers may well destroy their records relating to years as to which the statute of limitations has run, and persons who have assisted taxpayers in preparing their returns may die, move away, or for one reason or another be no longer available. For instance, the taxpayer here asserts that the legal counsel who prepared his returns for the “closed” years has died and the accountant who assisted in their preparation is now over 80 years of age and is suffering from a defective memory.
We may well assume that considerations such as these had weight with Congress when it legislated in § 7605(b) to curb excessive administration zeal by protecting taxpayers from unnecessary examination and investigation. But if these considerations are to be adequately served we cannot adopt the Government’s contention that to obtain an order for enforcement as to a “closed” year all that the Secretary or his delegate needs to show is the honesty of his subjective belief that fraud existed in such a year. The reason for this is that in the Government’s view the necessity for an examination into a closed year would for all practical purposes be left to administrative determination and § 7605(b) would be relegated to hardly more than a pious exhortation directed to the tax authorities. As a practical matter, according to the Government’s contention, the court’s function under § 7604 would be reduced to little more than that of summarily affixing its stamp of approval to administrative action, for we can hardly assume that agents of the Internal Revenue Service would undertake to examine a taxpayer as to a closed year when they did not honestly believe that the taxpayer had been guilty of fraud in such a year. We cannot assume that the agents of the Internal Revenue Service would undertake an examination into a closed year only to harass and annoy a taxpayer.
To make the Congressional purpose expressed in § 7605(b) to protect taxpayers from unnecessary examinations truly effective we think the Secretary or his delegate, when a court order is needed to enforce compliance with a summons to testify as to a “closed” year, should be required to establish to the court’s satisfaction that there is probable cause for an investigation into such a year. We think Congress intended to give taxpayers this much protection when the investigation of their returns may reach far back into the past, in this case fourteen years, and in some eases perhaps even further, and that to require such a showing does not impose too heavy a burden upon the tax authorities or unduly restrict or hamper them in tax enforcement.
Furthermore, this interpretation of § 7605(b) is in accord with the limitations upon the inquisitorial powers of government which have become traditional in this country. We agree with Judge Moscowitz’ statement in In re Brooklyn Pawnbrokers, Inc., D.C.E.D.N.Y.1941, 39 F.Supp. 304, 305, that “to permit the government to examine as to statute barred years upon a mere conclusory allegation of fraud is to deprive the taxpayer of that freedom from unreasonable harassment which he has a right to expect under a democratic form of government.”
This does not mean that proof of fraud is required. It means only that before the tax authorities are entitled to a district court order enforcing a summons directing a taxpayer to testify as to a closed year they must establish to the district court’s satisfaction that a reasonable basis exists for a suspicion of fraud, or put another way, that there is probable cause to believe that the taxpayer was guilty of fraud in a statute barred year. We, therefore, disagree in principle with United States v. United Distillers Products Corp., 2 Cir., 1946, 156 F.2d 872, 874, and Globe Construction Co. v. Humphrey, 5 Cir., 1956, 229 F.2d 148, and agree with the rule as it was assumed to be in Martin v. Chandis Securities Co., 9 Cir., 1942,128 F.2d 731, 735, wherein it is said:
“It is the appellant’s contention that the only showing required (and we assume also the only allegation required) is a ‘showing of probable cause, sometimes called reasonable ground for suspicion of fraud.’ Ap-pellees do not controvert that contention, and we accept it as the test in this case without expressing any opinion as to the soundness thereof.”
The taxpayer’s return for 1943 having been destroyed, the Government may have some serious difficulty in establishing probable cause for the belief that the taxpayer was guilty of fraud in that year. But we do not think that destruction of the return for that year makes it impossible as a matter of law for the Government to show the possibility of fraud.
It follows that the case must go back to the court below for application of the test set out herein to the evidence already submitted, or to that evidence as supplemented by such additional evidence as the court may see fit to receive if any is offered.
Judgment will be entered vacating and setting aside the order of the District Court and remanding the case to that Court for further proceedings not inconsistent with this opinion.
. This holding cuts the ground out from under, and makes it unnecessary for us to consider, the appellee’s further contention that since the order appealed from is not final, it is not subject to stay of execution upon tbe filing of a super-sedeas bond.
. Chapman v. Goodman, 9 Cir., 1955, 219 F.2d 802, upon which the appellee also relies, is not in point for in that case an order like the present was held not to be final and, therefore not appealable, for the reason that the district court in issuing the order had reserved jurisdiction to pass upon any questions of the attorney-client privilege which might arise at the administrative hearing.
. Section 276(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 276(a), provides: “In the case of a false or fraudulent return with intent to evade tax or of a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.”
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 26? Answer with a number.
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America v. Paul STROTHERS.
No. 12632.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 4, 1955.
Decided Nov. 17, 1955.
Mr. Milton D. Korman, Asst. Corp. Counsel for District of Columbia, with whom Messrs. Vernon É. West, Corp. Counsel, Chester H. Gray, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for the District of Columbia. Mr. Harry L. Walker, Asst. Corp. Counsel at the time the record was filed, also entered an appearance for the District of Columbia.
Mr. Lewis Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., John D. Lane, Harold H. Greene and Forbes W. Blair, Asst. U. S. Attys., were on the brief, for the United States.
Before FAHY, WASHINGTON and BASTIAN, Circuit Judges.
BASTIAN, Circuit Judge.
This case is before the Court on certificate from the Municipal Court, pursuant to the provisions of Section 933 of the Act of 1901, 31 Stat. 1341, as amended.
On March 18, 1955, an information was filed by the United States Attorney charging the defendant, Paul Strothers, with “inviting, enticing, and persuading an adult person * * * for the purpose of prostitution and other immoral and lewd purposes,” in violation of law.
Thereafter, the defendant filed a motion to dismiss, on the ground that the United States had no authority to prosecute the case and that prosecution for violation of the pertinent statute is required to be conducted in the name of and for the benefit of the District of Columbia. The presiding trial judge did not pass on the motion but certified to this court, pursuant to Section 23-102, D.C.Code, 1951 (note 1, supra), the question raised. This court, by its order dated April 8, 1955, acknowledged the certificate and directed the filing of briefs.
On July 29, 1892, Congress passed “An act for the preservation of the public peace and the protection of property within the District of Columbia”, 27 Stat. 322. The first seventeen sections of this Act enumerated and made unlawful a number of certain actions, mostly minor in nature, some more serious, each section containing a separate provision for a penalty ranging from a maximum fine of five dollars in some instances to a maximum fine of two hundred and fifty dollars in some others. Section 18 of this Act provided that all prosecutions for the offenses were to be conducted in the name of and for the benefit of the District of Columbia.
From the date of the passage of this Act until August 15, 1935, the Corporation Counsel for the District of Columbia, and his predecessors, prosecuted cases arising thereunder, including Section 7 thereof, 27 Stat. 323, which reads as follows:
“That it shall not be lawful for any prostitute or lewd woman to invite, entice, persuade, or to address for the purpose of inviting, enticing, or persuading any person or persons, in or upon any avenue, street, road, highway, open space, alley, public square, or inclosure in the District of Columbia, to accompany, go with, or follow her to her residence, or to any other house or building, inclosure, or other place, for the purpose of prostitution, under a penalty, if the person so invited, enticed, or persuaded, or addressed for the purpose of inyiting, enticing, or persuading shall be an adult, of not more than twenty-five, dollars .for each and every .such offense, and if the person invited; enticed^ or persuaded, or addressed for the purpose of inviting, enticing, 'or persuading, be a minor, under a penalty of no more than fifty dollárs for each and every such offense. And it shall not be lawful for any prostitute or worn-, an of lewd character to invite, entice, or' persuade, or address for the purpose of- inviting,, enticing, or persuading any person or. persons from any door, window, porch, or portico of any. house or building to enter any house, or go with, accompany, or follow her to any place whatever, for the purpose of prostitution, under the like penalties herein provided for the same'disorderly conduct in the streets, avenues, roads, highways, or' alleys, public squares, open' places or inclosures.”
On August 15, 1935, Congress passed “An Act for the suppression of prostitution in the District of Columbia”; , 49 Stat.. 651, 652.. Section 1 of this.-Act broadened the scope of the offense set forth in Section 7 of the 1892 Act, -the persons covered being “any person” rather than “any .prostitute or lewd-woman”, and the- offense-was broadened to cover soliciting for the purpose of prostitution “or any other immoral or lewd purpose”. The maximum penalty was. increased from a maximum fine of- twentyrfive dollars if the person solicited were an adult or fifty dollars if the person-were, a minor to a fine of not more than $100.00 or imprisonment for not more than ninety days, or both. - In addition, the 1935 Act contained provisions for the suspension of sentences, authorising the court.to impose conditions as to such suspension, including submission to medical and mental examination, treatment, “and such other terms and conditions as the court may deem’best for the protection df the community and the punishment, control, and rehabilitation' of. the ' defendant.”, Section- 4 of the. 1935 Act provided as - follows : . . ,
- “Section 7 of the Act of .Congress, entitled ‘An Act for the -preservation of the-public peace and the protection of property.within the District,, of- Columbia’, approved July 29, Í892, is hereby repealed.’’ (Italics supplied.) .
It appears that since the passage of the 1935 Act all-' violations of. Section. 1 thereof have beep prosecuted in the name of the United States and by the United States Attorney for the District of Columbia ; and, indeed, a number of such cases have been appealed to this' court and to the Municipal Court df Appeals for the • District of Columbia, and no question of jurisdiction'-appears to have been raised until the instant ease.
Section 1 of the .1935 Act has been twice amended, the first time by 'the Act of June 9, 1948, 62 Stat.' 346, Title I, § 102. That Act was entitled “An Act to provide for the treatment of sexual psychopaths in the District of Columbia, and for other purposes.” . This 1948 Act, among'other 'things, amended thé first section of the^Act of August 15, 1935, and, as' well, specifically- amended -the 1892 Act, obviously distinguishing-between the two Acts :and treating them as separate Acts. - The second time the 1935 Act was amended was in 1953, by Public Law 85, 83d Congress,' 67 Stat. 92, 93, known as the “District of Columbia Law Enforcement Act of -1953:” This-latter Act is. particularly important to a decision of -this case-.
' 'Section 202(a)' (1) df the 1953 Act specifically - amends Sections 9(a) and 9 (b) of the 1892 Act, those being the sections dealing with indecent exposure. Then, in. Section 202(b), Congress amended.the 1935 Act so-as to increase the penalty for -solicitation. This' indicates, of course, that Congress regarded the 1935 Apt as being the operative statute against solicitation. . There was no amendment made, by the 1953 Act, to Section 18 of the 1892 Act dealing with the provisiqn that prosecution of the offense should be in the name of the District of Columbia. What Congress did in this respect is to be found in Section 211 of the 1953 Act, which directly amends Section 18 of the 1892 Act with respect to proper prosecution of the offense of disorderly conduct. Had any change from the existing practice under the 1935 Act been intended; .Congress would have so indicated. It is of no moment that the compilers of the Statutes at Large, as evidenced by their marginal notes, considered the seventh section of the Act of 1892 to be “amended” rather than “repealed.”, , If they used the word “amended” in the narrow sense, they were obviously in error as Congress specifically provided for repeal of Section 7 of that Act.
If, therefore, Section 7 was in fact repealed, as we hold it was, as distinguished from amended, it is obvious that Section 23-101, D.C.Code, 1951, applies. That section provides:
“The attorney for the District of Columbia shall bé known as the corporation counsel.
“Prosecutions for violations of all police or municipal ordinances or regulations and for violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment n,ot exceeding one year, shall be conducted in the name of the District of Columbia and by the corporation counsel or his assistants. All other criminal prosecu- , tions shall be conducted in the name , of the United States and by the attorney of the United States for the District of Columbia or his assistants.” (Emphasis supplied).
In view of. the fact- that the penalty prescribed by the 1935 Act as amended is a fine or imprisonment or both, the prosecution is to be conducted by the United States Attorney, unless the Corporation Counsel has been specifically authorized to do so. As heretofore indicated, no such specific authority has been given. .
Accordingly, w.e hold .that a prosecution for violation of Section 22-2701 of the District of Golumbia Code 1951, Supp. Ill (Section 1 of the Act of August 3,1935, as amended) should be conducted by the United States Attorney in the name of and for the benefit of the United States. .
This case will, therefore, be remanded to the Municipal Court for further proceedings not inconsistent with this opinion, with directions to deny the defendant’s motion to dismiss.
So ordered.
. D.C.Code 1951, § 23-102: “If in any case any question shall arise as to whether under section 23-101 the prosecution should be conducted by the corporation counsel or by the attorney of the United States for the District of Columbia, the presiding justice shall forthwith, either of his own motion or upon suggestion of the corporation counsel or the attorney of the United States, certify the case to the United States Court of Appeals for the District of Columbia, which court shall hear and determine the question in a summary way. In every such case the defendant or defendants shall have the right to be heard in the United States Court of Appeals for the District of Columbia. The decision of such court shall be final.”
. e. g. Flying kites, playing ball in the street, etc.
. e. g. Destroying or injuring public or private property in the District of Columbia.
. The Attorney for the District of Columbia, and the City Solicitor.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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songer_concur
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court.
Joseph RODONICH, Alex Chotowicky, Wasyl Lawro, and Harry Diduck, Plaintiffs-Appellants, Cross-Appellees, v. HOUSE WRECKERS UNION LOCAL 95 OF LABORERS’ INTERNATIONAL UNION, Laborers’ International Union of North America, John Senyshyn, individually and as President, and John Roschetski, individually and as Secretary-Treasurer of House Wreckers Union Local 95 of Laborers’ International Union of North America, Stephean McNair, Joseph Sherman, Andrew Klebetz, Albert Bender, William Nahay, Phil Chillak, Joseph Pastroski, Samuel Adams, Harold Spellman, Peter Jones, John Slan, Earl Dupree, and John Chillak, Defendants-Appellees, Cross-Appellants.
Nos. 440, 476 and 477, Dockets 86-7314, 86-7540, and 86-7542.
United States Court of Appeals, Second Circuit.
Argued Oct. 31, 1986.
Decided April 28, 1987.
See also, D.C., 627 F.Supp. 176.
Wendy E. Sloan, New York City (Burton H. Hall, Hall & Sloan, New York City, of counsel), for plaintiffs-appellants, cross-appellees.
Orrin Baird, Washington, D.C. (Robert J. Connerton, Theodore Green, Connerton, Bernstein & Katz, Washington, D.C., of counsel), for defendant-appellee, cross-appellant Laborers’ Intern. Union.
Richard Dorn, Sipser, Weinstock, Harper & Dorn, on the brief, for defendants-appellees, cross-appellants, Local 95 and individual defendants.
Before MANSFIELD, MESKILL and MINER, Circuit Judges.
Judge Mansfield died on January 7, 1987. Judges Meskill and Miner have decided this appeal in accordance with § 0.14(b) of the Rules of this Court.
MESKILL, Circuit Judge:
Four plaintiffs in this action, Joseph Rodonich, Alex Chotowieky, Wasyl Lawro and Harry Diduck, all members of defendant House Wreckers Union Local 95 (Local 95), appeal from a judgment of the United States District Court for the Southern District of New York, Cannella, J., entering a verdict after a jury trial against Local 95 and dismissing plaintiffs’ claims against Laborers’ International Union of North America (LIUNA). LIUNA, Local 95 and the individual defendants cross-appeal from the judgment.
In their complaint, plaintiffs alleged that defendants engaged in a scheme to suppress dissent within Local 95 and unlawfully disciplined them in violation of sections 101(a)(1), (2), (5), 609 and 610 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. §§ 411(a)(1), (2), (5), 529, 530 (1982) (LMRDA), section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982) (LMRA), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 (1982) (RICO), and LIUNA’s constitution.
Before trial, the district court dismissed the state law contract claim as preempted by federal labor law and granted LIUNA summary judgment on plaintiffs’ claim that LIUNA breached its constitution in violation of section 301(a) of the LMRA. See Rodonich v. House Wreckers Union Local 95 of Laborers’ International Union of North America, 624 F.Supp. 678 (S.D.N.Y.1985). The court refused, however, to grant summary judgment on the remaining counts. After a jury trial, a verdict was returned in favor of plaintiffs Rodonich, Chotowicky and Lawro against Local 95. The district court entered final judgment dismissing plaintiffs’ remaining claims against LIUNA and dismissing all claims of plaintiff Diduck. Judgment was entered in favor of plaintiffs Rodonich, Chotowicky and Lawro against Local 95 in accordance with the verdict.
We affirm the dismissal of all claims against LIUNA except those asserted by Diduck. As to Diduck’s claims, we reverse the district court’s dismissal of the complaint, hold LIUNA liable to Diduck and remand the case for further proceedings on the issue of damages. Plaintiffs do not appeal the dismissal of their RICO claims against LIUNA.
BACKGROUND
This case arises out of a political struggle between two warring union factions for control of Local 95. Plaintiffs Rodonich, Chotowicky and Lawro comprised the “Rodonich faction,” which in 1981 held three of the seven seats on Local 95’s Executive Board. Rodonich occupied the position of Secretary-Treasurer, Chotowicky was Vice President and Lawro was Recording Secretary. Plaintiff Diduck did not hold office in Local 95, but actively supported the Rodonich faction. The Rodonich faction shared power on the Executive Board with members of their rival faction, known as the “Senyshyn faction,” including several of the named individual defendants to this suit, most notably John Senyshyn, who was President of Local 95 in April 1980.
In April 1981, Local 95’s Business Manager and Chief Executive Officer, Michael Novack, resigned from office. The bitter schism that precipitated Novack’s resignation left Local 95’s Executive Board evenly balanced between the two factions. As a consequence of this resignation, political disruption within the union intensified. Acts of violence were reported. Rodonich claimed that he was assaulted by defendant Samuel Adams and several other men. In a letter dated May 25, 1981, and addressed to Senyshyn with copies to LIUNA officials, Harry Diduck reported that he was threatened by Adams. Diduck’s letter also accused Senyshyn of being responsible for a certain contractor’s paying below union scale wages and of delaying charges against Novack stemming from an earlier stabbing of a Local 95 member.
Shortly thereafter, Adams filed charges of slander against Diduck based on Di-duck’s letter to LIUNA. Adams also filed charges against Rodonich for calling him a “nigger.” Other charges against Rodonich alleged that he had failed to pay the salary of the Business Manager, the validity of whose recent election to the Executive Board Rodonich disputed. Rodonich and Chotowicky were both charged with “dishonesty” and “fraud” because Chotowicky, who believed that he was rightfully the acting President while Senyshyn temporarily occupied the position of Business Manager, had performed the President’s job of co-signing (with the Secretary-Treasurer, Rodonich) union checks. Lawro was charged with “negligence,” “incompetence” and “dishonesty” for failing to take the minutes of a union meeting.
Local 95’s charges against plaintiffs were brought before a panel of union members selected by Senyshyn. After trials held on August 24, 1981, plaintiffs were found guilty. As a result, Rodonich, Chotowicky and Lawro were removed from Local 95’s Executive Board. Diduck was fined $500 and warned that his membership in Local 95 would be revoked if he committed further offenses. Diduck’s fine was stayed pending appeal and has never been collected.
Pursuant to Article 12 of the Uniform Local Union Constitution, plaintiffs appealed to LIUNA. Plaintiffs wrote numerous letters to LIUNA officials detailing the history of the factional dispute that led to their being disciplined and alleging that they had “been disciplined for the exercise of [their] rights, as union members.” See Letter from J. Rodonich to A.E. Coia, General Secretary-Treasurer, LIUNA (Oct. 12, 1981), J.App. at 241. On January 13, 1982, LIUNA’s Eastern Hearings Panel heard plaintiffs’ appeals — first Diduck’s appeal and then those of Rodonich, Chotowicky and Lawro. All four plaintiffs were represented by counsel at these hearings. Di-duck’s counsel stressed that Diduck had been fined for statements he made in a letter to LIUNA and argued that such a fine violated the union constitution as well as Diduck’s right of free speech. Counsel for Rodonich, Chotowicky and Lawro stressed that the charges arose out of a factional dispute and involved a pattern of violence.
The decision of LIUNA’s Hearings Panel reported that “the charges are amply supported by the evidence.” This decision was approved and adopted by LIUNA’s General Executive Board on February 23, 1982. Plaintiffs filed their complaint in the Southern District of New York on August 23, 1983.
The trial in the district court was conducted in three separate phases and the jury returned three separate verdicts: (1) determining liability on LMRDA and LMRA claims, (2) determining liability on RICO claims, and (3) determining damages. After the first phase, the jury found liability on the part of Local 95, John Senyshyn, Joseph Sherman and Albert Bender on the LMRDA and LMRA claims in favor of Rodonich, Chotowicky and Lawro. It found no liability on the part of LIUNA to anyone.
After the second phase, the jury found that two of the individual defendants, Joseph Sherman and Stephean McNair, had participated in Local 95’s affairs through a pattern of racketeering activity in violation of RICO.
After a third phase, the jury awarded Rodonich, Chotowicky and Lawro compensatory damages in the amount of salary each had lost as a result of his unjust removal from office and awarded Rodonich and Lawro punitive damages against certain of the defendants on their LMRDA claims. The jury also awarded three dollars each to Rodonich, Chotowicky and Lawro on their RICO claims against Sherman and McNair.
On March 14, 1986, the court entered judgment in accordance with these verdicts and dismissed the contract claim and LMRA claim against LIUNA pursuant to its pretrial order. Shortly thereafter, Di-duck brought a motion for , judgment notwithstanding the verdict, which was denied on May 21, 1986. These appeals and cross-appeals followed.
DISCUSSION
Plaintiffs Rodonich, Chotowicky and Lawro argue that Judge Cannella improperly instructed the jury regarding LIUNA’s liability for the wrongful acts of Local 95 and the evidence needed to support an award of damages for emotional distress. Plaintiffs also argue that LIUNA is liable as a matter of law on all claims. Plaintiff Diduck argues that the district court erred in denying his motion for judgment notwithstanding the verdict. Cross-appellants argue that plaintiffs’ LMRA and LMRDA claims are barred by a six month statute of limitations. We consider each claim in turn.
A. LIUNA ’s Liability
The primary issue presented by this appeal concerns the liability of an international union when, in the course of carrying out its internal appellate function, it affirms the imposition of unlawful discipline by one of its locals upon a union member. Plaintiffs advance several legal theories to support their claim that LIUNA is liable for affirming discipline imposed on them by Local 95. First, plaintiffs contend, under common law principles of agency, that an international union is liable when it ratifies the acts of its agent, the Local, with full knowledge of those acts. Second, again under common law agency principles, plaintiffs argue that LIUNA is vicariously liable for the acts of the Local as its principal, regardless of ratification. Third, plaintiffs claim that LIUNA is directly liable as a coparticipant in the scheme to suppress dissent within Local 95. Finally, based on contract theory, plaintiffs contend that LI-UNA is liable for breaching a duty imposed by its constitution to decide all appeals fairly. We disagree and affirm the part of the judgment that so held.
1. Ratification
The success of plaintiffs’ LMRDA claims depends on proof that their retaliatory discharge from office was part of an overall scheme to suppress dissent within the union. See Cotter v. Owens, 753 F.2d 223, 230 (2d Cir.1985). Appellants hope to establish LIUNA’s liability through the common law agency theory of ratification. In response, LIUNA argues that it cannot be held liable for mere affirmance of discipline absent a showing of bad faith or fraud. See International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1113, 1129 (D.C.Cir.1972), cert. denied, 418 U.S. 904-05, 94 S.Ct. 3194, 41 L.Ed.2d 1152 (1974).
It is far from settled whether common law agency principles govern an international union’s LMRDA liability for acts of a union local. A plain reading of LMRDA’s liability and enforcement provisions reveals that Congress did not distinguish between international and local labor organizations with regard to their liability under the Act. See 29 U.S.C. §§ 412, 529 (1982).
Agency principles frequently have been applied to federal labor law generally. For example, in NLRB v. Local Union No. 46, Metallic Lathers & Reinforcing Iron Workers, 727 F.2d 234, 237 (2d Cir.1984), we found an international union liable under the National Labor Relations Act (NLRA) for ratifying the imposition of unlawful discipline through its internal appellate process. Liability under an agency theory also applies to “violation[s] of contracts ... between any ... labor organizations” under the LMRA. See 29 U.S.C. § 185(b); Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 216-17, 100 S.Ct. 410, 413-14, 62 L.Ed.2d 394 (1979). In Aguirre v. Automotive Teamsters, 633 F.2d 168, 170-74 (9th Cir.1980), the Ninth Circuit specifically applied agency theory to LMRDA claims to hold a union liable for the acts of its officers who infringed voting rights of union members. Finally, a union may be held liable under the Norris-LaGuardia Act “for the unlawful acts of ... agents” provided that there exists “clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” 29 U.S.C. § 106 (1982).
Our Metallic Lathers decision applied common law principles of agency to an unfair labor practice claim in a fact situation similar to this one — the liability of an international union for having affirmed, through the intraunion appellate process, the imposition of unlawful discipline on union members by a union local. Because such a claim can either be brought as an unfair labor practice claim under the NLRA or as a free standing LMRDA claim, see, e.g., Doty v. Sewall, 784 F.2d 1, 7 (1st Cir.1986) (recognizing an overlap between section 8(b)(1)(A) of the NLRA and sections 411 and 412 of the LMRDA); Grand Lodge of International Association of Machinists v. King, 335 F.2d 340, 346-47 (9th Cir.), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964); cf. 29 U.S.C. § 523(a) (1982), and because the policies underlying the NLRA closely parallel those underlying the LMRDA, we are persuaded that the same standards of agency should govern both types of claims.
We next consider the standard of ratification that should be applied in this case. Under general principles of common law, “ratification can only occur when the principal, having knowledge of the material facts involved in a transaction, evidences an intention to ratify it.” Breen Air Freight, Ltd. v. Air Cargo, Inc., 470 F.2d 767, 773 (2d Cir.1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973); see also Restatement of Agency 2d ¶¶ 91, 93-100. Plaintiffs in the instant case were required to prove by clear and convincing evidence that Local 95 engaged in a purposeful and deliberate attempt to suppress dissent within the union. See Newman v. Local 1101, 570 F.2d 439, 445-46 (2d Cir.1978); Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir.1973). Therefore, we hold that ratification would occur if LIUNA affirmed the discipline imposed on plaintiffs with full knowledge that it was part of an overall scheme to suppress dissent in violation of the LMRDA.
Plaintiffs contend that, based on the facts of this case, LIUNA must be held liable as a matter of law for ratifying the discipline imposed by Local 95’s trial board. We disagree. Rodonich, Chotowicky and Lawro each were disciplined for failure to fulfill their duties as union officials. Nothing on the face of these charges suggested a scheme to suppress dissent within Local 95. Instead, discipline was based on concrete violations of official duties. LIUNA’s review board was also faced with .evidence of a bitter factional dispute within Local 95. Certainly, LIUNA was not required to accept either party’s version of the events as true. We, therefore, conclude that plaintiffs’ mere allegations of unlawful discipline were insufficient to establish LIUNA's full knowledge of Local 95’s conduct as a matter of law.
Plaintiffs next attack the district court’s instruction on the issue of ratification. Objections were made at trial to the following portion of the jury charge:
The mere fact that the International had oral or written statements or letters from plaintiffs and others regarding the events occurring in Local 95 does not establish full knowledge of the International of the facts asserted in those statements and letters. These statements and letters were merely allegations of fact.
. J.App. at 612.
Plaintiffs argue that, under this instruction, because LIUNA could not be deemed to obtain knowledge of the scheme from plaintiffs’ only evidence, i.e., the oral and written statements and letters, only an outright admission by LIUNA that they knew of the scheme would suffice to establish full knowledge. Plaintiffs, therefore, complain that this instruction had the effect of directing a verdict against them. We do not agree. Judge Cannella did not. instruct the jury to discredit plaintiffs' evidence. The district court merely admonished the jury not to accept plaintiffs’ allegations at face value in determining whether LIUNA possessed full knowledge of a scheme to suppress dissent. As we have already noted, LIUNA was not required to credit any party’s version of the events when reviewing Local 95’s disciplinary action. The jury, however, remained free to consider whether the probative worth of plaintiffs’ evidence was sufficient to create an inference of fuli knowledge on the part of LIUNA. Therefore, we find no error in this portion of the district court’s charge.
Plaintiffs also objected at trial to a portion of the jury charge that insulates LIUNA from any obligation to correct wrongdoing by the Local:
The International has no affirmative obligation to act to correct the unlawful acts of its affiliated local union such as Local 95 or their officers, even though LIUNA, or the International, may have had knowledge of those unlawful acts.
You may find the International liable for the removal of the plaintiffs Rodonich, Chotowicky and Lawro if you find that the International denied plaintiffs Rodonich[,] Chotowicky and Lawro internal union appeals with full knowledge of the overall scheme to suppress the dissent in Local 95 or that the International acted and participated in such scheme.
J.App. at 611-12. We find no fault with this instruction. Judge Cannella’s charge simply makes clear that LIUNA has no independent duty to intervene in the affairs of Local 95. This is established law, see Carbon Fuel, 444 U.S. at 218-19, 100 S.Ct. at 414-15; United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 395, 42 S.Ct. 570, 577, 66 L.Ed. 975 (1922), and was correctly relayed to the jury.
2. Vicarious Liability
Plaintiffs next argue that LIUNA should be held vicariously liable as a principal for the acts of its agent, Local 95. The district court considered plaintiffs’ argument and specifically rejected it, J.App. at 56, finding that Local 95 alone had the power to impose discipline. According to the district court, Local 95 could not be considered LIUNA’s agent for purposes of imposing discipline on union members because the Local acted in its own behalf, not LIUNA’s.
In response to Judge Cannella’s ruling, plaintiffs now argue that LIUNA had exclusive power to interpret constitutional provisions that authorize discipline. LIUNA argues that plaintiffs also exercised sufficient supervisory power to render Local 95 an agent of LIUNA.
Plaintiffs’ arguments are unpersuasive. First, it is well settled that the mere exercise of supervisory powers is insufficient to render the affiliate union an agent of the international. Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 300-01, 45 S.Ct. 551, 552-53, 69 L.Ed. 963 (1925); Shimman v. Frank, 625 F.2d 80, 97-99 (6th Cir.1980); Barefoot v. International Brotherhood of Teamsters, 424 F.2d 1001, 1004 (10th Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 257 (1970); United Brotherhood of Carpenters v. NLRB, 286 F.2d 533 (D.C.Cir.1960). Second, there was no specific agency relationship between the two unions for purposes of imposing discipline as alleged. Although it is true that LIUNA has power to interpret its constitution, the power to impose discipline rests with the Local. Uniform Local Union Constitution, Arts. Ill, XII as amended Sept. 14-18, 1981; J.App. at 73. It is the Local, not LIUNA, that has power to initiate and decide disciplinary matters. Any member may bring charges against another member by filing those charges with Local 95. After a hearing before the Local Union Trial Board, a recommendation is made to the members who vote to approve or reject the recommendation. Only after membership action may an appeal be taken to LIU-NA. On appeal, LIUNA merely reviews the Local Union Trial Board’s decision without conducting a trial de novo. Because Local 95 does not act at the direction of LIUNA at any stage in the proceedings prior to appellate review, there exists no basis for finding that Local 95 was LIUNA’s agent in this disciplinary matter.
3. Co-participant Liability
Plaintiffs argued in the district court that LIUNA should be liable as a co-participant in the scheme to suppress dissent within Local 95. The jury rejected plaintiffs’ argument. On appeal, plaintiffs contend that the district court failed to instruct the jury on this theory of liability.
Judge Cannella’s charge, however, adequately presented the theory of co-participant liability to the jury.
The International may be held liable with respect to a particular claim if you find that it instigated, supported, ratified, encouraged or otherwise participated in any act committed by Local 95 or the individual defendants.
J.App. at 606 (emphasis added). The court gave a similar instruction in another portion of its charge as well. See J.App. at 612-13. Clearly, the jury was instructed that it could find LIUNA liable if LIUNA had participated in unlawful discipline. Plaintiffs’ claims to the contrary are merit-less. Likewise, plaintiffs’ argument that no reasonable jury could find that LIUNA did not participate in the scheme is without support in the record. No evidence was presented that LIUNA instigated or in any way became directly involved in a scheme to suppress dissent. We, therefore, reject plaintiffs’ claims regarding co-participant liability.
4. Breach of Union Constitution
Plaintiffs assert that, under section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, LIUNA is liable for having breached its constitution by failing to afford plaintiffs a fair hearing. In dismissing plaintiffs’ claim, Judge Cannella decided that he could not act as a “superreview board” because plaintiffs cited no specific constitutional provision alleged to have been violated. On appeal, plaintiffs now allege specific constitutional violations.
Local 95’s constitution provides that “[t]he hearing and trial shall be conducted in an orderly, fair and impartial manner and should assure the full presentation of all facts to the Trial Board____” Uniform Local Union Constitution, Art. XII, § 4; J.App. at 73. LIUNA’s constitution adopts these procedures for trials conducted by local unions. Plaintiffs argue that “LIUNA breached [its constitution] when it knowingly affirmed appellants’ discipline, imposed without a fair hearing.” Br. of Plaintiffs at 16. We reject this claim for the same reason that we reject plaintiffs’ ratification theory. There is simply no evidence to support a finding that LIUNA acted with full knowledge of any impropriety in the proceedings conducted by Local 95. Plaintiffs’ section 301 claims, therefore, must fail.
B. Plaintiff Diduck’s Claims
Diduck claims that Judge Cannella erred in his charge to the jury regarding discipline imposed by Local 95. The charges filed against Diduck stated that he had “wilfully slandered” defendant Adams in a letter addressed to Senyshyn with copies to LIUNA. According to the letter, Adams threatened Diduck with bodily harm on one occasion. Diduck also heavily criticized Senyshyn’s union activities, including Senyshyn’s failure to take action against union members who stormed Rodonich’s office.
There is no question that discipline of a union member for even libelous speech is a violation of the LMRDA. Salzhandler v. Caputo, 316 F.2d 445, 446 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963); see Petramale v. Local No. 17 of Laborers International Union, 736 F.2d 13, 18 (2d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 593, 83 L.Ed.2d 702 (1984). The only question presented here is whether Local 95 actually disciplined Di-duck. After a trial, Local 95 found Diduck “guilty” of the charges, fined him $500 and issued a “warning” that Diduck’s union membership would be revoked if he committed further misconduct. No effort was made to collect the fine.
The district court instructed the jury regarding discipline as follows:
You must determine whether this fine was enforced against Diduck. If not, he has suffered no discipline unless you find that the disciplinary proceedings were brought in bad faith and Diduck suffered injury to his free speech as a result of these proceedings.
J.App. at 614. Objections to the charge were timely made. J.App. at 630-31. Because Diduck conceded that he did not pay the fine, he argues that the instruction was tantamount to directing a verdict against him. We agree. Lack of enforcement of the fine is irrelevant. Clearly, Diduck was penalized for the assertion of protected rights. Once Local 95 rendered its decision, Diduck became a debtor of the Local. Failure to pay the fine presumably would result in further sanctions, including the possibility of expulsion from the union. Moreover, the language in Judge Cannella's instruction permitting the jury to find discipline if the proceedings were brought in bad faith and if Diduck suffered injury to his free speech did not remedy this error. Diduck should have been permitted to prove that he was disciplined merely by showing that the fine was imposed. The alternative elements of bad faith and injury to free speech are more difficult to prove and, therefore, do nothing to alleviate the prejudicial impact of the charge.
Because the imposition of a fine constituted discipline in violation of Diduck’s rights under the LMRDA, a directed verdict should be entered on remand in favor of Diduck on the .issue of liability both as against Local 95 and LIUNA. LIUNA is liable for having ratified Local 95’s action with full knowledge of its unlawful character because the charges of slander were violative of the LMRDA on their face. On remand, Diduck may seek damages for Local 95’s imposition of unlawful discipline.
C. Other Claims
In its cross-appeal, LIUNA argues that plaintiffs’ claims are time barred by a six month statute of limitations found in section 10(b) of the NLRA. LIUNA contends that DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), provides support for “borrowing” a limitations period from federal law, rather than state law, for claims brought under the LMRDA, which contains no statute of limitations. The district court rejected LIUNA’s argument and adopted a three year state statute of limitations applicable in federal civil rights actions. We agree with that decision.
In DelCostello, the Supreme Court held that the six month federal statute of limita.tions found in section 10(b) of the NLRA was the most appropriate for claims asserted under the LMRA. In so holding, the Court departed sharply from the traditional practice of borrowing limitations periods for federal statutes from state law. This departure was justified, according to the Court, “[i]n ... circumstances [where] state statutes of limitations [are] unsatisfactory vehicles for the enforcement of federal law.” 462 U.S. at 161, 103 S.Ct. .at 2289. A six year state limitations period applicable to contract actions was rejected in DelCostello. The Court reasoned that the disruptive nature of a hybrid action brought .under section 301 of the LMRA against an employer, together with a fair representation claim brought against a union, impacted directly on the finality of private settlements under the collective bargaining system. This disruption justified the adoption of the six month statute found under section 10(b) of the NLRA, which Congress established to promote stable bargaining relationships.
We have previously held that DelCostello’s reasoning should be narrowly construed. “The particularized circumstances of the hybrid section 301/duty of fair representation suit, which inevitably involve an immediate and direct impact on labor-management relations, demarcate the limits of DelCostello’s reach.” Monarch Long Beach Corp. v. Soft Drink Workers, 762 F.2d 228, 231 (2d Cir.1985), cert. denied, _ U.S. _, 106 S.Ct. 569, 88 L.Ed.2d 554 (1985). In this case, no immediate and direct impact on labor-management relations exists. The concerns for protecting the finality of private settlements are not implicated in a suit alleging infringement of union members’ rights under the LMRDA. Union democracy claims do not attack the compromise reached between a union and an employer. See Doty, 784 F.2d at 7. Such a suit does not implicate the collective bargaining process. Instead, LMRDA claims are asserted only against the union and concern disruption of internal union democracy. Any impact felt upon the collective bargaining process is, at most, tangential and certainly not of the direct nature found controlling in DelCostello. We adhere to DelCostello’s admonition, therefore, that its holding “should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action” and that it should not be interpreted “to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy.” 462 U.S. at 171, 103 S.Ct. at 2294.
Plaintiffs urge the adoption of the three year statute of limitations governing personal injury actions in New York, C.P.L.R. § 214(5), for suits arising under the LMRDA. Although personal injury actions provide a less than perfect analogy to LMRDA claims, state limitations periods for personal injury claims have been applied to federal civil rights laws, E.g., Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985). Civil rights violations bear a strong resemblance to claims asserted under the LMRDA, such as free speech, freedom of assembly and right to vote claims. The same concerns prompting the use of a three year limitations period for civil rights claims are also present in LMRDA suits. For instance, a plaintiff must be given sufficient time to discover defendant’s wrongdoing, but not so much time as to allow witnesses to disappear, memories to fade or to otherwise impair the ability of the defendant to mount a defense. We, therefore, deem New York’s personal injury statute of limitations to be the most appropriate state limitations period to govern federal LMRDA claims. Accordingly, we agree with the district court’s conclusion that plaintiffs’ suit was timely filed.
The final issue on this appeal concerns the district court’s instruction on mental distress. The court instructed the jury as follows:
Moreover, you must find that the plaintiff you are considering has proven a basis for such damages by the fair preponderance of credible evidence. The mere fact that a plaintiff may assert that he has suffered emotional or mental distress or loss of reputation is an inadequate basis as a matter of law for awarding such damages. You may not presume that the plaintiff suffered mental or emotional distress simply because their [sic] rights were violated. Rather, you must find such mental or emotional distress based upon the particular plaintiff’s physical condition or medical evidence. You are limited by the testimony as it was given during the course of the trial.
J.App. at 639-40. Objections to the charge were noted by the district court. Id. at 641-42. Plaintiffs argue that this instruction was erroneous because it prohibited an award of damages for emotional distress or injury to reputation without a finding of physical injury. While we agree that this may be the fair import of the instruction, we cannot agree that the charge was erroneous.
The qualification that claims of emotional distress be supported by a physical manifestation of injury is an appropriate safeguard against the award of excessive and speculative damages against unions. “Such awards could deplete union treasuries, thereby impairing the effectiveness of unions as collective-bargaining agents.” International Brotherhood of Electrical Workers v. Foust, 4
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Frank ARENA, Plaintiff, Appellant, v. LUCKENBACH STEAMSHIP COMPANY, Inc., et al., Defendants, Appellees.
No. 5601.
United States Court of Appeals First Circuit.
May 11, 1960.
Rehearing Denied June 10, 1960.
George P. Donovan, East Boston, Mass., for appellant.
Leo F. Glynn, Boston, Mass., for Luckenbach S. S. Co., Inc., appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This is an action brought by a longshoreman injured in the port of Boston while engaged in loading a vessel owned by the defendant. The loading operations were in the sole control of a stevedoring company, plaintiff’s employer. The plaintiff was injured when a loading board tipped and spilled rolls of paper into the hold. The complaint alleges negligence in the failure to supply a safe place to work and in supplying defective loading equipment. It also alleges unseaworthiness, again, the allegedly defective loading equipment. At the close of plaintiff’s case the court directed a verdict for the defendant. The plaintiff appeals.
There was no conflict in the testimony. On the morning in question the vessel was simultaneously loading and unloading cargo. The plaintiff was at the bottom of one of the number 2 hatch “tanks.” The hatch was serviced by two winches. The after winch was engaged in discharging canned goods, and the forward one in loading rolls of printing paper. The cargo in each instance was carried on boards. The boards for paper were 5' wide and 8' long, suspended from two slings, or lanyards, fastened on the sides at points somewhat in from the corners. The can boards were suspended from the ends. We will call these boards, for want of a better term, sideboards and end-boards, respectively. Although the record is not altogether clear, apparently for as long as any witness could remember it was customary in the port of Boston to use side-boards for loading rolls of paper of this type, and end-boards for various other purposes. There was no evidence of any previous failure. These particular rolls were about 2y2 in diameter and S' long. Five rolls, as was “the usual custom in the port of Boston,” were placed upon a board — a layer of three, and on top of that, a layer of two. Nets permanently attached to each end of the board served, when tied across one to the other, to keep the rolls from rolling off. Longitudinal slippage of the rolls was contained by the sling, or lanyards, from which the board was suspended on each side.
The loading equipment of the vessel consisted of a fixed derrick, or pole, from which two booms were suspended, one stationed inshore, and the other “offshore,” over the hatch. There was a winch, with a separate control for each boom. Movement of the cargo from shore to ship was effected by taking up on the offshore falls and slackening on the inshore. The winch was electric, with three speeds each way. Prior to the accident some thirty loads had been brought aboard without incident. Three longshoremen who were on deck at the time testified about the one in question. The first said that as the board came aboard, “it looked like as if it was tipped a little.” The second said it was “swinging a little.” According to this witness, the winchman “steadied the load on deck to take the swing out of the load. When he had it steadied he started down the hold again. He steadied it again over the hatch and then the load tipped up.” All of the rolls rolled out. There was no evidence that any equipment failed, and no one testified, hypothetically or otherwise, as to what caused the upset.
The defendant having had nothing to do with the loading of the vessel, liability depends upon proof of defective or improper equipment. The only testimony as to the winch came from the third witness, the winchman. He stated that “it was beautiful.” He added that it ran “a little faster than usual.” When asked what he meant by this he said he was referring to high speed only. He did not characterize this speed as excessive, but repeated that the winch was “beautiful.” Even if this speed could be thought to be a defect, the witness was not asked, and there was no testimony from which it could be gathered, what speed or speeds the winch had been operated in with respect to this particular load. For all that appears, high speed was used only when the board was light. Nor was there any suggestion that it was unusual for a load to swing a little or tip a little, or that the rate of speed, in high or otherwise, had been the cause of such movement. Although the burden upon a longshoreman to establish causation is not heavy, there must be some evidence that whatever might be claimed to be a defect in the vessel had some connection with the occurrence. The defendant, on this record, could not be charged simply because high speed on this winch was faster than on some others.
The plaintiff bases his attack principally upon the board. There was no evidence that this particular board was damaged or defective. Nor were its lanyards or nets. The board, with its appurtenances, continued to be used for further loading. Apparently, not even any net lines had been injured. Although no witness testified directly what caused the accident to occur, we believe it can be deduced. When the winchman was asked whether he observed anything about the load as it was coming in, he stated, “This was one thing I noticed. The net. They had three bales on the bottom and two on the top * * * This net here had three rolls on the bottom; for two nothing was on them to hold them * * * and these two bales on top they shifted on me * * * The board went up straight and down like that.” In other words, with no fastening over the top rolls, and the nets partly filling the spaces between the bottom rolls which would normally help retain them, the top rolls were free to shift, which would further unbalance the board, and accentuate the movement with the eventual result. In view of the fact that even the bottom layer of rolls came out and the nets were not found to be injured after the accident, it may well be that the nets had not been tied at all, but were simply held over the bottom rolls by the weight of the top ones until their shifting released the tension. In any event, the improper loading was not chargeable to the defendant.
The plaintiff’s contention, which is purely counsel’s suggestion, as no witness so testified, is that so-called end-boards would have prevented this accident, and that the vessel was accordingly unseawoi oiy. There are two answers to this. In the first place, if the lanyards had been at the ends instead of at the sides of the board, there would have been no protection against end-wise slipping of the rolls. The nets were there to guard against roll-offs. The board was not defective simply because the longshoremen who loaded it neglected to do so in the proper fashion. Secondly, even if it could be found that end-boards rather than side-boards should have been used, the choice of side-boards was the stevedore’s. There was no evidence of unavailability of end-boards. If anything, the record suggests the contrary. A vessel is not unseaworthy simply because the improper type of equipment was used by someone unless, also, it appears that the proper type was unavailable. In the ice cream case, of which plaintiff makes much, the waiter’s use of a knife was forced upon him by the absence of the proper tool. Ferguson v. Moore-McCormack Lines, 1956, 352 U.S. 521, 522, 77 S.Ct. 457, 1 L.Ed.2d 511.
Before concluding, we wish to speak of the pleadings. Except for an admission that the defendant was a foreign corporation doing business in Massachusetts, and an allegation of lack of knowledge as to the citizenship of the plaintiff, the defendant’s answer denied every allegation in the complaint. F.R.Civ.P. 11, 28 U.S.C.A. provides in part, “The signature of an attorney constitutes a certificate by him that he has read the pleading; [and] that to the best of his knowledge * * * and belief there is good ground to support it. * * * For a wilful violation of this rule an attorney may be subjected to an appropriate disciplinary action.” It is difficult to believe that counsel who signed this answer had good grounds to assert, among other things, that his client did not either own, operate or manage the vessel, that the plaintiff was not employed by the stevedore, and that he was not injured, or even aboard the vessel. It is a breach of counsel’s obligation to the court to file an answer creating issues that counsel does not affirmatively believe have a basis.
Judgment will enter affirming the judgment of the District Court.
. This company was named as a third party defendant, but did not participate in the appeal, and is not referred to in this opinion as a defendant.
. No witness was called who had loaded the board, or who had seen it being loaded.
. Boards are stevedore’s property. We assume, without deciding, that the obligation of seaworthiness applies to equipment such as this, if used for performing a regular ship’s function, even though not customarily ship’s property. Cf. Considine v. Black Diamond S.S. Corp., D.C.D.Mass.1958, 163 F.Supp. 107.
. In his brief plaintiff states that the nets were only 2 feet long. There is no testimony from anyone as to the length of the nets. A photograph in evidence demonstrates them to be approximately 5 feet long, even when not stretched taut. We could not say that they could not go to the top of the top layer. There was no direct testimony that they could, or could not, but the fact that the winch-man spoke of noticing that the nets were only over the bottom rolls and that the top rolls were free indicates that this was not customary.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_state
|
14
|
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".
KURECKI et al. v. BUCK.
No. 5027.
Circuit Court of Appeals, Seventh Circuit.
June 1, 1934.
Rehearing Denied June 29, 1934.
William H. Katt and James A. Donnelly, both of Chicago, Ill., for appellants.
George G. King, of Chicago, Ill., for appellee.
Before ALSCHULER, EVANS, and FITZHENRY, Circuit Judges.
FITZHENRY, Circuit Judge.
This is an appeal from the order of the District Court dismissing appellants’ petition for the allowance of a claim for a preference in the distribution of the assets of a failed national bank.
The evidence discloses the following facts: That Paul Kureeki, deceased, in his lifetime deposited certain securities in a safety deposit box in the Calumet National Bank. After his death, two of his sons were appointed administrators. The father and his son Mike had purchased securities together and it was claimed that the securities in question belonged to Mike Kureeki. A joint examination of a box was made by permission of the vice president and trust officer of the bank. Among the securities was one mortgage, the proceeds of which are involved in this hearing. Mike Kureeki and appellants both claimed ownership of the mortgage. Up-on a petition in the probate court by the administrators to determine the ownership of securities, Mike Kureeki answered. The court found that the particular mortgage belonged to the administrators. An appeal was prosecuted to the circuit court of Cook county with the same result.
Prior to the 13th of June, 1932, the mortgagor wished to pay the mortgage. He gave Ryan, attorney for Mike Kureeki, a cheek for the amount of the mortgage and Ryan called Donnelly, attorney for the administrators, to meet him on Saturday evening at the Calumet National Bank. The cheek was drawn on another bank. The purpose of the meeting was to get the proceeds of the cheek and make a’ disposition of the money in some way for the benefit of the real owner. The business was transacted at the desk of Mr. Masters, vice president and trust officer of the bank, just before closing time Saturday night. The cheek was indorsed and delivered to Masters, who was to collect it and hold the money to be paid either to Mike Kureeki or the administrators of his father’s estate, according to the order of the probate court.
The purpose for which the check was given and the nature of the fund which it represented was fully known to the bank and Masters knew the money was to be held by the trust department of the bank for the benefit of the person or persons whom the court would find entitled to' it. Several days after, there was sent to each of the attorneys a receipt and a letter concerning the money, a copy of which appears in the margin. Both of the attorneys admitted that they had received the letters inclosing the receipt for the money. It will be observed that the receipt states that the money is represented by “Certificate of Deposit #16394: of the Calumet National Bank,” then the statement of the purpose for which the money is held.
• It is fairly well established by the evidence that, without any direction from either of the attorneys, the bank cashed the cheek and then issued a certificate of deposit. The letter asks each of the attorneys to state whether the receipt “is in accordance with your understanding of the matter” and asked for a letter for the benefit of the bank’s files.
The Calumet National Bank of Chicago was closed by the Comptroller of 'the Currency, October 1, 19&1, and appellee, Buck, appointed receiver. After the final adjudication as to the ownership of the fund, when demand was made for the money, the receive: produced the certificate of deposit and delivered it. The administrators then filed their petition against the receiver for payment of the amount of the fund as a preferred claim.
Tho issues raised were submitted to the court, which heard the evidence. After a full hearing, findings of fact and conclusions of law were filed. The court held that the deposit in question was a general deposit and denied the relief prayed.
The evidence was not voluminous and consisted very largely of the testimony of Attorneys Donnelly and Ryan and of Gishuiller, the manager of the trust department of the Calumet National Bank, later an employee of the receiver. The testimony of Donnelly and Ryan clearly showed that their purpose was to preserve and protect the money collected in satisfaction of the mortgage in a safe way for the benefit of the persons to whom it might belong.
Although their testimony does not concur in the exact manner by which this was to be accomplished, in any event the check in the hands of the attorneys was indorsed to the bank for collection and, upon collection, the certificate of deposit in question was issued. The record is clear that Donnelly, representing the administrators, had said nothing about buying a certificate of deposit with the proceeds of the cheek. Ryan said that he saw the cheek and a copy of the lector sent to respective counsel by the trust department of the bank a day or so after the deposit of the check with the hank. The record is silent as to just how the certificate of deposit happened to be issued, but a very few days after, the trust officer, under the date of J une 13, 1931, wrote to each of the attorneys reciting that a certificate of deposit had been issued for the amount of the cheek and was being held by the bank for the benefit of the persons heretofore described and the request was made by the trust department for an acknowledgment of the receipt of that notice as to whether the bank correctly understood the transaction. So, while there was no evidence as to just how and when the certificate of deposit was issued, beyond its date, the fact remains that it was issued and that each of the parties who had made the deposit with the bank had notice of the fact. Neither Donnelly or Ryan protested any fact contained in the letter of acknowledgment or the receipt of the bank for the check or the manner in which it was held. This becomes material inasmuch as the evidence does not show that the agreement between the parties on Saturday night was fully completed beyond an understanding that the proceeds of the cheek would he handled in the trust department to the complete satisfaction of everybody. The difficulty with appellants’ contention that an oral contract was entered into between the hank and the parties depositing the check on the Saturday night when the deposit was made, is that the facts on which they rely as proof are insufficient. The conference was a hurried affair because it was the bank’s closing time and the evidence tends to show that no complete contract was entered into at that time.
The only question with which this court can be concerned upon review is whether there was any substantial evidence to support the findings of the trial court. As we said in U. S. v. Tyrakowski, 50 F. (2d) 766, 771:
“While realizing that the evidence is not as convincing as we might wish or as we might require if we were the trier of the facts instead of a reviewer of the trier’s facts, yet we cannot say under this record that there is no substantial evidence. * "■ * That is the test.” See authorities there cited.
12] Did the trial court correctly apply the law to the facts as it found them ? This case is similar in many respects to the case of Keyes v. Paducah (C. G. A.) Cl F.(2icl) 611, 86 A. L. R. 203, decided by the Sixth Circuit which sustains the trial court in its findings and holdings almost as aptly as if written for this case.
The decree of the District Court is affirmed.
“Calumet National Bank of Chicago
“Chicago, June 13, 1931. “Mr. James A. Donnelly, Attorney for Bernard & Walter Kureeki, Administrators of the Estate of Paul Kurecki; and
“Mr. Gerald Ryan, Attorney for Mike Kureeki, Chicago, Illinois.
“Gentlemen: This is to acknowledge receipt, for safekeeping, of the sum of $3,347.50 represented by Certificate of Deposit #16394 of the Calumet National Bank. This money is to be held by us in safekeeping to await the final decision of the Probate Court as to the ownership at the time of the death of Paul Kureeki of a mortgage for $3,250.00 and accrued interest executed by D. J. O’Brien secured by Trust Deed to Chicago Title and Trust Co. which mortgage and notes were found in the box of Mike Kureeki in the Calumet National Safe Deposit Co.
“If the final decision of the Court is that Paul Kureeki owned the same at the date of his death, we are to deliver the said sum of $3,347.50 deposited with us to Bernard & Walter Kureeki, Administrators, or their order; but if the Court should determine that the said mortgage was the property of Mike Kureeki then we are to deliver said sum, so deposited, to Mike Kureeki, or his order.
“Very truly yours,
“F. N. Gishuiller, Trust Department.”
“Calumet National Bank of Chicago “Chicago, June 13th, 1931.
“Mr. James A. Donnelly, Attorney at Law, 100 N. La Salle Street, Chicago, Illinois.
“Dear Sir: Herewith, we hand you a form of receipt for the sum of $3,347.50 deposited with this Department by Mr. Gerald Ryan, of the firm of Peden, Murphy & Ryan, 9047 Commercial Ave., Chicago, said letter setting forth the terms under which the deposit is made.
“If this is in accordance with your understanding of the matter, we shall appreciate a letter from you, so stating, that our files may be complete.
“Cover for your reply is enclosed.
“Very truly yours,
“F. N. Gishuiller, Trust Department, “Ene. “G/l”
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:
|
sc_lcdisagreement
|
A
|
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.
Sylvia BURWELL, Secretary of Health and Human Services, et al., Petitioners
v.
HOBBY LOBBY STORES, INC., et al.
Conestoga Wood Specialties Corporation et al., Petitioners
v.
Sylvia Burwell, Secretary of Health and Human Services, et al.
Nos. 13-354, 13-356.
Supreme Court of the United States
Argued March 25, 2014.
Decided June 30, 2014.
Held Invalid
26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv)
Prior Version Recognized as Unconstitutional
42 U.S.C.A. § 2000bb-2 Syllabus*
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the "Government [from] substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the Government "demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. §§ 2000bb-1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." § 2000cc-5(7)(A).
At issue here are regulations promulgated by the Department of Health and Human Services (HHS) under the Patient Protection and Affordable Care Act of 2010(ACA), which, as relevant here, requires specified employers' group health plans to furnish "preventive care and screenings" for women without "any cost sharing requirements," 42 U.S.C. § 300gg-13(a)(4). Congress did not specify what types of preventive care must be covered; it authorized the Health Resources and Services Administration, a component of HHS, to decide. Ibid. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer's plan and provide plan participants with separate payments for contraceptive services without imposing any cost-sharing requirements on the employer, its insurance plan, or its employee beneficiaries.
In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives. In No. 13-356, the District Court denied the Hahns and their company-Conestoga Wood Specialties-a preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could not "engage in religious exercise" under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity. In No. 13-354, the Greens, their children, and their companies-Hobby Lobby Stores and Mardel-were also denied a preliminary injunction, but the Tenth Circuit reversed. It held that the Greens' businesses are "persons" under RFRA, and that the corporations had established a likelihood of success on their RFRA claim because the contraceptive mandate substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the "least restrictive means" of furthering a compelling governmental interest.
Held : As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA. Pp. 2761 - 2785.
(a) RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mardel. Pp. 2761 - 2775.
(1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations. RFRA's text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA's definition of "persons," but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 2761 - 2768.
(2) HHS and the dissent make several unpersuasive arguments. Pp. 2768 - 2775.
(i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of "person," which "include[s] corporations, ... as well as individuals." 1 U.S.C. § 1. The Court has entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g.,Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017.
And HHS's concession that a nonprofit corporation can be a "person" under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; no conceivable definition of "person" includes natural persons and nonprofit corporations, but not for-profit corporations. Pp. 2768 - 2769.
(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot "exercise ... religion." They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profit-making objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the "exercise of religion" that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners' religious principles. Pp. 2769 - 2772.
(iii) Also flawed is the claim that RFRA offers no protection because it only codified pre- Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of "exercise of religion" was meant to be tied to pre- Smith interpretations of the First Amendment. Second, if RFRA's original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition of the phrase from that in First Amendment case law. Third, the pre- Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court's pre- Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. Pp. 2772 - 2774.
(3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the "beliefs" of large, publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA's protection. That disputes among the owners of corporations might arise is not a problem unique to this context. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. Courts will turn to that structure and the underlying state law in resolving disputes. Pp. 2774 - 2775.
(b) HHS's contraceptive mandate substantially burdens the exercise of religion. Pp. 2775 - 2779.
(1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere religious belief that life begins at conception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. Pp. 2775 - 2776.
(2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost of providing insurance, and therefore that dropping insurance coverage eliminates any substantial burden imposed by the mandate. HHS has never argued this and the Court does not know its position with respect to the argument. But even if the Court reached the argument, it would find it unpersuasive: It ignores the fact that the plaintiffs have religious reasons for providing health-insurance coverage for their employees, and it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Pp. 2776 - 2777.
(3) HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA's question is whether the mandate imposes a substantial burden on the objecting parties' ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624. The Court's "narrow function ... is to determine" whether the plaintiffs' asserted religious belief reflects "an honest conviction," id., at 716, 101 S.Ct. 1425, and there is no dispute here that it does. Tilton v. Richardson, 403 U.S. 672, 689, 91 S.Ct. 2091, 29 L.Ed.2d 790; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 248-249, 88 S.Ct. 1923, 20 L.Ed.2d 1060, distinguished. Pp. 2777 - 2779.
(c) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. Pp. 2779 - 2785.
(1) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 2779 - 2780.
(2) The Government has failed to satisfy RFRA's least-restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers' religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs' religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS's stated interests. Pp. 2780 - 2783.
(3) This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127, which upheld the payment of Social Security taxes despite an employer's religious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there is no less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate. Pp. 2783 - 2785.
No. 13-354, 723 F.3d 1114, affirmed; No. 13-356, 724 F.3d 377, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to all but Part III-C-1. BREYER AND KAGAN, JJ., filed a dissenting opinion.
Paul D. Clement, Washington, DC, for the private parties.
Donald B. Verrilli, Jr., Solicitor General, for the federal government.
Paul D. Clement, Michael H. McGinley, Bancroft PLLC, Washington, DC, Peter M. Dobelbower, General Counsel and Chief Legal Officer, Hobby Lobby Stores, Inc., Oklahoma City, OK, S. Kyle Duncan, Counsel of Record, Eric C. Rassbach, Luke W. Goodrich, Hannah C. Smith, Mark L. Rienzi, Lori H. Windham, Adèle Auxier Keim, The Becket Fund for Religious Liberty, Washington, DC, Joshua D. Hawley, University of Missouri, Columbia, MO, counsel for Respondents.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Ian Heath Gershengorn, Edwin S. Kneedler, Deputy Solicitors General, Joseph R. Palmore, Assistant to the Solicitor General, Mark B. Stern, Alisa B. Klein, Washington, DC, for Petitioners.
Jordan W. Lorence, Steven H. Aden, Gregory S. Baylor, Matthew S. Bowman, Alliance Defending Freedom, Washington, DC, David A. Cortman, Counsel of Record, Kevin H. Theriot, Rory T. Gray, Alliance Defending Freedom, Lawrenceville, GA, Charles W. Proctor, III, Law Offices of Proctor, Lindsay & Dixon, Chadds Ford, PA, Randall L. Wenger, Independence Law Center, Harrisburg, PA, for Petitioners Conestoga Wood Specialties Corporation et al.
Justice ALITO delivered the opinion of the Court.
We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies' owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.
In holding that the HHS mandate is unlawful, we reject HHS's argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.
Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price-as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.
Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.
In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.
As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can "opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs." Post, at 2787 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose "disadvantages ... on others" or that require "the general public [to] pick up the tab." Post, at 2787 . And we certainly do not hold or suggest that "RFRA demands accommodation of a for-profit corporation's religious beliefs no matter the impact that accommodation may have on ... thousands of women employed by Hobby Lobby." Post, at 2787.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
I
A
Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty . RFRA's enactment came three years after this Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U.S., at 408-409, 83 S.Ct. 1790. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U.S., at 210-211, 234-236, 92 S.Ct. 1526.
In Smith, however, the Court rejected "the balancing test set forth in Sherbert." 494 U.S., at 883, 110 S.Ct. 1595. Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U.S., at 875, 110 S.Ct. 1595.
This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." 494 U.S., at 888, 110 S.Ct. 1595. The Court therefore held that, under the First Amendment, "neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest." City of Boerne v. Flores, 521 U.S. 507, 514, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
Congress responded to Smith by enacting RFRA. "[L]aws [that are] 'neutral' toward religion," Congress found, "may burden religious exercise as surely as laws intended to interfere with religious exercise." 42 U.S.C. § 2000bb(a)(2); see also § 2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." § 2000bb-1(a).2 If the Government substantially burdens a person's exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government "demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." § 2000bb-1(b).3
As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency's work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U.S., at 516-517, 117 S.Ct. 2157. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because "[t]he stringent test RFRA demands" "far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith." Id., at 533-534, 117 S.Ct. 2157. See also id., at 532, 117 S.Ct. 2157.
Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq. That statute, enacted under Congress's Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson, 544 U.S. 709, 715-716, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA's definition of the "exercise of religion." See § 2000bb-2(4) (importing RLUIPA definition). Before RLUIPA, RFRA's definition made reference to the First Amendment. See § 2000bb-2(4) (1994 ed.) (defining "exercise of religion" as "the exercise of religion under the First Amendment"). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the "exercise of religion" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." § 2000cc-5(7)(A). And Congress mandated that this concept "be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution." § 2000cc-3(g).5
B
At issue in these cases are HHS regulations promulgated under the Patient Protection and Affordable Care Act of 2010(ACA), 124 Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer "a group health plan or group health insurance coverage" that provides "minimum essential coverage." 26 U.S.C. § 5000A(f)(2); §§ 4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA's group-health-plan requirements, the employer may be required to pay $100 per day for each affected "individual." §§ 4980D(a)-(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees. §§ 4980H(a), (c)(1).
Unless an exception applies, ACA requires an employer's group health plan or group-health-insurance coverage to furnish "preventive care and screenings" for women without "any cost sharing requirements." 42 U.S.C. § 300gg-13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed.Reg. 8725-8726 (2012).
In August 2011, based on the Institute's recommendations, the HRSA promulgated the Women's Preventive Services Guidelines. See id., at 8725-8726, and n. 1; online at http:// hrsa. gov/ womens guidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court's case file). The Guidelines provide that nonexempt employers are generally required to provide "coverage, without cost sharing" for "[a]ll Food and Drug Administration [ (FDA) ] approved contraceptive methods, sterilization procedures, and patient education and counseling." 77 Fed.Reg. 8725 (internal quotation marks omitted) . Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS in No. 13-354, pp. 9-10, n. 4; 6 FDA, Birth Control: Medicines to Help You.7
HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for "religious employers." 45 CFR § 147.131(a). That category encompasses "churches, their integrated auxiliaries, and conventions or associations of churches," as well as "the exclusively religious activities of any religious order." See ibid (citing 26 U.S.C. §§ 6033(a)(3)(A)(i), (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services. See http:// hrsa. gov/ womens guidelines.
In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as "eligible organizations," from the contraceptive mandate. See 45 CFR § 147.131(b); 78 Fed.Reg. 39874 (2013). An "eligible organization" means a nonprofit organization that "holds itself out as a religious organization" and "opposes providing coverage for some or all of any contraceptive services required to be covered ... on account of religious objections." 45 CFR § 147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization. § 147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer's plan and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. § 147.131(c).8 Although this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed.Reg. 39877.9
In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing "grandfathered health plans"-those that existed prior to March 23, 2010, and that have not made specified changes after that date-need not comply with many of the Act's requirements, including the contraceptive mandate. 42 U.S.C. §§ 18011(a), (e). And employers with fewer than 50 employees are not required to provide health insurance at all. 26 U.S.C. § 4980H(c)(2).
All told, the contraceptive mandate "presently does not apply to tens of millions of people." 723 F.3d 1114, 1143 (C.A.10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13-354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221.10 The count for employees working for firms that do not have to provide insurance at all because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Businesses 1.11
II
A
Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that "[t]he fetus in its earliest stages ... shares humanity with those who conceived it." 12
Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn
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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sc_issuearea
|
A
|
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.
No. 318.
Gordon et al. v. United States.
Argued January 11, 1954.
Decided February 8, 1954.
Per Curiam:
Petitioners are business partners in the sale of appliances. They were convicted under § 603 of the Defense Production Act of 1950, 64 Stat. 814, which provides that “Any person who willfully violates” regulations promulgated under the Act shall be guilty of crime. The jury was instructed that the knowledge of petitioners’ employees was chargeable to petitioners in determining petitioners’ wilfulness. Because of the instruction, the Government has confessed error. We agree, and accordingly reverse the judgment and remand the case to the District Court for retrial.
John S. Boyden argued the cause for petitioners. With him on the brief was Allen H. Tib-bals.
John R. Benney argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Olney and Beatrice Rosenberg.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Robert D. NELLIGAN and Owen B. Nelligan, Jr., partners doing business under the partnership name of The Nelligans, Appellants, v. FORD MOTOR COMPANY, a corporation, Appellee.
No. 7725.
United States Court of Appeals Fourth Circuit.
Argued Nov. 11, 1958.
Decided Jan. 5, 1959.
Myron N. Krotinger, Cleveland, Ohio, and Thomas A. Wofford, Greenville, S. C. (Mendelsohn, Krotinger & Lane, Cleveland, Ohio, on brief), for appellants.
J. D. Todd, Jr., Greenville, S. C. (Wesley M. Walker and Leatherwood, Walker, Todd & Mann, Greenville, S. C., on brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and THOMSEN, District Judge.
THOMSEN, District Judge.
This is another private antitrust action against Ford Motor Company in which a franchise dealer claims that the sales agreements and advertising agreements which he was forced to sign in order to retain his dealership violated both the Sherman Act and the Clayton Act, 15 U.S.C.A. §§ 1-7, 15 note, 12 et seq. In Miller Motors, Inc. v. Ford Motor Co., 4 Cir., 252 F.2d 441, this court held that under the evidence in that case Ford’s requirement that the dealers contribute a certain amount per car to LMDA, a nonprofit corporation organized for Lincoln-Mercury dealer advertising, did not violate the Sherman Act, and that Miller’s claim under the Clayton Act, which was based upon the required purchase of parts and accessories, was barred by limitations.
In the instant case plaintiffs are appealing from an order dismissing their amended complaint. Plaintiffs contend that the complaint sufficiently alleges a violation of the antitrust laws, in that: the sales agreements and advertising agreements taken together constituted an attempt to monopolize under sec. 2 of the Sherman Act; that the requirements that the dealers contribute $25 per car to LMDA advertising was a tying arrangement which was illegal under sec. 3 of the Clayton Act, and was an unreasonable restraint of trade under sec. 1 of the Sherman Act; and that the cancellation of plaintiffs’ sales agreements violated the antitrust laws.
In September, 1953, plaintiff partnership was formed to take over the business of a corporation which had been a Lincoln-Mercury dealer since December, 1946. The predecessor corporation assigned to plaintiffs the sales agreements and the other agreements which it had entered into with Ford, including the Lincoln-Mercury Dealer Advertising Fund Agreement.
Plaintiffs contend that these agreements contained provisions which permitted Ford “to monopolize the market for cars, parts and accessories presented by the many thousands of dealers who entered into such agreements”, in violation of sec. 2 of the Sherman Act. However, as the Supreme Court noted in United States v. E. I. Du Pont De Nemours & Co., 351 U.S. 377, 393, 76 S.Ct. 994, 1006, 100 L.Ed. 1264, the power which “automobile or soft-drink manufacturers have over their trade marked products is not the power that makes an illegal monopoly”. Plaintiffs do not allege that Ford monopolized or attempted to monopolize the market for automobiles, parts or accessories generally, but only the market represented by its own franchise dealers. And plaintiffs do not allege, as Miller did, that they were forced to purchase any parts or accessories which they did not want. Cf. D.C., 149 F.Supp. 790, at page 807; 252 F.2d 441, at page 448.
The complaint alleges that Ford’s right to terminate a dealership at will on sixty days notice, together with other provisions contained in the agreements, permitted Ford to control and dominate the business of its dealers in violation of sec. 1 of the Sherman Act, and to coerce plaintiffs and other dealers into courses and methods of conducting business which they as independent businessmen would not otherwise have pursued. Plaintiffs’ principal complaint is that they were required by Ford to contribute $25 per ear to LMDA, which spent the money principally for national TV advertising programs which plaintiffs allege were not received in the Greenville, South Carolina, area, and which “did not, in the opinion of the plaintiff, assist plaintiff in its sales as greatly as would a program of local advertising purchased by plaintiff with the same funds”. The complaint also alleges that in 1953 plaintiffs spent $37,550.82 for advertising, of which $13,300.00 was paid for LMDA advertising and the remaining $24,250.82 for local advertising.
The facts alleged in the complaint in the instant case with respect to LMDA are essentially similar to the facts proved in the Miller case, where this court said: “Even if we accept plaintiff’s argument that LMDA’s are a creation of the Ford Motor Company, organized solely to raise advertising funds for its products, the action would nevertheless fail. It is not sufficient for the plaintiff to prove a cooperative effort between Ford and LM-DA, but it must be shown that the combination has the objectionable features which the act is designed to prevent.”
Like Miller, this case is distinguishable from the GMAC case, United States v. General Motors Corp., 7 Cir., 121 F.2d 376, upon which plaintiffs strongly rely. (1) In that case the indictment charged and the , evidence showed that General Motors Corp., General Motors Sales Corp., and General Motors Acceptance Corp. conspired to restrain unreasonably interstate trade and commerce in General Motors cars, and that their purpose was to control the financing essential to the wholesale purchase and retail sale of General Motors cars. GMAC was owned by General Motors; the conspirators had identical interests: to make money for the General Motors family. In this case, however, the interests of Ford and LMDA are not identical. It is not alleged that Ford owned or controlled LMDA; it is composed of Lineoln-Mercury dealers, who are interested in promoting the sale of Lincolns and Mercurys against all other automobiles, including Fords. (2) The scheme to require GMAC financing bore no relation to the good will of General Motors or its line of cars, whereas the advertising of Lincoln and Mercury automobiles has a most important bearing on the good will of defendant and its line of cars. (3) GMAC was selling financing and was in active competition with other finance companies. Neither Ford nor LMDA is selling advertising; both of them are buying advertising. It is not alleged that Ford had any interest in the advertising agency used by LMDA except to obtain effective advertising service from it. All agencies and all media had a right to compete for the advertising purchased by LMDA. (4) General Motors required dealers to promise to use GMAC financing exclusively. Ford did not require Lineoln-Mercury dealers to use LMDA advertising exclusively or to promise to use it exclusively. (5) General Motors was reaching out to monopolize the business of financing the resale of automobiles which it manufactured. Ford was not using its economic position-as an automobile manufacturer to invade- and dominate the advertising business.
The arrangement is entirely different from the tying agreements held to be illegal per se in International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; and in Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545; See Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277; Klor’s Inc. v. Broadway-Hale Stores, 9 Cir., 255 F.2d 214; Turner, Tying Arrangements, 72: Harv.L.R. 50, 72.
No facts are alleged by plaintiffs which tend to show that the amounts which they spent on LMDA advertising restrained trade in automobiles. Miller Motors, Inc. v. Ford Motor Co., supra.
Moreover, the facts alleged' show no restraint of trade or commerce-in advertising. Some advertising agencies or advertising media may lose some-dealer advertising as a result of co-ordinated LMDA advertising; that is true-of advertising by any association. But advertising by associations does not violate the Sherman Act unless it restricts, competition or tends to create a monopoly to an extent far beyond anything alleged in the amended complaint. In addition to-their LMDA advertising, plaintiffs spent many thousands of dollars for local advertising which plaintiffs themselves selected. Except that participation in LM-DA was required by Ford, the LMDA plan differs little from other cooperative advertising plans, which are “béneficiali to the industry and to consumers”. Maple Flooring Mfrs.’ Ass’n v. United States, 268 U.S. 563, 566, 45 S.Ct. 578, 579, 69 L.Ed. 1093.
Finally, plaintiffs argue that the cancellation of plaintiffs’ sales agreements “was the result of a coercive and unlawful conspiracy resulting from plaintiffs’ protests against and unwillingness to continue to make the contributions to LMDA * * Miller made a similar argument in the district court, but abandoned it on appeal. Plaintiffs here, like Miller, refer to the facts developed by Congressional committees which studied the automobile industry in 1955 and 1956. The reports of those committees are discussed in the district court’s opinion in Miller, 149 F.Supp. at page 810-811, and in a footnote to the opinion on appeal, 252 F.2d at page 451. The Congressional committees concluded that the antitrust laws did not afford automobile dealers a remedy against inequitable and oppressive use of the manufacturers’ superior economic power, citing Judge Parker's opinion in Ford Motor Co. v. Kirkmyer Motor Co., 4 Cir., 65 F.2d 1001. Congress found it necessary to “supplement the antitrust laws of the United States” by adopting the “Automobile Dealer’s Day in Court” statute, 15 U.S.C.A. 1221 et seq. That statute does not apply in this case. We cannot sustain a complaint which does not allege with reasonable definiteness facts from which the court may infer conduct in restraint of trade of the kind prohibited by the antitrust laws, and from which an inference of public injury may reasonably be extracted. Alexander Milburn Co. v. Union Carbide & Carbon Corp., 4 Cir., 15 F.2d 678, 680; Floyd v. Gage, 4 Cir., 192 F.2d 137, 139. See Radovich v. National Football League, 352 U.S. 445, 453, 77 S.Ct. 390, 1 L.Ed.2d 456; Klor’s Inc. v. Broadway-Hale Stores, supra.
The district court did not err in granting defendant’s motion to dismiss the amended complaint.
Affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_const2
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
THOR POWER TOOL COMPANY, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 76-1476.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 7, 1976.
Decided Sept. 29, 1977.
Mark H. Berens, Chicago, Ill., for petitioner-appellant.
Crane C. Hauser, Chicago, Ill., for amicus curiae.
Scott P. Crampton, Asst. Atty. Gen., William A. Whitledge, Atty., Tax Div., Dept. of Justice, Meade Whitaker, I. R. S., Washington, D. C., for respondent-appellee.
Before TONE and WOOD, Circuit Judges, and CAMPBELL, Senior District Judge.
The Honorable William J. Campbell, Senior District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation.
TONE, Circuit Judge.
Thor Power Tool Company appéals from a decision of the United States Tax Court, 64 T.C. 154 (1975), which upheld the Commissioner’s disallowance of portions of Thor’s write-down of its closing inventory for 1964 and its 1965 addition to a reserve for bad debts. The issues presented involve the income tax treatment of “excess” inventory and the method for calculating a reasonable addition to a bad debt reserve. We affirm.
I. Inventory
A.
Thor manufactures tools and parts at three plants in its Tool Division and various rubber articles at a fourth plant in its Rubber Division. The corporation also maintains 24 sales and service branches in the United States and Canada. Inventories of parts, accessories, and completed tools are maintained at all branches and at the three Tool Division plants. Those three plants also maintain inventories of raw materials and work-in-process. The single Rubber Division plant keeps inventories of raw materials, work-in-process, and completed products. Much of the inventory consists of replacement parts and accessories.
When Thor discontinued the manufacture of tools of a particular model, it nevertheless continued to stock replacement parts and accessories for tools of that model that were still in service. Thor began amortizing its cost of inventories of replacement parts and accessories for out-of-production tools in its 1960 tax return. This was accomplished by establishing an inventory contra account on the books of the company, and crediting that account with ten percent of the value of a part or accessory for each year since the termination of production of the tool of which the part or accessory was a component. The closing inventory was then written down to reflect this account, thereby increasing the cost of goods sold and reducing the reported net income. This practice was continued in the 1961,1962,1963 tax returns, without a challenge from the Commissioner. Further additions to the account were made for the first three quarters of 1964.
In December of 1964 new management assumed the reins at Thor. As part of its preparation of the 1964 financial statements, “a complete re-evaluation of the assets and liabilities of the company” was undertaken, including “a physical inventory . at all locations . . . .” The inventory was then “priced at 1964 inventory standards . . . .” Once this was completed the management began to adjust the inventory valuation, in order to show the inventory at its “net realizable value,” as required by the standards of the accounting profession, and to price the inventory at “the lower of cost or market,” as had been Thor’s practice for income tax purposes.
Write-downs totaling about $2,750,000 were made for obsolescence and other reasons. These were not questioned by the Commissioner, because the items in question were scrapped soon after they were deleted from the 1964 closing inventory. A write-down of $245,000 was made for parts for three recent products that had not sold as well as expected. This too went unchallenged because the products were sold at lowered prices soon after the write-down.
The remaining inventory, consisting of some 44,000 items, was evaluated for the purpose of ascertaining the extent to which it too was in excess of anticipated demand. Relying on its experience with manufacturing businesses, the new management estimated future demand for these items. At two of the Tool Division plants, estimates were based on 1964 sales figures, resulting in write-downs of $744,030. Owing to the inadequacy of sales data for the other two plants, flat percentage adjustments were made to the valuations for parts, raw materials, work-in-process, and finished products in the physical inventory, resulting in write-downs of $160,832. The $22,090 credit which the old management had entered in the inventory contra account for the first three quarters of 1964, see note 3, supra, was also subtracted from closing inventory.
These last three adjustments were disallowed by the Commissioner, as not “clearly reflecting the income” for 1964. The Tax Court upheld the Commissioner, on the ground that Thor’s write-down of excess inventory was not permitted by the Treasury Regulations.
B.
Section 446 of the Internal Revenue Code, 26 U.S.C. § 446, provides that taxes shall be computed in accordance with the taxpayer’s usual method of accounting, unless that method does not clearly reflect income. The taxpayer’s method of accounting is thus given preference. Lincoln Electric Co. v. Commissioner, 444 F.2d 491, 494 (6th Cir. 1971); Photo-Sonics, Inc. v. Commissioner, 357 F.2d 656, 658 n. 1 (9th Cir. 1966). If, however, in the opinion of the Commissioner, that method does not clearly reflect income, the Commissioner may require that another method be used. Brown v. Helvering, 291 U.S. 193, 203, 54 S.Ct. 356, 78 L.Ed. 725 (1934); Bangor Pun-ta Operations, Inc. v. United States, 466 F.2d 930, 935 (7th Cir. 1972). The Commissioner possesses “broad powers in determining whether accounting methods used by a taxpayer clearly reflect income.” Commissioner v. Hansen, 360 U.S. 446, 467, 79 S.Ct. 1270, 1282, 3 L.Ed.2d 1360 (1959).
The Commissioner’s discretion is, if anything, greater with respect to inventory accounting. Waukesha Motor Co. v. United States, 322 F.Supp. 752, 768 (E.D. Wis.1971). Section 471, 26 U.S.C. § 471, provides:
“Whenever in the opinion of the Secretary or his delegate the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer on such basis as the Secretary or his delegate may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income.”
The statute thus sets up a two-part standard on which the Secretary or his delegate, the Commissioner, is to act: the taxpayer’s inventory method must both conform closely to the relevant “best accounting practices” and clearly reflect income. These two are usually linked, however, because an accounting method which “reflects the consistent application of generally accepted accounting principles in a particular trade or business . . . will ordinarily be regarded as clearly reflecting income . . Treas.Reg. § 1.446-l(a)(2). The same principle was applied to inventory accounting in a sentence which appeared in the regulations until 1973:
“ . . Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books . [unless] the method used does not clearly reflect income, [in which case] the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.”
“An inventory that can be used under the best accounting practice in a balance sheet showing the financial position of the taxpayer can, as a general rule, be regarded as clearly reflecting his income.”
Treas.Reg. § 1.471-2(b). See also Commissioner v. Joseph E. Seagram & Sons, Inc., 394 F.2d 738, 742-743 (2d Cir. 1968).
As the words “ordinarily” and “as a general rule,” and the two-part standard itself, suggest, however, there can be circumstances in which the best accounting practice does not clearly reflect income. Thus the accounting profession’s indorsement of a practice as “the best accounting practice,” even if accepted by the Commissioner, does not require him to determine that the practice clearly reflects taxable income. Schlude v. Commissioner, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963); American Automobile Association v. United States, 367 U.S. 687, 693, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961). This is because the goals of balance-sheet and income-tax accounting are not identical. Mr. Justice Clark, in American Automobile Association v. United States, supra, speaking of the accounting system before the Court, said that it “presents a rather accurate image of the total financial structure, but fails to respect the criteria of annual tax accounting and may be rejected by the Commissioner.” 367 U.S. at 692, 81 S.Ct. at 1730. The criteria referred to were stated by Mr. Justice Brandéis in Lucas v. Kansas City Structural Steel Co., 281 U.S. 264, 268, 50 S.Ct. 263, 265, 74 L.Ed. 848 (1930):
“The Federal income tax system is based upon an annual accounting period. This requires that gains or losses be accounted for in the year in which they are realized. The purpose of the inventories is to assign to each period its profits and losses.”
Whether a given method of accounting clearly reflects income is a question of fact. Artnell Co. v. Commissioner, 400 F.2d 981, 983-985 (7th Cir. 1968). As the Supreme Court has stated, it is not our role, in reviewing the Commissioner’s exercise of his discretion, “to weigh and determine the relative merits of systems of accounting.” Brown v. Helvering, supra, 291 U.S. at 204-205, 54 S.Ct. at 361. Thus, in order to overturn the Commissioner’s disallowance, the taxpayer must show that the Commissioner’s act was “plainly arbitrary.” Lucas v. Kansas City Structural Steel Co., supra, 281 U.S. at 271, 50 S.Ct. 263; Bangor Punta Operations, Inc. v. United States, supra, 466 F.2d at 935.
C.
The Tax Court held in this case that under § 471 of the Internal Revenue Code of 1954 the Secretary is to prescribe the methods by which inventories are to be taken, and that the Treasury Regulations set forth those methods. While the court found that Thor’s write-downs of excess inventory constituted a “best accounting practice” within the terms of the statute, it also held, without elaboration, that Thor had failed to establish that its inventory accounting clearly reflected its 1964 income, thus falling outside the general language of the regulations. The Tax Court therefore required Thor to demonstrate that its method satisfied one of the specific regulations. Because the regulations did not authorize Thor’s treatment of its “excess inventory,” the court upheld the Commissioner. Thor argues that the Tax Court erred in not allowing it to take advantage of a “presumption” that best accounting practice will clearly reflect income. Thor contends this was created by the sentence formerly included in Treas.Reg. § 1.471-2(b). See text at note 11, supra. Thor also argues that the court erred in requiring it to demonstrate that its inventory accounting was explicitly authorized by the regulations, and in holding that the regulations did not authorize the method used.
The Tax Court’s finding that Thor’s treatment of inventory for 1964 conformed to best accounting practice is not clearly erroneous and is not seriously challenged by the Commissioner. The remaining issues relate to whether that treatment most clearly reflected income and can best be discussed in the following sequence: (1) Was Thor’s treatment authorized by specific regulations? (2) Was it authorized by general regulations? (3) If it was neither authorized nor forbidden by any regulations, and the Commissioner nevertheless was required to determine whether it clearly reflected income, did he abuse his discretion in determining that it did not? We answer these questions, in the negative and then go on to hold, see (4),' infra, that the Commissioner did not abuse his discretion in determining that inventory which was not yet scrapped could not be written off for tax purposes.
(1)
We uphold the Tax Court’s determination that Thor’s write-downs of excess inventory did not fall within the specific regulations. Treasury Regulation § 1.471-2(c) permits the taxpayer to use special valuation procedures for inventory goods which the taxpayer proves are “unsalable at normal prices . . . because of damage, imperfections, shop wear, changes of style, odd or broken lots, or other similar causes . . . .” Thor failed to carry its burden of proving that its excess parts and accessories were within the descriptive phrase. E. W. Bliss Co. v. United States, 224 F.Supp. 374, 378 n. 1 (N.D.Ohio 1963), aff’d on the opinion below, 351 F.2d 449 (6th Cir. 1965). We accept the view of the Commissioner and the Tax Court that the words “other similar causes” do not extend the coverage of the regulation to units which, in management’s opinion, are “excess.” As the Tax Court observed, excess inventory is not distinguishable from other units of inventory. All the tool parts and accessories were in essentially the same condition — they were commingled and interchangeable. See Lucas v. Kansas City Structural Steel Co., supra, 281 U.S. at 270-271, 50 S.Ct. 263. See also Cleveland Automobile Co. v. United States, 70 F.2d 365, 368-369 (6th Cir.), cert. denied, 293 U.S. 563, 55 S.Ct. 88, 79 L.Ed. 663 (1934). Moreover, at least with respect to the finished products, Thor did not meet the valuation requirements of this regulation. No “actual offering” at below “normal prices” was made within 30 days of the inventory, and therefore no bona fide selling price could be calculated. Thor cannot be permitted to do what the Sixth Circuit forbade in Cleveland Automobile Co. v. United States, supra, viz., 70 F.2d at 369. See also John L. Ashe, Inc. v. Commissioner, 214 F.2d 13, 15 (5th Cir. 1954).
“by a consideration of all factors then known and those later discovered . thus substitute for the actual selling price required by the regulation a suppositi-tious selling price which the Commissioner and the court must accept because it conforms to good accounting practice.”
Nor does the excess inventory come within Treas.Reg. § 1.471-4. As noted above, the units of excess inventory are “normal” goods, unlike the custom-built presses involved in the Bliss case, on which Thor chiefly relies. The fact that they may be in excess of Thor’s future needs is not an exceptional circumstance permitting their market valuation to be set at other than their replacement cost. Knapp King-Size Corp. v. United States, 527 F.2d 1392,1399-MOO (Ct.Cl.1975); D. Loveman & Son Export Corp. v. Commissioner, 34 T.C. 776 (I960), aff’d on opinion below, 296 F.2d 732 (6th Cir. 1961), cert. denied, 369 U.S. 860, 82 S.Ct. 950, 8 L.Ed.2d 18 (1962). Thor’s own chief executive officer stated that “any business which is involved in the manufacture and sale of products inevitably must have excess inventory,” that this was particularly true in “the kind of business that Thor was in . which involves a very high percentage of service parts and accessories,” and that many manufacturing costs are “independent of quantity.” Furthermore, a senior member of a leading accounting firm who was called as an expert by Thor testified that “most corporations in that type of business do carry a fairly good inventory in terms of quantities and diversified parts for most of their models . . .’’ Thus, in Thor’s business it was considered wise to produce in advance all the parts that were expected to be sold over several succeeding years. Of necessity, these parts were then carried in inventory. Therefore, we cannot say that the Tax Court erred in holding that the accumulation of excess inventory is not an extraordinary circumstance justifying valuation of inventory under Treas.Reg. § l,471-4(b) in a manufacturing business such as Thor’s, with its extensive inventory accumulated for service and repair purposes.
(2)
As we have noted, the regulation dealing with accounting practices generally, Treas.Reg. § 1.446-l(a)(2), and the former provision in the regulation dealing with inventory, Treas.Reg. § 1.471-2(b), simply provide that the best accounting practice will ordinarily produce a result that most clearly reflects income. Thor contends that these provisions established a presumption in its favor. The weakness in this argument is exposed, however, by the sentence in the latter regulation which immediately precedes the sentence on which Thor relies. That preceding sentence is as follows:
“In order to clearly reflect income, the inventory practice of a taxpayer should be consistent from year to year, and greater weight is to be given to consistency than to any particular method of inventorying or basis of valuation so long as the method or basis used is in accord with sections 1.471-1 through 1.471-11.”
The Tax Court, although it did not reach the related issue of internal inconsistency during 1964, see note 12, supra, did infer that the excess inventory Thor attempted
to write off in 1964 had been accumulated “over a period of several years.” This inference was appropriate, in view of the fact that the merger with Stewart-Warner was called off in part because Thor’s inventory valuation was excessive, see note 4, supra, and the fact that the new management adopted a valuation method which resulted in overall write-downs of nearly $4 million in 1964, as compared with a small fraction of that amount in the preceding years. As the Tax Court implied in questioning an expert witness called by Thor, this large discrepancy was enough to indicate that consistency was lacking. Hence if any “presumption” was created by the regulations, it was dissipated by this lack of consistency. Inventory accounting for income tax purposes must serve the ultimate goal of matching costs and revenues so the profit or loss of a particular year is accurately reflected. United States Cartridge Co. v. United States, 284 U.S. 511, 520, 52 S.Ct. 243, 76 L.Ed. 431 (1932); Photo-Sonics, Inc. v. Commissioner, supra, 357 F.2d at 657. Thus Thor had the burden of proving before the Tax Court that its treatment of inventory more clearly reflected income than did the Commissioner’s. Peterson Produce Co. v. United States, 205 F.Supp. 229, 241 (W.D.Ark.1962), aff’d, 313 F.2d 609 (8th Cir. 1963).
(3)
The Tax Court’s finding that Thor did not prove its 1964 income to have been clearly reflected was not clearly erroneous. Cf. Resnik v. Commissioner, 555 F.2d 634, 636 (7th Cir. 1977). Thor’s argument to the contrary is not supported by the expert testimony it adduced. The highly qualified members of the accounting profession Thor called as experts did not testify that its 1964 income had been clearly reflected in its tax return, or that the accounting method used was necessary in order to state the 1964 income. Thor’s independent auditor (who did not become such until 1970) testified merely that his analysis of Thor’s 1964-1971 inventory reserves and results of operations demonstrated that Thor’s write-offs of “excess inventory” were not excessive. Neither his testimony nor that of the other experts compelled a finding that the Commissioner had abused his wide discretion.
(4)
Inventory valuation under the lower-of-cost-or-market method adopted by Thor is “a limited exception to the principle of annual accounting.” Space Controls, Inc. v. Commissioner, 322 F.2d 144, 148 (5th Cir. 1963). In conceding that exception, however, the Commissioner has not abandoned completely the rules that require realization. Thus, the Commissioner requires taxpayers to prove “closed transactions or identifiable events” as a basis for inventory valuations, in order to reduce their opportunities to determine unilaterally how much profit or loss to report in any given year. This is the purpose of Treas.Regs. §§ 1.471-2(c) and 1.471-4(b), which require the taxpayer to offer evidence of valuation, such as discount sales or contract cancellations. Accounting principles may well require that reserves be maintained to reflect declines in value of goods held in inventory, despite the absence of such “identifiable events.” But, as Mr. Justice Brandéis observed in Brown v. Helvering, supra, 291 U.S. at 201-202, 54 S.Ct. at 360:
“Only a few reserves voluntarily established as a matter of conservative accounting are authorized by the Revenue Acts. . . . Many reserves set up by prudent business men are not allowable as deductions.”
See also American Can Co. v. Bowers, 35 F.2d 832, 835 (2d Cir. 1929), cert. denied, 281 U.S. 736, 50 S.Ct. 249, 74 L.Ed. 1151 (1930). See generally United States v. American Can Co., 280 U.S. 412, 419, 50 S.Ct. 177, 74 L.Ed. 518 (1930); Lucas v. American Code Co., 280 U.S. 445, 452, 50 S.Ct. 202, 74 L.Ed. 538 (1930). In exercising his broad discretion under § 471, the Commissioner may require that the losses on excess inventory actually be realized, e. g., through scrapping, before they may be subtracted from sales. That is apparently what he required in this case, as is demonstrated by his allowance of the $245,000 write-down for excess inventories of three products that Thor actually sold off at lower prices. Accordingly, we affirm the judgment of the Tax Court with respect to the inventory valuation issue.
II. Bad Debt Reserve The second issue before us involves Thor’s 1965 addition to its reserve for bad debts. At the close of 1965 the collectibility of all accounts receivable was estimated by the Thor personnel most familiar with each account and their estimates were reviewed by three levels of management. All inter-company accounts were treated as fully collectible. A 100 percent reserve was established for the two Rubber Division accounts determined to be wholly uncollectible, and a one percent reserve was established for the remaining receivables in that division. The credit clerks in the Tool Division evaluated each 90-day-old account of over $100, and made an individual determination as to its collectibility. Again a 100 percent reserve was set aside for those accounts which were considered wholly uncollectible. The dollar ratio of uncollectible accounts to total over-$100 accounts was then applied to the 90-day-old accounts with a balance of under $100, to determine the dollar reserve to be set aside on these smaller accounts. Flat two percent reserves were set aside for all other 90-day-old accounts and all accounts between 30 and 90 days past due. A one percent reserve was established for all accounts less than 30 days old.
These computations resulted in a total addition to the bad debt reserve, i. e., a total deduction from income, of $135,150. The Commissioner, however, recomputed what he considered to be “a reasonable addition” to the reserve, by applying the six-year moving average, or Black Motor formula to the 1965 accounts receivable. He divided the total of accounts written off by Thor during the tax year in question and the five preceding years by the total of year-end receivables for all six years. The resulting percentage was then applied to the 1965 year-end receivables, and the $74,-790.80 by which Thor’s claimed deduction exceeded the product of this calculation was disallowed.
Reasonable additions to a reserve for bad debts may be deducted pursuant to § 166(c) of the Internal Revenue Code of 1954. As the Code makes clear, the Commissioner is to exercise his discretion regarding the reasonableness of any particular addition. In order to overturn the Commissioner's disallowance, therefore, the taxpayer must show that the Commissioner has abused his discretion. Calavo, Inc. v. Commissioner, 304 F.2d 650, 653-654 (9th Cir. 1962). This is a “heavy burden.” Consolidated-Hammer Dry Plate & Film Co. v. Commissioner, 317 F.2d 829, 834 (7th Cir. 1963). As we have stated before, the issue thus presented “is whether the Commissioner’s view is reasonable.” The First National Bank of Chicago v. Commissioner, 546 F.2d 759, 761 (7th Cir. 1976), cert. denied, 431 U.S. 915, 97 S.Ct. 2176, 53 L.Ed.2d 225 (1977); S. W. Coe & Co. v. Dallman, 216 F.2d 566, 569 (7th Cir. 1954). If it is, the inquiry is ended. We agree with the Tax Court that the Commissioner’s method of determining the reserve for bad debts, which gave preference to experience over estimates, was reasonable.
AFFIRMED.
. Because the extensive write-downs taken for 1964, see text, infra, resulted in an operating loss for that year, part of which was carried back to 1963, the tax deficiency resulting from the Commissioner’s disallowance was for 1963. The bad debt reserve issue relates to the taxes for 1965.
. The Tax Court observed that inventories of undetermined size were also maintained by Thor’s distributors and several major customers. None of those inventories are involved in this case.
. A total of $152,117 was credited to the inventory contra account, and hence subtracted from net income, during 1960-63. Another $22,090 was credited to the account during the first three quarters of 1964, for subtraction at the close of that year.
. A proposed merger of Thor into Stewart-Warner Corp. fell through in early December 1964, apparently because an investigation and audit convinced Stewart-Wamer that Thor’s assets were overstated. The purchase agreement between the two companies was rescinded by mutual agreement at that time, and Stewart-Wamer agreed to provide management assistance to Thor. Accordingly, a Stewart-Warner employee assumed the presidency of Thor on December 14, 1964.
. All parts of tools which had never been offered for sale and parts for which there had been no demand during 1964 were considered to be “obsolete.”
. The gross usable inventory at these plants was reduced as follows:
(1) Items not in excess of 12 months’ anticipated demand were not written down.
(2) Items in excess of 12 months’ anticipated demand but not in excess of 18 months’ anticipated demand were written down 50 percent.
(3) Items in excess of 18 months’ anticipated demand but not in excess of 24 months’ anticipated demand were written down 75 percent.
(4) Items in excess of 24 months’ anticipated demand were written off completely.
. Inventory was reduced by: (1) five percent for tool parts and motor parts at the third plant; (2) ten percent for raw materials, manuals and name plates, and work-in-process at this plant; (3) fifty percent for hardware at this plant; and (4) ten percent for raw materials, work-in-process, and finished goods at the fourth plant.
. The statutory notice of deficiency received by Thor initially indicated a disallowance of $1,079,069, which was the total credit balance in Thor’s inventory contra account at the close of 1964. This figure was derived by adding the above described credits to the account taken during 1964, which totaled $926,952, to the year-end 1973 account credit balance of $152,-117.
The credit balance in the inventory contra account at the end of each year was reflected on Thor’s income tax return for that year as a reduction of closing inventory. Thus, only the net addition to the account during any particular taxable year increased Thor’s cost of goods sold and reduced its taxable income for that year. Inasmuch as the Commissioner was only challenging Thor’s 1964 return, yet the deficiency notice also included the 1964 opening balance, the Commissioner conceded before the Tax Court that only the credits totaling $926,-952 were at issue. The Commissioner did not, however, concede the propriety of the methods by which the 1964 opening account credit balance was obtained. We express no views on this.
. 26 U.S.C. § 446:
. Treas.Reg. § 1.446-l(a)(2) provides, inter alia, that “no method of accounting is acceptable unless, in the opinion of the Commissioner, it clearly reflects income.”
. In 1973 this sentence was deleted by an amendment which the Tax Court properly held inapplicable to the case at bar. That amendment also added the requirement that accounting methods be “consistent with” the regulations to Treas.Reg. § 1.446 — l(c)(l)(ii). See T.D. 7285 (approved Sept. 13, 1973), 1973-2 Cum. Bull. 163.
. The Tax Court therefore did not reach the Commissioner’s alternative arguments, viz., that Thor’s new inventory valuation procedures constituted a change in its method of accounting, without the Commissioner’s permission, and was therefore impermissible, or that Thor’s 1963 income was not clearly reflected because it failed to revalue its 1964 opening inventory in accordance with the methods used to value its closing inventory.
. We assume that if a particular situation is not covered by a general or specific regulation, the Commissioner would nevertheless be obligated to apply the two-part standard to the facts of that case. Section 471, in speaking of the individual taxpayer, suggests as much.
. Treasury Regulation § 1.471-2(c) provides that unsalable goods “should be valued at bona fide selling prices less direct cost of disposition . . . . Bona fide selling price means actual offering of goods during a period ending not later than 30 days after inventory date.”
. This regulation governs inventories valued at the lower of cost or market, as was Thor’s. Subsection (a) provides the general definition of “market,” which applies “[u]nder ordinary circumstances and for normal goods in an inventory . . . Subsection (b) establishes procedures for inventory valuation “[w]here no open market exists or where quotations are nominal, due to inactive market conditions . . . .” In such circumstances “the taxpayer must use such evidence of a fair market price at the date or dates nearest the inventory as may be available, such as specific purchases or sales ... or compensation paid for cancellation of contracts . . . .”
. As the American Institute of Certified Public Accountants observed in a comment it prepared on proposed amendments to the inventory regulations under § 471, “the cost of producing additional parts, in the event that actual future need is greater than presently estimated, would be prohibitive.”
. Our conclusion is consistent with the AIC-PA’s acknowledgement in its statement on proposed inventory regulations, see note 16, supra, that “the problem of determining appropriate cost for inventory quantities in excess of prospective demand” is “[a]n important valuation matter not covered” by the present regulations.
. Compare, as to obsolete goods, C-O-Two Fire Equipment Co. v. Commissioner, 219 F.2d 57 (3d Cir. 1955). The distinction is understandable in light of the fact that the regulations specifically allow deductions for obsolete property. See United States Cartridge Co. v. United States, 284 U.S. 511, 516-520, 52 S.Ct. 243, 76 L.Ed. 431 (1932).
. The procedure is described in Black Motor Co., 14 B.T.A. 300 (1940), aff'd on other grounds, 125 F.2d 977 (6th Cir. 1942).
. 26 U.S.C. § 166(c) provides:
“Reserve for
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_appnatpr
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Max J. KUNEY, Jr., and Constance K. Kuney, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 24506.
United States Court of Appeals, Ninth Circuit.
Sept. 3, 1971.
Butler & Lukins, Spokane, Wash., for appellants.
Lee A. Jackson, Thomas L. Stapleton, Stephen H. Futzelman, Dept, of Justice, Johnnie M. Walters, Asst. Atty. Gen., W. Forbes Ramsey, Washington, D. C., for appellee.
Before MERRILL and KILKENNY, Circuit Judges, and BELLONI, District Judge.
MERRILL, Circuit Judge:
Appellants seek to recover taxes that they allege were illegally collected for the tax years 1958 through 1963. This suit for recovery was brought following denial of their claims for refund. Judgment of the District Court was in favor of the United States, and this appeal followed.
Prior to 1952, taxpayer Kuney, Junior, and his father were engaged as partners in the heavy construction business in the State of Washington. In 1952 interests in the family partnership were transferred by taxpayer and his father to trusts for the benefit of the minor children of each trustor, pursuant to § 704(e) of the Internal Revenue Code of 1954, 26 U.S.C. § 704(e), dealing with family partnerships. The following year the operating business was transferred to a corporation controlled by taxpayer and his father, with the partnership retaining only the business assets — machinery, equipment, land and buildings — which were rented to the corporation. Partnership income thereafter was limited to the rentals received from the corporation.
The family partnership and both trusts were the subject of an earlier action for refund involving the tax years 1952-1954, and the opinion of this court in Kuney v. Frank, 308 F.2d 719 (9th Cir. 1962), fully discusses the facts respecting the relationship between the corporation, the partnership, the trustees and the trust estates. In that case, as well as in the present one, the question was whether the trustee could be recognized as partner for income tax purposes. ****In the earlier case we concluded :
“We think it apparent that the two Kuneys, as individuals rather than trustees, did, in fact, have complete control of the income and assets of the trusts — of whether they would receive any income, and if so, how much, and of the nature and value of the assets.” 308 F.2d at 723.
Accordingly, we held that the trustees could not be recognized as partners and that the partnership income was taxable in full to the trustors.
The issue here presented is whether the same result must follow as to the taxable years here in question. The District Court held that it must and that the earlier case was not distinguishable from the instant case. The court stated:
“The trust instruments involved here have not changed from those before the Circuit Court. They still contain language such that the trustees can do nearly anything they wish without control by anyone. The agreements are in substance agreements to do whatever they want.”
But the power vested in the trustee by the trust instrument is not determinative. The trustee is the donee, and it is the power and control retained by the donor that is crucial. The question, under the regulations (footnote 3), is “whether the trustee in a fiduciary capacity has become the real owner of the partnership interest.” And this will depend on whether he “actively represents and protects the interests of the beneficiaries in accordance with the obligations of a fiduciary and does not subordinate such interests to the interests of the grantor.”
The focus, then, is not alone on the extent of the trustee’s powers under the trust instrument, but also on how the trustee has exercised those powers. See Ballou v. United States, 370 F.2d 659 (6th Cir. 1966), cert. denied 388 U.S. 911, 87 S.Ct. 2114, 18 L.Ed.2d 1349 (1967); 6 Mertens, Law of Federal Income Taxation § 35.11; see also Pflugradt v. United States, 310 F.2d 412 (7th Cir. 1962); compare Sanford H. Hartman, 43 T.C. 105 (1964), with Henry S. Reddig, 30 T.C. 1382 (1958).
It is clear that in this respect the facts of this case differ from the facts before us in the earlier case. From the opinion of the District Court it is apparent that many of the practices of which we had been critical ceased during the taxable years here in question.
The United States contends that since the corporation is the sole source of partnership income and the grantors control the corporation, it follows as matter of law that the grantors have retained incidents of ownership and control sufficient to preclude the trustees from ownership of anything of real value. We cannot agree. Again, it must depend on whether the trustees, in dealing with the corporation, have subordinated their fiduciary concerns to those of the corporation.
We conclude that the matter must be remanded for findings of fact respecting the manner in which the taxpayer’s father, as trustee, has, during these taxable years, represented and protected the interests of the beneficiaries and whether, in the light of these facts, he has, in his fiduciary capacity, become the real owner of the partnership interest.
A different question is presented as to income from “loan accounts.” Under the agreement in effect during the taxable years here in question, rental income received by the partnership from the corporation in excess of amounts needed to purchase new equipment was not held in the partnership but was credited to the partners in “loan accounts,” maintained by the corporation in the names of the respective partners, upon which the partners could draw at any time. Interest was paid by the corporation upon each of these accounts until drawn down by the partner. The loan accounts involved here were maintained in the names of the beneficiaries themselves, not in the name of the trust or the trustee. The accounts were at all times under the control of the beneficiaries, who could, and to some extent did, draw upon them at any time. No one else had power to reach the funds.
The United States contends that, since the funds were available for the use of the corporation until drawn down, they were for all practical purposes under the control of the corporation and thus were not “owned” by the beneficiaries. The District Court agreed and held that all interest paid by the corporation upon the loan accounts was income of the grantor rather than of the trust beneficiaries.
We cannot agree. The sums involved were paid to the beneficiaries as effectively as though they had been deposited to their credit in a bank. That a debt resulted with the funds made available for the use of the debtor can hardly affect the question of ownership of the chose or of the interest paid.
Upon this aspect of the case, judgment is reversed.
Upon the major question of ownership for tax purposes of the trust corpus, the matter is remanded for further proceedings.
. § 704(e) (1) provides:
“Recognition of interest created by purchase or gift. — A person shall be recognized as a partner for purposes of this subtitle if he owns a capital interest in a partnership in which capital is a material income-producing factor, whether or not such interest was derived by purchase or gift from any other person.”
. Only the trust established by Kuney, Junior, is before us in the present case.
. Bearing on this question, 26 C.F.R. § 1.704-l(e) (iii), provides in part:
“A donee or purchaser of a capital interest in a partnership is not recognized as a partner under the principles of section 704(e) (1) unless such interest is acquired in a bona fide transaction, not a mere sham for tax avoidance or evasion purposes, and the donee or purchaser is the real owner of such interest. To be recognized, a transfer must vest dominion and control of the partnership interest in the transferee.
The existence of such dominion and control in the donee is to be determined from all the facts and circumstances. A transfer is not recognized if the transferor retains such incidents of ownership that the transferee has not acquired full and complete ownership of the partnership interest. Transactions between members of a family will be closely scrutinized, and the circumstances, not only at the time of the purported transfer but also during the periods preceding and following it, will be taken into consideration in determining the bona fides or lack of bona fides of the purported gift or sale.”
§ 1.704(e) (vii) provides in part:
“A trustee may be recognized as a partner for income tax purposes under the principles relating to family partnerships generally as applied to the particular facts of the trust-partnership arrangement. A trustee who is unrelated to and independent of the grantor, and who participates as a partner and receives distribution of the income distributable to the trust, will ordinarily be recognized as the legal owner of the partnership interest which he holds in trust unless the grantor has retained controls inconsistent with such ownership. However, if the grantor is the trustee, or if the trustee is amenable to the will of the grantor, the provisions of the trust instrument (particularly as to whether the trustee is subject to the responsibilities of a fiduciary), the provisions of the partnership agreement, and the conduct of the parties must all be taken into account in determining whether the trustee in a fiduciary capacity has become the real owner of the partnership interest. Where the grantor (or person amenable to his will) is the trustee, the trust may be recognized as a partner only if the grantor (or such other person) in his participation in the affairs of the partnership actively represents and protects the interests of the beneficiaries in accordance with the obligations of a fiduciary and does not subordinate such interests to the interests of the grantor.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_attyfee
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on attorneys' fees 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".
UNITED STATES of America, Plaintiff-Appellee, v. John VALENTI and Charles Corces, Defendants, Times Publishing Company, Intervenor-Appellant. In re TIMES PUBLISHING COMPANY, Petitioner.
Nos. 92-3125, 92-3128.
United States Court of Appeals, Eleventh Circuit.
March 17, 1993.
George K. Rahdert, Rahdert & Anderson, St. Petersburg, FL, for interve-nor-appellant.
Vicki Johnson, Asst. U.S. Atty., Tampa, FL, for plaintiff-appellee.
Before FAY and HATCHETT, Circuit Judges, and DYER, Senior Circuit Judge.
HATCHETT, Circuit Judge:
In this appeal involving important First Amendment issues, we survey the law regarding the closure of criminal proceedings, and hold unconstitutional the Middle District of Florida’s sealed docket in criminal cases.
BACKGROUND
On January 29, 1992, a grand jury indicted a Tampa, Florida criminal defense lawyer, Charles Corees, and an assistant state attorney, John Valenti, on charges of conspiracy, extortion, and bribery. The charges related to a previous state indictment for Corces’s alleged bribery of Valenti in order to gain favorable treatment for criminal defendants in pending state prosecutions. Following the federal indictment, the state dismissed its indictment against Corees and Valenti.
Several months before trial, closed proceedings took place in the district court, including: (1) a February 14, 1992 partially ex parte, closed bench conference between the prosecutor and the district court, which resulted in a postponement of the trial date to May, 1992; (2) the government’s March 18, 1992 ex parte, in camera motion; (3) the government’s April 22, 1992, ex parte, in camera motion requesting a second continuance of the trial; (4) an August 13, 1992 closed conference between the prosecutor, defense counsel, and Corees before a United States Magistrate Judge; (5) the government's October 16, 1992 in camera motion; (6) an October 19, 1992 closed bench conference in open court, between the prosecutor, Corees, and defense counsel; (7) an October 19, 1992 ex parte, closed bench conferences with the government; (8) an October 19, 1992 closed bench conference with the prosecutor, Corees, and defense counsel where the government disclosed the contents of the earlier ex parte discussions; (9) an October 21, 1992 closed bench conference with the prosecutor, Corees and his counsel; (10) an October 21,1992 closed bench conference where Corees filed under seal certain exhibits, which he had received in camera from the government; (11) an October 22, 1992 in camera proceeding where the district court heard testimony of an Assistant United States Attorney; (12) an October 22, 1992 ex parte, closed bench conference with the prosecutor; and (13) an October 15, 1992 in camera motion that the government filed seeking protection of discovery materials.
On October 20, 1992, a St. Petersburg Times {Times) news reporter delivered a letter to the district court requesting transcripts of the October 19, 1992 proceedings be made available to the public, and requesting that all further proceedings be held in open court. On October 21, 1992, the district court returned the reporter’s letter with a note from the clerk of the court directing the reporter to file a formal motion on these requests. On October 23, 1992, the Times filed an Emergency Motion to Intervene and Unseal Court Records and Request for Expedited Hearing (“emergency motion”). On October 26, 1992, the Times filed its Amended Emergency Motion, claiming that the district court had stymied its efforts to obtain accurate and timely information about the public corruption prosecution in violation of the Constitution and the common law.
On October 29, 1992, the district court granted the portion of Times’s emergency motion seeking to intervene for the limited purpose of seeking to unseal the disputed court records. The district court also filed in camera certified questions to this court. On November 3, 1992, this court notified the district court that it would transfer the filing to the miscellaneous docket without further action because the law provides no basis for a response to the filing.
On November 6, 1992, the district court denied that portion of the Times’s emergency motion seeking to unseal court records. The district court also directed the clerk of the United States District Court for the Middle District of Florida (“Middle District”) to annotate any further closed proceedings in this case on the Middle District’s public docket, rather than the usual annotations made only on the sealed docket.
ISSUES AND CONTENTIONS
The Times contends that the district court erred in conducting closed proceedings without first providing the public and press notice and opportunity to be heard, and articulating specific findings that justified closure of portions of the underlying criminal proceeding. The Times also contends that the district court erred in denying its emergency motion to unseal transcripts of previously held closed proceedings and several in camera documents. Additionally, the Times petitions this court to issue a writ of mandamus, ordering the Middle District not to continue using both a public and a sealed docket in criminal proceedings. The government agrees that this case is not moot merely because the underlying trial has concluded in a mistrial. The government contends, however, that this court has no jurisdiction to review the use of a dual-docketing system in the Middle District because the district court has already fashioned a remedy in this case. In addition, the government contends that the district court did not abuse its traditional discretion to conduct closed bench conferences and properly denied the Times’ s emergency motion to unseal the disputed transcripts and in camera documents. We address these contentions separately.
APPELLATE JURISDICTION
We first note the Times’s standing to intervene for purposes of challenging its denial of access to the underlying litigation, even though it is otherwise not a party. See In re Petition of Tribune Co. v. United States, 784 F.2d 1518, 1521 (11th Cir. 1986); Newman v. Graddick, 696 F.2d 796, 799-800 (11th Cir.1983). “An order denying access is not only reviewable by this court but is immediately reviewable regardless of the pendency of the underlying action.” In re Petition of Tribune, 784 F.2d at 1521; see Newman, 696 F.2d at 800 (recognizing that orders denying press access and ongoing litigation are appealable under the collateral order doctrine). Although the Times’s standing to seek immediate review is not contested, the parties disagree about the applicability of the mootness doctrine and its exceptions to this case.
The Times argues that this is a model case of the kind of constitutional wrong that is capable of repetition yet evading review. The government concedes that this case is not moot merely because the underlying prosecution has come to a conclusion, but argues that the “capable of repetition, yet evading review” exception to the mootness doctrine is inapplicable because the case is not yet moot. Rather, the government argues that the controversy in this case remains alive since the requested records remain sealed.
The Times requests relief broader in scope than merely unsealing the transcripts of closed proceedings in this case. The Times also challenges the procedures for closure followed in the district court, and requests this court to strike the Middle District’s dual-docketing system. Thus, the district court’s November 6, 1992 order does moot that portion of this case relating to the district court’s procedures for closure and its maintenance of a dual-docketing system. The district court directed the clerk to annotate any future closed proceedings on the public docket “in this particular case.” The district court’s order makes it clear that the instructions for complete public docketing apply only to this case.
Because this case presents a controversy capable of repetition yet evading review, we hold that mootness does not bar our review of the Times’s claims against the dual-docketing system. See Newman, 696 F.2d at 800 (holding that mootness is not bar to review of a district court’s order denying a newspaper access to judicial records and hearing, based in part on the district court’s plans to maintain its policy of occasionally excluding the public and the press). Accordingly, we have jurisdiction to consider the merits of the Times’s claims relating to closure procedures, the maintenance of the dual-docketing system, and the motion to unseal the closed proceedings in this case.
DISCUSSION
Prerequisites for Closure of Judicial Proceedings
The public and the press have a qualified constitutional right to attend criminal trials. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). The Supreme Court has emphasized the following two considerations for determining whether a First Amendment right of access attaches to a particular process within a criminal proceeding: (1) “whether the place and process have historically been open to the press and general public”; and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1 (1986) (.Press-Enterprise II) (holding that the right of public access attaches to preliminary hearings based on these considerations); see also Press Enterprise Co. v. Superior Court of California for Riverside County, 464 U.S. 501, 509, 104 S.Ct. 819, 823-24, 78 L.Ed.2d 629 (1984) (Press-Enterprise I) (holding that the right of public access attaches to the selection of jurors based on these considerations). “But even when a right of access attaches, it is not absolute.” Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2740-41; see also Press Enterprise I, 464 U.S. at 509, 104 S.Ct. at 823-24 (recognizing that “closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness”).
Thus, in determining whether to close a historically open process where public access plays a significant role, a court may restrict the right of the public and the press to criminal proceedings only after (1) notice and an opportunity to be heard on a proposed closure; and (2) articulated specific “findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824 (stating that the lower court must articulate “findings specific enough that a reviewing court can determine whether the closure order was properly entered”); see Newman, 696 F.2d at 802; see also Globe Newspaper Co., 457 U.S. at 609 n. 25, 102 S.Ct. at 2620 n. 25 (recognizing that representatives of the press and the general public “ ‘must be given an opportunity to be heard on the question of their exclusion’ ”); Gannett Co. v. De Pasquale, 443 U.S. 368, 401, 99 S.Ct. 2898, 2916, 61 L.Ed.2d 608 (1979) (Powell, J., concurring) (same). The opportunity for the press and the public to be heard on the question of their exclusion “extends no farther than the persons actually present at the time the motion for closure is made, for the alternative would require substantial delays in trial and pretrial proceedings while notice was given to the public.” See Gannett, 443 U.S. at 401, 99 S.Ct. at 2916.
(i) Closed Bench Conferences
The Times argues that the district court completely ignored the Press-Enterprise I and Newman procedural requirements before conducting closed bench conferences. The government responds that the district court properly exercised its traditional authority to conduct closed bench conferences, especially where closure protects sensitive information concerning an ongoing criminal investigation. The government also argues that the district court’s subsequent hearing and order on the Times’s emergency motion was adequate to satisfy the principles articulated in Press-Enterprise I and Newman.
Contrary to the Times’ s argument, we do not interpret Press-Enterprise I to require a trial court to articulate findings that a closed bench conference is necessary and narrowly tailored to preserve higher values before a closed bench conference occurs. Instead, Press-Enterprise notes that a court may conduct an in camera conference on the record where the “constitutional value sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time.” Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. at 825. In this process, the trial court balances the right of access against the interest in maintaining a sealed transcript. Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. at 825. In placing a duty on the trial court to balance competing interests and make findings after the occurrence of a closed bench conference, the Court in Press-Enterprise I articulated a workable procedure to accommodate the public’s right of access and the long recognized authority of a trial court to conduct bench conferences outside of public hearing. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25, 102 S.Ct. 2613, 2620 n. 25, 73 L.Ed.2d 248 (1982) (holding that a trial court has traditional authority to conduct in camera conferences); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n. 23, 100 S.Ct. 2814, 2839 n. 23, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring) (stating that “the presumption of public trials is, of course, not at all incompatible with reasonable restrictions imposed upon courtroom behavior in the interest of decorum,” including the exclusion of the public and the press from conferences at the bench and in chambers where such conferences are distinct from trial proceedings); United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir.1977) (holding that “bench conferences between judge and counsel outside of public hearing are an established practice, ... and protection of their privacy is generally within the court’s discretion.... Such conferences are an integral part of the internal management of a trial, and screening them from access by the press is well within a trial judge’s broad discretion”), cert. denied, Miami Herald Publishing Co. v. Krentz- man, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978), overruled in part on other grounds, Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Thus, we find no error in the district court’s exercise of its traditional authority to conduct closed bench conferences. Our holding on this issue is bolstered in this case because the district court afforded the Times an opportunity to be heard on the release of the transcripts within a reasonable time.
(ii) Sealed Transcripts and In Camera Motions
Even where a court properly denies the public and the press access to portions of a criminal trial, the transcripts of properly closed proceedings must be released when the danger of prejudice has passed. See Gannett, 443 U.S. at 393, 400, 99 S.Ct. at 2912, 2916. Thus, we review the district court’s November 6, 1992 order denying the Time’s emergency motion to unseal under the standards established in Press-Enterprise I. See United States v. Brooklier, 685 F.2d 1162, 1172 (9th Cir.1982) (holding that the denial of a motion to release transcripts of closed proceedings must itself satisfy the requirements for a denial of a right of access protected under the First Amendment). Accordingly, the district court’s denial of the motion to unseal must be supported with a finding that the denial of access is necessary to preserve higher values, and is narrowly tailored to serve that interest. See Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824.
In its November 6, 1992 order, the district court identified the substantial probability of irreparable damage to a continuing law enforcement investigation as the compelling interest requiring a denial of the Times’s motion for access to the in camera motions and the transcripts of the closed proceedings. The district court also ruled that “the alternative to closure will not adequately protect that interest and that there is a substantial probability that closure will be effective in protecting against the harm feared by the moving party.” The Times argues that the district court’s ruling is inadequate under the standards in Press-Enterprise I because protection of an ongoing law enforcement investigation is not a recognized compelling interest. The Times also argues that the district court erred in failing to identify the alternatives to closure that it considered and rejected.
Based on our review of the sealed motions and transcripts, we hold that the district court properly denied the Times’s emergency motion to unseal as a necessary means to achieving the government’s compelling interest in the protection of a continuing law enforcement investigation. See In re Petition of the Tribune, 784 F.2d at 1522-23 (holding that a district court properly denied access to “bench conference transcripts based on the government’s compelling interest in the protection of an ongoing collateral law enforcement investigation).
In addition, we hold that the district court did not err in failing to specify which alternatives it considered before con-eluding that closure was necessary to protect the government’s compelling interest. We note that the Times failed to suggest a logical and workable alternative for the district court’s consideration, and also failed to suggest a workable alternative for this court’s consideration in its brief or at oral argument. See Gannett, 443 U.S. at 401, 99 S.Ct. at 2916 (recognizing that those who object to closure have the responsibility of showing that reasonable alternatives are available to adequately protect the interest being considered). The only apparent alternative available to the district court in this case was the release of a redacted, version of the sealed transcripts. We find, however, that the release of a redacted version of the transcripts would have been inadequate to protect the government’s interest in the ongoing investigation at the time of the November 6, 1992 hearing. Accordingly, we find no error in the district court’s failure to state specifically that it considered and rejected the alternative of releasing a redacted version of the transcripts, especially in light of the Times’s failure to offer any alternative other than unsealing the disputed transcripts.
(iii) Sealed Docket
The Times argues that the Middle District’s maintenance of the dual-docketing system denied it any meaningful opportunity to be heard on its exclusion from closed pretrial proceedings. The government responds that this court should avoid binding the district court to any formal procedure that is unduly burdensome. Although this court in Newman decided not to bind the district courts to the formality of any set procedure for closure, the Newman court did hold that “the issue [of closure] must be squarely confronted and those with various interest must be given the opportunity to be heard.” Newman, 696 F.2d at 802. The Middle District’s maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings. See CBS, Inc. v. District Court, 765 F.2d 823, 826 (9th Cir.1985) (noting that “a two-tier system, open and closed” erodes public confidence in the accuracy of records, and thus denies the public and press its right to meaningful access).
In this case, the sealed docket completely hid from public view the occurrence of closed pretrial bench conferences and the filing of in camera pretrial motions. These events remained hidden until a Times reporter happened to be present to observe a closed bench conference. The Middle District’s dual-docketing system can effectively preclude the public and the press from seeking to exercise their constitutional right of access to the transcripts of closed bench conferences. Thus, we hold that the Middle District’s maintenance of a dual-docketing system is an unconstitutional infringement on the public and press’s qualified right of access to criminal proceedings.
CONCLUSION
We find no error in the district court’s exercise of its traditional authority to conduct closed bench conferences, where the court later allowed the press an opportunity to be heard on the release of the transcripts to the closed proceedings within a reasonable time. See Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. at 825. Based on the district court’s findings and our review of the sealed transcripts, we affirm the district court’s November 6, 1992 order denying the Times’s emergency motion to unseal the transcripts of the closed bench conferences and in camera motions. We also hold that the Middle District’s use of a public and a sealed docket to note criminal proceedings is an unconstitutional infringement on the right of the public and press to seek the release of in camera motions and transcripts of closed bench conferences.
AFFIRMED.
. Our holding also provides a workable method and a common sense solution to the closure problem. After all, a trial judge cannot rule intelligently until some information has been disclosed.
. We find the Times’s argument that the district court erred in relying on 18 U.S.C. § 3153(c)(1) to find a compelling and legitimate interest in sustaining a seal on the closed proceeding before the magistrate judge, to be completely without merit and warrants no discussion. See 18 U.S.C. § 3153(c)(1) & (2) (1985).
. In addition, the Times argues that the district court's order is not narrowly tailored based on the absence of a ruling on how long the transcripts and in camera motions must remain sealed. This issue is not properly before this court because, as the Times concedes, the district court’s November 6, 1992 order is silent on the time length of the seal. It would be premature for this court to consider a claim that the district court erred in permanently sealing the disputed motions and transcripts in the absence of such a ruling from the district court. Based on the November 6, 1992 order, the Times is not precluded from making a subsequent motion to unseal or a motion to amend due to changed circumstances in the ongoing law enforcement investigation.
. Having addressed the Times's claims for relief in this expedited appeal under the collateral order doctrine, we deny the Times's petition for a writ of mandamus. See United States v. Fernandez-Toledo, 737 F.2d 912, 919 (11th Cir.1984) (holding that a writ of mandamus is appropriate only for extraordinary situations where no other adequate means of obtaining relief is available).
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_caseoriginstate
|
37
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
SOUTH BUFFALO RAILWAY CO. v. AHERN et al.
No. 179.
Argued December 17, 1952.
Decided January 19, 1953.
Albert R. Connelly argued the cause for appellant. With him on the brief was Joseph W. Marlow.
Roy Wiedersum, Assistant Attorney General of New York, argued the cause for the New York State Workmen’s Compensation Board, appellee. With him on the brief were Nathaniel L. Goldstein, Attorney General, and Wendell P. Brown, Solicitor General.
Mr. Justice Clark
delivered the opinion of the Court.
Disability awards by the New York Workmen’s Compensation Board to an interstate railroad employee precipitate this attack on § 113 of that state’s Workmen’s Compensation Law as unconstitutionally conflicting with the Federal Employers’ Liability Act. While employed as a switchman by the appellant Railway, Thomas J. Ahern in July 1944 suffered a coronary occlusion as a result of unusual physical exertion in attempting to “throw a stuck switch” in the Railway’s Lackawanna, New York, yards. On January 15, 1945, he filed a claim with the New York Workmen’s Compensation Board, asserting disability caused by injuries sustained in the regular course of his employment. The Railway controverted the claim solely on the grounds that his injuries were not in fact accidental, and that his disability was not causally related to the injuries alleged. A referee, after hearing evidence, resolved these issues in the claimant’s favor and in September 1945 awarded him compensation at the rate of $28 per week from the date of the accident. The Board denied the Railway’s application for review and affirmed the referee’s determination. In 1946 and the year following, the Board entered two further temporary disability awards. A self-insured employer, appellant in accordance with the Board’s orders and without appeal to the courts of the state continued biweekly payments to Ahern until December 20, 1948. On January 3, 1949, Ahern died of his heart condition. At a subsequent hearing held shortly thereafter to determine a final disability award, the widow, appellee here, was requested to file a death claim. At that point appellant for the first time disputed the Board’s jurisdiction over the subject matter of the proceeding and offered to introduce proof in support. The referee rejected appellant’s proffer and rendered a disability award for the two weeks preceding Ahern’s death. Over appellant’s contention that the claimant was employed “in interstate commerce” so that the applicability of the Federal Employers’ Liability Act deprived the Workmen’s Compensation Board of jurisdiction, the Board denied a petition for review. The Appellate Division of the State Supreme Court upheld the award, and the Court of Appeals affirmed. This decision by the highest court of the state invoked § 113 of New York’s Workmen’s Compensation Law which in relevant part provides that awards “may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty or interstate commerce rights and remedies . . . .” (Emphasis added.) Appellant’s serious attacks on the constitutionality of the statute as here applied and related problems important to the administration of the Federal Employers’ Liability Act prompted us to note probable jurisdiction of this case.
Collision of New York’s statute with the Federal Employers’ Liability Act is the crux of appellant’s constitutional contentions. All agree that the injured employee, had he pursued his federal remedy, would have met the “interstate commerce” requirements of that Act. But we are told that, under the New York Court of Appeals’ decision, § 113 of the state Workmen’s Compensation Law may translate the mere payment and acceptance of a single interlocutory compensation award into an irrevocable agreement by employer and employee to forsake their federal rights and submit their controversy to the state Board, a tribunal not only without jurisdiction but whose rules of liability clash with the uniform scheme intended by Congress in the Federal Employers’ Liability Act. That being so, appellant urges, the New York Court of Appeals’ construction of § 113 unconstitutionally authorizes the Workmen’s Compensation Board to invade a field foreclosed by governing federal legislation.
We do not think that the Court of Appeals roved so far afield. Rather than coin sweeping generalities, the court held that New York permitted the Board to render compensatory awards for employees engaged in interstate commerce only if the parties voluntarily had so agreed and “if there has been no overreaching or fraud.” Accordingly, the court scrupulously traced the significant factual elements in this case: Appellant from the outset was represented by able counsel well versed in the nature of its liabilities toward injured employees; it utilized the Board’s administrative machinery at several hearings resulting in at least four separate awards; it made payments for four and a half years in accordance with the Board’s directions, choosing not to contest the authority of the Board; it sought no judicial relief from any award save the last, when the employee’s remedy under the Federal Employers’ Liability Act had lapsed. In view of these facts the court concluded that manifestly the parties had agreed to invoke § 113, a purely “permissive statute,” thereby empowering the Workmen’s Compensation Board to act. And, in effect, appellant’s course of conduct over the years estopped it from now asserting a flaw in the bargain: “we can conceive of no sound reason why the employer should be permitted to urge his Federal rights at this late date.”
We do not doubt that the Federal Employers’ Liability Act, supplanting a patchwork of state legislation with a nationwide uniform system of liberal remedial rules, displaces any state law trenching on the province of the Act. State legislatures, for example, may not intrude into the federal Act’s interstate commerce perimeter to destroy uniformity by arbitrarily presuming the renunciation of rights which the Act confers, or by compelling parties to elect between their federal remedies and an alternative state compensation plan. Erie R. Co. v. Winfield, 244 U. S. 170 (1917). The New York Court of Appeals, however, manifested meticulous care to avoid collision; it construed § 113 of the Workmen’s Compensation Law as a mere legislative authorization, permitting the Board to effectuate private agreements for compromising a federal controversy by resort to an impartial local umpire — “that is all that section 113 of the Workmen’s Compensation Law purports to accomplish.” The difference between coercion and permission is decisive; New York’s jurisdictional grant, so confined, does not transgress.
To be sure, peculiarities of local law may not gnaw at rights rooted in federal legislation. American Railway Express Co. v. Levee, 263 U. S. 19, 21 (1923); Davis v. Wechsler, 263 U. S. 22, 24 (1923). Untainted by fraud or overreaching, full and fair compromises of FELA claims do not clash with the policy of the Act. Callen v. Pennsylvania R. Co., 332 U. S. 625 (1948). The validity of such an agreement, however, raises a federal question to be resolved by federal law. Dice v. Akron, C. & Y. R. Co., 342 U. S. 359 (1952); cf. Garrett v. Moore-McCormack Co., 317 U. S. 239 (1942). And, mindful of the benevolent aims of the Act, we have jealously scrutinized private arrangements for the bartering away of federal rights. Ibid.; Boyd v. Grand Trunk Western R. Co., 338 U. S. 263 (1949); Duncan v. Thompson, 315 U. S. 1 (1942). Here, however, whether motivated by charity, dislike of litigation, or trial strategy, appellant made payments until the statute of limitations barred the employee’s federal claim. Fully advised of its legal rights it submitted the controversy to the Board. The New York Court of Appeals viewed these circumstances as estopping appellant from the assertion of so long delayed a change of heart. No tenet of federal law compels otherwise.
Affirmed.
See R. 4.
R. 33, 37. In its “Notice to the Industrial Commissioner That Claim Will Be Controverted,” appellant additionally reserved “the right to controvert for such other reasons as may later appear.” R. 33. The New York courts attached no significance to that reservation.
R. 88-91.
The Board found, in part, that appellant “by its conduct and the effect thereof on the rights of the deceased claimant ... is now estopped from pleading the defense of the Federal Employer’s Liability Act.” R. 5.
303 N. Y. 545, 104 N. E. 2d 898 (1952), affirming 277 App. Div. 1067, 100 N. Y. S. 2d 639 (1950).
“The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, provided that awards according to the provisions of this chapter may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty or interstate commerce rights and remedies, and the state insurance fund or other insurance carrier may assume liability for the payment of such awards under this chapter.” McKinney’s N. Y. Laws, Workmen’s Compensation Law, § 113.
“Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” 45 U. S. C. § 51.
303 N. Y., at 555, 104 N. E. 2d, at 904.
303 N. Y., at 555, 104 N. E. 2d, at 903.
303 N. Y., at 564, 104 N. E. 2d, at 909.
303 N. Y., at 555, 104 N. E. 2d, at 904.
See also Heagney v. Brooklyn Eastern District Terminal, 190 F. 2d 976, 978 (1951); Ricketts v. Pennsylvania R. Co., 153 F. 2d 757, 759 (1946). We need not now decide whether the systematic solicitation of such agreements would ran afoul of § 5 of the Federal Employers’ Liability Act. “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void . . . .” 45 U. S. C. § 55.
See Purvis v. Pennsylvania R. Co., 198 F. 2d 631 (1952).
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_fedlaw
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. LaShawn Nichol CLAY, Defendant-Appellant.
No. 92-5562.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 20, 1992.
Decided Jan. 6, 1993.
William Cohen (argued and briefed), Robert Anderson, Asst. U.S. Attys., Ernest W. Williams, U.S. Atty., Nashville, TN, for plaintiff-appellee.
Mariah A. Wooten, Federal Public Defender’s Office, Nashville, TN (argued and briefed), for defendant-appellant.
Before: KEITH and JONES, Circuit Judges; and ALLEN, Senior District Judge.
The Honorable Charles M. Allen, Senior United States District Judge for the Western District of Kentucky, sitting by designation.
NATHANIEL R. JONES, Circuit Judge.
Defendant-Appellant LaShawn Nichol Clay appeals the sentence imposed on her for violating 18 U.S.C. § 3565(a) (1988 & Supp. Ill 1991) by possessing a controlled substance while on probation. Section 3565(a) requires a defendant whose probation is revoked due to possession of a controlled substance to be sentenced to a term “not less than one-third of the original sentence.” The issue presented is whether “original sentence” refers to the sentence of probation originally imposed, or to the maximum sentence of imprisonment that could have been imposed under the federal sentencing guidelines for the original offense. The district court took the former view. We take the latter, and are thus compelled to vacate Clay’s sentence and remand the case for resentencing.
I. The Case
On March 21, 1990, Clay was indicted in the United States District Court for the Middle District of Tennessee on four counts of knowing possession of government checks stolen from the mail, in violation of 18 U.S.C. § 1708 (1988). She was arraigned on April 9, 1992, and entered a plea of not guilty at that time. On June 4, 1990, Clay tendered a plea of guilty to one count of the indictment. On August 30, 1990, the district court accepted this plea. The remaining counts were dismissed on motion of the government.
According to the United States Sentencing Commission’s Guidelines Manual (Nov. 1989) [hereinafter U.S.S.G.], Clay had a criminal history category of I and an offense level of seven, resulting in a guidelines imprisonment range of one to seven months. On August 30, 1990, the district court sentenced Clay to three years of probation, with the following conditions: (1) that she reside for thirty days in a drug treatment facility; (2) that she then reside for ninety days in a community treatment facility or halfway house; (3) that she participate in a drug treatment program which may require drug testing; (4) that she pay restitution in the amount of $698; and (5) that she provide financial information as requested by a probation officer. Judgment was entered on August 31, 1990.
On February 27, 1992, the district court signed an arrest warrant charging that Clay had violated the conditions of her probation by possessing and/or using illegal drugs, failing to participate in a drug treatment program, failing to pay restitution, and failing to report changes in her residence. At a March 30, 1992 hearing, Clay admitted all of the charges except for the possession/use of illegal drugs charge. The district court heard the government’s testimony that Clay’s urine had tested positive for cocaine in January 1992, and rejected Clay’s contention that the positive tests resulted from passive inhalation of cocaine smoke. The district court specifically found that she had violated the conditions of her probation by using cocaine. Clay’s probation was revoked.
On April 20, 1992, pursuant to the district court’s interpretation of 18 U.S.C. § 3565(a), Clay was sentenced to fifteen months of imprisonment and three years of supervised release. Judgment was entered on April 21, 1992. Clay timely appealed this sentence on April 22, 1992.
II. The Standard of Review
This case turns on the interpretation of a federal statute, namely, 18 U.S.C. § 3565(a). This being a legal issue, our review is de novo. See United States v. Granderson, 969 F.2d 980, 982 (11th Cir. 1992); United States v. Gordon, 961 F.2d 426, 429 (3d Cir.1992); United States v. Corpuz, 953 F.2d 526, 527 (9th Cir.1992).
III. The Meaning of “Original Sentence ” In this case, we must construe a provision of 18 U.S.C. § 3565(a), which provides, in total:
(a) Continuation or Revocation. — If the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may, after a hearing pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure, and after considering the factors set forth in section 3553(a) to the extent that they are applicable—
(1) continue him on probation, with or without extending the term or modifying or enlarging the conditions; or
(2) revoke the sentence of probation and impose any other sentence that was available under subchapter A at the time of the initial sentencing.
Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.
Congress added the final paragraph as part of the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 7303(a)(2), 102 Stat. 4181, 4464 (1988) (codified at 18 U.S.C. § 3565(a)) [hereinafter ’88 Act]. The district court interpreted the term, “original sentence,” in this paragraph to mean the three years of probation it imposed upon Clay on August 30, 1990. The district court thus felt compelled to sentence Clay to “not less than one-third” of three years, or at least twelve months. Clay argues that the “original sentence” is the maximum term of imprisonment under the sentencing guidelines for the original crime, or seven months.
Four other circuit courts have considered this very issue. The Third and Eleventh Circuits clearly support Clay’s position. Gordon, 961 F.2d at 430-33; Granderson, 969 F.2d at 982-85. The Eighth and Ninth Circuits clearly support that of the government. United States v. Byrkett, 961 F.2d 1399, 1400-01 (8th Cir.1992); Corpuz, 953 F.2d at 528-30. In addition, at least one district court has recently reviewed this issue, taking Clay’s position. United States v. Roberson, 805 F.Supp. 879 (D.Kan.1992). We are convinced that Clay’s position is the better of the two alternatives.
A. Evaluating the Statutory Construction Arguments 1. Probation as “Sentence”
When Congress enacted the Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat.1987 (codified as amended at 18 U.S.C. §§ 3551 et seq. (1988 & Supp. III 1991) and 28 U.S.C. §§ 991-98 (1988 & Supp. II 1990)), it intended to change the penological perception of probation. The committee report accompanying the statutory provision authorizing federal courts to impose probation instead of imprisonment in certain circumstances states: “In keeping with modern criminal justice philosophy, probation is described as a form of sentence rather than, as in current law, a suspension of the imposition or execution of sentence.” S.Rep. No. 225, 98th Cong., 2d Sess. 88 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3271. The version of 18 U.S.C. § 3561(a) that was passed into law reads: “A defendant who has been found guilty of an offense may be sentenced to a term of probation____” The appropriate conditions and length of probation are to be determined with reference to the same factors that guide the sentencing court in deciding the proper term of imprisonment. 18 U.S.C. § 3562(a) (1988). Thus, it is possible to understand “original sentence” to encompass a sentence of probation. See Corpuz, 953 F.2d at 529.
Probation, however, has traditionally been viewed not as a sentence of punishment, but as “a period of grace,” Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932), or as “conditional liberty,” Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985). Given this traditional understanding of probation, the onus was on Congress to make it absolutely clear where “sentence” is to refer to a “sentence of probation,” by including the appropriate modifying prepositional phrase or by making the meaning absolutely clear from the context. Without this clarification, the term “original sentence” should mean what it has always meant — a sentence of imprisonment. Given such lack of clarity, “original sentence” in 18 U.S.C. § 3565(a) must refer to the original sentencing guidelines imprisonment range. Cf. Gordon, 961 F.2d at 432.
2. Natural Interpretation
One might argue that the most natural interpretation of “original sentence” is simply the “sentence originally imposed,” not the “maximum term of imprisonment possible but not imposed.” See Gordon, 961 F.2d at 434 (Greenberg, J., concurring). Since a sentence might involve probation, the “original sentence” might mean the sentence of probation actually imposed.
But three years of probation cannot be equated with three years of imprisonment. By interpreting “original sentence” to mean original sentence of probation, this equation is made. In the instant case, Clay was initially exposed to a maximum sentence under the guidelines of seven months of imprisonment. But through the magic of semantics, Clay became exposed to up to thirty-six months of imprisonment — for merely violating probation. The Gordon court called this process “legal alchemy.” Id. at 433.
Let us suppose, for purposes of argument, that Clay was convicted of simple possession of a controlled substance under 21 U.S.C. § 844(a) (Supp. II 1990), as opposed to merely being found in violation of the terms of her probation. The statutory maximum for this crime is one year of imprisonment. Id. Suppose also that she were resentenced upon violating her parole to the maximum term of imprisonment under the sentencing guidelines range for violating 18 U.S.C. § 1708 (her underlying offense). Her maximum exposure, should the sentences run consecutively, would be nineteen months of imprisonment. According to the government’s interpretation of 18 U.S.C. § 3565(a) in this case, she would be exposed to roughly twice that.
Taking the government’s position to its extreme, we note that, by statute, Clay could have received sixty months of probation for her initial crime. 18 U.S.C. § 3561(b) (1988). According to the government’s position, had Clay received sixty months of probation and subsequently violated the terms of her probation by possessing a controlled substance, she could have been sentenced to a term of imprisonment that was 857% of the sentencing guidelines maximum term of imprisonment. And this sentence of imprisonment could have been imposed upon a mere “finding,” 18 U.S.C. § 3565(a), that Clay had a trace of cocaine in her bloodstream and that this constituted possession. See Gordon, 961 F.2d at 429. Thus, the “natural” interpretation of “original sentence,” upon closer analysis, seems to defy common sense.
3. “Original Sentence” in the Context of Section 3565
Congress used the term, “original sentence,” in the anti-drug abuse amendment to 18 U.S.C. § 3565(a). Located directly before the paragraph containing this amendment is 18 U.S.C. § 3565(a)(2), which states that, if a defendant is generally in violation of probation, the court may “revoke the sentence of probation and impose any other sentence that was available under subchapter A at the time of the initial sentence” (emphasis added). Located directly after the paragraph containing the amendment is 18 U.S.C. § 3565(b), which states that, if a defendant is found in possession of a firearm during probation, the court shall “revoke the sentence of probation and impose any other sentence that was available under subchapter A at the time of the initial sentencing” (emphasis added). If Congress intended “original sentence” to mean “sentence that was available under subchapter A,” why did it not use the specific and technical wording found directly before and after? It is possible to answer that Congress intended something different, namely, that “original sentence” means the sentence of probation actually imposed. See Byrkett, 961 F.2d at 1400-01.
But such an interpretation does violence to another basic principle of statutory interpretation. When interpreting the effect of a new law upon an old one, “[o]nly a clear repugnancy between the old law and the new results in the former giving way and then only pro tanto to the extent of the repugnancy.” Georgia v. Pennsylvania R.R., 324 U.S. 439, 457, 65 S.Ct. 716, 726, 89 L.Ed. 1051 (1945). Without a clear expression of congressional intent to the contrary, we should try to reconcile, as much as possible, the anti-drug abuse amendment to the rest of Section 3565(a). See Gordon, 961 F.2d at 431. Before the anti-drug abuse amendment, the maximum sentence that could have been imposed after a violation of probation was the maximum sentence available at the time of initial sentencing. Interpreting “original sentence” to mean original sentence of probation may well take the new sentence of imprisonment out of the original sentencing guidelines range. By interpreting “original sentence” to refer to the sentence of imprisonment that could have been imposed originally, less violence is done to Section 3565(a)(2) in that, though the court’s discretion is limited to a degree by the amendment, the new sentence of imprisonment must still fall within the original sentencing guidelines range of imprisonment.
4- Analogies to the Supervised Release Provision
As part of the ’88 Act, Congress added the following language to 18 U.S.C. § 3583(g): “If the defendant is found by the court to be in the possession of a controlled substance, the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release.” Pub.L. No. 100-690, § 7303(b)(2), 102 Stat. 4181, 4464 (1988) (codified at 18 U.S.C. § 3583(g)) (emphasis added). The language found in 18 U.S.C. § 3583(g) parallels that of 18 U.S.C. § 3565(a): “[I]f a defendant is found by the court to be in possession of a controlled substance ..., the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence” (emphasis added). The antecedent of “term of supervised release” in 18 U.S.C. § 3583(g) is “term of supervised release.” By analogy to 18 U.S.C. § 3583(g), it might be said that the antecedent of “original sentence” in 18 U.S.C. § 3565(a) is “the sentence of probation.”
But the fact that Congress used the term, “term of supervised release,” in Section 3583(g), but “original sentence” in Section 3565(a) “suggests that Congress intended to punish violations of supervised release and probation differently.” Gordon, 961 F.2d at 431. In other words, given the parallel structures of the statutory provisions, we should assume that a marked semantic difference connotes an intended penological difference.
B. Evaluating the Policy-Based Arguments
1. The Purpose of the Anti-Drug Abuse Amendment
It might be argued that if “original sentence” refers merely to the maximum sentence under the guidelines that the defendant could have received if she or he had been sentenced to imprisonment instead of having been placed on probation, the anti-drug abuse policies which underlie the controlled substance provision of Section 3565(a) would be frustrated. Under the sentencing guidelines, probation is used only where the sentencing guidelines maximum imprisonment term is relatively small. See U.S.S.G. § 5Bl.l(a). Requiring a sentence of merely one-third of an already paltry maximum would arguably do very little toward deterring substance abuse. See Gordon, 961 F.2d at 434 (Greenberg, J., concurring).
But requiring a court to impose a sentence of imprisonment of at least one-third of the original sentencing guidelines maximum imprisonment term furthers the goals of the anti-drug abuse amendment insofar as it builds a floor below which a sentencing judge may not go upon a defendant’s revocation of probation for possession of a controlled substance. See id. at 433 n. 8.
2. The Integrity of the Sentencing Guidelines
The district court shall impose a sentence upon a defendant within the sentencing guidelines range “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b) (1988). In making a departure from the guidelines, the district court must provide a “specific reason” supporting it. 18 U.S.C. § 3553(c)(2) (1988). “This requirement is satisfied by ‘a short clear written statement or a reasoned statement from the bench’ that identifies the aggravating factors and its reasons for connecting them to the permissible grounds for departure.” United States v. Feinman, 930 F.2d 495, 501 (6th Cir.1991) (quoting United States v. Rodriguez, 882 F.2d 1059, 1066 (6th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990)).
Sentencing Clay to anything above seven months of imprisonment amounts to an upward departure from the guidelines without requiring a “reasoned statement” as to why the guidelines do not adequately take into consideration the circumstances of her case. A mere “finding” of the court that the Defendant was in possession of a controlled substance was enough to raise the maximum sentence, in this case, over 500%. While mere findings are enough to justify adjustments, see United States v. Duque, 883 F.2d 43, 44-45 (6th Cir.1989); see also United States v. Beaulieu, 900 F.2d 1531, 1535-36 (10th Cir.), cert. denied, 497 U.S. 1009, 110 S.Ct. 3252, 111 L.Ed.2d 762 (1990); United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989), they cannot justify departures. Interpreting “original sentence” to mean original sentence of probation essentially does an end run around the reasoned statement requirement for departures. Such an interpretation thus does violence to how the sentencing guidelines are to be employed.
3. Lenity
When interpreting ambiguous criminal statutes, the policy of lenity comes into play. As the United States Supreme Court has stated, “This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958). Applied to this case, the policy of lenity dictates that we err on the side of lesser penalties by interpreting “original sentence” to refer to the original sentencing guidelines imprisonment range. See Granderson, 969 F.2d at 983.
IV. Conclusion
On balance, we are persuaded that Clay’s interpretation of 18 U.S.C. § 3565(a) is the better of the two alternatives. We hold that “original sentence” in 18 U.S.C. § 3565(a) refers to the sentencing guidelines imprisonment range for the underlying offense. Accordingly, we VACATE the sentence, and REMAND the case to the district court with instructions to have Clay released forthwith from confinement if she has been incarcerated for a period in excess of the maximum allowable under the applicable sentencing guidelines imprisonment range. The district court may then impose conditions upon her release from confinement that it deems meet and just, in accordance with the law of this circuit.
. While the court in the instant case believed the government’s account of why Clay tested positive for a controlled substance over Clay’s account, the government did not have to prove its case beyond a reasonable doubt. See Gordon, 961 F.2d at 429.
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_othadmis
|
A
|
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".
UNITED STATES of America, Plaintiff-Appellee, v. Perry Russell TUNNELL, Defendant-Appellant.
No. 72-3787.
United States Court of Appeals, Fifth Circuit.
July 18, 1973.
Rehearing and Rehearing En Banc Denied Oct. 31, 1973.
J. W. Tyner, Jerry Bain, Tyler, Tex., for defendant-appellant.
Roby Hadden, U. S. Atty., Tyler, Tex., Richard P. Slivka, Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Dept, of Justice, Tax Div., Washington, D. C., for plaintiff-appellee.
Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.
AINSWORTH, Circuit Judge.
Perry Russell Tunnell was convicted on each of three counts for willfully attempting to evade federal income tax during the years 1965, 1966, and 1967, in violation of 26 U.S.C. § 7201 (1970). The central issue on appeal concerns the sufficiency of the Government’s evidence based on the net worth method. We affirm.
I.
One of the essential elements which the Government had to prove was that taxpayer owed tax on at least some unreported income for each of the three years named in the indictment. Because taxpayer’s records were inadequate, the Government utilized the so-called “net worth method” described and approved in the leading Supreme Court case of Holland v. United States, 348 U.S. 121, 125, 75 S.Ct. 127, 130, 99 L.Ed. 150 (1954):
In a typical net worth prosecution, the Government, having concluded that the taxpayer’s records are inadequate as a basis for determining income tax liability, attempts to establish an “opening net worth” or total net value of the taxpayer’s assets at the beginning of a given year. It then proves increases in the taxpayer’s net worth for each succeeding year during the period under examination and calculates the difference between the adjusted net values of the taxpayer’s assets at the beginning and end of each of the years involved. The taxpayer’s nondeductible expenditures, including living expenses, are added to these increases, and if the resulting figure for any year is substantially greater than the taxable income reported by the taxpayer for that year, the Government claims the excess represents unreported taxable income. In addition, it asks the jury to infer willfulness from this understatement, when taken in connection with direct evidence of “conduct, the likely effect of which would be to mislead or to conceal.” Spies v. United States, 317 U.S. 492, 499 [63 S.Ct. 364, 368, 87 L.Ed. 418].
See also United States v. Newman, 5 Cir., 1972, 468 F.2d 791, cert. denied, 411 U.S. 905, 93 S.Ct. 1527, 36 L.Ed.2d 194 (1973); Lee v. United States, 5 Cir., 1972, 466 F.2d 11. In the present case the Government determined the correct taxable income and tax to be the amounts set out below, compared to the taxable income and. tax actually reported by Tunnell on his returns, as follows:
Government Determination Tunnell Reported
Year Income Tax Income Tax
1965 $ 9,236.73 $ 971.55 $ 181.52 $ 142.08
1966 35,579.77 5,942.14 2,241.98 113.33
1967 34,783.42 7,738.31 (20,864.63) -0-
To rely on determinations of income by the net worth method, it was necessary that the Government establish Tunnell’s opening net worth at the start of 1965 with reasonable certainty, introduce evidence supporting the inference that his net worth increased due to currently taxable income, and negate all reasonable explanations and leads furnished by Tunnell which were inconsistent with guilt. See Holland, 348 U.S. at 132, 135, 137, 75 S.Ct. at 134-136. In examining the record we find that the Government sustained its burden.
Based on a detailed financial analysis, the Government determined Tunnell’s assets on December 31, 1964 to be $57,686.89, including cash on hand, cash in banks, the Pines Motel and Trailer Park, some farm land he inherited, mobile homes, automobiles, trucks, and deferred expenses. But he had offsetting liabilities of $64,447.55, so the Government set his opening net worth at a deficit of $6,760.66, which we find to. be fully supported by the record. Counsel for taxpayer objected to the Government’s introduction into evidence of tax returns for 1962, 1963, and 1964, and when the jury during its deliberations requested the 1963 and 1964 returns, counsel also objected to the district judge’s allowing the jury to see the returns again. These returns were admissible and could be viewed by the jury at its request, because the small amounts of income reflected in these returns were relevant to corroborate the asserted deficit net worth as of December 31, 1964. The returns consistently showed the taxpayer had little income during the prior three years. Furthermore, the district judge gave the jury a proper limiting instruction that the documents could only be considered for the limited purpose of determining Tunnell’s opening net worth.
The Government showed that the likely source of Tunnell’s net worth increases was from taxable income, as opposed to exempt income, by showing that he could have had income from the Pines Motel other than that reported. Appellant objected to testimony that this motel, in addition to providing the taxable income generally expected, also provided Tunnell with an opportunity for income from prostitution activities. This was necessarily admissible to fulfill the Government’s responsibility under Holland of showing a likely source for the unreported income over the three-year period. Tunnell, himself, volunteered the information to a Government agent that he had two to four girls working for him during all three years of 1965 through 1967 and that he made as much as $12,000 from their prostitution in one year. This income was taxable even if it was unlawful. See James v. United States, 366 U.S. 213, 219, 81 S.Ct. 1052, 1055, 6 L.Ed. 246 (1961).
The only leads furnished by taxpayer as inconsistent with guilt were that he had available $20,000 to $21,000 from the sale of a motel in Galveston during the prior tax year of 1964, that he “floated” checks, and that he borrowed money to live on during the years 1965 through 1967. The sale of the motel was reported on his 1964 return as a loss, and the correctness of that return was not disputed by the Government. Thus no tax was due on the proceeds received from the sale at an amount less than the basis. But contrary to appellant’s assertion in his brief that he had $20,000 available as a result of the sale, testimony by one of two other people with interests in the motel indicates that a promissory note of about $15,000 had to be paid after the sale and the remaining $5,000 from the sale was divided among three people, so that Tunnell probably got less than $2,000.
“Floating” checks was defined as writing a- check in excess of the amount in the bank account but then depositing money from another account in time to cover the check. Evidence indicates that Government agents thoroughly reviewed Tunnell’s assets and liabilities and bank accounts to negate either his borrowing money or his floating checks as sufficient to account for the net worth increases.
II.
As inferred by the Supreme Court from the words “willfully attempts” in the statute, the second and third necessary elements for conviction are evil motive by the defendant Tunnell and an affirmative act to carry out his scheme to evade tax. See 26 U.S.C. § 7201 (1970); Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943). See generally United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). Here the consistent pattern of understating large amounts of income coupled with evidence of inadequate records kept by taxpayer permits an inference of willfulness sufficient to create a jury question. See generally Holland, supra, 348 U.S. at 139, 75 S.Ct. at 137; Holbrook v. United States, 5 Cir., 1954, 216 F.2d 238, cert. denied, 349 U.S. 915, 75 S.Ct. 605, 99 L.Ed. 1249 (1955). The requisite affirmative act can be found in the filing of false tax returns for each year in the indictment.
Appellant raises several other points which we have considered and find to be without merit.
Affirmed.
. Section 7201 reads as follows :
Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.
. This evidence thus differs from that presented in Armes v. Commissioner, 5 Cir., 1971, 448 F.2d 972, 975-976 n. 2, where the evidence of prostitution activities never reached beyond suspicion and innuendo.
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:
|
songer_state
|
44
|
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".
FAKES v. GIRAND.
Circuit Court of Appeals, Fifth Circuit.
December 21, 1927.
No. 5182.
Bankruptcy (§=>314(6) — Trustee cannot be required to pay taxes assessed against property set aside to bankrupt as exempt (Bankr. Act I8S8, § 64, as amended by Act May 27, 1926 [II USCA § 104]).
Under Bankruptcy Act 1898, § 64, as amended by Act May 27, 1926 (11 USCA § 104), trustee in bankruptcy cannot be required to pay taxes against property set aside to bankrupt as exempt, since it forms no part of bankrupt estate, and such equity as there may be in property over and above valid liens belongs to bankrupt.
Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge.
In the matter of the bankruptcy of Albert Perry Fakes. Order of the referee directing W. D. Girand, trustee, to pay certain taxes was reversed by the District Court, and the bankrupt petitions to superintend and revise.
Affirmed.
E. L. Harwell and R. W. Haynie, both of Abilene, Tex. (Wagstaff, Harwell & Wag-staff, of Abilene, Tex., on the brief), for pe- ' titionér.
W. D. Girand, of Abilene, Tex., trustee, pro se.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
This case is brought up in the form of a petition to superintend and revise in matter of law, but will be treated as an appeal under section 24b of the Bankruptcy Act of 1898, as amended by the Act of May 27, 1926 (11 USCA § 47 [b ]). Petitioner was adjudicated bankrupt December 13, 1926, and surrendered two certain pieces of real estate, one of which he claimed as a business homestead and the other as a residence homestead, under the laws of Texas.
The city of Abilene filed a claim for taxes assessed against the said property, amounting to $127.50, and asked that it be paid by priority. The referee found that the property claimed as a business homestead was of the reasonable value of $25,000, and was incumbered with valid liens in the sum of $20,000, leaving an equity of about $5,000, and that the residence homestead was of the reasonable value of $7,000, and ordered the trustee to pay the taxes, on the theory, apparently, that they should be paid because of the equity of the bankrupt in the property. On appeal to the District Court the order of the referee was reversed, and the ease is here for a review of the order of the District Court.
■ Under the law as it was prior to the amendment of section 64 of the Bankruptcy Act of 1898 by the Act of May 27, 1926 (11 USCA § 104), which amendment was in effect when petitioner was adjudicated bankrupt, there were decisions both ways as to the duty of the trustee to pay the taxes on exempt property and other property not administered in the bankruptcy proceedings. These cases, which it is unnecessary to quote, are no longer applicable, as the amendment of 1926 has made a change in the law, which must be given effect. Section 64 now reads as follows:
“(a) The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district; or municipality, in the order of priority as set forth in paragraph (b) hereof: Provided, that no order shall be made for the payment of a tax assessed against real estate of a bankrupt in excess of the value of the interest of the bankrupt estate therein as determined by the court.”
Under the law as amended by the addition of the proviso above quoted, it is clear that the trustee cannot bo required to pay taxes assessed against property set aside to the bankrupt as exempt. It forms no part of the bankrupt estate administered by the trustee, and such equity as there may be in the property over and above valid liens belongs to the bankrupt. Lockwood v. Exchange Bank, 190 U. S. 294, 23 S. Ct. 751, 47 L. Ed. 1061.
Affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
UNITED STATES of America, Appellee, v. Ronald LEACH, Defendant, Appellant, UNITED STATES of America, Appellee, v. Jerome TREMONT, Defendant, Appellant.
Nos. 7532, 7533.
United States Court of Appeals, First Circuit.
June 15, 1970.
See also 1 Cir., 429 F.2d 1166.
Bernard A. Dwork, Boston, Mass., with whom Enid M. Starr and Dwork & Goodman, Boston, Mass., were on brief, for Ronald Leach, appellant.
James D. St. Clair, Boston, Mass., with whom William E. Bailey and Hale & Dorr, Boston, Mass., were on brief, for Jerome Tremont, appellant.
Joseph A. Lena, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
Defendants Tremont and Leach were found guilty of three counts of an indictment charging violations of 18 U.S. C. § 1010 by making false statements in an application for a Title I home improvement loan. The charges arose out of a $3,000 loan obtained from the Lynn Safe Deposit and Trust Company in May 1968, purportedly to improve a building the defendants were in the process of buying. Count I charged them with stating in the loan application that the proceeds would be used to improve the property, knowing such representation to be false. Count II charged the making of a false statement by omitting to list an outstanding indebtedness on the FHA credit application as required by law. Count III charged that the defendants, with “divers other persons unknown,” had conspired to make false statement for the purposes described as illegal in § 1010.
Defendants first contend that there is a fatal variance between the offense charged in count II and the evidence offered by the government. This count charged that in making out the loan application, defendants failed to list a debt owed to Empire Homes, Inc. “to be secured by mortgage,” on premises at 13 Piekman St., Salem, Massachusetts. At the time the application was made, defendant Tremont had signed a purchase and sale agreement with Empire Homes to buy the Pickman St. property, in which he promised to assume the first mortgage and to take out a second mortgage. Defendants argue that the proof showed that the second mortgagee was one Temkin, not Empire Homes, and that the variance is significant because it confused the witnesses and required the listing of a mortgage indebtedness before the mortgage had come into existence.
This argument is singularly without merit because the debt which the government claims was omitted was not the mortgage but the obligation evidenced by the purchase and sale agreement. The government stated this explicitly in its answer to defendant’s motion for a bill of particulars. The FHA form requires not only that mortgages but all “fixed obligations” be listed.
Defendants’ next contention, going to the conspiracy count, is that the trial court committed reversible error in denying, in part, their request for a bill of particulars. Count III charged that pursuant to the conspiracy to falsify the application, defendants had committed “the following and other overt acts.” Six acts were spelled out in the indictment. Defendants claim they were prejudiced by the denial of their motion to require the government to specify the alleged false statements, the name of the defendant making each statement and, most importantly, the “other overt acts.”
The function of' a bill of particulars is to protect against jeopardy, provide the accused with sufficient detail of the charges against him where necessary to the preparation of his defense and to avoid prejudicial surprise at trial. United States v. Tanner, 279 F.Supp. 457, 473-474 (N.D.Ill.1967); United States v. Smith, 16 F.R.D. 372, 374-375 (W.D.Mo.1954); 8 J. Moore, Federal Practice § 7.06 [1] (1969). Although the 1966 amendment to Fed.R. Crim.P. 7(f) was intended to liberalize discovery, Walsh v. United States, 371 F.2d 436 (1st Cir.), cert. denied, 387 U. S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967), the power to grant or deny particulars is still entrusted to the sound discretion of the trial court. It has long been established that actual prejudice to the defendant must be shown to justify reversal. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545 (1927); 1 C. Wright, Federal Practice and Procedure § 130, at 295 (1969).
Defendants claim they were prejudiced by the testimony of Kenneth Smith, the bank’s former loan officer, and the prosecution’s chief witness. They claim they had no way of knowing that the government would attempt to show that Smith was part of an ongoing conspiracy tying them into an illegal transaction. In particular, defendants claim they were prejudiced because they were unable to lay a foundation for an attack on Smith’s mental capacity.
From our examination of the record we are satisfied that the defendants were not prejudiced by the court’s denial of the particulars. First of all, they were well informed by the indictment as to the nature of the charges, the name of the bank, the property involved, pertinent dates and six overt acts. The fact that Smith was a key figure in the transaction and not a secret informer should have alerted the defendants to the likelihood of his being called to testify. It seems to us that normal investigation would have disclosed the further information they required. See Walsh, supra, 371 F.2d at 437. Furthermore, counsel tor both defendants subjected Smith to rigorous cross examination. In the course of the questioning, they brought out inconsistencies in his testimony and elicited the information that he had a criminal record and that there was then pending a motion for reduction of sentence in two similar cases.
Although it would have been better practice for the court to have granted the motion, see United States v. Covelli, 210 F.Supp. 589, 590 (N.D.Ill.1962), we do not find that the defendants were prejudiced by its failure to do so. United States v. Cudia, 346 F.2d 227, 228 (7th Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 428, 15 L.Ed.2d 359 (1965). Indeed, our language in Nesson v. United States, 388 F.2d 603, 604 (1st Cir.), cert. denied, 391 U.S. 920, 88 S.Ct. 1807, 20 L.Ed.2d 657 (1968), seems particularly appropriate here:
“While it would have been better for the government to have disclosed certain record information which might have aided the defendant in his defense, it seems reasonably apparent from an examination of the transcript that the defendant did not avail himself of what information he did have, and was not as surprised as he claims on this appeal.”
Defendants also contend that there is a fatal variance between the allegations in count III and the government’s proof, in that a conspiracy was charged with “divers unknown persons” at a time when Smith’s involvement was known to the government. Aside from the fact that they failed to object and thus did not preserve their rights, this contention seems to be based on a mistaken impression that Smith had testified before the grand jury. Their acknowledgment on oral argument that Smith had not so testified makes further discussion of this point unnecessary.
Defendants also appeal from the denial of their motions for judgment of acquittal and for new trial. In reviewing the denial of a motion for judgment of acquittal, the pertinent question is whether the trial court had reason to believe that there was sufficient evidence on which reasonable persons could find guilt beyond a reasonable doubt. Parker v. United States, 378 F.2d 641 (1st Cir.), cert. denied, Perma-Home Corporation v. United States, 389 U.S. 842, 88 S.Ct. 81, 19 L.Ed.2d 107 (1967); Crawford v. United States, 126 U.S. App.D.C. 156, 375 F.2d 332, 334 (1967). When we apply this test, and view the evidence must favorably to the government, we conclude that the court below did not err in sending the case to the jury.
Motions for new trial are directed to the trial court’s discretion. Under its broad power, the court may weigh the evidence and consider the credibility of the witnesses. The remedy is sparingly used, the courts usually couching their decisions in terms of “exceptional cases,” United States v. Pepe, 209 F.Supp. 592, 595 (D.Del.1962), affirmed, 339 F.2d 264 (3rd Cir. 1964), “miscarriage of justice,” United States v. Parelius, 83 F.Supp. 617, 618 (D. Haw.1949), and where “the evidence preponderates heavily against the verdict,” United States v. Robinson, 71 F.Supp. 9, 10-11 (D.D.C.1947). Rule 33 itself provides that the court may grant a new trial where required “in the interest of justice.” Applying these standards, we reject the defendants’ contentions. Smith testified unequivocally that the defendants wanted to use the money to buy into a business, and that they talked about a job for him. There was also testimony that a portion of the loan money was used to cover an overdrawn checking account. If the jury chose to credit this testimony regarding the purpose of the loan, it was sufficient to sustain the conviction under count I.
As to count II, defendants contend that the government failed to meet its burden of proving that the omission in the FHA form was done with the requisite intent. The offense set forth in § 1010 requires proof of three elements: the making of a false statement in the application, knowing it to be false, for the purpose of obtaining a loan from the lending institution and influencing the FHA. United States v. Pesano, 293 F.2d 229, 231 (D.C.Cir. 1961). The ingredient of intent must be found in the facts and the surrounding circumstances. Pesano, supra. Defendant Leach testified that the reason he left blank the indebtedness portion of the FHA form was that with two mortgages on the property his payments would exceed the rental income and he hoped to consolidate them. Thus the omission was not accidental. When he signed the certification clause that all statements were true he knew that not to be the case. Moreover, count II of the indictment was for failing to disclose his indebtedness, not for failing to list future mortgages. Leach was sufficiently experienced in business affairs (he described himself as a “business broker and consultant”) to know that the FHA would have a substantial and legitimate interest in knowing that he had to finance the purchase of the property, whatever his plans to consolidate the mortgages. The jury could find that he deliberately omitted what he knew to be important information so as not to alert the FHA to the true state of affairs. We think the evidence was also sufficient to sustain Tremont’s conviction on this count. From the evidence that Tremont had signed the purchase and sale agreement which recited this indebtedness, had put Leach in contact with Smith and was present at the bank when Leach signed the FHA application, the jury could reasonably find that he had the requisite statutory intent.
Defendants point to the fact that even though the indebtedness did not appear on the FHA application, it was entered by Smith on the bank’s own form and placed in the bank’s loan folder. They point out also that Smith contradicted himself, testifying first that he may have been told of the debt but failed to write it on'the FHA application; and' later denying that he had ever been told of the existence of a second mortgage. But whether Smith knew of the indebtedness and whether the information found its way into the hands of the FHA cannot change the result here. For the reasons given above, there was sufficient evidence on which the jury could base its decision regarding the defendant’s intentions on the day the application was filled out, and we are not convinced that its decision must be overturned in the interest of justice. Fed. R.Crim.P. 33.
Finally, defendants make numerous allegations of error respecting the failure of the trial court to give requested instructions. These allegations fall into three groups: instructions regarding accomplice testimony; those relative to the charge of making wilful and knowing false statements; and those on conspiracy. As to the first and third groups, defendants candidly admit that the instructions as given were proper, but claim that their rights would have been more adequately protected if their requests had been allowed. We regard these allegations of error to be lacking in substance. Taken as a whole, the charge was fair and impartial. See Devine v. United States, 403 F.2d 93, 96 (10th Cir. 1968), cert. denied, 394 U.S. 1003, 89 S.Ct. 1599, 22 L.Ed.2d 780 (1969); Harris v. United States, 367 F.2d 633, 636 (1st Cir. 1966), cert. denied, 386 U.S. 915, 87 S.Ct. 862, 17 L.Ed.2d 787 (1967).
Defendants also complain that they were prejudiced by the court’s refusal to instruct the jury on the theory of their defense. It is reversible error for the court to refuse a request to instruct as to defendant’s theory of the case if there is evidence to support it. Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (1967); Strauss v. United States, 376 F.2d 416, 419 (5th Cir. 1967); United States v. Blane, 375 F.2d 249, 252 (6th Cir.), cert. denied, 389 U.S. 835, 88 S.Ct. 41, 19 L.Ed.2d 96 (1967); Beck v. United States, 305 F.2d 595 (10th Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 186 (1962); Marson v. United States, 203 F.2d 904, 912 (6th Cir. 1953); Calderon v. United States, 279 F. 556, 558 (5th Cir. 1922). 8 J. Moore, Federal Practice § 30.06, at 30-4, 30-14 (2nd ed. 1969); 2 C. Wright, Federal Practice and Procedure § 482, at 278-279 (1969).
The rule is equally applicable to situations where special facts present an evidentiary theory which if believed would defeat the factual theory of the prosecution. Salley v. United States, 113 U.S. App.D.C. 207, 353 F.2d 897, 898 (1965); Devine, supra. However, the defendant must tender an instruction that is appropriate in form and substance. Apel v. United States, 247 F.2d 277, 282 (8th Cir. 1957). Where he fails to accomplish this, the court is not obligated to give an instruction unless a particularly sensitive defense is involved, Tatum v. United States, 88 U.S.App.D.C. 386, 190 F.2d 612 (1951), or the facts adduced at trial are so complex and confusing that an understanding of the issues would be beyond the grasp of the jury. - Apel, supra; see Heerman v. Burke, 266 F.2d 935, 940 (8th Cir. 1959); Chicago, N. W. Ry. Co. v. Green, 164 F.2d 55, 61 (8th Cir. 1947); Pflotzer v. Aqua Systems, Inc., 162 F.2d 779, 783 (2nd Cir. 1947); E. I. Dupont de Nemours & Co. v. Frenchette, 161 F.2d 318, 322 (8th Cir. 1947); Feldmann v. Connecticut Mutual Life Ins. Co., 142 F.2d 628, 631 (8th Cir. 1944). By the same token, defendants who are denied their requests must protect their rights as required by Fed.R. Crim.P. 30, except to the extent that a reviewing court may find that the denial constitutes plain error. McMurray v. United States, 298 F.2d 619 (10th Cir. 1961), cert. denied, Bryson v. United States, 369 U.S. 860, 82 S.Ct. 950, 8 L.Ed.2d 18 (1962); Herzog v. United States, 235 F.2d 664 (9th Cir. 1956); 8A J. Moore, Federal Practice § 52.03 [2], at 52-13 (2nd ed. 1969).
Turning to the case at hand, defendants’ theory with respect to count I was that at the time they negotiated the loan they intended to make home improvements, but had to postpone their plans because of the failing health of some of the tenants and financial considerations. As to count II, defendant Leach testified that he wanted time in which to attempt a consolidation of the mortgages on the property and, acting on Smith’s advice, left the debt portion of the application blank.
The defendants did not request the court to instruct the jury as to their theory on count I. As to count II, certain requests were made but not preserved. Only defendant Leach’s request #12, set forth in the margin, is properly before us. In our opinion the court did not err in refusing to give this instruction because it is an incomplete and therefore incorrect statement of the law. See Apel v. United States, supra, 247 F.2d at 282; Lash v. United States, 221 F.2d 237 (1st Cir.), cert. denied, 350 U.S. 826, 76 S.Ct. 55, 100 L.Ed. 738 (1955). This requested instruction does not allow for the possibility that Smith was an accomplice or that even though Leach left the “responsibility” for completion of the form up to Smith, he fully intended to violate the law. A court is under no compulsion to accept faulty instructions.
Although we are fully cognizant of the importance of theory instructions, we think the primary responsibility must rest with counsel to make full and fair requests to charge. On the facts of this case the jury was sufficiently apprised by the court’s instructions on intent and accomplice testimony to judge the conflicting evidence and make its determination as to the guilt or innocence of the defendants.
Affirmed.
. Ҥ 1010. Federal Housing Administration transactions.
“Whoever, for the purpose of obtaining any loan or advance of credit from any person, partnership, association, or corporation with the intent that such loan or advance of credit shall be offered to or accepted by the Federal Housing Administration for insurance, or for the purpose of obtaining any extension or renewal of any loan, advance of credit, or mortgage insured by such Administration, or the acceptance, release, or substitution of any security on such a loan, advance of credit, or for the purpose of influencing in any way the action of such Administration, makes, passes, utters, or publishes any statement, knowing the same to be false, or alters, forges, or counterfeits any instrument, paper, or document, or utters, publishes, or passes as true any instrument, paper, or document, knowing it to have been altered, forged, or counterfeited, or willfully overvalues any security, asset, or income, shall be fined not more than $5,000 or imprisoned not more than two years, or both. (June 25, 1948, ch. 645, 62 Stat. 751.) ” This statute was amended as of May 25, 1967. Pub.L. 90-19, § 24(c), 81 Stat. 28 transferring the functions and powers previously vested in The Housing and Home Finance Agency to the Department of Housing and Urban Development.
. The purchase price was $14,000. The financing was to be accomplished by assuming one mortgage for $11,200 and obtaining a second mortgage for approximately $2,000. On the FHA application the amount “$14,000” was written in as the purchase price but not as a debt.
. At the time the loan was granted the FBI were already conducting an investigation and were in the bank. Defendants sought to show that Smith’s granting an illegal loan under these circumstances, was not the working of a rational mind.
. Defendants say that the only testimony to this effect came not from Smith but from the court. After sustaining an objection to a question put by counsel, the court addressed the witness: “They said they wanted the loan to buy into a business, if I understand,” to which Smith replied, “Right, yes, sir.” Although this was a leading question, we cannot agree that it was testimony by the court. At any rate, immediately thereafter, Smith testified fully on the subject, to which no objection was taken.
. Smith testified that the bank’s form is not sent to the FHA, but that certain information is copied from it onto another document which is then sent to the government.
. After the charge was given, the court invited counsel to make their objections. At the close of his own objections, counsel for defendant Tremont said he would also adopt those to be made by the co-defendant. Although defendant Leach preserved his rights as to instruction # 12, defendant Tremont had never included a like instruction in his own requests.
Even though Leach’s instruction # 11 and Tremont’s # 9 go to their theory of defense to count II, neither defendant made an objection after the charge. See Dunn v. St. Louis-San Francisco Ry., 370 F.2d 681 (10th Cir. 1966). Although in a proper case, Fed.R.Crim.P. 52(b) would allow the court to act, there is no plain error here.
We have considered all the other requested instructions which the defendants say were erroneously denied, and find them lacking in merit.
. “12. The Defendant Leach is not responsible for any misrepresentations based upon the application by the bank official and if he left the responsibility to the bank official to answer item # 8 of the credit application, then he cannot be found guilty under Count II.”
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
UNITED STATES v. RUZICKA et al.
No. 8759.
Circuit Court of Appeals, Seventh Circuit.
Oct. 30, 1945.
Rehearing Denied Jan. 5, 1946.
KERNER, Circuit Judge, dissenting.
William Parker Ward, of Chicago, 111., for appellants.
J. Albert Woll and John P. Lulinski, U. S. Atty., both of Chicago, 111., W. Carroll Hunter, Sp. Asst, to the Atty. Gen., James A. Doyle, Regional Atty., Office of the Solicitor, Department of Agriculture, of Chicago, 111., Katherine A. Markwell, Atty., Department of Agriculture, of Washington, D. C., Wendell Berge, Asst. Atty. Gen., J. Stephen Doyle, Jr., Sp. Asst, to the Atty. Gen., and John J. Toohey, Atty., Department of Agriculture, of Chicago, III., for appellee.
Before EVANS, SPARKS, and KER-NER, Circuit Judges.
EVANS, Circuit Judge.
Defendants, by this appeal, assail the validity of a decree entered in this suit, which was brought to collect payment of sums allegedly due the Market Administrator under the Agricultural Adjustment Act, 7 U.S.C.A. § 601, and to enjoin defendants from violating an order of the Secretary of Agriculture known as Order No. 41. The decree was entered upon the pleadings. The attack is directed to the court’s failure to permit defendants to present evidence which would show error in the Market Administrator’s “verification” of defendants’ reports.
Defendants are co-partners operating a dairy business in Chicago. The Market Administrator, checking the reports of these defendants, claims to have discovered errors which resulted in a finding by him of indebtedness of substantial sums which the defendants owed the Administrator’s “producers-settlement milk fund.” Defendants in their answer denied the existence of such errors and also denied that any sum was by them owing the Milk Fund established by the Market Administrator. They assert the verification was erroneous, improper, incomplete, and inaccurate.
Order No. 41, the order involved, is a comprehensive one made by the Secretary of Agriculture pursuant to the Agricultural Adjustment Act, 7 U.S.C.A. § 601 et seq. It “regulates the handling of milk in the Chicago, Illinois marketing area.” Among its provisions is one which calls for the payment, by the handler, of sums based upon the amount and quality of milk “produced or received” by him within seventy miles of the Chicago City Hall.
This order also creates an official called a Market Administrator, who, with employees whom he selects, administers the order.
Among other duties, said Market Administrator “shall verify all reports and payments of each handler, by an audit of such handler’s records.” “Each handler shall keep adequate records of receipts of milk and shall * * * make available to the Market Administrator * * * such records * * *” as will enable the Market Administrator to perform his duties and particularly to verify the receipts and disposition of the milk by him handled and verify payments to producers and weigh samples and test the butter fat content of the milk so handled in the Chicago area.
The Market Administrator “may maintain a suit in his own name against any handler for collection of such handler’s pro rata share of expense * * The Market Administrator is required to establish and maintain a separate fund known as the “Producers Settlement Fund” into which he shall deposit all payments made by handlers and out of which he shall make all payments to handlers pursuant to Paragraphs (f) and (g) of this section. It also provides that the Market Administrator shall offset any such payment due to any such handler against payment due from such handler.
Important is the provision governing verification of reports and payments. “The Market Administrator shall verify all reports and payments of each handler by audit of such handler’s records, and of the record of any other handler or person upon whose disposition of milk such handler claims classification * * Most significant is the provision of the statute which permits the handler to appeal to the Secretary of Agriculture for a modification of the Administrator’s decision as to the amount due from or to the handler.
Determination of the instant appeal turns upon the correctness of the District Court’s ruling that defendants were limited in their redress efforts to an appeal to the Secretary of Agriculture. In other words, the court held that no relief through appeal to the courts to secure a correction of the Market Administrator’s verification of the handler’s report was permitted.
Defendants did not pursue their right to seek a review of the Administrator’s order by the Secretary of Agriculture, under Sec. 608c(15), prior to the commencement of this action. Defendants did file such petitions with the Secretary of Agriculture, October 28, 1943, and April 29, 1944, after the commencement of this action. No hearing was had at the time defendants petitioned the trial court on June 28, 1944, for a stay of the instant proceeding pending such administrative determination.
Since the determination of this appeal turns upon the construction to be given the controlling statute, we quote it at length:
“Sec. 608a(6) The several district courts of the United States are hereby vested with jurisdiction specifically to enforce, and to prevent and restrain any person from violating axiy order, regulation, or agreement, heretofore or hereafter made or issued pursuant to this chapter, in any proceeding now pending or hereafter brought in said courts.”
“Sec. 608a(8) The remedies provided for in this section shall be in addition to, and not exclusive of, any of the remedies or penalties provided for elsewhere in this chapter or now or hereafter existing at law or in equity.”
“Sec. 608c(15)
“(A) Any handler subject to any order may file a written petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. He shall thereupon be given an opportunity for a hearing upon such petition, in accordance with the regulations made by the Secretary of Agriculture, with the approval of the President. After such hearing, the Secretary shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law.”
“(B) The District Courts of the United States * * * in any district in which such handler is an inhabitant, or has his principal place of business, are hereby vested with jurisdiction in equity to review such ruling, provided a bill in equity for that purpose is filed within twenty days from the date of the entry of such ruling. * * * If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, the law requires. The pendency of proceeding's instituted pursuant to this subsection (15) shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief pursuant to section 608a(6) of this title. Any proceedings brought pursuant to section 608a(6) of this title * * * shall abate whenever a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this subsection (15).”
Our problem presents the difficult question of the interpretation of a statute and the ascertainment of Congressional intent. Did Congress intend, when it inserted Sec. 608 in this act, to grant an exclusive relief and bar all other remedies ?
The provisions of the statute contemplate (1) a remedy by the Government, in the district court, to enforce an order and to restrain violation of an order (Sec. 608a(6); (2) the right of the Government to institute enforcement proceedings is made not exclusive of other statutory or existing legal or equitable remedies (Sec. 608a(8)) ; (3) a handler feeling aggrieved by an order may seek review thereof with the Secretary of Agriculture, who shall give a hearing and his ruling is “final, if in accordance with law,” and review is provided of his order by the District Court, in a suit in equity. If the Court finds the Secretary’s decision is not in “accordance with law” it remands the proceeding with instructions; (4) a proceeding to enforce may be instituted by the Government, notwithstanding the pendency of an administrative proceeding under subsection (15), instituted by the handler, but the proceeding to enforce is to abate if a prior final decree is rendered in the proceedings growing out of the administrative proceeding.
It is argued in favor of an interpretation of the statute making the administrative proceeding the sole remedy to settle factual disputes: (1) The specific statutory set up is provided for the speedy and expert solution of those technical matters of administration of a specialized agricultural problem, and it must be inferred therefrom that it was intended that the administrative agency thus provided was to be exclusive. (2) Subsection 15 states the ruling of the Secretary “shall be final” subject to the review on questions of law therein provided. (3) The only limitation on the finality of his decree is that it must be in “accordance with law,” thereby eliminating review on issues of fact. Such limitation means determination in accordance with procedure provided by law and compliance with the substantive statutory law. It indicates there is not to be a review of fact issues.
On the other hand, (1) it is clear that by Subsection 608a (8) Congress did not intend to wipe out any existing equitable or legal remedy (at least in favor of the Government) despite the fact it provided specifically for enforcement proceedings. This saving clause of existing remedies tends to substantiate the belief that Congress did not mean to make the special statutory remedies the only ones. (2) The statute provides that the handler “may” utilize the administrative remedy of review. Emphasis is on the word “may.” It is argued, however, that the word “shall” could not have been used, otherwise the handler even though satisfied, would be forced to seek a review. (3) The statute recognizes the possibility of concurrency o.f remedies. The judicial one is not precluded by the administrative, except that it was to abate upon the prior final decree in the latter proceedings.
We confess to real doubt as to the true intent of Congress, but by virtue of that very doubt we conclude the aggrieved handler should not be deprived of the right to a trial on the faot issue where an alleged erroneous imposition of bills for sums due is involved.
We reach our conclusion for several reasons. Had Congress meant to make subsection (15), the administrative review, the sole and exclusive remedy, it could easily have said so, and in the absence of such an express limitation we should not read it into the statute. Our system of jurisprudence stresses fairness and completeness of hearing of factual issues to- all litigants. In this instance the Government is both the asserter and trier of facts. The handler is entitled to his day in court, even though he did not himself resort to another, affirmative, remedy, which was at his disposal. He might have been limited to a hearing by the official who is investigator, charger, and trier-of-fact. It was within the power of Congress to so legislate. But unless Congress has clearly denied access to judicial review of fact findings of the market administrator, we hold the court should be and is open to him.
Our search for precedent for guidance has not been entirely convincing or satisfactory. We find a bit of light in the statement of the Supreme Court in Stark v. Wickard, 321 U.S. 288, 308, 64 S.Ct. 559, 570, 88 L.Ed. 733:
“The Act bears on its face the intent to submit many questions arising under its administration to judicial review. § 8a(6), 8c(15) (A) and (B). It specifically states that the remedies specifically provided in § 8a are to be in addition to any remedies now existing at law or in equity. § 8a (8). This Court has heretofore construed the Act to grant handlers judicial relief in addition to the statutory review) specifically provided by § 8c(15). On complaint by the United States, the- handler was permitted by way of defense to raise issues of a want of statutory authority to impose provisions on handlers which directly affect such handlers. United States v. Rock Royal Co-op., 307 U.S. 533, 560, 561, 59 S.Ct. 993, 1006, 1007, 83 L.Ed. 1446. In the Rock Royal case the Government had contended that the handlers had no legal standing in the suit for enforcement to attack provisions of the order relating to handlers. While we upheld the contention of the Government as to the lack of standing of handlers to object to the operating of the producer settlement fund on the ground that the handlers had no ‘financial interest’ in that fund, we recognized the standing of a proprietary handler to question the alleged discrimination shown in favor of the co-operative handlers.”
The Court continues:
“With this recognition by Congress of the applicability of judicial review in this field, it is not to be lightly assumed that the silence of the statute bars from the courts an otherwise justiciable issue. * * * Here, there is no forum, other than the ordinary courts, to hear this complaint. When, as we have previously concluded in this opinion, definite personal rights are created by federal statute, similar in kind to those customarily treated in courts of law, the silence of Congress as to judicial review is, at any rate in the absence of an administrative remedy, not to be construed as a denial of authority to the aggrieved person to seek appropriate relief in the federal courts in the exercise, of their general jurisdiction. When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers. ' * * * The terms of the Order are largely matters of administrative discretion as to which there is no justiciable right or are clearly authorized by a valid act. * * * Technical details of the milk business are left to the Secretary and his aides.”
It may well be argued that this latter quotation negatives somewhat the support given by the previous quotation.
In United States v. Rock Royal Co-op., 307 U.S. 533, 560, 561, 59 S.Ct. 993, 1007, 83 L.Ed. 1446, the Court said:
“Although .three of the defendants cannot complain of the benefits conferred upon cooperatives, for they are cooperatives, the defendant letter Dairy Company has standing to raise the issue of want of statutory authority to except cooperative handlers from the payment of the uniform price. It is a proprietary corporation, a handler of milk, required by the Order to pay uniform prices for the milk it purchases. * * * The cooperatives are excepted from the payment. The burden'of payment is laid directly upon Jetter while others are excepted. * *
The case of Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834, gives us reason to pause, for in that case a defendant in a criminal case was denied leave to raise a defense of illegality of regulation, the violation of which was the basis of the criminal violation. The denial of leave to raise this defense w.as on the ground admin-instrative remedies had not been exhausted. But in that case, involving the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 901 et seq., the administrative remedy was by statute expressly made the exclusive remedy. The same was true of the Selective Service Act, 50 U.S.C.A.Appendix, § 301 et seq., Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305.
The same is true in the case of Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638, where the Court held the District Court had no jurisdiction to enjoin the National Labor Relations Board from a hearing on unfair labor practices because the Labor Act, 29 U.S.C.A. § 151 et seq,, provided that the hearing before the Board and review by the Court of Appeals was the exclusive remedy under the statute.
The most pertinent authority is the decision of the Ninth Circuit in La Verne Co-op. Citrus Ass’n v. United States, 143 F.2d 415, which was a suit for injunction, instituted by the United States to enjoin defendants from handling lemons in violation of a certain order under the Agricultural Adjustment Act. The District Court refused to admit any of the offered evidence on the issue of unconstitutionality of the orders, on the ground that the Act provides for an exclusive administrative remedy which was pending. The Court of Appeals affirmed the decision. In this case the defendants admitted they had shipped an excessive quantity of lemons.
We rest our decision on the fact that Congress in other acts somewhat similar in character, when it denied judicial review, has expressly provided that the administrative ruling is exclusive. Here no such provision giving the administrative body exclusive jurisdiction appears. We therefore conclude that in a suit which the Act gives the Administrator the power to institute, the respondent may dispute and contest the existence of an indebtedness which is the issue at stake in said suit.
After due consideration we reach a contrary conclusion to that announced in the La Verne case.
The judgment is reversed with directions to proceed in accordance with the views herein expressed.
There have been decided in the year 1945 two cases involving appeal from a District Court review of the Secretary of Agriculture’s determination under subsection (15).
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_oththres
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Sherman H. SKOLNICK and Jean MacDonald, Plaintiffs-Appellants, v. Otto KERNER, Chairman, and the President’s National Advisory Commission on Civil Disorders, Defendants-Appellees.
No. 16810.
United States Court of Appeals, Seventh Circuit.
Nov. 16, 1970.
Sherman H. Skolnick, Chicago, Ill., for plaintiffs-appellants; Jean MacDonald, pro se.
William J. Bauer, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for defendants-appellees; Jack B. Schmetterer, Jeffrey Cole, Asst. U. S. Attys., of counsel.
Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
SWYGERT, Chief Judge.
On February 28, 1968 plaintiffs Sherman H. Skolnick and Jean MacDonald, acting pro se, filed a complaint in the district court seeking compliance by the National Advisory Commission on Civil Disorders and its chairman with the provisions of the public information section of the Administrative Procedure Act. 5 U.S.C. § 552 (Supp. Y, 1970).
Plaintiffs allege that the Commission wrongfully suppressed a report, “The Fruits of Racism,” which had been submitted to it in the course of its investigations and that this suppression was violative of the duty imposed by Section 552(a) (3) which requires that:
[E]ach agency [defined in § 551(a) as “each authority of the Government of the United States,” with certain exceptions] * * '* shall make * * * [requested] records promptly available to any person.
The complaint was dismissed on March 4, 1968 by the Executive Committee of the United States District Court for the Northern District of Illinois which ruled that “the complaint states no cause of action justiciable in this Court.” Plaintiffs appeal from the order of dismissal.
Shortly after the complaint was filed and before its dismissal, the Commission filed its final report. The Government contends that by this act the Commission was automatically dissolved and that any suit then pending against it abated. We agree and therefore need not reach the Government’s additional arguments that the Commission was not a suable entity and, in any event, was not properly served with process.
The Commission was established by Executive Order 11365, 3 C.F.R. 310 (Supp.1967), which provides that:
The Commission shall make an interim report as to its findings of fact not later than March 1, 1968, and shall present its final report and recommendations not later than one year from the date of this order [July 29, 1967]. It shall terminate upon presenting its final report and recommendations.
In its report, dated March 1, 1968, the Commission stated that a sense of urgency concerning the problems it had explored led it to “consolidate in this single report the interim and final reports called for by the President.” Thus pursuant to the terms of the order which created it, the Commission dissolved on March 1, 1968.
We believe that our recent decision in Skolnick v. Parsons, 397 F.2d 523 (7th Cir. 1968), is determinative of the issues raised by plaintiffs. In Parsons, the plaintiff attempted to compel the President’s Commission on Law Enforcement and Administration of Justice to release a report which the Commission had allegedly suppressed. We there held that “any mandamus type of action against [the Commission] abated when the Commission terminated.” 397 F.2d at 525. It appears that in Parsons the complaint was not filed until after the termination of the Commission’s existence while the complaint here was filed a few days prior to the Commission’s dissolution. However, we placed no reliance on that fact in Parsons, but based our decision on reasons equally applicable to the instant situation.
Parsons requires that a pending suit, even if properly instituted against an existing governmental agency, abate when the agency dissolves without a successor assuming its powers and functions. On March 1, 1968, the National Advisory Commission on Civil Disorders became functus officio, and no other governmental officer or authority was appointed to succeed to any of its duties. Consequently there would be no one against whom a decree requiring the production of the allegedly suppressed document could operate. We therefore hold that there is no available remedy and that the plaintiffs’ suit abated on the dissolution of the Commission without a successor.
The judgment of the district court is affirmed.
. Sec Skolnick v. Parsons, 397 F.2d 523, 525-26 (7th Cir. 1968), for a description of this committee and the manner in which it screens complaints submitted by pro se litigants. That case is dispositive of plaintiffs’ contention that the procedure according to which the Executive Committee operates violates due process.
. Report of the National Advisory Commission on Civil Disorders, p. 15 (March 1, 1968).
Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_origin
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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 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.
ABC TRANS-NATIONAL TRANSPORT, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 80-1155.
United States Court of Appeals, Third Circuit.
Argued Oct. 9, 1980.
Decided Feb. 19, 1981.
Edward N. Schwartz (Argued), East Orange, N. J., for petitioner.
Howard E. Perlstein, Atty., R. Michael Smith, Atty. (Argued), N.L.R.B., Washington, D. C., 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, N.L.R.B., Washington, D. C., for respondent.
Before ALDISERT, GARTH and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
ABC Trans-National Transport, Inc. has petitioned us to review an order of the National Labor Relations Board which determined that ABC had violated Sections 8(a)(1) and (5) of the National Labor Relations Act by refusing to bargain collectively with its union. Truck Drivers, Chauffeurs and Helpers Local Union No. 100, about a decision to close one of ABC’s 35 freight forwarding terminals. The Board has filed a cross-application for enforcement of its order. We affirm the Board’s findings and conclusion as to ABC’s liability, and therefore deny ABC’s petition for review. We must also deny the Board’s petition for enforcement of its order, however, inasmuch as it requires ABC to engage in the futile task of bargaining over its decision to close the terminal, the operation of which was shut down on July 21, 1978.
I.
ABC Trans-National, a subsidiary of ABC Freight Forwarding, is a Delaware corporation engaged in the business of freight forwarding and in the transportation of freight, by motor carrier, within and between various states of the United States. ABC operates terminals in approximately 35 cities. The company’s drivers typically pick up freight in the city in which a terminal is located, bring it to the company’s dock, where it is then delivered by the company’s local drivers to a destination within the city’s limits. One of ABC’s terminals was located in Cincinnati, Ohio. Pri- or to its closing, ABC had operated this terminal for approximately 25 years. During this entire period, ABC’s truck drivers and dockmen were represented by the Truck Drivers, Chauffeurs and Helpers Local Union No. 100, an affiliate of the International Brotherhood of Teamsters. The five truck drivers and two dockmen employed by ABC at the Cincinnati terminal at the time of its closing were covered by a collective bargaining agreement which was effective from April 1, 1976, through March 31, 1979.
At the commencement of the proceedings before the Administrative Law Judge, counsel stipulated that ABC’s decision to close the Cincinnati terminal was solely an economic decision (Tr. 6). Union Steward Cletus Leon also testified that business at the terminal during the past eight or nine years had continually worsened (Tr. 67). Thus, there is no suggestion that ABC’s decision to close the terminal was motivated by any anti-union animus.
On July 14, 1978, Allen Brown, a Vice-President of ABC, telephoned ABC’s District Manager Frank Conte and told him that ABC had decided to close the ABC Cincinnati operations and that, as of July 21, the terminal would be closed. Brown also told Conte to communicate this information to the Union. On that same day, Conte telephoned Robert Sturgill, the union’s business agent, and related this development to him. Conte testified that he told Sturgill that as of July 21, ABC intended to terminate its operations in Cincinnati and lay off the employees, and that the company would take care of the vacations and sick days that were due (Tr. 24).
Following Conte’s conversation with Sturgill, Conte sent Sturgill a letter confirming the substance of their conversation. This letter, dated July 14, was received into evidence as General Counsel’s Exhibit No.
2. It read:
This letter is to confirm my telephone call on July 14, 1978, notifying you that ABC TRANS NATIONAL TRANSPORT, INC. will close terminal operation in Cincinnati, Ohio, at the close of business July 21, 1978.
All positions covered by the agreement presently in effect are abolished with the close of business July 21, 1978.
On July 17 or 18, 1978, Odell Hinkle, the union’s Secretary-Treasurer, telephoned Edward N. Schwartz, ABC’s attorney on this appeal, but the evidence is in conflict as to whether Schwartz had informed Hinkle during this conversation that the company would bargain over its decision to close. In support of the union’s position that Schwartz neither offered nor intended to bargain over the decision itself, the General Counsel introduced three letters from ABC’s counsel to the union. Each of the letters spoke only in terms of ABC’s willingness to bargain over the effects of the closing.
The ALJ’s opinion recites that just prior to July 21, 1978, ABC Freight Forwarding, the parent company of ABC Trans-National, purchased Acme Fast Freight, one of ABC’s competitors. It goes on to state:
Upon the closing of Respondent’s terminal, Conte became terminal manager at Acme Fast Freight. Respondent’s former bookkeeper and salesman were also employed by Acme. In its operation Acme does not employ truckdrivers but contracts out that function.
Opinion of the ALJ at 3-4.
The ALJ’s opinion identifies the sole issue to be determined: whether ABC had refused to bargain over its decision to close the terminal, as distinguished from ABC’s willingness to bargain about the effects of the closing. The ALJ stated:
The sole issue herein is whether Respondent failed and refused to bargain about its decision to close its Cincinnati terminal as a result of which its employees were discharged. It is conceded that the shutdown was for economic reasons and further that Respondent offered to bargain concerning the effects of the closing upon its employees.
Opinion of the ALJ at 4.
The ALJ thereafter concluded that ABC had violated Sections 8(a)(1) and (5) of the Act by failing and refusing to bargain with the union in good faith over its decision to close the Cincinnati terminal. His order required ABC to bargain with the union over its decision to close the terminal and to make the employees who were discharged whole for earnings lost since July 21,1978 On January 11, 1980, the Board affirmed the ALJ’s rulings, findings, and conclusions, and adopted the ALJ’s order with a few minor modifications.
ABC’s petition for review presents essentially two questions for resolution: (1) is there substantial evidence on the record as a whole to support the Board’s finding that the company violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 151 et seq. (1976), by failing to bargain with the union about its decision to close the Cincinnati freight terminal? (2) if so, should we enforce the Board’s order requiring ABC to bargain?
II.
ABC argues on appeal that there is not substantial evidence on .the record as a whole to support the Board’s finding that it refused to bargain with the union over its decision to close the Cincinnati terminal. ABC also claims that even if it did not adequately advise the union of its intention to close the terminal, the decision to shut down the terminal does not constitute a mandatory subject of bargaining under the circumstances present here. *****12We will deal with these contentions in reverse order.
A.
Within the past few weeks, our court has reviewed the legal principles pertinent to “mandatory subjects of bargaining” which arise in a Section 8(d) setting. In Equitable Gas Co. v. NLRB, 637 F.2d 980 (3d Cir. 1981) a case involving a subcontract of customer remittance work which had been previously performed by bargaining unit employees, we reaffirmed our adherence to the balancing approach announced in Brockway Motor Trucks v. NLRB, 582 F.2d 720, 731 (3d Cir. 1978):
Thus, it is now settled in the jurisprudence of this Circuit that when issues of subcontracting and partial closings are confronted in the context of the National Labor Relations Act, an initial presumption arises that they are mandatory subjects of bargaining. Applying the balancing analysis formulated in Brockway, this presumption can be overcome only if it appears that the employer’s interests outweigh the union’s interests in a given situation.
Equitable, supra, at 987. We concluded in Equitable that the company’s subcontract of customer remittance work to a bank, under the circumstances present in that case, was not a mandatory subject of collective bargaining, and thus Equitable had not violated the Act by refusing to bargain.
As we have observed, Equitable was a subcontract case and did not involve a partial closing, which is the situation here. Nevertheless, Brockway, supra, which did involve a partial closing, took pains to equate both practices, and for purposes of analysis, found that no distinction exists between subcontracting, on the one hand, and a partial closing, on the other. Thus, in the present partial closing setting, we are free to draw upon the teachings found in both categories of cases.
Our examination of the relevant authorities reveals that in partial closing (and subcontracting) cases, the courts have focused on the following considerations: (1) whether the decline in profitability prompting a company’s decision to close, or to subcontract, a portion of its operations was precipitous or gradual; (2) whether there has been an adverse impact on the employees by virtue of their employer’s decision; (3) whether the union might have provided any constructive input relating to the company’s decision; (4) whether notice to, and bargaining with, the union would have hampered the company’s sale of its facility or forced it to forego an advantageous arrangement; and (5) whether the decision to close, or to subcontract, had been a subject of negotiation at the bargaining table.
Obviously, our detailing of these considerations is not all-inclusive. Depending upon the particular business, or circumstances giving rise to either the subcontract or partial closing decision, other factors may assume greater prominence.
B.
We recognize that ABC was not motivated by any anti-union animus in closing its Cincinnati terminal. We also acknowledge that the parties had stipulated that the shutdown of the terminal was due solely to economic considerations. Similar non-disputed motivations, however, have not prevented our court from holding an employer to the duty of bargaining over a partial closure, particularly where the economic considerations are not explained or where the economic decline responsible for the closing was not precipitous.
In Brockway, supra, the company had closed down its Philadelphia plant while continuing operations in other areas. It was not disputed that the closure was based solely on economic considerations. The Court observed, however, that the record did not explain “the nature, extent, or history of the considerations prompting the employer’s decision to close its Philadelphia plant,” 582 F.2d at 723. In particular, the court noted that no reference appeared in the record to “economic necessity as a basis of the decision.” Id. Absent such evidence, the court held that a partial closing constitutes a mandatory subject of bargaining.
In Electrical Products Division of Midland-Ross Corp. v. NLRB, 617 F.2d 977 (3d Cir. 1980), we held that the Board was warranted in finding that the employer had violated the Act when it refused to bargain about closing one of its two plants. The evidence in that case disclosed that the plant had operated unprofitably for some time, and consequently there was no immediacy to the employer’s decision to close without consulting the union. In February, 1976, Midland-Ross had commenced a study of the economic status of the facility that it eventually closed. By April, 1976, the study revealed that the plant’s economic future was not promising. On June 4,1976, pursuant to a recommendation made by the employer’s controller, closure was approved. The plant was finally closed on July 1,1976. The court, while discussing the importance of other factors, observed that “there is nothing in all of the evidence that [the plant] was so unprofitable that the employer had to close immediately without consulting the Union.” Id. at 982. The court went on to state that no reason had been shown why the union could not have been notified at some point during the six months preceding the closing.
On the other hand, in NLRB v. Royal Plating and Polishing Co., Inc., 350 F.2d 191, 196 (3d Cir. 1965), this court held that “an employer faced with the economic necessity of either moving or consolidating the operations of a failing business has no duty to bargain with the union respecting its decision to shut down.” In that case, the company was forced to shut down one of its plants since, had it refused, the Housing Authority could have forced a sale through the use of its condemnation power.
In Equitable, supra, we also addressed the factor of employee dislocation at some length. We there characterized that factor as one of the most critical to be considered in determining whether a subcontracting decision constitutes a mandatory subject of bargaining. Brockway too recognized the importance of this criterion in the context of a partial closing: “[J]ust as subcontracting is likely to lead to the termination of employment, so, too, will the closing down of an employer’s plant. . . . ” Brockway, supra, 582 F.2d at 735. Brockway continued:
Of chief concern to the employees is the prospect of losing their jobs. It is in fact difficult to imagine any result of a decision by the employer about which labor would be more highly sensitized.
In Midland-Ross Corp., supra, two other considerations which persuaded the court to hold that the employer had a duty to bargain over the partial closing were that bargaining would have advanced the union’s interest, and there was no suggestion that bargaining with the Union would have hampered the employer’s decision to close its allegedly unprofitable plant:
Here, we note that bargaining would have vindicated the union’s interest. Even if the Ceramics Workers could not have helped to keep Del-Val open, it could have at least tried to make suggestions that would minimize the closing’s effect on the employees, such as transfer of work, minimizing customer withdrawals, and so forth.
617 F.2d at 982.
Brockway, supra, also addressed these two factors in dealing with the subjects of whether the company’s freedom in making managerial decisions would be “unacceptably constrained by bargaining”, and whether the company’s negotiations with some third party would have been impaired. 582 F.2d at 738. Similarly, Equitable considered whether bargaining could have, in any way, furthered the employees’ interests in a manner which would have still accommodated the company’s concerns.
In each instance, the particular evidence dictated the manner in which the court treated the factor under consideration. In Midland-Ross, supra, the company was ordered to bargain when, among other determinations, the court concluded, for the reasons to which we have just adverted, that bargaining would have vindicated the union’s interest. In Brockway, the court discounted the claims that the company’s freedom would be hampered by bargaining, because no such evidence appeared of record. In Equitable, the record disclosed that even had the union been advised of the subcontracting arrangement, no modification could have been suggested which would have constituted a viable alternative to the subcontract arrangement. Indeed, the evidence in Equitable was completely to the contrary.
Finally, we refer to the consideration which courts have given to whether the union had an opportunity to negotiate at the bargaining table over the company’s decision to close or to subcontract. This consideration is no more than “one factor to be balanced in the overall determination of whether [a partial closing is] a subject of mandatory bargaining.” Equitable, supra, at 991. As Westinghouse Electric Corp. (Mansfield Plant), 150 N.L.R.B. 1574, 1577 (1965) states:
The fact that the Union does have an opportunity to bargain generally on request about [the company’s closing] provides in our view a contributing, though not a controlling, reason for not imposing upon the [company] the duty to bargain separately, at the decision-making level, about [a partial closing].
This factor was also mentioned in Brock-way, supra, although the evidence in that case revealed that “the employer’s action occurred in the absence of prior discussion.” 582 F.2d at 728. In Midland-Ross, however, no reference was even made to this consideration. In Equitable, supra, on the other hand, this factor assumed great significance. There we emphasized the fact that although the union had sought prohibitions against subcontracting of unit work during contract renewal sessions in 1969-70, 1971 and 1977, Equitable had continually resisted these demands, with the result that it was not until the 1980 collective bargaining agreement that the company capitulated and limited its right to subcontract.
C.
As we have previously stated, an initial presumption arises that a partial closing is a mandatory subject of bargaining. This presumption, we have held, can be overcome on a balancing analysis only if it appears that the employer’s interests outweigh the interests of the union. We conclude that on this record, ABC has not overcome this presumption. Thus, ABC had an obligation to bargain with the union when it decided to shut down its Cincinnati terminal.
ABC argues that it had no such duty because: (1) there was no evidence of anti-union animus; (2) there was evidence of a change in the economic direction of the company and a basic operational change; (3) the company did not close its terminal and substitute non-unit workers for those displaced; (4) no evidence exists that the work performed by ABC at the Cincinnati terminal is now being performed by the company elsewhere; (5) no evidence exists that ABC had closed its terminal to avoid contractual obligations with the union; and (6) ABC had introduced evidence that it offered to meet and bargain with the union concerning both the decision and the effects of the closing.
Leaving aside, for the moment, ABC’s claim of its willingness to bargain with the union over the closing decision itself, see discussion infra on this issue, we do not find any of the above contentions persuasive in view of two critical factors. First, although it is undisputed that ABC’s decision to close the Cincinnati terminal was solely an economic decision, and thus not motivated by any anti-union animus, the decision to close was not a matter of immediate necessity. Instead, it was made in response to the terminal’s economic deterioration during the previous eight or nine years (Tr. 67). We are therefore not reviewing a situation involving a sense of urgency, such as in Royal Plating, supra, which, if present, would have weighed heavily in the company’s favor in determining if it had a duty to bargain. In fact, ABC’s economic motivation appears no different than the economic basis asserted by Midland-Ross as a reason for closing its facility, a decision which this court held had to be bargained. Second, and perhaps even more significant, is the fact that nearly all of the employees in the ABC bargaining unit lost their jobs as a result of the Cincinnati closing. Indeed, all of the drivers and dockmen were discharged. Only the terminal manager, a bookkeeper and a salesman were offered substitute employment by Acme. Thus, the very evident adverse impact upon ABC’s Cincinnati employees distinguishes ABC’s circumstance from that of Equitable, none of whose employees were discharged. Although it may be true that ABC had neither substituted non-unit workers for those displaced, nor deliberately sought to perform its Cincinnati work elsewhere, this cannot be said to mitigate the adverse impact on the workers who were discharged.
Briefly examining the other criteria which we have previously discussed, we observe that the record here reveals no evidence respecting closings as a subject of collective bargaining. All that appears are the general provisions of the collective bargaining agreement which concern, at the most, the effects of the closing. The agreement is silent regarding the company’s duty to bargain over a decision to close. See note 3, supra. Lastly, ABC has not directed our attention to any evidence which would suggest that had the union been consulted, it still would not have been able to dissuade the company from closing the Cincinnati terminal. On balance, therefore, we cannot say that any of the interests asserted by ABC are of a sufficient magnitude to tip the scales in its favor. Having failed to overcome the presumption that a partial closing requires bargaining with the union, we hold that under the instant circumstances, ABC had a duty to bargain over its decision to close its Cincinnati terminal.
D.
ABC also argues that the record does not contain sufficient evidence to support the ALJ’s finding that ABC, “by failing and refusing to adequately advise the union of its intention to close its Cincinnati terminal and by unilaterally closing such terminal and discharging its employees, violated 8(a)(1) and (5) of the Act and thereby failed and refused to bargain in good faith.” Opinion of the ALJ at 5. The ALJ found, and the Board affirmed, that notwithstanding the seven days advance notice of the closing which the company afforded the union.
[i]t is clear from the actions of Respondent and counsel that it was not offering nor was it willing to bargain concerning a decision which had previously been made. Thus, the union was confronted with a fait accompli and was not afforded the opportunity to bargain during the critical time when such bargaining perhaps could have been productive, that is, the period when the decision was being considered and about to be made.
Based on our review of the record, we conclude that even if we might have reached a different conclusion independently, there is substantial evidence in the record as a whole to support the ALJ’s findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Findings of an ALJ, if supported by substantial evidence, must be given conclusive effect on our review.
In Eastern Engineering & Elevator Co., Inc. v. NLRB, 637 F.2d 191 (3d Cir. 1980), a decision filed after argument was heard in this case, our court commented upon the weight to be accorded to credibility findings of an ALJ:
The Supreme Court has directed us to recognize that an ALJ’s findings of fact constitute a vital part of the whole record that the court must review. These findings “are to be considered along with the consistency and inherent probability of testimony. The significance of his report .. . depends largely on the importance of credibility in the particular case.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468 (1951). We must “recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion,” Id.
Id., slip op. at -. The controversy in Eastern Engineering, supra, centered around a Board decision which had refused to give credit to the ALJ’s credibility findings. This court refused to enforce the Board’s order. We did so because we found no evidence to support the Board’s conclusion that the Act had been violated by the company when it laid off an employee. The ALJ found that Eastern had established a non-pretextual, legitimate business reason for laying off the affected employee. He further found that Eastern had not been motivated by an internal union charge which the laid-off employee had filed against a fellow worker. The ALJ made these findings, almost wholly, on the basis of demeanor and credibility evaluations. Despite this, and despite the fact that the Board had no opportunity to hear or see the witnesses, the Board overturned the ALJ’s findings. Judge Aldisert, writing for the court, explained the deference to be given to “credibility resolutions of an experienced and impartial administrative law judge.” Id., slip op. at 20. He referred approvingly to Judge Wallace’s opinion in Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078 (9th Cir. 1977), which discussed the important aspects of a witness’ demeanor, and then referred to the weight which must be accorded an ALJ’s determinations of credibility. Judge Aldisert stated:
Weight is given the ALJ’s determinations of credibility because he or she “sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records.” NLRB v. Walton Manufacturing Co., 369 U.S. 404, 408, 82 S.Ct. 853, 855, 7 L.Ed.2d 829 (1962) (per curiam).
Id., slip op. at 14-15.
We recognize, of course, that in Eastern Engineering, supra, this court reversed the Board which had earlier rejected the ALJ’s credibility findings, whereas here, we are in the position of assessing the ALJ’s determinations and their subsequent affirmance by the Board.
We discern, from our reading of the record, that the ALJ here was confronted with conflicting testimony as to what had transpired in July, 1978. The statements of the various witnesses, as might be expected, reflect their respective interpretations of the situation. In particular, the evidence reveals conflicting testimony by Odell Hinkle and Edward Schwartz regarding their conversation on July 17, 1978.
After making several contradictory statements, Hinkle finally admitted that Schwartz could have said the Company would be willing to meet with the union people and discuss “whatever problems there were” (Tr. 93), but then added that the problems referred to in that conversation concerned “what may or may not happen after the terminal closed” (Tr. 94).
Schwartz testified that he said to Hinkle during the above conversation that the “Company was willing to sit down and bargain concerning any question or any problem that the Union had” (Tr. 103). Schwartz stated that Hinkle replied: “Well, we have an attorney. I will have to discuss it with him and I’ll get back to you” (Tr. 103). Schwartz also testified that although Hinkle never called him back, he (Schwartz) attempted to call Hinkle again “in order to set up a meeting with respect to any problem that they might have had or anything they desired to speak about” but was “unable to do so” (Tr. 103). On cross examination, Schwartz again stated that he would have been willing to discuss anything that the union wanted to, and that the discussions would not have been “limited to closing” (Tr. 104). When asked whether he specifically told Hinkle that he could discuss ABC’s decision to close its terminal, Schwartz replied, “my letters had indicated that” (Tr. 104). In response to the ALJ’s question, “[Y]ou just said . .. that you said you would be willing to discuss anything they wanted to discuss. Are those the words that you used in the telephone call that Hinkle made to you?” (Tr. 105), Schwartz flatly answered “yes”.
In support of its position that ABC never intended to bargain over the decision to close the terminal, the General Counsel introduced three letters as Exhibits Nos. 3, 4 and 5 at the hearing before the ALJ. The first was a letter from Burton R. Horowitz, another company attorney, to G. F. Kaiser of the union, dated July 17, 1978. That letter read:
Please be advised that we represent the above named company [ABC] located at 1441 Springfield Avenue, Cincinnati, Ohio.
As you have been advised by our representative Mr. Conti [sic] in Cincinnati, the company intends to shut down it [sic] operation in that City. We would appreciate hearing from you, if you so desire, to negotiate the effects of the shutdown on the employees of A B C TransNational.
General Counsel’s Exhibit No. 3 (emphasis supplied). The other two letters were sent by Schwartz to Robert Sturgill. One letter, dated July 19,1978, and received on July 21, 1978, stated:
Please be advised that we represent the above named company.
In line with the company’s intention to terminate its terminal operation in Cincinnati, the company is willing to meet and bargain with you concerning the effect of the closing upon the employees. If you are so inclined, please contact this office so that a mutually convenient date can be arranged.
General Counsel’s Exhibit No. 4 (emphasis supplied). The second of these letters was dated July 26, 1978, and read:
I returned your telephone call on today’s date and you failed to call me back. My offer of July 19, 1978 still stands to meet and bargain concerning the effect of the closing on the employees.
General Counsel’s Exhibit No. 5 (emphasis supplied).
The ALJ, by his findings, apparently did not credit the testimony of Schwartz that the company intended to bargain over the decision to close the terminal. We will not reject his credibility findings in this regard, particularly in light of the three letters sent by ABC’s counsel to the union which state, in no uncertain terms, that ABC was willing to bargain over the effects of the decision to close the terminal. None of the letters mention a willingness on the part of ABC to bargain over the decision itself.
Having so recently been counselled by the court in Eastern Engineering supra, that ALJ findings should be given great deference, particularly when they are based on demeanor testimony, as they are here, we are satisfied that the findings made by the ALJ, and affirmed by the Board, that the company refused to bargain over its decision to close the Cincinnati terminal are amply supported by substantial evidence.
III.
The Board’s Order
Concluding that ABC had violated Sections 8(a)(1) and (5) of the Act, we must determine the propriety of the Board’s remedial order. The ALJ’s order required ABC to bargain with the union over its decision to close the Cincinnati terminal and to pay the employees who were discharged for earnings lost since July 21, 1978, the date of the closing. The ALJ also ordered that the affected employees be paid to the date of bargaining over the decision to close. The Board affirmed this remedy.
ABC now argues that since ABC “has ceased all operations in the City, of Cincinnati and has no other terminal within 250 miles of its former Cincinnati terminal”, requiring ABC “to bargain about its decision to close at this time would be requesting it to engage in a meaningless and fruitless act.”
Our court was confronted with a similar situation in Brockway, supra. The remedial order in that case required:
Brockway to bargain, upon request, with the union about the decision to close the Philadelphia facility and about “the possible resumption thereof.” Further, it provides that if the employer agrees to resume its Philadelphia operations, “it shall offer all those in the appropriate unit reinstatement to their former jobs” or, if such jobs no longer exist, to substantially equivalent positions. The order also provides that backpay shall be awarded for the period from the date of the employees’ termination to the date Brockway begins to bargain with the union in good faith or until the employees are offered reinstatement, “whichever occurs first, less net earnings during such period...”
582 F.2d at 722-23 n.2. The court, after holding that the company’s decision to close one of its plants for “unspecified economic considerations” was within the sphere of mandatory bargaining, refused to enforce the above bargaining order on the grounds that to do so would require the company to engage in a futile activity:
A difficulty with ordering bargaining in this case has become evident from an uncontradicted statement at oral argument that, in the interval since the NLRB issued its direction in this matter, Brock-way has ceased all of its truck-related business operations. If that is correct, and we are unable to determine with exactitude whether it is or not, then it would appear that to require bargaining with the union at this time regarding the decision to close the Philadelphia plant would constitute a futile act. For if Brockway is entirely out of business, it would be most unlikely to undertake to reconsider its earlier determination to close the Philadelphia facility. There is no apparent purpose in directing a meaningless activity and, indeed, there is a strong policy in favor of limiting enforcement of the Board’s orders to situations where it would not be fruitless.
Id. at 740. Although we refused to enforce the entire bargaining order in Brockway, we did so “without prejudice to the NLRB to commence additional proceedings should it seek to do so.” Id. at 741. We therefore left open the possibility of the Board ordering another remedy after further factual development of the futility issue in proceedings before the Board.
The record in the instant case does not provide us with a basis to depart from the Brockway “futility” formula. Indeed, the two situations in this respect appear to us to be very similar. We will therefore deny enforcement of the Board’s order on the ground that it requires ABC to engage in a seemingly futile task. As in Brockway, however, our decision to deny enforcement will be “without prejudice to the NLRB to commence additional proceedings should it seek to do so.” Id.
IV.
We therefore hold that ABC’s decision to close its Cincinnati terminal constituted a mandatory subject of bargaining, and by failing to bargain, it violated Sections 8(a)(1) and (5) of the Act. Accordingly, we will deny ABC’s petition for review.
We will also deny the Board’s petition to enforce its bargaining order since to hold otherwise would require ABC to engage in a futile activity.
Each party will bear its own costs.
. ABC is an employer within the meaning of § 2(2) of the Act, and is engaged in commerce and in operations affecting commerce within the meaning of §§ 2(6) and (7) of the Act. The union is a labor organization within the meaning of § 2(5) of the Act. 29 U.S.C. § 152 (1976).
. The testimony before the Administrative Law Judge revealed a discrepancy regarding the number of drivers. ABC’s District Manager Frank Conte stated that four drivers were employed (Tr. 15), but Cletus Leon, one of the drivers, testified that five drivers were employed (Tr. 53). The Administrative Law Judge made a finding of fact that ABC employed five truck drivers, which finding was excepted to by ABC.
. Article 8 § 6(d)(1) and (2) of that agreement discuss partial closings, closing of terminals, and transfer of work. The effects of such closings are fully delineated but neither subsection imposes a duty on the company to bargain about the closing decision itself.
There is no allegation or contention that Respondent violated 8(a)(3) of the Act by closing its terminal, nor is there any claim that Acme became a successor employer.
. The order required backpay from the date of the closing until the date of bargaining over the decision to close. See Part III, infra.
. For example, the Board ordered that if ABC reopens the Cincinnati terminal, it must offer to reinstate the unit employees to their former, or substantially equivalent, positions. The Board also ordered that ABC preserve and make available to the Board, upon request, certain records necessary to determine the amount of backpay due under the order.
Following the ALJ’s decision, ABC moved to reopen the record so that the affidavit of its Vice-President, Marvin Barsky, dated October 12, 1979, and a copy of a grievance, dated July 28, 1978, regarding the closing of the terminal, could be considered a part of the record. The Barsky affidavit details Barsky’s attempts to settle the grievance, which had been filed by Odell Hinkle. A decision was rendered in favor of ABC some time in September, 1979, during the third step of the grievance procedure, and the
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_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Donald F. BUXTON, Plaintiff-Appellant, v. CITY OF PLANT CITY, FLORIDA, Troy E. Surrency, Individually, Troy E. Surrency, in his official capacity, Defendants-Appellees.
No. 88-3298.
United States Court of Appeals, Eleventh Circuit.
May 1, 1989.
As Amended June 13,1989.
Alice K. Nelson, Gainesville, Fla., for plaintiff-appellant.
John W. Robinson, IV, Fowler, White, Gillen, Boggs, Villareal & Banker, Lynn M. Gilleland, Tampa, Fla., for defendants-ap-pellees.
Before RONEY, Chief Judge, HATCHETT, Circuit Judge, and HENDERSON, Senior Circuit Judge.
HATCHETT, Circuit Judge:
In reversing this public employee termination case, we distinguish Thomason v. McDaniel, 793 F.2d 1247 (11th Cir.1986) and hold that the placing of stigmatizing information in a public employee’s personnel file or in an internal affairs report (public records of Florida pursuant to state law) constitutes publication sufficient to implicate liberty interests requiring protection through procedural due process of law proceedings.
FACTS
On February 14, 1981, Plant City, Florida, hired Donald F. Buxton as a police officer. In June, 1982, the Plant City Police Department investigated Buxton for allegedly assaulting Olin English during the course of an arrest. Plant City’s Police Chief, Troy W. Surrency, assigned Officer William Hysell to conduct an internal affairs investigation. Officer Hysell interviewed Buxton. Officer Hysell also interviewed the witnesses to the arrest. Officer Hysell concluded that Buxton had physically abused English prior to placing him under arrest.
On June 22, 1982, Buxton met with Chief Surrency, Lieutenant Ruffin Cain, and Officer Hysell in Chief Surrency’s office. Chief Surrency advised Buxton that he was being suspended with pay because of the Olin English incident and that he would be contacted again at the end of the week. On June 25, 1982, Buxton again met with Chief Surrency, Lt. Cain, and Officer Hy-sell. Chief Surrency terminated Buxton for violation of departmental policies which he listed in detail, effective June 26, 1982. The meeting lasted between five and ten minutes.
Section 4.03 of Plant City’s Personnel Rules sets forth a grievance procedure available to all city employees. Buxton did not request a hearing on his termination; he contends that he was not aware that he was entitled to such a hearing or that the grievance procedure existed.
Chief Surrency sent a Notice of Termination to the Florida Criminal Justice Standards and Training Commission (FCJSTC), in compliance with Fla.Stat. § 943.23 (1982), indicating that Buxton had been terminated on June 25, 1982. On March 1, 1983, the Division of Standards and Training filed an administrative complaint with the FCJSTC seeking to suspend or revoke Buxton’s certification as a law enforcement officer. On October 9, 1984, the FCJSTC entered a final order dismissing the case due to unavailability of witnesses.
After dismissal of the case, Buxton applied for a position with the Winter Haven, Florida, Police Department. The Winter Haven Police Department requested a reference from Chief Surrency regarding Bux-ton. Prior to giving the personnel file to the Winter Haven Police Department, Chief Surrency demanded a release from Bux-ton. Buxton signed a release for the Winter Haven Police Department dated February 10, 1986. The Winter Haven Police Department presented this release to Chief Surrency, and he provided copies of Bux-ton’s files, including the internal affairs report.
PROCEDURAL HISTORY
On June 13, 1986, Buxton filed this lawsuit in the United States District Court for the Middle District of Florida seeking in-junctive relief and damages. The complaint contained three counts and named as defendants the City of Plant City, Florida, Chief Surrency, and Netty Draughton, the city manager. Count I, a 42 U.S.C. § 1983 action, asserted violations of Buxton’s property and liberty interests as guaranteed by the due process clause of the fourteenth amendment. Count II alleged a pendent state claim based on violations of Florida’s Policeman’s Bill of Rights, Fla. Stat. § 112.532 (1982). Count III alleged a pendent state claim of defamation.
On August 4, 1986, Plant City, Chief Surrency, and Draughton filed a motion to dismiss. The district court denied the motion on Counts I and II and granted it on Count III of the complaint. Later, the district court dismissed Netty Draughton as a defendant. On May 19, 1987, the district court dismissed Buxton’s property interest claim under Count I.
On June 2, 1987, Plant City and Chief Surrency filed a motion for summary judgment. The district court granted summary judgment as to Count I of the complaint, Buxton’s liberty interest claim, dismissed the remaining count, violation of the Florida policeman’s bill of rights, Fla.Stat. § 112.532 (1982), and entered judgment. On January 12, 1988, the district court entered an order reopening the ease to consider Buxton’s claims under the Florida Policeman’s Bill of Rights. On March 22, 1988, the district court dismissed the claim.
CONTENTIONS
Buxton contends that the presence of stigmatizing information in a public employee’s personnel file in Florida is sufficient publication to implicate the liberty interest under the due process clause of the fourteenth amendment to the United States Constitution. Buxton argues that a Florida public employee’s liberty interest is violated when his employer places false and stigmatizing material in the public records without procedural due process. He asserts that the signing of a release does not relieve the public employer of its duty to provide due process of law. Buxton also argues that Florida’s requirement that terminations be reported to the FCJSTC does not relieve Plant City and' Chief Surrency of liability. Buxton further contends that Chief Surrency is not entitled to qualified immunity.
Plant City and Chief Surrency contend that they have not deprived Buxton of his liberty interest without procedural due process because they did not publish any false and stigmatizing information. They argue that allowing access to public records in accordance with state law, allowing access to records upon receipt of a release, and providing a termination notice to the FCJSTC, do not satisfy the publication requirement for a liberty interest deprivation. They also contend that the alleged publication, if any, did not attend Buxton’s termination, but occurred three and one-half years after his termination. Chief Surren-cy contends that he is entitled to qualified immunity.
ISSUES
The parties present the following issues:
(1) whether the presence of stigmatizing information in a public employee’s personnel file is sufficient publication to implicate the liberty interest under the due process clause;
(2) whether allowing access to public records under state law and pursuant to a release signed by the subject of the records satisfies the publication requirement for a liberty interest deprivation;
(3) whether allowing access to public records of an employee more than three years after his termination satisfies the requirement that publication of false, stigmatizing charges must attend an employee’s termination for a liberty interest deprivation;
(4) whether providing a terminated employee with an opportunity to present a statement of the facts leading to his termination and including that statement in the report on his termination satisfies the due process requirement after a liberty interest deprivation;
(5) whether providing a grievance procedure, which a terminated employee chooses not to utilize, satisfies the due process requirement after a liberty interest deprivation; and
(6) whether releasing an employee’s public records, pursuant to a signed release, constitutes an action for which a public official is entitled to qualified immunity.
DISCUSSION
I. Standard of Review
The district court granted Plant City’s and Chief Surrency’s motion for summary judgment on Count I of Buxton’s complaint, which alleged a liberty interest violation. We review the district court’s decision to determine whether the district court erred as a matter of law in granting Plant City and Chief Surrency summary judgment. Fed.R.Civ.P. 56(c); Republic Health Corp. v. Lifemark Hospitals of Florida, Inc., 755 F.2d 1453 (11th Cir.1985). Summary judgment should be entered only if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Clemons v. Dougherty County, Georgia, 684 F.2d 1365, 1368 (11th Cir.1982). In reviewing a grant of summary judgment, we apply the same legal standards as those that control the district court in determining whether summary judgment is appropriate. Mays v. United States, 763 F.2d 1295, 1296 (11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 416, 88 L.Ed.2d 365 (1985). The party seeking summary judgment bears the exacting burden of demonstrating that no genuine dispute exists as to any material fact in the case. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Clemons v. Dougherty County, Georgia, at 1368.
In assessing whether the movant has met this burden, we review the evidence and all factual inferences arising from the evidence in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. at 157, 90 S.Ct. at 1608; Clemons v. Dougherty County, Georgia, at 1368. We must accept Buxton’s version of the facts because the district court granted summary judgment against him. Bishop v. Wood, 426 U.S. 341, 347, 96 S.Ct. 2074, 2078, 48 L.Ed.2d 684 (1976).
II. Procedural Due Process
The fifth amendment to the United States Constitution restrains the federal government, and the fourteenth amendment, section 1, restrains the states, from depriving any person of life, liberty, or property without due process of law. The requirements of procedural due process apply only to the deprivation of interest encompassed by the fourteenth amendment’s protection of liberty and property. Buxton must establish that he has been deprived of an interest that could invoke procedural due process protection. Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972). To determine whether due process requirements apply, we first look to the nature of the interest at stake. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2705, 33 L.Ed. 2d 548 (1972).
While an individual’s interest in life is readily cognizable, definable, and apparent under the due process clause, the liberty and property interests, although comprehensible, are difficult to define. The liberty and property interests obtain constitutional status after they have been initially recognized and protected by state law. Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976). Courts have repeatedly ruled that the procedural guarantees of the fourteenth amendment apply whenever the state seeks to remove or significantly alter that protected status. Paul v. Davis at 710, 96 S.Ct. at 1164. Chief Justice Rehnquist, writing for the majority in Paul v. Davis, provided two examples of this proposition. He explained that by issuing driver’s licenses, states recognize their citizens’ right to operate a vehicle on state highways. Thus, the Supreme Court held that the state could not withdraw this right without giving an individual due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Chief Justice Rehnquist explained that the state cannot alter the status of a parolee because of alleged parole violations, after affording the parolee the right to remain at liberty as long as the conditions of his parole were not violated, without giving the parolee certain procedural safeguards which guarantee due process. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
In Bell v. Burson, and Morrissey v. Brewer, state action distinctly altered or extinguished a right or status previously recognized by state law. The Supreme Court found that these alterations, which officially removed the interest from the recognition and protection previously afforded by the state, were sufficient to invoke the procedural guarantees contained in the due process clause of the fourteenth amendment. Paul v. Davis, 424 U.S. at 711, 96 S.Ct. at 1165. The requirements of procedural due process apply only to the deprivation of interests encompassed by the fourteenth amendment’s protection of liberty and property. Board of Regents v. Roth, 408 U.S. at 569, 92 S.Ct. at 2705; Hunter v. Parole and Probation Commission, 674 F.2d 847, 848 (11th Cir.1982).
III. The Liberty and Property Interests
“ ‘Liberty’ and ‘property’ are broad and majestic terms. They are among the ‘great constitutional concepts purposely left to gather meaning from experience. They relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.’ ” Board of Regents v. Roth, 408 U.S. at 571, 92 S.Ct. at 2705 (quoting National Insurance Co. v. Tidewater Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1209, 93 L.Ed. 1556 (1949) (Frankfurter, J., dissenting)).
Liberty and property, as judicial terms of art, have not been defined. The conceptualization of liberty and property has evolved over time. Property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money. Board of Regents v. Roth, 408 U.S. at 572, 92 S.Ct. at 2706. Due process protection from deprivations of liberty extend beyond the sort of formal constraints imposed by the criminal process. Although the Supreme Court has not defined “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Board of Regents v. Roth at 572, 92 S.Ct. at 2706; Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). While the Supreme Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it has at the same time observed certain boundaries which conceptualize liberty and property. Board of Regents v. Roth, 408 U.S. at 572, 92 S.Ct. at 2706.
IV. The Liberty Interest
In reviewing the district court’s order granting summary judgment, we find one issue dispositive: whether the presence of stigmatizing information placed in both the public employee’s personnel file and the public record by a state entity, pursuant to a state statute, constitutes sufficient publication to implicate the liberty interest under the due process clause of the fourteenth amendment to the United States Constitution. Fla.Stat. § 119.07 (1987) (quoted earlier) requires the custodian of a non-exempt public record to permit the inspection of that record by any member of the public requesting to do so.
This is an issue of first impression in this circuit. The district court correctly announced this circuit’s standard for determining whether the deprivation of an individual’s liberty interest has occurred without due process of law. The district court required that Buxton prove: (1) a false statement (2) of a stigmatizing nature (3) attending a governmental employee’s discharge (4) made public (5) by the governmental employer (6) without a meaningful opportunity for employee name clearing.
The district court found that the truth of Plant City’s allegations were in material dispute; the allegations were stigmatizing and likely to tarnish Buxton’s “good name, reputation, honor, or integrity”; the allegations would likely foreclose Buxton’s future employment opportunities; the allegations attended his discharge; and that Bux-ton was not given a post-stigmatization opportunity to clear his name.
The basis of the district court’s grant of summary judgment is that the mere availability of Buxton’s internal affairs report under Fla.Stat. §§ 119.01 (1987) et seq., which detailed the circumstances leading to his discharge, did not satisfy the publication (made public) requirement under the due process analysis.
Citing Thomason v. McDaniel, 793 F.2d 1247 (11th Cir.1986), the district court relied on our holding that a discharged part-time police officer “did not satisfy the requirement of publication because he ha[d] failed to establish that any disclosure of the reasons for the discharge, that is, the substance of the complaints, was ever made to the general public.” Thomason v. McDaniel, at 1250. The district court found Buxton to be in a similar situation; Buxton failed to demonstrate that Plant City and Chief Surrency published the events surrounding his discharge.
The district court opined that a finding of publication in Buxton’s situation was discouraged by sound public policy:
To find publication here would mean that no matter how discrete a public employer is in avoiding publicity, a police officer who is discharged after an investigation reveals stigmatizing circumstances would be entitled to a hearing even though the officer had no right to continued employment. Ironically, the public employer would have to give a hearing to an at-will employee fired for just cause, but not to an at-will employee fired arbitrarily for no reason at all. This would be an unwarranted interference with public employer personnel decisions and a result certainly not required by the due process clause of the fourteenth amendment.
Buxton v. City of Plant City, Florida, Order No. 86-737-Civ-T-15C, at 5-6 (1987). Based on the finding of “no publication,” the district court granted Plant City’s and Chief Surrency’s motion for summary judgment on Buxton’s liberty interest claim.
Buxton now contends that the presence of stigmatizing material in his non-confidential personnel file and the internal affairs report of the English case, both a part of the public record, forecloses his freedom to pursue employment opportunities. Citing Kaprelian v. Texas Woman’s University, 509 F.2d 133, 139 (5th Cir.1975), Buxton suggests that we tailor the issue to “whether the governmental entity made the ‘charges public in any official or intentional manner, other than in connection with the defense of [the] action?’ ”
Buxton contends that this ease should focus on whether the stigmatizing information has been disseminated in any manner by Plant City and Chief Surrency. If so, Buxton argues that his liberty interest is necessarily implicated. Buxton bases this argument on the fact that he has been foreclosed from several employment opportunities because of information in his personnel file and the internal affairs report. Although the district court relied on Thomason v. McDaniel, presuming that the report in Thomason v. McDaniel was a matter of public record, Buxton argues that nothing in that case supports this presumption. Buxton argues that Thomason v. McDaniel is distinguishable because the court’s inquiry turned on whether proof of the foreclosure of other law enforcement opportunities existed, whereas the district court in this case found that stigmatizing information in his personnel file and internal affairs report are likely to foreclose his employment opportunities. Buxton cites Swilley v. Alexander, 629 F.2d 1018 (5th Cir.1980) (where an employer placed a reprimand letter with stigmatizing charges in an employee’s personnel file, a public record) to argue that his liberty interest has been similarly implicated.
Plant City and Chief Surrency rebut Bux-ton’s liberty interest contention in two arguments. First, they contend that they have not deprived Buxton of his liberty interest without due process because they have not published any false stigmatizing charges about him. In its simplest form, they argue that Buxton failed to prove any publication of the events surrounding his discharge.
Plant City and Chief Surrency argue that the internal affairs report at issue in this case is a public record under Florida Statute § 119.01 (1987). Because the internal affairs report is a public record, they were required by chapter 119 to provide a copy of the report to the Winter Haven Police Department upon request. Non-compliance with chapter 119 would have subjected them to the risk of criminal sanctions. Consequently, they lacked the intent required for publication when they made the report available. Citing Thomason v. McDaniel, they argue that filing a report in the public records in accord with state law does not constitute publication sufficient for a finding of a liberty interest deprivation. Likewise, allowing access to records upon receipt of a release signed by the subject of the records does not satisfy the publication requirement for a liberty deprivation. They further point out that the release specifically authorized Plant City to release any and all information requested by the Winter Haven Police Department and promised to indemnify and save harmless the city and all of its officers and employees from any legal action.
Plant City and Chief Surrency also argue that providing a termination notice to the FCJSTC does not satisfy the publication requirement for a liberty interest deprivation. Their sole activity was to provide the notice to the Commission. This activity did not constitute a deprivation of Buxton’s liberty interest because the notice did not contain any reasons for his discharge, much less false or stigmatizing information.
Plant City and Chief Surrency also contend that they have not deprived Buxton of his liberty interest without due process because the alleged publication did not attend Buxton’s termination. They did not make Buxton’s records available to the Winter Haven Police Department until after February 10, 1986, the date of Buxton’s signature on the release, more than three and one half years after Buxton’s termination.
The constitutional requirement of due process and the safeguarding of the liberty of the citizen against deprivation through the action of a state embodies the fundamental conceptions of justice which lie at the base of the civil and political institutions in the United States. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). The Supreme Court has held liberty, as guaranteed in the due process clause of the fourteenth amendment to mean not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but also the right of the citizen to be free in the enjoyment of all his facilities; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. Booth v. Illinois, 184 U.S. 425, 22 S.Ct. 425, 46 L.Ed. 623 (1902); Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186 (1900); and Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832 (1897). Additionally, liberty has been held to denote the right of the individual to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home, to bring up children, to worship God according to the dictates of one’s conscience, and generally to enjoy those privileges long recognized at common law as being essential to the orderly pursuit of happiness by free people. Board of Regents v. Roth, 408 U.S. at 572, 92 S.Ct. at 2706; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The Supreme Court has declared that the meaning of liberty must be broad. Board of Regents v. Roth, 408 U.S. at 572, 92 S.Ct. at 2706. Bolling v. Sharpe, 347 U.S. at 499-500, 74 S.Ct. at 694-695.
Because of the stigmatizing material in Buxton’s personnel file and the internal affairs report of the English incident, both a part of the public records pursuant to Fla.Stat. §§ 119.01 and 119.07, Buxton has been foreclosed from several employment opportunities. Buxton’s rights “to live and work where he will”; “to pursue any livelihood or avocation”; and “to engage in the common occupations of life” have been limited by placing his personnel file and the internal affairs report of the English incident into the public record. Buxton’s personnel file and the internal affairs report of the English incident have stigmatized Bux-ton in the eyes of potential law enforcement employers and in the minds of citizens reviewing this public information. The personnel file and the internal affairs report became public, pursuant to Fla.Stat. § 112.433, at the conclusion of the investigation which culminated with Buxton’s termination. Because the information in the file may be reviewed years after it is filed, its publication, for due process purposes, must be held to occur at the time of filing. Protection of the due process name clearing right cannot be effectively afforded any other way.
We find Thomason v. McDaniel distinguishable. It did not address the issue before us. The Town of Sneads did not place stigmatizing information in Thomason’s personnel file. Thomason based his challenge on “newspaper coverage and town conversation” resulting from his complaints filed with “the Florida Commission on Ethics and the federal court.” Thomason v. McDaniel, at 1250. Accordingly, we reverse the judgment of the district court and hold that the presence of stigmatizing information placed into the public record by a state entity, pursuant to a state statute or otherwise, constitutes sufficient publication to implicate the liberty interest under the due process clause of the fourteenth amendment to the United States Constitution.
V. What Process is Due
“In cases where a liberty interest arising from reputational damage is implicated, the courts have followed a different procedural course. The hearings granted in such cases serve not to avert the unjustified denial of a specific benefit, but to allow the aggrieved party to ‘clear his name.’ ” Codd v. Velger, 429 U.S. at 627, 97 S.Ct. at 884; Campbell v. Pierce County, Georgia, 741 F.2d 1342, 1345 (11th Cir.1984). The Eleventh Circuit has declared the procedural requisites of a name clearing hearing. “Because it is provided simply to cleanse the reputation of the claimant, the hearing need not take place prior to his termination or to the publication of related information adverse to his interests.” Campbell v. Pierce County, Georgia, at 1345. See also, Rodriguez de Quinonez v. Perez, 596 F.2d 486 (1st Cir.) cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979) (pre-termination hearing not required but post-termination hearing necessary in case involving liberty interest); White v. Thomas, 660 F.2d 680 (5th Cir.1981) cert. denied 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982) (post-termination hearing proper remedy for employee deprived of liberty interest during termination); In re Selcraig, 705 F.2d 789 (5th Cir.1983) (state need only inform stigmatized employee that the opportunity to clear his name exists upon request; pre-termination hearing is not a prerequisite to publication).
The City of Plant City, Florida, has a grievance procedure that was apparently available to Buxton. His failure to utilize that procedure is of no moment at this time because we speak here of what is constitutionally required when the liberty interest is implicated, not what may or may not have been available to Buxton. We hold that a public employer is required to provide the opportunity for a post-termination name-clearing hearing when stigmatizing information is made part of the public records, or otherwise published. Notice of the right to such a hearing is required.
We reverse the judgment of the district court and hold that the presence of stigmatizing information placed into the public record by a state entity, pursuant to a state statute or otherwise, constitutes sufficient publication to implicate the liberty interest under the due process clause of the fourteenth amendment to the United States Constitution.
REVERSED AND REMANDED.
. Fla.Stat. § 943.23 (1982), repealed by Laws 1984, c. 84-258 § 25, eff. Oct. 1, 1984, required an employing law enforcement agency to give notice of employment, termination, inactive status and reinstatement.
. The release was not necessary to obtain Bux-ton’s personnel files. Fla.Stat. § 112.533 (1987) (substantively the same as Fla.Stat. § 112.533 (1983), in effect at the time of Buxton’s signed release), provides, in pertinent part:
112.533. Receipt and process of complaints
(1) Every agency employing law enforcement officers or correctional officers shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such employing agency from any person.
(2) Notwithstanding s. 119.14 [Open Government Sunset Review Act]:
(a) A complaint filed against a law enforcement officer, ... with a law enforcement agency ... and all information obtained pursuant to the investigation by the agency of such complaint shall be confidential until the conclusion of the internal investigation or at such time that the investigation ceases to be active without a finding relating to probable cause. If the internal investigation is concluded with the finding that there is no probable cause to proceed with disciplinary action or file charges against the officer, a statement to that effect signed by the agency head or his designee and the responsible investigating official shall be attached to the complaint; and the complaint and all such information shall be opened thereafter to inspection pursuant to chapter 119. If the internal investigation is concluded with the finding that there is probable cause to proceed with disciplinary action or file charges, the complaint and all such information shall be open thereafter to inspection pursuant to chapter 119. If the investigation ceases to be active without a finding relating to probable cause, the complaint and all such information shall be opened thereafter to inspection pursuant to chapter 119.
Fla.Stat. § 119.01 (1987) (substantively the same as Fla.Stat. § 119.01 (1983), in effect at the time of Buxton’s signed release) provides, in pertinent part:
119.01. General state policy on public records
(1) It is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.
Fla.Stat. § 119.07 (1987) (substantively the same as Fla.Stat. § 119.07 (1985), in effect at the time of Buxton's signed release) provides, in pertinent part:
119.07. Inspection and examination of records; exceptions
(l)(a) Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or his designee.
. The release stated:
I, the undersigned applicant, do hereby authorize the enclosed addressee to release any and all requested information, to include but not limited to, credit ratings, medical and mental records, records of present and former employers, whether recorded or unrecorded, to the Winter Haven Police Department. I hereby agree and promise to indemnify and save harmless the addressee, its officers, agents, servants, or employees from and against any and all liability, claims, demands, damages, expenses and costs of actions, including attorney's fees, of any kind and nature arising or growing out of or in any way connected with the disclosure of the requested information. I have read and understand the above.
. See Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 883, 51 L.Ed.2d 92 (1977) (An employee must present a factual dispute which has significant bearing on his reputation to implicate the due process clause).
. See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971) (Where the state attaches a badge of infamy to the citizen, due process comes into play. Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and opportunity to be heard are essential).
. See Owen v. City of Independence, 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 1406 n. 13,
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_petitioner
|
298
|
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.
UNITED STATES PAROLE COMMISSION et al. v. GERAGHTY
No. 78-572.
Argued October 2, 1979
Decided March 19, 1980
Blackmon, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Stewart and Rehnquist, JJ., joined, post, p. 409.
Kent L. Jones argued the cause pro hac vice for petitioners. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Easterbrook, Jerome M. Feit, and Elliott Schulder.
Kenneth N. Flaxman argued the cause for respondent. With him on the brief was Thomas R. Meites.
Robert J. Hobbs filed a brief for the National Client Council, Inc., et al. as amici curiae urging affirmance.
Mb. Justice Blackmun
delivered the opinion of the Court.
This case raises the question whether a trial court’s denial of a motion for certification of a class may be reviewed on appeal after the named plaintiff’s personal claim has become “moot.” The United States Court of Appeals for the Third Circuit held that a named plaintiff, respondent here, who brought a class action challenging the validity of the United States Parole Commission’s Parole Release Guidelines, could continue his appeal of a ruling denying class certification even though he had been released from prison while the appeal was pending. We granted certiorari, 440 U. S. 945 (1979), to consider this issue of substantial significance, under Art. Ill of the Constitution, to class-action litigation, and to resolve the conflict in approach among the Courts of Appeals.
I
In 1973, the United States Parole Board adopted explicit Parole Release Guidelines for adult prisoners. These guidelines establish a "customary range” of confinement for various classes of offenders. The guidelines utilize a matrix, which combines a “parole prognosis” score (based on the prisoner’s age at first conviction, employment background, and other personal factors) and an “offense severity” rating, to yield the “customary” time to be served in prison.
Subsequently, in 1976, Congress enacted the Parole Commission and Reorganization Act (PCRA), Pub. L. 94-233, 90 Stat. 219, 18 U. S. C. §§ 4201-4218. This Act provided the first legislative authorization for paroie release guidelines. It required the newly created Parolé Commission to “promulgate rules and regulations establishing guidelines for the powefr] ... to grant or deny an application or recommendation to parole any eligible prisoner.” § 4203. Before releás-ing a prisoner on parole, the Commission must find, “upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner,” that release “would not depreciate the seriousness of his offense or promote disrespect for the law” and that it “would not jeopardize the public welfare.” § 4206 (a).
Respondent John M. Geraghty was convicted in the United States District Court for the Northern District of Illinois of conspiracy to commit extortion, in violation of 18 U. S. C. § 1951, and of making false material declarations to a grand jury, in violation of 18 U. S. C. § 1623 (1976 ed. and Supp. II). On January 25, 1974, two months after initial promulgation of the release guidelines, respondent was sentenced to concurrent prison terms of four, years on the conspiracy count and one year on the false declarations count. The United States Court of Appeals for the Seventh Circuit affirmed respondent’s convictions. United States v. Braasch, 505 F. 2d 139 (1974), cert. denied sub nom. Geraghty v. United States, 421 U. S. 910 (1975).
Geraghty later, pursuant to a motion under Federal Rule of Criminal Procedure 35, obtained from the District Court a reduction of his sentence to 30 months. The court granted the motion because, in the court’s view, application of the guidelines would frustrate the sentencing judge’s intent with respect to the length of time Geraghty would serve in prison. United States v. Braasch, No. 72 CR 979 (ND Ill., Oct. 9, 1975), appeal dism’d and mandamus denied, 542 F. 2d 442 (CA7 1976).
Geraghty then, applied for release on parole. His first application was denied in January 1976 with the following explanation:
“Your offense behavior has been rated as very high severity. You have a salient factor score of 11. You have been in custody for a total of 4 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of 26-36 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that a decision at this consideration outside the guidelines does not appear warranted.” App. 5.
If the customary release date applicable to respondent under the guidelines were adhered to, he would not be paroled before serving his entire sentence minus good-time credits. Geraghty applied for parole again in June 1976; that application was denied for the same reasons. He then instituted this civil suit as a class action in the United States District Court for the District of Columbia, challenging the guidelines as inconsistent with the PCRA and the Constitution, and questioning the procedures by which the guidelines were applied to his case.
Respondent sought certification of a class of “all federal prisoners who are or who will become eligible for release on parole.’’ Id., at 17. Without ruling on Geraghty’s motion, the court transferred the case to the Middle District of Pennsylvania, where respondent was incarcerated. Geraghty continued to press his motion for class certification, but the court postponed ruling on the motion until it was prepared to render a decision on cross-motions for summary judgment.
The District Court subsequently denied Geraghty’s request for class certification and granted summary judgment for petitioners on all the claims Geraghty asserted. 429 F. Supp. 737 (1977). The court regarded respondent’s action as a petition for a writ of habeas corpus, to which Federal Rule of Civil Procedure 23 applied only by analogy. It denied class certification as “neither necessary nor appropriate.” 429 F. Supp., at 740. A class action was “necessary” only to avoid mootness. The court found such a consideration not comprehended by Rule 23. It found class certification inappropriate because Geraghty raised certain individual issues and, inasmuch as some prisoners might be benefited by the guidelines, because his claims were not typical of the entire proposed class. 429 F. Supp., at 740-741. On the merits, the court ruled that the guidelines are consistent with the PCRA and do not offend the Ex Post Facto Clause, U. S. Const., Art. I, § 9, cl. 3. 429 F. Supp., at 741-744.
Respondent, individually “and on behalf of a class,” appealed to the United States Court of Appeals for the Third Circuit. App. 29. Thereafter, another prisoner, Becher, who had been denied parole through application of the guidelines and who was represented by Geraghty’s counsel, moved to intervene. Becher sought intervention to ensure that the legal issue raised by Geraghty on behalf of the class “will not escape review in the appeal in this case.” Pet. to Intervene After Judgment 2. The District Court, concluding that the filing of Geraghty’s notice of appeal had divested it of jurisdiction, denied the petition to intervene. Becher then filed a timely notice of appeal from the denial of intervention. The two appeals were consolidated.
On June 30, 1977, before any brief had been filed in the Court of Appeals, Geraghty was mandatorily released from prison; he had served 22 months of his sentence, and had earned good-time credits for the rest. Petitioners then moved to dismiss the appeals as moot. The appellate court reserved decision of the motion to dismiss until consideration of the merits.
The Court of Appeals, concluding that the litigation was not moot, reversed the judgment of the District Court and remanded the case for further proceedings. 579 F. 2d 238 (CA3 1978). If a class had been certified by the District Court, mootness of respondent Geraghty’s personal claim would not have rendered the controversy moot. See, e. g., Sosna v. Iowa, 419 U. S. 393 (1975). The Court of Appeals reasoned that an erroneous denial of a class certification should not lead to the opposite result. 579 F. 2d, at 248-252. Rather, certification of a “certifiable” class, that erroneously had been denied, relates back to the original denial and thus preserves jurisdiction. Ibid.
On the question whether certification erroneously had been denied, the Court of Appeals held that necessity is not a prerequisite under Rule 23. 579 F. 2d, at 252. The court expressed doubts about the District Court’s finding that class certification was “inappropriate.” While Geraghty raised some claims not applicable to the entire class of prisoners who are or will become eligible for parole, the District Court could have “certified] certain issues as subject to class adjudication, and . . . limite [d] overbroad classes by the use. of sub-classes.” Id., at 253. Failure “to consider these options constituted a failure properly to exercise discretion.” Ibid. “Indeed, this authority may be exercised sua sponte.” Ibid. The Court of Appeals also held that refusal to certify because of a potential conflict of interest between Geraghty and other members of the putative class was error. The subclass mechanism would have remedied this problem as well. Id., at 252-253. Thus, the Court of Appeals reversed the denial of class certification and remanded the case to the District Court for an initial evaluation of the proper subclasses. Id., at 254. The court also remanded the motion for intervention. Id., at 245, n. 21.
In order to avoid “improvidently dissipating] judicial effort,” id., at 254, the Court of Appeals went on to consider whether the trial court had decided the merits of respondent’s case properly. The District Court’s entry of summary judgment was found to be error because “if Geraghty’s recapitulation of the function and genesis of the guidelines is supported by the evidence,” the guidelines “may well be” unauthorized or unconstitutional. Id., at 259, 268. Thus, the dispute on the merits also was remanded for further factual development.
II
Article III of the Constitution limits federal “judicial Power,” that is, federal-court jurisdiction, to “Cases” and “Controversies.” This .case-or-controversy limitation serves "two complementary” purposes. Flast v. Cohen, 392 U. S. 83, 95 (1968). It limits the business of federal courts to "questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process,” and it defines the “role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.” Ibid. Likewise, mootness has two aspects: “when the issues presented are no longer 'live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U. S. 486, 496 (1969).
It is clear that the controversy over the validity of the Parole Release Guidelines is still a “live” one between petitioners and at least some members of the class respondent seeks to represent. This is demonstrated by the fact that prisoners currently affected by the guidelines have moved to be substituted, or to intervene, as “named” respondents in this Court. See n. 1, supra. We therefore are concerned here with the second aspect of mootness, that is, the parties’ interest in the litigation. The Court has referred to this concept as the “personal stake” requirement. E. g., Franks v. Bowman Transportation Co., 424 U. S. 747, 755 (1976); Baker v. Carr, 369 U. S. 186, 204 (1962).
The personal-stake requirement relates to the first purpose of the case-or-controversy doctrine — limiting judicial power to disputes capable of judicial resolution. The Court in Flast v. Cohen, 392 U. S., at 100-101, stated:
“The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. . . . Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has ‘a personal stake in the outcome of the controversy/ Baker v. Carr, [369 U. S.], at 204, and whether the dispute touches upon ‘the legal relations of parties having adverse legal interests/ Aetna Life Insurance Co. v. Haworth, [300 U. S.], at 240-241.”
See also Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 216-218 (1974).
The “personal stake” aspect of mootness doctrine also serves primarily the purpose of assuring that federal courts are presented with disputes they are capable of resolving. One commentator has defined mootness as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Monaghan, Constitutional Adjudication: The Who. and When, 82 Yale L. J. 1363, 1384 (1973).
III
On several occasions the Court has considered the application of the “personal stake” requirement in the class-action context. In Sosna v. Iowa, 419 U. S. 393 (1975), it held that mootness of the named plaintiff’s, individual claim after a class has been duly certified does not render the action moot. It reasoned that “even though appellees . . . might not again enforce the Iowa durational residency requirement against [the class representative], it is clear that they will enforce it against those persons in the class that appellant sought to represent and that the District Court certified.” Id., at 400. The Court stated specifically that an Art. Ill case or controversy “may exist . . . between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.” Id., at 402.
Although one might argue that Sosna contains at least an implication that the critical factor for Art. Ill purposes is the timing of class certification, other cases, applying a “relation back” approach, clearly demonstrate that timing is not crucial. When the claim on the merits is “capable of repetition, yet evading review,” the named plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation. E. g., Gerstein v. Pugh, 420 U. S. 103, 110, n. 11 (1975). The “capable of repetition, yet evading review” doctrine, to be sure, was developed outside the class-action context. See Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 514-515 (1911). But it has been applied where the' named plaintiff does have a personal stake at the outset of the lawsuit, and where the claim may arise again with respect to that plaintiff; the litigation then may continue notwithstanding the named plaintiff's current lack of a personal stake. See, e. g., Weinstein v. Bradford, 423 U. S. 147, 149 (1975); Roe v. Wade, 410 U. S. 113, 123-125 (1973). Since the litigant faces some likelihood of becoming involved in the same controversy in the future, vigorous advocacy can be expected to continue.
When, however, there is no chance that the named plaintiff’s expired claim will reoccur, mootness still can be avoided through certification of a class prior to expiration of the named plaintiff’s personal claim. E. g., Franks v. Bowman Transportation Co., 424 U. S., at 752-757. See Kremens v. Bart- ley, 431 U. S. 119, 129-130 (1977). Some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires. The Court considered this possibility in Gerstein v. Pugh, 420 U. S., at 110, n. 11. Gerstein was an action challenging pretrial detention conditions. The Court assumed that the named plaintiffs were no longer in custody awaiting trial at the time the trial court certified a class of pretrial detainees. There was no indication that the particular named plaintiffs might again be subject to pretrial detention. Nonetheless, the case was held not to be moot because:
“The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.” Ibid.
See also Sosna v. Iowa, 419 U. S., at 402, n. 11.
In two different contexts the Court has stated that the proposed class representative who proceeds to a judgment on the merits may appeal denial of class certification. First, this assumption was “an important ingredient,” Deposit Guaranty Nat. Bank v. Roper, ante, at 338, in the rejection of interlocutory appeals, “as of right,” of class' certification denials. Coopers & Lybrand v. Livesay, 437 U. S. 463, 469, 470, n. 15 (1978). The Court reasoned that denial of class status will not necessarily be the “death knell” of a small-claimant action, since there still remains “the prospect of prevailing on the merits and reversing an order denying class certification.” Ibid.
Second, in United Airlines, Inc. v. McDonald, 432 U. S. 385, 393-395 (1977), the Court held that a putative class member may intervene, for the purpose of appealing the
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
sc_petitionerstate
|
35
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
Philip D. MURPHY, Governor of New Jersey, et al., Petitioners
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.
New Jersey Thoroughbred Horsemen's Association, Inc., Petitioner
v.
National Collegiate Athletic Association, et al.
Nos. 16-476
16-477.
Supreme Court of the United States
Argued Dec. 4, 2017.
Decided May 14, 2018.
Theodore B. Olson, Washington, DC, for Petitioners.
Paul D. Clement, Washington, DC, for Respondents.
Jeffrey B. Wall, Washington, DC, for the United States as amicus curiae, by special leave of the Court, supporting the respondents.
Theodore B. Olson, Matthew D. McGill, Nicole A. Saharsky, Gibson, Dunn & Crutcher LLP, Washington, DC, Ashley E. Johnson, Gibson, Dunn & Crutcher LLP, Dallas, TX, Lauren M. Blas, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Christopher S. Porrino, Attorney General of the State of New Jersey, Stuart M. Feinblatt, Peter Slocum, Office of the Attorney General of the State of New Jersey, Trenton, NJ, for State Petitioners.
Michael R. Griffinger, Thomas R. Valen, Jennifer A. Hradil, Gibbons P.C., Newark, NJ, for Legislator Petitioners.
Jeffrey A. Mishkin, Anthony J. Dreyer, Skadden Arps Slate Meagher & Flom LLP, New York, NY, Paul D. Clement, Erin E. Murphy, Edmund G. LaCour Jr., Michael D. Lieberman, Kirkland & Ellis LLP, Washington, DC, for Respondents.
Justice ALITO delivered the opinion of the Court.
The State of New Jersey wants to legalize sports gambling at casinos and horseracing tracks, but a federal law, the Professional and Amateur Sports Protection Act, generally makes it unlawful for a State to "authorize" sports gambling schemes. 28 U.S.C. § 3702(1). We must decide whether this provision is compatible with the system of "dual sovereignty" embodied in the Constitution.
I
A
Americans have never been of one mind about gambling, and attitudes have swung back and forth. By the end of the 19th century, gambling was largely banned throughout the country, but beginning in the 1920s and 1930s, laws prohibiting gambling were gradually loosened.
New Jersey's experience is illustrative. In 1897, New Jersey adopted a constitutional amendment that barred all gambling in the State. But during the Depression, the State permitted parimutuel betting on horse races as a way of increasing state revenue, and in 1953, churches and other nonprofit organizations were allowed to host bingo games. In 1970, New Jersey became the third State to run a state lottery, and within five years, 10 other States followed suit.
By the 1960s, Atlantic City, "once the most fashionable resort of the Atlantic Coast," had fallen on hard times, and casino gambling came to be seen as a way to revitalize the city. In 1974, a referendum on statewide legalization failed, but two years later, voters approved a narrower measure allowing casino gambling in Atlantic City alone. At that time, Nevada was the only other State with legal casinos, and thus for a while the Atlantic City casinos had an east coast monopoly. "With 60 million people living within a one-tank car trip away," Atlantic City became "the most popular tourist destination in the United States." But that favorable situation eventually came to an end.
With the enactment of the Indian Gaming Regulatory Act in 1988, 25 U.S.C. § 2701 et seq., casinos opened on Indian land throughout the country. Some were located within driving distance of Atlantic City, and nearby States (and many others) legalized casino gambling. But Nevada remained the only state venue for legal sports gambling in casinos, and sports gambling is immensely popular.
Sports gambling, however, has long had strong opposition. Opponents argue that it is particularly addictive and especially attractive to young people with a strong interest in sports, and in the past gamblers corrupted and seriously damaged the reputation of professional and amateur sports. Apprehensive about the potential effects of sports gambling, professional sports leagues and the National Collegiate Athletic Association (NCAA) long opposed legalization.
B
By the 1990s, there were signs that the trend that had brought about the legalization of many other forms of gambling might extend to sports gambling, and this sparked federal efforts to stem the tide. Opponents of sports gambling turned to the legislation now before us, the Professional and Amateur Sports Protection Act (PASPA). 28 U.S.C. § 3701 et seq. PASPA's proponents argued that it would protect young people, and one of the bill's sponsors, Senator Bill Bradley of New Jersey, a former college and professional basketball star, stressed that the law was needed to safeguard the integrity of sports. The Department of Justice opposed the bill, but it was passed and signed into law.
PASPA's most important provision, part of which is directly at issue in these cases, makes it "unlawful" for a State or any of its subdivisions "to sponsor, operate, advertise, promote, license, or authorize by law or compact ... a lottery, sweepstakes, or other betting, gambling, or wagering scheme based ... on" competitive sporting events. § 3702(1). In parallel, § 3702(2) makes it "unlawful" for "a person to sponsor, operate, advertise, or promote" those same gambling schemes -but only if this is done "pursuant to the law or compact of a governmental entity." PASPA does not make sports gambling a federal crime (and thus was not anticipated to impose a significant law enforcement burden on the Federal Government). Instead, PASPA
allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations. § 3703.
At the time of PASPA's adoption, a few jurisdictions allowed some form of sports gambling. In Nevada, sports gambling was legal in casinos, and three States hosted sports lotteries or allowed sports pools. PASPA contains "grandfather" provisions allowing these activities to continue. § 3704(a)(1)-(2). Another provision gave New Jersey the option of legalizing sports gambling in Atlantic City-provided that it did so within one year of the law's effective date. § 3704(a)(3).
New Jersey did not take advantage of this special option, but by 2011, with Atlantic City facing stiff competition, the State had a change of heart. New Jersey voters approved an amendment to the State Constitution making it lawful for the legislature to authorize sports gambling, Art. IV, § 7, ¶ 2 (D), (F), and in 2012 the legislature enacted a law doing just that, 2011 N.J. Laws p. 1723 (2012 Act).
The 2012 Act quickly came under attack. The major professional sports leagues and the NCAA brought an action in federal court against the New Jersey Governor and other state officials (hereinafter New Jersey), seeking to enjoin the new law on the ground that it violated PASPA. In response, the State argued, among other things, that PASPA unconstitutionally infringed the State's sovereign authority to end its sports gambling ban. See National Collegiate Athletic Assn. v. Christie, 926 F.Supp.2d 551, 561 (D.N.J.2013).
In making this argument, the State relied primarily on two cases, New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), and Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), in which we struck down federal laws based on what has been dubbed the "anticommandeering" principle. In New York, we held that a federal law unconstitutionally ordered the State to regulate in accordance with federal standards, and in Printz, we found that another federal statute unconstitutionally compelled state officers to enforce federal law.
Relying on these cases, New Jersey argued that PASPA is similarly flawed because it regulates a State's exercise of its lawmaking power by prohibiting it from modifying or repealing its laws prohibiting sports gambling. See National Collegiate Athletic Assn. v. Christie, 926 F.Supp.2d, at 561-562. The plaintiffs countered that PASPA is critically different from the commandeering cases because it does not command the States to take any affirmative act. Id., at 562. Without an affirmative federal command to do something, the plaintiffs insisted, there can be no claim of commandeering. Ibid.
The District Court found no anticommandeering violation, id., at 569-573, and a divided panel of the Third Circuit affirmed, National Collegiate Athletic Assn. v. Christie, 730 F.3d 208 (2013) (Christie I ). The panel thought it significant that PASPA does not impose any affirmative command. Id., at 231. In the words of the panel, "PASPA does not require or coerce the states to lift a finger." Ibid. (emphasis deleted). The panel recognized that an affirmative command (for example, "Do not repeal") can often be phrased as a prohibition ("Repeal is prohibited"), but the panel did not interpret PASPA as prohibiting the repeal of laws outlawing sports gambling. Id., at 232. A repeal, it thought, would not amount to "authoriz[ation]" and thus would fall outside the scope of § 3702(1). "[T]he lack of an affirmative prohibition of an activity," the panel wrote, "does not mean it is affirmatively authorized by law. The right to do that which is not prohibited derives not from the authority of the state but from the inherent rights of the people." Id., at 232 (emphasis deleted).
New Jersey filed a petition for a writ of certiorari, raising the anticommandeering issue. Opposing certiorari, the United States told this Court that PASPA does not require New Jersey "to leave in place the state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA's enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in part." Brief for United States in Opposition in Christie v. National Collegiate Athletic Assn., O.T. 2013, No. 13-967 etc., p. 11. See also Brief for Respondents in Opposition in No. 13-967 etc., p. 23 ("Nothing in that unambiguous language compels states to prohibit or maintain any existing prohibition on sports gambling"). We denied review. Christie v. National Collegiate Athletic Assn ., 573 U.S. ----, 134 S.Ct. 2866, 189 L.Ed.2d 806 (2014).
Picking up on the suggestion that a partial repeal would be allowed, the New Jersey Legislature enacted the law now before us. 2014 N.J. Laws p. 602 (2014 Act). The 2014 Act declares that it is not to be interpreted as causing the State to authorize, license, sponsor, operate, advertise, or promote sports gambling. Ibid. Instead, it is framed as a repealer. Specifically, it repeals the provisions of state law prohibiting sports gambling insofar as they concerned the "placement and acceptance of wagers" on sporting events by persons 21 years of age or older at a horseracing track or a casino or gambling house in Atlantic City. Ibid. The new law also specified that the repeal was effective only as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State. Ibid.
Predictably, the same plaintiffs promptly commenced a new action in federal court. They won in the District Court, National Collegiate Athletic Assn. v. Christie, 61 F.Supp.3d 488 (N.J.2014), and the case was eventually heard by the Third Circuit sitting en banc. The en banc court affirmed, finding that the new law, no less than the old one, violated PASPA by "author[izing]" sports gambling. National Collegiate Athletic Assn. v. Governor of N. J., 832 F.3d 389 (2016) (case below). The court was unmoved by the New Jersey Legislature's "artful[ ]" attempt to frame the 2014 Act as a repealer. Id., at 397. Looking at what the law "actually does," the court concluded that it constitutes an authorization because it "selectively remove[s] a prohibition on sports wagering in a manner that permissively channels wagering activity to particular locations or operators." Id., at 397, 401. The court disavowed some of the reasoning in the Christie I opinion, finding its discussion of "the relationship between a 'repeal' and an 'authorization' to have been too facile." 832 F.3d, at 401. But the court declined to say whether a repeal that was more complete than the 2014 Act would still amount to an authorization. The court observed that a partial repeal that allowed only "de minimis wagers between friends and family would not have nearly the type of authorizing effect" that it found in the 2014 Act, and it added: "We need not ... articulate a line whereby a partial repeal of a sports wagering ban amounts to an authorization under PASPA, if indeed such a line could be drawn ." Id., at 402 (emphasis added).
Having found that the 2014 Act violates PASPA's prohibition of state authorization of sports gambling schemes, the court went on to hold that this prohibition does not contravene the anticommandeering principle because it "does not command states to take affirmative actions." Id., at 401.
We granted review to decide the important constitutional question presented by these cases, sub nom . Christie v. National Collegiate Athletic Assn., 582 U.S. ----, 137 S.Ct. 2327, 198 L.Ed.2d 754 (2017).
II
Before considering the constitutionality of the PASPA provision prohibiting States from "author[izing]" sports gambling, we first examine its meaning. The parties advance dueling interpretations, and this dispute has an important bearing on the constitutional issue that we must decide. Neither respondents nor the United States, appearing as an amicus in support of respondents, contends that the provision at issue would be constitutional if petitioners' interpretation is correct. Indeed, the United States expressly concedes that the provision is unconstitutional if it means what petitioners claim. Brief for United States 8, 19.
A
Petitioners argue that the anti-authorization provision requires States to maintain their existing laws against sports gambling without alteration. One of the accepted meanings of the term "authorize," they point out, is "permit." Brief for Petitioners in No. 16-476, p. 42 (citing Black's Law Dictionary 133 (6th ed. 1990); Webster's Third New International Dictionary 146 (1992)). They therefore contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to an authorization. Brief for Petitioners in No. 16-476, at 42.
Respondents interpret the provision more narrowly. They claim that the primary definition of "authorize" requires affirmative action. Brief for Respondents 39. To authorize, they maintain, means " '[t]o empower; to give a right or authority to act; to endow with authority.' " Ibid. (quoting Black's Law Dictionary, at 133). And this, they say, is precisely what the 2014 Act does: It empowers a defined group of entities, and it endows them with the authority to conduct sports gambling operations.
Respondents do not take the position that PASPA bans all modifications of old laws against sports gambling, Brief for Respondents 20, but just how far they think a modification could go is not clear. They write that a State "can also repeal or enhance [laws prohibiting sports gambling] without running afoul of PASPA" but that it "cannot 'partially repeal' a general prohibition for only one or two preferred providers, or only as to sports-gambling schemes conducted by the state." Ibid. Later in their brief, they elaborate on this point:
"If, for example, a state had an existing felony prohibition on all lotteries, it could maintain the law, it could repeal the law, it could downgrade the crime to a misdemeanor or increase the penalty.... But if the state modified its law, whether through a new authorization or through an amendment partially repealing the existing prohibition, to authorize the state to conduct a sports lottery, that modified law would be preempted." Id., at 31.
The United States makes a similar argument. PASPA, it contends, does not prohibit a State from enacting a complete repeal because "one would not ordinarily say that private conduct is 'authorized by law' simply because the government has not prohibited it." Brief for United States 17. But the United States claims that "[t]he 2014 Act's selective and conditional permission to engage in conduct that is generally prohibited certainly qualifies" as an authorization. Ibid. The United States does not argue that PASPA outlaws all partial repeals, but it does not set out any clear rule for distinguishing between partial repeals that constitute the "authorization" of sports gambling and those that are permissible. The most that it is willing to say is that a State could "eliminat[e] prohibitions on sports gambling involving wagers by adults or wagers below a certain dollar threshold." Id., at 29.
B
In our view, petitioners' interpretation is correct: When a State completely or partially repeals old laws banning sports gambling, it "authorize[s]" that activity. This is clear when the state-law landscape at the time of PASPA's enactment is taken into account. At that time, all forms of sports gambling were illegal in the great majority of States, and in that context, the competing definitions offered by the parties lead to the same conclusion. The repeal of a state law banning sports gambling not only "permits" sports gambling (petitioners' favored definition); it also gives those now free to conduct a sports betting operation the "right or authority to act"; it "empowers" them (respondents' and the United States's definition).
The concept of state "authorization" makes sense only against a backdrop of prohibition or regulation. A State is not regarded as authorizing everything that it does not prohibit or regulate. No one would use the term in that way. For example, no one would say that a State "authorizes" its residents to brush their teeth or eat apples or sing in the shower. We commonly speak of state authorization only if the activity in question would otherwise be restricted.
The United States counters that, even if the term "authorize," standing alone, is interpreted as petitioners claim, PASPA contains additional language that precludes that reading. The provision at issue refers to "authoriz[ation] by law, " § 3702(1) (emphasis added), and the parallel provision governing private conduct, § 3702(2), applies to conduct done "pursuant to the law ... of a governmental entity." The United States maintains that one "would not naturally describe a person conducting a sports-gambling operation that is merely left unregulated as acting 'pursuant to' state law." Brief for United States 18. But one might well say exactly that if the person previously was prohibited from engaging in the activity. ("Now that the State has legalized the sale of marijuana, Joe is able to sell the drug pursuant to state law.")
The United States also claims to find support for its interpretation in the fact that the authorization ban applies to all "governmental entities." It is implausible, the United States submits, to think that Congress "commanded every county, district, and municipality in the Nation to prohibit sports betting." Ibid. But in making this argument, the United States again ignores the legal landscape at the time of PASPA's enactment. At that time, sports gambling was generally prohibited by state law, and therefore a State's political subdivisions were powerless to legalize the activity. But what if a State enacted a law enabling, but not requiring, one or more of its subdivisions to decide whether to authorize sports gambling? Such a state law would not itself authorize sports gambling. The ban on legalization at the local level addresses this problem.
The interpretation adopted by the Third Circuit and advocated by respondents and the United States not only ignores the situation that Congress faced when it enacted PASPA but also leads to results that Congress is most unlikely to have wanted. This is illustrated by the implausible conclusions that all of those favoring alternative interpretations have been forced to reach about the extent to which the provision permits the repeal of laws banning sports gambling.
The Third Circuit could not say which, if any, partial repeals are allowed. 832 F.3d, at 402. Respondents and the United States tell us that the PASPA ban on state authorization allows complete repeals, but beyond that they identify no clear line. It is improbable that Congress meant to enact such a nebulous regime.
C
The respondents and United States argue that even if there is some doubt about the correctness of their interpretation of the anti-authorization provision, that interpretation should be adopted in order to avoid any anticommandeering problem that would arise if the provision were construed to require States to maintain their laws prohibiting sports gambling. Brief for Respondents 38; Brief for United States 19. They invoke the canon of interpretation that a statute should not be held to be unconstitutional if there is any reasonable interpretation that can save it. See Jennings v. Rodriguez, 583 U.S. ----, ----, 138 S.Ct. 830, 841-842, 200 L.Ed.2d 122 (2018). The plausibility of the alternative interpretations is debatable, but even if the law could be interpreted as respondents and the United States suggest, it would still violate the anticommandeering principle, as we now explain.
III
A
The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States. When the original States declared their independence, they claimed the powers inherent in sovereignty-in the words of the Declaration of Independence, the authority "to do all ... Acts and Things which Independent States may of right do." ¶ 32. The Constitution limited but did not abolish the sovereign powers of the States, which retained "a residuary and inviolable sovereignty." The Federalist No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of "dual sovereignty." Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991).
The Constitution limits state sovereignty in several ways. It directly prohibits the States from exercising some attributes of sovereignty. See, e.g., Art. I, § 10. Some grants of power to the Federal Government have been held to impose implicit restrictions on the States. See, e.g., Department of Revenue of Ky. v. Davis, 553 U.S. 328, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008) ; American Ins. Assn. v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003). And the Constitution indirectly restricts the States by granting certain legislative powers to Congress, see Art. I, § 8, while providing in the Supremacy Clause that federal law is the "supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," Art. VI, cl. 2. This means that when federal and state law conflict, federal law prevails and state law is preempted.
The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.
Although the anticommandeering principle is simple and basic, it did not emerge in our cases until relatively recently, when Congress attempted in a few isolated instances to extend its authority in unprecedented ways. The pioneering case was New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), which concerned a federal law that required a State, under certain circumstances, either to "take title" to low-level radioactive waste or to "regulat[e] according to the instructions of Congress." Id., at 175, 112 S.Ct. 2408. In enacting this provision, Congress issued orders to either the legislative or executive branch of state government (depending on the branch authorized by state law to take the actions demanded). Either way, the Court held, the provision was unconstitutional because "the Constitution does not empower Congress to subject state governments to this type of instruction." Id., at 176, 112 S.Ct. 2408.
Justice O'Connor's opinion for the Court traced this rule to the basic structure of government established under the Constitution. The Constitution, she noted, "confers upon Congress the power to regulate individuals, not States." Id., at 166, 112 S.Ct. 2408. In this respect, the Constitution represented a sharp break from the Articles of Confederation. "Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly." Id., at 163, 112 S.Ct. 2408. Instead, Congress was limited to acting " 'only upon the States.' " Id., at 162, 112 S.Ct. 2408 (quoting Lane County v. Oregon, 7 Wall. 71, 76, 19 L.Ed. 101 (1869) ). Alexander Hamilton, among others, saw this as " '[t]he great and radical vice in ... the existing Confederation.' " 505 U.S., at 163, 112 S.Ct. 2408 (quoting The Federalist No. 15, at 108). The Constitutional Convention considered plans that would have preserved this basic structure, but it rejected them in favor of a plan under which "Congress would exercise its legislative authority directly over individuals rather than over States." 505 U.S., at 165, 112 S.Ct. 2408.
As to what this structure means with regard to Congress's authority to control state legislatures, New York was clear and emphatic. The opinion recalled that "no Member of the Court ha[d] ever suggested" that even "a particularly strong federal interest" "would enable Congress to command a state government to enact state regulation." Id., at 178, 112 S.Ct. 2408 (emphasis in original). "We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts." Id., at 166, 112 S.Ct. 2408. "Congress may not simply 'commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.' " Id., at 161, 112 S.Ct. 2408 (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc ., 452 U.S. 264, 288, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) ). "Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents." 505 U.S., at 178, 112 S.Ct. 2408.
Five years after New York, the Court applied the same principles to a federal statute requiring state and local law enforcement officers to perform background checks and related tasks in connection with applications for handgun licenses. Printz, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914. Holding this provision unconstitutional, the Court put the point succinctly: "The Federal Government" may not "command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." Id., at 935, 117 S.Ct. 2365. This rule applies, Printz held, not only to state officers with policymaking responsibility but also to those assigned more mundane tasks. Id., at 929-930, 117 S.Ct. 2365.
B
Our opinions in New York and Printz explained why adherence to the anticommandeering principle is important. Without attempting a complete survey, we mention several reasons that are significant here.
First, the rule serves as "one of the Constitution's structural protections of liberty." Printz, supra, at 921, 117 S.Ct. 2365. "The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities." New York, supra, at 181, 112 S.Ct. 2408. "To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals." Ibid. " '[A] healthy balance of power between the States and the Federal Government [reduces] the risk of tyranny and abuse from either front.' " Id., at 181-182, 112 S.Ct. 2408 (quoting Gregory, 501 U.S., at 458, 111 S.Ct. 2395 ).
Second, the anticommandeering rule promotes political accountability. When Congress itself regulates, the responsibility for the benefits and burdens of the regulation is apparent. Voters who like or dislike the effects of the regulation know who to credit or blame. By contrast, if a State imposes regulations only because it has been commanded to do so by Congress, responsibility is blurred. See New York, supra, at 168-169, 112 S.Ct. 2408 ; Printz, supra, at 929-930, 117 S.Ct. 2365.
Third, the anticommandeering principle prevents Congress from shifting the costs of regulation to the States. If Congress enacts a law and requires enforcement by the Executive Branch, it must appropriate the funds needed to administer the program. It is pressured to weigh the expected benefits of the program against its costs. But if Congress can compel the States to enact and enforce its program, Congress need not engage in any such analysis. See, e.g., E. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1360-1361 (2001).
IV
A
The PASPA provision at issue here-prohibiting state authorization of sports gambling-violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.
Neither respondents nor the United States contends that Congress can compel a State to enact legislation, but they say that prohibiting a State from enacting new laws is another matter. See Brief for Respondents 19; Brief for United States 12. Noting that the laws challenged in New York and Printz "told states what they must do instead of what they must not do," respondents contend that commandeering occurs "only when Congress goes beyond precluding state action and affirmatively commands it." Brief for Respondents 19 (emphasis deleted).
This distinction is empty. It was a matter of happenstance that the laws challenged in New York and Printz commanded "affirmative" action as opposed to imposing a prohibition. The basic principle-that Congress cannot issue direct orders to state legislatures-applies in either event.
Here is an illustration. PASPA includes an exemption for States that permitted sports betting at the time of enactment, § 3704, but suppose Congress did not adopt such an exemption. Suppose Congress ordered States with legalized sports betting to take the affirmative step of criminalizing that activity and ordered the remaining States to retain their laws prohibiting sports betting. There is no good reason why the former would intrude more deeply on state sovereignty than the latter.
B
Respondents and the United States claim that prior decisions of this Court show that PASPA's anti-authorization provision is constitutional, but they misread those cases. In none of them did we uphold the constitutionality of a federal statute that commanded state legislatures to enact or refrain from enacting state law.
In South Carolina v. Baker, 485 U.S. 505, 108 S.Ct. 1355, 99 L.Ed.2d 592 (1988), the federal law simply altered the federal tax treatment of private investments. Specifically, it removed the federal tax exemption for interest earned on state and local bonds unless they were issued in registered rather than bearer form. This law did not order the States to enact or maintain any existing laws. Rather, it simply had the indirect effect of pressuring States to increase the rate paid on their bearer bonds in order to make them competitive with other bonds paying taxable interest.
In any event, even if we assume
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_procedur
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D
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Robert R. MAYBERRY, Plaintiff, Appellant, v. Benjamin C. ADAMS, etc., Defendant, Appellee.
No. 84-1399.
United States Court of Appeals, First Circuit.
Argued Sept. 13, 1984.
Decided Oct. 9, 1984.
Lawrence M. Edelman, Hampton, N.H., with whom Sanders & McDermott, Hampton, N.H., was on brief, for plaintiff, appellant.
Daniel J. Mullen, Asst. Atty. Gen., Concord, N.H., with whom Gregory H. Smith, Atty. Gen., Concord, N.H., was on brief, for defendant, appellee.
Before BOWNES, Circuit Judge, and ALDRICH and SKELTON, Senior Circuit Judges.
Of the Federal Circuit, sitting by designation.
PER CURIAM.
Put simply, the question in this Civil Rights action is whether, following the enactment of Pub.L. 96-364, 94 Stat. 1310 (1980), amending 26 U.S.C. § 3304(a)(15), the State of New Hampshire, in 1981 and 1982, was prohibited, in determining an individual’s unemployment weekly payments, from deducting — or crediting — the amount reasonably attributable to that week that the individual was receiving from a government pension payable to him on account of his having served 20 years or more in the Armed Services. RSA 282-A:28, as it then read. The district court ruled in favor of the State. We affirm, on the basis of the recent Fourth Circuit opinion in Watkins v. Cantrell, 736 F.2d 933 (4th Cir.1984), in which the court answered fully exactly the same arguments that appellant makes today.
We add that we are offended by appellant’s concept that because of an at least reasonable statutory interpretation by the State he should receive, if it proved mistaken, in addition to back payments and counsel fees, $100,000 damages for emotional distress and a like sum for punitive damages. A state is obliged to make statutory interpretations for the benefit of its citizens, and it should not have to do so in terrorem. Cf. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-63, 267-69, 101 S.Ct. 2748, 2755-58, 2759-61, 69 L.Ed.2d 616 (1981) (policies of deterrence and punishment of willful wrongdoing may in appropriate circumstances warrant awards of punitive damages against officials personally, but do not support such awards against municipalities; innocent taxpayers should not bear this burden).
Affirmed; costs to appellee.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_counsel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Ronald D. VETETO, Appellant, v. H.G. MILLER and other named unidentified employees of the Bureau of Prisons.
No. 85-5553.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) May 8, 1986.
Decided June 19, 1986.
Ronald D. Veteto, pro se.
James J. West, U.S. Atty., Harrisburg, Pa., James W. Walker, Asst. U.S. Atty., Scranton, Pa., for appellees.
Before ADAMS, HIGGINBOTHAM and MARIS, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
The plaintiff, Ronald D. Veteto, an inmate of the federal penitentiary at Lewis-burg, Pennsylvania, filed a complaint pro se in the District Court for the Middle District of Pennsylvania against Warden Miller and other unnamed employees of the federal Bureau of Prisons alleging violations of his constitutional rights. The principal violation alleged was denial of access to the courts by depriving him of writing materials, stationery and stamps and of access to the prison law library. The complaint also alleged deprivation of meals, clean clothes, showers and recreation periods. Alleging that plaintiff had “repeatedly requested administrative remedies” from the defendants with no response or success, the complaint sought injunctive relief and also compensatory and punitive damages. Stating that it did not agree with the plaintiff’s assertion that he had exhausted his administrative remedy, the district court dismissed the complaint for his failure to do so. The present appeal followed.
Pursuant to authority conferred on him by the Attorney General, 28 CFR § 0.96(t), the Director of the Bureau of Prisons has promulgated regulations providing for a three-stage system for considering prisoners’ grievances and granting relief when justified. 44 FR 62250, 28 CFR § 542.10 et seq. In Waddell v. Alldredge, 480 F.2d 1078 (3d Cir.1973), this court held that it is incumbent upon a federal prisoner seeking mandatory relief from the actions of prison authorities alleged to violate his constitutional rights to exhaust this administrative remedy before seeking judicial relief. Because it concluded that the facts asserted in the complaint did not show an exhaustion of the administrative remedy, the district court dismissed the complaint in the present case under the authority of the Waddell case.
In Muhammad v. Carlson, 739 F.2d 122 (3d Cir.1984), we held that a federal prisoner suing only for money damages for the alleged violation by prison authorities of his constitutional rights is not bound by the exhaustion of remedy requirement since he can obtain no monetary relief from the Bureau of Prisons against individual defendants. The basic question with which we are here confronted is whether in a case such as the present one in which both in-junctive relief and damages are claimed, the rule of the Muhammad case should apply or whether the Waddell rule is applicable.
While this court has not heretofore expressly ruled on this question, at least two other circuits have held the exhaustion requirement applicable in such a case. Miller v. Stanmore, 636 F.2d 986, 990-991 (5th Cir.1981); Brice v. Day, 604 F.2d 664 (10th Cir.1979). Indeed, it was implicitly so ruled in our Waddell case since that case also involved a claim for damages as is indicated by footnote 1 to the opinion. 480 F.2d at 1078. Moreover, to hold that the exhaustion rule is not to be applied in a case seeking injunctive or mandatory relief if the complaint also claims damages would render the rule a virtual nullity. For all that a prisoner claiming injunctive or mandatory relief need do to avoid application of the exhaustion rule would be to add a claim for damages. We hold that the requirement for exhaustion of the administrative remedy provided by the regulations applies to a prisoner’s suit for injunctive or mandatory relief whether or not it carries an added claim for damages.
It remains to consider whether the district court erred in dismissing the complaint on nonexhaustion grounds based solely on the allegations of that pleading and without service, answer or preliminary hearing on the question. We think that the court did err in so doing and that in line with the settled policy to construe pro se complaints liberally, the case should be remanded to enable the plaintiff, if so minded, to amend his complaint so as to supply more specific facts on this subject and to enable the court to hold a preliminary hearing, if needed, to establish the background facts with respect to the plaintiff’s claim to have exhausted the remedy provided for him by the Bureau of Prison regulations. If it is found that the administrative remedy has not been exhausted, the complaint should be dismissed without prejudice to its reinstatement if, upon completion of the administrative procedure, the plaintiff has not received the relief to which he believes himself to be entitled. If, on the other hand, it is found that the plaintiff has exhausted his remedy in the Bureau of Prisons without obtaining the relief to which he believes himself to be entitled, the court should hear the case and accord the plaintiff such relief as the facts and the law warrant.
The judgment of the district court will be vacated and the cause remanded for further proceedings not inconsistent with this opinion.
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_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.
GOODALL-SANFORD, Inc., Defendant, Appellant, v. UNITED TEXTILE WORKERS OF AMERICA, AFL, LOCAL 1802 et al., Plaintiffs, Appellees.
No. 5029.
United States Court of Appeals First Circuit.
Heard Nov. 3, 1955.
Decided April 25, 1956.
William B. Mahoney, Portland, Me., with whom Daniel T. Drummond, Jr., Douglas M. Orr, and Drummond & Drummond, Portland, Me., were on the brief, for appellant.
Sidney W. Wernick, Portland, Me., with whom Berman, Berman & Wernick, Portland, Me., was on the brief, for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Chief Judge.
This ease is the third one decided today on problems relating to the power of a federal district court to compel arbitration in accordance with a collective bargaining agreement. However, the instant case reached this court in a posture different from that of the other two; and it involves additional considerations not present in Local 205, United Electrical, etc., Workers v. General Electric Co., 1 Cir., 233 F.2d 85, or Newspaper Guild of Boston v. Boston Herald-Traveler Corp., 1 Cir., 233 F.2d 102.
Plaintiffs herein, a local labor organization and its parent national union, represented employees of defendant Company at plants in Sanford and Springvale, Maine, in an industry affecting commerce. The last collective bargaining agreement between the parties, as renewed in June, 1954, provided that it was to “continue in full force and effect” until July 15, 1955. The past tense is used advisedly, for defendant, because of continued heavy losses, commenced to terminate all operations at its Sanford and Springvale mills and inaugurated a program of liquidation during the second half of 1954. Production was limited to “running out” products in process, at the completion of which the several mills were shut down completely. By April, 1955, all production operations had ended and all of the real estate and buildings had been sold; the corporation was to go out of existence after liquidating completely.
On December 29, 1954, and February 18,1955, certain groups of employees (totaling approximately 1400) were notified that their respective employment with the Company was being terminated as of those dates and that their names were being removed from the payroll records. Although the workers were already on lay-off status, those actions were significant with respect to various “fringe benefits” provided in the collective bargaining agreement, including group life, medical, and hospitalization insurance, pensions, and vacation pay. The Union protested each of these notifications, achieving a month’s delay as to the first group of terminations, and subsequently it requested arbitration of the entire problem in accordance with the contract, which will be described in some detail later in this opinion. The Company declined to arbitrate, deeming the terminations not an arbitrable matter under the contract. On March 15, 1955, the Union filed its complaint in the present action, invoking § 301 of the Taft-Hartley Act, 61 Stat. 156, 29 U.S.C.A. § 185, as the basis for jurisdiction, and praying for an order to compel arbitration and for interlocutory injunctive relief. A restraining order and a preliminary injunction were granted, D.C., 129 F.Supp. 859, which forbade the termination, but on May 20,1955, Judge Clifford dissolved the preliminary injunction. No questions touching upon the granting or dissolving of the injunction are presented on this appeal. In an opinion and order of June 1, 1955, D.C., 131 F.Supp. 767, the district court granted the Union’s motion for summary judgment on its prayer for specific performance of the arbitration provision, and subsequently entered a decree which will be described later. The Company appeals from that decree.
I.
At the outset we must note a question as to whether the order and decree of the district court are appealable. The decree recites, as did the arbitration provision of the contract, that the decision of the arbitrator “shall be final and binding” on the parties. Thus it seems that the court did not intend to reserve jurisdiction to confirm the arbitrator’s decision. Perhaps it could not have done so with respect to this contract calling for a “final and binding” award, since the Arbitration Act, 9 U.S.C. § 9, seems to authorize confirmation of an award by summary proceedings in the district court only when the contract includes an express stipulation for entry of judgment upon the award. See Hyman v. Pottberg’s Ex’rs, 2 Cir., 1939, 101 F.2d 262, 266; Lehigh Structural Steel Co. v. Rust Engineering Co., 1932, 61 App.D.C. 224, 59 F.2d 1038 ; S.Rep.No. 536, 68th-Cong., 1st. Sess. 4 (1924). It must; bn recognized, however, that even without .a reservation of jurisdiction to confirm' the eventual award, a decree ordering parties to arbitrate obviously does not purport to adjudicate the, merits;.of the controversy or finally terminate it. And where arbitration is sought through the related procedure for stay of a pending action pursuant to § 3 of the Arbitration Act, an appeal prior, to the arbitration is only available, under 28 U.S.C. §, 1292(1), whether the stay is granted or denied, .if the pending action was “legal” rather .than “equitable” in character. Baltimore Contractors, Inc. v. Bodinger, 1955, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233. The appeal at that stage may be unavailable under the test of the Baltimore Contractors case even where a request for. aiv affirmative order compelling the other party to arbitrate was joined with the request for a stay. Wilson Bros. v. Textile Workers Union, 2 Cir., 1955, 224 F.2d 176; Turkish State Railways Administration v. Vulcan Iron Works, 3 Cir. 1956, 230 F.2d 108; cf. Schoenamsgruber v. Hamburg American Line, 1935, 294 U.S. 454, 55. S.Ct. 475, 79 L.Ed. 989, (§ 8), Chief Judge Clark has suggested that where an order to compel arbitration is granted, in an independent proceeding under § 4, the appeal likewise should be denied, not only to make availability of appeal more consistent with the practice under other sections of the Arbitration Act, but also because an appeal prior to the arbitration may be “disruptive and delaying.” See Stathatos v. Arnold Bernstein S. S. Corp., 2 Cir., 1953, 202 F.2d 525, 527. There is much force to this view, although we doubt that a completely consistent' pattern of appeal could, be achieved in view of the variant situations illustrated by the cases already cited. At any rate, we are more persuade ed by some of the older precedents, which viewed a § 4 proceeding as completed upon the granting of the only relief sought, an order of the court compelling arbitration, and thus held that order to be “final” in the sense of 28 U.S.C. § 1291. Krauss Bros. Lumber Co. v. Louis Bossert & Sons, Inc., 2 Cir., 1933, 62 F.2d 1004; Continental Grain Co. v. Dant & Russell, Inc., 9 Cir., 1941, 118 F.2d 967. This holding, which we adopt here, contributes consistency at least to the extent that appeal is equally available whether the court grants or denies an order to arbitrate, for dismissal of-a § 4 petition on the merits is clearly a final judgment.
II.
The district court did not proceed under the Arbitration Act, 9 U.S.C. § 1 et seq., in this case, but found its authority to compel arbitration in § 301, relying upon some of the decisions discussed in our opinion today in Local 205, United Electrical, etc., v. General Electric Co., 1 Cir., 233 F.2d 85. For the reasons stated in the latter opinion, we do not accept this approach. But our holding in the General Electric case applies here; if the terms of the Arbitration Act are satisfied, the decision to compel arbitration was within the power of the district court.
. It would .be merely dilatory at this stage to remand this case for amendment of pleadings to allege compliance and .defenses under the Arbitration Act. In the other two cases decided today, wherein the district court had denied an order to arbitrate, remand for a decision on the merits was necessary, and so affording an opportunity to amend was appropriate. Here the district court has ruled on the merits, and we may proceed to review that decision, after determining from the record that the case substantially complies with the requisites of the Arbitration Act.
The arbitration clause at issue comes within the scope of § 2 of that Act. Article VIII of the contract provides that
“any dispute which relates solely'to the meaning and application of this Agreement or any individual grievance may be referred to arbitration by written notice by either party to the other. * * * Arbitration shall be in accordance with the following procedure: * * *
“2. The Arbitrator shall have no power to add to or to subtract from the terms of this Agreement. * * *»
The four-step grievance procedure that precedes arbitration in Art. VIII was not carried out here, although conferences somewhat equivalent to step 4 took place. At any rate, the Company may be taken to have waived compliance with that procedure by its failure to allege that ground in resisting arbitration in the court below. The proceedings in that court in substance were equivalent to the procedure of § 4 of the Act. There was no issue over “the making of the agreement for arbitration or the failure to comply therewith”, other than the question of arbitrability of the dispute. This the court determined upon motion for summary judgment. Since there was no controverted issue of material fact and the question of arbitrability turned only upon interpretation of the written contract, summary judgment was an appropriate vehicle for the decision, not inconsistent with the provision of § 4 for trial to a jury or the court of controverted -issues regarding the making or breach of the agreement to arbitrate. See also part IV of our opinion in the General Electric case.
The decree ordered the parties to agree upon a person to serve as arbitrator but provided for selection of an arbitrator by the court if the parties, failed to agree upon one within ten days. The order to select an arbitrator was consistent with Art. VIII of the contract, and the power of the court to make the appointment in the event the parties failed to do so is expressly conferred by § 5 of the Arbitration Act. The decree also provided, as already noted, that the award was to be “final and binding,” and it framed the questions to be submitted to arbitration as follows;
a. Did Goodall-Sanford, Inc. violate the collective bargaining agreement * * * [by taking the action described at the beginning of our opinion] * * *;
“b. If a violation of contract was committed by Goodall-Sanford, Inc. what must be done by Goodall-Sanford, Inc. appropriately and fully to remedy the said wrong to the employees affected, in accordance with the terms and provisions of the entire collective bargaining agreement.”
This formulation of the issues in dispute is accurate and serves to limit the arbitrator to the matters deemed arbitrable by the court, a limitation of which defendant cannot complain. Defendant has argued here that the second question, taken with the provision for finality, is somehow improper. We do not understand this. Arbitrators conventionally award appropriate relief, upon finding a breach of contract; there would be little point to arbitration otherwise, and the parties must have understood that in placing an arbitration clause in their collective bargaining agreement. The contract itself provides for finality of an award, so that provision of the decree has no particular effect. Of course, despite “finality” an award is subject to some degree of judicial review through 9 U.S.C. §§ 10-11 or other appropriate proceedings. See Hyman v. Pottberg’s Ex’rs, supra, 101 F.2d at page 266.
In summation, we find no jurisdictional or procedural error in the action of the district court, nor any substantial,deviation from the procedure that would have been followed under the Arbitration Act. Accordingly, we turn to the merits of the decision below.
III.
The “merits” of a suit to compel arbitration, of course, do not include the ultimate issues of contract interpretation that determine the outcome of the controversy. Those are what the arbitrator will .decide. What we must pass on here is only the district court’s determination that the controversy is arbitrable. The court held “that the dispute relates to the ‘meaning and application' of the agreement and that the contentions of the parties in this respect are not frivolous but are fairly and justly maintained and advanced.” 131 F.Supp. at page 771. It will be helpful now to set forth the relevant provisions of the contract. The arbitration paragraph itself was quoted in the last part of this opinion and so will not be repeated. It will also be recalled that the collective bargaining agreement had been extended in June, 1954, to “continue in full force and effect” until July 15, 1955.
Article VII, entitled “Termination of Employment,” stated as follows:
“A. Reasons for Termination: An' employee’s continuous service and his employment with the Company shall be terminated by:
“1. Voluntary Quit.
“2. Discharge for cause.
“3. . Absence from work for a period of eighteen (18) months or. more, for any reasons other than to fill a Union position to which the employee was elected or appointed or where an entire operation has been discontinued.”
Eligibility to be paid for the annual summer vacation was given in Art. V in these terms:
“B. Eligibility Requirements: During the term of this agreement an employee on the payroll of the Company on June 1st of the vacation year and who has worked at least 900 hours in the twelve-month period from June 1 of the preceding year to May 31 of the vacation year (both dates included) shall be eligible for vacation with pay * *
Subsequent paragraphs, provided for the computation of the amount of “vacation pay” on the basis of the average hourly earnings of employees in the last week or month preceding June 1 in which they worked, and for payment of a “vacation bonus,” a percentage of wages for the year ending June 1, to employees who had been “in the continuous employment of the Company” for certain periods but who did not qualify for vacation pay under the foregoing provisions.
It will be seen that eligibility for vacation pay or vacation bonus was tied to existence of the employment status on a given date, June 1, regardless of whether the employee had worked continuously throughout the preceding year or was working on the date in question, with vacation pay as such limited to those who had worked at least 900 hours during the year (approximately 23 weeks on the normal workweek of Art. III). The district court found that eligibility for the other benefits described in the complaint—life, health, and accident insurance and pensions—also was related to the employment status, with partial benefits continuing during a lay-off but not if the employment was terminated. See 129 F.Supp. at pages 864-865. The preliminary injunction granted by the district court in that opinion seems to have afforded the principal relief pertinent to those benefits, and it appears that the vacation pay-vacation bonus issue is the major, if not sole, matter in the case at this time. The injunction was lifted on May 20, 1955, and counsel informed us at the argument that the Company carried out the termination of the employment of the persons involved before June 1. The Union’s contentions are that this action (delayed since February by the injunction) violated the provisions of Art. VII as to how employment may be terminated, and that those provisions are exclusive. The Company argues to the contrary.
In addition, both the Union and the Company may find support in other articles of the contract, such as these:
“Article I
“D. Rights of Management: The management of the Company’s business, including * * * the direction of its working force and the right to hire, lay-off and suspend employees is vested exclusively in the Company, subject to the provisions of this agreement.”
“Article XIII
“ * * * this Contract contains all matters on which the parties are mutually agreed. If at any time while this agreement is in effect the parties desire to modify, amend, or add to it in any respect either retroactively or prospectively they may do so by mutual assent. * * * ”
“Article XVI
“The parties acknowledge that during the negotiations which resulted in this agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this agreement. Therefore, the Company and the Union, for the life of this agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject or matter referred to, or covered in this agreement, or with respect to any subject or matter not specifically referred to or covered in this agreement, even though such subjects or matter may not have been within the knowledge or contemplation of either or both parties at the time that they negotiated or signed this agreement.”
It is not our function here to determine whether a reconciliation of all these contract provisions will support or refute the Union’s contentions. We believe that the provisions set forth at length above do indicate, as the district court held, that the facts of this case involve a “dispute which relates solely to the meaning and application” of the contract, in the words of the arbitration clause, and that the contentions of the party seeking arbitration thereunder are not frivolous or baseless.
However, defendant argues that well-settled law entitles an employer to shut down an unprofitable business and terminate the employment of its employees, so that the termination of employment under those circumstances cannot create an arbitrable issue under a collective bargaining agreement. The point is well stated in defendant’s brief in these words:
“A collective bargaining agreement is a living thing to govern the relationship of the parties during the life of the agreement while the business is being operated as a going business. It certainly does not bind the employer to carry on an unprofitable business. The decision to completely and finally discontinue an unprofitable business is a function of management and the collective bargaining agreement was not designed to limit that function.”
It may be that existence of a collective agreement with a union for a fixed term does not affect the common law status of the individual employments as contracts terminable at will, except in so far as the union contract expressly limits the employer’s power to terminate. See United States Steel Corp. v. Nichols, 6 Cir., 1956, 229 F.2d 396; 1 Teller, Labor Disputes and Collective Bargaining § 169 (1940). And it may also be that, as a result, the act of terminating employment because a department or an entire business is closed cannot be prevented, or made the basis for liability to a lawsuit or to arbitration under a “discharge for cause” provision of a union contract. See Local Union No. 600, etc., v. Ford Motor Co., D.C.E.D.Mich.1953, 113 F.Supp. 834; Machine Printers Beneficial Ass’n, etc., v. Merrill Textile Print Works, Inc., 1951, 12 N.J.Super. 26, 78 A.2d 834; Industrial Trades Union, etc., v. Woonsocket Dyeing Co., Inc., D.C.D.R.I.1954, 122 F.Supp. 872. We do not have to make a decision on either of those propositions, for the situation before us is distinguishable.
It cannot be doubted that a collective bargaining agreement could be drawn to cover the problems arising in the eventuality of an employer’s going out of business. For example, see the collective bargaining agreement dealt with in Byerly v. Duke Power Co., 4 Cir., 1954, 217 F.2d 803. Even without an express reference to that possibility in the contract, in view of the increasingly complex use of compensation in the form of “fringe benefits,” some types of which inherently are not payable until a time subsequent to the work which earned the benefits, we believe that there may be terms within a union-employer contract whose effect is not necessarily limited to the continuance of the living relationship that exists while the business is being operated as a going concern. See Matter of Potoker, 1st Dept.1955, 286 App.Div. 733, 146 N.Y.S.2d 616. Here the eligibility for vacation pay was stated in Art. V to be dependent on existence of the employment relationship on a given date, prior to the end of the contract term. The parties must have contemplated that on this date particular employees might have been away from work for a considerable time subsequent to completion of the minimum 900 hours of work whereby they had earned the vacation pay. Without deciding whether this contract term does have continued effect in the circumstance of the employer’s good faith decision to terminate all operations prior to June 1, 1955, we hold that the question thus posed is an arbitrable one under this contract on the facts of this case. Cf. Wilson Bros. v. Textile Workers Union, D.C.S.D.N.Y.1954, 132 F.Supp. 163, appeal dismissed 2 Cir., 1955, 224 F.2d 176; Matter of Potoker, supra.
The decree of the District 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:
|
songer_genresp1
|
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.
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 v. BATRE.
No. 7124.
Circuit Court of Appeals, Ninth Circuit.
March 12, 1934.
Clifton Mathews, U. S. Atty., and K. Berry Peterson, both of Phomix, Ariz., for appellant.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges,
GARRECHT, Circuit Judge.
Appeal from judgment and decree of District Court adjudging a prior contractual lien, held by the mortgagee of an airplane, to be superior and paramount to a lien created by statute for violation of section 11 of the Air Commerce Act of 1926 (49' USCA § 181).
There is no dispute as to the facts which were found by the District Court to be substantially as follows: One Clair K. Seholey, the owner of a certain biplane, flew the same from Mesdeo into the United States, landing near Florence, Ariz., which had not been designated as an airport of entry by the Secretary of the Treasury. Seholey reported no circumstances of a forced landing to the collector of customs for the District of Arizona, as would be required to avoid penalty. About three days after his landing in Florence the airplane was seized by inspectors of customs and was placed in the custody of the collector. Alma R. Batre, appellee, was the holder of a duly recorded chattel mortgage in the sum of $4,000, secured by said airplane. A libel in rem to collect the penalty was filed against the airplane, as provided by statute (49' US CA § 181). Thereupon appellee filed an “In-tervener’s Cross Bill” alleging existence of a chattel mortgage; that it remained unpaid; and that the intervener had no knowledge that the aircraft was being used in violation of the Air Commerce Act. The prayer in intervention was for a declaration that the lien of the chattel mortgage be adjudged superior to the lien for the penalty and that if the airplane he ordered sold the proceeds he first applied to payment of the mortgage. The judgment of the lower court imposed the penalty required, declared the same to he a lien upon the airplane, and ordered the airplane sold with the proceeds to be applied as follows: First, to costs and expenses of seizing, holding, and sale; second, to payment of amount of mortgage; and, third, to payment of the penalty. From this judgment the government appeals. The record comes to us on the undisputed facts, the sole point urged as error upon appeal being the action of the court in giving the lien of the chattel mortgage priority to the penalty lien of the statute.
By the statute the Secretary of the Treasury is authorized to designate places as ports of entry at which airplanes crossing the international border must land, and te make such regulations as may be deemed necessary. 49 USCA § 177. For the violation of this statute penalties were imposed, among others being a civil penalty of $506 upon any person violating any regulation, and in case the violation he by the owner or the person in command of the airplane the penalty shall he a lien against the aircraft collectible by proceedings in rem, against the aircraft, conformable to civil suits in admiralty. 49 US CA § 181. In conformity to this statute regulations were promulgated by the Department of Commerce and by the Secretary of the Treasury, making it incumbent upon the person in command of aircraft contemplating entry into the United States from any foreign port or place to inform the collector of customs at the place of intended first landing of the proposed flight; to immediately report upon landing to said collector; and providing for declaration of contents. Should there he a forced landing the regulations make provision for immediate report and inspection. There is also provision exempting regular carriers from certain of the regulations.
This is the first time this court has been called upon to construe the penalty provisions of the Air Commerce Act, and we have applied thereto the recognized rules of construction.
“Cardinal rules for the construction of a statute are that the intention of the legislative body which enacted it should he ascertained and given effect, if possible, regardless of technical rules of construction and the dry words of the enactment; that that intention must he deduced not from a part but from the entire law; that the object which the enacting body sought to attain and the evil which it was endeavoring to remedy may always be considered for the purpose of ascertaining its intention; that the statute must he given a rational, sensible construction; and that, if this be consonant with its terms, it must have an interpretation which will advance the remedy and repress the wrong.” Stevens v. Nave-MeCord Merc. Co. (C. C. A.) 150 F. 71, 75.
See U. S. v. Ninety-Nine Diamonds (C. C. A.) 139 F. 961, 965, 2 L. R. A. (N. S.) 185; Interstate Drainage & Inv. Co. v. Board of Com’rs, etc. (C. C. A.) 158 F. 270, 273; U. S. v. Hogg et al. (C. C. A.) 112 F. 909, 912.
Generally speaking: “Statutes are construed strictly against forfeiture. A statute which subjects one man’s property to be affected by, charged or forfeited for the acts of another, on grounds of public policy, should be strictly construed; it cannot he done by implication.” Lewis’ Sutheiiand, Statutory Construction (2d Ed.) vol. 2, p. 1020.
However, there is a long line of eases which hold that: “Statutes to prevent frauds upon the revenue are considered as enacted for the public good and to suppress a publie wrong, and therefore, although they impose penalties and forfeitures are not to be construed like penal laws generally, strictly in favor of tbe defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of: the legislature.” U. S. v. Stowell, 133 U. S. 1, 12, 10 S. Ct, 244, 33 L. Ed. 555, and eases there cited.
See, also, Goldsmith, Jr. Grant Co. v. U. S., 254 U. S. 505, 510, 41 S. Ct. 189, 65 L. Ed. 376; U. S. v. Ryau, 281 U. S. 167, 172, 52 S. Ct. 65, 76 L. Ed. 221; U. S. v. One Black Horse (D. C.) 129 F. 167.
The power of Congress to enact this legislation must be conceded — it is a fundamental idea of sovereignty that a nation may say who shall cross its borders and when and in what manner. The International Convention for the Regulation of Air Navigation (1919) provided in article 1 of its rules that: “The high contracting parties recognize that every power has complete and exclusive sovereignty over the air space above its territory.”
The purpose of the Congress in enacting the Air Commerce Act of 1926 is revealed in the language of the accompanying report of the Committee on Interstate and Foreign Commerce as follows: “The enforcement of the foreign-commerce regulations by the civil penalties collectible in administrative or admiralty proceedings is the same principle as is used in the enforcement of the customs, immigration, narcotic drug, and navigation laws, and the provisions of the bill are based upon the provisions of those laws.”
Another pertinent consideration is whether the thing or only the person can be considered the offender. The fact that the statute provides that the proceeding be “in rem” is an indication that the airplane can properly be considered the offender, and this without straining the words of the statute. The Palmyra, 12 Wheat. (25 U. S.) 1, 14, 6 L. Ed. 531.
If the penalty is incapable of enforcement, which is the result if the decision of the lower court is affirmed, then this provision affords no aid in preventing violation of the law. It can readily be seen that if a lien created by a chattel mortgage is held superior to this penally lien those so disposed can always evade it by inortgaging the airplane up to or beyond its actual value, with the result that the government could never collect the penalty and the law would be without force. Its object would not be accomplished.
Ordinarily, the word “penalty” is regarded as being substantially synonymous with the word “forfeiture,” both indicating a punishment, and no reason here appears for making a distinction.
While the statute does not in terms declare a forfeiture, still the enforcement of the penalty lien, in effect, operates to bring about such a result. Jf this was not intended the remedy must he sought from Congress, not the courts.
An inspection of the act and the regulations pursuant thereto further indicates that revenue alone is not the sole purpose of the law. A firm hold upon immigration, narcotic drug trade, and protection to the public health is also contemplated.
There are cases to the effect that it is not necessary that the act be one in aid of the public revenue in order to work a forfeiture. Forfeiture has been decreed in eases of vessels failing to have the name displayed in a conspicuous manner. The Lewellen, 15 Fed. Gas. 444, No. 8307, and in eases where vessels have carried more passengers than permitted by law, Hatch v. The Steam-Boat Boston (D. C.) 3 F. 807. In the latter case the court held the penalty lien was not divested by subsequent sale to a bona fide purchaser.
Nor are we here dealing with an innocent owner who has been injured by the act of some third person, without his knowledge or consent. Here the owner was in possession and command of the aircraft; he was the one who violated the regulation. True if the penalty lien is adjudged paramount, a hardship falls upon the mortgagee; but the mortgage w~as entered into after passage of the Air Commerce Act and the mortgagee know, or should have known, of the provisions of the act. In the circumstances, the Air Commerce Act became a part of the mortgage. The airplane was permitted to remain in the possession of the owner without restriction upon the use and the mortgagee having' left it within the power of the owner to- violate the la,w cannot now complain. The Live Oak (D. C.) 30 F. 78.
The Supreme Court of the United States, speaking through Mr. Justice Story, says in Harmony v. United States (U. S. v. Brig Ma-lek Adhél, etc.), 2 How. (43 U. S.) 210, 233, 11 L. Ed. 239: “The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of Congress. Here, again, it may be remarked that the act makes no exception whatsoever, whether the aggression bo with or without the co-operation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to -which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. * * * It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, “ * * a wrong or offence has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong. * * * The doctrine also is familiarly applied to cases of smuggling and other misconduct under our revenue laws; and has been applied to other kindred eases, such as cases arising on embargo and non-intercourse acts.”
Had the Congress desired an exemption from penalty under this act to apply to innocent third parties, it would have been so stated, as has been done in other enactments. 27 USCA § 40.
Judgment of the lower court is reversed, and cause remanded, with directions to enter a judgment granting the penalty lien priority to the lien of the chattel mortgage.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_counsel2
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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
AMERICAN BANKERS ASSOCIATION and Tioga State Bank, Appellants v. Lawrence B. CONNELL, Jr., Administrator of the National Credit Union Administration, et al. INDEPENDENT BANKERS ASSOCIATION OF AMERICA, a corporation, Appellant v. FEDERAL HOME LOAN BANK BOARD, et al. UNITED STATES LEAGUE OF SAVINGS ASSOCIATIONS, an Illinois not-for-profit corporation, Appellant v. BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, an agency of the United States, et al.
Nos. 78-1337, 78-1849 and 78-2206.
United States Court of Appeals, District of Columbia Circuit.
April 20, 1979.
Before McGOWAN, TAMM and WILKEY, Circuit Judges.
JUDGMENT
PER CURIAM.
These causes came on to be heard on their records on appeal from the United States District Court for the District of Columbia, 463 F.Supp. 342, 447 F.Supp. 296, and they were argued by counsel before this panel.
It appears to the court that the development of fund transfers as now utilized by each type of financial institution involved herein, commercial banks with “Automatic Fund Transfers,” savings and loan associations with “Remote Service Units,” and federal credit unions with “Share Drafts,” in each instance represents the use of a device or technique which was not and is not authorized by the relevant statutes, although permitted by regulations of the respective institutions’ regulatory agencies. Specifically, the transfer from an interest-bearing time deposit (savings) account to a noninterest-bearing demand (checking) account by the Automatic Fund Transfer system, authorized by the Board of Governors of the Federal Reserve System in 43 Fed.Reg. 20,001 (1978) (to be codified in 12 C.F.R. § 217.5(c)(2) and (3)), is that “indirect[ ] . . . device” prohibited by 12 U.S.C. § 371a (1976); the Remote Service Units utilized by many savings and loan associations, pursuant to Federal Home Loan Bank Board regulations (12 C.F.R. § 545.4-2 (1978)) which permit the withdrawal of funds from an interest-bearing time deposit account by a device functionally equivalent to a check, are in violation of the prohibition against checking accounts contained in Section 5(b)(1) of the Home Owners’ Loan Act of 1933 (12 U.S.C. § 1464(b)(1) (1976)); and the Share Drafts utilized by some federal credit unions, pursuant to National Credit Union Administration regulation (12 C.F.R. § 701.34 (1978)), are the practical equivalent of checks drawn on these interest-bearing time deposits in violation of the provisions of the Federal Credit Union Act, 12 U.S.C. §§ 1751-90 (1976).
The history of the development of these modern transfer techniques reveals each type of financial institution securing the permission of its appropriate regulatory agency to install these devices in order to gain a competitive advantage, or at least competitive equality, with financial institutions of a different type in its services offered the public. The net result has been that three separate and distinct types of financial institutions created by Congressional enactment to serve different public needs have now become, or are rapidly becoming, three separate but homogeneous types of financial institutions offering virtually identical services to the public, all without the benefit of Congressional consideration and statutory enactment.
This court is convinced that the methods of transfer authorized by the agency regulations have outpaced the methods and technology of fund transfer authorized by the existing statutes. We are neither empowered to rewrite the language of statutes which may be antiquated in dealing with the most recent technological advances, nor are we empowered to make a policy judgment as to whether the utilization of these new methods of fund transfer is in the overall public interest. Therefore, we have no option but to set aside the regulations authorizing such fund transfers as being in violation of statute. We do so with the firm expectation that the Congress will speedily review the overall situation and make such policy judgment as in its wisdom it deems necessary by authorizing in whole or in part the methods of fund transfer involved in this case or any other methods it sees fit to legitimize, or conversely, by declining to alter the language of existing statutes, thus sustaining the meaning and policy expressed in those statutes as now construed by this court.
We recognize that enormous investments have been made by various financial institutions in the installation of new technology, that methods of financial operation in the nation have rapidly grown to rely on much of this, and that a disruption of the offered services would necessarily have a deleterious impact on the financial community as a whole, in the absence of the certainty that new procedures are authorized for the foreseeable future, which certainty only a Congressional enactment can give.
We recognize that there are arguments that Congress has, at some times and in some measure, tacitly approved part of these regulatory authorizations, but by no means directly, explicitly, or in the whole. We further recognize that the wisdom of the transfer procedures permitted by the regulations of the several agencies is a matter of high public financial policy, involving the financial interests not only of the parties before this court in these proceedings, but also of other large groups in the nation. It is the responsibility of the Congress and not the courts to determine such policy.
On consideration of the foregoing, it is
ORDERED AND ADJUDGED by this court that the judgments of the district courts under review herein are reversed and the cases are remanded to the respective district courts with instructions to vacate and set aside the applicable portions of the following regulations:
(1) 43 Fed.Reg. 20,001 (1978) (to be codified in 12 C.F.R. § 217.5(c)(2) and (3)) of the Board of Governors of the Federal Reserve System;
(2) 43 Fed.Reg. 20,222 (1978) (to be codified in 12 C.F.R. § 329.5(c)(2)) of the Board of Directors of the Federal Deposit Insurance Corporation;
(3) 12 C.F.R. § 545.4-2 (1978) of the Federal Home Loan Bank Board; and
(4) 12 C.F.R. § 701.34 (1978) of the National Credit Union Administration; and it is
FURTHER ORDERED, by the Court, that the effectiveness of this Judgment, insofar as it directs that the subject regulations be vacated and set aside, is stayed until 1 January 1980 in the expectation that the Congress will declare its will upon these matters; and it is
FURTHER ORDERED, by the Court, that the Clerk is directed to enter copies of this Judgment in each of the captioned cases.
. Similarly, the Automatic Fund Transfer system authorized by the Federal Deposit Insurance Corporation in 43 Fed.Reg. 20,222 (1978) (to be codified in 12 C.F.R. § 329.5(c)(2)) is in violation of 12 U.S.C. § 1828(g) (1976), which directs the Board of Directors of the FDIC to prohibit the payment of interest on demand deposits. The court is of the view that the Automatic Fund Transfer system allows, in effect, for interest to be paid on demand deposits.
The Automatic Fund Transfer system also, in its effect, violates 12 U.S.C. § 1832(a) (as amended by Pub.L.No. 95-630, § 1301, 92 Stat. 3712, 10 Nov. 1978), which provides that, except in seven New England states, withdrawals from savings accounts may not be made by negotiable or transferable instruments for the purpose of making transfers to third parties.
. The Act does not contain an express grant of power to offer share drafts, nor can that power be implied in view of the legislative history of laws regulating financial institutions (see Brief for Appellant in No. 78-1337, at 9-26), which demonstrates an intent on the part of Congress not to authorize federal credit union share draft programs.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_caseorigin
|
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.
KNOWLES v. IOWA
No. 97-7597.
Argued November 3,1998
Decided December 8, 1998
Paul Rosenberg argued the cause for petitioner. With him on the briefs was Maria Ruhtenberg.
Bridget A. Chambers, Assistant Attorney General of Iowa, argued the cause for respondent. With her on the brief were Thomas J. Miller, Attorney General, and Elizabeth M. Osenbaugh, Solicitor General.
James J. Tomkovicz, Steven R. Shapiro, Susan N. Herman, and Lisa B. Kemler filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
Stephen R. McSpadden filed a brief for the National Association of Police’Organizations, Inc., as amicus curiae urging affirmance.
CHIEF Justice Rehnquist
delivered the opinion of the Court.
An Iowa police officer stopped petitioner Knowles for speeding, but issued him a citation rather than arresting him. The question presented is whether such a procedure authorizes the officer, consistently with the Fourth Amendment, to conduct a foil search of the car. We answer this question "no.”
Knowles was stopped in Newton, Iowa, after having been clocked driving 43 miles per hour on a road where the speed limit was 25 miles per hour. The police officer issued a citation to Knowles, although under Iowa law he might have arrested him. The officer then conducted a foil search of the car, and under the driver’s seat he found a bag of marijuana and a “pot pipe.” Knowles was then arrested and charged with violation of state laws dealing with controlled substances.
Before trial, Knowles moved to suppress the evidence so obtained. He argued that the search could not be sustained under the "search incident to arrest” exception recognized in United States v. Robinson, 414 U. S. 218 (1973), because he had not been placed under arrest.. At the hearing on the motion to suppress, the police officer conceded that he had neither Knowles’ consent nor probable cause to conduct the search. He relied on Iowa law dealing with such searches.
Iowa Code Ann. § 321.485(l)(a) (West 1997) provides that Iowa peace officers having cause to believe that a person has violated any traffic or motor vehicle equipment law may arrest the person and immediately take the person before a magistrate. Iowa law also authorizes the far more usual practice of issuing a citation in lieu of arrest or in lieu of continued custody after an initial arrest. See Iowa Code Ann. §805.1(1) (West Supp. 1997). Section 805.1(4) provides that the issuance of a citation in lieu of an arrest “does not affect the officer’s authority to conduct an otherwise lawful search.” The Iowa Supreme Court has interpreted this provision as providing authority to officers to conduct a full-blown search of an automobile and driver in those cases where police elect not to make a custodial arrest and instead issue a citation — that is, a search incident to citation. See State v. Meyer, 543 N. W. 2d 876, 879 (1996); State v. Becker, 458 N. W. 2d 604, 607 (1990).
Based on this authority, the trial court denied the motion to suppress and found Knowles guilty. The Supreme Court of Iowa, sitting en bane, affirmed by a divided vote. 569 N. W. 2d 601 (1997). Relying on its earlier opinion in State v. Doran, 563 N. W. 2d 620 (1997), the Iowa Supreme Court upheld the constitutionality of the search under a bright-line “search incident to citation” exception to the Fourth Amendment’s warrant requirement, reasoning that so long as the arresting officer had probable cause to make a custodial arrest, there need not in fact have been a custodial arrest. We granted certiorari, 523 U. S. 1019 (1998), and we now reverse.
The State contends that Knowles has challenged Iowa Code’s §805.1(4) only “on its face” and not “as applied,” in which case, the argument continues, his challenge would run afoul of Sibron v. New York, 392 U. S. 40 (1968). But in his motion to suppress, Knowles argued that “[bjeeause the officer had no probable cause and no search warrant, and the search cannot otherwise be justified under the Fourth Amendment, the search of the car was unconstitutional.” App. 7. Knowles did not argue below, and does not argue here, that the statute could never be lawfully applied. The question we therefore address is whether the search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment.
In Robinson, supra, we noted the two historical rationales for the “search incident to arrest” exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. 414 U. S., at 234. See also United States v. Edwards, 415 U. S. 800, 802-803 (1974); Chimel v. California, 395 U. S. 752, 762-763 (1969); Preston v. United States, 376 U. S. 364, 367 (1964); Agnello v. United States, 269 U. S. 20, 30 (1926); Weeks v. United States, 232 U. S. 383, 392 (1914). But neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case.
We have recognized that the first rationale — officer safety — is “‘both legitimate and weighty,’” Maryland v. Wilson, 519 U. S. 408, 412 (1997) (quoting Pennsylvania v. Mimms, 434 U. S. 106, 110 (1977) (per curiam)). The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the ease of a custodial arrest. In Robinson, we stated that a custodial arrest involves “danger to an officer” because of “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.” 414 U. S., at 234-235. We recognized that “[t]he danger to the police officer flows from the faet of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest.” Id., at 234, n. 5. A routine traffic stop, on the other hand,' is a relatively brief encounter and “is more analogous to a so-called ‘Terry stop’ . . . than to a formal arrest.” Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291, 296 (1973) (“Where there is no formal arrest... a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence”).
This is not to say that the concern for officer safety is absent in the ease of a routine traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the concern for officer safety in this context may justify the “minimal” additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. For example, they may order out of a vehicle both the driver, Mimms, swpra, at Ill, and any passengers, Wilson, supra, at 414; perform a “patdown” of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a “Terry patdown” of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest, New York v. Belton, 453 U. S. 454, 460 (1981).
Nor has Iowa shown the second justification for the authority to search incident to arrest — the need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.
Iowa nevertheless argues that a “search incident to citation” is justified because a suspect who is subject to a routine traffic stop may attempt to hide or destroy evidence related to his identity (e. g., a driver’s license or vehicle registration), or destroy evidence of another, as yet undetected crime. As for the destruction of evidence relating to identity, if a police officer is not satisfied with the identification furnished by the driver, this may be a basis for arresting him rather than merely issuing a citation. As for destroying evidence of other crimes, the possibility that an officer would stumble onto evidence wholly unrelated to the speeding offense seems remote.
In Robinson, we held that the authority to conduct a full field search as incident to an arrest was a “bright-line rule,” which was based on the concern for officer safety and destruction or loss of evidence, but which did not depend in every case upon the existence of either concern. Here we are asked to extend that “bright-line rule” to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all. We decline to do so. The judgment of the- Supreme Court of Iowa is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Iowa law permits the issuance of a citation in lieu of arrest for most offenses for which an accused person would be "eligible for bail.” See Iowa Code Ann. §805.1(1) (West Supp. 1997). In addition to traffic and motor vehicle equipment violations, this would permit the issuance of a citation in lieu of arrest for such serious felonies as second-degree burglary, §713.5 (West Supp. 1997), and first-degree theft, §714.2(1) (West 1993), both bailable offenses under Iowa law. See §811.1 (West Supp. 1997) (listing all nonbailable offenses). The practice in Iowa of permitting citation in lieu of arrest is consistent with law reform efforts. See 3 W. LaFave, Search and Seizure § 5.2(h), p. 99, and n. 151 (3d ed. 1996).
Iowa also contends that Knowles’ challenge is precluded because he failed to seek review of a separate decision of the Iowa Supreme Court, which affirmed his conviction for possession of drug paraphernalia in violation of a city ordinance. That decision, Iowa argues, resulted from the same search at issue here, rejected the same Fourth Amendment challenge Knowles now makes, and, under principles of res judicata, bars his present challenge. Even if Knowles’ failure to seek certiorari review of this decision could preclude his present challenge, Iowa waived this argument by failing to raise it in its brief in opposition to the petition for certiorari. See this Court’s Rule 15.2; Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985) (“Nonjurisdietional defects of this sort should be brought to our attention no later than in respondent’s brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived”).
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
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Answer:
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songer_direct2
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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.
In re WAYSIDE FURNITURE CO., Bankrupt. WINNEBAGO MFG. CO., Appellant, v. Julius J. GOETZ, Trustee in Bankruptcy of Wayside Furniture Co., Appellee.
No. 4908.
Circuit Court of Appeals, Seventh Circuit.
Sept. 23, 1933.
I. A. Fish, G. R. Hoffman, J. H. Marshutz, and E. H. Hallows, all of Milwaukee, Wis., for appellant.
I. E. Goldberg, of Milwaukee, Wis., for appellee.
Before ALSCHULER and SPARKS, Circuit Judges, and WELKERS ON, District Judge.
WILKERSON, District Judge. .
This is an appeal from an order denying the right to reclaim certain furniture under a contract similar in all substantial respects to tbe one in Union Furniture Company v. Julius J. Goetz, Trustee in Bankruptcy of Wayside Furniture Company, Bankrupt (C. C. A.) 67 F.(2d) 201, decided September 23, 1933. Tbe contract was not filed for record. Tbe contract in our opinion is not a consignment contract as appellant contends.
Tbe judgment of tbe District Court is affirmed.
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_respond2_1_4
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
Sadie EUSTACE, Plaintiff-Appellant, v. COOPER AGENCY, INC., and Bogue Brothers, Inc., d/b/a L & G Home Furnishings, Defendants-Appellees.
No. 82-1658.
United States Court of Appeals, Tenth Circuit.
Aug. 3, 1984.
Richard J. Rubin, and Paula Forney-Thompson, Santa Fe, N.M., for plaintiff-appellant.
Bradford C. Berge of Campbell, Byrd & Black, Santa Fe, N.M., for defendants-ap-pellees.
Before HOLLOWAY, BARRETT and SEYMOUR, Circuit Judges.
HOLLOWAY, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
Sadie Eustace brought this action under the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq., (TILA) and Federal Reserve Board Regulation Z, 12 C.F.R. § 226. Her complaint alleged, inter alia, that defendant Cooper Agency, Inc. (Cooper Agency) and Bogue Brothers, Inc., (Bogue Brothers) failed to comply with requirements of the statute and the regulation by not disclosing the creditor status of Cooper Agency in the transaction. Defendants Cooper Agency and Bogue Brothers denied any violation of the Act and Regulation.
After a non-jury trial the district court entered judgment against plaintiff Eustace and she appeals. She argues that the district court erred in holding that defendant Cooper Agency was not a creditor in the transaction at issue for the purposes of the Act and the Regulation, and in refusing to rule on Eustace’s motion for summary judgment.
I
On August 28, 1980, Eustace and defendant Bogue Brothers entered into an installment credit contract for the purchase of a washer and dryer; Eustace also refinanced the balance which she owed to Bogue Brothers from a previous retail installment contract. I R. 2, 5-6. This contract was assigned to defendant Cooper Agency which had also been assigned the previous retail installment contract. I R. 19.
The complaint in this action alleged that defendants failed to identify both creditors in the transaction, in violation of §§ 226.-8(a) and 226.6(d) of Regulation Z; failed to make the disclosures using the prescribed terminology, in violation of §§ 226.6(a) and 226.8(c)(1) of Regulation Z; failed to make all required disclosures clearly, conspicuously, and in meaningful sequence, and in accordance with the further requirements of the Act and the Regulation; disclosed improper additional information, in violation of § 226.6(c) of the Regulation; and alternatively, failed to make all required disclosures on one side of one page, in violation of § 226.8(a) of the Regulation. I R. 3. In its Memorandum Opinion and Order the district court concluded:
The plaintiff has failed to establish that Cooper Agency was a “creditor” as that term is defined by the Truth in Lending Act in this consumer credit transaction. Therefore, the fact that the plaintiff’s Retail Installment Contract did not identify Cooper Agency as a “creditor” on its face is immaterial and does not constitute a violation of the Truth in Lending Act.
I R. 40. Judgment was entered against plaintiff. I R. 42.
II
The dispositive questions before us are (1) Was the Cooper Agency a creditor under TILA and Regulation Z? and (2) If the Cooper Agency was a creditor, was it identified as a creditor as required by TILA and Regulation Z?
Eustace first argues that the district court erred in holding that Cooper Agency is not a creditor for purposes of the Act and Regulation Z because the “creditor” status of Cooper Agency was never controverted, because the admission that Cooper Agency is a “creditor” is binding and conclusive, and because failure to abide by the admission denies Eustace due process of law. Eustace quotes paragraph 5 of her complaint which alleges:
5. At all times relevant hereto, Defendants, in the ordinary courses of their businesses, regularly extended, offered to extend, arranged or offered to arrange the extension of credit to their customers for which a finance charge is or may be imposed or which is payable in more than four installments.
I R. 2. Defendants admitted the allegations of paragraph 5 and some other aver-ments.
Defendants state that “the admitted fact that Cooper was, in a general sense, a creditor as defined by law, does not establish that Cooper was a creditor in the disputed transaction. Cooper’s role in the transaction was disputed throughout the proceedings.” Brief of Appellees at 4-5. Defendants also say that “the fact that Cooper was generally in the business of being a creditor is perhaps probative of its role in the transaction; however, it is not dispositive.” Id. at 7. We feel it is not clear that defendants admitted that Cooper Agency was a creditor within the meaning of TILA in this transaction. However, in any event the district judge evidently thought this matter to be an issue at trial because he considered the evidence and found that Cooper Agency was not a creditor. Thus the question before us is whether that finding was correct.
Ill
Eustace argues that there was no basis on which to find that Cooper Agency was not a “creditor.” She says that “the fact that Lender had not ‘approved the credit application before the seller of the consumer goods consummated its sale’ ” is not the sine qua non of creditor status for a subsequent assignee of a contract as the court held. Brief of Appellant at 15. On the other hand, defendants argue that the evidence failed to establish that Cooper Agency extended, arranged or offered credit on August 28, 1980. Brief of Appellee at 7.
The district court found that “Cooper Agency was not a ‘creditor’ as that term is defined in the Act in this consumer credit transaction.” I R. 39. We disagree, concluding that this finding was in error. See Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 101 S.Ct. 2239, 68 L.Ed.2d 744 (1981) (per curiam); Boncyk v. Cavanaugh Motors, 673 F.2d 256 (9th Cir.1981). See also Rudisell v. Fifth Third Bank, 622 F.2d 243, 253 (6th Cir.1980). In Cenance, 452 U.S. at 157, 101 S.Ct. at 2240, the Supreme Court found that Ford Motor Credit Co. (FMCC), as the assignee from automobile dealers of retail installment contracts, was a creditor within the meaning of TILA, stating that
a prospective purchaser of an automobile entered into an installment sales transaction with an automobile dealer. Prior to completion of the transaction the dealer submitted the buyer’s credit application to petitioner Ford Motor Credit Co. (FMCC). Once the dealer was notified that the buyer met FMCC’s credit standards, the buyer and the dealer executed a retail installment contract... Pursuant to the arrangement between the dealer and FMCC, FMCC purchased each contract without recourse against the dealer. Although FMCC did not assist in the actual negotiations, it provided the dealer with credit forms, including blank retail installment contracts. Although each did so, none of the dealers was obligated to seek financing from FMCC in perfecting its sales transaction.
Id. at 155-56, 101 S.Ct. at 2239-40. The Court quoted the following language from the opinion of the Fifth Circuit in Cenance, 621 F.2d 130, 133:
“The Meyers [539 F.2d 511] analysis applies with even greater force to the instant situation because here the dealers regularly dealt only with Ford. The dealer and Ford prearranged for the assignment of the finance instrument. At no time did the risk of finance reside with the dealer. The transaction between dealer and automobile purchaser was conditioned upon acceptance of the credit application by Ford. Indeed, the credit application form was prepared by Ford. As in Meyers [539 F.2d 511], it would be elevating form over substance to hold that Ford was anything but an original creditor within the meaning of the Act and Regulation Z.”
452 U.S. at 156-57, 101 S.Ct. at 2240-41. The Supreme Court concluded:
Each dealer arranged for the extension of credit but FMCC actually extended the credit. The facts negate any suggestion that the dealers anticipated financing any of these transactions. The sales were contingent upon FMCC’s approval of the credit worthiness of the buyer. The acceptance of the contract and the assignment became operational simultaneously, and the assignment divested the dealer of any risk in the transaction. In short, we agree with the Court of Appeals that it would be elevating form over substance to conclude that FMCC is not a creditor within the meaning of the Act. (footnote omitted) (emphasis in original).
Id. at 158, 101 S.Ct. at 2241.
Here Bogue Brothers had a dealer financing agreement with Cooper Agency which agreed to purchase security agreements and sales contracts from Bogue Brothers that were acceptable to Cooper Agency. Deposition of Charles Bogue at Ex. I. Bogue Brothers agreed to prepare such contracts on forms satisfactory to and to be furnished by Cooper Agency. Id. Bogue Brothers also agreed to repurchase from Cooper Agency any note, contract or agreement which shall become ninety days or more delinquent. Id. Bogue Brothers did about 90% of its business on credit and assigned all of its installment contracts to a financing entity. Id. at 8, 10. Approximately 65% of these contracts were assigned to Cooper Agency with which Bogue Brothers had been doing business for about 10 years. Id. at 11-12.
Bogue Brothers was Cooper Agency’s largest source of business. Deposition of Lowell G. Engholm at 11-12. If a customer passed Bogue Brothers’ credit check, Bogue Brothers could prepare a contract which Cooper Agency would accept. Deposition of Bogue at 22. Cooper Agency played a role in passing on the credit worthiness of the purchasers only after the fact. Deposition of Engholm at 21. If Cooper Agency had a record that did not turn up in Bogue Brothers’ credit investigation, Cooper Agency made them aware of it; otherwise, Cooper Agency relied on Bogue Brothers’ credit evaluation. Id. During the time the two did business together, there were no more than two or three contracts which Bogue Brothers requested Cooper Agency to return and which Cooper Agency did not purchase. Id. at 18.
The major difference, then, between the transaction here and those in Cenance is that in Cenance the dealer first submitted the buyer’s credit application to FMCC for approval. After the dealer was notified that the buyer met FMCC’s credit standards, the buyer and dealer executed a retail installment contract. FMCC then purchased each installment contract without recourse against the dealer. Here Cooper Agency played a role in passing on the credit worthiness of the purchasers only after the fact. Cooper Agency purchased all but two or three of the contracts which Bogue Brothers assigned to it and Cooper Agency purchased the contracts with recourse against Bogue Brothers. There was no need for Cooper Agency to give prior approval to the buyer’s credit application because Cooper Agency had recourse against Bogue Brothers. We are not convinced that this difference is significant. See Jennings v. Edwards, 454 F.Supp. 770, 773 n. 6 (M.D.N.Car.1978), aff'd, 598 F.2d 614 (4th Cir.1979).
In Boncyk v. Cavanaugh Motors, 673 F.2d 256 (9th Cir.1981), purchasers of used cars brought actions against the car dealers and the financing bank as creditors for violation of TILA. The financing bank claimed that it was not a creditor because it merely accepted the assignment of a completed credit agreement between the buyers and the dealers. At the time of the transactions in question there was in effect an Automobile Dealer Agreement between the dealers and the financing bank. In this agreement, the bank required each dealer to submit evidence of insurance coverage for the vehicle or of the buyer’s agreement to furnish insurance. The dealers, when making a credit sale of an automobile, never intended to carry the paper itself and during 1974 assigned to financial institutions all their automobile credit sales contracts. The agreement- and disclosure statement was prepared by and furnished to the dealers by the financing bank. The bank accepted every contract offered it in 1974 by the dealers. Even before it received any documents concerning the transaction, the bank advised the dealer that the Hughes contract, the contract of one of the purchasers bringing suit, met the bank’s standards for assignment. The bank assumed that contracts, written on the forms prepared and supplied by it, would be assigned to it. Both contracts in question were assigned to the bank on the same day the transaction took place. Id. at 258-59. The court concluded that
[t]he position of the Bank in this case is virtually identical to that of FMCC in the Cenance case. We therefore conclude that the Bank is a creditor.
Id. at 259.
In Boncyk, as here, if the contract was written on forms prepared and supplied by the financing entity, approval of the assignment was given by the financing entity. We conclude that just as the financing bank in Boncyk was a creditor, Cooper Agency is also a creditor within the definition of TILA. The Eighth Circuit has pointed out that
[i]n interpreting the Act, the Federal Reserve Board and the majority of courts have focused on the substance, rather than the form, of credit transactions, and have looked to the practices of the trade, the course of dealing of the parties, and the intention of the parties in addition to specific contractual obligations.
Joseph v. Norman’s Health Club, Inc., 532 F.2d 86, 90 (8th Cir.1976). Moreover the Supreme Court has noted that
[t]he hearings held by Congress reflect the difficulty of the task it sought to accomplish. Whatever legislation was passed had to deal not only with the myriad forms in which credit transactions then occurred, but also with those which would be devised in the future ... The language employed evinces the awareness of Congress that some creditors would attempt to characterize their transactions so as to fall one step outside whatever boundary Congress attempted to establish.
Mourning v. Family Publications Service, Inc., 411 U.S. 356, 365, 93 S.Ct. 1652, 1658, 36 L.Ed.2d 318 (1973).
Here the record shows that Bogue Brothers had a dealer financing agreement with Cooper Agency under which Cooper Agency agreed to purchase security agreements and sales contracts from Bogue Brothers which were acceptable to Cooper Agency. Bogue Brothers agreed to prepare such contracts on forms satisfactory to and to be furnished by Cooper Agency. Bogue Brothers assigned all of its installment contracts, 65% of which were assigned to Cooper Agency, with which Bogue Brothers had been doing business for about 10 years. During the time the two did business together there were no more than two or three contracts which Bogue Brothers requested Cooper Agency to return and which Cooper Agency did not purchase. On these facts we hold that Cooper Agency was a creditor within the definition of TILA.
IV
Defendants say that even if Cooper Agency was a creditor in the transaction, any failure to disclose that fact was only a technical violation of the Act and recovery is not warranted, relying in part on the Truth-in-Lending Simplification and Reform Act, 94 Stat. 168, 15 U.S.C.A. § 1601 et seq. Defendants maintain that with those amendments, it became clear that Congress did not intend that the identity of every potential creditor be treated as material, citing the legislative history of the Simplification Act. Brief of Appellee at 9, 12. We feel that in a case like this which arose at about the time of Cenance, we must apply the Cenance interpretation of the notification requirements, and of the term “creditor.” TILA mandates that each creditor must be clearly identified. The court in Boncyk noted that “it is implicit in the opinion of the Court in Ce-nance that a failure to clearly identify each creditor is a failure to disclose which imposes liability under the TILA.” Boncyk, 673 F.2d 260.
It is true that the Court stated in Ce-nance, “the statement notifying the buyer that the contract was, upon acceptance, assigned to FMCC served the purpose of the Act by disclosing the nature of the relationship of the finance company to the transaction.” Cenance, 452 U.S. at 159, 101 S.Ct. at 2241. However, here although Eustace’s copy of the contract stated “[t]he foregoing security is hereby assigned under the terms of the Seller’s Recourse, recommendation, Assignment and Guaranty on the reverse side hereof unless otherwise indicated,” her copy did not contain on the reverse side the printed language entitled “Seller’s Recommendation, Assignment and Guaranty (With Recourse),” or a statement that the contract was assigned to Cooper Agency. I R. 6. While Eus-tace’s copy did contain a reference to the “Group Creditor Life Policy, pursuant to the agency agreement of Cooper Agency, Inc,” I R. 5, this statement did not clearly identify Cooper Agency as a creditor.
Defendants further argue that plaintiff admitted at trial that all material facts were known to her before she entered into the transaction. Brief of Appellees 10. In this connection, plaintiff did acknowledge she was making payments directly to Cooper Agency. She was asked whether she was contending that she did not know Cooper Agency was a creditor and replied “I guess not.” III R. 14. However, a showing that the creditor had actual knowledge does not excuse a failure to comply with the mandatory disclosure requirements, or prevent recovery under the mandatory remedial provisions of the Act and the regulations. Lauletta v. Valley Buick, Inc., 421 F.Supp. 1036,1040 (W.D.Pa.1976); Desselles v. Mossy Motors, Inc., 442 F.Supp. 897, 901-02 (E.D.La.1978). “The identification [of the creditor] must be made on the disclosure statement even if the creditor has actual knowledge of the seller’s precise role in the financing transaction.” Whitlock v. Midwest Acceptance Corp., 575 F.2d 652, 654 (8th Cir.1978).
We conclude that Eustace’s contract did not clearly notify her of the assignment to Cooper Agency or its status as a creditor, and hold that the mandatory disclosure requirements of TILA, as interpreted by Ce-nance, were not met.
V
Accordingly, the judgment is reversed and the case is remanded to the district court for further proceedings and the granting of relief afforded by the Act.
. The statute provides in part as follows:
(f) The term "creditor” refers only to creditors who regularly extend, or arrange for the extension of, credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise.
15 U.S.C. § 1602 (1976).
The regulation provides in part as follows: (s) "Creditor" means a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit or offers to extend or arrange for the extension of such credit, which is payable by agreement in more than four installments, or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise.
12 C.F.R. § 226.2 (1980).
. Eustace argues that the district court erred in refusing to grant her motion for summary judgment. No ruling on the motion for summary judgment was entered on the docket sheet. I R. 44-47. Because a non-jury trial was held to resolve these issues, we assume that the district court determined that it should not grant Eus-tace’s motion for summary judgment.
. The district court stated:
In this case. Bogue Brothers sold the washer and dryer to Sadie Eustace. Upon learning that she needed to finance this sale, the seller took her credit application and approved it unilaterally. Bogue Brothers did not seek credit approval from Cooper before consummating the sale nor did it notify Cooper of the transaction. Bogue Brothers filled out a blank retail installment contract which had been supplied to it by Cooper Agency, Inc., a New Mexico corporation which is an installment financing institution. Included in this retail installment contract was a printed paragraph relating to group creditor life insurance which referred to Cooper Agency, Inc. There was nothing else on the face of the contract to identify Cooper Agency, Inc. as the probable subsequent assignee of this retail installment contract.
The contract was signed by Sadie Eustace and L & G Home Furnishings. At the bottom of the form, this statement appeared, "[T]he foregoing security is hereby assigned under the terms of the Seller’s RECOURSE, recommendation, assignment and guarantee on the reverse side hereof unless otherwise indicated.” This sentence was followed by the signature of Charles Bogue, vice-president of Bogue Brothers d/b/a L & G Home Furnishings. The reverse side of the contract included references to Cooper Agency, Inc.
The statements of uncontroverted facts attached to the cross-motions for summary judgment establish that as a general practice, Bogue Brothers originally approves its credit transactions and extends credit to its consumers. As soon as possible thereafter, however, Bogue Brothers assigns its retail installment contracts to corporations, who in the normal course of their business, extend credit. These assignments are routinely recourse agreements and are seldom, if ever, rejected by the assignees. Cooper Agency regularly receives these assignments from Bogue Brothers but Bogue Brothers ultimately decides to which assignees it will send its retail installment contracts.
I R. 37-38.
As we explained in note 7, infra, we find that the district court was in error in stating in the last sentence of the penultimate paragraph above that ”[t]he reverse side of the contract included references to Cooper Agency, Inc.”
. We noted earlier that the appellate record, as originally designated by plaintiff-appellant, did not include the deposition testimony of En-gholm and Bogue, which is cited in plaintiffs appellate briefs. Defendants-appellees have moved to strike all portions of the Brief of Appellants which refer to these depositions. We also noted that a Motion to File Depositions was filed by plaintiffs in district court before trial. Defendants in their response below to this motion stated that "the motion and filings sought thereby are improper. Should the court deem it necessary to see such depositions, it has adequate means to obtain them and filing with the court is therefore not properly facilitated by a motion.” Defendants went on to state that "all of the facts which were disputed among the parties are immaterial to resolution of the pending motions, and that all material facts are currently before the court.” This motion was not ruled on by the district court before trial or the record on appeal was filed.
The appellate brief of plaintiff states that the trial judge’s Memorandum Opinion and Order made findings based solely on the summary judgment record and relied "on deposition testimony never introduced at trial.” Brief of Appellant 22. However the district court’s memorandum discussed Mr. Bogue's contemplation that the retail installment contract would be subsequently assigned to Cooper Agency, citing, "testimony,” but not identifying the witness or witnesses in question. In view of this state of the record, we entered an order on April 11, 1984, stating that "it is not clear from the Memorandum Opinion and Order whether deposition testimony of Bogue and Engholm was presented to and considered by the District Court."
In that order we went on to state that "the civil docket sheet refers to a motion to include depositions in the record on appeal and to a response thereto, and apparently there was no order entered on the motion." Therefore, in our order we further stated that "this court deems it proper that the matter of supplementing the record be determined by the District Court on the basis of the evidence which was presented to it." We partially remanded this cause to the district court for its consideration and ruling on the motion to supplement the record on appeal. The following minute order was entered on April 13, 1984, by the district court:
By direction of the court: it is ordered that the Motion by Plaintiff to include depositions in the record on appeal is hereby granted.
Defendants argue that now including the depositions in the record would violate the local rules and put before us matters not considered by the district court. We note that Rule 8(c) of' the Rules of the United States District Court for the District of New Mexico states that "unless otherwise ordered by the Court, depositions and the responses thereto shall not be routinely filed with the Court. Counsel, however, shall file a certificate with the Court indicating the date the deposition was taken.” On October 15, 1981, a notice of the completion of the depositions of Engholm and Bogue was filed; the docket entry stated that the original transcripts were held by Richard J. Ruben.
In light of these circumstances and the fact that the district court ordered the depositions made part of the record, we find no error in the inclusion of the depositions. We deny the motion to strike and order the supplemental record filed.
. It is true that in James v. Ford Motor Credit Company, 638 F.2d 147 (10th Cir.1980), vacated in part on other grounds, cert, denied in part, 453 U.S. 901, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981), we did consider the legislative history of the Simplification Act in a case which arose before the effective date of that Act. Here, however, we cannot agree with the defendants that the legislative history of the Simplification Act supports their position. As explained in the text, infra, we are convinced that the plain terms of the statute and regulations, applicable at the time of this transaction, on both the definition of "creditor” and the required disclosures clearly mandate the disclosure of the identity of Cooper Agency as a multiple "creditor.”
. The regulation provides:
Credit other than open end — specific disclosures.
(a) General rule. Any creditor when extending credit other than open end credit shall, in accordance with § 226.6 and to the extent applicable, make the disclosures required by this section with respect to any transaction consummated on or after July 1, 1969. Except as otherwise provided in this section, such disclosures shall be made before the transaction is consummated. At the time disclosures are made, the creditor shall furnish the customer with a duplicate of the instrument or a statement by which the required disclosures are made and on which the creditor is identified. All of the disclosures shall be made together on either:
(1) The note or other instrument evidencing the obligation on the same side of the page and above the place for the customer’s signature; or
(2) One side of a separate statement which identifies the transaction.
12 C.F.R. § 226.8 (1980).
Further the regulation provides that
(d) Multiple creditors or lessors; joint disclosure. If there is more than one creditor or lessor in a transaction, each creditor or lessor shall be clearly identified and shall be responsible for making only those disclosures required by this Part which are within his knowledge and the purview of his relationship with the customer or lessee. If two or more creditors or lessors make a joint disclosure, each creditor or lessor shall be clearly identified.
12 C.F.R. § 226.6 (1980).
. We note that the district court stated that the reverse side of Eustace’s contract included references to Cooper Agency. I R. 38. We believe this statement is in error due to the parties’ agreement that Eustace’s copy did not contain on the reverse side the printed language entitled "Seller's Recommendation, Assignment and Guaranty (With Recourse).’’ I R. 12, 23. Defendants also admitted the correctness of plaintiff’s Exhibit A to the complaint, the reverse side of which did not contain the quoted language or a statement that the contract was assigned to Cooper Agency. I R. 2, 7.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
LOCAL 82, UNITED PACKINGHOUSE, FOOD AND ALLIED WORKERS, AFL-CIO, Plaintiff-Appellee, v. UNITED STATES COLD STORAGE CORP., Defendant-Appellant.
No. 18072.
United States Court of Appeals, Seventh Circuit.
July 31, 1970.
George B. Christensen, Fred H. Daugherty, Ronald R. Baird, Chicago, 111., for defendant-appellant; Winston, Strawn, Smith & Patterson, Chicago, 111., of counsel.
Eugene Cotton, Irving M. King, Chicago, 111., for plaintiff-appellee; Cotton, Watt, Jones, King & Bowlus, Chicago, 111., of counsel.
Before CLARK, Associate Justice, United States Supreme Court, Retired, and CUMMINGS and KERNER, Circuit Judges.
. Justice Clark is sitting by designation.
CUMMINGS, Circuit Judge.
The question presented by this appeal is whether the district court correctly ordered United States Cold Storage Corporation (“Cold Storage”) to arbitrate certain grievances of the plaintiff Union.
Cold Storage is a Delaware corporation engaged in the warehousing business in various locations throughout the United States. Prior to November 1967, it operated a warehouse in Chicago. The Union was the collective bargaining representative of certain employees at that warehouse. On January 11, 1967, Cold Storage and the Union entered into a collective bargaining agreement effective until November 30, 1969. Article VIII of that agreement provided for vacation pay, and Article XVI provided for separation allowances. Article XI covered the adjustment of grievances and provided that in the event of failure to settle a grievance, “the matter may be submitted to arbitration at the election of either party.” The contract spelled out the mode of arbitration in some detail.
On October 3, 1967, Cold Storage and the nominee of Mercantile Refrigerated Warehouses, Inc. (“Mercantile”), simultaneously executed a real estate sale contract covering Cold Storage’s warehouse and a separate agreement governing other matters incidental to the transfer. The latter agreement contained the provision that
“No provision of the [real estate] Contract or of this agreement is intended to or shall be deemed to require the Purchaser to assume or be bound by any existing labor agreement signed by Seller.”
A letter from Cold Storage to Mercantile’s nominee dated October 3, 1967, further obligated defendant to
“give notice to all our employees at the premises who are covered by collective labor agreements terminating the employment of such employees effective at the close of business on such closing date. We further agree that we will pay all costs incurred in effecting such termination, including the payment of severance and other payments required to be paid under any applicable collective labor agreements signed by us.”
Accordingly, on November 24, 1967, Cold Storage terminated the employment of all its workers in the Chicago warehouse. Three days thereafter, the sale was completed and Mercantile commenced operating the warehouse. It hired the employees who had previously worked in the warehouse for Cold Storage, treating them as newly hired. Mercantile maintained that it was not bound by the collective bargaining agreement between Cold Storage and the Union, and a new contract was negotiated by Mercantile and the Union effective March 1, 1968.
The Union has not attempted to enforce the bargaining agreement which it had with Cold Storage against Mercantile through legal proceedings. It has, however, claimed separation allowances and vacation pay from Cold Storage. Defendant declined to pay any of the claims or to negotiate the differences in accordance with the provisions of the January 11, 1967, agreement. In April 1968, therefore, plaintiff filed this action in the district court seeking an award of benefits under the bargaining contract or, alternatively, an order directing Cold Storage to arbitrate the grievances. The district court concluded that the collective bargaining agreement remained in force and required arbitration of the company’s liability for separation allowances and vacation pay. Defendant now requests that we set aside the arbitration order and dismiss the complaint or remand the case for a judicial construction of the contract language in connection with the disputed claims. We refuse both requests and affirm the judgment below.
Ever since the Supreme Court’s decisions in the Steelworkers trilogy (United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; and United Steelworkers of America v. Enterprise Wheel & Car Corp„ 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424), it has been well settled that federal courts have a most restricted role in opposing enforcement of arbitration clauses of collective bargaining agreements. The court is to decide no more than “whether the party seeking arbitration is making a claim which on its face is governed by the contract.” United Steelworkers of America v. American Mfg. Co., supra, 363 U.S. at p. 568, 80 S.Ct. at p. 1346. An order to arbitrate a grievance must be granted “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at pp. 582-583, 80 S.Ct. at p. 1352. Absent an express exception to arbitration, “only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail * * Id. at p. 585, 80 S.Ct. at p. 1354. Expiration of the very bargaining agreement does not deprive the arbitrator of jurisdiction to award appropriate relief. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358. The disputed claim to separation pay and vacation allowances involved in this ease quite clearly arose under the January 11, 1967, bargaining agreement between plaintiff Union and defendant Cold Storage. Moreover, these grievances appear to be covered by the general provisions governing adjustment of disputes contained in Article XI of the bargaining agreement. That provision expressly provides for the submission of grievances to arbitration as a final step. There is no claim that the Union has failed to observe the proper procedures preliminary to arbitration. The district court was therefore correct in ordering arbitration. Cf., e. g., Sheet Metal Workers’ International Ass’n, AFL-CIO v. Barber-Colman, 379 F.2d 533 (7th Cir. 1967); Local 156, United Packinghouse, Food and Allied Workers, AFL-CIO v. Du Quoin Packing Co., 337 F.2d 419 (7th Cir. 1964).
To avoid this result, defendant urges that the sale of the warehouse to Mercantile released Cold Storage from its obligations under the bargaining agreement and forced plaintiff to seek satisfaction of its claims from the purchaser. Cold Storage argues that Mercantile, as the purchaser, became the legally bound “successor” employer and was bound by operation of law to observe the provisions of the January 11,1967, bargaining contract between the Union and Cold Storage. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898; cf. United Steelworkers of America v. Reliance Universal Inc., 335 F.2d 891, 894 (3d Cir. 1964); Overnite Transportation Co. v. National Labor Relations Board, 372 F.2d 765, 767 (4th Cir. 1967). This obligation included arbitration (Wackenhut Corp. v. International Union, United Plant Guard Workers, 332 F.2d 954, 958 (9th Cir. 1964), and defendant contends that it also bound Mercantile as to claims arising before succession or based upon conduct of the predecessor. We need not take issue with any of these assertions to dispose of defendant’s contention. The short answer is that the possible legal rights of the Union against Mercantile, as successor, carry no implication of a release of the predecessor Cold Storage from obligations arising under the bargaining agreement between itself and the Union prior to the transfer of ownership. Nothing in Wiley or the eases which have followed it suggests that a doctrine which has been fashioned to preserve the continuity of collective bargaining arrangements and protect employees’ interests under those contracts should be thus turned against the Union. Defendant’s argument not only runs counter to collective bargaining policy under the National Labor Relations Act but would represent an anomaly in basic contract law.
Finally, there was no waiver by the Union of its rights against Cold Storage. Plaintiff’s decision to negotiate a new bargaining agreement with Mercantile did not signify abandonment of its rights against defendant for the separation and vacation payments assertedly due its members. When the employees accepted employment with Mercantile, the Union notified Cold Storage that their acceptance was without prejudice to any rights the employees might have against Cold Storage under their collective bargaining agreement of January 11, 1967. Defendant’s own contractual negotiations and agreement with Mercantile concerning the transfer of the warehouse indicate that those parties considered satisfaction of such claims as severance pay to be seller’s expenses. No danger of double recovery by the Union is apparent. Nothing in this record justifies relieving Cold Storage of its obligation to arbitrate.
Affirmed.
. The district court also ordered distribution by Cold Storage of the assets being held in trust pursuant to the employee pension plan. Cold Storage did not oppose this order in the court below and has expressly excepted it from the issues presented on this appeal.
. See also William J. Burns International Detective Agency, Inc., 182 N.L.R.B. No. 50 (1970); Kota Division of Dura Corporation, 182 N.L.R.B. No. 51 (1970) ; and Hackney Iron & Steel Company, 182 N.L.R.B. No. 53 (1970).
. We need not consider whether Wiley suggests that the Union might have legal rights against the successor for satisfaction of obligations incurred by the original employer. Similarly, we need not examine the possibility that the predecessor might remain secondarily liable under the continuing collective bargaining agreement for damages suffered by the union members at ,the hands of their new employer.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean 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.
UNITED STATES of America, Appellee, v. John Gregory CROZIER, Appellant.
Nos. 720, 873, Dockets 92-1175, 92-1215.
United States Court of Appeals, Second Circuit.
Argued Jan. 19, 1993.
Decided March 1, 1993.
George A. Yanthis, Asst. U.S. Atty., Albany, NY (Gary L. Sharpe, U.S. Atty., and Thomas Spina, Jr., Asst. U.S. Atty., on the brief), for appellee.
Raymond A. Kelly, Jr., Albany, NY, for appellant.
Before: TIMBERS, WALKER, and McLAUGHLIN, Circuit Judges.
TIMBERS, Circuit Judge:
John Gregory Crozier, an architect in Albany, appeals from a judgment entered in the Northern District of New York, Con. G. Cholakis, District Judge, convicting him of conspiracy to bribe a public official, in violation of 18 U.S.C. § 371 (1988), and of making false statements in subscribing a tax return, in violation of 26 U.S.C. § 7206(1) (1988). The primary object of the conspiracy was a $30,000 payment made to James J. Coyne, Jr., the Albany County Executive, who was instrumental in helping Crozier obtain a contract with Albany County to provide architectural services for a civic center (now known as the Knickerbocker Arena). Crozier received a pre-Sen-tencing Guidelines sentence of eighteen months imprisonment on the conspiracy count and a concurrent six month sentence on the false statements count. He was fined $25,000 and was required to pay a $50 special assessment on each count.
Crozier claims that the court erred in instructing the jury as to the parameters of the statute, erred in not allowing him to see the charge before summation, erred in permitting the government to elicit an alleged co-conspirator’s invocation of the Fifth Amendment before the jury, and erred in limiting his examination of a key witness. He further claims that there was insufficient evidence to support the false tax return verdict. Appellee cross appeals, claiming that appellant should be sentenced under the Guidelines.
We reject Crozier's claims on appeal and appellee’s claim on the cross appeal. We affirm the judgment of the district court finding Crozier guilty of conspiracy and filing a false tax return.
I.
We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
The Albany County Industrial Development Agency (IDA) oversaw the development of the civic center project from late 1984 or early 1985 until the summer of 1985. Coyne was one of the three members of the IDA. Joseph V. Zumbo, a close friend of Coyne, was its general counsel. Coyne played a prominent role in the IDA. In 1985, the IDA retained Crozier’s firm to perform preliminary studies for the construction of the civic center.
In the summer of 1985, the county legislature took control of the project. A special committee was established to oversee the project and make recommendations to the legislature. Without interviewing any other architects, the committee, in 1986, recommended that the legislature select Crozier’s firm as the architects for the project. The committee members testified that Crozier had an advantage because of the work he had already done and they were satisfied with his firm’s presentation. The County and Crozier entered into a contract on April 18, 1986.
Even though the legislature had taken charge of the project, Coyne remained quite influential in the development of the project. He frequently met with the project manager and was consulted about problems. He consulted with legislators about aspects of the project which would result in increasing Crozier’s fee and attended many of the meetings.
In June or July of 1986, Crozier claims he decided to give $30,000 to Coyne as a loan. Since both men were involved in the civic center project at that time, Crozier contends that he wanted to avoid the appearance of impropriety that would be created by giving the money directly to Coyne. He sought help from Zumbo. Crozier and Zumbo met in a restaurant. Zumbo suggested that the deal be structured as two transactions: (1) Crozier would lend $30,-000 to Zumbo, and (2) Zumbo would lend $30,000 to Coyne.
On or about July 9, 1986, Crozier’s firm issued him a $30,000 check. It initially was listed as a loan to an officer and then listed as a bonus or compensation for Crozier. Crozier then gave Zumbo a personal check for $30,000, with the notation “real estate dev.” on the check. Zumbo deposited the check in his law office’s general operating account, and gave Coyne a check from the same account for $30,000. Coyne deposited $30,000 in his personal bank account on July 9, 1986.
None of Crozier’s financial statements or loan applications for the period of 1987-89 reflects a $30,000 asset, as loans receivable generally are considered. Further, no loan documents were created in 1986 for the transaction. There was no repayment schedule and no interest charges. At trial, Zumbo testified that in 1989 he created a note from Coyne to himself, but did not recall whether he had created a note from himself to Crozier. Zumbo created a loan document between himself and Crozier in 1991, but dated it July 7, 1986, without indicating that it had been created five years later.
On September 25, 1991, Crozier was indicted in three counts. Count I charged Crozier with conspiracy under 18 U.S.C. § 371 corruptly to give or agree to give anything of value to Coyne “for or because of” Coyne’s conduct in connection with transactions involving the civic center project in violation of 18 U.S.C. former § 666(c) (hereinafter, § 666(c)). Count II charged Crozier with “knowingly, willfully, and corruptly” giving and agreeing to give $30,000 to Coyne in connection with business and transactions of Albany County and the IDA, including awarding the contracts in 1985 and 1986 to Crozier’s firm for the architectural services for the civic center project, and for the performance of the contract and change orders in violation of § 666(c).
Count III charged Crozier with filing a false tax return in violation of 26 U.S.C. § 7206(1). In 1987, Crozier’s firm issued a check for $12,000 to Clark D. Richey, C.P.A. It was posted in the corporate books and records as a professional legal fee, but actually was used as an investment in a horse partnership. An accountant for the Crozier firm testified that he contacted the firm’s bookkeeper regarding the $12,-000 payment and was told that she did not know the purpose of the expenditure, an account confirmed by the bookkeeper. Although the accountant did not recall contacting Crozier regarding the $12,000 payment, he testified that he generally dealt with Crozier directly when the bookkeeper was unable to answer a question. After its communications with Crozier Associates, the accounting firm changed the classification of the expenditure to “accounting fees.” Ultimately, the $12,000 payment was deducted on Crozier Associates’ 1987 U.S. corporate income tax return as a professional fee relating to an organizational plan. The indictment charged Crozier with signing the return under penalty of perjury, and declaring it to be true and correct, even though he knew the money was for an investment and not for the “professional fees” listed.
Throughout the trial, Crozier contended that he should be acquitted because § 666(c) prohibited only bribery — a specific, corrupt intent to influence present or future decisions. Through a motion for a judgment of acquittal prior to jury selection, Crozier argued that this critical element was missing from the indictment. There was no proof at trial of any intent to influence present or future decisions of Coyne, primarily because the contract already had been awarded when the loan was given. Crozier also sought to limit the government’s proof to a strict bribery theory through voir dire questions, objections, and proposed jury instructions.
The court instructed the jury with respect to the conspiracy charged in Count I and with respect to Count II by basically following the language of the indictment, using the “for or because of” Coyne’s conduct language. With respect to Count II, the court charged that in order to convict under § 666(c), the jury must find beyond a reasonable doubt that Crozier knowingly and willfully gave or agreed to give a thing of value to Coyne for or because of Coyne’s conduct in connection with the civic center project, and that Albany County received more than $10,000 in federal financial assistance in any one year. The court further charged that § 666(c) would be violated if
“the defendant gave or agreed to give the $30,000 for or because of conduct previously performed or to be performed by James J. Coyne, Jr., in connection with architectural services provided by the defendant relating to the Albany County Civic Center. Doesn’t matter if the thing of value was given before or after Coyne’s conduct as long as you find beyond a reasonable doubt that it was given for or because of that conduct.”
In the midst of deliberations, the court received a note from the jury requesting clarification as to whether the government must have proven all parts of Counts I and II. The court took the opportunity to advise the jury on the various elements which make up each count. As to Count I, the court instructed on the basic elements of a conspiracy, giving the jury the two theories of the object of the conspiracy: (1) if Crozier agreed to give or did give something of value to Coyne in connection with the civic center project, or (2) if Coyne solicited, accepted, or agreed to accept anything of value from Crozier because of the conduct of Coyne in connection with the civic center project. As to Count II, the court instructed that the $30,000 must have been given pursuant to an agreement between Coyne and Crozier under which Coyne would do something for Crozier in relation to the civic center project, or that the $30,-000 was given without an agreement but with the intent to influence Coyne to do something of value for Crozier in the future in relation to the civic center project. The court gave the jury special interrogatories for Count II that were consistent with the court’s instructions on that count. No such interrogatories were given for Count I.
The jury found Crozier guilty on the conspiracy charged in" Count I and for filing a false tax return charged in Count III. It acquitted him of the substantive charge in Count II.
On appeal, Crozier asserts that the conspiracy conviction was based on a gratuity theory rather than bribery, which he claims is impermissible under the statute; the court made a number of errors in its charge to the jury; the jury was prejudiced by the testimony of an alleged co-conspirator; the court excluded essential testimony; and there was insufficient evidence to support the false tax return verdict. The government cross appeals, asserting that Crozier should have been sentenced under the Guidelines.
II.
(A) Crozier’s Claim that His Conviction was on a Gratuity and not a Bribery Theory
Section 666(c) was enacted to punish corrupt payments made to state or private officials who disburse federal funds. S.Rep. No. 225, 98th Cong., 2d Sess. 369-70, reprinted in 1984 U.S.C.C.A.N. 3182, 3510-11. It was enacted to supplement 18 U.S.C. § 201 which covered both bribery and gratuities made to federal public offi-ciáis. 18 U.S.C. §§ 201(b)(1) & (c)(1)(A) (1988). Unlike § 201, however, § 666(c) does not distinguish between bribery and gratuity, creating some confusion. The language of § 666(c) is similar to the gratuity language of § 201, but the legislative history refers only to bribery and the maximum penalty under the statute is closer to the maximum penalty under § 201’s bribery provisions. United States v. Jackowe, 651 F.Supp. 1035, 1036 (S.D.N.Y.1987).
On appeal, Crozier asserts that the court erred in its jury charge. He claims that the charge with respect to Count I was ambiguous and left room for the jury to convict him on a gratuity theory, as well as on a bribery theory. Crozier asserts, however, that § 666(c) is a bribery only statute, and the fact that his conviction could have been grounded on a gratuity theory makes his conviction reversible in that the court allowed the jury to convict on a legally insufficient theory. He says that, while the court submitted special interrogatories to the jury for Count II — the substantive bribery charge — which limited the jury’s verdict to a bribery theory rather than a gratuity theory, such was not done for the conspiracy charge. He contends therefore that the jury was not instructed on a bribery only theory for the conspiracy count and there is a possibility (if not a likelihood) that the jury based his conspiracy conviction on facts which lend themselves to a gratuity theory only. He contends that his argument is bolstered by the fact that, although he was convicted for conspiracy, he was acquitted on the substantive count, for which the jury received specific instructions on a bribery only theory.
If § 666(c) were a bribery only statute, Crozier is correct in his claim that the jury charge was faulty. In the court’s initial charge, the jury was instructed that Crozier could be found guilty if he gave Coyne money “in exchange for Mr. Coyne’s performance or promise to perform some official act....” While this instruction was given for Count II, the substantive charge, it was made clear to the jury that the substantive charge was the object of the conspiracy. Further, the indictment, which the jury had during deliberations, did not charge bribery, but stated that the object of the conspiracy at issue was
“[t]o corruptly give and agree to give anything of value to James J. Coyne, Jr. because of [the] conduct of James J. Coyne Jr. in connection with the business, transaction, and series of transactions of Albany County, and its IDA, involving anything of value of $5,000 or more [,] in violation of 18 U.S.C. former § 666(c)....”
Based on the plain meaning of the indictment, therefore, there was ample leeway for a jury to convict on a gratuity theory. Even though in the midst of deliberations the court answered the jury’s question by limiting Count II to a bribery only theory, this is no cure for the earlier ambiguities. It is quite possible that, by the time this limitation was given, the jury already had reached its verdict on Count I, finding appellant guilty under the ambiguous and broader charge. Count I called for a general verdict, no interrogatories having been given. As the reviewing court, therefore, we have no way of determining what was the jury's basis for its verdict.
We reject, however, Crozier’s argument (and the interpretation given by the district court) that § 666(c) is a bribery only statute. Although Judge Sweet’s analysis of the statute in Jackowe, supra, 651 F.Supp. at 1035-36, construed § 666(e) as a bribery only statute, we believe that the statute, like § 201 (which it was enacted to supplement), should be construed to include gratuities as well.
This assertion is supported by the broad language of § 666(c) which provides:
“(c) Whoever offers, gives or agrees to give an agent of an organization or of a State or local government agency, described in subsection (a), anything of value for or because of the recipient’s conduct in any transaction or matter or any series of transactions or matters involving $5,000 or more concerning the affairs of such organization or State or local government agency, shall be imprisoned not more than ten years or fined not more than $100,000 or an amount equal to twice that offered, given or agreed to be given, whichever is greater, or both so imprisoned and fined.” (emphasis added).
The “for or because of” language of this statute includes both past acts supporting a gratuity theory and future acts necessary for a bribery theory. Moreover, § 201(c)(1)(A), the section which covers gratuities given to federal officials, provides, “[wjhoever ... gives, offers, or promises anything of value to any public official ... for or because of any official act performed ...” shall be subject to fines and imprisonment. 18 U.S.C. § 201(c) (emphasis added). It is the “for or because of” language in § 201(c)(1)(A) which distinguishes it as a gratuity section from the bribery prohibitions found in § 201(b)(1), which applies to payments or agreements to make payments with the intent to “influence” or “induce” official action. S.Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3856-57 (discussing former § 201). It logically follows, therefore, that where Congress used the same language in two statutes, the second of which was enacted to supplement the first, the same meaning should be applied to both.
This interpretation makes this case a clear one, as the facts lean more toward a gratuity theory. Moreover, we do not have to read the minds of the jurors and assume that they took the mid-deliberation jury charge for Count II and applied it to Count I. Instead, we believe that it was possible, and proper, for the jury to have found the object of the conspiracy to be payment for past influence.
Unlike Judge Sweet, we do not believe that one of the two meanings of § 201, prohibiting both bribery and gratuities given to federal officials, needs to be lost in a statute designed to extend the offense to state and local officials. The Jackowe court’s rationale for limiting the statute to only one of the theories is that the statute contains no explicit intent and therefore it must imply either intent for bribery or intent for a gratuity. We disagree. If the charge is brought on a bribery theory, then the government must prove the intent to reward an official for future conduct; if the charge is brought on a gratuity theory, the intent must be to reward the official for past conduct.
Crozier relies on the fact that an amendment added in 1986 to § 666(c), making the statute applicable only to payments made corruptly, with the intent to influence or reward an official, made § 666 applicable to gratuities. This amendment, however, is identical to an amendment made to 18 U.S.C. § 215, a bank bribery statute. The amendments were made to limit the scope of these statutes, and not to broaden them to include new theories. H.Rep. No. 99-335, 99th Cong., 2d Sess. 5 (1986), reprinted in 1986 U.S.C.C.A.N. 1782, 1786-87; H.Rep. 99-797, 99th Cong., 2d Sess. 30 (1986), reprinted in 1986 U.S.C.C.A.N. 6138, 6153 n. 9.
Judge Sweet also emphasized that § 666 is titled “Theft or Bribery Concerning Programs Receiving Federal Funds”, and that the legislative history of the statute “speaks entirely in terms of ‘bribery,’ and never uses the words ‘gratuity’ or ‘gift.’ ” Jackowe, supra, 651 F.Supp. at 1036; see S.Rep. No. 225, 98th Cong., 2d Sess. 369-70 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510-11 (emphasis added). The Senate Report, however, addresses the purpose of this section as one which will augment the class of persons who are liable under § 201. The report states that it was unclear under § 201 whether state or local officials were considered “public officials” per the statute. The report discusses § 201 in general terms, without limiting it to a specific section (such as the section which provides for the “bribery theory”). The report then goes on to state that the intent of enacting § 666 was to cover situations like United States v. Mosley, 659 F.2d 812 (7 Cir.1981), a case in which a state official was convicted of violating a gratuity provision of former 18 U.S.C. § 201(g), now id. § 201(c)(1)(B). Judge Sweet’s reliance on the loose use of the term “bribery” in the legislative history appears to be unfounded.
Judge Sweet also noted that the ten year maximum sentence available under § 666(c) is far closer to the fifteen year maximum term available under the bribery provision of § 201, see 18 U.S.C. § 201(b), than to the two year maximum available under the gratuity provision of § 201, id. § 201(c). Jackowe, supra, 651 F.Supp. at 1036 (citing former § 201). Judge Sweet was concerned that there might be equal protection or disproportionality problems if § 666(c) were construed to permit greater punishments to persons who give gratuities to state and local officials than to persons who give gratuities to federal officials. Whatever the merits of Judge Sweet’s constitutional concerns, they are not implicated in this case. Crozier received an eighteen month sentence on the conspiracy count, well within the two year maximum applicable to violations of § 201(c).
(B) Section 666(c) is not Void for Vagueness
Crozier asserts that § 666(c) is void for vagueness and was applied unconstitutionally against him because it does not include an explicit mens rea requirement, and fails clearly to describe the conduct it prohibits. He is correct in his claim that a statute must describe with some particularity the conduct it proscribes or requires. Kolender v. Lawson, 461 U.S. 352, 358 (1983). A statute is not unconstitutionally vague if it sufficiently alerts ordinary people as to what is prohibited, and is not applied in an arbitrary or discriminatory way. Id. at 357.
We disagree with Crozier’s assertion. We believe that the statute does contain the mens rea of intent, and therefore is not void for vagueness. Further, § 666(c) was not unconstitutional as applied to Crozier. The court clearly instructed the jury of the mens rea required by Crozier for a violation of § 666(c). In the charge with respect to Count I, the court specifically stated that the conspiracy must have been willfully formed and Crozier must have willfully joined it. The court then defined willful. The court also gave adequate instructions about the meaning of the “for or because of” language in the statute. Since we hold that § 666(c) could be violated on a gratuity theory, the fact that the court’s instruction did not adequately distinguish between gratuity and bribery is not a problem, as Crozier contends on appeal.
We hold that there was a mens rea requirement included in the statute as applied to Crozier, and the statute was not unconstitutionally vague.
(C) Crozier Did Not Receive Proposed Jury Instructions Before Summation, Nor Were His Requests For Interrogatories Granted
Crozier asserts that the court committed a “fundamental error” by not providing him with a copy of the jury instructions before his summation and by failing to submit to the jury special interrogatories requested by Crozier concerning the scope of § 666(c). Fed.R.Crim.P. 30 requires the court to rule on requests for jury instructions before summation in order to allow the parties the opportunity to refer to the instructions in their summations. “If the Rule is violated, reversal is required where the defendant can show that he was ‘substantially misled in formulating his arguments’ or otherwise prejudiced.” United States v. Eisen, 974 F.2d 246, 256 (2 Cir.1992) (quoting United States v. Smith, 629 F.2d 650, 653 (10 Cir.), cert. denied, 449 U.S. 994 (1980)).
In the instant case, at a pre-charge conference, Crozier learned of the two legal theories about which the court would instruct the jury. Also, the court never agreed to submit the interrogatories that Crozier requested, but merely stated that they would be considered. Crozier was not misled as to what the jury charge would be. While it might be better practice to allow the parties to obtain the charge before the summation, in this case reversal is not required, since Crozier was well aware of what the ultimate charge would be and was able to refer to it in his summation.
(D) Joseph Zumbo’s Invocation of Fifth Amendment in Presence of the Jury
At trial it was known to the court and counsel that, when Joseph Zumbo was called as a witness, he would invoke his Fifth Amendment privilege against self-incrimination. Crozier requested that such invocation of the privilege should be done outside the presence of the jury to alleviate the impact on the jury. The court allowed the jury to be present. Crozier now asserts that the court committed reversible error by allowing the jury to use inferences arising from a witness’ invocation of the privilege.
In Namet v. United States, 373 U.S. 179 (1963), the Supreme Court described two situations in which a witness’ invocation of his Fifth Amendment privilege before a jury in response to a prosecutor’s questions may give rise to reversible error: “1. ‘pros-ecutorial misconduct, when the government makes a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege’; and 2. when ‘in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a forum not subject to cross-examination.’ ” Rado v. Connecticut, 607 F.2d 572, 581 (2 Cir.1979) (quoting Namet, supra, 373 U.S. at 186-87), cert. denied, 447 U.S. 920 (1980). In applying the Nam-et rule, our eases look to a number of factors, including
“[1] the prosecutor’s intent in calling the witness, [2] the number of questions asked, [3] their importance to the state’s case, [4] whether the prosecutor draws any inference in his closing argument from the witness’ refusal to answer ... and [5] whether the trial judge gives a curative instruction.”
Id. at 581.
In this case, first, there is no evidence that the government had an improper motive in calling Zumbo. Rather, the government extended immunity to the witness in 'order that he might be able to testify fully before the jury. Second, Zumbo asserted his privilege only three times before the jury. Third, the questions Zumbo refused to answer, whether he had aided Coyne in obtaining County employment and whether he could identify government exhibits, were peripheral to the government’s case against Crozier. Fourth, at no time during the trial did the government attempt to draw any inference from Zumbo’s assertion of his privilege. Finally, the court gave an appropriate cautionary instruction. Under these circumstances, we find no reversible error in the district court’s allowing Zumbo to assert his privilege in the jury’s presence.
(E) Zumbo’s Grand Jury Testimony and Conversation with Crozier
Crozier argues that the court erred in limiting his cross-examination of alleged co-conspirator Zumbo, precluding him from eliciting details of prior conversations between Zumbo and Crozier under the rule of completeness and in order to rebut a government theory of recent fabrication. In his examination of Zumbo, Crozier sought to bolster a defense theory that he intended the payment to Coyne to be a loan rather than an outright gift. However, as we have held in connection with § 201, any payment that the defendant subjectively believes has value, including a loan, constitutes a thing “of value” within the meaning of § 666(c). United States v. Williams, 705 F.2d 603, 622-23 (2 Cir.), cert. denied, 464 U.S. 1007 (1983); see also United States v. Gorman, 807 F.2d 1299, 1305 (6 Cir.1986) (finding loan to be thing “of value” under former 18 U.S.C. § 201(g), now id. § 201(c)(1)(B)), cert, de nied, 484 U.S. 815 (1987). Thus, the issue of whether the payment was a gift or a loan is irrelevant to the question of Crozier’s guilt or innocence in this case, and his evidentiary arguments consequently fail on the ground of relevance.
(F) Evidence to Support the Verdict of Filing a False Tax Return
Crozier claims that there was insufficient evidence to support the guilty verdict on Count III. He bases this claim on the standard used in embezzlement cases which allows the conviction to be upheld only if the evidence inexorably supports an inference of guilt and is not consistent with a theory of innocence. United States v. Lavergne, 805 F.2d 517, 522 (5 Cir.1986). This is not an embezzlement case, however, and we must look at the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80 (1942). Based on the facts of this case, which include the books and the testimony of the bookkeeper and accountant, a rational trier of fact could have made this finding beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We hold that the verdict must stand.
(G) Cross Appeal Claiming the Court Erred in not Sentencing Under the Guidelines
The government asserts that this is a “straddle case,” one that involves a conspiracy which began prior to the effective date of the Guidelines and continued after that date—November 1, 1987. The government therefore claims that Crozier should have been sentenced under the Guidelines. In this case, Crozier was convicted of a conspiracy to violate § 666(c). The conspiracy ended with the $30,000 payment to Coyne. That was what the indictment defined as the object of the conspiracy. The court correctly held that the acts which occurred after November 1, 1987 were merely acts to cover up the conspiracy and were not done in furtherance of the conspiracy. Acts of concealment, without more, do not “extend the life of the conspiracy after its main objective has been obtained.” Eisen, supra, 974 F.2d at 269 n. 8; Grunewald v. United States, 353 U.S. 391, 401 (1957).
We hold that this is not a “straddle case.” Crozier should not have been sentenced under the Guidelines.
III.
To summarize:
Section 666(c) prohibits the giving of both bribes and gratuities to state or local officials. Crozier was not wrongly convicted if the jury based its verdict on a gratuity theory. Further, the statute was applied constitutionally to Crozier. The court did not commit reversible error with regard to Zumbo’s testimony. There was sufficient evidence to support a guilty verdict on the false tax return charge. As for the cross appeal, this is not a “straddle case”; the Guidelines are not applicable.
Affirmed.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_appfiduc
|
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 "fiduciaries". 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.
CONNECTICUT FIRE INS. CO. v. OAKLEY IMPROVED BUILDING & LOAN CO. et al.
No. 6805.
Circuit Court of Appeals, Sixth Circuit.
Jan. 13, 1936.
J. L. Kohl, of Cincinnati, Ohio (Harmon, Colston, Goldsmith & Hoadly, of Cincinnati, Ohio, on the brief), for appellant.
Frank E. Wood, of Cincinnati, Ohio (Nichols, Morrill, Wood, Marx & Ginter and Clifford F. Cordes, all of Cincinnati, Ohio, on the brief), for appellees.
Before MOORMAN, HICKS, and SI-MONS, Circuit Judges.
HICKS, Circuit Judge.
The question here is, whether appellee the Oakley Improved Building & Loan Company (hereinafter called the Oakley Company) is entitled to reformation of a fire insurance policy. The claim is grounded upon the following facts:
Josie Ramsey owned a house and lot upon which the Southern Ohio Loan Company (herein called the Southern Company) held a mortgage for $4,500. The house was insured against fire in appellant, the Connecticut Fire Insurance Company, to the amount of the mortgage. A printed mortgage clause was attached to the policy making loss payable to the Southern Company as mortgagee.
The policy expired on March 24, 1928, and on March 22 Mrs. Ramsey wrote Spragens, appellant’s agent, as follows: “Kindly renew policy for insurance and send to Southern Ohio Loan Company. Kindly mail me bill for same and I will mail you check. Trusting you will take care of this immediately as it will expire Saturday. * * * ”
Along with this letter she sent a notice and a form of mortgage clause which she had received from the Southern Company similar to the one attached to the expiring policy. The notice read: “We enclose mortgage clause to be used by the agent in writing the new insurance.”
The renewal policy was issued by Spragens and carried the form supplied by the Southern Company. This form was printed on yellow paper, bore the name “The Southern Ohio Loan Company” in large letters at the top, and had blanks at the bottom for the date of execution, the number of the policy to which it was to be attached, the name of the company issuing it, and a space for the name of the agent executing it. When the blanks were filled it showed that it was dated March 28, 1928, was signed by Spragens, and attached to renewal policy No. 46967 of appellant. It contained, among others, the following clause: “ * * * damage if any under this policy shall be payable to the Southern Ohio Loan Co., mortgagee, as its interest may appear, and this insurance as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property. * * * ” (Italics ours.)
The policy itself aside from the mortgage clause form provided: “This entire policy unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership * * * or if, with the knowledge of the insured, foreclosure proceedings be commenced. * * * ” And again: “If, with the consent of this company, an interest under this policy shall exist in favor of á mortgagee or of any person or corporation, having an interest in the subject of the insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest, as shall be written upon, attached, or appended hereto.” (Italics ours.)
Some time after this renewal a refinancing of the loan on the Ramsey property took place under which the Southern Company was paid off and appellee the Oakley Company became the mortgagee. The new mortgage was for $4,500, and the attorney for appellee used its proceeds to pay off the old one and received from the Southern Company the old mortgage and the insurance policy. When the Southern Company delivered the policy to the attorney, it stamped this sentence upon the mortgage clause: “The interest of the Southern Ohio Loan Company in the within policy has been satisfied.”
On June 15, 1928, Cordes, attorney for appellee, mailed the policy received by him from the Southern Company, which then had nine months to run before expiration, to Spragens with a letter reading: “Attach mortgage clauses to The Oakley Improved Building and Loan Company on the enclosed policies. When this is done please return to me.” The other policy referred to is not involved here.
There was some dispute whether, when Spragens received the letter and policy, the Southern Company mortgage clause had been detached. Cordes testified that it had not. The court found in accordance with his testimony and there appears to be no substantial reason for thinking otherwise.
Upon receipt of the policy and letter Spragens attached to the policy, No. 46967, a new mortgage clause styled: “Uniform Standard — Form No. 127 — National Board Standard Mortgage Clause. * * * ” This new clause contained the following provisions:
“This policy, as to the interest therein of said payee, as mortgagee * *' * only, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property nor by the commencement of foreclosure proceedings, nor the giving of notice of sale relating to the property, nor by any change in the interest, title, or possession of the property, * * * and provided further that the mortgagee * * * shall notify this Company of the commencement of foreclosure proceedings and of any notice of sale relating to the property, and of any change of ownership. * * * ”
“Failure upon the part of the mortgagee * * * to comply with any of the foregoing obligations shall render the insurance under this policy null and void as to the interest of the mortgagee. * * * ” (Italics ours.)
Spragens then returned the policy to Cordes in an envelope, by mail, without an accompanying letter.
The old mortgage clause had been detached from the policy before it was returned to Cordes. Spragens notified his home office of the substitution of the new mortgage clause for the old one but did not advise either Mrs. Ramsey or any agent or attorney of appellee of the change. Upon receipt of the policy with the new mortgage clause attached, Cordes sent it to Woods, secretary of appellant, who, without examination, placed it in appellant’s safe.
Some time thereafter Mrs. Ramsey defaulted in her payments on the mortgage and appellee filed suit to foreclose. While this suit was pending the property was destroyed by fire on January 25, 1929. Notice of the fire was given to appellant, which then for the first time informed appellee that the policy was void as to it because it had not notified appellant of the commencement of the foreclosure proceedings as provided by the new mortgage clause. It was to restore the old mortgage clause which did not contain the requirement of notice of foreclosure by the mortgagee, with the name of appellee substituted for the Southern Company, that this suit for reformation was brought. The court decreed that appellee was entitled to reformation and we concur.
When on March 23, 1928, the policy with the Southern Company mortgage clause attached was delivered, it constituted a contract for insurance between Mrs. Ramsey and appellant and for the same consideration (the premium) embodied a secondary obligation of appellant to the mortgagee. Brown City Savings Bank v. Windsor, 198 F. 28, 33, 41 L.R.A.(N.S.) 1012 (C.C.A.6). By the terms of the mortgage clause a failure on the part of Mrs. Ramsey to give notice of any foreclosure proceedings would not invalidate the interest of the mortgagee. When on June 15, 1928, Cordes, acting not only for the Oakley Company but for Mrs. Ramsey as well, and knowing the provisions of the Southern Company mortgage clause used in previous transactions between Mrs. Ramsey and appellant, forwarded the policy to Spragens with that mortgage clause attached and with the directions above quoted, both he and Mrs. Ramsey had the right to assume that if appellant returned the policy with another mortgage clause payable to appellee, its provisions and conditions would be similar to those of the old one.
As was said in Eames v. Home Ins. Co., 94 U.S. 621, 629, 24 L.Ed. 298: “This is the sense and reason of the thing, and any contrary requirement should be expressly notified to the party to be affected by it.” See, also, Hay v. Star Fire Ins. Co., 77 N.Y. 235, 238, 33 Am.Rep. 607; L. Lewitt & Co., Inc., v. Jewelers’ Saf. Fund. Soc., 249 N.Y. 217, 222, 164 N.E. 29; Martin v. American Ins. Co., 198 Wis. 214, 217, 223 N.W. 437; Massachusetts Bonding & Ins. Co. v. R. E. Parsons Elec. Co., 61 F.(2d) 264, 268, 92 A.L.R. 218 (C.C.A.8). There is nothing in Cordes’ letter of June 15, 1928, to indicate that any change in the mortgage clause was desired except the substitution of the name of the new mortgagee for that of the old. Certainly Mrs. Ramsey and appellee did not intend nor expect to receive a lesser degree of protection than Mrs. Ramsey had paid for.
If appellant intended to abrogate the old mortgage clause, which did not invalidate the interest of the mortgagee for failure to give notice of foreclosure, and to substitute contrary conditions and provisions, both law and equity required that the insured have notice thereof. Fames v. Home Ins. Co., supra; Hay v. Star Fire Ins. Co., supra. The change was highly important, was advantageous to appellant and correspondingly disadvantageous to the insured, and if permitted to stand was equivalent to a new contract which appellee was mistakingly induced to accept by the inequitable conduct of áppellant. Under such circumstances equity will not be slow to grant reformation. Tts jurisdiction to reform written instruments where there is a mistake on one side and inequitable conduct on the other is undoubted. Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 435, 12 S.Ct. 239, 35 L.Ed. 1063; Pomeroy’s Eq. Jurisprudence (4th Ed.) Vol. 2, § 870.
In Page on Contracts (2d Ed.) vol. 4, § 2218, it is said: “Where A is entering into a written contract under mistake as to its contents, and the circumstances are such that if B, too, were mistaken, reformation would be given on A’s application, a still clearer case for reformation exists where B knew of A’s mistake and took advantage of it, or by his own conduct or representations led him into such a mistake.” See, also, Roszell v. Roszell, 109 Ind. 354, 356, 10 N.E. 114; Markwart v. Kliewer, 75 Or. 574, 577, 147 P. 553; Crookston Imp. Co. v. Marshall, 57 Minn. 333, 337, 59 N.W. 294, 47 Am.St.Rep. 612; Winans v. Huyck, 71 Iowa, 459, 32 N.W. 422; Mercer v. Jenkins, 201 Iowa, 423, 427, 205 N.W. 772; Betz v. Swanson, 200 Iowa, 824, 829, 205 N.W. 507; Moody v. Smoot Adv. Co., 98 W.Va. 261, 268, 126 S.E. 919; Scott v. Spurr, 169 Ky. 575, 579, 184 S.W. 866.
Appellant argued that appellee is es-topped from seeking reformation because it neglected to familiarize itself with the contents of the new mortgage clause, but it is not universally true that equity will withhold relief because the injured party has failed to read the instrument complained of. The law required of appellee but reasonable diligence under the circumstances. Sanders v. Monroe, 56 App.D.C. 132, 10 F.(2d) 997, 999; Betz v. Swanson, supra; Sutton v. Risser, 104 Iowa, 631, 637, 74 N.W. 23. Mrs. Ramsey herself never saw the new mortgage clause. As above indicated, she had a right to assume that it was identical with the old save for the substituted mortgagee and appellee might reasonably indulge in the same assumption because it knew that the old mortgage clause had been used between the parties. The case is not one -where the insured failed to read an original policy.
Decree affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_method
|
C
|
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.
Mario TARABOCCHIA, Plaintiff-Appellee-Appellant, v. ZIM ISRAEL NAVIGATION CO., Ltd., Defendant and Third-Party Plaintiff-Appellant-Appellee, v. JOHN W. McGRATH CORP., Third-Party Defendant.
No. 945, Docket 33492.
United States Court of Appeals, Second Circuit.
On Remand from the Supreme Court of the United States, March 31, 1971.
Decided Aug. 12, 1971.
George T. Delaney, Kenneth Heller, New York City, for plaintiff-appellee-appellant.
Martin J. McHugh, McHugh & Leonard, New York City, for defendant and third-party plaintiff-appellant-appellee.
Before MOORE, HAYS and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff, an employee of John W. McGrath Corp., stevedores, was injured while engaged in an unloading operation from the M/V Beersheva, a vessel owned by Zim Israel Navigation Co. The accident occurred when a loading platform on which plaintiff and a coworker were standing suddenly became dislodged causing plaintiff to fall. The Trial Court found that the platform was not an appurtenance of the vessel and that the cargo sling being used in the unloading operation did not render the vessel unseaworthy. Liability was premised upon the theory that an act of plaintiff’s co-worker caused the accident and that “a ship is rendered unseaworthy when longshoremen make negligent use of seaworthy equipment.” 297 F.Supp. 378, 382. Judgment was entered in favor of plaintiff against Zim Israel and McGrath did not dispute its indemnity obligation.
Despite the seeming incongruity of holding that a seaworthy vessel can be instantaneously transformed into an unseaworthy condition by a negligent act of a stevedore’s employee, this court felt bound by previous decisions of the Supreme Court II.and its own decisions in reliance thereon to affirm the judgment. At the same time the court recognized that conflict existed between the Circuits (the Fifth and the Ninth) but said that it was for the Supreme Court “to resolve the apparent conflict between the Circuits.” 417 F.2d 476, 478.
This resolution has now been made by the Supreme Court in Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971) but not without vigorous dissent by four Justices thereof. 400 U.S. at 501-504, 91 S.Ct. 514. The majority opinion reviewed the many cases which over the years have created the problem and came to the conclusion that it would be erroneous “where no condition of unseaworthiness existed, to hold the shipowner liable for a third party’s single and wholly unforeseeable act of negligence.” 400 U.S. at 500, 91 S.Ct. at 518.
Upon Zim Israel’s petition, certiorari was granted (four Justices dissenting), the judgment vacated and the case was remanded “for further consideration in the light of Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562, decided January 25, 1971.” 401 U.S. 930, 91 S.Ct. 914, 28 L.Ed.2d 211 (1971). Such consideration has now been given in the light of that decision and the case is remanded to the United States District Court for the Southern District of New York with instructions to dismiss the complaint.
. Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed.2d 743 (1967); Waldron v. Moore-McCormack Lines, 386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967); Gutierrez v. Waterman SS. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Mitchell v. Trawler Racer, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Crumady v. The J. II. Fisser, 35S U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1943).
. Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961, (2d Cir. 1967) rehearing denied, 386 F.2d 444, (2d Cir. 1967) 390 U.S. 1027, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968); Alexander v. Bethlehem Steel Corporation, 382 F.2d 963 (2d Cir. 1967).
. Antoine v. Lake Charles Stevedores, Inc., 376 F.2d 443, cert. den. 389 U.S. 869, 88 S.Ct. 145, 19 L.Ed.2d 146 (1967); Robichaux v. Kerr McGee Oil Industries, Inc., 376 F.2d 447 (1967).
. Tim v. American President Lines, Ltd., 409 F.2d 385 (1969) and cases cited therein.
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_5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Guy MASON, Petitioner-Appellant, v. Charles R. BALKCOM, Warden, Respondent-Appellee.
No. 80-7344.
United States Court of Appeals, Fifth Circuit. Unit B
March 1, 1982.
James C. Bonner, Jr., University of Georgia School of Law, Prison Legal Counseling Project, Athens, Ga., for petitioner-appellant. ■
William B. Hill, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Before TUTTLE, HILL and THOMAS A. CLARK, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452—October 14, 1980.
THOMAS A. CLARK, Circuit Judge:
Petitioner, Guy Mason, appeals from the district court’s order and judgment denying his petition for a writ of habeas corpus. We reverse.
In January 1975, petitioner was convicted of murder and sentenced to death after a jury trial in the Superior Court of Baldwin County, Georgia. On direct appeal and the mandatory sentence review, petitioner’s conviction and sentence were affirmed by the Georgia Supreme Court, Mason v. State, 236 Ga. 46, 222 S.E.2d 339 (1976), and certio-rari was denied by the United States Supreme Court, Mason v. Georgia, 428 U.S. 910, 96 S.Ct. 3225, 49 L.Ed.2d 1219 (1976).
Petitioner subsequently petitioned for a writ of habeas corpus in the Superior Court of Tattnall County, Georgia. The state ha-beas action was continued to permit petitioner to file an extraordinary motion for a new trial in the Baldwin County Superior Court. Following an evidentiary hearing, the motion was denied on March 18, 1977. On appeal, the Georgia Supreme Court affirmed the denial of the extraordinary motion. Mason v. State, 239 Ga. 538, 238 S.E.2d 79 (1977). On January 26, 1978, an evidentiary hearing commenced on petitioner’s state habeas action in the Tattnall County Superior Court. That court denied habeas relief in an order and written opinion entered on July 13, 1978. Mason v. Hopper, No. 76-218 (Super.Ct. Tattnall Cty., July 13, 1978). From the adverse decision of the state habeas court, petitioner filed an application for a certificate of probable cause to appeal to the Georgia Supreme Court. The certificate was denied on October 3, 1978.
Petitioner next filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia pursuant to 28 U.S.C. § 2254. The district court ordered petitioner’s execution stayed pending final resolution of the habe-as action. On April 7, 1980, the district court denied the petition for the writ but left intact the stay of execution. Mason v. Balkcom, 487 F.Supp. 554 (M.D.Ga.1980). Petitioner now appeals to this court from the district court’s denial of his petition.
Five issues are raised on this appeal. Petitioner contends (1) that the trial court’s instructions to the jury created a presumption of intent to kill, thereby unconstitutionally relieving the state of its burden of proving an essential element of the crime of murder and depriving petitioner of due process of law, and that the erroneous charge cannot be dismissed as harmless error; (2) that the trial court’s instructions on voluntary manslaughter impermissibly created a presumption of “deliberate revenge” without regard to petitioner’s actual thought processes, thus depriving him of due process by relieving the state of its burden of proof; (3) that a venireman was improperly excluded from service on the jury on less than an “unmistakably clear” indication that his opposition to capital punishment would automatically impair his ability to consider a death sentence; (4) that his conviction and sentence cannot stand because one of the jurors, prior to the conclusion of the guilt phase of the trial, became aware through newspaper accounts that petitioner had been convicted of murder previously; and (5) that his death sentence cannot stand because the record lacks a transcript of the prosecutor’s closing argument, portions of which provoked objection, making it impossible for a reviewing court to determine whether the argument was unfairly prejudicial to the petitioner.
For the reasons expressed below, we reverse. In so doing, however, we reach only the first issue because its disposition makes resolution of issues (2), (3), (4), and (5) unnecessary.
Petitioner was convicted of murder under Ga.Code Ann. § 26-1101(a), which provides:
A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
The statute defines murder to consist of the following elements: (1) unlawfully (2) causing the death of another human being (3) with malice aforethought. Holloway v. McElroy, 474 F.Supp. 1363, 1368 (M.D.Ga. 1979). Malice is defined as a “deliberate intention” unlawfully to kill another human being. Thus, because malice is an element of murder and deliberate intention to kill is an essential part of malice, intent to kill is an essential element of the crime of murder under Ga.Code Ann. § 26-1101(a). Under the due process clause of the fourteenth amendment, the state must prove the existence of every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The prosecution therefore had the burden to prove beyond a reasonable doubt that petitioner had the requisite intent to kill.
Petitioner contends that certain instructions given to the jury by the trial court had the effect of relieving the prosecution of this burden by creating a presumption of his intent to kill. The instructions at issue here are as follows:
I charge you that the law presumes that a person intends to accomplish the natural and probable consequences of his conduct, and where a person uses a deadly weapon in the manner in which such weapons are ordinarily employed to produce death, thereby causing the death of a human being the law presumes an intention to kill.
I further charge you that if you believe beyond a reasonable doubt that the defendant . . ., with the weapon named in the indictment, and with malice aforethought, either expressed or implied, did unlawfully kill the victim . . ., and you believe the weapon used in the manner used, if one was used, was one likely to produce death, then you would be authorized and it would be your duty to convict the defendant of the offense of murder.
The district court, relying primarily on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), found that these instructions “impermissibly shifted the burden of proof on the issue of intent to kill to the defendant or at least removed from the prosecution the full burden resting upon it under In re Winship.” 487 F.Supp. at 559. The district court went on to hold, however, that the erroneous charge was harmless beyond a reasonable doubt.
Petitioner, of course, agrees with the district court’s finding that the charge erroneously shifted the burden of proof to him on the issue of intent to kill, but argues that the district court incorrectly held the erroneous charge to be harmless error. Respondent, on the other hand, first contends that the instructions in question did not shift the burden of proof to the petitioner on the issue of intent. Alternatively, respondent takes the position that if the charge did shift the burden to petitioner, then the district court correctly concluded that the error was harmless beyond a reasonable doubt. Thus, our analysis of this issue is twofold: (1) Did the instructions in question shift the burden of proof to the petitioner on the issue of intent to kill in violation of the due process clause of the fourteenth amendment? (2) If so, can the erroneous charge be characterized as harmless error beyond a reasonable doubt?
This case is very similar to Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Sandstrom, the defendant was convicted under Montana law of “deliberate homicide,” which the statute defined as “purposely or knowingly” causing the death of another human being. The state conceded that “purpose” was equivalent to “intent,” and thus that proof of defendant’s intent to kill would suffice to establish the “purpose” element. Id. at 521 & n.11, 99 S.Ct. at 2458 & n.11. The trial court instructed the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” The Supreme Court held that this instruction was unconstitutional because it “had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind.” Id. at 521, 99 S.Ct. at 2458.
In Sandstrom, the state argued that the Montana Supreme Court had exclusive authority to determine the effect of the presumption. The state supreme court had held that the instruction placed only a burden of producing some evidence on the defendant, and that the presumption thus affected only the burden of going forward with the evidence rather than the burden of persuasion. The Supreme Court conceded that the state supreme court was the final authority on the effect of a presumption under state law, but declared that the state court was “not the final authority on the interpretation which a jury could have given the instruction.” 442 U.S. at 516-17, 99 S.Ct. at 2455. The Court then found that, although the instruction could be interpreted in the manner suggested by the state, it could also be interpreted in two more stringent ways, neither of which passed constitutional muster:
First, a reasonable jury could well have interpreted the presumption as “conclusive,” that is, not technically a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant’s voluntary actions (and their “ordinary” consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than “some” evidence — thus effectively shifting the burden of persuasion on the element of intent.
442 U.S. at 517, 99 S.Ct. at 2456. The Court held that either of these two interpretations would have “the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind . . . and that the instruction therefore represents constitutional error,” 442 U.S. at 521, 99 S.Ct. at 2458, notwithstanding the fact that the trial court had given other instructions that correctly stated the state’s burden of proof.
We agree with the district court’s conclusion that the instructions at issue in this case fall clearly within the proscription announced in Sandstrom. Petitioner was convicted of murder, an essential element of which is intent to kill. The trial court instructed the jury that “the law presumes that a person intends to accomplish the natural and probable consequences of his conduct” and that “where a person uses a deadly weapon . . . thereby causing the death of a human being the law presumes an intention to kill.” In asserting self-defense, petitioner was required to admit the facts that activated these presumptions. We believe that a reasonable jury could have interpreted the instructions in either of the impermissible ways described in Sandstrom. Therefore, we hold that the challenged instructions relieved the State of Georgia of its constitutional burden of proving every element of the crime of murder beyond a reasonable doubt. Accordingly, petitioner’s conviction and sentence must be set aside unless the erroneous charge was harmless beyond a reasonable doubt.
“[BJefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In determining whether such an error is harmless, the question is whether the error might have contributed to the conviction. Id. at 23, 87 S.Ct. at 827. It is conceivable that an error such as that involved here could be harmless beyond a reasonable doubt under certain circumstances. Indeed, the Supreme Court in Sandstrom expressly stated that the Montana Supreme. Court was free on remand to consider the harmless error issue. 442 U.S. at 526-27, 99 S.Ct. at 2461. Although a burden-shifting charge might be harmless given appropriate circumstances, however, this is not such a case.
Constitutional error might be held harmless beyond a reasonable doubt, for example, where the evidence of guilt is so overwhelming that the error could not have been a contributing factor in the jury’s decision to convict. See, e.g., Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The case under review, however, cannot be so characterized. Although it is clear that petitioner shot and killed the victim, he claimed that he acted in self-defense after he saw the victim reach into her bosom and bring out a pistol. The evidence was undisputed that at the time of the killing the victim had a handgun on her person. One eyewitness testified that he saw the victim reach under her sweater and pull out a pistol before petitioner began shooting. Another eyewitness, however, testified that the victim’s hands were down by her side when the shooting occurred. This evidence, far from being overwhelming in favor of guilt, was in fact very much in dispute, and we cannot say that the unconstitutional presumption was not a contributing factor in the jury’s decision to resolve the dispute against petitioner.
An unconstitutional, burden-shifting instruction might also be held harmless where it shifts the burden on an element that is not at issue in the trial. See, e.g., United States v. Reeves, 594 F.2d 536 (6th Cir.), cert. denied, 442 U.S. 946, 99 S.Ct. 2893, 61 L.Ed.2d 317 (1979). The district court, taking this approach, found that the challenged instructions were harmless beyond a reasonable doubt because, in its view, intent to kill per se was not at issue in petitioner’s trial. The district court stated that:
The petitioner’s only defense to the charges was self-defense. He thereby controverted only that the killing was unlawful and done with premeditation and deliberateness. The issue was not “intent to kill” per se but it was the lawfulness of the killing and of petitioner’s intentions with respect thereto. Since the charge of the trial judge clearly imposed on the prosecution the burden of proving unlawfulness, premeditation and deliberateness beyond a reasonable doubt and these were the only disputed issues in the case, this court finds that the erroneous charge was harmless beyond a reasonable doubt....
487 F.Supp. at 559. Apparently, the district court believed that by raising self-defense the defendant admitted having the intent to kill. This analysis is too broad. When claiming self-defense, one does not necessarily admit intent to kill, but rather admits that the killing occurred. As the petitioner points out in his brief, one can shoot to kill in self-defense, shoot to wound in self-defense, shoot to frighten in self-defense, or even shoot reactively in self-defense with no specific purpose. The mere raising of self-defense clearly does not establish that the defendant had the intent to kill. That intent to kill was an issue in petitioner’s trial is made evident by the district court’s statement that petitioner “controverted only that the killing was .. . done with premeditation and deliberateness.” We see no meaningful distinction between “premeditation and deliberateness” and specific intent. A critical issue in petitioner’s trial was whether he had the specific intent to kill, and the state had the burden of proving this intent beyond a reasonable doubt. We hold that the instructions which relieved the state of this burden might well have contributed to petitioner’s conviction and thus cannot be dismissed as harmless error. Therefore, the district court must be reversed.
In view of our disposition of the preceding issue, we need not reach the other issues raised here by petitioner. For the reasons expressed in this opinion, the judgment of the district court is REVERSED and this case is REMANDED to the district court for further proceedings not inconsistent with this opinion.
. The facts underlying Mason’s conviction are set forth in the opinion issued by the Georgia Supreme Court on Mason’s direct appeal. Mason v. State, 236 Ga. 46, 46-47, 222 S.E.2d 339, 340-41 cert. denied, 428 U.S. 910, 96 S.Ct. 3225, 49 L.Ed.2d 1219 (1976).
. Under Georgia’s capital sentencing procedure, all death sentences must be reviewed by the Georgia Supreme Court. Ga.Code Ann. § 27-2537.
. When petitioner’s conviction was reviewed on direct appeal in 1976, the Georgia Supreme Court held that the instructions in question were not erroneous. Mason v. State, 236 Ga. 46, 47-48, 222 S.E.2d 339, 341 (1976). That ruling was made, however, without the benefit of the United States Supreme Court’s reasoning in Sandstrom, which was not decided until 1979.
. 1947 Mont.Rev.Codes §§ 94-5-101, -102 (Crim.Code 1973).
. The potential for these interpretations of the presumption was not removed by the other instructions given at the trial. It is true that the jury was instructed generally that the accused was presumed innocent until proven guilty, and that the State had the burden of proving beyond a reasonable doubt, that the defendant caused the death of the deceased purposely or knowingly. . . .
But this is not rhetorically inconsistent with a conclusive or burden-shifting presumption. The jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied. For example, if the presumption were viewed as conclusive, the jury could have believed that although intent must be proven beyond a reasonable doubt, proof of the voluntary slaying and its ordinary consequences constituted proof of intent beyond a reasonable doubt. Cf. Mullaney v. Wilbur, 421 U.S. 684, 703 n. 31, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) (“These procedural devices require (in the case of a presumption) . . . the trier of fact to conclude that the prosecution has met its burden of proof with respect to the presumed . . . fact by having satisfactorily established other facts.”).
442 U.S. at 518-19 n.7, 99 S.Ct. at 2456 n.7.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
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sc_decisiondirection
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
LUCKENBACH STEAMSHIP CO., INC., v. UNITED STATES et al.
No. 848.
Decided June 27, 1960.
Mark P. Schlefer, John Cunningham and Israel Convisser for appellant.
Solicitor General Rankin, Acting Assistant Attorney General Bicks, Charles H. Weston, Robert W. Ginnane and H. Neil Garson, for the United States and the Interstate Commerce Commission, appellees; Jeremiah C. Waterman, Edward M. Reidy and Raymond A. Negus for other appellees.
Per Curiam.
The judgment of the United States District Court for the District of Delaware, so far as it relates to the suspension of rates phase of the dispute, is vacated and the case is remanded to the District Court with instructions to dismiss the cause as moot. United States v. Amarillo-Borger Express, 352 U. S. 1028; Atchison, T. & S. F. R. Co. v. Dixie Carriers, 355 U. S. 179. With respect to the antitrust phase of the dispute, the judgment of the District Court is affirmed.
Mr. Justice Black and Mr. Justice Douglas dissent on the holding of Georgia v. Pennsylvania R. Co., 324 U. S. 439.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_casesource
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027
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
HAMPTON, aka BYERS v. UNITED STATES
No. 74-5822.
Argued December 1, 1975
Decided April 27, 1976
Rehnquist, J., announced the Court’s judgment and delivered an opinion, in which Burger, C. J., and White, J., joined. Powell, J., filed an opinion concurring in the judgment, in which Blackmun, J., joined, post, p. 491. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 495. Stevens, J., took no part in the consideration or decision of the case.
David A. Lang, by appointment of the Court, 421 U. S. 945, argued the cause and filed a brief for petitioner pro hac vice.
Deputy Solicitor General Jones argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, and Jerome M. Feit.
Mr. Justice Kehnquist
announced the judgment of the Court in an opinion in which The Chief Justice and Mr. Justice White join.
This case presents the question of whether a defendant may be convicted for the sale of contraband which he procured from a Government informant or agent. The Court of Appeals for the Eighth Circuit held he could be, and we agree.
I
Petitioner was convicted of two counts of distributing heroin in violation of 21 U. S. C. §841 (a)(1) in the United States District Court for the Eastern District of Missouri and sentenced to concurrent terms of five years’ imprisonment (suspended). The case arose from two sales of heroin by petitioner to agents of the Federal Drug Enforcement Administration (DEA) in St. Louis on February 25 and 26, 1974. The sales were arranged by one Hutton, who was a pool-playing acquaintance of petitioner at the Pud bar in St. Louis and also a DEA informant.
According to the Government’s witnesses, in late February 1974, Hutton and petitioner were shooting pool at the Pud when petitioner, after observing “track” (needle) marks on Hutton's arms told Hutton that he needed money and knew where he could get some heroin. Hutton responded that he could find a buyer and petitioner suggested that he “get in touch with those people.” Hutton then called DEA Agent Terry Sawyer and arranged a sale for 10 p. m. on February 25.
At the appointed time, Hutton and petitioner went to a prearranged meetingplace and were met by Agent Sawyer and DEA Agent McDowell, posing as narcotics dealers. Petitioner produced a tinfoil packet from his cap and turned it over to the agents who tested it, pronounced it “okay,” and negotiated a price of $145 which was paid to petitioner. Before they parted, petitioner told Sawyer that he could obtain larger quantities of heroin and gave Sawyer a phone number where he could be reached.
The next day Sawyer called petitioner and arranged for another “buy” that afternoon. Petitioner got Hutton to go along and they met the agents again near where they had been the previous night.
They all entered the agents’ car, and petitioner again produced a tinfoil packet from his cap. The agents again field-tested it and pronounced it satisfactory. Petitioner then asked for $500 which Agent Sawyer said he would get from the trunk. Sawyer got out and opened the trunk which was a signal to other agents to move in and arrest petitioner, which they did.
Petitioner’s version of events was quite different. According to him, in response to his statement that he was short of cash, Hutton said that he had a friend who was a pharmacist who could produce a nonnarcotic counterfeit drug which would give the same reaction as heroin. Hutton proposed selling this drug to gullible acquaintances who would be led to believe they were buying heroin. Petitioner testified that they successfully duped one buyer with this fake drug and that the sales which led to the arrest were solicited by petitioner in an effort to profit further from this ploy.
Petitioner contended that he neither intended to sell, nor knew that he was dealing in heroin and that all of the drugs he sold were supplied by Hutton. His account was at least partially disbelieved by the jury which was instructed that in order to convict petitioner they had to find that the Government proved “that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.” Thus the guilty verdict necessarily implies that the jury rejected petitioner's claim that he did not know the substance was heroin, and petitioner himself admitted both soliciting and carrying out sales. The only relevance of his version of the facts, then, lies in his having requested an instruction embodying that version. He did not request a standard entrapment instruction but he did request the following:
“The defendant asserts that he was the victim of entrapment as to the crimes charged in the indictment.
“If you find that the defendant’s sales of narcotics were sales of narcotics supplied to him by an informer in the employ of or acting on behalf of the government, then you must acquit the defendant because the law as a matter of policy forbids his conviction in such a case.
“Furthermore, under this particular defense, you need not consider the predisposition of the defendant to commit the offense charged, because if the governmental involvement through its informer reached the point that I have just defined in your own minds, then the predisposition of the defendant would not matter.” Brief for Petitioner 9.
The trial court refused the instruction and petitioner was found guilty. He appealed to the United States Court of Appeals for the Eighth Circuit, claiming that if the jury had believed that the drug was supplied by Hutton he should have been acquitted. The Court of Appeals rejected this argument and affirmed the conviction, relying on our opinion in United States v. Russell, 411 U. S. 423 (1973). 507 F. 2d 832 (1974).
II
In Russell we held that the statutory defense of entrapment was not available where it was conceded that a Government agent supplied a necessary ingredient in the manufacture of an illicit drug. We reaffirmed the principle of Sorrells v. United States, 287 U. S. 435 (1932), and Sherman v. United States, 356 U. S. 369 (1958), that the entrapment defense “focus[es] on the intent or predisposition of the defendant to commit the crime,” Russell, supra, at 429, rather than upon the conduct of the Government’s agents. We ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established.
In holding that “[i]t is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play,” 411 U. S., at 436, we, of course, rejected the contrary view of the dissents in that case and the concurrences in Sorrells and Sherman. In view of these holdings, petitioner correctly recognizes that his case does not qualify as one involving “entrapment” at all. He instead relies on the language in Russell that “we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U. S. 165 (1952) . . . .” 411 U. S., at 431-432.
In urging that this case involves a violation of his due process rights, petitioner misapprehends the meaning of the quoted language in Russell, supra. Admittedly petitioner’s case is different from Russell’s but the difference is one of degree, not of kind. In Russell the ingredient supplied by the Government agent was a legal drug which the defendants demonstrably could have obtained from other sources besides the Government. Here the drug which the Government informant allegedly supplied to petitioner both was illegal and constituted the corpus delicti for the sale of which the petitioner was convicted. The Government obviously played a more significant role in enabling petitioner to sell contraband in this case than it did in Russell.
But in each case the Government agents were acting in concert with the defendant, and in each case either the jury found or the defendant conceded that he was predisposed to commit the crime for which he was convicted. The remedy of the criminal defendant with respect to the acts of Government agents, which, far from being resisted, are encouraged by him, lies solely in the defense of entrapment. But, as noted, petitioner's conceded predisposition rendered this defense unavailable to him.
To sustain petitioner’s contention here wo Id run directly contrary to our statement in Russell that the defense of entrapment is not intended “to give the federal judiciary a ‘chancellor’s foot’ veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations.” 411 U. S., at 435.
The limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the defendant. Here, as we have noted, the police, the Government informant, and the defendant acted in concert with one another. If the result of the governmental activity is to “implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission . . . ,” Sorrells, supra, at 442, the defendant is protected by the defense of entrapment. If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under' the applicable provisions of state or federal law. See O’Shea v. Littleton, 414 U. S. 488, 503 (1974); Imbler v. Pachtman, 424 U. S. 409, 428-429 (1976). But the police conduct here no more deprived defendant of any right secured to him by the United States Constitution than did the police conduct in Bussell deprive Russell of any rights.
Affirmed.
Mr. Justice Stevens took no part in the consideration or decision of this case.
Petitioner was placed on five years’ probation which, was to run concurrently with the remainder of a 28- to 30-year. state armed robbery sentence from which petitioner had escaped.
The testimony of Hutton is confused as to the dates. At one point he indicated that the initial conversation and the sale both occurred on February 25. At another point he testified that they occurred on two separate days.
On appeal, petitioner’s counsel, who was also his counsel at trial, conceded that petitioner was predisposed to commit this offense. 507 F. 2d 832, 836 n. 5 (CA8 1974).
The Court of Appeals treated the proffered instruction on its merits, rather than inquiring as to whether its refusal, in light of the other instructions given and of the jury’s verdict, may have been harmless error. We therefore do likewise.
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
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021. U.S. Court of Appeals, Second Circuit
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023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
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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
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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
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050. Georgia Middle U.S. District Court
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055. Idaho U.S. District Court
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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
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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_numresp
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
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: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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".
KLEIN’S OUTLET, Inc., et al. v. LIPTON.
No. 21684.
United States Court of Appeals Second Circuit.
Argued April 10, 1950.
Decided May 1, 1950.
William R. Klein, New York City, for appellants.
Arthur Morris, New York City, for appellee.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
PER CURIAM.
The controlling question is whether the appeal must be dismissed because taken too late. An involuntary petition in bankruptcy was dismissed on March 2, 1948 with reservation of jurisdiction to pass on the accounting of the receiver in bankruptcy, costs and allowances, and disposition of any funds remaining in the receiver’s hands. Acting under this reservation, the referee in bankruptcy made a report in July 1949. His report came before the district court for confirmation and, after argument and reargument, was confirmed, as modified, by an order entered September 22, 1949. On October 6th the appellants moved to “resettle” this order. In a memorandum dated November 4th the district judge characterized the motion as one seeking “in effect, a second reargument,” and stated: “No reason appears for further consideration of this matter by this Court. The order heretofore made will stand.” An order denying the motion was entered November 16, 1949. Notice of appeal was filed on December 22, 1949.
Verbally the notice of appeal is from’ the order of November 16, 1949. Treating it literally would bring up for review only the denial of a resettlement of the prior order. It is obvious that such denial was correct, since in no respect did that order fail to conform to the court’s decision. We shall treat the motion, as did the court below, as a motion for reargument. So considered, the appeal must be taken from the original order of September 22nd, not from the order denying the motion for reargument, since the refusal to entertain a motion for reargument, or denial of the motion, if entertained, is not the subject of appeal. Wayne United Gas Co. v. Owens Co., 300 U.S. 131, 137, 57 S.Ct. 382, 81 L.Ed. 557.
The time to appeal from a judgment, order or decree of the bankruptcy court is prescribed by section 25 of the Bankruptcy Act, and the maximum, time allowed is 40 days. 11 U.S.C.A. § 48. If +hr time began to run on September 22, 1949, the appeal taken on December 22 was obviously too late; if, however, the time did not begin to run until the motion for reargument was denied on November 16, the appeal’ was timely. Ever since Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251, it has been settled law that when a motion for reargument is seasonably presented, the time for appeal does not begin to run until the motion is disposed of, if the motion is “entertained” by the court. Denholm & McKay Co. v. Commissioner, 1 Cir., 132 F.2d 243, 247 and cases there cited. On the other hand, “A defeated party who applies for a rehearing and does not appeal from the judgment or decree within the time limited for so doing, takes the risk that he may lose his right of appeal, as the application for rehearing, if the court refuse to entertain it, does not extend the time for appeal.” Wayne United Gas Co. v. Owens Co., 300 U.S. 131, 137, 57 S.Ct. 382, 385, 81 L.Ed. 557. (Italics added). Were this not so, a dissatisfied litigant could indefinitely extend his time for appeal by the simple expedient of filing successive motions for rehearing. On the other hand, after he has moved for a rehearing he is in the embarrassing situation of not knowing whether the court will “entertain” his motion or refuse to “entertain” it. Entertainment of the motion apparently means that the court considers on the merits the grounds for rehearing asserted in the motion. Denholm & McKay Co. v. Commissioner, 1 Cir., 132 F.2d 243, 247. If the court “entertains” the motion, even though it is denied, the time for appeal is extended; if the court refuses to entertain it, the time for appeal is not extended. It is clear from Judge Holtzoff’s memorandum opinion that he did not “entertain” the motion. Consequently, under the rule announced by the Supreme Court in the Wayne Gas Co., case, supra, the 40 days allowed for appeal from the order of September 22 expired on November 1st. On that date the motion for reargument filed on October 6 was still under advisement by the court. The appellants could not know whether or not the court would “entertain” it. In such a case it would plainly be fair to relax the rule of the Wayne case to the extent of deducting from the time elapsing between the entry of a judgment and the taking of an appeal the period during which the court holds under advisement the motion for reargument. Whether such a relaxation would be permissible we need not now decide. Even if it were, it would not save the present appeal. The period during which the motion was under advisement, even if such period be deemed to have continued until entry of the order of November 16, was only 41 days. Deducting that period from the 91 days which elapsed between September 22 and the notice of appeal on December 22, would leave 50 days. Under either view the appeal was untimely. Accordingly it must be dismissed. The appellee’s motion is granted and the appellants’ motion denied.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
The MILLER-WOHL CO., INC., Plaintiff-Appellant, v. COMMISSIONER OF LABOR AND INDUSTRY, STATE OF MONTANA, and Tamara L. Buley, Defendants-Appellees. Equal Employment Opportunity Commission, California Dep’t of Fair Employment & Housing, Employment Law Center, and Equal Rights Advocates, Inc., Amici Curiae.
No. 81-3333.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 9, 1982.
Decided Aug. 27, 1982.
See also, 9th Cir., 694 F.2d 203.
Charles L. Fine, Phoenix, Ariz., for plaintiff-appellant.
Paul Van Tricht, Helena, Mont., argued, for Com’r of Labor.
Richard R. Buley, Missoula, Mont., argued, for T. L. Buley; Tipp, Hoven, Skjelset & Fizzell, Missoula, Mont., on brief.
Linda Krieger, San Francisco, Cal., for Dept, of Fair Employment.
Karen MacRae Smith, Washington, D.C., for E.E.O.C.
Before WRIGHT, KILKENNY, and CANBY, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
The Miller-Wohl Company fired Tamara Buley because she missed several days of work. Buley was pregnant. Her pregnancy-related illness caused her absences.
The company’s employment policy permits no sick leave nor leave of absence for any illness during the first year of employment. Regardless what illness or condition causes a new employee’s absence, he or she is discharged for missing work. The company claims it applies this policy consistently.
Two statutes are involved. The Montana Maternity Leave Act (MMLA) proscribes an employer’s termination of a woman’s employment or refusal to grant a reasonable leave of absence because she is pregnant. Mont.Code Ann. § 39-7-203(1), (2). And in Title VII, the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k) (Supp. II 1978), declares that pregnant women shall be treated the same as nonpregnant employees similar in their ability or inability to work.
Buley complained to the Montana Commissioner of Labor and Industry who concluded that the discharge violated the MMLA because Miller-Wohl fired her for pregnancy-related absences.
Miller-Wohl sued in district court for declaratory relief. It argues that the MMLA conflicts with the PDA because it requires an employer to treat pregnant employees preferentially. It asserts that Title VII preempts the application of the contrary state provision.
The company’s argument rests on the plain language of the Pregnancy Discrimination Act, which reads:
The terms “because of sex” or “on the basis of sex” include .. . pregnancy . . .; and' women affected by pregnancy . . . shall be treated the same for all employment-related purposes ... as other persons not [pregnant] but similar in their ability or inability to work ....
42 U.S.C. § 2000e(k) (Supp. II 1978).
The PDA expressly requires employers to treat pregnant women the same as similarly able nonpregnant persons. Women who are disabled because they are pregnant must be treated the same as women or men who are disabled for any other reason. Because the Montana Act requires Miller-Wohl to treat its pregnant employees differently, the company argues, it violates Title VII.
Not unexpectedly, the Commissioner and Buley, defendants in Miller-Wohl’s declaratory judgment action, and amici curiae, including the EEOC, argue that the MMLA does not fail under Title VII. They contend that, although the company’s policy is facially neutral, it violates Title VII because it exerts a disparate impact based on sex. E.g., Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). See also Abraham v. Graphic Arts International Union, 660 F.2d 811 (D.C.Cir.1981); 29 C.F.R. § 1604.10(c) (1981) (EEOC Guidelines). Because Title VII would require a leave policy to provide a reasonable period for pregnancy, the result achieved by the MMLA, they contend the two statutes do not conflict and both may apply.
The district court agreed and granted summary judgment against Miller-Wohl. It held that the company should provide a reasonable leave period for all first-year employees rather than permit no sick leave for pregnant employees. See 29 C.F.R. § 1604.10 (questions & answers 19, 29, 30) (1981).
However intriguing these arguments, we conclude this court lacks jurisdiction to decide the question. The federal claims contained in Miller-Wohl’s declaratory judgment complaint are defenses to the employee’s state claim. They fail to create the requisite federal question. See, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950); Guinasso v. Pacific First Federal Savings & Loan Association, 656 F.2d 1364, 1366 (9th Cir. 1981), cert. denied, - U.S. -, - - -, 102 S.Ct. 1716-17, 72 L.Ed.2d 138 (1982).
The Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, is procedural. It provides an additional remedy, but only in cases resting on some independent basis of federal jurisdiction. Alton Box Board Co. v. Esprit De Corp., 682 F.2d 1267 (9th Cir. 1982). Here, Miller-Wohl’s anticipation of a federal defense to a state claim is insufficient to state that independent basis.
Buley’s claim lies entirely within the Montana statute. That Miller-Wohl asserts a preemption defense, in the form of a declaratory judgment complaint, does not change its essential nature as a defense. See Gully v. First National Bank in Meridian, 299 U.S. 109, 112-18, 57 S.Ct. 96, 97-100, 81 L.Ed. 70 (1936) (jurisdictional basis must appear in complaint).
Federal law does not impose a remedy by displacing state law, see 42 U.S.C. § 2000e-7, nor does it define rights, duties, or relationships upon which the state claim depends. See Guinasso, 656 F.2d at 1367 & n.7; cf. Franchise Tax Board of California v. Construction Laborers Vacation Trust, 679 F.2d 1307, at 1308 n.1 (9th Cir. 1982) (federal question requirement satisfied in state’s action challenging a trust created under a federal statute and naming a fiduciary defined by and subject to duties contained in federal statutes).
All of Miller-Wohl’s defenses that are federal in nature may be raised in its defense in the state courts. Indeed, they all are asserted in the company’s petition for review of the Commissioner’s determination that it violated the MMLA. Every issue pleaded in its federal complaint, as well as several defenses based solely on state law, appear in that complaint.
We vacate the district court’s judgment, 515 F.Supp. 1264. It had no jurisdiction, Similarly, we dismiss this appeal because we have no jurisdiction to decide its merits.
. Miller-Wohl also invokes the equal protection clause. That claim, like its statutory claim, is directed toward an anticipated application of the MMLA.
If any constitutional rights are directly affected, but see Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974); General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), they are those of male employees, not of Miller-Wohl. The company asserts no federal claim of its own, constitutional or statutory, sufficient to confer jurisdiction under either 28 U.S.C. § 1343 or § 1331. See Maine v. Thiboutot, 448 U.S. 1, 8 n.6, 100 S.Ct. 2502, 2506 n.6, 65 L.Ed.2d 555 (1980).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_adminrev
|
O
|
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".
In re MIFFLIN CHEMICAL CORPORATION. SHERIDAN et al. v. ROTHENSIES, Collector of Internal Revenue.
No. 7692.
Circuit Court of Appeals, Third Circuit.
Decided Oct. 29, 1941.
Harry Shapiro and Morris M. Wexler, both of Philadelphia, Pa. (Wexler & Weisman, of Philadelphia, Pa., on the brief), for trustees.
John E. Shea, of Washington, D. C., and Gerald A. Gleeson, U. S. Atty., and J. Barton Rettew, Jr., Asst. U. S. Atty., both of Philadelphia, Pa. (Julian R. Eagle, of Philadelphia, Pa., Atty., Bureau of Internal Revenue, on the brief), for appellee.
Before CLARK, JONES, and GOODRICH, Circuit Judges.
GOODRICH, Circuit Judge.
This case presents an appeal’ from an order of the District Court allowing against the Mifflin Chemical Corporation, a debtor corporation under § 77B, 11 U.S.C.A. § 207, a tax claim in the principal amount of $187,-488 on denatured alcohol diverted to beverage purposes. The claim is for unpaid taxes on such alcohol sold between August 27 and December 30, 1935. The District Court had referred the matter to a special master who, after a series of meetings, filed a report in which a disallowance of the claim was recommended. The District Judge did not accept this recommendation. The principal arguments of the appellant and the facts relating to them will be dealt with individually.
I. Appellant complains that the lower court erred in allowing the claim for taxes without remanding the case to the master and without giving the trustees for the debtor corporation an opportunity to offer testimony in opposition to said claim. Cases involving disallowances of claims by referees are cited in support of this argument.-
There are two answers to the point. The first is that the function of the referee is not the same as that of the special master. The ordinary reference of a case to a referee makes him a court for that purpose. The master functions in an advisory capacity only. The reference in this case is under § 77B of the Bankruptcy Act, prior to the Chandler Act. The order of reference authorized the special master “to make * * * findings of fact and conclusions of law on the issues of insolvency, creditors’ claims, * * * and to report thereon to the Court.” The special master thus did not sit as a court; it was his function to hear and report his findings of fact and conclusions of law. Nor were his powers increased by the fact that apart from this reference he was a referee.
The argument is likewise inapplicable as a matter of fact, because the trustees were given an opportunity to be heard. But they did not choose to offer testimony. At the conclusion of the hearings the special master stated, and no objection was made, that it was not necessary to act on various motions by both counsel because no further testimony was to be offered by either side and therefore, the case was to be decided on the record already before him. Counsel for the trustees did say that he might want to offer evidence after action of the master on his motion to strike out certain testimony. But this too was never done despite the fact that in his ruling on that motion, the master again offered an opportunity to the debtor corporation to bring forth witnesses. Further, in response to an order obtained by the government, counsel for the trustees informed the special master that they would not offer any testimony. Nor was any request to do so made until after the case was decided by the District Court adversely to the debtor corporation. We think this mere statement of facts is sufficient to show that there was no denial of the right of the debtor corporation to offer testimony. It chose to refrain from doing so and therefore does not have a right now to obtain another opportunity because of an adverse decision.
II. Appellant makes the point that the imposition of the tax lacked basis in fact because of the absence of foundations and certainty with regard to the amount of alcohol which the government claimed was so diverted as to become subject to taxation. This subject, however, was considered at length and with care by the learned judge who had the testimony before him and who reviewed it in his opinion. Where he felt that the proof was not clear he reduced the amount which was claimed against the debtor and that reduction was considerable. The original assessment was for $254,746.80 which the trial judge reduced to $187,488. We cannot say that there was no substantial basis for his finding and the point is governed by the ordinary rule with regard to -the findings" of fact in the court below.
III. The remaining "arguments of the appellant are directed to the application of the taxing statutes and the regulations thereunder to the facts of this case. To their answer a brief resumé of the history of the present legislation is indicated. Originally, denatured alcohol was subject to the same tax as alcohol intended for beverage purposes. In 1873 for the first time Congress provided for an exemption from the tax where alcohol was used for specified scientific purposes. Then in 1894 a rebate of the tax on alcohol to be used for non-beverage purposes was ordered. In 1906 the Denatured Alcohol Act was passed. This authorized alcohol for industrial purposes to be withdrawn from bonded warehouses without payment of the usual tax. The same plan was incorporated in Title III of the National Prohibition Act, which also empowered the Commissioner of Internal Revenue to issue regulations concerning alcohol “to secure the revenue, to prevent diversion of the alcohol to illegal uses * * Pursuant to this authorization a regulation was promulgated to the effect that
“The sales of this product must be confined to persons legitimately engaged in a bona fide drug trade, * * *. Failure to comply with these requirements and to confine sales to such persons, or the making of sales to such persons in quantities in excess of their reasonable requirements will constitute bad faith on the part of the permittee and grounds for the revocation of his permit.”
The taxing act in effect at the time in question was Section 2 of the Liquor Taxing Act of 1934 which provided for a unit tax of $2. Coupled with this act, however, and also applicable, is the Act of August 27, 1935.
It is to be noted that the liability which is the basis of the claim in this case does not arise from any regulation, but from the statute itself. The Act of 1934 sets the unit tax. The 1935 statute provides for payment of the tax if denatured alcohol is withdrawn and distributed in violation of the statute or regulations. The regulations do not impose the tax; they simply provide for the manner in which the tax-free alcohol is to be distributed. Mifflin’s contention that alcohol improperly withdrawn is not subject to tax but only subjects a producer or seller to revocation of permit is without foundation.
We think that there is no force in the argument either that the amount of alcohol in excess of reasonable requirements cannot be ascertained at all or was not ascertained in this case. The tax sought to be imposed here is for alcohol which found its way into the channels of illicit trade. Illicit distribution is not within the ^reasonable requirements of anybody’s legitimate business.
The final question, however, is whether Mifflin is to be charged with responsibility of knowledge of facts concerning such distribution. It is assumed for the purpose of argument, though not decided, that it becomes liable for the tax only if responsibility for knowing of improper diversion may be attributed to it. The District Court pointed out and properly emphasized the very considerable growth in the company’s sales of this product during the period in question. This fact alone may not be conclusive but it certainly is one which should suggest an inquiry to the company’s management. And of course, under such circumstances the failure to investigate will not excuse one from the consequences of what an investigation, if made, would have disclosed.
The scheme for the illegal diversion of this alcohol was carried out by salesmen for Mifflin in New York and Philadelphia. There is no dispute that these men had full knowledge of the transactions. Mifflin argues, however, that such knowledge is not to be attributed to it because in carrying out the unlawful plans its agents were acting contrary to the company’s interests; therefore, their knowledge is not attributable to the employer. The evidence on this point is somewhat equivocal. But for the purpose of the discussion it may be assumed that the salesmen did not tell their superiors for fear of disapproval of the scheme. Added to that is another piece of evidence to the effect that one of them received a commission or gift from one of the bootleggers for help given.
Even then, we believe unquestionably that Mifflin is charged with responsibility for the knowledge of its employees. As Judge Holly puts the legal proposition: “It is elementary law that the knowledge of an agent or employee obtained within the sphere of his agency or employment will be imputed to the corporation.” The very job these salesmen were employed to do was to sell alcohol and selling alcohol they were, although in an improper way. Of course they were doing it to make money; the difference between doing it in a proper and an improper way was that doubtless they made more by the latter course. But: “The mere fact that the agent’s primary interests are not coincident with those of the principal does not prevent the latter from being affected by the knowledge of the agent if the agent is acting for the principal’s interests.” Restatement, Agency § 282, Comment b.
Counsel for Mifflin have cited authorities where courts have held that when an agent departs from his employment and acts adversely to his principal the latter is no longer responsible for facts known to the wrongdoing employee. But in these cases the agent was found either to be actively cheating or defrauding his principal or acting adversely as the other party to the same transaction in which he was serving as his'principal’s agent.
Zito v. United States, 7 Cir., 1933, 64 F.2d 772 is a case presenting facts not dissimilar in this respect to the case at bar. The knowledge of the agent in that case was sufficient to charge the company with criminal responsibility. In the instant case the question is not that of punishment or penalty, but simply that of the payment of a tax because the conditions on which non-liability was conditioned have not been complied with. One need not talk about actual knowledge by Mifflin or a presumption that the employer knows everything that the employee knows. It has been conceded that these employees were violating instructions and that they concealed from their superiors in the Mifflin organization the knowledge of their activities in promoting illegal diver-son of the alcohol. That does not, on principles of agency, ipso facto relieve the employer of liability. Responsibility of an employer for things his agent does is not imposed on the basis' of knowledge in fact, but under the general rule of respondeat superior. No reliance need be made on any fictional attributing of knowledge to Mifflin. The employers are responsible for the knowledge of the facts had by their agents in doing the very business for which they were employed. The learned trial judge correctly concluded that the tax was due and payable.
The order of the District Court is affirmed.
In re John H. Livingston Co., 2 Cir., 1905, 144 F. 971; In re Crandall, 9 Cir., 1913, 205 F. 689; In re Arthur E. Pratt Co., D.C.N.D.N.Y. 1918, 252 F. 917; In re Tenenbaum & Abramowitz, D.C.S.D.N.Y.1931, 56 F.2d 217.
In re Williams Supply Co., Inc., 2 Cir., 1935, 77 F.2d 909, certiorari denied, 1935, 296 U.S. 612, 56 S.Ct. 131, 80 L.Ed. 434. Of course his findings are subject to review by the bankruptcy court. § 2, sub. a(10) of the Chandler Act, 11 U. S.C.A. § 11.
Subdivision (c) (11) authorized the judge to “refer any matters to a special master, who may be one of the referees in bankruptcy, for consideration and report, * * 11 U. S.C.A. 207, sub. c (11).
“The chief distinction between reference to a special master and to a referee is in the greater power which the referee ordinarily wields. The orders of the referee are those of the court, whereas the reports of a special master, which are merely advisory, need confirmation by the judge before they are made effective.” 2 Collier on Bankruptcy, 14th Ed.1940, 416, 417. The rule is established that the findings of fact made by the special master are to be accepted “unless clearly erroneous”. General Bankruptcy Order 47, 11 U.S.C.A. following section 53, and Rule 53(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723(c). But it still lies in the discretion of the court to consider the master’s report and to act thereon. And: “Where * * * the district judge refuses to accept or sets aside the master’s findings, such findings are without controlling force in the circuit court of appeals.” 2 Collier on Bankruptcy, 14th Ed.1940, 967. See id. at 415, 1505 ; 3 Moore’s Federal Practice, 1938, 3145.
The foregoing is an answer also to appellant’s contention that it was error for the District Judge to set aside findings of fact of the special master. But it is not essential that we pass on the propriety of that procedure. Here the District Judge, because of a matter of law, disapproved certain findings of the master. He disagreed with the latter as to the importance of the fact that the debtor corporation might not have had actual knowledge of what its salesmen knew or did. Under such circumstances we need not pass upon the effect to be given to normal findings of fact in a master’s report. We need pass merely on the legal question.
“Frequently judges may refer to a referee as a special master certain issues in a proceeding that have not already been referred to a referee by a general reference, or certain issues upon which the referee cannot act as a referee. The referee then has only the powers and performs only the duties usually performed by special masters within the scope of the reference, and does not act as a referee.” 2 Collier on Bankruptcy, 14th Ed.1940, 418.
“At first sight, it might appear that the retaking of evidence, or the taking of new evidence, could, justly" wrong no one, for the making of more truth to appear would afford greater opportunity for just judgment. But affording chances for retaking testimony after judgment might not always, and probably would not often, tend to the elucidation of truth. Temptations would be furnished' which it is the policy of the law to avoid.” Witters v. Sowles, C.C.D.Vt.1887, 31 F. 5, 11.
See Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723(c). '
Act of February 21, 1873, C. 173, 17 Stat. 468. « •
Act of August 27, 1894, C. 349, § 61, 28 Stat. 509, 567.
34 Stat. 217, 26 U.S.C.A.Int.Rev. Code, §§ 3070, 3072, 3073.
41 Stat. 319, 27 U.S.C.A. § 71 et seq.
Art. 146 of Regulations 3, as amended by Treasury Decision 4541, approved April 17, 1935, Volume 33, Treasury Decisions, Internal Revenue, 90, 93.
48 Stat. 313, 26 U.S.C.A.Int.Rev. Code, § 2800(a) (1).
49 Stat. 873, 27 U.S.C.A. 153. Section 4 provides:
“Any person who shall produce, withdraw, sell, transport, or use denatured alcohol * * * in violation of laws or regulations now or hereafter in force pertaining thereto, and all such denatured alcohol * * * shall be subject to all provisions of law pertaining to alcohol tliat is not denatured, including those reqxrirmg the payment of tax thereon; and the person so producing, withdrawing, selling, transporting, or using the denatured alcohol * * * shall be required to pay such tax.”
The purpose of this act, stated by the Senate Committee on the bill, Senate Report No. 1330, dated August 15, 1985, was as follows:
“ * * * Denatured alcohol, denatured rum, and articles, if lawfully produced and used are tax free and not subject to many of the restrictions to which other distilled spirits are subject; but in order to prevent frauds upon the revenue it is essential that this tax-free alcohol * * * be subjected to the taxes and other provisions of law relating to alcohol that is not denatured if the Government requirements as to production, withdrawal, sale, transportation, or use are not observed.”
As against 32,000 gallons monthly in January and February of 1935, Mifflin withdrew 64,000 gallons of denatured alcohol per month from August to December of that year. Further the price per gross rose from $11.25 on September 12 to $13.00 on November 2.
See Morgenthau v. Mifflin Chemical Corp., 3 Cir., 1937, 93 F.2d 82, 86, 88.
See Judge Bard’s opinion in the lower court. In re Mifflin Chemical Corp., D.C.E.D.Pa.1940, 34 F.Supp. 164, 169, 173.
United States v. Van Schaack Bros. Chemical Works, Inc., D.C.N.D.Ill.1940, 33 F.Supp. 822, 833.
Schutz v. Jordan, 1891, 141 U.S. 213, 11 S.Ct. 906, 35 L.Ed. 705; Thomson-Houston Electric Co. v. Capitol Electric Co., 6 Cir., 1894, 65 F. 341; Bank of Overton v. Thompson, 8 Cir., 1902, 118 F. 798; Dixie Guano Co. v. Wessel, 4 Cir., 1924, 296 F. 433, 35 A.L.R. 322. In other eases cited it was found that the agent was not in the scope of his authority. American Surety Co. v. Pauly, 1898, 170 U.S. 133, 18 S.Ct. 552, 42 L.Ed. 977; Hart v. Bier, C.C.E.D.La.1896, 74 F. 592.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
WEIGHT WATCHERS OF PHILADELPHIA, INC., Plaintiff-Appellant, v. WEIGHT WATCHERS INTERNATIONAL, INC., Defendant-Appellee.
Docket 71-2158.
United States Court of Appeals, Second Circuit.
Argued Jan. 4, 1972.
Decided Jan. 20, 1972.
Hammond & Schreiber, New York City (Alexander Hammond and Dale A. Schreiber, New York City, of counsel), for plaintiff-appellant.
Kaye, Scholer, Fierman, Hays & Handler, New York City, for defendant-ap-pellee.
Before FRIENDLY, Chief Judge, and MOORE and OAKES, Circuit Judges.
FRIENDLY, Chief Judge:
Defendant moves to dismiss, for want of appellate jurisdiction, an appeal by plaintiff from an order permitting the defendant to communicate, on terms stipulated by the district judge, with potential members of a class on whose behalf plaintiff seeks to maintain a class action. This is the latest but, we are sure, not the last case in which we must determine to what extent orders long antedating the final disposition of such suits are appealable.
The complaint, in the District Court for the Eastern District of New York, alleged that defendant is engaged in the business of maintaining a system of franchises, some 95 in number, in various parts of the United States to promote its standardized weight-reduction and weight-control programs and to resell various goods in connection therewith. Plaintiff holds the franchise for Philadelphia, Pennsylvania. The complaint alleged that defendant has imposed on plaintiff and the other franchisees maximum and, indeed, uniform prices, thereby causing damages of at least $15,000,000 to the class. Plaintiff asserted that the suit was maintainable as a class action under F.R.Civ.P. 23(b) (1), (2) and (3). In accordance with local court rules, the action was assigned to Judge Bruchhausen, since he had previously been assigned a somewhat similar action, except for the lack of class allegations, wherein two other franchisees, Bergen Weight Watchers, Inc. and Weight Watchers of Hartford, Inc., sought large damages for alleged antitrust and other violations.
Shortly after the instant action was brought, Mr. Lippert, chairman of defendant’s board of directors, sent a letter to all franchisees. This announced^ that defendant would vigorously defend both actions, that it was seeking evidence helpful to that end, and that, in its view, “Widespread publicity that any Franchisees claim that they preferred to charge more money to a highly sensitive obese population would surely have a detrimental effect on the image of WEIGHT WATCHERS.” Later a similar letter was sent by defendant’s president, Mrs. Nidetsch. These precipitated a motion by plaintiff asking the court to exercise its regulatory powers under F.R.Civ.P. 23(d) so as to restrain defendant from communicating with any member or potential member of the class concerning the action without prior approval of the court or of plaintiff's counsel, to direct defendant to send a letter of retraction in a form proposed by plaintiff, and to require defendant to file a report of any communications that had been had with members of the class. In Judge Bruch-hausen's absence, this motion came on for hearing before Judge Costantino. The judge properly considered his duty to be to take only such action as he believed to be immediately required to preserve the status quo with a view to enabling Judge Bruchhausen to resume control upon his return. Taking note of the Suggested Local Rule No. 7 in the Manual for Complex and Multidistrict Litigation, and the Sample Pretrial Order 15, he directed that both plaintiff and defendant be restrained from further communications without the consent and approval of the court, in the form stated in Sample Pretrial Order 15. He reserved plaintiff’s other requests for decision by Judge Bruchhausen, save for directing the parties not to respond to any communications concerning the action except to acknowledge receipt and to make certain limited answers.
Upon Judge Bruchhausen’s return, defendant moved for a modification of Judge Costantino’s order. The court granted this. Its order provided that defendant might conduct discussions with franchisees concerning the subject matter of the action “in connection with contract negotiations requested in each instance by the franchisee” and incorporate any conclusion in any agreement resulting therefrom. This permission was subject to the conditions that counsel for the franchisee should be present at each negotiating session and review any new contract provision, that plaintiff's counsel should receive at least five days advance notice of the commencement of any such negotiations and of each negotiating session and be afforded full opportunity to express their views concerning the rights of the franchisees with respect to the subject-matter of the action, and that the last negotiating session with each franchisee prior to execution of a contract should be held at the offices of defendant’s counsel in New York City — a location convenient to plaintiff’s counsel. Plaintiff’s request for letters of retraction, which had been reserved by Judge Constantino, was denied. Plaintiff appealed from the order and moved for a stay. Upon defendant’s announcing that it intended to move promptly to dismiss the appeal for want of appellate juridiction, the stay was granted.
It is obvious that the order is not a “final decision” within 28 U.S.C. § 1291, in the ordinary sense of finally determining the rights of the plaintiff and the class it seeks to represent against the defendant. Indeed it makes no determination bearing upon these in the slightest degree. Plaintiff’s case for appealability under § 1291 thus rests on the assertion that the order falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949). We have often indicated that Cohen must be kept within narrow bounds, lest this exception swallow the salutary ‘‘final judgment” rule. See Bancroft Nav. Co. v. Chadade S.S. Co., 349 F.2d 527, 529-530 (2 Cir. 1965); Donlon Industries, Inc. v. Forte, 402 F. 2d 935, 937 (2 Cir. 1968); West v. Zur-horst, 425 F.2d 919 (2 Cir. 1970).
When we compare the order here sought to be appealed with others implicating Cohen, the inapplicability of that decision becomes clear. An order, like that of the district court in Cohen, which refused to apply a statute requiring an undertaking for costs by the plaintiff before the suit could be prosecuted, deprived the defendant of the very benefit the legislature arguably intended to confer. Per contra, an order requiring such an undertaking when the court allegedly had no power to do this, as in Fielding v. Allen, 181 F.2d 163 (2 Cir.), cert. denied, 340 U.S. 817, 71 S.Ct. 46, 95 L.Ed. 600 (1950), and Chabot v. Nat’l Securities & Research Corp., 290 F.2d 657 (2 Cir. 1961), might prevent a plaintiff from entering the courtroom door. The order here can have no such drastic consequences. Its maximum effect, and this is wholly speculative, would be to cause settlements by so many franchisees — a course long favored by the law, cf. Williams v. First Nat’l Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 54 L.Ed. 625 (1910) — as to eliminate the numerosity which F.R.Civ.P. 23(a) (1) makes a prerequisite to a class action, leaving plaintiff nonetheless free to prosecute its own individual' claim, as two other franchisees were already doing.
Another important factor bearing on the application of the Cohen doctrine, which we mentioned in Donlon, supra, 402 F.2d at 937, is whether a decision will settle a point once and for all, as it did in the Cohen case, or will open the way for a flood of appeals concerning the propriety of a district court’s ruling on the facts of a particular suit. This case is of the latter sort. Plaintiff’s attempt to escape this conclusion by asserting that once a plaintiff brings a suit on behalf of a class, the court may never permit communications between the defendant and other members, even when, as here, both desire this, is in conflict not only with Suggested Local Rule No. 7 and Sample Pretrial Order 15, but with elementary considerations of common sense — and possibly, although we need not decide this, with a command of higher authority as well. Indeed, we are unable to perceive any legal theory that would endow a plaintiff who has brought what would have been a “spurious” class action under former Rule 23 with a right to prevent negotiation of settlements between the defendant and other potential members of the class who are of a mind to do this; it is only the settlement of the class action itself without court approval that F.R. Civ.P. 23(e) prohibits. Cf. Webster Eisenlohr, Inc. v. Kalodner, 145 F.2d 316, 320 (3 Cir. 1944) (Goodrich, J.) cert. denied, 325 U.S. 867, 65 S.Ct. 1404, 89 L. Ed. 1986 (1944).
Defendant properly relies also on our decisions, last reviewed in Korn v. Franchard Corp., 443 F.2d 1301, 1304-1306 (2 Cir. 1971), that an order under F.R.Civ.P. 23(c) (1) refusing designation as a class action is not appealable unless it rings “the death knell” on the named plaintiff’s ability to prosecute his own claim, even though there may be members of the class whose claims would be too small to permit individual prosecution ; it argues that if an order refusing class designation in this case would not have been appealable, the less serious action here taken cannot be. The ad dam-num, here alleged for the class and the fact that two other franchisees have felt able to proceed on their own, negate the possibility that successful negotiations with enough franchisees to eliminate the required numerosity for a class action, all of which is entirely speculative, would deprive plaintiff of its day in court. See Milberg v. Western Pacific R.R., 443 F.2d 1301, 1306-1307 (2 Cir. 1971), decided along with Korn, holding the death knell doctrine inapplicable when the named plaintiff and her husband had claims of $8,500. Indeed, plaintiff makes no contention of practical inability to proceed on its own behalf; rather it would distinguish Mil-berg, Caceres v. Int’l Air Transport Ass’n, 422 F.2d 141 (2 Cir. 1970), and City of New York v. Int’l Pipe & Ceramics Corp., 410 F.2d 295 (2 Cir. 1969), on the ground that the propriety of an order refusing class action designation can be considered on an appeal from the final judgment, whereas there will never be another chance for appellate consideration of the order here sought to be appealed. But we have often held that mere inability to secure review of an interlocutory order on appeal from the final judgment does not warrant permitting immediate review of such orders. See Flegenheimer v. General Mills, Inc., 191 F.2d 237 (2 Cir. 1951); Bancroft Nav. Co. v. Chadade S.S. Co., supra, 349 F.2d at 529-530; Donlon Industries, Inc. v. Forte, supra; West v. Zurhorst, supra, cf. Cushing v. Laird, 107 U.S. 69, 76, 2 S.Ct. 196, 27 L.Ed.2d 391 (1883). Congress has determined in its wisdom, and we think it was indeed wise, that some orders merely regulating the process of litigation can better be left to the unreviewable discretion of the district court rather than become the subject of appeal, whether from the interlocutory order or of the final judgment.
A second string to plaintiff's bow is that Judge Bruchhausen’s order modified an injunction previously granted by Judge Costantino and thus is ap-pealable under 28 U.S.C. § 1292(a) (1). This argument collides not only with the many decisions “that the mere presence of words of restraint or direction in an order that is only a step in an action does not make § 1292(a) (1) applicable,” see cases cited in International Prods. Corp. v. Koons, 325 F.2d 403, 406 (2 Cir. 1963), but also with our explicit decision there “to continue to read § 1292(a) (1) as relating to injunctions which give or aid in giving some or all of the substantive relief sought by a complaint . . . and not as including restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the substantive issues in the action, while awaiting trial.” Such a principle is peculiarly applicable in this case where the “injunction” was granted on an interim basis and expressly contemplated subsequent modification by the judge to whom the action had been assigned.
Plaintiff responds with a claim that the International Products opinion was overruled sub silentio by its writer in Wolf v. Barkes, 348 F.2d 994, 995 (2 Cir.), cert. denied, 382 U.S. 941, 86 S.Ct. 395, 15 L.Ed.2d 351 (1965). There, with a mere reference to § 1292(a) (1), we took jurisdiction of an appeal from an order refusing to enjoin a corporation, which was a party to a stockholders’ derivative action, from settling with certain defendants without compliance with what was then F.R.Civ. P. 23(c), now 23(e). The argument, while showing commendable diligence, is unsound. Apart from the fact that, as examination of the briefs confirms, the issue of appellate jurisdiction was not raised, the Wolf case is fairly distinguishable. So far as the settling defendants were concerned, the settlements there would destroy the claim plaintiffs had asserted on behalf of the corporation, leaving only a considerably less attractive claim that in making the settlements the directors had again breached their duty. The requested injunction was thus directed at preserving the substance of plaintiffs’ complaint from destruction by the corporation. Here, even if defendant should succeed in settling with so many franchisees that the court will be forced to deny class action status, plaintiff’s complaint will remain untouched. As we have, in essence, already noted, plaintiff has no legally protected right to sue on behalf of other franchisees who prefer to settle; F.R. Civ.P. 23(e), requiring court approval of the dismissal or compromise of a class action, does not bar non-approved settlements with individual members which have no effect upon the rights of others. Cf. Webster Eisenlohr, Inc. v. Kalodner, supra.
Plaintiff concludes with the standard request that if we hold the order unappealable, we should treat the appeal as a motion for leave to file a petition for mandamus. We make the standard responses. We will so treat it, but will deny it, since the order was well within the wide range of discretion in the management of class actions necessarily accorded the district judge by F. R.Civ.P. 23(d). As said in Donlon Industries, Inc. v. Forte, supra, 402 F.2d at 937, “we do not — indeed may not — issue mandamus with respect to orders resting in the district court’s discretion, save in most extraordinary circumstances not remotely presented here.” See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Pfizer, Inc. v. Lord, 449 F.2d 119 (2 Cir. 1971).
The motion to dismiss the appeal is granted. Treating the appeal as a request for leave to file a petition for mandamus, we deny it. We vacate the stay.
. We do not here pass on the problem with respect to settlement that would exist when an action has been designated as a class action under F.R.Civ.P. 23(c) (1) and a member of the class has not requested exclusion under F.R.Civ.P. 23(c) (2).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_usc2sect
|
2115
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellee, v. Francis Michael EVANS et al., Defendants-Appellants.
Nos. 20650, 20690.
United States Court of Appeals, Eighth Circuit.
Sept. 1, 1971.
Paul H. Kinion, Cedar Rapids, Iowa, for defendant-appellant, Allen Knudtson.
C. Carleton Frederiei, Des Moines, Iowa, for defendant-appellant Francis Michael Evans.
Frank A. Comito, Des Moines, Iowa, for defendant-appellant Donald Lee Kness.
John B. Grier, Asst. U. S. Atty., Alien L. Donielson, U. S. Atty., Des Moines, Iowa, for plaintiff-appellee.
Before JOHNSEN and ROSS, Circuit Judges, and HARPER, District Judge.
HARPER, District Judge.
These appeals stem from judgments of conviction entered in the United States District Court for the Southern District of Iowa. Appellants were found guilty on two counts submitted to the jury, in one count for forcibly breaking into a building used in part as a post office with the intent to commit larceny in violation of 18 U.S.C.A. § 2115, and in one count for causing damage to government property in excess of $100.00 in violation of 18 U.S.C.A. § 1361.
The defendants-appellants filed motions to suppress the evidence. An evi-dentiary hearing was held on these motions, which were denied by the court. Thereafter, the defendants were convicted after a jury trial on both counts and each was sentenced to five years imprisonment on each count to run concurrently-
Appellants claim error in the admission of certain evidence taken by the police from a motor vehicle operated by defendant, Donald Lee Kness, prejudice by the joint trial, and insufficient evidence to convict defendants Knudtson and Evans.
The facts leading to the seizure of the vehicle and evidence are as follows: On the night of June 4, 1970, the Craw-fordsville, Iowa Post Office was burglarized. Three residents of Crawfordsville, Earl Lowe, Kenneth Stodgill and Richard Griffin, were in the vicinity of the post office at that time. Two of these citizens testified that they heard a pounding noise while at a house catty-corner to the burglarized building. From a distance of one-half block all three witnesses saw four men running down an alley adjacent to the post office. Thereafter, a man walked past them whom Griffin testified resembled defendant, Donald Lee Kness, and Stodgill testified looked like either defendant Kness or Knudtson. A few moments latter these citizens observed a light green 1968 Ford Fastback with one occupant drive up the same alley. Thereafter, they saw the same car parked a half block from the post office, where it remained some fifteen to twenty minutes before it pulled away. A short time later Stodgill, Lowe and Griffin found the door to the building housing the post office pried open and notified the local deputy sheriff.
A description of the car in question was broadcast over area police radio and intercepted by the police at Iowa City, Iowa, which is located on the highway between Crawfordsville and Cedar Rapids. The Iowa City authorities had earlier stopped a car matching the description and had issued a traffic violation summons to Donald Lee Kness of Cedar Rapids. The car containing four occupants then departed from Iowa City. Subsequent to the reception of the radio transmission from Crawfordsville, the Iowa City police notified authorities at Cedar Rapids as to the expected route and time of arrival in Cedar Rapids of the automobile in question.
The police in Cedar Rapids located the described vehicle and followed it to a parking lot adjacent to some taverns. Identification was procured from Donald Lee Kness and Gene Allen Knudtson, but not from defendant Evans. The three defendants, the only occupants of the car, then left the automobile and proceeded toward the taverns. The Cedar Rapids authorities kept the car under surveillance. Two hours later defendant Kness returned with Marjorie Mae Johnson, the owner of the car, and sought to regain its possession. At this time Kness was arrested for intoxication.
The three witnesses who had seen the vehicle near the Crawfordsville Post Office were taken to the car in Cedar Rapids. They positively identified the car as the two-door light green 1968 Ford Fastback which they had earlier seen. They also noted other identifying characteristics such as snow tires, which matched the only tread marks they had seen in the alley next to the Crawfords-ville Post Office, and a pulled rear bumper.
Elmo Carleton, the postal inspector, ordered the car removed to a public garage. Inspector Carleton testified that at this time he knew that defendants Kness and Knudtson had a very high reputation in the Cedar Rapids area for committing breaking and entering.
Early that morning following the burglary, Inspector Carleton sought from the Commissioner a search warrant on the basis of “a positive identification being made of the above described vehicle by three Crawfordsville, Iowa residents, namely Kennneth Stogell, Dick Griffin and Wayne Lowe, each stating that it is the same vehicle which they witnessed at the United States Post Office at Crawfordsville, Iowa, during the burglary of the said post office on the night of June 4, 1970.” The search warrant was issued, resulting in the location of a large quantity of items in the trunk of the vehicle which had been taken from the Crawfordsville Post Office.
Appellants contend that the car was seized prior to the identification of the vehicle by the Crawfordsville residents, and, therefore, without probable cause. The record indicates that there was no seizure of the vehicle prior to the identification by the Crawfordsville residents. The Officers who surveyed the vehicle from the time the appellants left it until its identification, testified that only one attempt was made to retrieve the automobile by Kness, who was arrested for intoxication and, therefore, incapable of driving the car. Marjorie Mae Johnson, who accompanied Kness, made no request to drive the automobile, and left in a cab. The car was impounded only after the Crawfordsville residents identified it, at which time probable cause to seize the car existed.
The court in Carroll v. United States, 267 U.S. 132, pages 155-156, 45 S.Ct. 280, page 286, 69 L.Ed. 543 (1925) sets forth the standard for determining the reasonableness of a seizure of a vehicle:
“The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband * * * which is being illegally transported.”
In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the court applied the Carroll test in approving a seizure of an automobile primarily on information similar to that known by the authorities here. The police in Chambers, supra, stopped a car on the basis of a description from two teenagers of an automobile seen circling the block in the vicinity of a robbery and speeding from a nearby parking lot. One of the occupants of that car was found to have on a green sweater, and a trench coat was also in the ear, which articles of clothing were said to have been worn by the robbers. The police seized the car, took it to the police station, and searched it. The court found that probable cause existed for the search and seizure.
On the facts before this court, Inspector Carleton knew when he ordered the seizure of the vehicle that the Post Office in Crawfordsville had been burglarized; that a car matching the description of the one in question had been seen being driven in an alley next to the Post Office and had been parked nearby; that the vehicle driven by the defendants had been stopped in Iowa City, a town on the highway between the scene of the burglary and Cedar Rapids, a short time after the burglary was discovered ; and that two of the defendants had a reputation for breaking and entering. Inspector Carleton was also present when the three residents of Crawfordsville identified the car on the basis of certain general and specific features. This meets the test of probable cause under Carroll.
Applying Chambers v. Maroney, supra, the authorities had probable cause not only to seize the automobile, but to search it after the identification by the Crawfordsville residents. However, the vehicle was not searched until the appellants had been given that extra privacy afforded by a warrant.
Appellants contend that the affidavit is insufficient on its face to support a finding of probable cause for the issuance of a valid search warrant. In Whiteley v. Warden, 401 U.S. 560, page 564, 91 S.Ct. 1031, page 1035, 28 L.Ed. 2d 306 (1971) the Supreme Court reiterated the standard for finding probable cause and stated:
“The decisions of this Court concerning Fourth Amendment probable cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.”
The affidavit here in question gives a detailed description of the car to be searched and the stolen property expected to be discovered. It also contains statements showing that the Post Office in Crawfordsville had been burglarized the night before. Three residents of Crawfordsville had personally seen the vehicle at the scene of the crime at the time of its commission. This information provides the nexus between the burglary in Crawfordsville and the car, which was a critical element absent in Whitely v. Warden, supra, note 8, at 565, 91 S.Ct. 1031.
The presence of these witnesses at the scene of the crime illustrates the reliable manner in which the witnesses obtained the information. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); McCreary v. Sigler, 406 F.2d 1264 (8th Cir. 1969). In addition, the three witnesses were actually named. The positive identification of the car related in the affidavit was an underlying fact adding reliability and credibility to the witnesses’ observations of the vehicle at the scene of the burglary. United States v. Harris, supra; Aguilar v. Texas, supra. The affidavit meets the requirements of probable cause set down by the Supreme Court.
Appellants Knudtson and Evans contend that they are entitled to a judgment of acquittal since reasonable doubt existed as a matter of law. We cannot agree. Proof beyond a reasonable doubt has long been the standard for determining guilt of a criminal charge. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895); Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
In United States v. Francisco, 410 F.2d 1283 (8th Cir. 1969), the court in determining whether the prosecution had met this burden, held, 1. c. 1285-1286:
“In a criminal case where there has been a conviction resulting from a jury verdict of guilty, the appellate court must accept as established all reasonable inferences that tend to support the action of the jury, and any conflicts in the evidence are resolved in favor of the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); La-tham v. United States, 407 F.2d 1, 2 (8th Cir. 1969); * * *. In determining the sufficiency of the evidence, we must view it most favorably to sustain a jury verdict. Teel v. United States, 407 F.2d 604 (8th Cir. 1969); Moodyes v. United States, 400 F.2d 360, 363 (8th Cir. 1968); Meyer v. United States, 396 F.2d 279, 283 (8th Cir. 1968).”
Applying the above standard to the evidence in this case, the jury could properly infer that the defendants Knudtson and Evans participated in the burglary of the Post Office in Craw-fordsville on June 4, 1970. Among the facts established by the government from which the jury could make such an inference were the following: That four people were seen running in an alley near the burglarized post office in Crawfordsville at approximately the time the burglary took place; that defendant Knudtson along with defendant Kness was identified as resembling the man seen in Crawfordsville by the three residents, as testified to by the witness Stodgill; that three other people were in the car at the time defendant Kness was issued a ticket in Iowa City, at about the time it would take the car to travel from Crawfordsville to Iowa City after the burglary; that the car was spotted in Cedar Rapids at approximately the time it would take the car to travel from Iowa City to Cedar Rapids, and when the car eventually stopped in Cedar Rapids, defendants Knudtson, Evans and Kness emerged therefrom; that the fruits of the crime were found in the trunk of the car in which Knudtson and Evans were riding, and nothing had been put in or removed from the trunk after the defendants left it; and that burglary tools, one of which an expert identified as positively having made marks found on the handle and combination of the post office safe, were found in the trunk.
The above facts provide ample evidence to support the connection of the defendants Evans and Knudtson to the burglary of the United States Post Office in Crawfordsville.
There is no merit to appellants’ contention that the defendants were prejudiced by the joint trial. Rules 8(b) and 13, Federal Rules Criminal Procedure, clearly permit the joinder of defendants.
In Golliher v. United States, 362 F.2d 594 (8th Cir. 1966), the court at page 603 said:
“Since the trial court is affirmatively empowered to order a joint trial, to be entitled to relief the appellants must affirmatively demonstrate that the joint trial has prejudiced their right to a fair trial. Fisher v. United States, 324 F.2d 775 (8 Cir. 1963).”
Appellants have not demonstrated that-any evidence introduced in the trial would have been inadmissible in separate trials of each of the defendants. There is no showing that these two appellants did not receive a fair trial. The lower court did not abuse its discretion in ordering the joint trial of the appellants.
Judgment affirmed.
. The crimes of which the defendants presently stand convicted were committed while all three were enjoying release on bond pending appeal from convictions for similar charges in the state courts.
. Rule 8(b) : “Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
Rule 13: “The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indict- . ment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.”
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_casetyp1_7-2
|
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 "economic activity and regulation".
BELLAVANCE v. FRANK MORROW CO., Inc.
No. 3914.
Circuit Court of Appeals, First Circuit
March 17, 1944.
Harold E. Cole, of Boston, Mass., for appellant.
Nathaniel Frucht, of Providence, R. I., for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
After our opinion in the above case was handed down on February 4, 1944, the plaintiff seasonably filed a petition for rehearing.. On February 24 we denied this petition. On March 3 the plaintiff filed a motion in which he asked us to reconsider our denial of his petition for rehearing for the reason that the decision of the Supreme Court in Goodyear Tire & Rubber Co. et al. v. Ray-O-Vac. Co., 64 S.Ct. 593, in practical effect overruled Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 91,. 62 S.Ct. 37, 86 L.Ed. 58, the case upon which we and the district court heavily relied in concluding that the claims of the plaintiff’s patents were invalid for lack of invention. He says that the Goodyear case reverses the past trend of the Supreme Court toward an ever stricter application of the standard of invention.
The argument is invalid because it fails to take into account the difference in the way the question of invention was presented to the Supreme Court by the two cases cited above.
In the Cuno case the Supreme Court granted certiorari to resolve a conflict between decisions of the Second and Seventh Circuit Courts of Appeals on the question of the validity of the claims in suit, and it therefore necessarily could not apply “the well-settled rule that the concurrent findings of the lower courts on questions of fact will be accepted by this court unless clear error is shown”, but instead had itself to give “consideration to the question as to which of the decisions upon this question of fact [the question of invention], in the light of the prior art, is based upon the sounder reasoning.” Thomson Spot Welder Co. v. Ford Motor Co., 265 U.S. 445, 447, 44 S.Ct. 533, 534, 68 L.Ed. 1098; Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 36, 50 S.Ct. 9, 74 L.Ed. 147.
In the Goodyear case, however, the Supreme Court did not grant certiorari to resolve conflicting decisions below, but granted the writ to review an affirmance by the Circuit Court of Appeals for the Seventh Circuit of a district court decree holding certain claims of a patent valid and infringed. In this situation a majority of the court decided that the case was not strong enough to justify setting aside the concurrent findings of the two courts, district and circuit court of appeals, to the effect that the claims in suit were valid in that they disclosed an exercise of the faculty of invention. What it did in the Goodyear case, therefore, does not indicate that it is receding from the strict application of the standard for invention established in the Cuno case, which was not mentioned in the Goodyear opinion. What the cases cited above indicate is that the question of invention is one of fact, and that the Supreme Court will treat it as such and reverse only for clear error when it grants certiorari in the absence of conflict below, but that when there is conflict below and the Supreme Court in consequence can apply the standard of invention either strictly or liberally, it will apply the standard strictly. The situation may be unfortunate in that it leads to the unequal application of the patent law—a relatively trifling contribution may eventually obtain the protection of a patent while a more important one may not, depending upon whether or not there is a conflict of view between circuits—but this is not a problem for us to cope with. The most that circuit courts of appeals and district courts can do is what we and the court below have done here, that is, apply to the best of our ability the standard as we think the Supreme Court would apply it if a conflict between circuits should arise and certiorari should for that reason be granted. As the law now stands this is the only way we and the district courts can aid in obtaining a uniform application of the patent law. In the Goodyear case there is a statement by three of the dissenting Justices, quoting Mahn v. Harwood, 112 U.S. 354, 358, 5 S.Ct. 174, 6 S.Ct. 451, 28 L.Ed. 665, decided in 1884, that the question of invention is not one of fact at all but one of law to be decided by the courts. This is not in accord with the categorical statement in the Thomson Spot Welder Company case, supra, decided in 1924, that: “The question whether an improvement requires mere mechanical skill or the exercise of the faculty of invention, is one of fact; and in an action at law for infringement is to be left to the determination of the jury.” See also Hazeltine Corp. v. General Motors Corp., 3 Cir., 131 F.2d 34, 37 and cases cited. But, as I attempted to point out, I now think inadequately, in Hanovia Chemical & Mfg. Co. v. David Buttrick Co., 1 Cir., 127 F.2d 888, 889, this statement of the minority is in accord with judicial behavior in a great many cases. However, since a majority of the court in the Goodyear case obviously treated the question of invention as one of fact, as we did in the case at bar, we see no reason here to do more than advert again to the confusion in the law with respect to the nature of the question of patentable invention.
The motion to reconsider the plaintiff’s ' petition for rehearing is denied.
See also Williams Mfg. Co. v. United Shoe Machinery Corp., 316 U.S. 364, 62 S.Ct. 1179, 86 L.Ed. 1537.
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_circuit
|
L
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
WASHINGTON LOAN & TRUST CO. v. COLBY et al. SAME v. WEHNER et al.
Nos. 7236, 7237.
United States Court of Appeals for the District of Columbia.
Decided Dec. 18, 1939.
Arthur Peter and Arthur C. Keefer, both of Washington, D. C., for appellant.
Arthur P. Drury and Marcus Borchardt, both of Washington, D. C., for appellees.
Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.
MILLER, Associate Justice.
Pursuant to the mandates of this court in the cases of Colby v. Riggs Nat. Bank and Wehner v. Riggs Nat. Bank, the lower court, on July 7, 1937, adjudged that Riggs National Bank was liable in the sum of $178,045.49 with interest; appointed trustees to receive that sum for the plaintiffs and interveners in the two cases above-named, and for “all other Shoreham Building noteholders in like situation with said plaintiffs and interveners entitled to share therein * * Thereafter both cases were referred to the auditor of the court to determine, among other things, the rights of all persons to participate in the fund. Appellant, Washington Loan and Trust Company, .trustee under the will of Clarence B. Rheem, petitioned-'for the allowance of a claim to participate in the fund, as the holder of 127- notes, aggregating the principal sum of $126,500. The auditor recommended that the. claim be.disallowed for the reason that appellant had accepted notes secured by a trust deed upon the Shoreham Hotel, in substitution for the Shoreham Office Building notes; had cancelled the latter and extinguished them; consequently that they could not be made the basis of a valid claim. The lower court entered its order overruling appellant’s exceptions to the auditor’s report and recommendations; and decreed that the report be confirmed. This appeal is from that order and decree.
It is well established in the District pf- Columbia that the findings of an auditor, concurred in by the court below, are presumptively correct and will not be disturbed on appeal unless it is clearly shown that there was obvious error in the application of the law therein, or a conclusion of fact unwarranted by the evidence.
.The question to be determined is whether appellant is a “Shoreham Building note-holder in like situation” with the plaintiffs and interveners in the Colby and Wehner cases entitled to share in the fund established in accordance with the decision in those cases. An examination of the fact shows that appellant is not in like situation. Appellant is, and for some time prior to January 7, 1931, had been, the trustee of the estate of Clarence B. Rheem, deceased. Eulalie Rheem Rowe, his widow, and Edmund D. Rheem, his son, are the sole beneficiaries under the trust; the former as life beneficiary and the latter as remainder-man. The trust res consisted in part of 127 notes, aggregating the principal sum of $126,500, secured by a deed of trust to Luther A. Swartzell and Edmund D. Rheem, upon the Shoreham Office Building in the City of Washington, D. C. Swartzell and Rheem were members of the firm of Swartzell, Rheem & Hensey Company, which firm, under the terms of the trust, had power to collect interest and principal on the notes and to discharge the trust, when full payment had been made. On January 7, 1931, appellant discovered that this deed of trust had been released, although payment of the notes which it held had not been made. Thereupon, Alfred H. Lawson, Vice President of appellant, telephoned to Edmund D. Rheem — who was not only one of the two beneficiaries of the Rheem trust, but also Executive Vice President of the Swartzell Company — and told him that if the trusts had been released and paid, “We have got to have the money for them.” To this Rheem replied “I have not the money, but I reinvested the proceeds of these notes in other notes.” and said he would send those other notes to Lawson. Thereafter, on January 12, 1931, one Brewer, an employee of the Swartzell Company, informed Lawson that Rheem was sick but that he, Brewer, had been instructed to deliver to Lawson the reinvestments of the notes that had been paid; and on January 13, 1931, Brewer delivered to Lawson notes of the Shoreham Hotel Corporation aggregating the sum of $215,000, of which $162,150 purported to be reinvestments of the proceeds of the Shoreham Office' Building notes. In fact, however, these notes, so delivered by Brew-er, were not reinvestments. Instead, they were in the custodial care of the Swartzell Company; they were wrongfully and fraudulently abstracted by that Company from envelopes in which they were enclosed; and the taking and delivery to appellant were without the consent or knowledge of the true owners. Up to this point, perhaps, except for the dual capacity of Edmund D. Rheem — as beneficiary and as the Executive Vice President of the Swartzell Company —appellant may have been in substantially “like situation” as the other noteholders. From this point on its situation varied materially, as will be seen from the following summary of evidence. Following the delivery of the notes to appellant by Brewer, Eulalie Rheem Rowe and Edmund D. Rheem, on January 15, 1931, sent to appellant a letter, which reads as follows:
“The Washington Loan and Trust Company
“Trustee of the Estate of Clarence B. Rheem
“Washington, D. C
“Gentlemen:
“You hold as trustee of the estate of Clarence B. Rheem, deceased, the following notes, the investment of the funds of said estate therein having been authorized by us and made at our request:
D. L. Stern $7000.00
Robert Allensworth 9000.00
Broadmoor Corporation 6800.00
H. P. Jones 5850.00
Wardman and Bones 126500.00
Hugh Woods 6000.00
Archie L. Straub 1000.00
Total $162,150.00
“We hereby direct you to accept as a substitution in full for the above notes, as an investment for said estate, viz., the notes of the Shoreham Hotel Corporation recently sent you at our request by Swartzell, Rheem and Hensey Company, aggregating the sum of $162,150.00, being part of a total loan of $1,650,000.00, secured on one of the new units of the Shoreham Hotel, nearing completion and located on the south side of Calvert Street, west of Connecticut Avenue, in Washington, D. C.
“We are fully acquainted with the terms of the deed of trust securing said loan on the Shoreham Hotel, including the provisions thereof, authorizing the trustees to release the same upon the payment of the debts of Swartzell, Rheem and Hensey. We have satisfied ourselves as to the security for these notes, and we relieve you of all responsibility for making this investment. [Italics supplied]
“Very truly yours,
“Eulalie Rheem Rowe “Edmund D. Rheem.”
Upon receipt of this letter of instruction, appellant accepted the notes of the Shoreham Hotel Corporation as a substitution in full for the Shoreham Office Building notes and as an investment for the estate of Clarence B. Rheem; and on January 16, 1931, cancelled and discharged the Shoreham Office Building notes; but kept them in its own office instead of returning them to the Swartzell Company. On January 26, 1931, the last-named company filed a voluntary petition in bankruptcy and was adjudged bankrupt. Thereafter, on or about March 30, 1931, appellant received from Eulalie Rheem Rowe and Edmund D. Rheem a letter, which reads as follows:
“The Washington Loan and Trust Co.
“Trustee Estate Clarence B. Rheem
“Washington, D. C.
“Gentlemen:
“On or about January 16th, 1931, we, as beneficiaries of the Estate of Clarence B. Rheem, approved your acceptance of certain notes of the Shoreham Hotel Corporation, aggregating $162,150.00, purporting to be secured by first trust on part of Lot 6 in Square 2138 which were sent to you on or about January 13, 1931, by the office of Swartzell, Rheem & Hensey Co. as an investment for said Estate of Clarence B. Rheem, deceased.
“Since the delivery to you of these notes certain complications have arisen and we would request that you return the notes to the Trustees of the Estate of the Swartzell, Rheem & Hensey Co., Bankrupt, in order that they may be distributed in accordance with the Court’s instructions.
“Yours very truly,
“ (s) Eulalie Rheem Rowe
“ (s) Edmund D. Rheem.”
And on April 13, 1931, appellant voluntarily surrendered the Shoreham Hotel Corporation notes to the trustees in bankruptcy.
• [4-6] It is well settled law that a sole beneficiary, or several or successive beneficiaries — all of whom consent and none of whom suffer from disability — may direct that the performance of the trust be arrested, modified, or even extinguished. The applicable rule has been well stated by the Supreme Court of Appeals of Virginia as follows: “Where the persons entitled to the whole beneficial interest are. in esse and sui juris, it is one of the first duties of a trustee to execute such conveyances of the legal estate as the cestuis que trustent shall direct.” It is equally well settled that the beneficiaries of a trust who suffer from no disability and who have full knowledge of the facts and of their legal rights, may direct the trustees in the investment of trust funds and if losses are sustained they cannot be heard to complain. There is even less reason for permitting a trustee, under the circumstances of the present case, to recoup losses, suffered as a result of the poor judgment or unlawful conduct of such beneficiaries, from funds set apart for the benefit of persons who were in no way responsible for such losses.
Appellant, in its brief, concedes that “If Edmund D. Rheem were attempting to assert herein a claim to participate pro rata with the other creditors * * * his conduct and actions would bar his right because ‘he who comes in equity must come with clean hands.’ ” It seeks to distinguish the other beneficiary, in this respect, but it is not necessary for us to determine-whether she was in pari delicto with Edmund D. Rheem. It is enough that she joined in the letter of instruction, which, as we have held, was sufficient — together with the acts of the trustee — to extinguish the debt arising from the Office Building notes.
Moreover, the facts of this case do not provide a proper basis upon which to ask the aid of equity to reestablish a trust res for the sole purpose of permitting appellant to receive compensation for its services as a trustee. When appellant discovered that the trust deed which secured the Office Building notes had been released without notice to it — one of the principal note-holders — it was put on inquiry as to the possibility of fraudulent action by the Swartzell Company. It demanded, as it should have done, that if the notes had been paid, “We have got to have the money for them.” It received the reply that the money had been reinvested. But it was the duty of appellant itself to make reinvestments for the Rheem trust; not the Swartzell Company, or Edmund D. Rheem. A trustee cannot properly employ an agent to select investments for the trust, much less permit a third person to deal with trust funds and select investments without its knowledge. If a trustee does entrust such funds to another for reinvestment and, through dishonesty or negligence of the other, the funds are lost, the trustee is personally liable. Under such circumstances it forfeits any right it may have to compensation. Thus, in the present case, whether appellant accepted the Hotel Corporation notes from the Swartzell Company, on the assumption that they represented reinvestments of trust funds already selected, or whether, on the other hand, it acted upon the instructions of the beneficiaries, and itself selected the Hotel Corporation notes in substitution for the Office Building notes, thus making itself privy with the beneficiaries, it is barred, in either event, from asking the aid of equity for the purpose of protecting its right to compensation.
Our conclusion, therefore, is that appellant does not come within the specification of our earlier decision as a “noteholder in like situation with other plaintiffs and interveners” and that it has failed to show any equitable reason for setting aside the decree of the lower court.
Affirmed.
67 App.D.C. 259, 92 F.2d 183, 114 A.L.R. 1065.
Hutchins v. Munn, 28 App.D.C. 271, 279, 280; Id., 209 U.S. 246, 250, 28 S.Ct. 504, 52 L.Ed. 776; Graves v. Construction. Engineers, Inc., 63 App.D.C. 150, 70 F.2d 754; Waggaman v. Earle, 25 App.D.C. 582, 587, 588; Richardson v. Van Auken, 5 App.D.C. 209, 213; Grafton v. Paine, 7 App.D.C. 255, 266; France v. Coleman, 29 App.D.C. 286, 293; Nash v. Milford, 33 App.D.C. 142, 149.
D.C.Code (1929) tit. 22, .§ 181, provides that a negotiable instrument is discharged by “the intentional cancellation thereof by the holder.” In District of Columbia v. Cornell, 130 U.S. 655, 658, 9 S.Ct. 694, 32 L.Ed. 1041, the Supreme Court held that “It is immaterial whether the cancellation is by destroying the instrument, or by writing or stamping words or lines in ink upon its face, provided the instrument, in the condition in which he puts it, unequivocally shows that it has been cancelled.” Although the Cornell case was decided under the law merchant, the principle there announced is applicable here. D.C.Code (1929) tit. 22, § 1, provides that “In any ease not provided for in this chapter the rules of the law merchant shall govern.” Sections 181, 182 and 185 speak of cancellation but at no place in the statute is there a definition of the term. Hence, resort must be had to the rules of the law merchant for proper application of the term and, therefore, the Cornell case becomes authority. It follows that marking a note “cancelled”, as was done in the instant case, is sufiicient to discharge the note.
See Helvering v. Helmholz, 296 U.S. 93, 97, 56 S.Ct. 68, 80 L.Ed. 76; Rowley v. American Trust Co., 144 Va. 375, 132 S.E. 347, 45 A.L.R. 738; Eakle v. Ingram, 142 Cal. 15, 75 P. 566, 100 Am. St.Rep. 99; Manders v. Mercantile Trust & Deposit Co., 147 Md. 448, 128 A. 145; Eastman v. First Nat. Bank, 87 N.H. 189, 177 A. 414; 3 Scott, Trusts (1939) § 337.1; Restatement, Trusts (1935) §§ 337, 342; Note, 45 A.L.R. 743.
Rowley v. American Trust Co., 144 Va. 375, 382, 132 S.E. 347, 349, 45 A.L.R. 738.
Cf. Shelton v. King, 229 U.S. 90, 33 S.Ct. 686, 57 L.Ed. 1086, and McDonald v. Fulton Trust Co., 71 App.D.C. 36, 107 F.2d 237. In these eases the courts refused to terminate the trusts upon the request of the beneficiaries. But there, in each case, the settlors had directed that enjoyment of the benefits of the trust res should be postponed. For an excellent treatment of the distinction between the two situations, see 3 Scott, Trusts (1939) § 337,3. See also, Restatement, Trusts (1935) § 337(2). Cf. id. § 342(2). But even in the latter situation, the Supreme Court has recognized that “if the trustees should disregard the time of payment, and pay over to each legatee his or her legacy when they are competent to give a valid discharge, there would be no one who could call them to account.” Shelton v. King, supra, 229 U.S. at page 94, 33 S.Ct. at page 687, 57 L.Ed. 1086.
See Zimmerman v. Fraley, 70 Md. 561, 570, 17 A. 560, 562; In re Perkins’ Trust Estate, 314 Pa. 49, 170 A. 255; Lawrence v. First Nat. Bank & Trust Co., 266 Mich. 199, 253 N.W. 267; Hunt v. Gontrum, 80 Md. 64, 30 A. 620; 2 Scott, Trusts (1939) §§ 179.4(5), 216, 218; Restatement, Trusts (1935) §§ 216-218.
See Eakle v. Ingram, 142 Cal. 15, 75 P. 566, 100 Am.St.Rep. 99; Slater v. Hurlbut, 146 Mass. 308, 15 N.E. 790. See also, Restatement, Trusts (1935) § 337, comment b.
Abrams v. United States Fidelity & Guaranty Co., 127 Wis. 579, 106 N.W. 1091, 5 L.R.A..N.S., 575, 115 Am.St. Rep. 1055; In re Shintaffer’s Estate, 134 Kan. 101, 4 P.2d 764; Boston v. Curley, 276 Mass. 549, 562, 177 N.E. 557, 562; In re Kirkman’s Estate, 143 Misc. 342, 256 N.Y.S. 495, 501, 502; 2 Scott, Trusts (1939) § 171.2; Restatement, Trusts (1935) § 171, comment h; see Forsyth v. Woods, 11 Wall.,U.S., 484, 487, 20 L.Ed. 207.
Abrams v. United States Fidelity & Guaranty Co., 127 Wis. 579, 106 N.W. 1091, 5 L.R.A.,N.S., 575, 115 Am.St. Rep. 1055; Bostock v. Floyer, L.R. 1 Eg.,Eng., *26; 2 Scott, Trusts (1939) § 171.2.
See Barney v. Saunders, 16 How.,U. S., 535, 542, 14 L.Ed. 1047; Ralston v. Easter, 43 App.D.C. 513, 521, 522: “It is well settled, however, that where trustees default or permit a trust estate to be wasted through their negligence, they may be held to forfeit any commissions or fees that have been paid them during their trusteeship.”; Lewis v. Ingram, 10 Cir., 57 F.2d 463, 465, certiorari denied, 287 U.S. 614; 2 Scott, Trusts (1939) § 243; Restatement, Trusts (1935) § 243; Note, 110 A.L.R. 566.
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_mootness
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that an issue was moot?" 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".
Dr. David C. FARSHY, Plaintiff-Appellant, v. Alan CAMPBELL, as Chairman of the United States Civil Service Commission, William F. Foege, as the Director of the Center for Disease Control, Patricia R. Harris, Secretary of Health and Human Resources, Defendants-Appellees.
No. 78-2972.
United States Court of Appeals, Fifth Circuit. Unit B
March 5, 1981.
David C. Farshy, pro se.
William L. Harper, U. S. Atty., Robert J. Castellani, 1st Asst. U. S. Atty., Carl H. Harper, Regional Atty., Myles E. Eastwood, J. Diane Everett, Asst. Regional Attys., Atlanta, Ga., for defendants-appellees.
Before GODBOLD, Chief Judge, TUT-TLE and HILL, Circuit Judges.
PER CURIAM:
Farshy was a research microbiologist at the Communicable Disease Center, an agency of the Department of Health, Education and Welfare. In the district court he sought review of agency determinations that (1) upheld the classification of his job description; (2) denied him a within-grade pay increase; (3) upheld his unsatisfactory performance rating; (4) upheld his dismissal from employment; (5) upheld CDC’s resolution of various grievances. Also he contended, under 28 U.S.C. § 1331, that he had been denied constitutional rights in CDC’s employment decisions. The district court granted summary judgment for the defendants. We affirm.
The record consists of approximately 15 volumes, more than 5,000 pages. The district judge required the defendants to file briefs relating the law to the facts and then entered a careful, precisely drawn opinion supporting the summary judgment. It will serve no purpose to restate here the myriad details and many facets of Farshy’s long simmering dispute with his employer, the government. Rather we approach his contentions in more generalized fashion.
In numerous respects Farshy contends that agency procedures have not been properly followed, in others that the agency acted in bad faith and without substantial evidence. With respect to some of his complaints Farshy has not demonstrated that he suffered any prejudice, which is a prerequisite to reversal. Surprise Brassiere Co. v. FTC, 406 F.2d 711, 714 (5th Cir. 1969); Pacific Molasses Co. v. FTC, 356 F.2d 386, 389-90 (5th Cir. 1966). In other matters, there is no showing that the agency employed inappropriate factors or was arbitrary or capricious in its conclusions.
On his claim that he was denied open and formal hearing on review of his performance rating, neither the statute then in effect, 5 U.S.C. § 4305(d), nor the Constitution requires the full spectrum of a judicial due process proceeding.
Farshy contends he was unlawfully dismissed. Nearly all of his arguments relate to evidentiary matters. We agree with the district court that substantial evidence on the record as a whole supports the agency’s action.
The claim that the agency violated Farshy’s First Amendment rights by refusing to publish his research papers is frivolous.
Farshy has raised one point that brought on considerable discussion at oral argument and caused the court to call for supplemental briefs. Under 5 U.S.C. § 4305(a) an employee can seek an impartial review of his performance rating within the agency, and he can appeal this informal review to a Board of Review. The agency assigned an employee to investigate or review Farshy’s unsatisfactory performance rating and to make a report and recommendation to the Office of Personnel and Training of the Office of the Secretary of HEW. The employee investigated the matter and recommended changing Farshy’s rating to satisfactory. The Director of OPT reviewed the material submitted and the recommendation and concluded that the unsatisfactory rating should be sustained; also he told Farshy of his right to an appeal to the Board of Review. Farshy contends that the report and recommendation by the employee constituted the in-agency review and that the Director of OPT could not decline to follow it. We agree with the defendants that the “one impartial review” within the agency could be bifurcated into a review and recommendation done by an employee and a final decision by the Director, this latter decision being the final agency action that triggers the right to an appeal to the Board of Review.
We have fully considered and reviewed Farshy’s contentions, recognizing that he appears pro se and has great difficulty in appreciating the complexities of the rules and procedures — regulations, statutory, and constitutional — that relate to his claims. We find no constitutional error and no basis on which to set aside agency action.
AFFIRMED.
. Such as the claim that his job description did not accurately describe his duties, causing him to have a lower GS rating than he should have had, and his claim that he was arbitrarily denied a within-grade salary increase.
Question: Did the court conclude that an issue was moot?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_lcdisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
BRAGDON v. ABBOTT et al.
No. 97-156.
Argued March 30, 1998
Decided June 25, 1998
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 655. Ginsburg, J., filed a concurring opinion, post, p. 656. Behnquist, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which Scalia and Thomas, JJ., joined, and in Part II of which O’Connor, J., joined, post, p. 657. O'Connor, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 664.
John W. McCarthy argued the cause for petitioner. With him on the briefs was Brent A. Singer.
Bennett H. Klein argued the cause for respondents. With him on the brief for respondent Abbott was Wendy E. Par-met. John E. Carnes filed a brief for respondent Maine Human Rights Commission.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Act ing Assistant Attorney General Lee, James A. Feldman, Jessica Dunsay Silver, and Thomas É. Chandler.
Ann Elizabeth Beesman filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the City of Los Angeles by James E Hahn and David I. Schulman; for the AIDS Action Council et al. by Chai R. Feldblum, Steven B. Shapiro, Matthew Coles, and Bobert A. Long, Jr.; for the American Medical Association by Carter G. Phillips, Mark E. Haddad, Jack B. Bierig, Michael L. He, and Leonard A. Nelson; for the Elizabeth Glaser Pediatric AIDS Foundation by Lynn E. Cunningham; for the Infectious Diseases Sodety of America et al. by Catherine A Hanssens, Heather C. Sawyer, Beatrice Dohm, Daniel Bruner, Elizabeth A Seaton, and Laura M. Flegel; and for Senator Harldn et al. by Arlene Mayerson.
Peter M. Sfikas filed a brief for the American Dental Assodation as amicus curiae.
Justice Kennedy
delivered the opinion of the Court.
We address in this ease the application of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327,42 U. S. C. § 12101 et seq., to persons infected with the human immunodeficiency virus (HIV). We granted certiorari to review, first, whether HIV infection is a disability under the ADA when the infection has not yet progressed to the so-called symptomatic phase; and, second, whether the Court of Appeals, in affirming a grant of summary judgment, cited sufficient material in the record to determine, as a matter of law, that respondent’s infection with HIV posed no direct threat to the health and safety of her treating dentist. 522 U. S. 991 (1997).
I
Respondent Sidney Abbott (hereinafter respondent) has been infected with HIV since 1986. When the incidents we recite occurred, her infection had not manifested its most serious symptoms. On September 16,1994, she went to the office of petitioner Randon Bragdon in Bangor, Maine, for a dental appointment. She disclosed her HIV infection on the patient registration form. Petitioner completed a dental examination, discovered a cavity, and informed respondent of his policy against filling cavities of HIV-infected patients. He offered to perform the work at a hospital with no added fee for his services, though respondent would be responsible for the cost of using the hospital’s facilities. Respondent declined.
Respondent sued petitioner under state law and § 302 of the ADA, 104 Stat. 355,42 U. S. C. § 12182, alleging discrimination on the basis of her disability. The state-law claims are not before us. Section 302 of the ADA provides:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who ... operates a place of public accommodation.” § 12182(a).
The term “public accommodation” is defined to include the “professional office of a health care provider.” § 12181(7)(F).
A later subsection qualifies the mandate not to discriminate. It provides:
“Nothing in this subehapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others.” § 12182(b)(3).
The United States and the Maine Human Rights Commission intervened as plaintiffs. After discovery, the parties filed cross-motions for summary judgment. The District Court ruled in favor of the plaintiffs, holding that respondent’s HIV infection satisfied the ADA’s definition of disability. 912 F. Supp. 580, 585-587 (Me. 1995). The court held further that petitioner raised no genuine issue of material fact as to whether respondent’s HIV infection would have posed a direct threat to the health or safety of others during the course of a dental treatment. Id., at 587-591. The court relied on affidavits submitted by Dr. Donald Wayne Marianos, Director of the Division of Oral Health of the Centers for Disease Control and Prevention (CDC). The Marianos affidavits asserted it is safe for dentists to treat patients infected with HIV in dental offices if the dentist follows the so-called universal precautions described in the Recommended Infection-Control Practices for Dentistry issued by CDC in 1993 (1993 CDC Dentistry Guidelines). 912 F. Supp., at 589.
The Court of Appeals affirmed. It held respondent’s HIV infection was a disability under the ADA, even though her infection had not yet progressed to the symptomatic stage. 107 F. 3d 934, 939-943 (CA1 1997). The Court of Appeals also agreed that treating the respondent in petitioner’s office would not have posed a direct threat to the health and safety of others. Id, at 943-948. Unlike the District Court, however, the Court of Appeals declined to rely on the Marianos affidavits. Id., at 946, n. 7. Instead the court relied on the 1993 CDC Dentistry Guidelines, as well as the Policy on AIDS, HIV Infection and the Practice of Dentistry, promulgated by the American Dental Association in 1991 (1991 American Dental Association Policy on HIV). 107 F. 3d, at 945-946.
n
We first review the ruling that respondent’s HIV infection constituted a disability under the ADA. The statute defines disability as:
“(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
“(B) a record of such an impairment; or
“(C) being regarded as having such an impairment.” §12102(2).
We hold respondent’s HIV infection was a disability under subsection (A) of the definitional section of the statute. In light of this conclusion, we need not consider the applicability of subsections (B) or (C).
Our consideration of subsection (A) of the definition proceeds in three steps. First, we consider whether respondent’s HIV infection was a physical impairment. Second, we identify the life activity upon which respondent relies (reproduction and childbearing) and determine whether it constitutes a major life activity under the ADA. Third, tying the two statutory phrases together, we ask whether the impairment substantially limited the major life activity. In construing the statute, we are informed by interpretations of parallel definitions in previous statutes and the views of various administrative agencies which have faced this interpretive question.
A
The ADA’s definition of disability is drawn almost verbatim from the definition of “handicapped individual” included in the Rehabilitation Act of 1973, 87 Stat. 361, as amended, 29 U. S. C. § 706(8)(B) (1988 ed.), and the definition of “handicap” contained in the Fair Housing Amendments Act of 1988, 102 Stat. 1619, 42 U. S. C. § 3602(h)(1) (1988 ed.). Congress’ repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations. See FDIC v. Philadelphia Gear Corp., 476 U. S. 426, 437-438 (1986); Commissioner v. Estate of Noel, 380 U. S. 678, 681-682 (1965); ICC v. Parker, 326 U. S. 60, 65 (1945). In this case, Congress did more than suggest this construction; it adopted a specific statutory provision in the ADA directing as follows:
“Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U. S. C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title.” 42 U.S. C. § 12201(a).
The directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.
1
The first step in the inquiry under subsection (A) requires us to determine whether respondent’s condition constituted a physical impairment. The Department of Health, Education and Welfare (HEW) issued the first regulations interpreting the Rehabilitation Act in 1977. The regulations are of particular significance because, at the time, HEW was the agency responsible for coordinating the implementation and enforcement of §504 of that statute. Consolidated Rail Corporation v. Darrone, 465 U. S. 624, 634 (1984) (citing Exec. Order No. 11914,3 CFR 117 (1976-1980 Comp.)). Section 504 prohibits discrimination against individuals with disabilities by recipients of federal financial assistance. 29 U. S. C. § 794. The HEW regulations, which appear without change in the current regulations issued by the Department of Health and Human Services, define “physical or mental impairment” to mean:
“(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculo-skeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or
“(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 45 CFR §84.3(j)(2)(i) (1997).
In issuing these regulations, HEW decided against including a list of disorders constituting physical or mental impairments, out of concern that any specific enumeration might not be comprehensive. 42 Fed. Reg. 22685 (1977), reprinted in 45 CFR pt. 84, App. A, p. 834 (1997). The commentary accompanying the regulations, however, contains a representative list of disorders and conditions constituting physical impairments, including “such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and ... drug addiction and alcoholism.” Ibid.
In 1980, the President transferred responsibility for the implementation and enforcement of §504 to the Attorney General. See, e. <?., Exec. Order No. 12250, 3 CFR 298 (1981). The regulations issued by the Justice Department, which remain in force to this day, adopted verbatim the HEW definition of physical impairment quoted above. 28 CFR § 41.31(b)(1) (1997). In addition, the representative list of diseases and conditions originally relegated to the commentary accompanying the HEW regulations were incorporated into the text of the regulations. Ibid.
HIV infection is not included in the list of specific disorders constituting physical impairments, in part because HIV was not identified as the cause of AIDS until 1983. See Barré-Sinoussi et al., Isolation of a T-Lymphotropie Retrovirus from a Patient at Risk for Acquired Immune Deficiency Syndrome (AIDS), 220 Science 868 (1983); Gallo et al., Frequent Detection and Isolation of Cytopathie Retroviruses (HTLV-III) from Patients with AIDS and at Risk for AIDS, 224 Science 500 (1984); Levy et al., Isolation of Lymphoeyto-pathic Retroviruses from San Francisco Patients with AIDS, 225 Science 840 (1984). HIV infection does fall well within the general definition set forth by the regulations, however.
The disease follows a predictable and, as of today, an unalterable course. Once a person is infected with HIV, the virus invades different cells in the blood and in body tissues. Certain white blood cells, known as helper T-lymphoeytes or CD4+ cells, are particularly vulnerable to HIV. The virus attaches to the CD4 receptor site of the target cell and fuses its membrane to the cell’s membrane. HIV is a retrovirus, which means it uses an enzyme to convert its own genetic material into a form indistinguishable from the genetic material of the target cell. The virus’ genetic material migrates to the cell’s nucleus and becomes integrated with the cell’s chromosomes. Once integrated, the virus can use the cell’s own genetic machinery to replicate itself. Additional copies of the virus are released into the body and infect other cells in turn. Young, The Replication Cycle of HIV-1, in The AIDS Knowledge Base, pp. 3.1-2 to 3.1-7 (P. Cohen, M. Sande, & P. Volberding eds., 2d ed. 1994) (hereinafter AIDS Knowledge Base); Polks & Hart, The Life Cycle of Human Immunodeficiency Virus Type 1, in AIDS: Etiology, Diagnosis, Treatment and Prevention 29-39 (V. DeVita et al. eds., 4th ed. 1997) (hereinafter AIDS: Etiology); Greene, Molecular Insights into HIV-1 Infection, in The Medical Management of AIDS 18-24 (M. Sande & P. Volberding eds., Sth ed. 1997) (hereinafter Medical Management of AIDS). Although the body does produce antibodies to combat HIV infection, the antibodies are not effective in eliminating the virus. Pantaleo et al., Immunopathogenesis of Human Immunodeficiency Virus Infection, in AIDS: Etiology 79; Gardner, HIV Vaccine Development, in AIDS Knowledge Base 3.6-5; Haynes, Immune Responses to Human Immunodeficiency Virus Infection, in AIDS: Etiology 91.
The virus eventually kills the infected host cell. CD4+ eells play a critical role in coordinating the body’s immune response system, and the decline in their number causes corresponding deterioration of the body’s ability to fight infections from many sources. Tracking the infected individual’s CD4+ cell count is one of the most accurate measures of the course of the disease. Greene, Medical Management of AIDS 19, 24. Osmond, Classification and Staging of HIV Disease, in AIDS Knowledge Base 1.1-8; Saag, Clinical Spectrum of Human Immunodeficiency Virus Diseases, in AIDS: Etiology 204.
The initial stage of HIV infection is known as acute or primary HIV infection. In a typical case, this stage lasts three months. The virus concentrates in the blood. The assault on the immune system is immediate. The victim suffers from a sudden and serious decline in the number of white blood cells. There is no latency period. Mononucleosis-like symptoms often emerge between six days and six weeks after infection, at times accompanied by fever, headache, enlargement of the lymph nodes (lymphadenopa-thy), muscle pain (myalgia), rash, lethargy, gastrointestinal disorders, and neurological disorders. Usually these symptoms abate within 14 to 21 days. HIV antibodies appear in the bloodstream within 3 weeks; circulating HIV can be detected within 10 weeks. Carr & Cooper, Primary HIV Infection, in Medical Management of AIDS 89-91; Cohen & Volberding, Clinical Spectrum of HIV Disease, in AIDS Knowledge Base 4.1-7; Crowe & McGrath, Acute HIV Infection, in AIDS Knowledge Base 4.2-1 to 4.2-4; Saag, AIDS: Etiology 204-205.
After the symptoms associated with the initial stage subside, the disease enters what is referred to sometimes as its asymptomatic phase. The term is a misnomer, in some respects, for clinical features persist throughout, including lymphadenopathy, dermatological disorders, oral lesions, and bacterial infections. Although it varies with each individual, in most instances this stage lasts from 7 to 11 years. The virus now tends to concentrate in the lymph nodes, though low levels of the virus continue to appear in the blood. Cohen & Volberding, AIDS Knowledge Base 4.1-4, 4.1-8; Saag, AIDS: Etiology 205-206; Staprans & Eeinberg, Natural History and Immunopathogenesis of HIV-1 Disease, in Medical Management of AIDS 29, 38. It was once thought the virus became inactive during this period, but it is now known that the relative lack of symptoms is attributable to the virus’ migration from the circulatory system into the lymph nodes. Cohen & Yolberding, AIDS Knowledge Base 4.1-4. The migration reduces the viral presence in other parts of the body, with a corresponding diminution in physical manifestations of the disease. The virus, however, thrives in the lymph nodes, which, as a vital point of the body’s immune response system, represents an ideal environment for the infection of other CD4+ cells. Staprans & Feinberg, Medical Management of AIDS S3-34. Studies have shown that viral production continues at a high rate. Cohen & Yolberding, AIDS Knowledge Base 4.1-4; Stap-rans & Feinberg, Medical Management of AIDS 38. CD4+ cells continue to decline an average of 5% to 10% (40 to 80 eells/mm3) per year throughout this phase. Saag, AIDS: Etiology 207.
A person is regarded as having AIDS when his or her CD4+ count drops below 200 cells/mm3 of blood or when CD4+ cells comprise less than 14% of his or her total lymphocytes. U. S. Dept, of Health and Human Services, Public Health Service, CDC, 1993 Revised Classification System for HIV Infection and Expanded Surveillance Case Definition for AIDS Among Adolescents and Adults, 41 Morbidity and Mortality Weekly Rep., No. RR-17 (Dec. 18, 1992); Osmond, AIDS Knowledge Base 1.1-2; Saag, AIDS: Etiology 207; Ward, Petersen, & Jaffe, Current Trends in the Epidemiology of HIV/AIDS, in Medical Management of AIDS 3. During this stage, the clinical conditions most often associated with HIV, such as pnemnocystis caminii pneumonia, Kaposi’s sarcoma, and non-Hodgkins lymphoma, tend to appear. In addition, the general systemic disorders present during all stages of the disease, such as fever, weight loss, fatigue, lesions, nausea, and diarrhea, tend to worsen. In most cases, once the patient’s CD4+ count drops below 10 cells/mm3, death soon follows. Cohen & Yolberding, AIDS Knowledge Base 4.1-9; Saag, AIDS: Etiology 207-209.
In light of the immediacy with which the virus begins to damage the infected person’s white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection. As noted earlier, infection with HIV causes immediate abnormalities in a person’s blood, and the infected person’s white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.
2
The statute is not operative, and the definition not satisfied, unless the impairment affects a major life activity. Respondent’s claim throughout this case has been that the HIV infection placed a substantial limitation on her ability to reproduce and to bear children. App. 14; 912 F. Supp., at 586; 107 F. 3d, at 939. Given the pervasive, and invariably fatal, course of the disease, its effect on major life activities of many sorts might have been relevant to our inquiry. Respondent and a number of amici make arguments about HIV’s profound impact on almost every phase of the infected person’s life. See Brief for Respondent Abbott 24-27; Brief for American Medical Association as Amicus Curiae 20; Brief for Infectious Diseases Society of America et al. as Amici Curiae 7-11. In light of these submissions, it may seem legalistic to circumscribe our discussion to the activity of reproduction. We have little doubt that had different parties brought the suit they would have maintained that an HIV infection imposes substantial limitations on other major life activities.
From the outset, however, the case has been treated as one in which reproduction was the major life activity limited by the impairment. It is our practice to decide cases on the grounds raised and considered in the Court of Appeals and included in the question on which we granted certiorari. See, e. g., Blessing v. Freestone, 520 U. S. 329, 340, n. 3 (1997) (citing this Court’s Rule 14.1(a)); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 760 (1995). We ask, then, whether reproduction is a major life activity.
We have little difficulty concluding that it is. As the Court of Appeals held, “[t]he plain meaning of the word 'major’ denotes comparative importance” and “suggests] that the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.” 107 F. 3d, at 939, 940. Reproduction falls well within the phrase "major life activity.” Reproduction and the sexual dynamics surrounding it are central to the life process itself.
While petitioner concedes the importance of reproduction, he claims that Congress intended the ADA only to cover those aspects of a person’s life which have a public, economic, or daily character. Brief for Petitioner 14, 28, 30, 31; see also id., at 36-37 (citing Krauel v. Iowa Methodist Medical Center, 95 F. 3d 674, 677 (CA8 1996)). The argument founders on the statutory language. Nothing in the definition suggests that activities without a public, economic, or daily dimension may somehow be regarded as so unimportant or insignificant as to fall outside the meaning of the word “major.” The breadth of the term confounds the attempt to limit its construction in this maimer.
As we have noted, the ADA must be construed to be consistent with regulations issued to implement the Rehabilitation Act. See 42 U. S. C. § 12201(a). Rather than enunciating a general principle for determining what is and is not a major life activity, the Rehabilitation Act regulations instead provide a representative list, defining the term to include "functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 45 CFR §84.3(j)(2)(ii) (1997); 28 CFR § 41.31(b)(2) (1997). As the use of the term "such as” confirms, the list is illustrative, not exhaustive.
These regulations are contrary to petitioner’s attempt to limit the meaning of the term “major” to public activities. The inclusion of activities such as caring for one’s self and performing manual tasks belies the suggestion that a task must have a public or economic character in order to be a major life activity for purposes of the ADA. On the contrary, the Rehabilitation Act regulations support the inclusion of reproduction as a major life activity, since reproduction could not be regarded as any less important than working and learning. Petitioner advances no credible basis for confining major life activities to those with a public, economic, or daily aspect. In the absence of any reason to reach a contrary conclusion, we agree with the Court of Appeals’ determination that reproduction is a major life activity for the purposes of the ADA.
3
The final element of the disability definition in subsection (A) is whether respondent’s physical impairment was a substantial limit on the major life activity she asserts. The Rehabilitation Act regulations provide no additional guidance. 45 CFR pt. 84, App. A, p. 334 (1997).
Our evaluation of the medical evidence leads us to conclude that respondent’s infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIY who tries to conceive a child imposes on the man a significant risk of becoming infected. The cumulative results of 13 studies collected in a 1994 textbook on AIDS indicates that 20% of male partners of women with HIV became HIV-positive themselves, with a majority of the studies finding a statistically significant risk of infection. Osmond & Padian, Sexual Transmission of HIV, in AIDS Knowledge Base 1.9-8, and tbl. 2; see also Haverkos & Battjes, Female-to-Male Transmission of HIV, 268 JAMA 1855, 1856, tbl. (1992) (cumulative results of 16 studies indicated 25% risk of female-to-male transmission). (Studies report a similar, if not more severe, risk of male-to-female transmission. See, e.g., Osmond & Padian, AIDS Knowledge Base 1.9-8, tbl. 1,1.9-6 to 1.9-7.)
Second, an infected woman risks infecting her child during gestation and childbirth, i. e., perinatal transmission. Petitioner concedes that women infected with HIV face about a 25% risk of transmitting the virus to their children. 107 F. 3d, at 942; 912 F. Supp., at 587, n. 6. Published reports available in 1994 confirm the accuracy of this statistic. Report of a Consensus Workshop, Maternal Factors Involved in Mother-to-Child Transmission of HIV-1, 5 J. Acquired Immune Deficiency Syndromes 1019, 1020 (1992) (collecting 13 studies placing risk between 14% and 40%, with most studies falling within the 25% to 30% range); Connor et al., Reduction of Maternal-Infant Transmission of Human Immunodeficiency Virus Type 1 with Zidovudine Treatment, 331 New England J. Med. 1173,1176 (1994) (placing risk at 25.5%); see also Staprans & Feinberg, Medical Management of AIDS 32 (studies report 13% to 45% risk of infection, with average of approximately 25%).
Petitioner points to evidence in the record suggesting that antiretroviral therapy can lower the risk of perinatal transmission to about 8%. App. 53; see also Connor, supra, at 1176 (8.3%); Sperling et al., Maternal Viral Load, Zidovudine Treatment, and the Risk of Transmission of Human Immunodeficiency Virus Type 1 from Mother to Infant, 335 New England J. Med. 1621,1622 (1996) (7.6%). The United States questions the relevance of the 8% figure, pointing to regulatory language requiring the substantiality of a limitation to be assessed without regard to available mitigating measures. Brief for United States as Amicus Curiae 18, n. 10 (citing 28 CFR pt. 36, App. B, p. 611 (1997); 29 CFR pt. 1630, App., p. 351 (1997)). We need not resolve this dispute in order to decide this case, however. It cannot he said as a matter of law that an 8% risk of transmitting a dread and fatal disease to one’s child does not represent a substantial limitation on reproduction.
The Act addresses substantial limitations on major life activities, not utter inabilities. Conception and childbirth are not impossible for an HIV victim but, without doubt, are dangerous to the public health. This meets the definition of a substantial limitation. The decision to reproduce carries economic and legal consequences as well. There are added costs for antiretroviral therapy, supplemental insurance, and long-term health care for the child who must be examined and, tragic to think, treated for the infection. The laws of some States, moreover, forbid persons infected with HIV to have sex with others, regardless of consent. Iowa Code §§139.1, 139.31 (1997); Md. Health Code Ann. §18-601.1(a) (1994); Mont. Code Ann. §§50-18-101, 50-18-112 (1997); Utah Code Ann. §26-6-3.5(3) (Supp. 1997); id., §26-6-5 (1995); Wash. Rev. Code § 9A.36.011(l)(b) (Supp. 1998); see also N. D. Cent. Code §12.1-20-17 (1997).
In the end, the disability definition does not turn on personal choice. When significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable. For the statistical and other reasons we have cited, of course, the limitations on reproduction may be insurmountable here. Testimony from the respondent that her HIV infection controlled her decision not to have a child is unchallenged. App. 14; 912 F. Supp., at 587; 107 F. 3d, at 942. In the context of reviewing summary judgment, we must take it to be true. Fed. Rule Civ. Proc. 56(e). We agree with the District Court and the Court of Appeals that no triable issue of fact impedes a ruling on the question of statutory coverage. Respondent’s HIV infection is a physical impairment which substantially limits a major life activity, as the ADA defines it. In view of our holding, we need not address the second question presented, i. e., whether HIV infection is a per se disability under the ADA.
B
Our holding is confirmed by a consistent course of agency interpretation before and after enactment of the ADA. Every agency to consider the issue under the Rehabilitation Act found statutory coverage for persons with asymptomatic HIV. Responsibility for ádministering the Rehabilitation Act was not delegated to a single agency, but we need not pause to inquire whether this causes us to withhold deference to agency interpretations under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). It is enough to observe that the well-reasoned views of the agencies implementing a statute “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U. S. 134, 139-140 (1944).
One comprehensive and significant administrative precedent is a 1988 opinion issued by the Office of Legal Counsel of the Department of Justice (OLC) concluding that the Rehabilitation Act “protects symptomatic and asymptomatic HIV-infected individuals against discrimination in any covered program.” Application of Section 504 of the Rehabilitation Act to HIV-Infected Individuals, 12 Op. Off. Legal Counsel 264, 264-265 (Sept. 27, 1988) (preliminary print) (footnote omitted). Relying on a letter from Surgeon General C. Everett Koop stating that, “from a purely scientific perspective, persons with HIV are elearly impaired” even during the asymptomatic phase, OLC determined asymptomatic HIV was a physical impairment under the Rehabilitation Act because it constituted a “physiological disorder or condition affecting the hemic and lymphatic systems.” Id., at 271 (internal quotation marks omitted). OLC determined further that asymptomatic HIV imposed a substantial limit on the major life activity of reproduction. The opinion said:
“Based on the medical knowledge available to us, we believe that it is reasonable to conclude that the life activity of procreation ... is substantially limited for an asymptomatic HIV-infected individual. In light of the significant risk that the AIDS virus may be transmitted to a baby during pregnancy, HIV-infected individuals cannot, whether they are male or female, engage in the act of procreation with the normal expectation of bringing forth a healthy child.” Id., at 273.
In addition, OLC indicated that “[t]he life activity of engaging in sexual relations is threatened and probably substantially limited by the contagiousness of the virus.” Id., at 274. Either consideration was sufficient to render asymptomatic HIV infection a handicap for purposes of the Rehabilitation Act. In the course of its opinion, OLC considered, and rejected, the contention that the limitation could be discounted as a voluntary response to the infection. The limitation, it reasoned, was the infection’s manifest physical effect. Id., at 274, and n. 13. Without exception, the other agencies to address the problem before enactment of the ADA reached the same result. Federal Contract Compliance Manual App. 6D, 8 FEP Manual 405:352 (Dec. 23,1988); In re Ritter, No. 03890089, 1989 WL 609697, *10 (EEOC, Dec. 8, 1989); see also Comptroller General’s
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_origin
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Vincent R. DUFFY, et al., Plaintiffs, Appellants, v. Brian J. SARAULT, etc., et al., Defendants, Appellees.
No. 89-1099.
United States Court of Appeals, First Circuit.
Heard Sept. 7, 1989.
Decided Dec. 19, 1989.
Thomas J. Liguori, Jr., with whom Urso, Liguori and Urso, Westerly, R.I., was on brief, for plaintiffs, appellants.
Thomas J. McAndrew, Providence, R.I., for defendants, appellees.
Before BOWNES, Circuit Judge, and ALDRICH and GIBSON, Senior Circuit Judges.
The Honorable Floyd R. Gibson, of the Eighth Circuit, sitting by designation.
FLOYD R. GIBSON, Senior Circuit Judge.
Appellants are two former classified employees of the City of Pawtucket, Rhode Island, whose positions were eliminated in a reorganization of city government in 1988. They argued at trial, and here on appeal, that the reorganization was a sham designed to oust them because of their political affiliation with the preceding may- or who was an adversary of the current Mayor of Pawtucket, an appellee. Appellants’ claims are based under 42 U.S.C. § 1983 and § 1985, the First Amendment, the due process clause of the Fourteenth Amendment, and Rhode Island state law. Their complaint named the current Mayor, certain members of his administration, and the Personnel Board of the City. After a bench trial, the district court entered judgment for the defendants on all counts. We now affirm.
BACKGROUND
The appellants, Vincent Duffy and Paul Breault, were political supporters of former Pawtucket Mayor Henry Kinch who served in that job from 1981 until 1987. Breault had been an advisor of Kinch’s since 1969 and worked as a strategist in Kinch’s mayoral campaigns. Kinch named Breault City Clerk in 1982, and Breault later became Director of the Department of Parks and Recreation, a classified post. Breault served there until his termination in June, 1988. Duffy was not politically active in recent years, but was formerly a campaign chair and treasurer for Mayor Kinch. At the time of his termination, Duffy was the Assistant Director of Public Works and had been for some two and one-half years.
The Director of Public Works, after January 1988, was Eugene Jeffers, an appointee of the current Mayor, appellee Brian Sarault. Jeffers was the appellants’ supervisor and delivered their notices of termination due to reorganization on June 14, 1988. Jeffers’ boss, Mayor Sarault, had been an alderman during the Kinch administration and was a vocal opponent of May- or Kinch. In 1985 Sarault unsuccessfully ran against Kinch in the Mayor’s race. During his next term Mayor Kinch announced he would not contend in the following election. Thus, the door was open for Sarault who ran for, and won, the May- or’s seat.
There is no question that the Kinch and Sarault camps were at odds with one another. The record does not reflect what precisely were the sore points. It suffices to say, as the district court did, that the relationship of the parties was marked by considerable acrimony. The question which remains is whether that led to the appellants’ unlawful termination under the Constitution or state law. The district court answered in the negative on all of the claims after hearing close evidence that supported both parties’ cases, but which ultimately, according to the district court, weighed greater for the defendants-appel-lees. Because our decision is based on a careful review of the evidence, we fully set out the facts, quoting at length from the district court’s opinion where pertinent.
FACTS
The positions held by Breault and Duffy and eliminated by reorganization were, respectively, Director of Parks and Recreation and Assistant Director of Public Works.
Prior to the reorganization, the Department of Parks and Recreation contained two subdivisions, one having to do with recreational activities and the other having to do with maintenance of the City’s parks and recreational facilities. There was a person in charge of each of these activities who reported to Mr. Breault. The reorganization eliminated the Director’s position, but split the department into two sections, headed by a Superintendent of Parks and a Superintendent of Recreation. The result was that the same work was divided among the two superintendents and, indeed, after the reorganization the same work was performed by the same persons. Mr. Breault applied for several vacant positions, including the Superintendent of Recreation, Superintendent of Parks, [Supervisor] of Public Works Operations, and Assessor. He received no interview with respect to the Superintendent of Recreation’s position; he had interviews with respect to the other positions but was not offered a slot. [Mr. Jeffers testified he chose a higher scoring candidate for the position of Superintendent of Parks], Mr. Breault, as a Director, was at pay grade 15 for which he received $37,100 per year. The Superintendent of Park’s position paid something more than $29,000 per year.
The requirements for the newly created position of Supervisor of Public Works Operations, which proximated the job responsibilities of Mr. Duffy’s position as Assistant Director of Public Works, included a ten year experience requirement. Because Mr. Duffy did not have ten years experience he was not eligible for that position.
Duffy, 702 F.Supp. at 389.
We elaborate on the controversy surrounding Duffy's job and his replacement. Duffy held a college degree in his job as assistant director, but, because the reorganized position of supervisor required only a high school diploma and ten years experience and because Mr. Duffy did not have the requisite ten years, he could not even apply for the job even though it paralleled his work as assistant director. In addition, appellants’ brief suggests, and testimony supports the conclusion, that an ally of Jeffers’ and Sarault’s, Louis Simon, moved into Duffy’s office and began to assume Duffy’s tasks prior to the reorganization. In the end, it was Simon who got the job of Supervisor of Public Works Operations, a title which he apparently was given prior to the reorganization.
The reorganization plan went through several stages. First, a Management Task Force studied the City’s operations [at the behest of Mayor Sarault who apparently did not at all follow their progress]. The committee was a volunteer effort of nine public spirited citizens, the majority of whom were selected by Mr. Baptista, the chairman of that advisory committee. His selections were made with assistance from the Blackstone Valley Chamber of Commerce. Mr. Baptista testified that the Task Force had five meetings before June 9, 1988, that the Department of Public Works [appellants’ department] was the subject of a lengthy discussion of one hour and a half on May 5, 1988, and that he met on May 5, 1988 with Mr. Jeffers, the Sarault administration’s Director of the Department of Public Works. He relied on Mr. Jeffers and other people on the Management Task Force who had more experience. The Task Force prepared a preliminary report which suggested that certain positions be abolished, including the Assistant Director of Public Works [Duffy’s job].
The reorganization was voted on June 13, 1988 by the Personnel Board of the City. There is no record of a consideration of reorganization by the Personnel Board from January 6, 1988 until the action taken on June 13, 1988. The Board is composed of five members, who are appointed by the Mayor with the approval of the City Council. Two members were appointed by Mayor Sarault, two by former Mayor Kinch, and one by former Mayor Lynch. The Personnel Board was unanimous in adopting the reorganization which became effective July 1, 1988.
After the reorganization’s adoption fourteen people were notified of their termination. However, of the fourteen, two persons retired and only four others are no longer City employees, including the three persons who were Plaintiffs in this case [The third plaintiff is not a party to this appeal. He dropped out after finding other work with the aid of Mayor Sarault] and a part-time nurse who worked in the community medical services unit. The reorganization resulted in a savings of $123,000.
Duffy, 702 F.Supp. at 389-90.
The record does not reveal how much of a savings was had with respect to the jobs of Breault and Duffy alone, but it appears to have been none. Nevertheless the overhaul in the Department of Public Works was otherwise substantial. The department had 189 employees and the reorganization plan recommended abolishing thirteen positions and establishing seven others. The Director of Public Works, Jef-fers, testified that the changes were long overdue and had nothing to do with the Kinch affiliations of Breault and Duffy.
The district court, however, did find that the political affiliations of the two “were substantial factors in the Defendants’ decision to reorganize the Department of Public Works.” Duffy, 702 F.Supp. at 391. We will come back to this finding in our discussion of the First Amendment infra.
Other relevant testimony credited by the district court was that of Robert Litchfield, who had dropped out of the case, and Councilman Doyle of Pawtucket.
Robert Litchfield, the former City Property Manager who had been a Plaintiff in this action, testified that Sarault’s Administrative Assistant expressed surprise at Litchfield’s surprise about the reorganization, stating “this happens to everybody in our business.”
Councilman Doyle, a Kinch supporter, testified that he was president of the City Council from 1981 to 1987 during the Kinch administration. He had a discussion with Mr. Jeffers on election evening at an establishment called “Hooligan’s” on Central Avenue in Pawtucket at which time Mr. Jeffers said something to the effect that things are going to be different “once we get rid of the Byners and the Breaults.” Byner was then City Solicitor.
Id. at 390.
Appellants argue that the evidence as a whole demonstrates that they were fired for political reasons and the district court erred by denying their claims. We consider each one of their claims.
FIRST AMENDMENT
Scope of Review
The gist of both parties’ briefs and the better part of this case concerns the First Amendment claims of Duffy and Breault. The claims are substantial and the evidence close. The district court found, in fact, that the political affiliations of Duffy and Breault were impermissibly considered in the decision to reorganize the City of Paw-tucket which eliminated their jobs. Nevertheless, the court went on to find that the two would have lost their jobs anyway, regardless of their political ties, and thus that no First Amendment violation occurred. Duffy, 702 F.Supp. at 391. The appellants contend error in this finding by the district court and urge us to reverse by substituting our judgment for that of the district court, by authority of Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). Appellees conversely suggest we are bound by the clearly erroneous standard in our review of the district court’s findings.
Because the evidence is close, the standard of review we employ will be disposi-tive of this claim. For this reason we have devoted considerable attention to the question with an extended discussion of our decision to use the clearly erroneous standard.
As the district court discussed in its opinion, the correct analysis of this political dismissal claim is provided in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). A plaintiff must show the speech he engaged in was constitutionally protected and a substantial factor in his termination in order to show a violation of the First Amendment. The defendant then has an opportunity to rebut and prove by a preponderance that the plaintiff would have been terminated regardless of his protected speech. Id. at 287, 97 S.Ct. at 576.
Whether by judge or jury, these latter determinations are findings of fact. They are difficult facts to find, too. As the district court noted: “[d]irect evidence of retaliatory firings is rare; facts in these cases must often be inferred from the evidence.” Duffy, 702 F.Supp. at 391. Such inferences are harder still to make, and not wisely made, by an appellate court. It would seem to go without saying that the standard of review would be whether such findings when made from the bench were clearly erroneous. Fed.R.Civ.P. 52(a).
However, the first Mt. Healthy finding (whether the speech was protected) implicates the First Amendment. The appellants put forth a well-made argument that the Supreme Court has declared that review of all First Amendment questions like this one must be plenary to adequately safeguard the inviolable rights we hold so dear under that Amendment. Appellants rely on Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) in which the Court stated:
in cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to “make an independent examination of the whole record” in order to make sure that “the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times v. Sullivan, 376 U.S. [254] at 284-86 [84 S.Ct. 710 at 728-29, 11 L.Ed.2d 686 (1964)]. [citations omitted]
Bose, 466 U.S. at 499, 104 S.Ct. at 1958.
Thus, the precise question we are attempting to answer is whether Bose requires a de novo review of a finding that a defendant has shown by a preponderance that termination (here reorganization) would have occurred regardless of the plaintiffs protected conduct under Mt. Healthy, or whether the more conventional, clearly erroneous standard applies. This question has not been precisely answered in this circuit. On point, there are five cases that mention Bose and deal with varying facets of this issue. Of those, two cases were not presented with this precise issue. In re The Bible Speaks, 869 F.2d 628, 630 (1st Cir.), cert. denied, — U.S. -, 110 S.Ct. 67, 107 L.Ed.2d 34 (1989); Collazo Rivera v. Torres Gaztambide, 812 F.2d 258, 259 (1st Cir.1987). The third and most recent case mentioning Bose is a defamation case and the issue of de novo review was not involved. Kassel v. Gannett Co., 875 F.2d 935, 937 (1st Cir.1989).
The other two cases do deal with aspects of our questions. Brasslett v. Cota, 761 F.2d 827 (1st Cir.1985), involved a fire chief who made certain statements in the local press for which he was fired. The district court concluded that the chiefs statements were not protected speech. This court reversed, finding the statements were protected speech on de novo review of the evidence. With respect to Bose, we said:
We believe that Bose clearly requires us to undertake an independent review of the district court’s ultimate finding that Brasslett’s statements to the press were unprotected under the First Amendment, [citations omitted] Like the determination of actual malice, the balancing test prescribed in Pickering [v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ] exemplifies an inextricable relationship between the evolution of constitutional law and the case-by-case application of specific facts to existing legal rules. We must therefore examine, under the appropriately heightened standard, the correctness of the trial judges’ findings of fact regarding the pertinent interests to be weighed — the nature of the plaintiffs speech and the impact of that speech on the defendants’ ability to perform their public responsibilities.
Id. at 840.
Brasslett acknowledges the principles of Bose “that an appellate court reviewing First Amendment cases is not bound by the clearly erroneous standard set forth in Fed. R.Civ.P. 52(a),” and referred to “the rule of independent appellate review historically applied in First Amendment cases.” Id. at 839. [citations omitted.]
The opinion goes on to review the evidence on the defendant’s preponderance burden under Mt. Healthy and finds that the defendants failed to meet that burden. Id. at 846-47. Because we were not reviewing a finding of the district court under the latter part of Mt. Healthy as we must in the instant case, Brasslett fails to yield an answer to our question.
Finally, in Figueroa v. Aponte-Roque, 864 F.2d 947 (1st Cir.1989), the plaintiffs claimed they were not renewed in their jobs with the Department of Education of Puer-to Rico because of their political affiliations. The plaintiffs lost after a jury trial and on appeal argued that Bose allowed a stricter review of the evidence. Without saying anything more, in a footnote we said:
We reject appellants’ suggestion that we review the facts in political discharge cases de novo, as in cases involving free speech. See Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 498-511, 104 S.Ct. 1949, 1958-64, 80 L.Ed.2d 502 (1984); Brasslett v. Cota, 761 F.2d 827, 839-40 (1st Cir.1985). We previously have adhered in political discharge cases to the traditional standard of review, and we see no reason to depart from that practice at this time.
Id. at 949 n. 3, [citation omitted].
While the facts of this case make it seem like Figueroa, a political discharge case, the posture of the case is more like Bras-slett, because it involves review of a district court’s Mt. Healthy determinations. Thus, Figueroa is not dispositive, and because of the similarities to Brasslett, we expound more at length upon why we answer our precise question with the clearly erroneous standard.
Again our launching point is Bose. In the language quoted from Bose, read as the appellants would like, the Court seems to suggest that appellate courts may review de novo all cases involving free expression. However, appellants fail to note one of the most salient features of the language: it was made in the context of a defamation case like New York Times v. Sullivan. On the same page the appellants quote, the Court in Bose explained:
Our standard of review must be faithful to both Rule 52(a) and the rule of independent review applied in New York Times Co. v. Sullivan. The conflict between the two rules is in some respects more apparent than real. The New York Times rule emphasizes the need for an appellate court to make an independent examination of the entire record; Rule 52(a) never forbids such an examination, and indeed our seminal decision on the Rule expressly contemplated a review of the entire record, stating that a “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., supra, [333 U.S. 364] at 395 [68 S.Ct. 525 at 541, 92 L.Ed. 746 (1948)] (emphasis supplied).
Bose, 466 U.S. at 499, 104 S.Ct. at 1959.
Further on this point, the Court made it clear that heightened independent appellate review applies to the determination of actual malice in defamation cases because of the particular constitutional values the New York Times rule protects. Id. at 501-02, 104 S.Ct. at 1959-60.
Later cites to Bose by the Court support this view. In a ease addressing the review of the voluntariness of a confession, the Court cited Bose for the proposition that de novo review is important to appellate courts as expositors of law “[w]here, for example, as with proof of actual malice in First Amendment libel cases, the relevant legal principle can be given meaning only through its application to the particular circumstances of a case....” Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985). In a case upholding the constitutionality of a Maine statute under the commerce clause, the Court, citing Bose, said “no broader review [of factual findings] is authorized here simply because this is a constitutional case, or because the factual findings at issue may determine the outcome of this case.” Maine v. Taylor, 477 U.S. 131, 145, 106 S.Ct. 2440, 2451, 91 L.Ed.2d 110 (1986) [citations omitted]. In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Court rejected an argument, similar to appellants’ here, that Bose was authority for de novo review of a finding of vote dilution. The Court pointed out that Bose involved determination of actual malice in a defamation case and did not apply in the instant case. Id. at 78, 106 S.Ct. at 2780. In Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), the Court cited Bose to support de novo review of determinations of what is protected speech, as a question of law. Id. at 386 n. 9, 107 S.Ct. at 2897 n. 9.
The Ninth Circuit has said that the Bose decision as well as the case law of that circuit required de novo review of the O’Brien factors in a case where a city ordinance regulated free speech. Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527, 535 (9th Cir.1984), rev’d, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). We note that in the reversal of that case before the Supreme Court, the Court expressly declined to review the Ninth Circuit’s reading of Bose as unnecessary to a decision in that case. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53 n. 3, 106 S.Ct. 925, 932 n. 3, 89 L.Ed.2d 29 (1986).
Brasslett applied de novo review to a fact situation other than actual malice, but it did so on the similar question of what is protected free speech. Brasslett, 761 F.2d at 840. Thus, Brasslett is not authority for the proposition that all findings of fact are subject to de novo review in a First Amendment case. The concern in Brasslett, as in Bose, is for those findings that “exemplify] an inextricable relationship between the evolution of [First Amendment] constitutional law and the case-by-case application of specific facts to existing legal rules.” Id. De novo review of such findings ensures that the federal courts remain zealous protectors of First Amendment rights.
Thus, findings on what is protected free speech (the first part of Mt. Healthy) are appropriately considered by de novo review. The findings on whether that speech substantially affected a defendant’s employment decision and whether the defendant has met his preponderance burden that the decision would be made anyway (the other two parts of Mt. Healthy), however, are not considered by de novo review, but are factual determinations subject to the clearly erroneous standard. See Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987). These latter findings do not directly touch First Amendment rights. Rather, they are findings about a defendant’s subjective employment decisions made from documentary and testimonial evidence, both of which are best judged by a trier of fact, particularly where credibility determinations will be made. Fed.R.Civ.P. 52(a); see Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). We hold that the standard of review of the finding on a defendant’s preponderance burden from Mt. Healthy is whether the finding was clearly erroneous under Rule 52(a).
Application of Rule 52(a)
Appellants “won” the first two parts of Mt. Healthy and appeal only the district court’s conclusion that the appellees proved by a preponderance that they would have reorganized despite the appellants’ affiliations with Kinch. We do not find that conclusion to be clearly erroneous. The district court was in a far better position to view the evidence at trial than we are from the flat record. Having reviewed the entire record we are not “left with a definite and firm conviction that a mistake has been committed.” See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). With that in mind, we address some of the evidentiary points raised by the appellants.
Appellants argue that the district court’s findings are contradictory and thereby clearly erroneous. The two findings disputed are that, on the one hand, political affiliation played an impermissible part in the decision to reorganize and that, on the other, the reorganization would have been made anyway. Appellants point to several things: 1) that no precise savings were shown to be had by eliminating their positions; 2) that Duffy was replaced even before the reorganization, and the job performed by his replacement was roughly equivalent to his old job of assistant director; 3) that the same work was performed in Breault’s division after reorganization with some title changes. All of this evidence suggests political affiliation was impermissibly considered in the decision to reorganize, and the district court made that finding. This evidence, however, does not necessarily bear on the question of whether appellees could show reorganization would have occurred anyway. That evidence is of a broader nature, taking the reorganization as a whole. The district court rightly considered the particular impact on appellants to determine if political affiliation played a substantial factor in their terminations and then considered the reorganization as a whole to determine if it would have proceeded anyway. The district court’s findings are not inconsistent.
The appellants go on to attack the evidence relied on by the district court on the question of whether the reorganization would have occurred anyway. For example, where the district court relied on the recommendation of the Baptista Task Force, the appellants argue that the district court ignored Baptista’s alliance with May- or Sarault. It is unlikely that the district court ignored anything;, it had all the evidence before it. But, because evidence is presented by opposite views, the court must credit certain evidence over other evidence. The district court credited Mr. Bap-tista’s testimony, despite evidence of his political affiliation with Sarault. In essence, that is a credibility decision that we cannot say was clearly erroneous.
Much of the appellants’ argument is with the district court’s view of the evidence, like the argument above about Baptista. That is, they quarrel with the court’s decision to credit certain testimony and other evidence. The appellants, of course, would reach a different result. That, however, is not a sign that the district court erred.
Along a similar line, the appellants suggest that the district court abandoned its own expressed views in reaching its findings. For example, appellants complain that the district court could in one breath note that the end result of the reorganization suspiciously left only Duffy and Breault without jobs, yet, in the next, find that the reorganization would have occurred anyway. This, again, is largely a dispute with how the court credited certain evidence.
Examined in isolation, any one of the points the appellants argue makes a good case of political discrimination that denies a finding that the reorganization would have gone forward. But evidence is never isolated. It must be considered vis-a-vis other, oftentimes, contradictory evidence. In the end the evidence must be summed up to reach a finding of fact, crediting some parts of it over others. This is what the district court did, only to the dissatisfaction of Duffy and Breault.
We note that even if we were sitting as triers of fact who would have viewed the evidence differently from the district court (or even as the appellants urge, in some instances), that would not make the district court’s decision clearly erroneous. See Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511. Under that standard, although the evidence is close, we find the district court’s view of the evidence plausible from our review of the entire record.
DUE PROCESS
Appellants argue that they were denied procedural due process when their jobs were eliminated by reorganization and that the district court erred by concluding otherwise. The district court first determined that the plaintiffs had a property interest in their jobs as classified employees of Pawtucket. The court recognized, however, that that interest was not in perpetuity and did not exist after the jobs were eliminated. This has been called the “reorganization exception” to due process hearings. See Misek v. City of Chicago, 783 F.2d 98, 100-01 (7th Cir.1986). Where a reorganization or other cost-cutting measure results in dismissal of an employee no hearing is due. See Hartman v. City of Providence, 636 F.Supp. 1395, 1410 (D.R.I.1986) (collecting cases).
The appellants do not deny this rule, but instead argue that the district court misapplied it, by failing to determine if the reorganization was pretextual. They quote at length from Ryman v. Reichert, 604 F.Supp. 467 (S.D.Ohio 1985), to suggest that the district court failed to properly determine if the reorganization was pretextual. Without reaching an opinion on the standard from Ryman, we find that because the district court determined that the reorganization was valid for purposes of Mt. Healthy, another finding on that point under due process was unnecessary. The district court found, and we have affirmed, that the appellees proved that they would have reorganized despite the political affiliations of appellants.
In short, that was a finding that the reorganization was not pretextual. Either the reorganization was a sham or it was not. The district court found it was not, and did not repeat itself under its due process analysis, but properly went straight to a consideration of what was left after a valid reorganization. We find that because the appellants’ jobs were lost subject to a valid reorganization they were not entitled to due process prior to that reorganization taking effect.
STATE CLAIMS
The district court properly exercised its pendent jurisdiction and resolved two state law claims based on the same facts of reorganization as considered under the constitutional claims. The district court’s conclusions on state law are due considerable deference on appeal. Gary Braswell & Assocs. v. Piedmont Indus., 773 F.2d 987, 989 n. 3 (8th Cir.1985). “[W]e are reluctant to interfere with a reasonable construction of state law made by a district judge, sitting in the state, who is familiar with that state’s law and practices.” Rose v. Nashua Bd. of Educ., 679 F.2d 279, 281 (1st Cir.1982) (citations omitted). We believe the district court’s decision not to grant relief under the Rhode Island Open Meetings Law, R.I.Gen.Laws § 42-46-8 (1987 reenactment), was reasonable for the considerations given in its opinion. Duffy, 702 F.Supp. at 394 (giving reasons).
As to the City Charter provisions, we agree with the district court that a plain reading of sections 7-104(19) and 7-101 do not admit of any violations where positions have been abolished or eliminated due to a valid reorganization. Id. at 393.
Finally, there are Rule XVI, Section 1 and Rule III, Section 7 of the City of Pawtucket Personnel Rules and Regulations. Rule XVI, Section 1 prohibits discrimination for political affiliation “in any way” against classified employees. The district court declined to answer the question of whether the appellants were discriminated against “in any way” under that section. The court found, instead, that under Rule III, Section 7, the appellants had failed to exhaust their administrative remedies. Duffy, 702 F.Supp. at 392 n. 3.
The appellants complain that Rule III, Section 7 does not require any administrative appeal, and thus the district court erred. In pertinent part, Section 7 reads, “[a]ny officer, employee, or citizen, who feels himself aggrieved ... may appear before the Board....” City of Pawtucket, Personnel Rules and Regulations, Rule III, Section 7 (emphasis added).
As the appellants suggest, the use of the word “may” does not require an appeal to the personnel board. But it does grant one as a matter of right. There is some authority in Rhode Island for the proposition that administrative remedies must be pursued prior to the invocation of a judicial forum. See Chase v. Mousseau, 448 A.2d 1221, 1224 (R.I.1982). But see Lefebvre v. Kando, 119 R.I. 780, 383 A.2d 589 (1978) (a Pawtucket case allowing resort to state court without discussion of administrative remedies). Yet it is not clear what Rhode Island state courts would require under the Personnel Rules and Regulations of Paw-tucket. Nevertheless, it was not error for the federal district court, in its discretion, to decline review where state administrative rights had not been exercised by the appellants.
OTHER CLAIMS
We agree with the district court that appellants’ § 1985 claims have no merit because no constitutional violation was found. Similarly, we find the appellants’ claims for nominal damages and for attorneys’ fees to be without merit.
The judgment of the district court is
Affirmed.
. Duffy v. Sarault, 702 F.Supp. 387 (D.R.I.1988).
.
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_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
Divna MASLENJAK, Petitioner
v.
UNITED STATES.
No. 16-309.
Supreme Court of the United States
Argued April 26, 2017.
Decided June 22, 2017.
Christopher Landau, Washington, DC, for Petitioner.
Robert A. Parker, Washington, DC, for Respondent.
Christopher Landau, P.C., Patrick Haney, Jeff Nye, Kirkland & Ellis LLP, Washington, DC, for Petitioner.
Christopher Landau, P.C., Washington, DC, for Petitioner.
Robert A. Parker, Assistant to the Solicitor General, Washington, DC, for Respondent.
Jeffrey B. Wall, Acting Solicitor General, Kenneth A. Blanco, Acting Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Robert A. Parker, Assistant to the Solicitor General, John P. Taddei, Attorney, Department of Justice, Washington, DC, for Respondent.
Justice KAGAN delivered the opinion of the Court.
A federal statute, 18 U.S.C. § 1425(a), makes it a crime to "knowingly procure[ ], contrary to law, the naturalization of any person." And when someone is convicted under § 1425(a) of unlawfully procuring her own naturalization, her citizenship is automatically revoked. See 8 U.S.C. § 1451(e). In this case, we consider what the Government must prove to obtain such a conviction. We hold that the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result.
I
Petitioner Divna Maslenjak is an ethnic Serb who resided in Bosnia during the 1990's, when a civil war between Serbs and Muslims divided the new country. In 1998, she and her family (her husband Ratko Maslenjak and their two children) met with an American immigration official to seek refugee status in the United States. Interviewed under oath, Maslenjak explained that the family feared persecution in Bosnia from both sides of the national rift. Muslims, she said, would mistreat them because of their ethnicity. And Serbs, she testified, would abuse them because her husband had evaded service in the Bosnian Serb Army by absconding to Serbia-where he remained hidden, apart from the family, for some five years. See App. to Pet. for Cert. 58a-60a. Persuaded of the Maslenjaks' plight, American officials granted them refugee status, and they immigrated to the United States in 2000.
Six years later, Maslenjak applied for naturalization. Question 23 on the application form asked whether she had ever given "false or misleading information" to a government official while applying for an immigration benefit; question 24 similarly asked whether she had ever "lied to a [ ] government official to gain entry or admission into the United States." Id., at 72a. Maslenjak answered "no" to both questions, while swearing under oath that her replies were true. Id., at 72a, 74a. She also swore that all her written answers were true during a subsequent interview with an immigration official. In August 2007, Maslenjak was naturalized as a U.S. citizen.
But Maslenjak's professions of honesty were false: In fact, she had made up much of the story she told to immigration officials when seeking refuge in this country. Her fiction began to unravel at around the same time she applied for citizenship. In 2006, immigration officials confronted Maslenjak's husband Ratko with records showing that he had not fled conscription during the Bosnian civil war; rather, he had served as an officer in the Bosnian Serb Army. And not only that: He had served in a brigade that participated in the Srebrenica massacre-a slaughter of some 8,000 Bosnian Muslim civilians. Within a year, the Government convicted Ratko on charges of making false statements on immigration documents. The newly naturalized Maslenjak attempted to prevent Ratko's deportation. During proceedings on that matter, Maslenjak admitted she had known all along that Ratko spent the war years not secreted in Serbia but fighting in Bosnia.
As a result, the Government charged Maslenjak with knowingly "procur[ing], contrary to law, [her] naturalization," in violation of 18 U.S.C. § 1425(a). According to the Government's theory, Maslenjak violated § 1425(a) because, in the course of procuring her naturalization, she broke another law: 18 U.S.C. § 1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. The false statements the Government invoked were Maslenjak's answers to questions 23 and 24 on the citizenship application (stating that she had not lied in seeking refugee status) and her corresponding statements in the citizenship interview. Those statements, the Government argued to the District Court, need not have affected the naturalization decision to support a conviction under § 1425(a). The court agreed: Over Maslenjak's objection, it instructed the jury that a conviction was proper so long as the Government "prove[d] that one of the defendant's statements was false"-even if the statement was not "material" and "did not influence the decision to approve [her] naturalization." App. to Pet. for Cert. 86a. The jury returned a guilty verdict; and the District Court, based on that finding, stripped Maslenjak of her citizenship. See 8 U.S.C. § 1451(e).
The United States Court of Appeals for the Sixth Circuit affirmed the conviction. As relevant here, the Sixth Circuit upheld the District Court's instructions that Maslenjak's false statements need not have influenced the naturalization decision. If, the Court of Appeals held, Maslenjak made false statements violating § 1015(a) and she procured naturalization, then she also violated § 1425(a) -irrespective of whether the false statements played any role in her obtaining citizenship. See 821 F.3d 675, 685-686 (2016). That decision created a conflict in the Circuit Courts. We granted certiorari to resolve it, 580 U.S. ----, 137 S.Ct. 809, 196 L.Ed.2d 595 (2017), and we now vacate the Sixth Circuit's judgment.
II
A
Section 1425(a), the parties agree, makes it a crime to commit some other illegal act in connection with naturalization. But the parties dispute the nature of the required connection. Maslenjak argues that the relationship must be "causal" in kind: A person "procures" her naturalization "contrary to law," she contends, only if a predicate crime in some way "contribut[ed]" to her gaining citizenship. Brief for Petitioner 21. By contrast, the Government proposes a basically chronological link: Section 1425(a), it urges, "punishes the commission of other violations of law in the course of procuring naturalization"-even if the illegality could not have had any effect on the naturalization decision. Brief for United States 14 (emphasis added). We conclude that Maslenjak has the better of this argument.
We begin, as usual, with the statutory text. In ordinary usage, "to procure" something is "to get possession of" it. Webster's Third New International Dictionary 1809 (2002); accord, Black's Law Dictionary 1401 (10th ed. 2014) (defining "procure" as "[t]o obtain (something), esp. by special effort or means"). So to "procure ... naturalization" means to obtain naturalization (or, to use another word, citizenship). The adverbial phrase "contrary to law," wedged in between "procure" and "naturalization," then specifies how a person must procure naturalization so as to run afoul of the statute: in contravention of the law-or, in a word, illegally. Putting the pieces together, someone "procure[s], contrary to law, naturalization" when she obtains citizenship illegally.
What, then, does that whole phrase mean? The most natural understanding is that the illegal act must have somehow contributed to the obtaining of citizenship. Consider if someone said to you: "John obtained that painting illegally." You might imagine that he stole it off the walls of a museum. Or that he paid for it with a forged check. Or that he impersonated the true buyer when the auction house delivered it. But in all events, you would imagine illegal acts in some kind of means-end relation-or otherwise said, in some kind of causal relation-to the painting's acquisition. If someone said to you, "John obtained that painting illegally, but his unlawful acts did not play any role in his obtaining it," you would not have a clue what the statement meant. You would think it nonsense-or perhaps the opening of a riddle. That is because if no illegal act contributed at all to getting the painting, then the painting would not have been gotten illegally. And the same goes for naturalization. If whatever illegal conduct occurring within the naturalization process was a causal dead-end-if, so to speak, the ripples from that act could not have reached the decision to award citizenship-then the act cannot support a charge that the applicant obtained naturalization illegally. The conduct, though itself illegal, would not also make the obtaining of citizenship so. To get citizenship unlawfully, we understand, is to get it through an unlawful means-and that is just to say that an illegality played some role in its acquisition.
The Government's contrary view-that § 1425(a) requires only a "violation [ ] of law in the course of procuring naturalization"-falters on the way language naturally works. Brief for United States 14. Return for a moment to our artwork example. Imagine this time that John made an illegal turn while driving to the auction house to purchase a painting. Would you say that he had "procured the painting illegally" because he happened to violate the law in the course of obtaining it? Not likely. And again, the same is true with respect to naturalization. Suppose that an applicant for citizenship fills out the necessary paperwork in a government office with a knife tucked away in her handbag (but never mentioned or used). She has violated the law-specifically, a statute criminalizing the possession of a weapon in a federal building. See 18 U.S.C. § 930. And she has surely done so "in the course of" procuring citizenship. But would you say, using English as you ordinarily would, that she has "procure[d]" her citizenship "contrary to law" (or, as you would really speak, "illegally")? Once again, no. That is because the violation of law and the acquisition of citizenship are in that example merely coincidental: The one has no causal relation to the other.
The Government responds to such examples by seeking to define them out of the statute, but that effort falls short for multiple reasons. According to the Government, the laws to which § 1425(a) speaks are only laws "pertaining to naturalization." Brief for United States 20. But to begin with, that claim fails on its own terms. The Government's proposed limitation has no basis in § 1425(a)'s text (which refers to "law" generally); it is a deus ex machina -rationalized only by calling it "necessary," Tr. of Oral Arg. 39, and serving only to get the Government out of a tight interpretive spot. Indeed, the Government does not really buy its own argument: At another point, it asserts that an applicant for citizenship can violate § 1425(a) by bribing a government official, see Brief for United States 16-even though the law against that conduct has nothing in particular to do with naturalization. See 18 U.S.C. § 201(b)(1). And still more important, the Government's (sometime) carve-out does nothing to alter the linguistic understanding that gives force to the examples the Government would exclude-and that applies just as well to every application that would remain. Laws pertaining to naturalization, in other words, are subject to the same rules of language usage as laws concerning other subjects. And under those rules, as we have shown, § 1425(a) demands a means-end connection between a legal violation and naturalization. See supra, at 1924 - 1926. Take § 1015(a)'s bar on making false statements in connection with naturalization-the prototypical § 1425(a) predicate, and the one at issue here. If such a statement (in an interview, say) has no bearing at all on the decision to award citizenship, then it cannot render that award-as § 1425(a) requires-illegally gained.
The broader statutory context reinforces that point, because the Government's reading would create a profound mismatch between the requirements for naturalization on the one hand and those for denaturalization on the other. See West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83, 101, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) ("[I]t is our role to make sense rather than nonsense out of the corpus juris "). The immigration statute requires all applicants for citizenship to have "good moral character," and largely defines that term through a list of unlawful or unethical behaviors. 8 U.S.C. §§ 1427(a)(3), 1101(f). On the Government's theory, some legal violations that do not justify denying citizenship under that definition would nonetheless justify revoking it later. Again, false statements under § 1015(a) offer an apt illustration. The statute's description of "good moral character" singles out a specific class of lies-"false testimony for the purpose of obtaining [immigration] benefits"-as a reason to deny naturalization. 8 U.S.C. § 1101(f)(6). By contrast, "[w]illful misrepresentations made for other reasons, such as embarrassment, fear, or a desire for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks good moral character"-and so are not generally disqualifying. Kungys v. United States, 485 U.S. 759, 780, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (quoting Supplemental Brief for United States 12). But under the Government's reading of § 1425(a), a lie told in the naturalization process-even out of embarrassment, fear, or a desire for privacy-would always provide a basis for rescinding citizenship. The Government could thus take away on one day what it was required to give the day before.
And by so wholly unmooring the revocation of citizenship from its award, the Government opens the door to a world of disquieting consequences-which we would need far stronger textual support to believe Congress intended. Consider the kinds of questions a person seeking citizenship confronts on the standard application form. Says one: "Have you EVER been ... in any way associated with[ ] any organization, association, fund, foundation, party, club, society, or similar group[?]" Form N-400, Application for Naturalization 12 (2016), online at http://www.uscis.gov/n-400 (as last visited June 20, 2017) (bold in original). Asks another: "Have you EVER committed ... a crime or offense for which you were NOT arrested?" Id., at 14. Suppose, for reasons of embarrassment or what-have-you, a person concealed her membership in an online support group or failed to disclose a prior speeding violation. Under the Government's view, a prosecutor could scour her paperwork and bring a § 1425(a) charge on that meager basis, even many years after she became a citizen. That would give prosecutors nearly limitless leverage-and afford newly naturalized Americans precious little security. Small wonder that Congress, in enacting § 1425(a), did not go so far as the Government claims. The statute it passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturalization process, but only when that act played some role in her naturalization.
B
That conclusion leaves us with a more operational question: How should § 1425(a)'s requirement of causal influence apply in practice, when charges are brought under that law? Because the proper analysis may vary with the nature of the predicate crime, we confine our discussion of that issue to the kind of underlying illegality alleged here: a false statement made to government officials. Such conduct can affect a naturalization decision in a single, significant way-by distorting the Government's understanding of the facts when it investigates, and then adjudicates, an application. So the issue a jury must decide in a case like this one is whether a false statement sufficiently altered those processes as to have influenced an award of citizenship.
The answer to that question, like the naturalization decision itself, turns on objective legal criteria. Congress has prescribed specific eligibility standards for new citizens, respecting such matters as length of residency and "physical[ ] presen[ce]," understanding of English and American government, and (as previously mentioned) "good moral character," with all its many specific components. See 8 U.S.C. §§ 1423(a), 1427(a) ; supra, at 1926 - 1927. Government officials are obligated to apply that body of law faithfully-granting naturalization when the applicable criteria are satisfied, and denying it when they are not. See Kungys, 485 U.S., at 774, n. 9, 108 S.Ct. 1537 (opinion of Scalia, J.); id., at 787, 108 S.Ct. 1537 (Stevens, J., concurring in judgment). And to ensure right results are reached, a court can reverse such a determination, at an applicant's request, based on its "own findings of fact and conclusions of law." 8 U.S.C. § 1421(c). The entire system, in other words, is set up to provide little or no room for subjective preferences or personal whims. Because that is so, the question of what any individual decisionmaker might have done with accurate information is beside the point: The defendant in a § 1425(a) case should neither benefit nor suffer from a wayward official's deviations from legal requirements. Accordingly, the proper causal inquiry under § 1425(a) is framed in objective terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.
If the facts the defendant misrepresented are themselves disqualifying, the jury can make quick work of that inquiry. In such a case, there is an obvious causal link between the defendant's lie and her procurement of citizenship. To take an example: An applicant for citizenship must be physically present in the United States for more than half of the five-year period preceding her application. See 8 U.S.C. § 1427(a)(1). Suppose a defendant misrepresented her travel history to convey she had met that requirement, when in fact she had not. The Government need only expose that lie to establish that she obtained naturalization illegally-for had she told the truth instead, the official would have promptly denied her application. Or consider another, perhaps more common case stemming from the "good moral character" criterion. See § 1427(a)(3) ; supra, at 1926 - 1927. That phrase is defined to exclude any person who has been convicted of an aggravated felony. See § 1101(f)(8). If a defendant falsely denied such a conviction, she too would have gotten her citizenship by means of a lie-for otherwise the outcome would have been different. In short, when the defendant misrepresents facts that the law deems incompatible with citizenship, her lie must have played a role in her naturalization.
But that is not the only time a jury can find that a defendant's lie had the requisite bearing on a naturalization decision. For even if the true facts lying behind a false statement would not "in and of themselves justify denial of citizenship," they could have "led to the discovery of other facts which would" do so. Chaunt v. United States, 364 U.S. 350, 352-353, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960). We previously addressed that possibility when considering the civil statute that authorizes the Government to revoke naturalization. See Kungys, 485 U.S., at 774-777, 108 S.Ct. 1537 (opinion of Scalia, J.) (interpreting 8 U.S.C. § 1451(a) ). As we explained in that context, a person whose lies throw investigators off a trail leading to disqualifying facts gets her citizenship by means of those lies-no less than if she had denied the damning facts at the very end of the trail. See ibid.
When relying on such an investigation-based theory, the Government must make a two-part showing to meet its burden. As an initial matter, the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, "seeking only evidence concerning citizenship qualifications," to undertake further investigation. Id., at 774, n. 9, 108 S.Ct. 1537. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. As to that second link in the causal chain, the Government need not show definitively that its investigation would have unearthed a disqualifying fact (though, of course, it may). Rather, the Government need only establish that the investigation "would predictably have disclosed" some legal disqualification. Id., at 774, 108 S.Ct. 1537 ; see id., at 783, 108 S.Ct. 1537 (Brennan, J., concurring). If that is so, the defendant's misrepresentation contributed to the citizenship award in the way we think § 1425(a) requires.
That standard reflects two real-world attributes of cases premised on what an unhindered investigation would have found. First is the difficulty of proving that a hypothetical inquiry would have led to some disqualifying discovery, often several years after the defendant told her lies. As witnesses and other evidence disappear, the Government's effort to reconstruct the course of a "could have been" investigation confronts ever-mounting obstacles. See id., at 779, 108 S.Ct. 1537 (opinion of Scalia, J.). Second, and critical to our analysis, is that the defendant-not the Government-bears the blame for that evidentiary predicament. After all, the inquiry cannot get this far unless the defendant made an unlawful false statement and, by so doing, obstructed the normal course of an investigation. See id., at 783, 108 S.Ct. 1537 (Brennan, J., concurring) (emphasizing that "the citizen's misrepresentation [in a naturalization proceeding] necessarily frustrated the Government's investigative efforts"); see also Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265, 66 S.Ct. 574, 90 L.Ed. 652 (1946) ("The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created").
Section 1425(a) is best read to take those exigencies and equities into account, by enabling the Government (as just described) to rest on disqualifications that a thwarted investigation predictably would have uncovered. A yet-stricter causal requirement, demanding proof positive that a disqualifying fact would have been found, sets the bar so high that "we cannot conceive that Congress intended" that result. Kungys, 485 U.S., at 777, 108 S.Ct. 1537 (opinion of Scalia, J.). And nothing in the statutory text requires that approach. While § 1425(a) clearly imports some kind of causal or means-end relation, see supra, at 1924 - 1927, Congress left that relation's precise character unspecified. Cf. Burrage v. United States, 571 U.S. ----, ----, 134 S.Ct. 881, 890, 187 L.Ed.2d 715 (2014) (noting that courts have not always construed criminal statutes to "require[ ] strict but-for causality," and have greater reason to reject such a reading when the laws do not use language like "results from" or "because of"). The open-endedness of the statutory language allows, indeed supports, our adoption of a demanding but still practicable causal standard.
Even when the Government can make its two-part showing, however, the defendant may be able to overcome it. Section 1425(a) is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained. When addressing the civil denaturalization statute, this Court insisted on a similar point: We provided the defendant with an opportunity to rebut the Government's case "by showing, through a preponderance of the evidence, that the statutory requirement as to which [a lie] had a natural tendency to produce a favorable decision was in fact met." Kungys, 485 U.S., at 777, 108 S.Ct. 1537 (opinion of Scalia, J.) (emphasis deleted); accord, id., at 783-784, 108 S.Ct. 1537 (Brennan, J., concurring). Or said otherwise, we gave the defendant a chance to establish that she was qualified for citizenship, and held that she could not be denaturalized if she did so-even though she concealed or misrepresented facts that suggested the opposite. And indeed, all our denaturalization decisions share this crucial feature: We have never read a statute to strip citizenship from someone who met the legal criteria for acquiring it. See, e.g., Fedorenko v. United States, 449 U.S. 490, 505-507, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) ; Costello v. United States, 365 U.S. 265, 269-272, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961) ; Schneiderman v. United States, 320 U.S. 118, 122-123, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). We will not start now. Whatever the Government shows with respect to a thwarted investigation, qualification for citizenship is a complete defense to a prosecution brought under § 1425(a).
III
Measured against all we have said, the jury instructions in this case were in error. As earlier noted, the District Court told the jury that it could convict based on any false statement in the naturalization process (i.e., any violation of § 1015(a) ), no matter how inconsequential to the ultimate decision. See App. to Pet. for Cert. 86a; supra, at 1923 - 1924. But as we have shown, the jury needed to find more than an unlawful false statement. Recall that Maslenjak's lie in the naturalization process concerned her prior statements to immigration officials: She swore that she had been honest when applying for admission as a refugee, but in fact she had not. See supra, at 1923 - 1924. The jury could have convicted if that earlier dishonesty (i.e., the thing she misrepresented when seeking citizenship) were itself a reason to deny naturalization-say, because it counted as "false testimony for the purpose of obtaining [immigration] benefits" and thus demonstrated bad moral character. See supra, at 1928 - 1929. Or else, the jury could have convicted if (1) knowledge of that prior dishonesty would have led a reasonable official to make some further investigation (say, into the circumstances of her admission), (2) that inquiry would predictably have yielded a legal basis for rejecting her citizenship application, and (3) Maslenjak failed to show that (notwithstanding such an objective likelihood) she was in fact qualified to become a U.S. citizen. See supra, at 1928 - 1931. This jury, however, was not asked to-and so did not-make any of those determinations. Accordingly, Maslenjak was not convicted by a properly instructed jury of "procur[ing], contrary to law, [her] naturalization."
The Government asserts that any instructional error in this case was harmless. "Had officials known the truth," the Government asserts, "it would have affected their decision to grant [Maslenjak] citizenship." Brief for United States 12. Unsurprisingly, Maslenjak disagrees. See Tr. of Oral Arg. 6-8; Reply to Brief in Opposition 9-10. In keeping with our usual practice, we leave that dispute for resolution on remand. See, e.g., Skilling v. United States, 561 U.S. 358, 414, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010).
For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice GORSUCH, with whom Justice THOMAS joins, concurring in part and concurring in the judgment.
The Court holds that the plain text and structure of the statute before us require the Government to prove causation as an element of conviction: The defendant's illegal conduct must, in some manner, cause her naturalization. I agree with this much and concur in Part II-A of the Court's opinion to the extent it so holds. And because the jury wasn't instructed at all about causation, I agree too that reversal is required.
But, respectfully, there I would stop. In an effort to "operational[ize]" the statute's causation requirement, the Court says a great deal more, offering, for example, two newly announced tests, the second with two more subparts, and a new affirmative defense-all while indicating that some of these new tests and defenses may apply only in some but not all cases. See, e.g., ante, at 1927 - 1931. The work here is surely thoughtful and may prove entirely sound. But the question presented and the briefing before us focused primarily on whether the statute contains a materiality element, not on the contours of a causation requirement. So the parties have not had the chance to join issue fully on the matters now decided. Compare ante, at 1927 - 1928, n. 4, with Brief for Petitioner, pp. i, 18-38; Brief for United States, pp. i, 12-51. And, of course, the lower courts have not had a chance to pass on any of these questions in the first instance. Most cited by the Court have (again) focused only on the materiality (not causation) question; none has tested the elaborate operational details advanced today; and at least one has found our prior unilateral and fractured foray into a related statute in Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988), "maddening [ ]." See ante, at 1927, n. 4 (collecting cases).
Respectfully, it seems to me at least reasonably possible that the crucible of adversarial testing on which we usually depend, along with the experience of our thoughtful colleagues on the district and circuit benches, could yield insights (or reveal pitfalls) we cannot muster guided only by our own lights. So while I agree with the Court that the parties will need guidance about the details of the statute's causation requirement, see ibid., I have no doubt that the Court of Appeals, with aid of briefing from the parties, can supply that on remand. Other circuits may improve that guidance over time too. And eventually we can bless the best of it. For my part, I believe it is work enough for the day to recognize that the statute requires some proof of causation, that the jury instructions here did not
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_civproc1
|
49
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
DE EUGENIO v. ALLIS-CHALMERS MFG. CO.
No. 11102.
United States Court of Appeals, Third Circuit.
Argued Nov. 2, 1953.
Decided Feb. 12, 1954.
Rehearing Denied March 11, 1954.
Sidney P. McCord, Jr., Camden, N. J. (Starr, Summerill & Davis, William F. Hyland, Camden, N. J., on the brief), for appellant.
Robert G. Howell, Bridgeton, N. J. (George H. Stanger, Vineland, N. J., on the brief), for appellee.
Before MARIS, STALEY and HAS-TIE, Circuit Judges.
STALEY, Circuit Judge.
Plaintiff lost his right arm as a result of its being crushed between the rollers of a hay baler which had been manufactured by defendant. In accordance with the jury’s verdict for plaintiff, we state that view of the record which is most favorable to him.
In 1940 defendant began designing a revolutionary device, a baler which would make cylindrical bales of hay. The pilot baler was built in May of 1941. That and several other machines of its kind were tested on farms through 1946, when commercial production was begun. As of June, 1947, about three thousand machines had been produced and distributed for sale.
The machine, called a Roto-Baler, was designed to operate as follows: The baler is mounted on a single axle which is toward the rear. Forward of the axle, there is a chute, the front of which slides over the ground on skids. On the chute there is a conveyer which scoops up the windrowed hay and carries it up to rolls which compress it into a thin mat. The mat is rolled into a cylinder, and, when the cylinder of hay has reached proper size, the conveyer stops, and the bale is then wrapped with twine and ejected from the rear of the machine. The baler is drawn over the ground behind and to the left of a tractor which also supplies the power for the machine’s moving parts through a power take-off shaft. The chute is about seven feet long, and, when the machine is operated at the maximum speed recommended by defendant, an object would be carried from the bottom to the rollers in about one and three-quarter seconds. At the speed it was being operated on the day of the accident, the time was estimated at two or three seconds.
Plaintiff, his father and two brothers, operated a farming partnership in New Jersey. Defendant, through its dealer, Gawin, sold a Roto-Baler to the partnership, and, together with one Robb, defendant’s field representative, delivered it to the firm at one of its farms. The baler was tested when delivered and was found to be operating improperly. The hay would accumulate or “bulldoze” in front of the chute. This bulldozing prevented a smooth flow of hay into the chute and into the rolls and a consequent irregularity in the size of the bales. A mass of the accumulated hay would suddenly pass up the chute and would literally choke the rolls, causing the entire unit to slacken its forward motion. When the lump of hay cleared the rolls, the baler would lunge forward or from side to side in an erratic manner, the sideways motion being aggravated by the fact that this was a two-wheeled machine with its one axle toward the rear, thus allowing the front of the chute to move to left or right as the baler pivoted on its axle. Furthermore, the pile-up of hay in front of the chute required that a man walk along at the left front of the chute and, with a fork, toss the hay into the chute. This was contrary to the machine’s intended manner of operation since it was designed and sold as a one-man baler, the tractor driver supposedly being the only man required.
The above difficulties being discovered immediately upon delivery of the baler, Gawin and Robb remained for about two and one-half hours trying to correct them but were unsuccessful. They returned the next day and worked on the baler for about four and one-half hours while it was in operation but to no avail. The third time the machine was used Gawin again attempted to correct the faulty operation. On the occasions when Gawin and Robb were trying to adjust the machine, one of them would walk at the left front of the chute tossing the accumulated hay onto the chute, and, on those same occasions and in the presence of Gawin and Robb, plaintiff and one of his brothers did likewise.
On the day of the accident, plaintiff and his brothers were baling hay. It was the fourth time the baler had been used, but it still was not functioning properly. To take care of the hay that was piling up in front of the chute, plaintiff was walking along at its left front, just as Gawin and Robb had done. As stated, at times a large mass of the accumulated hay would pass up the chute and into the rolls, and, when it had cleared the rolls, the baler would lunge forward or to the side. Seconds after one such lump had passed up the chute, plaintiff was knocked off balance when struck on the shin by the left skid of the chute. He fell onto and was carried up the chute, and his right arm went through the rolls, up to his shoulder.
All the testimony as to how the baler actually did operate, as to what Gawin and Robb did, and as to the circumstances of the accident came from plaintiff and his witnesses and was, thus, undisputed. Defendant’s only witness, the man who designed the machine, testified as to its design and construction and the manner in which it was supposed to operate.
The special interrogatories and the jury’s answers are set out below.
The case was in the United States District Court for the District of New Jersey solely by reason of diversity jurisdiction. Therefore, we must be guided by the substantive law of New Jersey. We have been unable to find any New Jersey cases which are of any help, nor has our attention been directed to any. Hence, we find the New Jersey law as best we can from the materials at hand. Diesbourg v. Hazel-Atlas Glass Co., 3 Cir., 1949, 176 F.2d 410.
Plaintiff had three strings to his bow. He charged negligence in the design and construction of the baler in that there was no barrier guard over the chute to prevent a man from falling onto it; negligence by Gawin and Robb in adjusting the baler or leaving it, improperly adjusted, for use by plaintiff and his partners; and negligence by Gawin and Robb in the instructions given as to the proper method of operation of this particular machine. If any one of those points has merit, the case was for the jury. Consequently, we will discuss only the matter of the alleged negligent instructions by Gawin and Robb since we think there is merit in that point.
This baler was designed and intended to be used as a one-man operation. Once the hay was windrowed, the tractor driver was supposed to be the only human needed for the correct functioning of the machine. This particular baler, however, did not so function. Because the chute was not properly picking up the hay, large masses of it were piling up at the front of the machine. This caused the flow of hay along the chute and into the rolls to be uneven, and, in turn, produced bales of irregular size. When a large mass of hay would pass into the rolls, the baler would slow down in its forward motion and then lunge ahead or to the side when the lump had cleared the rolls. It appears that Gawin and Robb did what they could to synchronize the timing and to adjust the machine but without success. While doing so, one of them walked along at the left front of the chute so that he could handle the accumulation of hay by pushing or lifting it onto the chute with a fork. This seems to have been the only way or, at least, the way selected by Gawin and Robb to make the machine operate so that it would even approximate the results it was built to produce. Their attempts at correction having failed, the baler was left with the partnership. It is a mistake to view this particular machine as a one-man baler simply because that was the way it was supposed to operate. In fact, it never did so operate. From the very beginning, two men were needed: the tractor driver and a man walking at the left front of the chute. At least, the jury could have so found. Since the baler would not operate as a one-man machine, Gawin and Robb, as defendant’s representatives, had a clear duty to use due care in instructing plaintiff. Burdened by that duty, we think it was for the jury to say whether they breached it, that is, subjected plaintiff to an unreasonable risk of harm, by instructing him that the proper way to operate this machine was to walk along near the left front of the chute in order to fork the hay onto the conveyer. So placed, plaintiff was put in a position of rather obvious danger. If he were to trip over the stubble in the hay field or if he were tripped by a sudden lunge of the chute (as it appears that he was), the danger of being scooped up by the chute and carried into the rolls was quite foreseeable.
It is probably true, as defendant insists, that there is no duty to warn against the obvious, that is, that defendant had no duty to warn plaintiff to stay away from the front of the chute since the risk of injury by being carried into the rolls was clear. But that does not end the matter. Although there may have been no duty to warn plaintiff to stay clear of the chute, manifestly there was a duty to refrain from directing him to place himself there by representations that only by so doing could the baler be made to do its work. The negligence was not in failing to warn plaintiff to stay away but in demonstrating to him that it was proper and safe to come near, because defendant, in those circumstances, had every reason to know that such instruction would cause injury, and it is thus liable for the natural consequences of its act.
Defendant asserts that Gawin and Robb fulfilled their duty, arguing that it is incredible that plaintiff would interpret what they did in attempting to adjust the machine as an illustration of the recommended manner of operation. Plaintiff’s credulity, however, was not so great as to enable us to say, as a matter of law, that he was wholly unjustified in taking Gawin and Robb’s conduct as a recommendation as to the proper manner of operation of a hay baler which was supposed to operate with the help of only one man but which really required two. It is true that Gawin and Robb did not expressly direct plaintiff to walk where they did. They said nothing one way or the other on the matter. But we have come past the time when the law attaches conclusive significance to what a man says and completely ignores what he does. The jury could well have reasoned that Gawin and Robb, as reasonable men, should have foreseen that what they did might be construed by plaintiff, acting as a reasonable man, as a recommendation, if not actual instruction, that this was the way to make this particular baler do its job. In this connection, the status and relationship of the parties is important. Plaintiff and his partners had just bought the machine, and defendant’s agents had come to demonstrate the proper and most efficient manner in which to use it. Under these circumstances, we cannot say as a matter of law that it was unreasonable for the plaintiff to interpret equivocal acts of the demonstrators in handling the machine as concrete suggestions as to its use since they hold themselves out as experts in the proper use of their device. The weight of this factor is increased here since the Roto-Baler was a new type of machine. It was not something which farmers had been using for years.
It is not surprising to find the defenses of contributory negligence and assumption of risk appearing in this case since the rolls, the physical cause of plaintiff’s injury, were not a hidden danger but were obvious. In such a case, a plaintiff might find it difficult to show a defendant’s negligence without, by the same evidence, establishing his contributory negligence.
Consistent with the majority rule, New Jersey requires that defendant prove contributory negligence and assumption of risk. Kaufman v. Pennsylvania R. R., 1949, 2 N.J. 318, 66 A.2d 527. As to both defenses, the test is whether plaintiff acted, in regard to his own safety, as would the reasonably prudent person. When fair-minded men could reach different conclusions following an application of that test, the question of which of the varying inferences should be drawn is for the jury. Rapp v. Public Service Coordinated Transport, 1952, 9 N.J. 11, 86 A.2d 676; Solomon v. Finer, 1935, 115 N.J.L. 404, 180 A. 567; Scheirek v. Izsa, 1953, 26 N.J. Super. 68, 97 A.2d 167. Having these concepts in mind, we think it abundantly clear that the question of assumption of risk and contributory negligence were for the jury. We are told that plaintiff was an adult farmer of at least average intelligence and was familiar with farm equipment; that he had observed the baler in operation on three prior occasions and that the risk of injury from the rolls was obvious; consequently, he voluntarily exposed himself to a known danger. But the Solomon case, supra, tells us that that alone is not enough to bar plaintiff as a matter of law; to have that effect the voluntary exposure must be unreasonable, and it is for the trier of fact to say whether that inference should be made. The weighty factor which defendant seems to overlook is that plaintiff was doing just what defendant’s demonstrators had done. Conduct which might otherwise bar a plaintiff as a matter of law must be looked at in a different light when the seller’s experts have indicated that that is the proper way to operate the purchased machine. Under these circumstances, whether plaintiff’s reliance upon the experts’ instructions was unreasonable was for the jury.
There are two other matters, which defendant says require a new trial.
The first relates to the admissibility of certain evidence. In answer to an interrogatory propounded by plaintiff, defendant indicated that there were seven accidents involving Roto-Balers occurring between May 22 and June 20, 1947, the date of plaintiff’s injury. In order to show notice to defendant of the dangerous character, of the machine, the interrogatory and answer were read to the jury over defendant’s objection. It is said that the answer was inadmissible for two reasons: in each of the seven accidents, the injured person was, in deviation from instructions, trying to engage the twine or to clear the rolls of hay or rocks while the machine was in operation, and, even supposing that the prior accidents were similar to plaintiff’s, they occurred so close to plaintiff’s in point of time that there was no showing that notice was brought home to defendant in time to have taken any remedial action before plaintiff was hurt. We think, however, that the evidence was admissible to show notice to defendant of the dangerous character of the machine, Baltimore & O. R. R. v. Fel-genhauer, 8 Cir., 1948, 168 F.2d 12, 17; Fed.R.Civ.P. 43(a), 28 U.S.C., and, since, in each of the seven accidents defendant emphasized that the person injured “deviated from instructions,” the necessity to refrain from giving improper instructions. As to the time argument, the answer itself states that “Accidents reported are from the records of the company from 1941 to June 20, 1947.”
Defendant’s next objection is unique. We are told that a possible lack of unanimity in the jury’s verdict may be hidden under the form in which the questions were submitted to the jury. As footnote 2 shows, the jury was asked whether defendant was negligent in any or all of three respects, design, adjustment, or instruction. The next question required the jury to state, assuming an affirmative answer to the first, whether such negligence was the proximate cause of plaintiff’s injury. Defendant contends that the causation question, too, should have been broken down into three parts, corresponding to the three items of possible negligence, so that the jury would have been required to be precise in its finding on causation. Otherwise, the argument runs, four jurors may have thought the negligent design was the proximate cause, four others may have relied on the negligent adjustment, and the final four on the negligent instructions. We are directed to a Wisconsin case, Fontaine v. Fontaine, 1931, 205 Wis. 570, 238 N.W. 410, as authority for the proposition. The trouble with defendant’s position is that the Wisconsin statute requires the submission of special interrogatories under certain circumstances. That statutory mandate cannot bind procedural matters in the federal courts, which are governed as to special verdicts and interrogatories by Rule 49 of the Federal Rules of Civil Procedure. Tillman v. Great American Indemnity Co., 7 Cir., 1953, 207 F.2d 588, 593; Lang v. Rogney, 8 Cir., 1953, 201 F.2d 88, 97. Rule 49 clearly leaves the matter of the form of a special verdict and interrogatories to the sound discretion of the trial court. Norfolk Southern Ry. v. Davis Frozen Foods, Inc., 4 Cir., 1952, 195 F.2d 662, second appeal, 4 Cir., 204 F.2d 839, certiorari denied, 1953, 346 U.S. 824, 74 S.Ct. 41; Mourikas v. Vardianos, 4 Cir., 1948, 169 F.2d 53. The trial court certainly did not abuse its discretion in denying defendant’s request here.
Furthermore, the relevant legal points were thoroughly laid out in the court’s charge, so that what defendant suggests could not have occurred unless the jurors disregarded their instructions.
We have examined the other contentions of defendant and find them to be unsubstantial. The judgment of the district court will be affirmed.
. A picture of an identical Roto-Baler is reprinted in Yaun v. Allis-Chalmers Mfg. Co., 1948, 253 Wis. 558, 34 N.W.2d 853, 854-855.
. “1. Was the defendant, Allis-Chalm-ers, guilty of negligence
(a) In the design or construction of the machine in question? Yes
(b) In the manner of giving to the purchasers instructions for the intended use of the machine? Yes
(c) In the manner of adjusting the machine? Yes
“2. If you answer question #1 in the affirmative, namely, that the defendant, Allis-Chalmers was guilty of negligence, was such negligence the proximate cause of the injury sustained by DeEugenio? Yes
“3. (a) Was Mr. DeEugenio guilty of contributory negligence? No
(b) Did Mr. DeEugenio assume the risk involved? No”
. Restatement, Torts § 466, comment o (1934).
. Wis.Stat.1935, § 270.27.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
sc_petitioner
|
028
|
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.
CASPARI, SUPERINTENDENT, MISSOURI EASTERN CORRECTIONAL CENTER, et al. v. BOHLEN
No. 92-1500.
Argued December 6, 1993
Decided February 23, 1994
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 397.
Frank A. Jung, Assistant Attorney General of Missouri, argued the cause for petitioners. With him on the briefs was Jeremiah W (Jay) Nixon, Attorney General.
William K. Kelley argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Bryson, and Ronald J. Mann.
Richard H. Sindel, by appointment of the Court, 510 U. S. 806, argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for Cook County, Illinois, by Jack O’Malley, Renee G. Goldfarb, and Theodore Folios Burtzos; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.
Michael D. Gooch filed a brief for the National Legal Aid and Defender Association et al. as amici curiae urging affirmance.
A brief of amici curiae was filed for the State of Arkansas et al. by Winston Bryant, Attorney General of Arkansas, Clint Miller, Senior Assistant Attorney General, and Kyle R. Wilson, Assistant Attorney General, John M. Bailey, Chief State’s Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Larry EchoHawk, Attorney General of Idaho, Mike Moore, Attorney General of Mississippi, Joseph R Mazurek, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Carol Henderson, Deputy Attorney General of New Jersey, T. Travis Medlock, Attorney General of South Carolina, and Joseph B. Meyer, Attorney General of Wyoming.
Justice O’Connor
delivered the opinion of the Court.
In Bullington v. Missouri, 451 U. S. 430 (1981), we held that a defendant sentenced to life imprisonment following a trial-like capital sentencing proceeding is protected by the Double Jeopardy Clause against imposition of the death penalty if he obtains reversal of his conviction and is retried and reconvicted. In this case we are asked to decide whether the Double Jeopardy Clause prohibits a State from twice subjecting a defendant to a noncapital sentence enhancement proceeding.
I
Respondent and others entered a jewelry store in St. Louis County, Missouri, on April 17, 1981. Holding store employees and customers at gunpoint, they stole money and jewelry. After a jury trial, respondent was convicted on threé counts of first-degree robbery. See Mo. Rev. Stat. §569.020 (1978). The authorized punishment for that offense, a class A felony, is “a term of years not less than ten years and not to exceed thirty years, or life imprisonment.” Mo. Rev. Stat. §558.011.1(1) (Supp. 1982).
Under Missouri law, the jury is to “assess and declare the punishment as a part of [the] verdict.” §557.036.2. The judge is then to determine the punishment “having regard to the nature and circumstances of the offense and the history and character of the defendant,” §557.036.1, although the sentence imposed by the judge generally cannot be more severe than the advisory sentence recommended by the jury. § 557.036.3. If the trial judge finds the defendant to be a “persistent offender,” however, the judge sets the punishment without seeking an advisory sentence from the jury. §§ 557.036.4, 557.036.5. A persistent offender is any person “who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.” §558.016.3. The judge must find beyond a reasonable doubt that the defendant is a persistent offender. § 558.021. For a defendant who has committed a class A felony, a finding of persistent-offender status shifts the sentencing decision from the jury to the judge but does not alter the authorized sentencing range. §§557.036.4(2), 558.016.6(1).
The trial judge in this case sentenced respondent as a persistent offender to three consecutive terms of 15 years in prison. The Missouri Court of Appeals affirmed respondent’s convictions. State v. Bohlen, 670 S. W. 2d 119 (1984). The state court reversed respondent’s sentence, however, because “although [respondent] was sentenced by the judge as a persistent offender no proof was made of the prior convictions.” Id., at 123. Following Missouri practice, see State v. Holt, 660 S. W. 2d 735, 738-739 (Mo. App. 1983), the court remanded for proof of those convictions and resentencing.
On remand, the State introduced evidence of four prior felony convictions. Rejecting respondent’s contention that allowing the State another opportunity to prove his prior convictions violated the Double Jeopardy Clause, the trial judge found respondent to be a persistent offender and again sentenced him to three consecutive 15-year terms. App. A-29, A-35. The Missouri Court of Appeals affirmed: “The question of double jeopardy was not involved because those provisions of the Fifth Amendment have been held not to apply to sentencing.” State v. Bohlen, 698 S. W. 2d 577, 578 (1985), citing State v. Lee, 660 S. W. 2d 394, 399 (Mo. App. 1983). The Missouri Court of Appeals subsequently affirmed the trial court’s denial of respondent’s motion for postconviction relief. Bohlen v. State, 743 S. W. 2d 425 (1987).
In 1989, respondent filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. The District Court, adopting the report and recommendation of a Magistrate, denied the petition. App. to Pet. for Cert. A25-A26. The court rejected respondent’s contention that the Double Jeopardy Clause barred the State from introducing evidence of respondent’s prior convictions at the second sentencing hearing. Id., at A37-A49.
The United States Court of Appeals for the Eighth Circuit reversed. 979 F. 2d 109 (1992). Based on its conclusion that “[t]he persistent offender sentence] enhancement procedure in Missouri has protections similar to those in the capital sentencing hearing in Bullington” id., at 112, the court stated that “it is a short step to apply the same double jeopardy protection to a non-capital sentencing hearing as the Supreme Court applied to a capital sentencing]... hearing.” Id., at 113. The court held that taking that step did not require the announcement of a “new rule” of constitutional law, and thus that granting habeas relief to respondent would not violate the nonretroactivity principle of Teague v. Lane, 489 U. S. 288 (1989) (plurality opinion). The Court of Appeals accordingly directed the District Court to grant respondent a writ of habeas corpus. 979 F. 2d, at 115.
We granted certiorari, 508 U. S. 971 (1993), and now reverse.
II
We have consistently declined to consider issues not raised in the petition for a writ of certiorari. See this Court’s Rule 14.1(a) (“Only the questions set forth in the petition, or fairly included therein, will be considered by the Court”). In Yee v. Escondido, 503 U. S. 519 (1992), for example, the question presented was whether certain governmental action had effected a physical taking of the petitioner’s property; we held that the question whether the same action had effected a regulatory taking, while “related” and “complementary” to the question presented, was not fairly included therein. Id., at 537. In Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27 (1993) (per curiam), the question presented in the petition was whether the courts of appeals should routinely vacate district court judgments when cases are settled while on appeal; we held that the “analytically and factually” distinct issue whether the petitioner was improperly denied leave to intervene in the court below was not fairly included in the question presented. Id., at 32. See also American Nat. Bank & Trust Co. of Chicago v. Haroco, Inc., 473 U. S. 606, 608 (1985) (per curiam).
The primary question presented in the petition for a writ of certiorari in this case was “[w]hether the Double Jeopardy Clause . . . should apply to successive non-capital sentence enhancement proceedings.” Pet. for Cert. 1. The State argues that answering that question in the affirmative would require the announcement of a new rule of constitutional law in violation of Teague and subsequent cases. We conclude that this issue is a subsidiary question fairly included in the question presented.
The nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final. See, e. g., Stringer v. Black, 503 U. S. 222, 227 (1992). A threshold question in every habeas case, therefore, is whether the court is obligated to apply the Teague rule to the defendant’s claim. We have recognized that the nonretroactivity principle “is not ‘jurisdictional’ in the sense that [federal courts]. . . must raise and decide the issue sua sponte.” Collins v. Youngblood, 497 U. S. 37, 41 (1990) (emphasis omitted). Thus, a federal court may, but need not, decline to apply Teague if the State does not argue it. See Schiro v. Farley, 510 U. S. 222, 228-229 (1994). But if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim. See Graham v. Collins, 506 U. S. 461, 466-467 (1993).
In this case, the State argued in the petition, as it had in the courts below and as it does in its brief on the merits, that the nonretroactivity principle barred the relief sought by respondent. In contrast to Yee, which involved a claim that was related but not subsidiary, and Izumi, in which the intervention question was a procedural one wholly divorced from the question on which we granted review, the Teague issue raised by the State in this case is a necessary predicate to the resolution of the question presented in the petition. Cf. Cuyler v. Sullivan, 446 U. S. 335, 342-343, n. 6 (1980). We therefore proceed to consider it.
III.
[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague v. Lane, supra, at 301. In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, the court must ascertain the date on which the defendant’s conviction and sentence became final for Teague purposes. Second, the court must “[s]urve[y] the legal landscape as it then existed,” Graham v. Collins, supra, at 468, and “determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,” Saffie v. Parks, 494 U. S. 484,488 (1990). Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle. See Gilmore v. Taylor, 508 U. S. 333, 345 (1993).
A
A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied. See Griffith v. Kentucky, 479 U. S. 314, 321, n. 6 (1987). The Missouri Court of Appeals denied respondent’s petition for rehearing on October 3,1985, and respondent did not file a petition for a writ of certiorari. Respondent’s conviction and sentence therefore became final on January 2, 1986 — 91 days (January 1 was a legal holiday) later. 28 U. S. C. § 2101(c); see this Court’s Rules 13.4 and 30.1.
B
In reviewing the state of the law on that date, we note that it was well established that there is no double jeopardy bar to the use of prior convictions in sentencing a persistent offender. Spencer v. Texas, 385 U. S. 554, 560 (1967). Cf. Moore v. Missouri, 159 U. S. 673, 678 (1895). Respondent’s claim, however, is that the State’s failure to prove his persistent-offender status at his first sentencing hearing operated as an “acquittal” of that status, so that he cannot be again subjected to a persistent-offender determination. See United States v. Wilson, 420 U. S. 332, 343 (1975) (“When a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him”).
At first blush, respondent’s argument would appear to be foreclosed by the fact that “[hjistorically, the pronouncement of sentence has never carried the finality that attaches to an acquittal.” United States v. DiFrancesco, 449 U. S. 117, 133 (1980). In that case, we upheld the constitutionality of 18 U. S. C. §3576, a pre-Guidelines statute that allowed the United States to appeal the sentence imposed on a defendant adjudged to be a “dangerous special offender,” and allowed the court of appeals to affirm the sentence, impose a different sentence, or remand to the district court for further sentencing proceedings. A review of our prior cases led us to the conclusion that “[t]his Court’s decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal.” 449 U. S., at 134; see also id., at 135, citing Chaffin v. Stynchcombe, 412 U. S. 17 (1973); North Carolina v. Pearce, 395 U. S. 711 (1969); Bozza v. United States, 330 U. S. 160 (1947); and Stroud v. United States, 251 U. S. 15 (1919).
Respondent acknowledges our traditional refusal to extend the Double Jeopardy Clause to sentencing, but contends that a different result is compelled in this case by Bullington v. Missouri, 451 U. S. 430 (1981), and Arizona v. Rumsey, 467 U. S. 203 (1984). In Bullington, the defendant was convicted of capital murder and sentenced to life imprisonment. After he obtained a reversal of his conviction on appeal and was reconvicted, the State again sought the death penalty. We recognized the general principle that “[t]he imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed.” 451 U. S., at 438. We nonetheless held that because Missouri’s “presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence,” ibid., the first jury’s refusal to impose the death penalty operated as an acquittal of that punishment. In Rumsey, we extended the rationale of Bullington to a capital sentencing scheme in which the judge, as opposed to a jury, had initially determined that a life sentence was appropriate. 467 U. S., at 212.
Both Bullington and Rumsey were capital cases, and our reasoning in those cases was based largely on the unique circumstances of a capital sentencing proceeding. In Bullington itself we distinguished our contrary precedents, particularly DiFrancesco, on the ground that “[t]he history of sentencing practices is of little assistance to Missouri in this case, since the sentencing procedures for capital cases instituted after the decision in Furman [v. Georgia, 408 U. S. 238 (1972),] are unique.” 451 U. S., at 441-442, n. 15 (internal quotation marks omitted). We recognized as much in Pennsylvania v. Goldhammer, 474 U. S. 28 (1985) (per curiam): “[T]he decisions of this Court ‘clearly establish that a sentenc[ing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal.’” Id., at 30, quoting DiFrancesco, supra, at 134 (bracketed phrase added by the Goldhammer Court; emphasis added).
In Strickland v. Washington, 466 U. S. 668 (1984), we held that the same standard for evaluating claims of ineffective assistance of counsel applies to trials and to capital sentencing proceedings because “[a] capital sentencing proceeding ... is sufficiently like a trial in its adversarial format and in the existence of standards for decision, see [Bullington], that counsel’s role in the proceeding is comparable to counsel’s role at trial.” Id., at 686-687. Because Strickland involved a capital sentencing proceeding, we left open the question whether the same test would apply to noncapital cases: “We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance.” Id., at 686; see also id., at 704-705 (Brennan, J., concurring in part and dissenting in part) (“ 'Time and again the Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case. See, e. g., [Bullington]’ ”) (quoting Barefoot v
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_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Claude HIGH, Defendant-Appellant.
No. 90-1734.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 3, 1990.
Decided Dec. 27, 1990.
William Y. Gallo, Asst. U.S. Atty., Office of the U.S. Atty. and Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Rick Halprin and Susan Shatz, Chicago, Ill., for defendant-appellant.
Before WOOD, Jr., CUDAHY and MANION, Circuit Judges.
MANION, Circuit Judge.
Claude High appeals from his conviction for possession with intent to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1). Specifically, High challenges, the order of the district court denying his motion to suppress the introduction of the cocaine found in his baggage as evidence against him on the ground that the police officers obtained it through a search and seizure violative of the fourth amendment. We affirm.
I.
On August 23, 1988, Claude High and a companion, Kevin Caldwell, arrived at Chicago’s Union Station on an Amtrak train from Los Angeles, California, a source city for narcotics. Detectives George Mays and George Graham and Sergeant Jerry Robinson, drug enforcement officers, monitored the passengers as they detrained. Among the first passengers to detrain were High and Caldwell who alighted quickly. High was carrying a light green, Samsonite suitcase and clutching a brown carry-on bag tightly under his arm. Detectives Mays and Graham testified at the suppression hearing that High made eye contact with them, then looked back at Caldwell, who was a pace behind him, and the two began to walk a little faster. Graham also noted that High eyed his waist and surmised that High was looking for a weapon or beeper which would have indicated that he was a police officer. The agents followed High and Caldwell, lost sight of them, but then caught up with them near the baggage and waiting area. After again making eye contact with the agents, High tapped Caldwell on the shoulder, and the two then headed for an exit.
Mays and Graham approached High and Caldwell and, walking alongside, displayed their badges and identification and asked if they could speak to them. The officers were wearing plainclothes. High and Caldwell stopped walking and agreed to speak to the agents. Sergeant Robinson in the meantime hung back several paces. Graham asked High and Caldwell if he could see some identification, and the two men produced valid Michigan driver’s licenses. Graham returned the licenses and then asked to see their train tickets. High retrieved both his and Caldwell’s ticket from the brown carry-on bag, which he continued to clutch tightly. After examining them, Graham returned the tickets. The tickets were one-way and purchased with cash one day before departure. Graham then informed High and Caldwell that he was conducting a narcotics investigation, that they were not under arrest, and that they were free to leave at any time. High then asked if there was a problem. High became very nervous and began to peer around the station, looking toward the exit. In response, Graham reiterated that he was conducting a narcotics investigation and asked if High or Caldwell had any narcotics on them or in their bags. Both replied, “No.” Graham then asked if he could search their baggage and told them that they could refuse him permission to search and that he needed their permission. High and Caldwell consented to the search. Mays searched Caldwell’s bag, but found nothing. As Graham searched High’s brown carry-on bag, he felt a kilogram-sized package, looked up at Robinson who was standing a few. feet behind High and nodded to him. High then bolted toward the exit, and Mays and Robinson gave chase. High got away. High was later arrested at his home in Michigan.
High was charged by way of indictment with one count of knowingly and intentionally possessing with intent to distribute approximately two kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). High filed a motion to suppress the cocaine seized by the drug enforcement officers, and the district court denied the motion. The court stated that the officers did not need to have an articulable suspicion to approach High and Caldwell, and alternatively found that if the officers needed an articulable suspicion, that they certainly had it. The court found that the officers’ actions were not intimidating, and that they did not block High’s path or movement.
A jury found High guilty, and the district court sentenced him to ninety-seven months of imprisonment. High appeals, challenging the denial of the motion to suppress.
II.
The district court, after hearing the testimony of Detectives Mays and Graham, found that High felt free to leave and that the encounter was consensual. High did not testify.
We must uphold the district court’s denial of the motion to suppress unless the denial was clearly erroneous. United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.1990). “ ‘Our inquiry is factually based and requires that we give particular deference to the district court that had the opportunity to hear the testimony and observe the demeanor of the witnesses.’ ” Id. (quoting United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990)).
As this court discussed in Johnson, the Supreme Court has developed three categories of police-citizen encounters in the context of the fourth amendment: (1) an arrest, requiring the police to have probable cause; (2) an investigatory stop, requiring the police to have specific and artic-ulable facts to give rise to a reasonable suspicion; and (3) a voluntary encounter initiated by non-coercive police questioning, requiring no suspicion at all. See id. This court’s threshold inquiry must be to determine whether there was a seizure, that is, whether a reasonable person in High’s situation would have felt free to leave. If a reasonable person would have felt free to leave, the encounter was consensual, and the fourth amendment is not implicated. High does not address this third category of police-citizen encounters, but simply jumps to a discussion of whether the officers had a reasonable suspicion to stop him. High contends that when a police officer approaches a citizen and asks to see identification and his train tickets without first informing him that he need not comply, no reasonable person in this position would feel free to disregard the officer or to leave. This court has previously rejected such an argument, holding that “the practice of DEA agents in accosting and attempting to question suspected narcotics violators was not coercive per se and the accosted individual would not be deemed to have been seized within the meaning of the Fourth Amendment unless a reasonable person in his position would have believed he was not free to ignore the agents and continue on his way.” United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984) (citing United States v. Black, 675 F.2d 129, 134-35 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983)). “The police ‘do not violate the fourth amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.’ ” Johnson, 910 F.2d at 1508 (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) (plurality opinion)).
Although we reject the argument that such encounters are coercive per se, our concern in these drug surveillance cases is this: in deciding whether to approach someone, the police rely on a subtle combination of characteristics and actions, many of which could be attributed to any traveler who detrains or deplanes in an unfamiliar terminal. Often, these observations alone are not sufficiently specific and articulable to establish reasonable suspicion to support an investigatory stop. Although we think that this can be attributed to a well-trained eye and good police work, it cannot override the fourth amendment just because it gets good results. Consent then becomes crucial in such situations. We suggest that the better procedure might be for the officers to preface their questions with a statement that the encounter is consensual and that the citizen need not answer and is free to go. We do not intend, however, that this suggestion be taken as a requirement that the officers recite any prefatory warning in a Miranda-like fashion. We merely want to emphasize that the police cannot act to intimidate the person or inhibit his or her freedom to leave and not to answer questions.
In this case, however, not only was the fourth amendment not violated, but it was not implicated because High voluntarily consented to the initial encounter and subsequent questioning. The record supports the district court’s finding that High felt free to leave. There is no indication that High’s consent was induced by coercive police conduct. Detectives Mays and Graham approached High and Caldwell from the side. As the district court found, the officers “displayed] [their] badges in a very non-intimidating way, with open hands, not unlike the Allstate Insurance commercials, and in a very low-keyed manner, ask[ed] the defendant, ... ‘May we speak with you?’ ” See Notorianni, 729 F.2d at 522 (that officers identified themselves as law-enforcement officers is not coercive per se, nor is officer’s statement to defendant that he is conducting narcotics investigation). High and Caldwell came to a stop first and agreed to speak with the officers. Nothing the officers did restrained High’s liberty. Although the officers were physically larger than High, the record reveals that they did not use their size to intimidate High or to block his path. The district court found nothing coercive or intimidating in the officers’ behavior. The officers spoke in conversational tones and asked for limited information. Their questioning was not repetitive, intense or threatening. Nothing about the officers’ conduct indicates that High’s consent was other than voluntarily given.
High was not alone, but had Caldwell’s company when the officers approached him. Consequently, even if High was cognizant of Robinson’s presence, making it a three-on-two encounter, we do not think that this was so intimidating that High would not have felt free to leave since the agents did not surround High and Caldwell or otherwise position themselves to impede High’s movement.
Nor were the physical surroundings isolating or restraining. The encounter took place in a busy area of Union Station in the middle of one to two hundred travelers. The district court’s finding that a reasonable person in High’s position would have felt unrestrained and free to disregard the officers was not clearly erroneous. Because in a consensual police-citizen encounter, “the degree of suspicion that is required is zero,” United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.1988), we need not address the question of whether the officers had reasonable suspicion to approach High and Caldwell.
III.
Accordingly, we affirm the order of the district court denying High’s motion to suppress and the judgment of conviction.
Affirmed.
. The transcript of the district court’s findings are as follows:
[T]he motion to suppress the stop, as well as the fruits thereof, and the search will be denied. I don't believe that a police officer needs to have an articulable suspicion in order to stop an individual for purposes of questioning. A police officer may stop a citizen for a number of reasons, one to ask assistance, as well as to interview or question the person stopped.
In this situation, though, if the law was such that there was a requirement that there be articulable suspicion, I believe that Detective Graham certainly had it, as he testified here.
The eye contact between the officers and Mr. High at least raised the suspicion of the officers. That, in and of itself, probably would not be enough.
The manner in which the defendant was clutching the bag that ultimately turned out to be the narcotics-carrying vessel also was a factor to be considered by the officer.
The scanning by the defendant of the officer's waist area to see if there was a weapon or beeper, at least as the officer observed it, in other words, the defendant basically checking out the individual he made eye contact with, Officer Graham, to see if the officer was a policeman, or at least according to what the officer believed, I think also raised a sufficient suspicion, certainly for the purpose of allowing the officer, Officer Graham, to walk alongside, display his badge in a very noninti-midating way, with open hands, not unlike the Allstate Insurance commercials, and in a very low-keyed manner, asking the defendant, “May I speak with you?”, or, "May we speak with you?” It seems to me that at that point Mr. High was not intimidated, despite the fact that Officer Graham is six, three, 220 pounds, and Officer Mays, according to Officer Graham's testimony is about the same height, maybe a little lighter. It seems to me that the physical size should not be considered in connection with intimidation or as an intimidating weapon if it's not used to block the view, passage or means of movement of the defendant. It wasn't here. The officers, when they asked the initial question, were walking alongside, a few feet away, not in front, did not stop or stand in front and block the passage of the defendant or his companion. According to Officer Mays, the defendant started looking nervous, or appeared to be nervous, when the defendant was told that the officers were conducting a narcotics investigation. The fact that the defendant felt free to leave is amply displayed by the fact that the defendant did, in fact, leave when the search was being conducted of the narcotics-carrying bag.
Taking into account all of these factors, I do not believe that any constitutional rights were violated, or any of the defendant’s constitutional rights were violated, or that the police acted in any way improper in this initial stop, questioning, and obtaining of consent, so, consequently, as I indicated earlier, the motion to suppress will be denied.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appel1_4_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 "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
Donald Lee McLAUGHLIN, and all others similarly situation, Plaintiffs-Appellees, v. COUNTY OF RIVERSIDE and Cois Byrd as Sheriff and individually, Defendants-Appellants.
No. 89-55534.
United States Court of Appeals, Ninth Circuit.
Sept. 5, 1991.
Before SCHROEDER and BEEZER, Circuit Judges, and KING, District Judge.
Honorable Samuel P. King, Senior U.S. District Judge for the District of Hawaii, sitting by designation.
Pursuant to the mandate of the United States Supreme Court in County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the case is remanded to the district court for further proceedings consistent with the opinion of the United States Supreme Court.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
WOODFORD, WARDEN v. VISCIOTTI
No. 02-137.
Decided November 4, 2002
Per Curiam.
The United States Court of Appeals for the Ninth Circuit affirmed the grant of habeas relief to respondent John Visci-otti after concluding that he had been prejudiced by ineffective assistance of counsel at trial. 288 F. 3d 1097 (2002). Because this decision exceeds the limits imposed on federal habeas review by 28 U. S. C. § 2254(d), we reverse.
I
Respondent and a co-worker, Brian Hefner, devised a plan to rob two fellow employees, Timothy Dykstra and Michael Wolbert, on November 8, 1982, their payday. They invited the pair to join them at a party. As the four were driving to that supposed destination in Wolbert’s car, respondent asked Wolbert to stop in a remote area so that he could relieve himself. When all four men had left the car, respondent pulled a gun, demanded the victims’ wallets (which turned out to be almost empty), and got Wolbert to tell him where in the car the cash was hidden. After Hefner had retrieved the cash, respondent walked over to the seated Dykstra and killed him with a shot in the chest from a distance of three or four feet. Respondent then raised the gun in both hands and shot Wolbert three times, in the torso and left shoulder, and finally, from a distance of about two feet, in the left eye. Respondent and Hefner fled the scene in Wolbert’s car. Wolbert miraculously survived to testify against them.
Respondent was convicted by a California jury of first-degree murder, attempted murder, and armed robbery, with a special-circumstance finding that the murder was committed during the commission of a robbery. The same jury determined that respondent should suffer death. The California Supreme Court affirmed the conviction and sentence. People v. Visciotti, 2 Cal. 4th 1, 825 P. 2d 388 (1992).
Respondent filed a petition for a writ of habeas corpus in the California Supreme Court, alleging ineffective assistance of counsel. That court appointed a referee to hold an evidentiary hearing and make findings of fact — after which, and after briefing on the merits, it denied the petition in a lengthy opinion. In re Visciotti, 14 Cal. 4th 325, 926 P. 2d 987 (1996). The California Supreme Court assumed that respondent’s trial counsel provided constitutionally inadequate representation during the penalty phase, but concluded that this did not prejudice the jury’s sentencing decision. Id., at 353, 356-357, 926 P. 2d, at 1004, 1006.
Respondent filed a federal habeas petition in the United States District Court for the Central District of California. That court determined that respondent had been denied effective assistance of counsel during the penalty phase of his trial, and granted the habeas petition as to his sentence. The State appealed to the Court of Appeals for the Ninth Circuit.
The Court of Appeals correctly observed that a federal habeas application can only be granted if it meets the requirements of 28 U. S. C. § 2254(d), which provides:
“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
The Court of Appeals found that the California Supreme Court decision ran afoul of both the “contrary to” and the “unreasonable application” conditions of § 2254(d)(1), and affirmed the District Court’s grant of relief. See 288 F. 3d, at 1118-1119. The State of California petitioned for a writ of certiorari, which we now grant along with respondent’s motion for leave to proceed informa pauperis.
II
A
We consider first the Ninth Circuit’s holding that the California Supreme Court’s decision was “contrary to” our decision in Strickland v. Washington, 466 U. S. 668 (1984). Strickland held that to prove prejudice the defendant must establish a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694 (emphasis added); it specifically rejected the proposition that the defendant had to prove it more likely than not that the outcome would have been altered, id., at 693. The Court of Appeals read the State Supreme Court opinion in this case as applying the latter test— as requiring respondent to prove, by a preponderance of the evidence, that the result of the sentencing proceedings would have been different. See 288 F. 3d, at 1108-1109. That is, in our view, a mischaracterization of the state-court opinion, which expressed and applied the proper standard for evaluating prejudice.
The California Supreme Court began its analysis of the prejudice inquiry by setting forth the “reasonable probability” criterion, with a citation of the relevant passage in Strickland; and it proceeded to state that “[t]he question we must answer is whether there is a reasonable probability that, but for counsel’s errors and omissions, the sentencing authority would have found that the balance of aggravating and mitigating factors did not warrant imposition of the death penalty,” again with a citation of Strickland. In re Visciotti, 14 Cal. 4th, at 352, 926 P. 2d, at 1003 (citing Strickland, supra, at 696). Twice, the court framed its inquiry as turning on whether there was a “reasonable probability” that the sentencing jury would have reached a more favorable penalty-phase verdict. 14 Cal. 4th, at 352, 353, 926 P. 2d, at 1003, 1004. The following passage, moreover, was central to the California Supreme Court’s analysis:
“In In re Fields,... we addressed the process by which the court assesses prejudice at the penalty phase of a capital trial at which counsel was, allegedly, incompetent in failing to present mitigating evidence: ‘What kind of evidentiary showing will undermine confidence in the outcome of a penalty trial that has resulted in a death verdict? Strickland . . . and the cases it cites offer some guidance. United States v. Agurs ... , the first case cited by Strickland, spoke of evidence which raised a reasonable doubt, although not necessarily of such character as to create a substantial likelihood of acquittal. . . . United States v. Valenzuela-Bernal. . . , the second case cited by Strickland, referred to evidence which is “material and favorable ... in ways not merely cumulative. . . Id., at 353-354, 926 P. 2d, at 1004.
“Undermin[ing] confidence in the outcome” is exactly Strickland’s description of what is meant by the “reasonable probability” standard. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, at 694.
Despite all these citations of, and quotations from, Strickland, the Ninth Circuit concluded that the California Supreme Court had held respondent to a standard of proof higher than what that case prescribes for one reason: in three places (there was in fact a fourth) the opinion used the term “probable” without the modifier “reasonably.” 288 F. 3d, at 1108-1109, and n. 11. This was error. The California Supreme Court’s opinion painstakingly describes the Strickland standard. Its occasional shorthand reference to that standard by use of the term “probable” without the modifier may perhaps be imprecise, but if so it can no more be considered a repudiation of the standard than can this Court’s own occasional indulgence in the same imprecision. See Mickens v. Taylor, 535 U. S. 162, 166 (2002) (“probable effect upon the outcome”); Williams v. Taylor, 529 U. S. 362, 393 (2000) (“probably affected the outcome”).
The Court of Appeals made no effort to reconcile the state court’s use of the term “probable” with its use, elsewhere, of Strickland’s term “reasonably probable,” nor did it even acknowledge, much less discuss, the California Supreme Court’s proper framing of the question as whether the evidence “undermines confidence” in the outcome of the sentencing proceeding. This readiness to attribute error is inconsistent with the presumption that state courts know and follow the law. See, e. g., Parker v. Dugger, 498 U. S. 308, 314-316 (1991); Walton v. Arizona, 497 U. S. 639, 653 (1990), overruled on other grounds, Ring v. Arizona, 536 U. S. 584 (2002); LaVallee v. Delle Rose, 410 U. S. 690, 694-695 (1973) (per curiam). It is also incompatible with §2254(d)’s “highly deferential standard for evaluating state-court rulings,” Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), which demands that state-court decisions be given the benefit of the doubt.
B
The Court of Appeals also held that, regardless of whether the California Supreme Court applied the proper standard for determining prejudice under Strickland, its decision involved an unreasonable application of our clearly established precedents. 288 F. 3d, at 1118. Specifically, the Ninth Circuit concluded that the determination that VIsciotti suffered no prejudice as a result of his trial counsel’s deficiencies was “objectively unreasonable.” Ibid. Under §2254(d)’s “unreasonable application” clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly. See Bell v. Cone, 535 U. S. 685, 698-699 (2002); Williams, supra, at 411. Rather, it is the habeas applicant’s burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner. An “unreasonable application of federal law is different from an incorrect application of federal law.” Williams, supra, at 410; see Bell, supra, at 694. The Ninth Circuit did not observe this distinction, but ultimately substituted its own judgment for that of the state court, in contravention of 28 U. S. C. § 2254(d).
The Ninth Circuit based its conclusion of “objective unreasonableness” upon its perception (1) that the California Supreme Court failed to “take into account” the totality of the available mitigating evidence, and “to consider” the prejudicial impact of certain of counsel's actions, and (2) that the “aggravating factors were not overwhelming.” 288 F. 3d, at 1118. There is no support for the first of these contentions. All of the mitigating evidence, and all of counsel’s prejudicial actions, that the Ninth Circuit specifically referred to as having been left out of account or consideration were in fact described in the California Supreme Court’s lengthy and careful opinion. The Court of Appeals asserted that the California Supreme Court “completely ignored the mitigating effect of Visciotti’s brain damage,” and failed to consider the prejudicial effect of counsel’s “multiple concessions during closing argument.” Ibid. However, the California Supreme Court specifically considered the fact that an expert “had testified at the guilt phase that [Visciotti] had a minimal brain injury of a type associated with impulse disorder and learning disorder.” In re Visciotti, 14 Cal. 4th, at 354, 926 P. 2d, at 1004. And it noted that under the trial court’s instructions, this and other evidence that had been introduced “might have been considered mitigating at the penalty phase,” despite trial counsel’s concessions during closing argument. Ibid.
The California Supreme Court then focused on counsel’s failure to introduce mitigating evidence about respondent’s background, including expert testimony that could have been presented about his “growing up in a dysfunctional family in which he suffered continual psychological abuse.” Id., at 355, 926 P. 2d, at 1005. This discussion referred back to a lengthy, detailed discussion about the undiscovered mitigating evidence that trial counsel might have presented during the penalty phase. See id., at 341-345, 926 P. 2d, at 996-998. The California Supreme Court concluded that despite the failure to present evidence of respondent’s “troubled family background,” id., at 355, 926 P. 2d, at 1005, which included his being “berated,” being “markedly lacking in self-esteem and depressed,” having been “born with club feet,” having “feelings of inadequacy, incompetence, inferiority,” and the like, moving “20 times” while he was growing up, and possibly suffering a “seizure disorder,” id., at 341-343, 926 P. 2d, at 996-998, the aggravating factors were overwhelming. In the state court’s judgment, the circumstances of the crime (a cold-blooded execution-style killing of one victim and attempted execution-style killing of another, both during the course of a preplanned armed robbery) coupled with the aggravating evidence of prior offenses (the knifing of one man, and the stabbing of a pregnant woman as she lay in bed trying to protect her unborn baby) was devastating. See id., at 355, 926 P. 2d, at 1005; see also People v. Visciotti, 2 Cal. 4th, at 33-34, 825 P. 2d, at 402. The California Supreme Court found these aggravating factors to be so severe that it concluded respondent suffered no prejudice from trial counsel’s (assumed) inadequacy. In re Visciotti, supra, at 355, 926 P. 2d, at 1005.
The Court of Appeals disagreed with this assessment, suggesting that the fact that the jury deliberated for a full day and requested additional guidance on the meaning of “moral justification” and “extreme duress” meant that the “aggravating factors were not overwhelming.” 288 F. 3d, at 1118. Perhaps so. However, “under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly.” Bell, 535 U. S., at 699. The federal habeas scheme leaves primary responsibility with the state courts for these judgments, and authorizes federal-court intervention only when a state-court decision is objectively unreasonable. It is not that here. Whether or not we would reach the same conclusion as the California Supreme Court, “we think at the very least that the state court’s contrary assessment was not ‘unreasonable.’ ” Id., at 701. Habeas relief is therefore not permissible under § 2254(d).
* * *
The judgment of the Court of Appeals for the Ninth Circuit is
Reversed.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_search
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
T.J. HAYES, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.
No. 86-1690.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 13, 1987.
Decided July 22, 1988.
Jeff Rosenzweig, Little Rock, Ark., for appellant.
Jack Gillean, Asst. Atty. Gen., Little Rock, Ark., for appellee.
Before ROSS and WOLLMAN, Circuit Judges, BRIGHT, Senior Circuit Judge.
The Honorable Donald R. Ross was an active judge of the Eighth Circuit on the date this case was submitted, but took senior status on June 13, 1987, before the decision was filed.
WOLLMAN, Circuit Judge.
Appellant, T.J. Hayes, was found guilty by a jury of capital felony murder, Ark. Stat.Ann. § 41-1501 (Repl.1977). The jury recommended a sentence of death by electrocution. The conviction was reversed by the Arkansas Supreme Court, and a new trial was ordered on the ground that the trial court should have allowed defense counsel access to records of Hayes’ court-ordered psychiatric and psychological examinations. Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). Hayes was retried and again was found guilty of capital murder and sentenced to death. The Arkansas Supreme Court upheld the conviction and death sentence, Hayes v. State, 278 Ark. 211, 645 S.W.2d 662, cert. denied, 464 U.S. 865, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983), and subsequently denied his petition for a stay of execution and for post-conviction relief. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984).
Hayes then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Arkansas. After an evidentiary hearing, the district court held that Hayes’ petition should be denied. We affirm.
At about 2:30 on the afternoon of July 16, 1979, Hayes and his girlfriend, Catherine Carter, both black, departed from Ms. Carter’s parents’ home in a Yellow Cab, bearing the number 11, driven by J.W. Lunsford, a white male. A security guard for the Arkansas Department of Corrections noticed Yellow Cab number 11, driven by a white male and carrying two black passengers, one male and one female, in the backseat, proceeding slowly around a curve on Princeton Pike that afternoon. Approximately one hour later, this witness observed Yellow Cab number 11, this time occupied only by the driver, the black male the witness had earlier seen in the backseat of the cab, returning from the direction it had earlier proceeded on Princeton Pike. The witness made an in-court identification of Hayes as the driver on the return trip.
At about 4:15 on the afternoon of July 16, 1979, Hayes walked into the local county jail and stated that he thought he had just killed his girlfriend. Hayes then led two officers to the place where the bodies were located and to the place where he had hidden the cab. At about 7:30 that evening, after being informed once again of his Miranda rights, Hayes signed a waiver form and made a statement to the officers. Hayes told the officers that he had directed the cabdriver to drive to a location on Princeton Pike. Once there, Hayes and Ms. Carter got out of the cab. Hayes then brandished a revolver and told Lunsford to go back to town. Lunsford, however, advanced toward Hayes in an apparent attempt to disarm him. Hayes then shot Lunsford twice, killing him. The first shot struck Lunsford in the temple; the second entered behind his left ear. Hayes then broke a window in an abandoned house on the property. He and Ms. Carter then entered the house. Inside, Ms. Carter told Hayes that she would not be going out with him anymore because she had found someone else that she was interested in, whereupon Hayes shot Ms. Carter twice, killing her. After first attempting to burn Ms. Carter’s body by setting fire to her clothing and a window curtain, Hayes then left the scene in the cab, which he later hid in a wooded area.
I.
Hayes’ arrest for the two murders on July 16, 1979, triggered the speedy trial provisions of Ark.R.Crim.P. 28.1(b) and 28.-2(a) (Repl.1977). At the time of Hayes’ arrest, Rule 28.1(b) provided:
Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
Rule 28.2(a) provides:
The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.
Rule 28.1 was known as the “terms of court” rule. According to Rule 28.1(a), defendants not incarcerated pending trial were to be tried within three terms of court, excluding periods of necessary delay and the term in which the arrest occurred. See Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). Incarcerated persons were subject to a special shorter two terms of court rule. See Ark.R.Crim.P. 28.1(a) (Repl.1977). Under Rule 28.2(a), the time for trial began running for Hayes at the time of his arrest.
On July 1, 1980, while Hayes was awaiting trial, new speedy trial rules promulgated by the Arkansas Supreme Court took effect. These rules changed the method of calculation from terms of court to months — eighteen months normally, and twelve months for persons incarcerated in the penitentiary. See Ark.R.Crim.P. 28.1. The provision relevant to this case reads as follows:
Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
Ark.R.Crim.P. 28.1(b). The period of time from Hayes’ arrest to the time of his trial amounted to approximately eighteen months and three weeks. There were between three to five months of excluded periods. Consequently, Hayes was tried within the time allotted under the “terms of court” approach, but not within the time required under the speedy trial rules.
When the new rules were promulgated, Arkansas Supreme Court stated in a per curiam order:
The time for trial of all defendants that has commenced to run pursuant to Rule 28.2 prior to July 1, 1980, shall continue to be governed by Article VIII as it existed prior to this amendment, but the time for trial of all defendants that commences to run pursuant to Rule 28.2 (not changed by this amendment) on July 1, 1980, or thereafter, shall be governed by this amendment of Article VIII * * *.
In re Rules of Criminal Procedure, 269 Ark. 988 (1980) (per curiam). Judging by the plain language of the order, it seems clear that the new speedy trial rules were intended to be inapplicable to defendants such as Hayes, whose time for trial had already begun to run.
Hayes argues, however, that the Arkansas Supreme Court’s subsequent decision in Jennings v. State, 276 Ark. 217, 633 S.W. 2d 373, cert. denied, 459 U.S. 862, 103 S.Ct. 137, 74 L.Ed.2d 117 (1982), stands for the proposition that the new rules are to be applied to all trials occurring after July 1, 1980. Hayes contends that the failure of the Arkansas courts to apply the so-called plain language of Jennings to his case was a violation of his rights of due process and equal protection. We do not agree.
It is true that the court in Jennings stated that the speedy trial rules could “be validly applied to all criminal trials commencing on or after July 1, 1980.” 633 S.W.2d at 374. Reading this language out of context, it might appear that the Arkansas Supreme Court actually meant to say that the new speedy trial rules should apply to defendants whose first trial was held after July 1, 1980. There was no mention in Jennings, however, that the Arkansas Supreme Court intended to overrule its per curiam order, and we see no reason why the Jennings case should be interpreted as if it did. The narrow holding of Jennings is that the new speedy trial rules are to be applied to all criminal trials in which the arrest occurred on or after July 1, 1980. Common sense dictates that the Jennings case should be read to stand for that proposition, and not for the broad holding that Hayes suggests. We conclude, therefore, that the application of the term of courts rule to Hayes instead of the new speedy trial rules was not a violation of Hayes’ due process or equal protection rights.
II.
Hayes contends that he was denied his due process rights during the penalty phase of his trial when the jury imposed the death sentence based upon a finding of a single aggravating circumstance. He argues that the statute, Ark.Stat.Ann. § 41-1302 (Repl.1977), requires proof of more than one aggravating circumstance. Though the statute refers to “aggravating circumstances,” the Arkansas Supreme Court held in Hayes’ post-conviction relief appeal that the statute “requires only that the jury unanimously find at least one of the aggravating circumstances set forth in § 41-1302 to exist before it can impose the death penalty.” Hayes v. State, 280 Ark. at 5094, 660 S.W.2d at 654. The court based its determination on Ark.Stat.Ann. § 1-201 (Repl.1977), which states that “[w]henever, in any statute, words importing the plural number are used in describing or referring to any matter, parties or persons, any single matter, party or person shall be deemed to be included, although distributive words may not be used.” The interpretation of state law is a matter for the state courts, and there is nothing in the Arkansas Supreme Court’s ruling on this issue that gives rise to a due process violation.
III.
Hayes contends that he was penalized for exercising his right to trial and for his inability to consummate an intended plea of guilty. Prior to trial, the prosecution had offered on at least two occasions to permit a sentence of life without parole in return for a plea of guilty. No agreement was ever consummated. Hayes now argues that because the prosecution sought the death penalty at trial after a previous offer of life without parole, he was penalized for exercising his right to trial. We see no reason, however, why the prosecution cannot seek a higher sentence if a plea offer is not accepted — no matter whether the punishment ultimately sought is the death penalty or some lesser sentence. Cf. Ricketts v. Adamson, — U.S. -, 107 S.Ct. 2680, 2685-87, 97 L.Ed.2d 1 (1987) (state not foreclosed from reinstating first-degree murder charge after defendant failed to fulfill plea bargain resulting in second-degree murder charge).
Hayes also submits that he was penalized for his inability to consummate a guilty plea. He appears to suggest that the trial judge should have done more to ensure that the plea agreement was consummated. As we read the record, however, the trial court stood ready to accept Hayes’ guilty plea. It was only after Hayes manifested ambivalence about pleading guilty that the trial judge stated that he would not accept a guilty plea that was less than voluntarily tendered and suggested to Hayes that he might want to reconsider his decision to forego a jury trial. Hayes has not established that his decision to proceed to trial was not voluntarily made.
IV.
Hayes alleges that the district court erred in failing to grant him a new trial or, alternatively, a new sentencing hearing as a result of his trial counsel’s ineffective performance at various stages of the trial.
The test for determining effective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the Court stated that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064. More specifically, the Court stated that in order to establish ineffectiveness of counsel, a defendant must prove two things. First, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Second, the defendant must also establish “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. at 2068.
A.
Hayes first contends that his attorney was ineffective for not requesting a jury instruction on voluntary intoxication as a defense. He asserts that such an instruction would have been appropriate in light of the evidence presented at trial and in view of Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978), which recognizes self-induced intoxication as a defense if it causes the defendant to be incapable of forming the intent necessary for the crime.
We review this claim of alleged ineffectiveness in the light of the fact that the evidence of Hayes’ intoxication on the day in question was minimal at best. Hayes told the police that he had been drinking all day, having started drinking at 8:30 on the morning of July 16. The only evidence to support this statement was the testimony of Hayes’ sister, who testified that she had seen Hayes drinking a bottle of Chámpale at about 1:30 on the afternoon of July 16. Ms. Carter’s parents, however, testified that Hayes did not appear to be intoxicated when he left their home with Ms. Carter in the cab that afternoon. Indeed, they both testified that they detected no odor of alcohol on his breath. One of Hayes’ cousins testified that Hayes did not appear to be intoxicated when she saw him at his parents’ home during the lunch hour on July 16. The several officers who questioned Hayes and accompanied him to the scene of the killings all testified that they detected no odor of alcohol on Hayes’ breath and that he did not appear to be intoxicated. Hayes’ slowness in responding to questioning did prompt one of the officers to ask him if he had been drinking, but other than Hayes’ affirmative answer to that question there was no outward manifestation by way of odor of alcohol, slurred speech, or staggering gait to so indicate. In a word, then, there was minimal evidence to support the giving of a voluntary intoxication instruction.
Although defense counsel did not offer or request a specific instruction on the defense of voluntary intoxication, the issue of voluntary intoxication was in fact presented to the jury. Hayes’ attorney presented evidence on the issue of Hayes’ state of mind on the day of the crime (including evidence of Hayes’ alleged intoxication); and in his closing argument he argued the issue of Hayes’ intoxication and state of confusion. As the district court recognized, trial counsel argued voluntary intoxication as fully as if the instruction had been given. Furthermore, the jury instructions that were given on specific intent, premeditation, and the State’s burden of proof did not in any way negate the legitimacy of counsel’s argument. Instead, such instructions made his argument both relevant and proper. We therefore find that Hayes has failed to show that there is a reasonable probability that the outcome would have been different if a specific instruction on voluntary intoxication had been given.
B.
Hayes asserts that he was denied the effective assistance of counsel during jury voir dire in that his trial counsel (1) should have made a motion for sequestered voir dire, (2) should have engaged in more extensive questioning of the prospective jurors after his peremptory challenges had been exhausted, and (3) should have objected when a prospective juror announced in the presence of the other prospective jurors that he had been a spectator at Hayes’ first trial. We agree with the district court, however, that defense counsel’s handling of the voir dire represented an exercise of judgment that did not constitute ineffective assistance of counsel and that Hayes has not established that he suffered any prejudice as a result of counsel’s performance during voir dire.
C.
Hayes also alleges that his counsel was ineffective for failing to object in all but one instance to certain remarks made by the prosecuting attorney during opening and closing arguments at the guilt and penalty phases of the trial. Hayes points to several instances where the prosecution made references as to the character and situation of the victims. In his opening remarks, the prosecutor referred to the victims by stating:
Their voices won’t be heard with the exception of the fact that Mr. Robinson and I will be presenting our case, and hopefully their voices will be heard through our witnesses. But in the final analysis you will be their voices.
He went on to state:
There is just one other point that I want to bring up. A lot of times in the summer time there is an awfully pretty sunset, awfully pretty. These two people never saw it, they never saw it and never will.
In closing argument in the guilt phase, the prosecutor referred to the victims as follows:
That was Mr. Lunsford’s first day on the job. Brand new. First day on the job trying to support his family, and it ends so abruptly and horribly for him. First day on the job, and look what happens.
Catherine Carter, who spent three years at the Pine Bluff Nursing Home, helping people, caring about people, loving, supporting them. And she gets a better job and she moves up to help her mother and her father and her 14-year-old son who is going to graduate from high school next year who doesn’t have a mother now and hasn’t had in two and a half years — almost three years. She gets that better job and been [sic] working there months, and look how it ends for her.
In his closing argument at the guilt phase, addressing certain of the jurors by name, the prosecutor stated:
Put yourself in [Catherine Carter’s] shoes. Think about it when you get in the jury room. Think about it Mrs. Scott, you’ve got four children. [Catherine Carter’s mother] — she only has four children. Her baby daughter is gone. Think about it Mrs. Burns when you get back in the jury room of the pain that [Catherine Carter] must have felt and the agony and the terror and the horror because she’s got blood over her; she’s partially clothed — all of her clothing comes off. She’s humiliated standing in front of this man that she thought cared about her and she probably cared about, and she’s bleeding all over the place.
Also during closing argument at the guilt phase, the prosecutor at one point turned from the lectern and pointed at Hayes. Hayes then spontaneously exclaimed, “Get your finger out of my face.” The prosecutor in turn referred to that exclamation as an example of Hayes’ violent tendencies. Hayes’ attorney objected, but obtained no ruling from the court and chose not to pursue the matter further.
During his rebuttal argument at the penalty phase, the prosecutor made references to portions of the Bible that suggested the propriety of putting a person to death for killing another, this in apparent response to that portion of defense counsel’s argument in which he quoted the “Forgive us our trespasses” language of the Lord’s Prayer.
Although we do not condone the prosecutor’s remarks, we nevertheless conclude that the failure of Hayes’ trial counsel to object to these arguments did not constitute ineffective assistance of counsel under the Strickland standard. At the hearing below, Hayes’ trial counsel testified that he had made a considered decision not to object during the prosecutor’s opening and closing remarks in the hope that by doing so he could establish some sort of relationship with the jury. Counsel believed that any objection in open court during argument might have prejudiced the jury against both his client and himself. We agree with the district court that this was not an unreasonable decision on counsel’s part. We also conclude that Hayes has not demonstrated that there is a reasonable probability that, but for counsel’s failure to object to these remarks, the result of the guilt or penalty phases of the proceeding would have been different.
Hayes also contends that the prosecutor’s remarks were manipulative and therefore constituted reversible error under the Court’s reasoning in Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). In Darden, the Court stated that “[t]he relevant question is whether the prosecutor’s comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Id. 106 S.Ct. at 2472 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). Our- review of the record reveals that there was no manipulation or misstatement of the evidence by the prosecution, nor did the statements “implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” Id. Moreover, the prosecutor’s remarks were not such that they tended to diminish the jury’s view of their responsibility at trial, as occurred in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Finally, the jury was instructed by the trial court that the opening and closing remarks were not to be considered as evidence, and the overwhelming nature of the evidence at the guilt phase “reduced the likelihood that the jury’s decision was influenced by argument.” Darden, 106 S.Ct. at 2472-73. Consequently, we cannot say that the prosecutor’s statements infected the trial with such a degree of unfairness as to result in a denial of due process.
In reaching our decision on this issue, we have considered the Supreme Court’s recent decision in Booth v. Maryland, — U.S. -, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). There, the Court held unconstitutional a state statute that required that the jury be informed of the effect the killing has had on the victim’s family — a so-called victim impact statement — either by means of in-court testimony from family members or by reading to the jury the victim impact statement. In Booth’s case, the latter procedure was followed. The Court held that the impact the killing has had on the victim’s family is not a proper sentencing consideration in a capital case.
[T]he formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. * * * The admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.
Id. 107 S.Ct. at 2536 (footnote omitted).
We conclude that the holding in Booth does not require a reversal in the present case. Here, the prosecutor’s comments did not constitute a state-sanctioned submission of victim impact testimony as a part of the state’s case. As stated above, the jury was instructed that the arguments of counsel did not constitute evidence. Thus the consideration that formed the basis of the Court’s holding in Booth — the state-imposed requirement that the jury consider the impact of the crime on the victim’s family — was absent. Beyond that fundamental distinction between Booth and this case, we note that however objectionable the prosecutor’s references may have been, they did not approach in length or detail the victim impact statement in Booth. See id. 107 S.Ct. at 2536 (Appendix to Opinion of the Court).
Accordingly, we hold that Booth does not mandate reversal of Hayes’ conviction on the basis of the prosecutor’s references to the suffering and loss experienced by the victims and their families as a result of the killings.
D.
Hayes contends that this court’s decision in Woodard v. Sargent, 806 F.2d 153 (8th Cir.1986), requires reversal of his death sentence based upon counsel’s failure to introduce mitigation evidence. We do not agree.
In Woodard, defense counsel failed to request a jury instruction on the newly-enacted statutory mitigating circumstance of lack of a prior history of significant criminal activity and failed to insure that the checklist of aggravating and mitigating circumstances submitted to the jury included this factor as a possible mitigating circumstance. Id. at 157. The court concluded that counsel’s failure to seek the inclusion of this mitigating circumstance fell below the threshold of reasonably competent assistance inasmuch as finding of a mitigating circumstance should have been an important objective in Woodard’s case. Id. Because the court was unable to conceive of any possible tactical reason for counsel’s failure to make the request, the death sentence was set aside as constitutionally invalid. Id.
We conclude that Woodard is inapplicable to the facts before us. First, the checklist that was submitted to the jury included the following mitigating circumstances:
1. The capital murder was committed while T.J. Hayes was under extreme mental or emotional disturbance.
3. The capital murder was committed while the capacity of T.J. Hayes to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect, intoxication or drug abuse.
In his argument to the jury in the penalty phase, defense counsel referred to the testimony the jury had heard regarding Hayes’ treatment for alcoholism and asked that the jury consider this as a mitigating circumstance, specifically referring to paragraph three of the checklist set forth above.
Second, as set forth below, we agree with the trial court that defense counsel made a reasonable decision in concluding that the introduction of the medical and psychological reports that Hayes contends constituted mitigating evidence would have harmed Hayes more than they would have helped him.
1.
At the outset of the penalty phase of the trial, the state introduced certified copies of judgments of conviction showing that on October 6, 1972, Hayes had pleaded guilty to three felony charges: two charges of Shooting At With Intent To Kill Or Wound, and one charge of Second Degree Murder (reduced from First Degree Murder). The state then rested.
When asked by the trial court whether he wished to present evidence of mitigating circumstances, defense counsel replied in the affirmative and attempted to call Hayes’ sister to the stand, whereupon there was a pause in the proceedings while defense counsel conferred with Hayes at counsel table. Defense counsel then stated that he did not wish the witness to testify. There then followed an in-chambers conference at which the following record was made:
[DEFENSE COUNSEL]: For the record, during the aggravating and mitigating phase of the trial I did attempt to call the defendant’s sister, Rebertha Hilton, to the stand to testify, and the defendant requested that I not do so there in open Court.
THE COURT: The Court will confirm that as a fact. As a matter of fact the witness was called and did take the stand, and the defendant very forcefully demanded that she be not permitted to testify.
Upon returning to the courtroom, defense counsel stated that he had no other evidence of mitigating circumstances that he wished to present.
We conclude that defense counsel should not be faulted for honoring Hayes’ desire that his sister not be called to testify at the penalty phase. Defense counsel testified at the habeas corpus hearing that Hayes had made known to him prior to trial that he did not want any family members called to testify on his behalf. As indicated above, Hayes forcefully renewed this wish when his sister was called to the stand at the penalty phase. Defense counsel testified that he believed that Hayes was competent to make this decision. Indeed, counsel mentioned on more than one occasion during the hearing that Hayes had been a very difficult, demanding, authoritative client, one who had told counsel what he wanted done on his behalf.
2.
Defense counsel called two staff members of the Southeast Arkansas Mental Health Center at the guilt phase of the trial. One of these witnesses testified that Hayes had been referred for counseling by his probation officer in October of 1978 and that Hayes continued some individual counseling for alcohol abuse from October 16, 1978, to May 10, 1979. The other witness, Dr. William James, medical director at the Southeast Arkansas Mental Health Center, testified that he had had a brief interview with Hayes on May 30, 1979, following Hayes’ complaints of anxiety and insomnia. Hayes related to Dr. James that he had been experiencing a good deal of nervousness since breaking up with his girlfriend several days earlier. He also told Dr. Hayes that he had been worried about his elderly parents’ intellectual deterioration over the past several months. Hayes also stated that he had been having suicidal thoughts. Dr. James prescribed an antidepressant for Hayes after Hayes stated that he had not had a drink of alcohol in seven years. Hayes did not return for the followup appointment that Dr. James had scheduled with him for June 30, 1979.
Following Dr. James’ testimony, defense counsel introduced as a joint exhibit a letter from a psychiatrist on the staff of the state Division of Mental Health Services containing the following diagnosis of Hayes’ physical and mental state: (1) without psychosis, (2) alcohol addiction, and (3) antisocial personality, severe.
The medical and psychological reports available to defense counsel included a psychiatric evaluation by Dr. Gregory S. Kru-lin, a consulting psychiatrist at the Southeast Arkansas Mental Health Center. Dr. Krulin’s report states, among other things, that Hayes had told him that on the day of the killings a man, whom Hayes refused to identify, had told Hayes that he, the unidentified man, had killed Ms. Carter and the cabdriver. The unidentified man told Hayes that he, Hayes, was “to take the rap” and that he should turn himself in to the police, and that if Hayes did not take the rap his mother would be killed. Dr. Krulin’s report notes that Hayes had described his history of alcohol abuse. The report concludes with the notation that “[t]he patient also gives the history compatible with chronic alcohol abuse and adjustment reaction secondary to being in prison.”
Other psychological reports in the record indicate that Hayes obtained a full scale IQ score of eighty-one on the Wechsler Adult Intelligence Scale, which falls within the dull-normal range of intellectual ability. One of the psychological evaluation reports states in part that:
Personality testing suggests that Mr. Hayes is an impulsive individual who is capable of becoming aggressive. He seems easily upset; possibly with the slightest provocation. A low tolerance for frustration and stress may be exhibited in a history of aggressive behavior. Mr. Hayes’ behavior may also reflect his limited social skills. Yet, he likes to feel he is a source of power and influence; someone to be contended with. He is likely to have trouble analyzing situations and may misinterpret others’ intentions. He does not appear to empathize with people; being somewhat distant.
The psychological and medical reports also refer to an incident in which Hayes had shot a man while Hayes was attempting to shoot at his, Hayes’, wife.
3.
Defense counsel’s decision not to present as mitigating evidence Hayes’ medical and psychological reports presents a troublesome issue. When viewed in the light of Strickland v. Washington, Darden v. Wainwright, and Burger v. Kemp, — U.S. -, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), counsel’s decision not to submit those reports cannot be characterized as constituting ineffective assistance of counsel.
Strickland teaches us that
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. * * * A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). The Court held that counsel’s decision not to seek more character or psychological evidence than was already available to him and to rely solely upon the plea colloquy alone as mitigation evidence at the sentencing hearing represented the exercise of reasonable professional judgment.
In Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986),
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_appel2_7_2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Eric A. LINDGREN and Nancy Lindgren, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 79-3611.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 6, 1981.
Decided Jan. 15, 1982.
Gary W. Nevers, Hodge & Skoog, Los Angeles, Cal., for plaintiffs-appellants.
Michael Wolfson, Asst. U. S. Atty., Los Angeles, Cal., for defendant-appellee.
Before BROWNING and NELSON, Circuit Judges, and MUECKE, District Judge.
Honorable C. A. Muecke, Chief Judge, United States District Court for the District of Arizona, sitting by designation.
MUECKE, District Judge:
On September 28, 1974, plaintiff Eric A. Lindgren was water skiing on a section of the Colorado River, south of Parker Dam. While making a run, plaintiff’s ski struck the river bottom, throwing plaintiff forward and causing him serious physical injury-
Plaintiffs filed their First Amended Complaint on February 26, 1979. The complaint named the United States as defendant and sought damages pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq., for personal injury, negligent infliction of emotional distress and loss of consortium. Plaintiff’s complaint alleged that the U.S. Bureau of Reclamation, the agency in control at Parker Dam, had artificially altered the flow, the water level and the riverbed configuration of the Colorado River, and had thereby created a dangerous condition for users of the river. Plaintiffs further alleged that the Bureau had knowledge of the recreational use of the river and of the hazards posed to such users by the Bureau’s alteration; it was alleged that despite this knowledge, the Bureau had failed to post any warnings as to the dangerous condition of the river.
On May 25, 1979, the United States moved for summary judgment. The Government’s motion was based, in part, on the discretionary function exemption to the FTCA, 28 U.S.C. § 2680(a), which provides in pertinent part:
The provisions of this Chapter and Section 1346(b) of this title shall not apply to — (a) Any claim . .. based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
On August 9,1979, the trial court entered summary judgment in the Government’s favor. In so doing, the Court held that the operation of Parker Dam constituted a discretionary activity within the meaning of the above statute and cited Spillway Marina, Inc. v. United States, 445 F.2d 876 (10th Cir. 1971).
Plaintiffs do not contest the trial court’s conclusion as to the discretionary character of dam operations. Their sole contention is that the Government’s failure to warn was not such an activity, and therefore that the trial court erred in entering summary judgment in the Government’s favor.
It may well be that the trial court’s ultimate conclusion as to the discretionary character of the Government’s failure-to-warn was correct. It may also be that even if the Government’s failure is found non-discretionary, the trial court will conclude that under the present circumstances, the Government was under no duty to warn. The problem with the Court’s ruling was its assumption that simply because the hazard which allegedly caused plaintiff’s injury was created through the exercise of a discretionary function, the Government’s failure-to-warn of the hazard was also discretionary. The trial court’s per-se approach to the issue was in error.
The leading decision interpreting the discretionary function exemption is Daleh- ite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). In that case, the Court established that the purpose of the exemption was to permit the Government to make planning-level decisions without fear of suit. Id. at 32, 73 S.Ct. at 966. According to the Court,
one only need read § 2680 in its entirety to conclude that the Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions.
Id. at 32, 73 S.Ct. at 966. Although the Daiehite Court declined to define the outer limits of “discretion”, it did go so far as to hold that discretion
includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of § 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails, to perform a causal step, each action or non action being directed by the superior, exercising, perhaps abusing, discretion.
Id. at 35-36, 73 S.Ct. 968. (Footnote omitted.)
Although Daiehite remains an important statement of the policy behind the discretionary function exemption, subsequent decisions by the Supreme Court and various circuit courts have operated to narrow Da-iehite ’s definition of the term “discretion.” See e.g., Payton v. United States, 636 F.2d 132, 137-38 (5th Cir. 1981); Aretz v. United States, 604 F.2d 417, 427 (5th Cir. 1979); Bernitsky v. United States, 620 F.2d 948, 951 (3d Cir. 1980).
The prevailing test in the Ninth Circuit asks whether the act or omission occurred on the “planning level” of governmental activity or on the “operational level:”
Not every discretionary act is exempt. Obviously, attending to many day-to-day details of management involves decisions and thus some element of discretion. The exercise of this kind of discretion does not fall within the discretionary function exemption. The distinction generally made in the application of the discretionary function exemption is between those decisions which are made on a policy or planning level, as opposed to those made on an operational level.
Thompson v. United States, 592 F.2d 1104, 1111 (9th Cir. 1979). See also Driscoll v. United States, 525 F.2d 136, 138 (9th Cir. 1975). In addition to examining the level at which the act/omission occurred, this Court has also considered the ability of the judiciary to evaluate the agencies’ act/omission and whether judicial evaluation would impair the effective administration of the Government. See Driscoll v. United States, supra, at 138.
Plaintiffs cite several cases for the proposition that if the. exercise of a discretionary function creates or facilitates a hazard, the Government’s duty to warn can be actionable — notwithstanding the discretionary character of the hazard-causing act/omission. See e.g., Smith v. United States, 546 F.2d 872 (10th Cir. 1976) (Yellowstone Park visitor falls into thermal pool: decision to open park and decision whether to leave an area of park undeveloped were discretionary, but “the decision as to the posting of warning signs in the area must be judged separately .... ”); United States v. State of Washington, 351 F.2d 913 (9th Cir. 1965) (Aircraft hits unmarked electrical power line: even assuming location and erection of line was discretionary function, failure to provide suitable warning device was actionable); United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir. 1964), cert. dism. sub nom. United Air Lines, Inc. v. United States, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964) (Air Force jet hits commercial airliner: under circumstances, failure to warn airliner of hazards created by instrument landing procedure being used by jet was actionable); United States v. White, 211 F.2d 79 (9th Cir. 1954) (Business invitee injured by unexploded shell while collecting scrap metal on Army firing range: assuming that decision not to undertake removal of hidden dangers was discretionary, the Government’s failure to warn of the known danger the invitee was likely to encounter was not); Everitt v. United States, 204 F.Supp. 20 (S.D.Tex.1962) (Boat accident: placement of log piles in bay for surveying purpose was discretionary, but failure to discover submerged pilings and warn thereof was not); Hernandez v. United States, 112 F.Supp. 369 (D.Hawaii 1953) (Vehicle accident: Government’s decision to erect road block was discretionary, but failure to adequately warn travellers was not); Worley v. United States, 119 F.Supp. 719 (D.Ore.1952) (Injury to hunter: Government’s decision to use coyote traps was discretionary, but failure to warn humans of danger was not).
The Government would distinguish plaintiffs’ cases on the basis that they did not involve dam operations. Under the Government’s theory, pursuant to the FTCA, Congress intended to place dam operations on a higher level than other “discretionary functions.” Failure to warn of hazards created by dam operations would never be actionable; it would always assume the discretionary character of the hazard-causing activity.
In support of its contentions, the Government relies on the following portion of the House Report of the Committee that adopted § 2680(a):
This is a highly important exception, intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of an authorized activity such as a flood-control or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid.
H.R.Rep.No. 2245, 77th Cong., 2d Sess., p. 10, quoted in Dalehite v. United States, 346 U.S. at 29 n. 21, 73 S.Ct. at 964. (Emphasis added). The Government also relies on several water cases which refer to the above language. See Wright v. United States, 568 F.2d 153 (10th Cir. 1978) (No liability to plaintiffs whose car crashed into creek: Government’s act of assisting state with planning and construction of bridge was discretionary, insulating it from claim that negligent design, construction and placement caused bridge to wash out); Konecny v. United States, 388 F.2d 59 (8th Cir. 1967) (Government not liable for “taking” plaintiff’s shoreline property by raising the water level of lake); Coates v. United States, 181 F.2d 816 (8th Cir. 1950) (Government not liable for damage to farmer’s land by changing flow of river to improve transportation waterway).
While it is clear from the above history that Congress intended dam operations to fall within the scope of the discretionary function exception, we find no indication that dam operations are elevated to a position different from any other discretionary function.
The cases cited by the Government suggest nothing to the contrary. None involved allegations of failure to warn. They simply establish what plaintiffs have already conceded — that the Government’s regulation of the river was a discretionary function.
The Government’s most persuasive case is Spillway Marina, Inc. v. United States, 330 F.Supp. 611 (D.Kan.1970), aff’d, 445 F.2d 876 (10th Cir. 1971). But that case too is distinguishable.
Plaintiff in Spillway had a state concession to operate a marina on the banks of a federal reservoir. In the fall of 1966, it became necessary for the Corps of Engineers to lower the water level of the reservoir to maintain the navigational quality of the Missouri River and to accomplish some construction and repair work. The marina’s complaint alleged that this drawdown damaged its dock facilities and that it was done without authority, without warning, and in violation of the marina’s concession agreement.
The district court held that the Government’s decision to lower the water level was clearly a discretionary function. 330 F.Supp. at 612-13. In response to plaintiff’s argument that it was lack of notice, rather than the actual lowering of the water level, that caused the damage, the court stressed that notice would be highly impractical:
This position is untenable. The decision of when to lower the reservoir, and how much to lower it, is one which depends upon a great number of variable factors, such as navigation conditions and needs, irrigation requirements, rainfall, etc. This decision must be made and altered from day to day, if not oftener. It would be inaccurate, if not impossible, to predict what action might be taken at some future date. Likewise, it would be equally difficult to predict the water level of the reservoir at some future date. Further to argue whether the act of the lowering of the water level, or the failure of specific notice thereof, is the negligent act, is an exercise in semantics, since both are a part of the total conduct within the statutory connotation of a discretionary function.
Id. at 613.
On appeal to the Tenth Circuit, plaintiff withdrew his argument that the drawdown was unauthorized and placed sole reliance on his argument that the Government was negligent for failing to warn that the draw-down would occur. The Tenth Circuit affirmed, emphasizing that the decision when to release and store water required discretion, and reasoning that “the argument of Spillway goes to the manner of exercise of a discretionary function.” 445 F.2d at 878.
This Court rejects the Government’s reading of Spillway as standing for the proposition that, in the dam context, all failure to warn assumes the discretionary cloak of the operation itself. While it is indeed possible that a particular failure to warn might be discretionary, each failure must be analyzed separately.
In Spillway, the exercise of discretion (i.e., the lowering of the water level) was primarily responsible for the damage for which plaintiff brought suit. In the case before this Court, the discretionary act did not produce any direct damage — it produced a hazard. The damage required an act on plaintiff’s part (water skiing). In this respect, the Spillway case is more aligned with the cases cited by the Government that did not involve failure to warn. This case, however, is more analogous to the authority relied on by plaintiff. E.g., White v. United States, supra.
To permit recovery in a Spillway situation would require the Government to analyze each act of discretion to determine (1) whether it would damage anyone, (2) whether a warning would reduce that damage, and (3) whether warnings would be feasible under the circumstances. To oblige the Government to ask these questions before each discretionary act would seem to constitute a great interference with Governmental administration. Under the facts of Spillway, for example, the Government would have had to warn the marina, and all other persons who would suffer damage from a lowering of the water level, each time the water level was lowered.
In contrast, the “hazard” cases often require only one-time warnings, and are therefore not as administratively burdensome. See e.g., Smith v. United States, supra; United States v. State of Washington, supra. In the present case, for example, plaintiff would have the Government post signs informing the public that the Government is causing the water level to fluctuate without notice, and that the public should beware of dangers that might be caused thereby. The Government is not, as in Spillway, being asked to notify the public each time it changes the water level in a manner so as to threaten damage.
Conclusion
This matter should be remanded to the trial court for its consideration whether, under the prevailing test in this Circuit, the Government’s failure to warn was discretionary. See Thompson v. United States, supra; Driscoll v. United States, supra.
It must be remembered that the question whether the discretionary function exemption applies is simply one of subject matter jurisdiction. See Smith v. United States, supra, at 875-76; United States v. White, supra, at 82, note 3. A finding that the Government cannot use the exemption in no way affects the questions (1) whether the Government’s failure to post signs constituted negligence, see Payton v. United States, supra, at 144, or (2) whether the Government’s failure is actionable under state law, as required by the FTCA. See e.g., United Scottish Ins. Co. v. United States, supra; Phillips v. United States, 590 F.2d 297 (9th Cir. 1979).
REMANDED for further consideration in accordance with the views expressed in this Opinion.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
Herman J. JONES, as Administrator of the Estate of Lawrence P. Jones, Deceased, Herman J. Jones and Genevieve Jones, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. UNITED STATES of America, Third-Party Plaintiff-Appellant, v. HAWKES AMBULANCE SERVICE, INC., Third-Party Defendant-Appellee. HAWKES AMBULANCE SERVICE, INC, Fourth-Party Plaintiff-Appellant, v. METROPOLITAN EQUIPMENT CORPORATION and Superior Coach Corporation, Fourth-Party Defendants-Appel-lees.
No. 345, Docket 31883.
United States Court of Appeals Second Circuit.
Argued March 20, 1968.
Decided Sept. 4, 1968.
Lionel Alan Marks, New York City, for plaintiffs-appellants; David M. Pal-ley, New York City, on the brief.
Lawrence W. Schilling, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. and Alan G. Blumberg, Asst. U. S. Atty., Southern District of New York on the brief), for defendant-appellee and third-party plaintiff-appellant.
Raymond C. Green, New York City (Joseph M. Soviero, New York City, on the brief), for third-party defendant-ap-pellee-appellant, Hawkes Ambulance Service, Inc.
Edward L. Milde and James M. Giller-an, New York City, on the brief for fourth-party defendant-appellee, Metropolitan Equipment Corp.
Sheila L. Birnbaum, New York City (Emile Z. Berman, A. Harold Frost and Howard Lester, New York City, on the brief), for fourth-party defendants-ap-pellees, Superior Coach Corporation.
Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and BLUMENFELD, District Judge.
Of the District of Connecticut, sitting by designation.
LUMBARD, Chief Judge.
Plaintiffs appeal from a judgment dismissing the complaint after a nonjury trial before Judge Weinfeld in the Southern District of New York. The action was brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, to recover damages for the alleged wrongful death of Lawrence Jones, an employee of Hawkes Ambulance Service, who sustained fatal injuries when he fell from a moving ambulance on March 25, 1963. At the time of the accident Hawkes was rendering ambulance services for the Veterans Administration Hospital in New York City, and Jones was acting as an ambulance attendant in transporting Paul Hefko, a mental patient of the Veterans Administration, from New York City to the Veterans Administration Hospital at North-port, Long Island. Judge Weinfeld found that the United States was negligent in allowing the trip to be undertaken without a trained, experienced ambulance attendant, but that the plaintiffs had failed to establish that this negligence was the proximate cause of Jones’ death. He therefore dismissed the complaint. He also dismissed the third-party complaint of the United States against Hawkes and the fourth-party complaint of Hawkes against Superior Coach Corporation, the manufacturer of the ambulance, and Metropolitan Equipment Corporation, its distributor. Both the United States and Hawkes have taken protective appeals from the portion of the judgment dismissing their respective complaints. For the reasons stated below, we reverse the judgment of the district court and remand.
The facts, stated in Judge Weinfeld’s opinion, 272 F.Supp. 679, are as follows. On March 25, 1963 at about 10:00 A.M., the patient, Paul Hefko, who had a history of mental illness and violent behavior, applied for treatment at the Veterans Administration Hospital at 24th Street and First Avenue in New York City. He was placed in an observation room awaiting examination until about 1:00 P.M. As he was being escorted to the examination, Hefko assaulted the hospital attendant escorting him and attempted to escape. The examining psychiatrist, Dr. Milton Reisner, observing that Hefko was potentially dangerous, asked for a second experienced attendant to be present at the examination. While being watched by the two attendants, Hefko again became violent and attempted to escape. The two attendants subdued him and held him down while a nurse, on Dr. Reisner’s instructions, gave Hefko an injection of 50 milligrams of Thorazine, intended to calm and tranquilize Hefko for a period of three or four hours. This occurred at about 1:30 P.M. and at about 2:00 P.M. Dr. Reisner completed his examination. He diagnosed that Hefko was suffering from a schizophrenic reaction, chronic paranoid type with acute exacerbation, and directed Hefko’s immediate transfer to the Veterans Administration Hospital at Northport, Long Island, about 40 miles distant from New York City. Dr. Reisner testified that the administration of Thorazine was not intended to be a restraint during the transfer of Hefko to Northport. However, in his judgment the injection plus the service of one qualified ambulance attendant to accompany Hefko was adequate to assure his transfer without incident.
The ambulance, supplied by Hawkes under contract with the Veterans Administration, arrived at the hospital at about 2:45 P.M., with two of Hawkes’ employees: Michael LoMauro, the driver, and Jones, who was to serve as the attendant on the trip. Jones, then two months from his eighteenth birthday, had been engaged by Hawkes eleven days previously as an apprentice oxygen technician. He was without training, education or experience as an ambulance attendant or in the handling of potentially assaultive mental patients.
Two hospital employees, Williams and Eogers, whose duties related to the transfer of the patient to the waiting ambulance, observed Jones’ youthful appearance and were doubtful whether Jones was sufficiently experienced to handle Hefko, but they failed to call this to the attention of the supervisory or medical personnel. Williams testified that he had warned LoMauro that Jones might not be able to handle Hefko; LoMauro denied that any such warning was given.
Hefko at this time was calm; he walked to and entered the ambulance unaided. He sat in the rear seat facing forward, the door to his right being forward of him. Jones sat directly opposite, facing Hefko; their seats were about three and a half feet apart. Lo-Mauro closed the door from the outside, checked to see that it was securely closed, and then got into the driver’s seat in the front section of the ambulance and started the trip to Northport.
LoMauro testified that the trip was without incident until about 3:45 P.M., when he was proceeding on the Northern State Parkway toward Northport. He then looked in his rear-view mirror and saw Jones standing somewhat stooped over with his back to LoMauro. LoMauro, thinking that something was wrong, called to Jones and simultaneously started to pull over to the right side of the road, hitting his brakes. At that instant, Jones somehow fell or was thrown from the ambulance. LoMauro testified that a split second after he first observed Jones standing hunched over, he saw that Jones was no longer in the ambulance and immediately realized that Jones had fallen out of the door. LoMauro did not see what happened in that split second; he did not actually see Jones fall out or how this occurred. He explained that his subsequent statements that Hefko had thrown Jones from the ambulance were merely “guesses” as to the cause of the accident. Judge Weinfeld specifically found Lo-Mauro’s testimony to be truthful.
When the ambulance came to a halt, LoMauro ran back to where Jones was lying on the roadway severely injured and pulled Jones to the side of the road. When LoMauro returned to the ambulance, Hefko was sitting quietly on his seat. After the police arrived at the scene of the accident, they handcuffed Hefko to the stretcher and to a bar in the ambulance. A policeman was assigned to accompany Hefko, and the ambulance proceeded to Northport. On the trip, Hefko lunged several times at the police officer, but was restrained by the handcuffs; he tried to kick the officer and stamp his feet. Soon after his arrival at Northport, Hefko threw a chair at the nurses’ aide. He was immediately restrained by being placed in a strait jacket and was given more Thorazine.
Jones was taken to Huntington Hospital, where he died on the following day, as a result of injuries sustained in the accident.
With regard to the defendant’s negligence, Judge Weinfeld stated that “The Veterans Administration, with respect to patients in its custody or charge and known to be potentially dangerous, was required to exercise reasonable care to protect them from harming themselves or others.” On the question of whether the defendant’s agents took adequate and proper safeguards to protect others as well as the patient himself from injury during the course of the journey, Judge Weinfeld found that the injection of 50 milligrams of Thorazine was of sufficient dosage to keep Hefko calm during the trip, and that Hefko’s condition did not require the use of physical restraints. However, he found that the administration of Thorazine was not intended to be the sole restraint and that “the defendant was negligent in allowing the trip to be undertaken without a trained, experienced ambulance attendant, and that Jones was not such a trained attendant, of which the defendant was aware.”
However, Judge Weinfeld concluded that the plaintiffs, who were required to establish not only the defendant’s negligence but also facts and conditions from which proximate causation may reasonably be inferred, had failed to sustain their burden of proof that the defendant’s negligence was the proximate cause of Jones' death. He stated that: “There is no probative evidence to support plaintiffs’ charge that Jones was assaulted by the patient or thrown out by Hefko or was thrown from the ambulance as a result of any act of the patient. To find otherwise upon the evidence here presented, or perhaps more correctly, upon the lack of evidence, would require the court to enter into the realm of speculation and to engage in sheer guesswork.” We do not regard this conclusion as supportable.
Under New York law, the plaintiffs in a wrongful death action are not held to as high a degree of proof as where an injured plaintiff can himself describe the occurrence. Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744 (1948). We agree with Judge Weinfeld’s statement that Noseworthy, however much it may lighten a plaintiff’s burden, does not relieve him of establishing the basic facts, direct or circumstantial, either alone or in combination, upon which the inference of proximate cause may reasonably be drawn by the factfinder. However, we disagree with his conclusion that the evidence in this case provides no rational basis for such an inference.
It was shown that on several occasions, within a few hours both before and after the accident, Hefko engaged in violent and assaultive conduct. As Judge Weinfeld noted, the prior assaults occurred before Hefko had been tranquilized and the subsequent assaults occurred after Hefko had been subjected to physical restraints. While the occurrence of these assaults does not by itself establish that Hefko committed hostile acts against Jones in the ambulance, we believe that the difference in time or circumstances is not so great as to render them irrelevant and that these incidents must be considered, along with the other relevant evidence, in determining the cause of the accident.
Immediately before the accident, Lo-Mauro observed Jones standing hunched over facing Hefko’s seat. From this unusual circumstance, it seems only reasonable to infer, as LoMauro did, that something was wrong and that Jones had risen from his seat and assumed this position as a response to some action on Hefko’s part. Within an instant after LoMauro observed him in this posture, Jones had fallen from the ambulance. According to the testimony of the hospital attendants, Williams and Weil, Hefko was about 5 feet and 9 or 10 inches tall, weighed about 180 or 190 pounds, and was extremely strong.
These circumstances, we believe, provide a rational basis for inferring that Hefko played some part in causing Jones to fall out of the ambulance, whether by actually pushing Jones, or by causing the door to open, or by hostile conduct which caused Jones to do some responsive act or assume a position which resulted in his fall from the ambulance.
The district judge found that the evidence suggested other explanations, of equal or even greater probability, as to the cause of the accident. He suggested that the sudden braking and sharp swerve to the right may have caused the door to swing open. This seems unlikely in view of LoMauro’s testimony that the door was securely closed when the trip started. The district judge also stated that it was not beyond the realm of reasonable probability that Jones himself may somehow have come into contact with the door handle, or have grabbed the handle to hold his balance when the ambulance swerved, which could be sufficient to open the door when the electric safety lock was not working. However, even if Jones himself inadvertently opened the door, it seems highly unlikely that Hefko had no part in causing the situation. We therefore hold that there was sufficient evi-denee that Hefko caused Jones’ fall from the ambulance and we reject the trial court’s conclusion that the plaintiffs had failed to meet their burden of proof on the issue of proximate cause.
The defendant argues that there is an alternative basis for affirmance, contending that in allowing Hefko’s transfer to be undertaken without a trained, experienced ambulance attendant, the United States did not breach any duty owed by it to Jones. Judge Weinfeld rejected this contention and apparently declined to apply a distinction between duties owed to the public and duties owed to employees of independent contractors. New York law does create such a distinction — Lipka v. United States, 369 F.2d 288, 292-293 (2 Cir. 1966), cert. denied, 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 997 (1967); Galbraith v. United States, 296 F.2d 631, 634 (2 Cir. 1961); Wallach v. United States, 291 F.2d 69, 72 (2 Cir. 1961) — and we believe that the distinction must be recognized in. the present case. These cases hold that the contractee, while it would be liable to injured members of the public, is not liable to the employees of an independent contractor for its negligent selection of the contractor {Lipka), or for its failure to supervise the contractor’s work {Galbraith), or for the contractor’s negligence where the work was inherently dangerous and the contractee’s duty to take adequate precautions therefore nondelegable {Lipka, Wallach).
In the present case, the defendant owed to the public, and to Hefko himself, a nondelegable duty to see that adequate precautions were taken to restrain Hefko during the trip. As to Hawkes’ employees, the United States is not liable if its contractual relations with Hawkes justified it in assuming that Hawkes’ employees would be capable of handling dangers such as this, as to which they had been alerted.
However, it is not clear whether it was Hawkes’ obligation under the contract to provide an ambulance attendant with adequate experience to handle Hefko. The contract provides that “The prices quoted in the Schedule include the services of a chauffeur and an attendant with the ambulance on every trip.” The only requirement stated with regard to the attendant is that “Attendant on duty must be qualified to administer oxygen.” Dr. Moe A. Goldberg, Chief of Psychiatry and Neurology at the Veterans Administration Hospital, testified that he did not make any effort to determine whether or not an attendant with training in restraining psychiatric patients was specified when the hospital let the contract to Hawkes. It may be that an ambulance attendant is ordinarily expected to have such training and that this requirement is included in the meaning of “attendant” as used in a contract for ambulance service. Indeed, the testimony of Dr. Goldberg and of Rogers, who was in charge of the hospital’s travel unit, would appear to support the view that an ambulance attendant is assumed to have such training. However, the contract does not so specify, and the present evidence does not provide any sufficient basis for concluding that the contract required an attendant trained to handle potentially violent and assaultive mental patients.
Moreover, even if it was Hawkes’ obligation under the contract to provide adequately trained attendants, the defendant nevertheless had the duty to give sufficient notice regarding the patient’s condition. Rogers, who had called Hawkes to order the ambulance, testified that he told Mrs. Hawkes that the patient was a psychiatric patient, that he was assaultive and under medication. Mrs. Hawkes denied that Rogers had told her this. Williams, the hospital attendant who accompanied Hefko to the ambulance, testified that he told the driver LoMauro that he would need more help because the patient was violent, had been violent, and Williams didn’t think that one man could handle him by himself; Williams testified that LoMauro replied that if anything should happen he would stop the ambulance and give Jones a hand. Lo-Mauro denied that such a conversation had taken place. It appears that Judge Weinfeld accepted Williams’ testimony on this question, although elsewhere in his opinion Judge Weinfeld specifically found that LoMauro was a truthful witness. LoMauro testified that Rogers told him that the patient had been sedated and would probably go to sleep; he also testified that as they were walking to the ambulance with Hefko, someone, he didn’t remember who, had said that Hefko had caused a commotion.
It is for the district court on remand to resolve these contradictions in the testimony and to determine whether, under the circumstances, Hawkes received adequate notice of any unusual dangers presented by Hefko’s condition.
Reversed and remanded to the district court for consideration of the issues relating to the defendant’s duty to Hawkes’ employees, and for a determination of the third and fourth party claims, should the district court conclude that the defendant United States is liable to the plaintiffs.
. Byron Williams, a nursing assistant employed by the Hospital, testified that whenever he accompanied a patient to Northport Hospital a second qualified aid always went with him; he also testified that two qualified nursing assistants always attended patients being transferred between the Veterans Administration Hospital and the psychiatric wards at Bel-levue Hospital.
. The door was equipped with the ordinary automobile-type handle which was located near the-seat occupied by Jones, and lock plunger, which apparently was not depressed when LoMauro closed the door. There was also an electric safety lock which functioned when the ignition was turned on; there were two release buttons to disengage this lock, one located in the driver’s compartment, the other on the right armrest panel of the seat occupied by Hefko. There was testimony that the electric safety lock had malfunctioned for some time before the accident.
. Hefko had also died prior to the trial, so that even assuming that his psychiatric condition did not preclude him from giving a coherent account of the accident, the testimony of this only other witness to how the accident actually occurred was not available at trial.
. Furthermore, since the door was located on the right side of the ambulance, it would seem that it would be a sharp turn to the left, rather than to the right as actually occurred, which might cause the door, if not securely closed, to swing open. Judge Weinfeld noted that after the accident, the door was sprung. However, LoMauro expressly testified that the door was not sprung at the start of the trip, and it seems more likely that the door became sprung when Jones fell or was thrown out of it than that the door had somehow become sprung between the start of the trip and the time of the accident.
. As to precautions which were not entrusted to Hawkes, such as the administration of drugs and the provision of physical restraining devices, the defendant’s duty in this regard clearly extended to employees of Hawkes as well as to the patient and members of the public. However, the trial judge found that there was no negligence with regard to these precautions.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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).
UNITED STATES of America, Plaintiff-Appellee, v. Gilberto NEVAREZ-ALCANTAR, Defendant-Appellant.
No. 73-1707.
United States Court of Appeals, Tenth Circuit.
April 23, 1974.
Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief) for plaintiff-appellee.
Winston Roberts-Hohl, Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
Before LEWIS, Chief Judge, DUR-FEE, Judge, Court of Claims , and BARRETT, Circuit Judge.
Honorable James R. Durfee, sitting by designation.
BARRETT, Circuit Judge.
Gilberto Nevarez-Alcantar appeals his conviction of possession of heroin with
the intent to distribute in violation of 21 U.S.C.A. § 841(a) (l).
On April 12, 1973, Alcantar was riding as a passenger on a bus from El Paso, Texas, to San Francisco, California. While en route he became so intoxicated that he was forced to debus at Lordsburg, New Mexico. Alcantar left the bus with a locked suitcase. Shortly thereafter, at approximately 12:20 a. m., in the belief that he had arrived in San Francisco, Alcantar approached two Lordsburg police officers and requested that they drive him to an address which they immediately realized was not in Lordsburg.
Upon questioning by the officers, Al-cantar identified himself by producing an Alien Registration Receipt Card; stating his address as San Francisco, California; and displaying a Republic of Mexico driver’s license, issued one month previously, which listed his address of residence as Zaragoza, Chihuahua, Mexico. Each of the identification cards contained his photo. After arresting Alcantar for drunkenness, and after determining that he was a Spanish speaking alien, the officers took him to the United States Border Patrol office in Lordsburg.
At the Border Patrol office, Alcantar was questioned further by Agent Ash-ton. Alcantar was in possession of his suitcase during the interrogation. After questioning Alcantar, Ashton was not satisfied with his identification, inasmuch as the Alien Registration Card indicated that he was residing in the United States, whereas the driver’s license stated a residence in Mexico. Ashton and the Lordsburg officers thereupon forcibly opened Alcantar’s locked suitcase, in search of further identification. Upon opening the suitcase, Ashton discovered 13 % ounces of heroin. Alcantar was subsequently charged under 21 U.S. C.A. § 841(a)(1).
Prior to his trial before the court, having waived a jury, Alcantar moved to suppress the heroin seized from his suitcase. Alcantar contended that the seizure which resulted from the search was: (1) without a warrant; (2) without probable cause; (3) without his consent; and (4) unreasonable when the terms and prohibitions of the Fourth Amendment are considered.
After a pre-trial evidentiary hearing the Court denied the motion to suppress, holding, inter alia: (1) that Alcantar was still intoxicated while being interviewed at the Border Patrol office; (2) that he did not consent to the search of his suitcase; (3) that he was arrested for intoxication; (4) that the search could therefore not be justified as incident to arrest; (5) that there was no danger that Alcantar could reach into the locked suitcase and grab a weapon or destroy any evidence; (6) that the search of the suitcase was not in any sense an inventory of Alcantar’s personal property; (7) that the search was solely an effort to find more information establishing Aleantar’s “identity”; and (8) that the officers had probable cause to search the suitcase for more information concerning Alcantar’s identity.
On appeal, Alcantar contends that the Court erred in denying his motion to suppress. We hold that the trial court did not err.
Alcantar does not contend that the officers did not have probable cause to search the suitcase for further identification. Rather, he argues that under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a search, absent exigent circumstances, cannot be made without a search warrant. Further, he relies on United States v. Baca, 417 F.2d 103 (10th Cir. 1969), for the rule that one claiming to be exempt from the warrant requirement has the burden of establishing his exemptions.
The Fourth Amendment prohibits only an unreasonable search undertaken without a search warrant. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A border patrol agent may interrogate and search without a warrant, under 8 U.S.C.A. § 1357(a)(1) and (e):
(a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant;—
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States; . ******
(c) Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for exclusion from the United States under this chapter which would be disclosed by such search.
Agent Ashton was not only expressly authorized to interrogate Alcantar, but, under the circumstances, he and the Lordsburg officers also had probable cause to search his locked suitcase for further identification. We agree with the following finding of the trial court:
The officers had reasonable cause to inquire further as to the contradiction between the residence shown on the driver’s license and his claim as to residence in the United States. They were justified in seeking further information to determine whether the defendant had violated any of the conditions of the Alien Registration Card so that it would not at that time be valid authority for the defendant to be in the United States. Particularly the fact that the card was five years old, whereas the Mexican driver’s license had been issued one month before would give cause to inquire as to the defendant’s present right to be in the United States under the authority of the Alien Registration Card.
It is fundamental that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, supra, at p. 22, 88 S.Ct. at p. 1880. And, under appropriate circumstances, police officers have a duty to approach, temporarily detain and question persons as to possible crimes, and investigate suspicious behavior, even though there are insufficient grounds for arrest. United States v. Saldana, 453 F.2d 352 (10th Cir. 1972); United States v. Sanchez, 450 F.2d 525 (10th Cir. 1971).
In determining probable cause “practical considerations of everyday life” must prevail. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Romero, 484 F.2d 1324 (10th Cir. 1973). Probable cause exists where the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a prudent man into believing that an offense has been or is being committed. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973); Taylor v. United States, 334 F.2d 386 (10th Cir. 1964).
If the enforcement officers have probable cause to believe, as they did in the instant case, that the law is being violated in their presence (illegal entry into the United States), they may conduct a search of the person and portable personal effects in his immediate possession if it is impracticable to secure a warrant in those cases where the warrant is otherwise required. United States v. One 1957 Ford Ranchero Pickup Truck, 265 F.2d 21 (10th Cir. 1959). In our judgment Agent Ashton and the Lordsburg police officers were confronted with facts and circumstances generating the basis for probable cause rather than bare suspicion. The issue, then, is whether, under the facts and circumstances, the search of Alcantar’s suitcase, absent a search warrant, was viola-tive of the Fourth Amendment. We hold that it was not.
The trial court ruled that the officers had probable cause to search Alcantar’s suitcase without a search warrant for more information concerning Alcantar’s “identity” in view of the fact that although Alcantar claimed to be a resident of San Francisco (consistent with his Alien Registration Card), his Mexican driver’s license, issued only one month prior thereto, listed his residence as Zar-agoza, Chihuahua, Mexico. Other information in the form of documents in the suitcase may have disclosed that Alcan-tar had illegally entered the United States.
Mr. Justice White, in his dissenting opinion in Almeida-Sanehez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), observed that:
The judgment of Congress obviously was that there are circumstances in which it is reasonably necessary, in the enforcement of the immigration laws, to search vehicles and other private property for aliens, without warrant or probable cause, and at locations other than at the border.
413 U.S. at 293, 93 S.Ct. at 2549.
A logical nexus, we submit, involves a reasonable search of all personal effects on the person or in the possession of the person of Alcantar in light of the facts and circumstances confronting Agent Ashton and the Lordsburg police officers, i. e., that Alcantar was forced to depart the bus at Lordsburg because of his intoxicated condition; that he left the bus in possession of a ticket evidencing boarding at El Paso, Texas, enroute to San Francisco, California; that Al-cantar did not speak English and did speak Spanish; that the Alien Registration Receipt Card and the driver’s license exhibited to Agent Ashton gave rise to probable cause to search for other information in order to determine whether Alcantar was illegally in the United States; and that Alcantar was in possession of a suitcase which constitutes “personal effects in the possession of any person seeking admission to the United States” as expressed in 8 U.S.C. A. § 1357(c), supra.
Interpretive of the broad authority granted Border Patrol officials under the governing statutes above referred to, we observe that Mr. Justice Powell, in his concurring opinion in Almeida-San-chez, supra, indicated that “roving patrols” would be constitutionally permissible under a broad search warrant which he opined would be justified and feasible as “ . . . . incidental to ■ the protection of the border and draw a large measure of justification from the Government’s extraordinary responsibilities and powers with respect to the border.” 413 U.S. 266 at 279, 93 S.Ct. at 2542. Congress intended that Service officers and employees shall exercise broad authority in conducting investigations necessary to protect all persons legally residing in the United States against the illegal entrance of aliens and the illegal importation of narcotics and other contraband.
The record evidences that two Lords-burg police officers acted in concert with Agent Ashton in forcibly opening the suitcase in Alcantar’s possession. In United States v. Simpson, 453 F.2d 1028 (10th Cir. 1972), cert. denied 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 337 (1972), we held that incident to a lawful arrest a search may be conducted without a warrant of all portable personal effects on the person, or in the immediate possession of the person arrested, and that the discovery during such a search of objects or fruits which do not relate to the cause of arrest, but which provide grounds for prosecution of a crime unrelated to that for which the arrest was effected, does not invalidate the search. This holding found support, further buttressing the trial court’s ruling here, in the recent opinions rendered by the United States Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L.Ed.2d 427 (1973), and Gus-tafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Both of these cases involved valid arrests for traffic violations. In the course of searches of the persons in each case, the arresting officers discovered narcotics which led to independent prosecutions. The Supreme Court upheld the searches and convictions, based upon the rule that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment, and that such a search may be made of the person of the arrestee and the area within his control.
We acknowledge that in Simpson, Robinson and Gustafson, the arresting officers proceeded on their own volition immediately following the arrests to conduct the subject searches, whereas in the instant case the Lordsburg police officers did not conduct the search of Alcantar’s suitcase at the time he was arrested for drunkenness and in fact did so some ten to fifteen minutes later at the Border Patrol office in concert with Agent Ashton, apparently upon Ashton’s suggestion. We do not believe that these circumstances are of such material variance from those in Simpson, Robinson and Gustafson to create a challenge to the rule applied in those cases upholding the searches as incident to a lawful arrest. In any event, we concur with the trial court’s finding that probable cause did exist in the case at bar justifying the warrantless suitcase search.
Affirmed.
. 21 U.S.C.A. § 841(a)(1) provides in part:
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) To manufacture, distribute, or dispense, or possess with intent to ... distribute, or dispense, a controlled substance ; or .
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_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.
FEDERAL TRADE COMMISSION v. CEMENT INSTITUTE et al.
NO. 23.
Argued October 20-21,1947.
Decided April 26, 1948.
Charles H. Weston and Walter B. Wooden argued the cause for petitioner. With them on the brief were Solicitor General Perlman, Assistant Attorney General Son-nett, Robert G. Seaks, Philip Elman and W. T. Kelley.
William, J. Donovan argued the cause for the Cement Institute et al., respondents in Nos. 23, 24 and 34. With him on the brief were George S. Leisure, Breck P. McAl-lister, James R. Withrow, Jr., Henry Herrick Bond, Ira C. Werle, Robert E. McKean, F. Carroll Taylor, James F. Oates, Jr., Russell J. Burt, A. O. Dawson, George W. Jaques, George Nebolsine, Harry Scherr, Horace G. Hitchcock, Paul Brown, J. T. Stokely, C. Alfred Capen, Edward D. Lyman, William M. Robinson, Charles H. Smith and Emil H. Molthan. Thomas J. McFadden and Francis A. Brick were also of counsel.
Herbert W. Clark argued the cause for the Calaveras Cement Co. et al., respondents in Nos. 24 and 26. With him on the brief were Walter C. Fox, Jr., Marshall P. Madison, Robert H. Gerdes, William J. Donovan, George S. Leisure and Edward D. Lyman.
Edward A. Zimmerman argued the cause for respondent in No. 25. With him on the brief were H. W. Norman and W. R. Engelhardt. A. K. Shipe was also of counsel.
Charles Wright, Jr. argued the cause for respondent in No. 27. With him on the brief was Laurence A. Mas-selink.
Herbert S. Little argued the cause for respondent in No. 28. With him on the brief was F. A. LeSourd.
S. Harold Shefelman argued the cause and filed a brief for respondent in No. 29.
Pierce Works argued the cause for respondent in No. 30. With him on the brief was Louis W. Myers.
Nathan L. Miller argued the cause for the Universal Atlas Cement Co., respondent in No. 31. With him on the brief were Roger M. Blough and John H. Hersh-berger.
Alex W. Davis argued the cause for respondent in No. 32. With him on the brief was Robert B. Murphey.
No appearance for respondents in No. 33.
Thurlow M. Gordon and Neil C. Head filed a brief for the General Electric Co., as amicus curiae, supporting respondents in Nos. 23, 24 and 34.
Mr. Justice Black
delivered the opinion of the Court.
We granted certiorari to review the decree of the Circuit Court of Appeals which, with one judge dissenting, vacated and set aside a cease and desist order issued by the Federal Trade Commission against the respondents. 157 F. 2d 533. Those respondents are: The Cement Institute, an unincorporated trade association composed of 74 corporations which manufacture, sell and distribute cement; the 74 corporate members of the Institute; and 21 individuals who are associated with the Institute. It took three years for a trial examiner to hear the evidence which consists of about 49,000 pages of oral testimony and 50,000 pages of exhibits. Even the findings and conclusions of the Commission cover 176 pages. The briefs with accompanying appendixes submitted by the parties contain more than 4,000 pages. The legal questions raised by the Commission and by the different respondents are many and varied. Some contentions are urged by all respondents and can be jointly considered. Others require separate treatment. In order to keep our opinion within reasonable limits, we must restrict our record references to the minimum consistent with an adequate consideration of the legal questions we discuss.
The proceedings were begun by a Commission complaint of two counts. The first charged that certain alleged conduct set out at length constituted an unfair method of competition in violation of § 5 of the Federal Trade Commission Act. 38 Stat. 719, 15 U. S. C. § 45. The core of the charge was that the respondents had restrained and hindered competition in the sale and distribution of cement by means of a combination among themselves made effective through mutual understanding or agreement to employ a multiple basing point system of pricing. It was alleged that this system resulted in the quotation of identical terms of sale and identical prices for cement by the respondents at any given point in the United States. This system had worked so successfully, it was further charged, that for many years prior to the filing of the complaint, all cement buyers throughout the nation, with rare exceptions, had been unable to purchase cement for delivery in any given locality from any one of the respondents at a lower price or on more favorable terms than from any of the other respondents.
The second count of the complaint, resting chiefly on the same allegations of fact set out in Count I, charged that the multiple basing point system of sales resulted in systematic price discriminations between the customers of each respondent. These discriminations were made, it was alleged, with the purpose of destroying competition in price between the various respondents in violation of § 2 of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526. That section, with certain conditions which need not here be set out, makes it “unlawful for any person engaged in commerce, . . . either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality . . . .” 15 U. S. C. § 13.
Resting upon its findings, the Commission ordered that respondents cease and desist from “carrying out any planned common course of action, understanding, agreement, combination, or conspiracy” to do a number of things, 37 F. T. C. 87, 258-262, all of which things, the Commission argues, had to be restrained in order effectively to restore individual freedom of action among the separate units in the cement industry. Certain contentions with reference to the order will later require a more detailed discussion of its terms. For the present it is sufficient to say that, if the order stands, its terms are broad enough to bar respondents from acting in concert to sell cement on a basing point delivered price plan which so eliminates competition that respondents’ prices are always identical at any given point in the United States.
We shall not now detail the numerous contentions urged against the order’s validity. A statement of these contentions can best await the separate consideration we give them.
Jurisdiction. — At the very beginning we are met with a challenge to the Commission’s jurisdiction to entertain the complaint and to act on it. This contention is pressed by respondent Marquette Cement Manufacturing Co. and is relied upon by other respondents. Count I of the complaint is drawn under the provision in § 5 of the Federal Trade Commission Act which declares that “Unfair methods of competition . . . are hereby declared unlawful.” Marquette contends that the facts alleged in Count I do not constitute “an unfair method of competition” within the meaning of § 5. Its argument runs this way: Count I in reality charges a combination to restrain trade. Such a combination constitutes an offense under § 1 of the Sherman Act which outlaws “Every . . . combination ... in restraint of trade.” 26 Stat. 209, 15 U. S. C. § 1. Section 4 of the Sherman Act provides that the Attorney General shall institute suits under the Act on behalf of the United States, and that the federal district courts shall have exclusive jurisdiction of such suits. Hence, continue respondents, the Commission, whose jurisdiction is limited to “unfair methods of competition,” is without power to institute proceedings or to issue an order with regard to the combination in restraint of trade charged in Count I. Marquette then argues that since the fact allegations of Count I are the chief reliance for the charge in Count II, this latter count also must be interpreted as charging a violation of the Sherman Act. Assuming, without deciding, that the conduct charged in each count constitutes a violation of the Sherman Act, we hold that the Commission does have jurisdiction to conclude that such conduct may also be an unfair method of competition and hence constitute a violation of § 5 of the Federal Trade Commission Act.
As early as 1920 this Court considered it an “unfair method of competition” to engage in practices “against public policy because of their dangerous tendency unduly to hinder competition or create monopoly.” Federal Trade Comm’n v. Gratz, 253 U. S. 421, 427. In 1922, the Court in Federal Trade Comm’n v. Beech-Nut Packing Co., 257 U. S. 441, sustained a cease and desist order against a resale price maintenance plan because such a plan “necessarily constitutes a scheme which restrains the natural flow of commerce and the freedom of competition in the channels of interstate trade which it has been the purpose of all the anti-trust acts to maintain.” Id. at 454. The Court, in holding that the scheme before it constituted an unfair method of competition, noted that the conduct in question was practically identical with that previously declared unlawful in Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, and United States v. Schrader’s Son, Inc., 252 U. S. 85, the latter a suit brought under § 1 of the Sherman Act. Again in 1926 this Court sustained a Commission unfair-method-of-competition order against defendants who had engaged in a price-fixing combination, a plain violation of § 1 of the Sherman Act. Federal Trade Comm’n v. Pacific States Paper Trade Assn., 273 U. S. 52. In 1941 we reiterated that certain conduct of a combination found to conflict with the policy of the Sherman Act could be suppressed by the Commission as an unfair method of competition. Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U. S. 457, 465. The Commission’s order was sustained in the Fashion Originators’ case not only because the prohibited conduct violated the Clayton Act but also because the Commission’s findings brought the “combination in its entirety well within the inhibition of the policies declared by the Sherman Act itself.” In other cases this Court has pointed out many reasons which support interpretation of the language “unfair methods of competition” in § 5 of the Federal Trade Commission Act as including violations of the Sherman Act. Thus it appears that soon after its creation the Commission began to interpret the prohibitions of § 5 as including those restraints of trade which also were outlawed by the Sherman Act, and that this Court has consistently approved that interpretation of the Act.
Despite this long and consistent administrative and judicial construction of § 5, we are urged to hold that these prior interpretations were wrong and that the term “unfair methods of competition” should not be construed as embracing any conduct within the ambit of the Sherman Act. In support of this contention, Marquette chiefly relies upon its reading of the legislative history of the Commission Act. We have given careful consideration to this contention because of the earnestness with which it is pressed. Marquette points to particular statements of some of the Act’s sponsors which, taken out of their context, might lend faint support to its contention that Congress did not intend the Commission to concern itself with conduct then punishable under the Sherman Act. But on the whole the Act’s legislative history shows a strong congressional purpose not only to continue enforcement of the Sherman Act by the Department of Justice and the federal district courts but also to supplement that enforcement through the administrative process of the new Trade Commission. Far from being regarded as a rival of the Justice Department and the district courts in dissolving combinations in restraint of trade, the new Commission was envisioned as an aid to them and was specifically authorized to assist them in the drafting of appropriate decrees in antitrust litigation. All of the committee reports and the statements of those in charge of the Trade Commission Act reveal an abiding purpose to vest both the Commission and the courts with adequate powers to hit at every trade practice, then existing or thereafter contrived, which restrained competition or might lead to such restraint if not stopped in its incipient stages. These congressional purposes are revealed in the legislative history cited below, most of which is referred to in respondents’ briefs. We can conceive of no greater obstacle this Court could create to the fulfillment of these congressional purposes than to inject into every Trade Commission proceeding brought under § 5 and into every Sherman Act suit brought by the Justice Department a possible jurisdictional question.
We adhere to our former rulings. The Commission has jurisdiction to declare that conduct tending to restrain trade is an unfair method of competition even though the selfsame conduct may also violate the Sherman Act.
There is a related jurisdictional argument pressed by Marquette which may be disposed of at this time. While review of the Commission’s order was pending in the Circuit Court of Appeals, the Attorney General filed a civil action in the Federal District Court for Denver, Colorado, to restrain the Cement Institute, Marquette and 88 other cement companies, including all of the present respondents, from violating § 1 of the Sherman Act. Much of the evidence before the Commission in this proceeding might also be relevant in that case, which, we are informed, has not thus far been brought to trial. Marquette urges that the Commission proceeding should now be dismissed because it is contrary to the public interest to force respondents to defend both a Commission proceeding and a Sherman Act suit based largely on the same alleged misconduct.
We find nothing to justify a holding that the filing of a Sherman Act suit by the Attorney General requires the termination of these Federal Trade Commission proceedings. In the first place, although all conduct violative of the Sherman Act may likewise come within the unfair trade practice prohibitions of the Trade Commission Act, the converse is not necessarily true. It has long been recognized that there are many unfair methods of competition that do not assume the proportions of Sherman Act violations. Federal Trade Comm’n v. R. F. Keppel & Bro., 291 U. S. 304; Federal Trade Comm’n v. Gratz, 253 U. S. 421, 427. Hence a conclusion that respondents’ conduct constituted an unfair method of competition does not necessarily mean that their same activities would also be found to violate § 1 of the Sherman Act. In the second place, the fact that the same conduct may constitute a violation of both acts in nowise requires us to dismiss this Commission proceeding. Just as the Sherman Act itself permits the Attorney General to bring simultaneous civil and criminal suits against a defendant based on the same misconduct, so the Sherman Act and the Trade Commission Act provide the Government with cumulative remedies against activity detrimental to competition. Both the legislative history of the Trade Commission Act and its specific language indicate a congressional purpose, not to confine each of these proceedings within narrow, mutually exclusive limits, but rather to permit the simultaneous use of both types of proceedings. Marquette’s objections to the Commission’s jurisdiction are overruled.
Objections to Commission’s Jurisdiction by Certain Respondents on Ground That They Were Not Engaged in Interstate Commerce. — One other challenge to the Commission’s jurisdiction is specially raised by Northwestern Portland and Superior Portland. The Commission found that “Northwestern Portland makes no sales or shipments outside the State of Washington,” and that “Superior Portland, with few exceptions, makes sales and shipments outside the State of Washington only to Alaska.” These two respondents contend that, since they did not engage in interstate commerce and since § 5 of the Trade Commission Act applies only to unfair methods of competition in interstate commerce, the Commission was without jurisdiction to enter an order against them under Count I of the complaint. For this contention they chiefly rely on Federal Trade Comm’n v. Bunte Bros., 312 U. S. 349. They also argue that for the same reason the Commission lacked jurisdiction to enforce against them the price discrimination charge in Count II of the complaint.
We cannot sustain this contention. The charge against these respondents was not that they, apart from the other respondents, had engaged in unfair methods of competition and price discriminations simply by making intrastate sales. Instead, the charge was, as supported by the Commission’s findings, that these respondents in combination with others agreed to maintain a delivered price system in order to eliminate price competition in the sale of cement in interstate commerce. The combination, as found, includes the Institute and cement companies located in many different states. The Commission has further found that “In general, said corporate respondents have maintained, and now maintain, a constant course of trade and commerce in cement among and between the several States of the United States.” The fact that one or two of the numerous participants in the combination happen to be selling only within the borders of a single state is not controlling in determining the scope of the Commission’s jurisdiction. The important factor is that the concerted action of all of the parties to the combination is essential in order to make wholly effective the restraint of commerce among the states. The Commission would be rendered helpless to stop unfair methods of competition in the form of interstate combinations and conspiracies if its jurisdiction could be defeated on a mere showing that each conspirator had carefully confined his illegal activities within the borders of a single state. We hold that the Commission did have jurisdiction to make an order against Superior Portland and Northwestern Portland.
The Multiple Basing Point Delivered Price System.— Since the multiple basing point delivered price system of fixing prices and terms of cement sales is the nub of this controversy, it will be helpful at this preliminary stage to point out in general what it is and how it works. A brief reference to the distinctive characteristics of “factory” or “mill prices” and “delivered prices” is of importance to an understanding of the basing point delivered price system here involved.
Goods may be sold and delivered to customers at the seller’s mill or warehouse door or may be sold free on board (f. o. b.) trucks or railroad cars immediately adjacent to the seller’s mill or warehouse. In either event the actual cost of the goods to the purchaser is, broadly speaking, the seller’s “mill price” plus the purchaser’s cost of transportation. However, if the seller fixes a price at which he undertakes to deliver goods to the purchaser where they are to be used, the cost to the purchaser is the “delivered price.” A seller who makes the “mill price” identical for all purchasers of like amount and quality simply delivers his goods at the same place (his mill) and for the same price (price at the mill). He thus receives for all f. o. b. mill sales an identical net amount of money for like goods from all customers. But a “delivered price” system creates complications which may result in a seller’s receiving different net returns from the sale of like goods. The cost of transporting 500 miles is almost always more than the cost of transporting 100 miles. Consequently if customers 100 and 500 miles away pay the same “delivered price,” the seller’s net return is less from the more distant customer. This difference in the producer’s net return from sales to customers in different localities under a “delivered price” system is an important element in the charge under Count I of the complaint and is the crux of Count II.
The best known early example of a basing point price system was called “Pittsburgh plus.” It related to the price of steel. The Pittsburgh price was the base price, Pittsburgh being therefore called a price basing point. In order for the system to work, sales had to be made only at delivered prices. Under this system the delivered price of steel from anywhere in the United States to a point of delivery anywhere in the United States was in general the Pittsburgh price plus the railroad freight rate from Pittsburgh to the point of delivery. Take Chicago, Illinois, as an illustration of the operation and consequences of the system. A Chicago steel producer was not free to sell his steel at cost plus a reasonable profit. He must sell it at the Pittsburgh price plus the railroad freight rate from Pittsburgh to the point of delivery. Chicago steel customers were by this pricing plan thus arbitrarily required to pay for Chicago produced steel the Pittsburgh base price plus what it would have cost to ship the steel by rail from Pittsburgh to Chicago had it been shipped. The theoretical cost of this fictitious shipment became known as “phantom freight.” But had it been economically possible under this plan for a Chicago producer to ship his steel to Pittsburgh, his “delivered price” would have been merely the Pittsburgh price, although he actually would have been required to pay the freight from Chicago to Pittsburgh. Thus the “delivered price” under these latter circumstances required a Chicago (non-basing point) producer to “absorb” freight costs. That is, such a seller’s net returns became smaller and smaller as his deliveries approached closer and closer to the basing point.
Several results obviously flow from use of a single basing point system such as “Pittsburgh plus” originally was. One is that the “delivered prices” of all producers in every locality where deliveries are made are always the same regardless of the producers’ different freight costs. Another is that sales made by a non-base mill for delivery at different localities result in net receipts to the seller which vary in amounts equivalent to the “phantom freight” included in, or the “freight absorption” taken from the “delivered price.”
As commonly employed by respondents, the basing point system is not single but multiple. That is, instead of one basing point, like that in “Pittsburgh plus,” a number of basing point localities are used. In the multiple basing point system, just as in the single basing point system, freight absorption or phantom freight is an element of the delivered price on all sales not governed by a basing point actually located at the seller’s mill. And all sellers quote identical delivered prices in any given locality regardless of their different costs of production and their different freight expenses. Thus the multiple and single systems function in the same general manner and produce the same consequences — identity of prices and diversity of net returns. Such differences as there are in matters here pertinent are therefore differences of degree only.
Alleged Bias of the Commission. — One year after the taking of testimony had been concluded and while these proceedings were still pending before the Commission, the respondent Marquette asked the Commission to disqualify itself from passing upon the issues involved. Marquette charged that the Commission had previously prejudged the issues, was “prejudiced and biased against the Portland cement industry generally,” and that the industry and Marquette in particular could not receive a fair hearing from the Commission. After hearing oral argument the Commission refused to disqualify itself. This contention, repeated here, was also urged and rejected in the Circuit Court of Appeals one year before that court reviewed the merits of the Commission’s order. Marquette Cement Mfg. Co. v. Federal Trade Comm’n, 147 F. 2d 589.
Marquette introduced numerous exhibits intended to support its charges. In the main these exhibits were copies of the Commission’s reports made to Congress or to the President, as required by § 6 of the Trade Commission Act. 15 U. S. C. § 46. These reports, as well as the testimony given by members of the Commission before congressional committees, make it clear that long before the filing of this complaint the members of the Commission at that time, or at least some of them, were of the opinion that the operation of the multiple basing point system as they had studied it was the equivalent of a price fixing restraint of trade in violation of the Sherman Act. We therefore decide this contention, as did the Circuit Court of Appeals, on the assumption that such an opinion had been formed by the entire membership of the Commission as a result of its prior official investigations. But we also agree with that court’s holding that this belief did not disqualify the Commission.
In the first place, the fact that the Commission had entertained such views as the result of its prior ex parte investigations did not necessarily mean that the minds of its members were irrevocably closed on the subject of the respondents’ basing point practices. Here, in contrast to the Commission’s investigations, members of the cement industry were legally authorized participants in the hearings. They produced evidence — volumes of it. They were free to point out to the Commission by testimony, by cross-examination of witnesses, and by arguments, conditions of the trade practices under attack which they thought kept these practices within the range of legally permissible business activities.
Moreover, Marquette’s position, if sustained, would to a large extent defeat the congressional purposes which prompted passage of the Trade Commission Act. Had the entire membership of the Commission disqualified in the proceedings against these respondents, this complaint could not have been acted upon by the Commission or by any other government agency. Congress has provided for no such contingency. It has not directed that the Commission disqualify itself under any circumstances, has not provided for substitute commissioners should any of its members disqualify, and has not authorized any other government agency to hold hearings, make findings, and issue cease and desist orders in proceedings against unfair trade practices. Yet if Marquette is right, the Commission, by making studies and filing reports in obedience to congressional command, completely immunized the practices investigated, even though they are “unfair,” from any cease and desist order by the Commission or any other governmental agency.
There is no warrant in the Act for reaching a conclusion which would thus frustrate its purposes. If the Commission’s opinions expressed in congressionally required reports would bar its members from acting in unfair trade proceedings, it would appear that opinions expressed in the first basing point unfair trade proceeding would similarly disqualify them from ever passing on another. See Morgan v. United States, 313 U. S. 409, 421. Thus experience acquired from their work as commissioners would be a handicap instead of an advantage. Such was not the intendment of Congress. For Congress acted on a committee report stating: “It is manifestly desirable that the terms of the commissioners shall be long enough to give them an opportunity to acquire the expertness in dealing with these special questions concerning industry that comes from experience.” Report of Committee on Interstate Commerce, No. 597, June 13, 1914, 63d Cong., 2d Sess. 10-11.
Marquette also seems to argue that it was a denial of due process for the Commission to act in these proceedings after having expressed the view that industry-wide use of the basing point system was illegal. A number of cases are cited as giving support to this contention. Tumey v. Ohio, 273 U. S. 510, is among them. But it provides no support for the contention. In that case Tumey had been convicted of a criminal offense, fined, and committed to jail by a judge who had a direct, personal, substantial, pecuniary interest in reaching his conclusion to convict. A criminal conviction by such a tribunal was held to violate procedural due process. But the Court there pointed out that most matters relating to judicial disqualification did not rise to a constitutional level. Id. at 523.
Neither the Tumey decision nor any other decision of this Court would require us to hold that it would be a violation of procedural due process for a judge to sit in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law. In fact, judges frequently try the same case more than once and decide identical issues each time, although these issues involve questions both of law and fact. Certainly, the Federal Trade Commission cannot possibly be under stronger constitutional compulsions in this respect than a court.
The Commission properly refused to disqualify itself. We thus need not review the additional holding of the Circuit Court of Appeals that Marquette’s objection on the ground of the alleged bias of the Commission was filed too late in the proceedings before that agency to warrant consideration.
Alleged Errors in re Introduction of Evidence. — The complaint before the Commission, filed July 2, 1937, alleged that respondents had maintained an illegal combination for “more than 8 years last past.” In the Circuit Court of Appeals and in this Court the Government treated its case on the basis that the combination began in August, 1929, when the respondent Cement Institute was organized. The Government introduced much evidence over respondents’ objections, however, which showed the activities of the cement industry for many years prior to 1929, some of it as far back as 1902. It also introduced evidence as to respondents’ activities from 1933 to May 27, 1935, much of which related to the preparation and administration of the NRA Code for the cement industry pursuant to the National Industrial Recovery Act, 48 Stat. 195, held invalid by this Court May 27, 1935, in Schechter Poultry Cory. v. United States, 295 U. S. 495. All of the testimony to which objection was made related to the initiation, development, and carrying on of the basing point practices.
Respondents contend that the pre-1929 evidence, especially that prior to 1919, is patently inadmissible with reference to a 1929 combination, many of whose alleged members were non-existent in 1919. They also urge that evidence of activities during the NRA period was improperly admitted because § 5 of Title I of the NRA provided that any action taken in compliance with the code provisions of an industry should be “exempt from the provisions of the antitrust laws of the United States.” And some of the NRA period testimony relating to basing point practices did involve references to code provisions. The Government contends that evidence of both the pre-1929 and the NRA period activities of members of the cement industry tends to show a continuous course of concerted efforts on the part of the industry, or at least most of it, to utilize the basing point system as a means to fix uniform terms and prices at which cement would be sold, and that the Commission had properly so regarded this evidence. The Circuit Court of Appeals agreed with respondents that the Commission had erroneously considered both the NRA period evidence and the pre-1929 evidence in making its findings of the existence of a combination among respondents.
We conclude that both types of evidence were admissible for the purpose of showing the existence of a continuing combination among respondents to utilize the basing point pricing system.
The Commission did not make its findings of post-1929 combination, in whole or in part, on the premise that any of respondents’ pre-1929 or NRA code activities were illegal. The consideration given these activities by the Commission was well within the established judicial rule of evidence that testimony of prior or subsequent transactions, which for some reason are barred from forming the basis for a suit, may nevertheless be introduced if it tends reasonably to show the purpose and character of the particular transactions under scrutiny. Standard Oil Co. v. United States, 221 U. S. 1, 46-47; United States v. Reading Co., 253 U. S. 26, 43-44. Here the trade practices of an entire industry were under consideration. Respondents, on the one hand, insisted that the multiple basing point delivered price system represented a natural evolution of business practices adopted by the different cement companies, not in concert, but separately in response to customers’ needs and demands. That the separately adopted business practices produced uniform terms and conditions of sale in all localities was, so the respondents contended, nothing but an inevitable result of long-continued competition. On the other hand, the Government contended that, despite shifts in ownership of individual cement companies, what had taken place from 1902 to the date the complaint was filed showed continued concerted action on the part of all cement producers to develop and improve the basing point system so that it would automatically eliminate competition. In the Government’s view the Institute when formed in 1929 simply took up the old practices for the old purpose and aided its member companies to carry it straight on through and beyond the NRA period. See Fort Howard Paper Co. v. Federal Trade Comm’n, 156 F. 2d 899, 906.
Furthermore, administrative agencies like the Federal Trade Commission have never been restricted by the rigid rules of evidence. Interstate Commerce Comm’n v. Baird, 194 U. S. 25, 44. And of course rules which bar certain types of evidence in criminal or quasi-criminal cases are not controlling in proceedings like this, where the effect of the Commission’s order is not to punish or to fasten liability on respondents for past conduct but to ban specific practices for the future in accordance with the general mandate of Congress.
The foregoing likewise largely answers respondents’ contention that there was error in the admission of a letter written by one Treanor in 1934 to the chairman of the NRA code authority for the cement industry. Treanor, who died prior to the filing of the complaint, was at the time president of one of the respondent companies and also an active trustee of the Institute. In the letter he stated among other things that the cement industry was one “above all others that cannot stand free competition, that must systematically restrain competition or be ruined.” This statement was made as part of his criticism of the cement industry’s publicity campaign in defense of the basing point system. The relevance of this statement indicating this Institute official’s informed judgment is obvious. That it might be only his conclusion does not render the statement inadmissible in this administrative proceeding.
All contentions in regard to the introduction of testimony have been considered. None of them justify refusal to enforce this order.
The Old Cement Case. — This Court’s opinion in Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588, known as the Old Cement case, is relied on by the respondents in almost every contention they present. We think it has little relevance, if any at all, to the issues in this case.
In that case the United States brought an action in the District Court to enjoin an alleged combination to violate § 1 of the Sherman Act. The respondents were the Cement Manufacturers Protective Association, four of its officers, and nineteen cement manufacturers. The District Court held hearings, made findings of fact, and issued an injunction against those respondents. This Court, with three justices dissenting, reversed upon a review of the evidence. It did so because the Government did not charge and the record did not show “any agreement or understanding between the defendants placing limitations on either prices or production,” or any agreement to utilize the basing point system as a means of fixing prices. The Court said “But here the Government does not rely upon agreement or understanding, and this record wholly fails to establish, either directly or by inference, any concerted action other than that involved in the gathering and dissemination of pertinent information with respect to the sale and distribution of cement to which we have referred; and it fails to show any effect on price and production except such as would naturally flow from the dissemination of that information in the trade and its natural influence on individual action.” Id. at 606. In the Old Cement case and in Maple Flooring Assn. v. United States, 268 U. S. 563, decided the same day, the Court’s attention was focused on the rights of a trade association, despite the Sherman Act, openly to gather and disseminate statistics and information as to production costs, output, past prices, merchandise on hand, specific job contracts, freight rates, etc., so long as the Association did these things without attempts to foster agreements or concerted action with reference to prices, production, or terms of sale. Such associations were declared guiltless of violating the Sherman Act, because “in fact, no prohibited concert of action was found.” Corn Products Co. v. Federal Trade Comm’n, 324 U. S. 726, 735.
The Court’s holding in the Old Cement case would not have been inconsistent with a judgment sustaining the Commission’s order here, even had the two cases been before this Court the same day. The issues in the present Commission proceedings are quite different from those in the Old Cement case, although many of . the trade practices shown here were also shown there. In the first place, unlike the Old Cement case, the Commission does here specifically charge a combination to utilize the basing point system as a means to bring about uniform prices and terms of sale. And here the Commission has focused attention on this issue, having introduced evidence on the issue which covers thousands of pages. Furthermore, unlike the trial court in the Old Cement case, the Commission has specifically found the existence of a combination among respondents to employ the basing point system for the purpose of selling at identical prices.
In the second place, individual conduct, or concerted conduct, which falls short of being a Sherman Act violation may as a matter of law constitute an "unfair method of competition” prohibited by the Trade Commission Act. A major purpose of that Act, as we have frequently said, was to enable the Commission to restrain practices as “unfair” which, although not yet having grown into Sherman Act dimensions would, most likely do so if left unrestrained. The Commission and the courts were to determine what conduct, even though it might then be short of a Sherman Act violation, was an “unfair method of competition.” This general language was deliberately left to the “commission and the courts” for definition because it was thought that “There is no limit to human inventiveness in this field”; that consequently, a definition that fitted practices known to lead towards an unlawful restraint of trade today would not fit tomorrow’s new inventions in the field; and that
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_appel1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES v. CARPENTER.
No. 8300.
Circuit Court of Appeals, Seventh Circuit.
May 26, 1944.
Attorney Lewis L. Levin was appointed by this court to represent Carpenter on this appeal.
Appellant is now serving in the Army, having been paroled for such service.
Lewis L. Levin, of Chicago, Ill., for appellant.
Howard L. Doyle and Marks Alexander, U. S. Atty., both of Springfield, Ill., for appellee.
Before EVANS, SPARKS and MAJOR, Circuit Judges.
EVANS, Circuit Judge.
Appellant argues that a proper interpretation of the grammatical and structural composition of the statute (18 U.S.C.A. § 409) necessitates the conclusion that Congress meant to impose penalties for any of three separate classes or categories of crimes. It did not, however, mean to make a separate crime of every act described in each of the several classes or categories. In support of such theory, counsel points out that each category begins with the identical word “whoever” and is set off by semi-colons, whereas the several condemned acts within the respective categories are not so stated, merely being joined with the disjunctive “or” and separated by commas. 0
The statute reads (we add the numerals which appellant uses to designate his categories) :
“(1) Whoever shall unlawfully break the seal of any railroad car * * * or shall enter any such car with intent in either case to commit larceny therein; (2) or whoever shall steal or unlawfully take, carry away, or conceal, or by fraud or deception obtain from any railroad car, * * * with intent to convert to his own use any goods or chattels * * *, or shall buy or receive or have in his possession any such goods or chattels, knowing the same to have been stolen; (3) or whoever shall steal or shall unlawfully take, carry away, or by fraud or deception obtain with intent to convert * * * any baggage, * * * or shall break into, steal, take, carry away, or conceal any of the' contents of such baggage, or shall buy, receive, or have in his possession any such baggage * * * shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both * *
It is counsel’s urge that the second and third counts, namely, for stealing and for receiving, are for but a single crime in that they are both covered by the one category, i. e., class (2), and therefore appellant has suffered two five year sentences for but one crime.
Appellant also stresses the phrase "in each case" as being indicative of Congressional intent to impose a sentence only upon each of the classes of acts outlined.
A second contention, which was the one involved in the habeas corpus proceedings, is that the charge of stealing and possessing does not define two crimes because only one criminal intent was involved. In other words, in all cases where there is a stealing, there is, per se, a possessing.
Counsel stresses the fact that the bill of exceptions, which was not consulted on the prior appeal because not duly filed, disclosed that appellant was not even at the site of the crime, but a block distant, and only by virtue of a conspiracy or by proxy could he be deemed to have participated in the stealing.
Appellant also contends that there is duplication of punishment in the imposition of a sentence on the conspiracy count, for the same evidence was used to gain a conviction on this count as was used to establish guilt under the first three counts.
The earnestness of counsel, the severity of the sentence, and the'parolement of appellant to service in the army, have all impelled us to re-examine this statute and the decisions.
We repeat the statute, but in skeleton form. It would seem that crimes were described therein as follows:
(1) break the seal enter
(2) (as to goods or chattels in interstate commerce) steal unlawfully take carry away conceal obtain by fraud or deception buy possess
(3) (as to any baggage) steal unlawfully take carry away obtain by fraud or deception.
Congress defined and penalized every conceivable form of act, every gradation of the process of .burglarizing interstate commerce, when it enumerated these many acts. It intended to make criminal amy act therein recited. If two of the acts in any category were disclosed, two crimes were committed. It would be different if the terms were synonymous or the acts, one within the scope, or partial scope of the other, but each defines an act of a different, nature. It is true that one who steals generally possesses, but the contrary is not inherently true.
Another possible explanation for the categorical structure of the section might be that one category relates to the stealing of interstate freight, a second to stealing of baggage, and the third, the initial steps of such larceny, i. e., entering a freight car.
We are unable to read the statute other than that Congress intended to make each and every separate act named, a separate crime. See Blockburger v. United States, 7 Cir., 50 F.2d 795; Id., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Carpenter v. Hudspeth, 10 Cir., 112 F.2d 126. If the construction seems harsh, it must also be appreciated that there is a vast difference between the maximum and the minimum sentence provision as there is a vast difference between the action and motives of different offenders. In the trial judge, there is lodged wide discretion, and if misjudgment results in too severe judgments, the accused may secure relief through executive clemency, as well as by parole.
Our problem is to construe the statute. In so doing, we cannot rewrite it, nor ignore the language which is clear.
The court is indebted to counsel appointed to represent appellant, for his earnest and devoted effort to aid the court.
The judgment is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
sc_issuearea
|
A
|
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.
DOBBS v. ZANT, WARDEN
No. 92-5579.
Decided January 19, 1993
Per Curiam.
The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
A Georgia jury found petitioner Wilburn Dobbs guilty of murder and sentenced him to death. In his first federal ha-beas petition, petitioner claimed, inter alia, that he received ineffective assistance from his court-appointed counsel at sentencing. The District Court rejected this claim after holding an evidentiary hearing. Because a transcript of the closing arguments made at sentencing was, by the State’s representation, unavailable, the District Court relied on the testimony of petitioner’s counsel regarding the content of his closing argument to find that counsel had rendered effective assistance. Civ. Action No. 80-247 (ND Ga., Jan. 13, 1984), p. 24. The Court of Appeals for the Eleventh Circuit affirmed, also relying on counsel’s testimony about his closing argument in mitigation. Dobbs v. Kemp, 790 F. 2d 1499, 1514, and n. 15 (1986).
Subsequently, petitioner located a transcript of the penalty phase closing arguments, which flatly contradicted the account given by counsel in key respects. Petitioner moved the Court of Appeals, now reviewing related proceedings from the District Court, to supplement the record on appeal with the sentencing transcript. The court denied this motion without explanation. No. 90-8352 (CA11, Nov. 1,1990).
Affirming the District Court’s denial of relief on other claims, the Eleventh Circuit held that the law of the case doctrine prevented it from revisiting its prior rejection of petitioner’s ineffective-assistance claim. The court acknowledged the manifest injustice exception to law of the case, but refused to apply the exception, reasoning that its denial of leave to supplement the record left petitioner unable to show an injustice. 963 F. 2d 1403, 1409 (1991).
We hold that the Court of Appeals erred when it refused to consider the full sentencing transcript. We have emphasized before the importance of reviewing capital sentences on a complete record. Gardner v. Florida, 430 U. S. 349, 361 (1977) (plurality opinion). Cf. Gregg v. Georgia, 428 U. S. 153, 167, 198 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (Georgia capital sentencing provision requiring transmittal on appeal of complete transcript and record is important “safeguard against arbitrariness and caprice”)- In this case, the Court of Appeals offered no justification for its decision to exclude the transcript from consideration. There can be no doubt as to the transcript’s relevance, for it calls into serious question the factual predicate on which the District Court and Court of Appeals relied in deciding petitioner’s ineffective-assistance claim. As the Court of Appeals itself acknowledged, its refusal to review the transcript left it unable to apply the manifest injustice exception to the law of the case doctrine, and hence unable to determine whether its prior decision should be reconsidered.
On the facts of this case, exclusion of the transcript cannot be justified by the delay in its discovery. That delay resulted substantially from the State’s own erroneous assertions that closing arguments had not been transcribed. As the District Court found: “[T]he entire transcript should have been made available for Dobbs’ direct appeal, and the State represented to this Court that the sentencing phase closing arguments could not be transcribed. Dobbs’ position that he legitimately relied on the State’s representation is well taken.” Civ. Action No. 80-247 (ND Ga., Mar. 6, 1990), p. 4.
We hold that, under the particular circumstances described above, the Court of Appeals erred by refusing to consider the sentencing hearing transcript. The judgment of the Court of Appeals is reversed, and the ease is remanded for further proceedings consistent with this opinion.
So ordered.
The Chief Justice and Justice White would grant certiorari and give the case plenary consideration.
The concurrence suggests, post, at 360-363, that the error in this case, limited in scope to closing arguments at the penalty phase, is likely insignificant. In fact, an inadequate or harmful closing argument, when combined, as here, with a failure to present mitigating evidence, may be highly relevant to the ineffective-assistance determination under Eleventh Circuit law. See King v. Strickland, 714 F. 2d 1481, 1491 (CA11 1983), vacated on other grounds, 467 U. S. 1211, adhered to on remand, 748 F. 2d 1462, 1463-1464 (CA11 1984), cert. denied, 471 U. S. 1016 (1985); Mathis v. Zant, 704 F. Supp. 1062, 1064 (ND Ga. 1989). In any event, we see no reason to depart here from our normal practice of allowing courts more familiar with a case to conduct their own harmless-error analyses.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_casetyp1_7-2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Francis R. RITCHIE, Trustee, Plaintiff, Appellant, v. HEFTLER CONSTRUCTION COMPANY OF PUERTO RICO, INC., Defendant, Appellee.
No. 6724.
United States Court of Appeals First Circuit.
Oct. 3, 1966.
William Boardman Graves, of Parke, Graves & Rodriguez-Maduro, Santurce, P. R., on brief, for appellant.
J. M. Calderon Cerecedo, Hato Rey, P. R., J. M. Calderon Garcia, Christobal Colon, Hato Rey, P. R., and Francisco Alonso Rivera, on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE . and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
This case focuses again upon the comprehensive nature of the jurisdiction of the United States District Court for the District of Puerto Rico which we recently considered in Compagnie National Air France v. Castano, 1 Cir., 1966, 358 F.2d 203. We held there that an alien resident, domiciled in Puerto Rico, could sue another alien, not there domiciled, by virtue of the provisions of 48 U.S.C. § 863. We noted, in passing, that the amendment to section 1332 of Title 28 increasing the general jurisdictional amount to $10,000 had no effect upon the $3,000 minimum contained in section 863. In the case at bar the district court held that it lacked jurisdiction over a suit brought by the trustee in bankruptcy (a local resident) of a Puerto Rican corporation whose principal place of business was in Puerto Rico, against a New Jersey corporation, whose principal place of business was also in Puerto Rico. The court’s statement that “as all of the parties on both sides of the controversy have their principal place of business in the Commonwealth of Puerto Rico and thus no one of them is domiciled elsewhere, this court’s jurisdiction under Title 48 U.S.C. Sec. 863 * * * does not exist,” improperly equates principal place of business with domicile. Section 863 does not effect such a correlation; the common law has never done it, and the recent Congressional amendment of 28 U.S.C. § 1332(c) redefining corporate citizenship for diversity purposes, like the increase in the jurisdictional amount, was not made applicable to the special Puerto Rico statute.
It may be that in the present social and political development of Puerto Rico, the extent of the diversity jurisdiction of the district court should be reconsidered. However, this is a legislative, not a judicial function. The court misread the statute.
The district court also misread the recent Supreme Court decision in Katchen v. Landy, 1966, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391. In that case the Supreme Court held that where a creditor filed a claim in a bankruptcy proceeding and was met by the defense that it involved a preference, the bankruptcy court’s summary jurisdiction to determine the validity of the claim, and to determine the attendant issue of preference, permitted it to make a disposition of the latter question for all purposes including the grant of affirmative power to compel the surrender of the preference. “Once the bankruptcy court has dealt with the preference issue nothing remains for adjudication in a plenary suit. The normal rules of res judicata and collateral estoppel apply to the decisions of bankruptcy courts.” Id. at 334, 86 S.Ct. at 475. We find nothing in the Court’s language indicating the broad intention ascribed to it by the district court that a creditor who files a claim in a bankruptcy proceeding so submits himself to the jurisdiction of that court that the trustee is foreclosed from bringing plenary actions against him on another matter within the general jurisdiction of the district court. The Court expressly declined to intimate whether the filing of a claim submitted the claimant to the jurisdiction of the bankruptcy court “to adjudicate * * * [another] demand by the trustee for affirmative relief * * * ” Id. at 333 n. 9, 86 S.Ct. at 474.
Section 23(b) of the Bankruptcy Act provides: “Suits by the receiver and the trustee shall be brought or prosecuted only in the courts where the bankrupt might have brought or prosecuted them if proceedings under this title had not been instituted, unless by consent of the defendant, except * * *.” (The exceptions are not here relevant.) It is true that several circuits have applied this section to permit the bankruptcy court to adjudicate and grant affirmative relief on counterclaims by the trustee arising out of the same contract that formed the basis of the alleged creditor’s claim in the bankruptcy proceedings, treating the filing of the claim as itself supplying the requisite consent. See, e. g., Peters v. Lines, 9 Cir., 1960, 275 F.2d 919. Assuming this to be correct, it hardly furnishes support for the proposition that the filing of a creditor’s claim restricts the trustee to the bankruptcy court for counterclaims, let alone new matters, foreclosing his election to proceed in a court where he could obtain a plenary hearing and trial by jury. We see no ground or reason for so limiting a trustee’s choice of forum.
Judgment will be entered vacating the judgment of dismissal entered by the district court and remanding the action to the court for further proceedings not inconsistent herewith.
. See, e.g., Mississippi Pub. Corp. v. Murphree, 1946, 326 U.S. 438, 441 n. 2, 66 S.Ct. 242, 90 L.Ed. 185.
. See also P.L. 89-571, September 12, 1966, 80 Stat. 764.
. 11 U.S.C. § 46(b).
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_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION, LOCAL 16; Sheet Metal Workers’ International Association, AFL-CIO, Respondents.
No. 86-7538.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 3, 1989.
Decided April 25, 1989.
Donald W. Fisher, of Toledo, Ohio, for respondent Sheet Metal Workers’ Intern. Ass'n, AFL-CIO. Donald S. Richardson, Richardson & Murphy, of Portland, Oregon, for respondent Sheet Metal Workers’ Intern. Ass’n, Local 16.
Susan L. William, Elaine Patrick, and Laurence Zakson, of Washington D.C., for petitioner N.L.R.B.
Before SKOPIL, PREGERSON and NOONAN, Circuit Judges.
SKOPIL, Circuit Judge;
The National Labor Relation Board (“Board”) petitions for enforcement of its order declaring that a provision in a union constitution violates section 8(b)(1)(A) of the National Labor Relations Act (the “Act”), 29 U.S.C. § 158(b)(1)(A) (1982). The provision at issue, found in the Sheet Metal Workers’ International and Local 16 union constitution, provides in part that:
No resignation shall be accepted if offered in anticipation of charges being preferred against [the union member], during the pendancy (sic) of any such charges or during a strike or lockout.
An administrative law judge held that the “mere maintenance of these resignation restrictions in the governing documents of the International and Local 16 coerces and restrains employee-members from exercising their Section 7 rights” in violation of section 8(b)(1)(A). 274 N.L.R.B. 41, 43 (1985). The Board ordered the union to cease and desist its unfair labor practices by expunging the resignation restrictions from its constitution. Id. at 44. We enforce the Board’s order.
DISCUSSION
Section 7 of the Act grants employees “the right to refrain from any or all [concerted] ... activities_” 29 U.S.C. § 157 (1982). This general right is implemented by section 8(b)(1)(A) which provides that unions commit unfair labor practices if they “restrain or coerce employees in the exercise” of their section 7 rights. 29 U.S. C. § 158(b)(1)(A). The union here does not challenge the Board’s determination that the restriction on resignations during a strike or lockout is an unfair labor practice in violation of section 8(b)(1)(A). See Pattern Makers’ League v. NLRB, 473 U.S. 95, 100, 105 S.Ct. 3064, 3067, 87 L.Ed.2d 68 (1985) (striking down fines imposed on employees who tendered resignations which were ineffective under a union constitution); Machinists Local 1327, Int’l Ass’n of Machinists & Aerospace Workers v. NLRB, 773 F.2d 1070, 1071 (9th Cir.1985) (striking down fines imposed by a union against members who sought to resign their membership and return to work during a strike). The union’s failure to contest this holding constitutes a waiver of further argument, and the Board is therefore entitled to summary enforcement of this uncontested portion of its order. NLRB v. Nevis Indus., Inc., 647 F.2d 905, 908 (9th Cir.1981) (failure to object constitutes waiver).
The union does contest, however, the Board’s conclusion that the prohibition on resignations in anticipation of or during the pendency of union charges violates sections 7 and 8(b)(1)(A). The union contends that Pattern Makers’ should be narrowly construed to bar only resignation restrictions during a strike or lockout — not in the context of union charges against a member. The union also asserts that, as a matter of policy, the Board is improperly intruding upon the union’s relationship with its members by enforcing the rule that “any ... restriction a union may impose on resignation” violates the Act. See International Ass’n of Machinists & Aerospace Workers, Local 1414 (Neufeld Posche-Audi), 270 N.L.R.B. 1330, 1331 (1984). Finally, the union claims that the Board’s interpretation of the Act is inconsistent with legislative history.
We have not previously reviewed resignation restrictions in the context of pending charges against a union member. The Seventh Circuit, however, has squarely addressed the issue presented in this case. In NLRB v. Local 73, Sheet Metal Workers’Int’l Ass’n, 840 F.2d 501 (7th Cir.1988), the same constitutional provision at issue here was held to violate the Act. In addressing the identical union arguments, the Seventh Circuit acknowledged “room for debate about the precise scope and effect of the Pattern Makers’ holding,” but nonetheless could not “accept the ... implication that Pattern Makers’ is irrelevant to the instant case, or that the reasoning of the Court bears no resemblance to that of the Board in Neufeld.” Id. at 505.
Regarding the union’s policy arguments, the court stated:
No doubt the Unions have a significant and legitimate interest in holding their members accountable for their membership obligations. However, following the lead of Pattern Makers’ and acknowledging the deference due the Board’s construction of the Act, we must accept the NLRB’s conclusion that the Unions’ rule barring the resignations of members who resign in anticipation, or during the pendency, of charges of union misconduct restrains and coerces such members in the exercise of their section 7 rights.
Id. at 506-07. The court further noted that “unions are not stripped of their power to discipline members” because the NLRB has upheld “union efforts to discipline former members for their preresignation misconduct.” Id. at 507 (citing Newspaper Guild of New York, Local 31 (New York Times), 272 N.L.R.B. 338 (1984)).
Finally, the court agreed with Pattern Makers’ that the relevant legislative history was ambiguous. Id. at 508. The court reasoned that the “inconclusive historical evidence ... fall[s] short of showing that the NLRB’s interpretation of the Act is unreasonable.” Id.
The Seventh Circuit enforced the Board’s order requiring the union to expunge the provision from the union’s constitution. Id. Since Local 73, the Sixth Circuit has also enforced the Board’s order striking down similar union resignation restrictions. See International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Local 449 v. NLRB, 865 F.2d 791, 793 (6th Cir.1989). We see no reason to depart from these decisions. We agree with the Sixth and Seventh Circuits’ reasoning and thus hold that the union’s resignation restrictions at issue here violate section 8(b)(1)(A). Accordingly, we will enforce the Board’s order.
ENFORCED.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appnatpr
|
1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
Sandra GILBERTSON, Appellant, v. STATE FARM MUTUAL AUTO INS., Appellees. Carol Jean GILBERTSON, Appellant, v. STATE FARM MUTUAL AUTO INS., Appellees. Alvin GILBERTSON, Appellant, v. STATE FARM MUTUAL AUTO INS., Appellees.
Nos. 85-2776 to 85-2778.
United States Court of Appeals, Tenth Circuit.
April 26, 1988.
Karen E. Faulk (Ed Abel with her on the brief) of Abel, Sokolosky & Clark, Oklahoma City, Okl., for plaintiffs/appellants.
Brian M. Dell of Speck & Dell, Oklahoma City, Okl., for defendant/appellee State Farm.
Before SEYMOUR and MOORE, Circuit Judges, and ALDON J. ANDERSON, District Judge.
Honorable Aldon J. Anderson, Senior Judge, United States District Court, District of Utah, sitting by designation.
ALDON J. ANDERSON, District Judge.
The District Court below granted summary judgment to defendant State Farm Mutual Automobile Insurance Company, holding that the plaintiffs’ auto accident was beyond the coverage of the uninsured motorist clause in plaintiffs’ policy because it did not arise out of the operation, maintenance or use of the uninsured vehicle. Plaintiffs appeal.
The facts of the case are as follows: In late afternoon of December 22, 1982, defendant Steven York borrowed a car belonging to his girlfriend Deloris Marion. (Deposition of Steven York, pp. 8, 12, 40.) Over the next several hours York used her car to run some errands and to drive alone around town. (York deposition, p. 38.) During the early evening, he drank about twelve cans of beer. (York deposition, p. 10.)
Shortly before 10:00 p.m., York drove Marion’s car onto the Prairie Grove Road overpass just south of Guthrie, Oklahoma. On prior occasions, York and some of his friends had dropped rocks from this overpass onto eighteen-wheel trucks traveling on Interstate 35 below. (York deposition, pp. 12, 32, 42.) About four minutes before 10:00 on this evening, York was balancing a 51-pound rock on the ledge of the overpass when it slipped and fell on a pick-up truck occupied by plaintiff Alvin Gilbert-son, his daughter, plaintiff Sandra Gilbert-son, and his wife, Carol Jean Gilbertson. All three were seated in the front seat of the pickup. Carol Jean Gilbertson was killed and Alvin and Sandra Gilbertson suffered serious injuries. It is not clear whether York carried the rock onto the overpass from a spot nearby or transported it to the overpass after finding it elsewhere. (York deposition, pp. 24, 25, 34, 35, 40.) Due to his intoxicated state that evening, York does not remember where he found the rock.
Plaintiffs seek compensation under their insurance policy on grounds that the accident arose out of the operation, maintenance and use of Marion’s uninsured vehicle, as these terms are used in the uninsured motorist clause of plaintiffs’ policy.
On an appeal from a ruling on a Rule 56 Summary Judgment motion, the court’s role is essentially that of de novo review. The court is to make sure that there exists no genuine issue of fact and that the movant is entitled to judgment as a matter of law. Interpretation of contractual clauses is a matter of law. The issue on appeal is whether the accident which resulted in plaintiffs’ injuries arose as a matter of law out of the operation, maintenance or use of Marion’s car. Since the court finds that the accident did not arise out of the operation, maintenance or use of Marion’s car, even when the facts are viewed in the light most favorable to plaintiffs, it holds that defendant State Farm is entitled to a judgment as a matter of law and the District Court’s entry of summary judgment was proper.
Plaintiffs claim that the following actions by defendant York demonstrate that the accident arose out of the operation and use of Marion’s car: York’s driving the car to the vicinity of the overpass, his using the car to locate a rock, and his then using the car to transport both himself and the rock to the place on the overpass from which he dropped the rock.
Minnesota courts have frequently struggled with the definition of “arising out of the operation and use” of a vehicle. While each case must be decided'on its own peculiar facts, a number of rules have emerged. They fall into two fairly distinct sets. The first is the use to which the car was put around the time the accident occurred. The accident must have arisen out of the use of the vehicle as a vehicle. Fire and Casualty Insurance Co. of Connecticut v. Illinois Farmers Insurance Co., 352 N.W.2d 798 (Minn.Ct.App.1984). The use of the vehicle must have been for transportation purposes. Haagenson v. National Farmers Union Property and Casualty Co., 277 N.W.2d 648, 652 (Minn.1979). The car must have been more than the mere situs of the injury. Tlougan v. Auto-Owners Insurance Co., 310 N.W.2d 116 (Minn. 1981). And the vehicle must have been an active accessory to the accident. Holm v. Mutual Service Casualty Insurance Co., 261 N.W.2d 598 (Minn.1977).
The second set of rules the courts have developed relates to the requisite causal connection between the vehicle and the injury sustained. It is well-established that a causal relationship or connection must exist. Haagenson, 211 N.W.2d at 652. The use of the vehicle need not be the proximate cause of the accident. Associated Independent Dealers, Inc. v. Mutual Service Insurance Companies, 229 N.W.2d 516, 518 (Minn.1975). The necessary causal relationship may exist as long as the accident would not have happened “but for” the use of the vehicle. Waseca Mutual Insurance Co. v. Noska, 331 N.W.2d 917, 920 (Minn.1983). On the other hand, the mere fact that the use of the vehicle preceded the accident is insufficient to establish that the accident arose out of such use. Associated Independent Dealers, 229 N.W.2d at 518. The accident must have been a natural and reasonable incident or consequence of the use of the vehicle. Id. And the causal connection will be considered to have been severed by any intervening act of independent significance. Holm, 261 N.W.2d at 603.
In the present case, there is no question that the vehicle was used for transportation purposes inasmuch as it was involved in the accident. Itjs assumed for purposes of this appeal that the car transported both York and the rock to the overpass. The real question in this case is one of causation. The court feels that York’s exiting the car, removing the rock from the car, carrying the rock to the ledge of the overpass, balancing it on the ledge and then allowing it to fall, taken together, constituted an act of independent significance which broke the causal link between the use of the car and the Gilbertsons’ injuries. Neither the car’s locomotion nor any of its mechanical functions was involved in either York’s dropping the rock nor the rock’s hitting the Gilbertson vehicle. York’s dropping the rock was not a vehicular-related act such as would only likely occur in a motorized society. As the Minnesota Supreme Court said in Associated Independent Dealers, the accident must be a natural and reasonable incident or consequence of the use of the vehicle for transportation purposes. The mere fact that the use of the vehicle preceded the accident is not sufficient to establish the causal connection. 229 N.W.2d at 518. In the present case, Marion’s car was nothing more than the vehicle which brought the offender and his weapon to the scene of the crime. There is hardly any activity in our society which is not preceded by the use of an automobile.
In Wieneke, 397 N.W.2d at 599, the court said that the accident must be actively connected with the use of the vehicle. In the present case, however, the car was parked and both York and the Gilbertsons were physically separated from it. The injury was caused by the rock falling from the overpass — not by any use of the vehicle.
In Holm, 261 N.W.2d at 598, the plaintiff suffered injuries at the hands of a police officer in the course of an arrest. Plaintiff claimed that his injuries arose out of the use of a police car under the municipality’s insurance policy because the officer had chased him to the source of the arrest in a squad car. In rejecting the plaintiff’s argument, the Minnesota Supreme Court said that the officer’s leaving the car and then inflicting a battery on the plaintiff were acts of independent significance which broke the causal link between the use of the vehicle and the injuries inflicted.
Officer Converse used the police car only as a means of transportation to the scene of the arrest and battery. Thereafter, Converse was physically separated from the vehicle, and no part or instrumentality of the vehicle ever came into contact with Holm.
Id. at 603.
In Associated Independent Dealers, 229 N.W.2d at 516, a fire was started by the use of an acetylene torch. While the torch was being used, the oxygen tanks were kept in the van which had brought the equipment to the scene. The Minnesota Supreme Court said:
We hold that, under the facts of this case, the trial court could not find the requisite causal link between the alleged “use” of the insured vehicle and the fire. It is clear from the record that the fire was caused by the actual cutting of the rails or by improper maintenance of the warehouse. In any event, the fact that part of the acetylene cutting equipment was in the van when the fire began was a mere fortuity. The relationship between the use of the van and the ignition of the fire was camal at best, and in our view that link was not sufficient to bring the fire within the coverage afforded by defendant’s policy. The scope of coverage afforded therein must end at some point, and such is the case in this litigation.
Id. at 518-19.
In Wieneke, 397 N.W.2d at 597, plaintiff and another motorist exchanged heated words at a stoplight after which the other motorist got out of his car and punched the plaintiff who was still seated in his own car. In rejecting the plaintiffs arguments that his injuries arose out of the use of the other motorist’s car and were therefore covered by the insured motorist clause in his insurance policy, the court said:
Although the fistfight in this case may have been precipitated by the driving conduct of the two men, Wieneke’s injuries were not actively connected to the maintenance or use of a motor vehicle. The injuries resulted from Beedle’s punching him in the nose.
Id. at 599.
In Fire and Casualty Insurance, 352 N.W.2d at 798, the plaintiff was accidentally shot by his hunting partner who was loading his gun while partially in the car. The court found that the plaintiff was shot because his partner was in a hurry to start hunting — not because of any use of the vehicle as a vehicle — and rejected plaintiff’s claim. It went on to say that “[the hunting partner’s] loading of the gun with the barrel halfway in the car and pointed at Morehouse was extremely careless. Such acts are ‘events of independent significance which [break] the causal link between the “use” of the vehicle and the injuries ... .’” Id. at 800 (quoting Holm v. Mutual Service Casualty Insurance Co., 261 N.W.2d 598, 603 (Minn.1977).
The court concludes, therefore, that the Gilbertsons’ injuries did not arise out of the operation, maintenance and use of Marion’s uninsured vehicle and that the District Court’s grant of summary judgment to defendant was proper.
AFFIRMED.
. The insurance policy, provided by the parties, states in the section on uninsured motor vehicle coverage: "We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle." State Farm Mutual Automobile Insurance Company, Policy Form 9823.3, Your State Farm Car Policy 13.
. All factual inferences are to be drawn in favor of the party opposed to the motion. In this case, it is not clear whether defendant York carried the rock onto the overpass from a spot nearby or drove it there from somewhere else. For the purposes of this review, therefore, the court assumes that York drove the rock onto the overpass and then removed it from Marion’s car before setting it on the ledge.
.This court has diversity jurisdiction in this case and state law applies. The insurance policy at issue here was executed in Minnesota and all the plaintiffs are residents of Minnesota. Therefore, it is best to look to Minnesota law. Rhody v. State Farm Mut. Ins. Co., 771 F.2d 1416, 1420 (10th Cir.1985) ("Because no place of performance is indicated, the law of the place where the policy was made must govern the interpretation of uninsured motorist benefits due appellants.”)
. At issue in this case is language from the Gilbertsons’ State Farm insurance policy. Similar language appears in the Minnesota No Fault Automobile Insurance Act. Minnesota courts have held, however, that the “arising out of the operation and use of a vehicle” language is to be interpreted the same way in both situations. Jorgensen v. Auto-Owners Insurance, 360 N.W.2d 397 (Minn.Ct.App.1985); Wieneke v. Home Mutual Insurance Co., 397 N.W.2d 597 (Minn.Ct. App.1987).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_circuit
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I
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
ET MIN NG, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, Appellee.
No. 15767.
United States Court of Appeals Ninth Circuit.
Aug. 5, 1958.
N. W. Y. Char, Honolulu, Hawaii, Wm. J. Gintjee, San Francisco, Cal., for appellant.
Louis B. Blissard, U. S. Atty., Charles B. Dwight, III, Asst. U. S. Atty., Honolulu, Hawaii, for appellee.
Before STEPHENS, Chief Judge, and DENMAN and HAMLEY, Circuit Judges.
HAMLEY, Circuit Judge.
Et Min Ng brought this action against the Attorney General of the United States for a judgment declaring plaintiff to be a national of this country. After a trial without a jury, judgment was entered for defendant. Appealing from that judgment, plaintiff specifies as error the admission of evidence pertaining to a certain blood-grouping test. He also contends that certain findings of fact are clearly erroneous.
Appellant, who was born in China in 1933, arrived at Honolulu on May 15, 1952, and requested admission as a United States citizen. He claimed citizenship by reason of being the asserted son of Hung Way Ng, who, it was claimed, was a citizen of the United States. A board of special inquiry of the Immigration and Naturalization Service determined, after hearing, that this claim was well-founded. That board accordingly, on June 4, 1952, entered an order admitting Et Min Ng as a citizen of the United States.
On May 28, 1953, proceeding under § 341 of the Immigration and Nationality Act, 8 U.S.C.A. § 1452, appellant applied for a certificate of citizenship. The Immigration and Naturalization Service rejected the application, holding that Et Min Ng was not the son of Hung Way Ng. Since Et Min Ng had no immigrant visa, the Service then instituted a deportation proceeding against him.
Following hearings held on August 10 and 13, 1954 and February 2, 1955, the special inquiry officer entered a deportation order against Et Min Ng, based on a finding that he was not the son of Hung Way Ng. On appeal, the Board of Immigration Appeals, on July 13, 1955, upheld the order of deportation.
The instant action for a declaratory judgment was then instituted. At the trial, appellant rested his case after he and his asserted father had testified. The principal evidence produced by the Government consisted of exhibits and testimony relating to a blood-grouping test made in connection with appellant’s 1953 application for a certificate of citizenship. The purport of this evidence was to the effect that Et Min Ng could not possibly be the son of Hung Way Ng.
Appellant objected to the introduction of this evidence on several grounds. All objections were overruled and the evidence was received. The trial court found, on the basis of this evidence, that appellant was not the son of Hung Way Ng. It was therefore concluded that appellant is not a citizen of the United States, and the judgment entered denies the requested relief.
We will first consider appellant’s contention that it was error to admit the evidence relating to the blood-grouping test.
This contention is based primarily on the ground that appellant and his asserted father did not submit voluntarily to the blood test. It is urged that they were coerced into doing so by personnel of the Immigration and Naturalization Service. This was accomplished, according to appellant, by misrepresenting to him and his claimed father that, under then existing rules and regulations, a certificate could not be obtained without first submitting to such a test.
Reception in the trial court of evidence procured under these circumstances, appellant urges, deprived him of due process of law as guaranteed by the Fifth Amendment.
It is not to be doubted that, in this declaratory judgment action, appellant was entitled to a trial conforming to traditional standards of fairness as encompassed in the concept of due process of law. This is not a rigid concept, but depends, to a large extent, upon “an appraisal of the totality of facts” in the particular case. We turn, then, to an examination of the circumstances under which the blood specimens here in question were procured, and the resulting blood-test evidence utilized.
When appellant applied for a certificate of citizenship in 1953, he was unable to present any documentary proof of citizenship. Because of this, personnel of the Honolulu office of the Immigration and Naturalization Service asked appellant and his alleged father to submit to a blood-grouping test. In this connection, they were requested to sign individual mimeographed forms then in use by the Honolulu office.
These forms, as filled in, contain a recital to the effect that the signer agrees to submit to a blood test in connection with the application for a certificate of citizenship. Another recital in the form is to the effect that the signer understands that the blood test could prove that the relationship contended for could not possibly exist. The meaning of these forms was explained to appellant and his claimed father, after which they signed the forms prepared for their respective signatures, and submitted to the test.
The results of the test convinced the Honolulu office of the Immigration and Naturalization Service that Et Min Ng could not possibly be the son of Hung Way Ng. The application for a certificate of citizenship was therefore denied, and, as before noted, a deportation proceeding was instituted.
In the August 1954 deportation hearing, the Government offered, and there was received in evidence, testimony and exhibits relating to the 1958 blood test. Appellant, represented by counsel at that hearing, made no objection to the admission of such evidence on the ground that the test was not submitted to voluntarily. Additional evidence relating to the 1953 blood test was received at the further deportation hearing held in February 1955. Again, there was no objection on the ground now under discussion. There was likewise no contention of this kind during either of the appeals to the Board of Immigration Appeals.
Appellant testified for the first time at the trial in this declaratory judgment action. While he was on the witness stand during the presentation of plaintiff’s case, he testified: “ * * * I was told by the Immigration Service at Honolulu that since I did not have documents to prove my case, I was required to go through a blood test because that is the new regulations.” This was the first hint that appellant would contend that he had been coerced into signing the consent form, and had not voluntarily yielded a blood specimen. This first appearance of such a contention, however, soon evaporated into nothingness, for the quoted testimony was, on the motion of appellant’s counsel stricken as unresponsive.
The blood-test evidence came into this trial during the presentation of the Government’s case. First, Harry K. C. Ching, an official interpreter and translator for the Service, was called to identify the consent forms which appellant and his claimed father had signed. Et Min Ng was next called as an adverse witness, and identified his signature on one of these forms. He then gave the first testimony which remains in the record bearing upon the question of coercion.
Later in the trial, there was additional testimony from appellant to the effect that he had been “forced,” or “required,” to submit to the test, or had been “coerced” into taking it. In one such statement, he testified that had he not been told that such a test was required, he would not have voluntarily submitted to it.
No testimony was offered to the effect that appellant’s asserted father had been coerced into submitting to a blood test. Except for the inferences which may be drawn from Ching’s testimony, referred! to in footnote 5, the Government offered no testimony with regard to whether either appellant or his claimed father had been subjected to coercion.
Accepting at face value all of appellant’s testimony which was not stricken, it would appear that in 1953 the Honolulu office of the Immigration and Naturalization Service required applicants for certificates of citizenship who presented no other documents to submit to a blood test as a condition precedent to action on the application. But the evidence does not support the statement made by the trial court in its oral decision, that appellant was advised that this was a requirement “under the rules and regulations of the Service.”
The trial court stated, in its oral opinion, that there was in effect in 1953 an appropriate immigration rule and regulation allowing the Service to require a blood test when one applied for a certificate of citizenship. If the court was here referring to a formal rule or regulation, its statement is incorrect. There was no such formal rule or regulation until January 3, 1955.
There is some indication, however, that there may then have been in effect an instruction or directive authorizing the procedure which the Honolulu office followed. In United States ex rel. Lee Kum Hoy v. Shaughnessy, 2 Cir., 237 F.2d 307, reversed on other grounds, sub nom. United States ex rel. Lee Kum Hoy v. Murff, 355 U.S. 169, 78 S.Ct. 203, 2 L.Ed. 2d 177, there is a discussion of the history of blood tests in Immigration and Naturalization Service proceedings. Reference is there made to instructions promulgated in early 1953, dealing with visa petitions and certificates of citizenship.
If it be assumed, however, that the Honolulu office was not authorized to require such tests in 1953, a representation made to appellant that his application would not be acted upon until such a test was made would nevertheless have been truthful. That was, indeed, the practice of the Honolulu office in 1953. If appellant has a grievance, then, it is not that he was falsely told that there was a general Service rule or regulation requiring the test. Rather, it is that, without authority to do so, the Honolulu office insisted that a test be made before it would act.
On the assumptions which have been made, the position taken by the Honolulu office was, in a sense, coercive. But it is likewise clear that the record provides no basis for the charge that fraud was practiced upon appellant. At worst, appellant acceded to a requirement which Service personnel had no authority to impose. He has not proved that he was the victim of purposeful misrepresentation.
There are other considerations which must also be borne in mind. The basic contention that appellant was coerced into signing the consent form is suspect, because it was only lately advanced. If there was coercion, due to the unauthorized insistence of the Honolulu office that a blood test be taken, it was not of a kind which could affect the reliability of the evidence procured. There can be no claim that justice has miscarried, since the tests show that appellant is not the son of his claimed father. Had this blood-test evidence been excluded, and had the Government then requested appellant to submit to a new test, his refusal to do so would give rise to an inference adverse to appellant. If a new trial were ordered, the trial court could require appellant to submit to such a blood test.
Absent a proved taint of fraud, and present these other considerations, we conclude that reception of the blood-test evidence procured in the manner indicated did not deprive appellant of due process of law.
Apart from the due process clause of the Fifth Amendment, appellant asserts it was error to admit the blood-test evidence for the following reasons: (1) The evidence was procured in a manner which violated his right of privacy; (2) such a test may not be demanded of a citizen as distinguished from an alien; and (3) the “consent” given in 1953 was with reference to that particular proceeding, and was not a consent to the use of the evidence in any other proceeding. We find these contentions to be without substance or merit.
This brings us to appellant’s argument that the finding of fact that he is not the son of Hung Way Ng is clearly erroneous.
Appellant correctly states that this finding was based upon the evidence pertaining to the blood test. It is argued that this evidence is unreliable and should not have been accepted as overcoming the prima facie case submitted by appellant.
Specifically, it is urged that (1) the worksheet on which the results of the test were tabulated contained an obvious and unexplained error, consisting of the presence of an “M” underneath the “N” where Hung Way Ng’s “MN” blood factor is recorded; (2) the form from which the final report was made, and which could possibly have confirmed or explained this error, was not produced; (3) the persons who performed the test were not qualified; (4) the witness who interpreted the results of the test was not qualified, and was an “interested” person, because he was director of the Honolulu blood bank; and (5) the test was not performed properly, and in accordance with scientific methods, because the person who did the testing called out the results to a recorder, instead of recording them herself.
These considerations were brought to the attention of the trial court. It nevertheless found, in effect, that the results of the test were reliable, and should be given great weight.
In our view, the trial court did not abuse its discretion in determining that the technicians who made the test, and the doctor who interpreted the results, had the necessary expert qualifications.
The remaining considerations advanced by appellant bear upon the weight to be attached to the evidence. The record before us affords no basis for a ruling that the ultimate evaluation which the trial court placed upon the evidence was faulty, or that the finding of fact on the question of paternity was clearly erroneous.
Affirmed.
. Jurisdiction was based on § 360(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1503(a), and the Declaratory Judgments Act, 28 U.S.C.A. § 2201.
. After the August 1954 hearing, the special inquiry officer entered a deportation order. Et Min Ng appealed to the Board of Immigration Appeals, which remanded the proceeding for further evidence. The reopened hearing was held on February 2, 1955.
. The official report on this test reads in part:
“ * * * On the basis of the MN typing, since Ng, Et Min, lacks the N factor, he could not be the son of Ng, Hung Way. Ng, Hung Way has the N factor which means that ali children would have to be either type N or MN, regardless of the mother’s MN type.”
. Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595, involving the due process clause of the Fourteenth Amendment. The court there said: “That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.”
. Ching explained the purpose of such forms in these words: “Well, that is a standard form used by the Immigration Service whenever a person is required to have a blood test, when the applicant is applying for some document which the Immigration Service deems it necessary to have a blood test. And this is the form, standard form, they have to sign.”
. He testified:
“A. I affixed my signature on this form. It was because the Immigration Office refused to issue me this document and I was forced to affix my signature there.
“Q. Who forced you? A. The examiner.
“Q. What did he say to you? A. The examiner told me that because I did not have any documentary proof, so I was forced to go through this blood test. And if I do not go through this blood test, I would not be issued this document, and because I had wanted this document, therefore, I was forced to afiix my signature on this document form.
“Q. Because you wanted the document, is that correct? A. Yes.”
. Appellant testified:
“Q. (By Mr. Dwight) After you had finished testifying did the examiner ask you to do anything further? A. After the hearing was over the examiner told me that because I did not have the necessary documentary evidence, hence I was required to go through a blood test before I would be given this Certificate of Citizenship.
“Q. Did you fill out any papers or forms at the Immigration Service in order that you could take a blood test?
A. Yes. I was forced to affix my signature on a form in order to take this blood test.
“Q. Will you explain what you mean by ‘forced’? A. In other words, I was coerced.
“Q. Isn’t it true that you were told by the examiner that because you didn’t have any documentary evidence he would require a blood test before he would grant the Certificate of Citizenship? A. Yes, the examiner told me that it is the new law of the United States that requires me to go through this blood testing.
“Mr. Dwight: I move to strike the last part of the answer as unresponsive to the question, yonr Honor.
“The Court: Which part?
“Mr. Dwight: Everything after ‘Yes.’
If he wants to bring that out later, he may, but that is not responsive to the question at all.
“The Court: It may go out.”
“Q. (By Mr. Char) After your hearing before the examining officer in your application for a Certificate of Citizenship in 1953 and before signing Defendant’s Exhibit 2, state what did the examining officer say to you? A. The examiner said that because I did not have the necessary documentary evidence I must go through a blood test.
“Q. If the examiner had not said that you were required to take a blood test, would you voluntarily have given yourself for a blood test? A. No.”
“Q. (By Mr. Dwight) And were you willing to take a blood test in order to get it [certificate of citizenship] ? A. I was told that I have to go through this blood test before I. could get this certificate. There is no other way of getting it.
“Q. Were you then willing to take the blood test to get the certificate? A. Because there was no other way of securing the certificate, therefore, I had to go through this blood test.”
. 8 C.F.R., § 10.1, published 19 Fed.Reg. 8058, December 8, 1954, effective January 3, 1955, reads in part:
“ * * * The Service officer authorized to make decisions, may, in his discretion, require the submission of additional evidence, including blood tests where that is deemed helpful and appropriate. * * * ”
. See Matter of D-W-O and D-W-H, 5 I. & N.Dec. 351.
. See Rule 35(a), Federal Rules of Civil Procedure, 28 U.S.C.A.; Dulles v. Quan Yoke Fong, 9 Cir., 237 F.2d 496; Fong Sik Leung v. Dulles, 9 Cir., 226 F.2d 74; United States ex rel. Dong Wing Ott v. Shaughnessy, 2 Cir., 220 F.2d 537; Lue Chow Kon v. Brownell, 2 Cir., 220 F.2d 187; Beach v. Beach, 72 App.D.C. 318, 114 F.2d 479, 131 A.L.R. 804; Yee Szet Foo v. Dulles, D.C., 18 F.R.D. 237. Such a test could not be required of appellant’s claimed father, since he is not a party to the action. Dulles v. Quan Yoke Fong, supra. But there is no testimony in this record, or finding, that the blood specimen yielded by appellant’s asserted father was coerced. Appellant testified only as to the representations made to himself. The alleged father declined to testify on the point, invoking the self-incrimination clause of the Fifth Amendment.
. In this action, appellant had the burden of proving that he is an American citizen. Augello v. Dulles, 2 Cir., 220 F.2d 344. He established a prima facie case by showing that on June 4, 1952, a special board of inquiry had admitted him to the United States as an American citizen. McGrath v. Chung Young, 9 Cir., 188 F.2d 975. This 1952 determination, however, was not res judicata. Lum Mon Sing v. United States, 9 Cir., 124 F.2d 21; Flynn ex rel. Ham Loy Wong v. Ward, 1 Cir., 95 F.2d 742. The Government was entitled to overcome this prima facie case, if it could, by showing that the 1952 determination had been obtained by fraud or error. It sought to do so by introducing in evidence the results of the 1953 blood test.
. In this connection, the court found:
“VII. The blood so extracted was tested under extremely careful, controlled conditions by two qualified technicians; the results were tabulated on a worksheet by the technicians and were compiled and sent to the doctor who himself was a highly qualified expert serologist. The doctor corollated the results of the blood tests as compiled by the technicians.
“VIII. The results showed that, as relates to the MN blood typing, the alleged father had type N blood and the alleged son and plaintiff herein had type M blood.
“IX. The mechanics of the blood tests were done with such care that any possibility of error was reduced to a minimum, and the alleged discrepancy raised concerning the worksheet only goes to prove that the control methods used by the Blood Bank of Hawaii are excellent, and the results of the blood tests should be given great weight.”
. There is some contention that the trial court erred in accepting the results of the blood test as “conclusive.” This refers to the finding of fact that “the results of the blood tests show conclusively that Ng Hung Way, the alleged father of the Plaintiff, cannot possibly be the father of the Plaintiff.” The court was not here stating a proposition of law to the effect that, in all cases, the results of such a test must be accepted as conclusive. It was referring only to the appraisal placed upon the results of this particular test, considered in relation to all other evidence. This is made clear by the court’s immediately-preceding finding that “the results of the blood tests should be given great weight.”
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_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".
CSX TRANSPORTATION, INC., et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Huron Valley Steel Corporation, Intervenor.
No. 90-1563.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 16, 1991.
Decided Jan. 3, 1992.
Fred R. Birkholz, with whom, Richard E. Kienle was on the brief, for petitioners.
Judith A. Albert, Atty., I.C.C., with whom, James F. Rill, Asst. Atty. Gen., John J. Powers, III and John P. Fonte, Attys. Dept, of Justice, and Robert S. Burk, Gen. Counsel and Craig M. Keats, Deputy Associate Gen. Counsel, I.C.C., were on the brief, for respondents.
John Guandolo was on the brief, for in-tervenor.
Before WALD and EDWARDS, Circuit Judges, and FAIRCHILD, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (1988).
Opinion for the Court filed by Senior Circuit Judge FAIRCHILD.
FAIRCHILD, Senior Circuit Judge:
Huron Valley Steel Corporation (“Huron Valley”) filed a complaint with the Interstate Commerce Commission (“ICC” or “Commission”) alleging that the rates charged on shipments of nonferrous scrap metal (“NFSM”) from Anniston, Alabama to Belleville, Michigan, were in violation of 49 U.S.C. § 10731(e) (section 204(e) of the Staggers Act). Administrative Law Judge Frederick M. Dolan, Jr., found the carriers to be in violation of the maximum rate cap for recyclable commodities and ordered the carriers to pay reparations of $339,815 plus interest for shipments from November 7, 1982, through 1985. The carriers appealed to the ICC. The Commission affirmed the decision of the Administrative Law Judge. The carriers petitioned for review.
I. Background
In 1980, Congress enacted the Staggers Rail Act, Pub.L. No. 96-448, 94 Stat. 1895 (1980). Section 204(e) of the Act, codified at 49 U.S.C. § 10731(e), required rail carriers to reduce and maintain rates for transportation of recyclable materials at or below an average revenue-to-variable cost ratio to be set by the ICC. The Commission subsequently set the ratio at 146% and has increased it only slightly from time to time. In order to calculate appropriate rate reductions and refunds, the carriers submitted 1977 cost and revenue data to the Commission. From the data, the Commission prepared “Schedule C” consisting of revenue-to-variable cost ratios broken down by recyclable commodities and the direction of the movement between three regions of the United States, East, West and South. The Commission ordered immediate rate reductions and refunds where these ratios were above the 146% cap.
“Schedule C” included a revenue-to-variable cost ratio for NFSM movements from South to East. Ex Parte No. 386, Increased Freight Rates and Charges-Nationwide-1981, Schedule C at 168 (Dec. 12, 1980) (not printed). The NFSM shipments involved in our case were from South to East. Although the revenue-to-variable cost ratios for particular commodities moving within a region or between regions generally exceeded the 146% cap, and rate reductions and refunds were required, this was not true of NFSM movements from South to East. Apparently, the only relevant movement in 1977 was at a low rate that produced a ratio between 92.7% and 125.5%, depending upon the method of calculation.
On July 11, 1983, the Commission issued a decision concluding that all of the rates “in the aggregate” were at or below the 146% ratio for each commodity. Ex Parte No. 394, Cost Ratio for Recyclables-1980 Determination, 367 I.C.C. 623, 636 (1983). We assume that “aggregate” reflects the fact that, as to a particular commodity moved within a region or between regions, some rates would produce ratios above the cap but be offset by rates producing ratios below the cap.
In 1982, Huron Valley began shipping NFSM from Anniston, Alabama to Belle-ville, Michigan. The Huron Valley traffic was not included in the “Schedule C” data used to calculate rate reductions and refunds because Huron Valley had not yet entered the market in 1977. Interstate Commerce Comm’n v. Seaboard Sys. R.R. Inc., Doc. No. 39886 at 2, 1990 WL 287860, 1990 ICC Lexis 307 (Sept. 17, 1990). The carriers charged Huron Valley rates that produced revenue-to-variable cost ratios well in excess of the statutory cap. Although we have not been told the money amount of rates per unit of weight, quantity and distance, we have assumed that the rates charged Huron Valley in 1982 and later years were substantially in excess of the rate charged for the one relevant 1977 shipment. Huron Valley never received a rate reduction or refund from the carriers. As far as we know, no other shipper of NFSM from South to East received a refund. On November 6, 1984, Huron Valley filed its complaint before the ICC alleging that it was charged rates above the statutory cap in violation of § 204(e). This proceeding involved, up to the time of decision, eleven car movements in 1982, ninety-three in 1983, ninety-seven in 1984, and fifty-four in 1985. Seaboard, at Appendix B. There had been nineteen additional shipments between July 2 and November 7, 1982, but Huron Valley conceded that claims on those shipments were barred by the statute of limitations, 49 U.S.C. § 11706(c)(1) (1982).
The Commission held that a complaint like Huron Valley’s, based on excessive revenue-to-variable cost ratios calculated for individual shipments, was available upon either of two grounds. First, the Commission decided that Norfolk & Western Ry. Co. v. United States, 768 F.2d 373 (D.C.Cir.1985), cert. denied, 479 U.S. 882, 107 S.Ct. 270, 93 L.Ed.2d 247 (1986), was distinguishable from this case because no initial rate reduction had been made on Huron Valley’s shipments and, therefore, there was no danger of a double refund to Huron Valley. Huron Valley’s shipments began after the 1977 compliance data were prepared, and the minimal 1977 data were unrepresentative of Huron Valley’s traffic. Seaboard, at 5-6. The Commission relied in part on a concededly less than perfect analogy with its awards of reparations for individual movements of automobile shredder residue (“ASR”). ASR had not been treated as a separate commodity in Schedule C, but included in a group labeled “All Other Traffic.” The Commission had concluded that a reliable finding of territorial compliance for ASR had thus been prevented. Seaboard, at 6. See Atchison, Topeka & Santa Fe Ry. Co. v. ICC, 851 F.2d 1432, 1433 (D.C.Cir.1988).
Second, the Commission held that Huron Valley’s complaint could be treated as a request for reopening of the original compliance proceeding under 49 U.S.C. § 10327(g). Because the original compliance data for NFSM movements from South to East were based upon minimal transportation activity and, “[b]y the time the compliance process was being completed, substantially higher rates than those used in the compliance proceeding were being applied to significant new movements,” the Commission found that a reopening of the proceedings was appropriate. Seaboard, at 7.
II. Individual Shipments
The carriers argue that this court’s decision in Norfolk & Western prohibits Huron Valley’s complaint based on individual shipments and that, therefore, the Commission’s decision was contrary to law. In Norfolk & Western, this court held that when rates for a recyclable had once been found in compliance with § 204(e) on a territorial average basis (some rates pertaining to the same commodity and territory being above the cap and some at or below the cap) the Commission could not order further reductions and refunds of those rates remaining above the cap but offset by lower rates in the averaging process. Norfolk & Western, 768 F.2d at 381; Atchison, 851 F.2d at 1433.
In Atchison this court reviewed an order granting refunds to a shipper of ASR, based on computation of revenue-to-variable cost ratios computed for individual shipments. The opinion explained that “Norfolk & Western did not address the case of rates above the statutory ceiling that had not been adjusted under the territorial average method” and that ASR had not been “subjected to territorial averaging by the 1981 reductions, apparently for want of a revenue and cost data base sufficient to permit such averaging.” Atchison, 851 F.2d at 1433-34. It does not appear that the Commission’s rationale was challenged in that review nor its propriety decided by this court. The Atchison holdings dealt only with statute of limitations issues, the order was vacated, and the case “remanded for a definitive determination of the proper prescription period.” Id. at 1439.
In the NFSM case before us, NFSM had been treated as a separate commodity in Schedule C, and there were some data, though scant, from which a revenue-to-variable cost ratio was computed, supporting the general finding that rates in the aggregate were in compliance. Norfolk & Western clearly applies here.
The Commission’s decision to entertain an individual complaint from Huron Valley clearly contravenes Norfolk & Western. Norfolk & Western forbade the Commission from “authorizing] reductions or refunds with respect to rates already in compliance with section 204(e) on a territorial average basis.” Norfolk & Western, 768 F.2d at 381. The Commission contends that the unrepresentativeness of the Schedule C data permit it to entertain an individualized petition here. But Norfolk & Western is unequivocal and we will not permit the Commission to avoid it based on an undefined notion of unrepresentative data.
Furthermore, the ICC is incorrect in maintaining that Norfolk & Western does not govern because the Commission’s compliance process based on territorial averaging produced no refunds or reductions regarding South-to-East NFSM rates. Although the Norfolk & Western court’s concern for “double jeopardy” is most poignant where refunds have been ordered, the decision is based on economics of the railroad industry that apply equally strongly here. Because railroads face varying degrees of competition over different routes, territorial averaging, once begun, must be followed in order to guarantee railroads an adequate return on their capital. The revenue-to-variable cost ratio established by § 204(e) and the ICC works to protect both shippers and railroads.
Petitioners [railroads] raise serious charges that the 1983 Decision will lead to violations of the revenue adequacy requirement of § 204(e). Petitioners note that they have already reduced their rates to the 146% level as computed on a territorial average basis. If further individual rate reductions were now ordered, the industry average could fall below the 146% level thereby denying rail carriers adequate revenue in violation of the explicit command of section 204(e). It is no answer to this charge for the Commission to assert that rail carriers will be able to balance individualized rate reductions with individualized increases, since market pressures may prevent the necessary increases from being realized. In that situation, rail carriers would wrongly be forced to subsidize recyclables overall by reducing rates for recyclables on the most profitable routes.
Norfolk & Western, 768 F.2d at 380 n. 8. To the extent that individualized challenges to rates found in aggregate compliance are allowed, revenue adequacy is threatened— regardless of whether a refund was initially ordered.
III. Reopening Compliance PROCEEDING
As a second ground, the Commission decided that it was appropriate to reopen and reconsider its 1983 finding of compliance as to NFSM South-to-East movements. The Commission may reopen a proceeding at any time due to “material error, new evidence, or substantially changed circumstances.” 49 U.S.C. § 10327(g)(1)(A) (1984). The decision to reopen a proceeding is within the discretion of the Commission and will be overturned only upon a showing of a clear abuse of discretion. Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 278, 107 S.Ct. 2360, 2365, 96 L.Ed.2d 222 (1987).
The original compliance proceeding led to a decision, dated July 11, 1983, that the “present rates ... in the aggregate are at or below the 146-percent level.” Ex Parte No. 394, 367 I.C.C. at 628. As to movements of NFSM from South to East, the compliance finding was based solely on the 1977 shipment at a lower rate, which produced a revenue-to-variable cost ratio far below 146%. Because there were no 1977 shipments at the higher (and more profitable) rates charged Huron Valley in 1982 and thereafter, the 1977 experience could not validate the higher rates. The compliance finding could only be correct if it were assumed that territorial averaging of the higher and lower rates when applied to actual shipments would produce a revenue-to-variable cost ratio at or less than 146%. Huron Valley brought forward new evidence to show that that assumption was incorrect. The Commission found that the 1977 compliance data were based upon a single shipment of NFSM from South to East at a relatively low rate. The Commission found that there had been a significant increase in movements of NFSM from South to East since 1977 and that the carriers were charging substantially higher rates on these new movements. “Had those movements taken place during the Schedule C data compilation period, or had that information been brought to our attention in connection with the compliance proceeding, we undoubtedly would have ordered some form of rate reduction.” Seaboard, at 7. The Commission, therefore, had sufficient evidence to conclude that, in its discretion, a reopening of the compliance proceeding was warranted based upon either “new evidence” or “material error.” We conclude that the Commission did not abuse its discretion in reopening the compliance proceeding.
The carriers argue that Huron Valley had the opportunity to bring this evidence to the Commission’s attention during the original compliance proceeding, and by not doing so, Huron Valley waived its objection to the accuracy of the “Schedule C” data. The Commission appropriately considered the timeliness of the complaint in its decision to reopen. The Commission found that Huron Valley had filed its complaint in a timely manner after the close of the compliance proceedings. The Commission noted that, in its decisions, it had repeatedly made reference to the opportunity for individual complaints at a later date. The Commission found that Huron Valley justifiably relied upon these statements and should not be penalized for doing so. Seaboard, at 7-8. We find no abuse of discretion in the Commission’s conclusion that the request was timely.
Our conclusion that the Commission properly reopened its 1983 decision as to NFSM movements from South to East does not, however, bring us to denial of the petition for review. Reopening means just that, and the initial process of possible rate reductions and refunds must be based on territorial averaging.
Norfolk & Western made it very clear that § 204(e) required “the immediate reduction of recyclable rates until territorial average rates are equal to or less than the statutory ratio.” Norfolk & Western, 768 F.2d at 379. Because of the nature of the averaging process, it is possible that individual rates may remain above the statutory level until brought into compliance as a result of inflation. Id.
We must vacate the awards under review and remand for further proceedings which will carry out territorial averaging. The first step is to select a period yielding sufficiently representative data, probably the entire period since Huron Valley began making shipments of NFSM from South to East. Data from all South-to-East NFSM shipments for the period must be included in the averaging process. If, as ICC counsel represents, Huron Valley is the only such shipper, then the result presumably will not change. By considering all similar shipments, this process does not violate Norfolk & Western. Any new rates will be based on average territorial data, and the railroads’ revenue requirements, therefore, will be met.
Petitioner rail carriers have asserted that they failed to analyze or challenge Huron Valley’s costing evidence before the Commission because they relied on their interpretation of Norfolk & Western and the ICC’s 1983 finding that the rates were in compliance. They seek the opportunity to challenge the data if we reject their assumptions. The carriers have surely waived the right to challenge the cost data used by the Commission except for their claim that territorial averaging is the proper method. On remand they will be entitled to challenge Huron Valley’s costing evidence only in the event and to the extent that the Commission finds it appropriate to reexamine that evidence.
IV. Conclusion
The petition for review is granted. The order is vacated, and the matter is remanded to the Commission for further proceedings consistent with this opinion. Each party shall bear its own costs in this court.
. The Commission’s decision stated:
As Schedule C demonstrates, the total variable costs for all NFSM movements in the South-to-East district for 1977 were very small, either $720 or $812 depending on the cost of capital used in the computation. The variable cost for each of the [1982-1985] movements is over $1,000; this suggests that only one small shipment of NFSM moved South-to-East in 1977 (and that it was subject to a relatively low rate). Moreover, there is a great disparity in the revenue/variable cost ratios produced by the Schedule C data and the data for the [1982-1985] movements. Both the single shipment and the differences in ratios support the proposition that Schedule C bears no relation to Huron’s shipments.19
19 That Schedule C is unrepresentative in this case is supported also by the fact that other ratios calculated by the Commission for NFSM are not close to the South-to-East Schedule C ratio. For example, the East-to-South Schedule C ratio was 183.3 percent, and the Commission’s Section of Rail Costing has calculated a Schedule C national average ratio for NFSM of 174.2 percent.
Interstate Commerce Comm’n v. Seaboard Sys. R.R. Inc., Doc. No. 39886 at 5, 1990 WL 287860, 1990 ICC Lexis 307 (Sept. 17, 1990) (footnotes 17 and 18 omitted) (emphasis in original). We assume that in 1977 there was more than one scheduled rate applicable to NFSM movements from South to East, depending on routing and perhaps other factors, and that if Huron Valley had made its shipments in 1977, the higher rate applied to its 1982-85 shipments would have been charged (except for increases in the interim). The ultimate question then, is whether all 1977 rates for NFSM movements from South to East were sufficiently tested and validated for compliance with § 204(e) by the fact that the low rate applied to the one actual 1977 shipment produced a revenue-to-variable cost ratio less than 146%.
Counsel for the Commission does assert that "[t]he Commission inferred that their low rate in effect for 1977 was either an aberration, or was increased substantially (probably in 1982).” Respondent’s Brief at 6-7. We do not find that explanation in the decision. The railroads have relied wholly on the Commission’s 1983 finding that rates, in the aggregate, were in compliance.
. We note that the Commission has adopted regulations, effective November 16, 1989, at 49 C.F.R. ¶ 1145, to ensure continued compliance by rail carriers with § 204(e). The Commission explained that the new regulations
provide for a proceeding to be conducted each year to determine: (1) the revenue/variable cost ratio level corresponding to the statutory cap provision; and (2) the revenue/variable cost ratios produced by current rates on recyclable commodities. The rules also set forth principles and procedures governing review of maximum reasonableness of increases in recyclable commodity rates.
Ex Parte No. 394, Cost Ratios for Recyclables— Compliance Procedures, 6 I.C.C.2d 103, 103 (1989). These regulations arose out of a joint proposal by the railroads and the National Association of Recycling Industries, Inc.
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_origin
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
WILNER v. UNITED STATES.
No. 6015.
Circuit Court of Appeals, Seventh Circuit.
Dec. 30, 1936.
Rehearing Denied Jan. 23, 1937.
Edward H. S. Martin, of Chicago, 111., for appellant.
Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Michael L. Igoe, U. S. Atty., of Chicago, 111., and Wilbur C. Pickett, Randolph C. Shaw, and Fendall Marbury, Sp. Assts. to the Atty. Gen.
Before SPARKS, Circuit Judge, and LINDLEY and BALTZELL, • District Judges.
BALTZELL, District Judge.
This is an action in which appellant seeks to recover upon a war risk insurance contract. The insured, Meyer Wilner, was inducted into the United States Army on September 19, 1917, and was honorably discharged therefrom on March 31, 1919. During the time he was in the military service he made application for, and there was issued to him by appellee, a war risk insurance contract in the sum of $5,000. The premiums on this contract were paid by the deduction of the amount thereof from his pay each month until the date of his discharge, after which date no further premiums were paid. Allowing for the days of grace, his insurance remained in full force and effect until' May 1, 1919, at which time it lapsed for nonpayment of premiums, unless upon that date he was totally and permanently disabled.
The case was tried to a jury, and, at the conclusion of all the evidence, the District Court directed a verdict in favor of appellee, upon which verdict judgment was after-wards rendered. The only error assigned is the action of the court in thus directing a verdict. The only question presented for determination by this appeal is, therefore, whether or not there was substantial evidence to sustain plaintiff’s position which required the case to be submitted to the jury.
At the time Meyer Wilner (hereinafter referred to as the insured) entered the military service he was a young man in good physical condition. He was in the service' only a few months until he went overseas and saw active service at the front. On August 4, 1918, he was injured by a high explosive shell to such an extent that it became necessary to amputate his left leg at a point approximately three inches above the ankle. He received other injuries at that time from which he fully recovered. He was taken to a hospital for treatment, and thereafter received treatment in various hospitals prior to his discharge, both in France and in the United States. The records disclose that the wound had nearly healed on October 11, 1918, was fit for use, and that he had a short time prior thereto been supplied with a peg leg. The records of the hospitals in which he was confined show that he continued to improve until November 23, 1918, on which date he fell, striking the stump and reopening the wound. He received treatment for this injury, and the wound again healed. On February 25, 1919, he was at Camp Upton, and his condition while there was good. He was then wearing a temporary artificial leg, and was so wearing this leg at the time of his discharge. He was discharged from this camp on March 31st following, when, according to the records, his condition was good, although, in view of his occupation, he was said to be partially disabled.
The insured was a shoe salesman prior to his entering military service, and was employed by appellant, his brother, in his shoe store. Shortly following his discharge, he applied for, and was granted, compensation, because of the disability which he suffered while in service. He was paid compensation continuously from the date of his discharge until the date of his death, except while he was in vocational training, during which time he received $80 per month part of the time, and $100 per month the remainder of the time. The amount of compensation paid ranged from $44 per month to $80 per month. In making the physical examination of insured for compensation purposes in April, 1919, the stump was found to be well shrunken and was neither tender nor painful. The scars were well healed. Insured was a single man, making his home with appellant and assisting him in his shoe store, although doing very little work at that time.
The evidence, in addition to a few lay witnesses and several doctors, consists of records compiled at hospitals where insured was confined for treatment. In October, 1919, he complained of the stump being sore, and was given treatment in a government hospital for a few weeks and discharged on December 1st. The 'records of the hospital show that the stump was in good condition and the sore healed at that time. He entered vocational training within a few days after his discharge from this hospital, and continued in this training for almost two years. He had desired vocational training for several months prior to his entrance in such training, and stated that he had no complaint, except the discomfort suffered by the loss of his foot. The training first consisted of tailoring, then of elementary commercial work, and later of salesmanship, and terminated at his own request on October 31, 1921, the records showing that he was rehabilitated and intended to engage in his prewar occupation of shoe salesman. He returned to his brother’s home and did assist him some as a salesman in his shoe store, although his brother and niece testified that he received no wages for his services and that he paid nothing for his board and room. During the next few years he complained occasionally of the stump being painful, especially on hot days. He was examined periodically for this complaint, and was finally admitted to the United States Veterans’ Bureau Hospital at Maywood, 111., on July 3, 1923. At this time there was a discharging sore on the stump, which had been there only a short time. An operation was performed for the purpose of relieving this condition on July 23d, and the insured remained in the hospital until January 4, 1924. In the meantime he had been supplied with a well-fitting artificial leg which he wore without inconvenience or trouble. Later, a small ulcer appeared upon the stump, and he returned to the Maywood Hospital in February, 1924, where he received further treatment, remaining there until March 10th of that year. The treatment thus administered produced satisfactory results, and from then until the time of his death he had no serious trouble with his leg. In fact, no further treatment was necessary, and he wore his artificial leg without discomfort thereafter.
While it is true that both appellant and his daughter, who was less than thirteen years of age at the time insured was discharged from the Army, testified that from the time of his discharge he had been nervous, irritable, and often vomited after his meals, yet their testimony is also' to the effect that his major disability was caused by the loss of his leg. Rose Lambert testified that she had known insured since his discharge from the service and that she had visited in the home of his brother. She had seen him become ill at the table, excuse himself, and retire to another room and vomit. This, she testified, occurred in 1926, 1927, and 1928, but she was certain it did not occur prior to 1922. The report of a physical examination made of insured at the Edward Hines, Jr., Hospital, under date of November 26, 1928, discloses that insured gave a history of having had very little trouble with his leg since 1924, but that he had suffered from very severe aches and pains in his stomach and abdomen about two weeks prior to the date of such examination, and that such pains were accompanied with vomiting, and that they had not cleared up. A further examination was made of him at the same hospital, begun January 23, 1929, and ended February 21, 1929. It was found that he was suffering from cancer of the stomach, from which disease he died on May 15, 1929.
In addition to the testimony of the three lay witnesses for plaintiff, Drs. Beebe and Stutz testified as experts in answer to a hypothetical question addressed to them. The opinion of these witnesses, as to the ability of insured to work during the time in question, is of no value to the court, in view of the recent decisions of the courts. See United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617; United States v. Sparks (C.C.A.) 80 F.(2d) 392.
There were three doctors who had examined insured and who testified for the government. Dr. D. J. Margolis examined him upon two occasions, the first being on July 3, 1923, and the second being on December 8, 1924. The first examination was made at the home of insured because an infection was developing at the end of the stump which prevented him from coming to the office. In the opinion of Dr. Margolis, the insured was able to work upon the occasion of each examination. Dr. B. F. Ward, a specialist in orthopedic surgery, examined insured on February 19, 1924, at which time he had an open sinus or ulceration at the end of the stump leading down into the tissues. At the time of this examination he was not able to work, but could do work as a shoe salesman as quickly as the sinus healed. Dr. Ward examined insured again on December 8, 1924, at which time, he testified, the stump was healed and insured was wearing an artificial limb. It was his opinion that he could follow his usual occupation of shoe salesman at that time. On the same date insured was also examined by Dr. W. A. Danielson, who was also a specialist in orthopedic surgery, and in'whose opinion he was able, at that time, to work as a shoe salesman, or at any other job in which he would not be required to be on his feet all of the time.
There is no doubt, under the evidence, but that insured was partially disabled continuously from the time of his injury until his death. For this partial disability the government compensated him. There must, of course, be more than partial disability before one can recover in an action upon a war risk insurance contract. There must be substantial evidence that insured was totally and permanently disabled at a time when such contract was in force, which was, in the instant case, on or before May 1, 1919. In the absence of such substantial evidence, it was the duty of the court to direct a verdict for the government. Miller v. United States, 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977; United States v. Spaulding, supra; Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492. The language used by this court in the case of United States v. Becker, 86 F.(2d) 818, decided on December 8, 1936, that “the evidence is such as to leave entirely to speculation and conjecture the degree of disability at the requisite time. This is true of both the medical and lay evidence. Consequently there was nothing for the jury except speculation. Such is not sufficient. United States v. Krueger, 77 F.(2d) 171 (C.C.A.7) ; Deadrich v. United States, 74 F.(2d) 619 (C.C.A.9); United States v. Burns, 69 F.(2d) 636 (C.C.A.5) ; United States v. Brown, 76 F.(2d) 352 (C. C. A.l),” is applicable in the instant case.
A careful examination of the evidence convinces us that there is no substantial evidence which would have justified the submission of the case to the jury, and that the court properly directed a verdict for appellee.
The judgment of the District Court 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:
|
songer_injunct
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
FEDERAL TRADE COMMISSION, Petitioner, v. INTERNATIONAL PAPER COMPANY, a corporation, Respondent.
No. 24409.
United States Court of Appeals Second Circuit.
Argued Dec. 14, 1956.
Decided Dec. 14, 1956.
Earl W. Kintner, Gen. B. Dawkins, Asst. Gen. Counsel, John T. Counsel, Robert Gen. Counsel, Washington, D. Loughlin, Asst, to the James E. Corkey, Atty., C., for Federal Trade Commission, petitioner.
Davis, Polk, Wardwell, Sunderland & Kiendl, New York City,!for respondent, Theodore Kiendl, George A. Brownell, John F. Rollins, New York City, and Edward F. Howrey, Washington, D. C., of counsel. !
Before SWAN, MEDINA WATERMAN, Circuit Judges. and
PER CURIAM.
When this petition came on for oral argument on December 14, 1956, it was dismissed from the bench for lack of jurisdiction, with the statement that a written opinion would be handed down later.
The petition was filed November 27, 1956 and the respondent’3 answer on December 11. Without going into greater detail it will suffice to say that the petition alleges in substance that on November 5, 1956 the stockholders of International Paper Company, a New York corporation, and the stockholders of two Missouri corporations, Long-Bell Lumber Corporation and Long-Bell Lumber Company, voted upon and approved a plan of merger; that on November 6, 1956 the Federal Trade Commission filed a complaint charging that International by acquisition of the two Long-Bell companies had violated section 7 of the amended Clayton Act, 15 U.S.C.A. § 18, in that such acquisition may substantially lessen competition or tend to create a monopoly as more particularly specified in the complaint; and that if the Commission, after hearings, should find that section 7 has been violated and should order International to divest itself of stock and assets acquired, “it will be impossible to separate the acquired assets from those which are the joint result of the combined operations and the assets of International,” if action contemplated by the respondent with respect to the acquired companies is allowed to occur. The prayer for injunc-tive relief in substance asks that the status quo be maintained until conclusion of the administrative proceeding.
The Clayton Act contains a scheme of dual enforcement. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303. Section 7 of the Act, and certain other sections not here relevant, may be enforced either by cease and desist orders of the Commission, 15 U.S.C.A. § 21, or by suits in equity instituted by the several district attorneys in their respective districts, under the direction of the Attorney General, 15 U.S.C.A. § 25. United States Alkali Export Ass’n v. United States, 325 U.S. 196, 208, 65 S.Ct. 1120, 89 L.Ed. 1554. Individuals may also have injunctive relief against threatened loss or damage by a violation of the anti-trust laws under the same conditions and principles as govern the granting of injunctions by courts of equity, that is to say, district courts, 15 U.S.C.A. § 26. These specific provisions as to who may seek injunctive relief, and in what courts, imply that the Commission itself is not authorized to do so. This implication is required by the statutory provisions of 15 U.S.C.A. § 21, under which a court of appeals acquires jurisdiction to review an order of the Commission only after the administrative proceeding has been concluded and a transcript of the record therein filed with the court. The Commission’s findings of fact, if supported by substantial evidence, are conclusive upon the court, and if either party shows grounds for adducing additional evidence, the court may order it to be taken before the Commission. The Clayton Act clearly recognizes that a court of appeals has no fact finding powers, and that if an injunction is to be obtained by a United States Attorney or a private litigant it must be sought in a U. S. District Court under sections 25 or 26 of Title 15, U.S.C.A. Nor did this legislation contemplate applications by the Commission for interlocutory relief by way of injunction to maintain the status quo during the pend-ency of a proceeding before the Commission.
Relying upon Board of Governors of Federal Reserve System v. Transamerica Corp., 9 Cir., 184 F.2d 311, the Commission argues that authority for it to seek an injunction here may be implied from the “all writs” section, 28 U.S.C. § 1651(a), which authorizes the Courts of Appeals to issue any writ “necessary or appropriate in aid of their respective jurisdictions.” But, since the pattern of enforcement adopted by the Congress in the Clayton Act makes clear that the Commission was not intended to have such authority, the “all writs” section cannot be invoked to circumvent this limitation. And, if the Commission has no authority to seek an injunction, it is clear we have no power to grant it such relief! With all due respect to our brethren of the Ninth Circuit, we are therefore constrained to disagree with the conclusion arrived at in the Transamerica case.
Action dismissed.
. Cf. Federal Power Comm. v. Metropolitan Edison Co., 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408; In re National Labor Relations Board, 304 U.S. 486, 58 S.Ct. 1001, 82 L.Ed. 1482.
. It may well be that the Third Circuit in the recent Farm Journal case, D. 6388, also disagreed -with the Transamerica case, but, as no opinion was written, the precise ground on whibl the Third Circuit refused to grant the requested injunction does not appear.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_respondentstate
|
41
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
McINTYRE, executor of ESTATE OF McINTYRE, DECEASED v. OHIO ELECTIONS COMMISSION
No. 93-986.
Argued October 12, 1994
Decided April 19, 1995
Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., filed a concurring opinion, post, p. 358. Thomas, J., filed an opinion concurring in the judgment, post, p. 358. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 371.
David Goldberger argued the cause for petitioner. With him on the briefs were George Q. Vaile, Steven R. Shapiro, Joel M. Gora, Barbara P. O’Toole, and Louis A. Jacobs.
Andrew I. Sutter, Assistant Attorney General of Ohio, argued the cause for respondent. With him on the briefs were Lee Fisher, Attorney General, Andrew S. Bergman, Robert A. Zimmerman, and James M. Harrison, Assistant Attorneys General, Richard A. Cordray, State Solicitor, and Simon B. Karas
Briefs of amici curiae urging affirmance were filed for the State of Tennessee et al. by Charles W. Burson, Attorney General of Tennessee, Michael E. Moore, Solicitor General, and Michael W. Catalano, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Bruce M. Botelho of Alaska, Winston Bryant of Arkansas, Gale A. Norton of Colorado, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Pamela Fanning Carter of Indiana, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P Mazurek of Montana, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T Poritz of New Jersey, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, T Travis Medlock of South Carolina, Mark Barnett of South Dakota, and Jeffrey L. Amestoy of Vermont; and for the Council of State Governments et al. by Richard Ruda and Lee Fennell.
Charles H. Bell, Jr., and Robert E. Leidigh filed a brief for the California Political Attorneys Association as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a “law . . . abridging the freedom of speech” within the meaning of the First Amendment.
I
On April 27, 1988, Margaret McIntyre distributed leaflets to persons attending a public meeting at the Blendon Middle School in Westerville, Ohio. At this meeting, the superintendent of schools planned to discuss an imminent referendum on a proposed school tax levy. The leaflets expressed Mrs. McIntyre’s opposition to the levy. There is no suggestion that the text of her message was false, misleading, or libelous. She had composed and printed it on her home computer and had paid a professional printer to make additional copies. Some of the handbills identified her as the author; others merely purported to express the views of “CONCERNED PARENTS AND TAX PAYERS.” Except for the help provided by her son and a friend, who placed some of the leaflets on car windshields in the school parking lot, Mrs. McIntyre acted independently.
While Mrs. McIntyre distributed her handbills, an official of the school district, who supported the tax proposal, advised her that the unsigned leaflets did not conform to the Ohio election laws. Undeterred, Mrs. McIntyre appeared at another meeting on the next evening and handed out more of the handbills.
The proposed school levy was defeated at the next two elections, but it finally passed on its third try in November 1988. Five months later, the same school official filed a complaint with the Ohio Elections Commission charging that Mrs. McIntyre's distribution of unsigned leaflets violated § 3599.09(A) of the Ohio Code. The commission agreed and imposed a fine of $100.
The Franklin County Court of Common Pleas reversed. Finding that Mrs. McIntyre did not “mislead the public nor act in a surreptitious manner,” the court concluded that the statute was unconstitutional as applied to her conduct. App. to Pet. for Cert. A-34 to A-35. The Ohio Court of Appeals, by a divided vote, reinstated the fine. Notwithstanding doubts about the continuing validity of a 1922 decision of the Ohio Supreme Court upholding the statutory predecessor of § 3599.09(A), the majority considered itself bound by that precedent. Id., at A-20 to A-21, citing State v. Babst, 104 Ohio St. 167, 135 N. E. 525 (1922). The dissenting judge thought that our intervening decision in Talley v. California, 362 U. S. 60 (1960), in which we invalidated a city ordinance prohibiting all anonymous leafletting, compelled the Ohio court to adopt a narrowing construction of the statute to save its constitutionality. App. to Pet. for Cert. A-30 to A-31.
The Ohio Supreme Court affirmed by a divided vote. The majority distinguished Mrs. McIntyre’s case from Talley on the ground that § 3599.09(A) “has as its purpose the identification of persons who distribute materials containing false statements.” 67 Ohio St. 3d 391, 394, 618 N. E. 2d 152, 154 (1993). The Ohio court believed that such a law should be upheld if the burdens imposed on the First Amendment rights of voters are “‘reasonable’” and “‘nondiscriminatory.’” Id., at 396, 618 N. E. 2d, at 155, quoting Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). Under that standard, the majority concluded that the statute was plainly valid:
“The minor requirement imposed by R.C. 3599.09 that those persons producing campaign literature identify themselves as the source thereof neither impacts the content of their message nor significantly burdens their ability to have it disseminated. This burden is more than counterbalanced by the state interest in providing the voters to whom the message is directed with a mechanism by which they may better evaluate its validity. Moreover, the law serves to identify those who engage in fraud, libel or false advertising. Not only are such interests sufficient to overcome the minor burden placed upon such persons, these interests were specifically acknowledged in [First Nat. Bank of Boston v.] Bellotti[, 435 U. S. 765 (1978),] to be regulations of the sort which would survive constitutional scrutiny.” 67 Ohio St. 3d. at 396, 618 N. E. 2d, at 155-156.
In dissent, Justice Wright argued that the statute should be tested under a more severe standard because of its significant effect “on the ability of individual citizens to.freely express their views in writing on political issues.” Id., at 398, 618 N. E. 2d, at 156-157. He concluded that § 3599.09(A) “is not narrowly tailored to serve a compelling state interest and is, therefore, unconstitutional as applied to McIntyre.” Id., at 401, 618 N. E. 2d, at 159.
Mrs. McIntyre passed away during the pendency of this litigation. Even though the amount in controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court. Our grant of certiorari, 510 U. S. 1108 (1994), reflects our agreement with his appraisal of the importance of the question presented.
II
Ohio maintains that the statute under review is a reasonable regulation of the electoral process. The State does not suggest that all anonymous publications are pernicious or that a statute totally excluding them from the marketplace of ideas would be valid. This is a wise (albeit implicit) concession, for the anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the protections of the First Amendment.
“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” Talley v. California, 362 U. S., at 64. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.
The, freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices. 362 U. S. 60. Writing for the Court, Justice Black noted that “[persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Id., at 64. Justice Black recalled England’s abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. Id., at 64-65. On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of political rhetoric, where “the identity of the speaker is an important component of many attempts to persuade,” City of Ladue v. Gilleo, 512 U. S. 43, 56 (1994) (footnote omitted), the most effective advocates have sometimes opted for anonymity. The specific holding in Talley related to advocacy of an economic boycott, but the Court’s reasoning embraced a respected tradition of anonymity in the advocacy of political causes. This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one’s conscience without fear of retaliation.
Ill
California had defended the Los Angeles ordinance at issue in Talley as a law “aimed at providing a way to identify those responsible for fraud, false advertising and libel.” 362 U. S., at 64. We rejected that argument because nothing in the text or legislative history of the ordinance limited its application to those evils. Ibid. We then made clear that we did “not pass on the validity of an ordinance limited to prevent these or any other supposed evils.” Ibid. The Ohio statute likewise contains no language limiting its application to fraudulent, false, or libelous statements; to the extent, therefore, that Ohio seeks to justify § 3599.09(A) as a means to prevent the dissemination of untruths, its defense must fail for the same reason given in Talley. As the facts of this case demonstrate, the ordinance plainly applies even when there is no hint of falsity or libel.
Ohio’s statute does, however, contain a different limitation: It applies only to unsigned documents designed to influence voters in an election. In contrast, the Los Angeles ordinance prohibited all anonymous handbilling “in any place under any circumstances.” Id., at 60-61. For that reason, Ohio correctly argues that Talley does not necessarily control the disposition of this case. We must, therefore, decide whether and to what extent the First Amendment’s protection of anonymity encompasses documents intended to influence the electoral process.
Ohio places its principal reliance on eases such as Anderson v. Celebrezze, 460 U. S. 780 (1983); Storer v. Brown, 415 U. S. 724 (1974); and Burdick v. Takushi, 504 U. S. 428 (1992), in which we reviewed election code provisions governing the voting process itself. See Anderson, supra (filing deadlines); Storer, supra (ballot access); Burdick, supra (write-in voting); see also Tashjian v. Republican Party of Conn., 479 U. S. 208 (1986) (eligibility of independent voters to vote in party primaries). In those cases we refused to adopt “any ‘litmus-paper test’ that will separate valid from invalid restrictions.” Anderson, 460 U. S., at 789, quoting Storer, 415 U. S., at 730. Instead, we pursued an analytical process comparable to that used by courts “in ordinary litigation”: We considered the relative interests of the State and the injured voters, and we evaluated the extent to which the State’s interests necessitated the contested restrictions. Anderson, 460 U. S., at 789. Applying similar reasoning in this case, the Ohio Supreme Court upheld § 3599.09(A) as a “reasonable” and “nondiscriminatory” burden on the rights of voters. 67 Ohio St. 3d, at 396, 618 N. E. 2d, at 155, quoting Anderson, 460 U. S., at 788.
The “ordinary litigation” test does not apply here. Unlike the statutory provisions challenged in Storer and Anderson, § 3599.09(A) of the Ohio Code does not control the mechanics of the electoral process. It is a regulation of pure speech. Moreover, even though this provision applies evenhandedly to advocates of differing viewpoints, it is a direct regulation of the content of speech. Every written document covered by the statute must contain “the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor.” Ohio Rev. Code Ann. § 3599.09(A) (1988). Furthermore, the category of covered documents is defined by their content — only those publications containing speech designed to influence the voters in an election need bear the required markings. Ibid. Consequently, we are not faced with an ordinary election restriction; this case “involves a limitation on political expression subject to exacting scrutiny.” Meyer v. Grant, 486 U. S. 414, 420 (1988).
Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio statute occupies the core of the protection afforded by the First Amendment:
“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to ‘the exposition of ideas,’ Winters v. New York, 333 U. S. 507, 510 (1948), ‘there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, ... of course including] discussions of candidates . . . .’ Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’ New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation, As the Court observed in Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971), ‘it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’” Buckley v. Valeo, 424 U. S. 1, 14-15 (1976) (per curiam).
Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections such as the school tax referendum that Mrs. McIntyre sought to influence through her handbills. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776-777 (1978) (speech on income tax referendum “is at the heart of the First Amendment’s protection”). Indeed, the speech in which Mrs. McIntyre engaged — handing out leaflets in the advocacy of a politically controversial viewpoint — is the essence of First Amendment expression. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672 (1992); Lovell v. City of Griffin, 303 U. S. 444 (1938). That this advocacy occurred in the heat of a controversial referendum vote only strengthens the protection afforded to Mrs. McIntyre’s expression: Urgent, important, and effective speech can be no less protected than impotent speech, lest the right to speak be relegated to those instances when it is least needed. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949). No form of speech is entitled to greater constitutional protection than Mrs. McIntyre’s.
When a law burdens core political speech, we apply “exacting scrutiny,” and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. See, e. g., Bellotti, 435 U. S., at 786. Our precedents thus make abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard than is appropriate in a case of this kind.
IV
Nevertheless, the State argues that, even under the strictest standard of review, the disclosure requirement in § 3599.09(A) is justified by two important and legitimate state interests. Ohio judges its interest in preventing fraudulent and libelous statements and its interest in providing the electorate with relevant information to be sufficiently compelling to justify the anonymous speech ban. These two interests necessarily overlap to some extent, but it is useful to discuss them separately.
Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document’s content that the author is free to include or exclude. . We have already held that the State may not compel a newspaper that prints editorials critical of a particular candidate to provide space for a reply by the candidate. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit. Moreover, in the case of a handbill written by a private citizen who is not known to the recipient, the name and address of the author add little, if anything, to the reader’s ability to evaluate the document’s message. Thus, Ohio’s informational interest is plainly insufficient to support the constitutionality of its disclosure requirement.
The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio’s submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on § 3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. §§ 3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to issue-driven ballot measures. Thus, Ohio’s prohibition of anonymous leaflets plainly is not its principal weapon against fraud. Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify § 3599.09(A)’s extremely broad prohibition.
As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author’s interest in anonymity. Moreover, as this case also demonstrates, the absence of the author’s name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the Election Code. Nor has the State explained why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State’s enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.
V
Finally, Ohio vigorously argues that our opinions in First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), and Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), amply support the constitutionality of its disclosure requirement. Neither case is controlling: The former concerned the scope of First Amendment protection afforded to corporations; the relevant portion of the latter concerned mandatory disclosure of campaign-related expenditures. Neither case involved a prohibition of anonymous campaign literature.
In Bellotti, we reversed a judgment of the Supreme Judicial Court of Massachusetts sustaining a state law that prohibited corporate expenditures designed to influence the vote on referendum proposals. 435 U. S. 765. The Massachusetts court had held that the First Amendment protects corporate speech only if its message pertains directly to the business interests of the corporation. Id., at 771-772. Consistently with our holding today, we noted that the “inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” Id., at 777. We also made it perfectly clear that we were not deciding whether the First Amendment’s protection of corporate speech is coextensive with the protection it affords to individuals. Accordingly, although we commented in dicta on the prophylactic effect of requiring identification of the source of corporate advertising, that footnote did not necessarily apply to independent communications by an individual like Mrs. McIntyre.
Our reference in the Bellotti footnote to the “prophylactic effect” of disclosure requirements cited a portion of our earlier opinion in Buckley, in which we stressed the importance of providing “the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate.’” 424 U. S., at 66. We observed that the “sources of a candidate’s financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.” Id., at 67. Those comments concerned contributions to the candidate or expenditures authorized by the candidate or his responsible agent. They had no reference to the kind of independent activity pursued by Mrs. McIntyre. Required disclosures about the level of financial support a candidate has received from various sources are supported by an interest in avoiding the appearance of corruption that has no application to this case.
True, in another portion of the Buckley opinion we expressed approval of a requirement that even “independent expenditures” in excess of a threshold level be reported to the Federal Election Commission. Id., at 75-76. But that requirement entailed nothing more than an identification to the Commission of the amount and use of money expended in support of a candidate. See id., at 157-159,160 (reproducing relevant portions of the statute). Though such mandatory reporting undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled self-identification on all election-related writings. A written election-related document — particularly a leaflet — is often a personally crafted statement of a political viewpoint. Mrs. McIntyre’s handbills surely fit that description. As such, identification of the author against her will is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue. Disclosure of an expenditure and its use, without more, reveals far less information. It may be information that a person prefers to keep secret, and undoubtedly it often gives away something about the spender’s political views. Nonetheless, even though money may “talk,” its speech is less specific, less personal, and less provocative than a handbill — and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation.
Not only is the Ohio statute’s infringement on speech more intrusive than the Buckley disclosure requirement, but it rests on different and less powerful state interests. The Federal Election Campaign Act of 1971, at issue in Buckley, regulates only candidate elections, not referenda or other issue-based ballot measures; and we construed “independent expenditures” to mean only those expenditures that “expressly advocate the election or defeat of a clearly identified candidate.” Id., at 80. In candidate elections, the Government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures. Disclosure of expenditures lessens the risk that individuals will spend money to support a candidate as a quid pro quo for special treatment after the candidate is in office. Curriers of favor will be deterred by the knowledge that all expenditures will be scrutinized by the Federal Election Commission and by the public for just this sort of abuse. Moreover, the federal Act contains numerous legitimate disclosure requirements for campaign organizations; the similar requirements for independent expenditures serve to ensure that a campaign organization will not seek to evade disclosure by routing its expenditures through individual supporters. See Buckley, 424 U. S., at 76. In short, although Buckley may permit a more narrowly drawn statute, it surely is not authority for upholding Ohio’s open-ended provision.
VI
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. See Abrams v. United States, 250 U. S. 616, 630-631 (1919) (Holmes, J., dissenting). Ohio has not shown that its interest in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio’s blunderbuss approach than the facts of the case before us.
The judgment of the Ohio Supreme Court is reversed.
It is so ordered.
The term “liberty” in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States. The Fourteenth Amendment reads, in relevant part: “No State shall... deprive any person of life, liberty, or property, without due process of law ....” U. S. Const., Arndt. 14, §1. Referring to that Clause in his separate opinion in Whitney v. California, 274 U. S. 357 (1927), Justice Brandéis stated that “all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights.” Id., at 373 (concurring opinion). Although the text of the First Amendment provides only that “Congress shall make no law ... abridging the freedom of speech ...,” Justice Brandéis’ view has been embedded in our law ever since. See First Nat. Bank of Boston v. Bellota, 435 U. S. 765, 779-780 (1978); see also Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20, 25-26 (1992).
The following is one of Mrs. McIntyre’s leaflets, in its original typeface:
m &
me 12 sasa. is* t£zx
Last election Westerville Schools, asked us to vote yes for new buildings and expansions prograss. We gave then what they asked. We knew there was erewded conditions and new growth in the district.
Now we find out there is a 4 aillion dollar deficit - WHY?
We are told the 3 eiddle schools oust be split because of over-crowding, and yet we are told 3 schools are being closed *■ WHY?
A sagnet school is not a full operating sehool, but a specials school.
Residents were asked to work en a 20 sender cosnission to help formulate the new boundaries for 4 weeks they worked long and hard and cess up with a very workable plan. Their plan was totally disregarded * WHY?
WASTE of tax payers dollars aust be stooped. Our children's education and welfare must cose first. WASTE £AN {ffl LONSER ££ TOLERATED.
please vote no
ISSUE 19
TWV* YOU.
CONCERNED PARENTS ANO TAX PAYERS
Ohio Rev. Code Ann. § 3599.09(A) (1988) provides:
“No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general public political advertising, or through flyers, handbills, or other nonperiodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor. The disclaimer ‘paid political advertisement’ is not sufficient to meet the requirements of this division. When such publication is issued by the regularly constituted central or executive committee of a political party, organized as provided in Chapter 3517. of the Revised Code, it shall be sufficiently identified if it bears the name of the committee and its chairman or treasurer. No person, firm, or corporation shall print or reproduce any notice, placard, dodger, advertisement, sample ballot, or any other form of publication' in violation of this section. This section does not apply to the transmittal of personal correspondence that is not reproduced by machine for general distribution.
“The secretary of state may, by rule, exempt, from the requirements of this division, printed matter and certain other kinds of printed communications such as campaign buttons, balloons, pencils, or like items, the size or nature of which makes it unreasonable to add an identification or disclaimer. The disclaimer or identification, when paid for by a campaign committee, shall be identified by the words ‘paid for by’ followed by the name and address of the campaign committee and the appropriate officer of the committee, identified by name and title.”
Section 3599.09(B) contains a comparable prohibition against unidentified communications uttered over the broadcasting facilities of any radio or television station. No question concerning that provision is raised in this case. Our opinion, therefore, discusses only written communications and, particularly, leaflets of the kind Mrs. McIntyre distributed. Cf. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994) (discussing application of First Amendment principles to regulation of television and radio).
The complaint against Mrs. McIntyre also alleged violations of two other provisions of the Ohio Code, but those charges were dismissed and are not before this Court.
American names such as Mark Twain (Samuel Langhorne Clemens) and O. Henry (William Sydney Porter) come readily to mind. Benjamin Franklin employed numerous different pseudonyms. See 2 W. Bruce, Benjamin FranWin Self-Revealed: A Biographical and Critical Study Based Mainly on His Own Writings, eh. 5 (2d ed. 1923). Distinguished French authors such as Voltaire (Francois Marie Arouet) and George Sand (Amandine Aurore Lucie Dupin), and British authors such as George Eliot (Mary Ann Evans), Charles Lamb (sometimes wrote as “Elia”), and Charles Dickens (sometimes wrote as “Boz”), also published under assumed names. Indeed, some believe the works of Shakespeare were actually written by the Earl of Oxford rather than by William Shaksper of Stratford-on-Avon. See C. Ogburn, The Mysterious William Shakespeare: The Myth & the Reality (2d ed. 1992); but see S. Schoenbaum, Shakespeare’s Lives (2d ed. 1991) (adhering to the traditional view that Shaksper was in fact the author). See also Stevens, The Shakespeare Canon of Statutory Construction,
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
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.
Bealy Hugh MILTON, Appellant, v. Richard SCHWEIKER, Secretary of Health and Human Services, Appellee.
No. 81-1776.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 19, 1982.
Decided Jan. 22, 1982.
Bealy Hugh Milton, pro se.
Thomas E. Dittmeier, U. S. Atty., Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before HEANEY, HENLEY and McMIL-LIAN, Circuit Judges.
PER CURIAM.
Appellant Hugh Milton appeals pro se from the judgment of the district court granting the motion of the Secretary of Health and Human Services (the Secretary) for summary judgment on his petition for review of a final decision of the Secretary denying him disability benefits. For the reasons discussed below, we reverse and remand for further administrative proceedings.
At the time of the administrative hearing appellant was fifty-eight years old and had an eighth grade education. He had worked for twenty-five years as an industrial and commercial carpenter and millwright, jobs which required constant walking and standing, frequent bending, lifting of heavy objects, and climbing of multistoried buildings. On May 10, 1979, appellant applied for disability insurance benefits, alleging that he became unable to work in July of 1973 because of a heart condition and an injured right leg. He twice amended the date of onset of his alleged disability, first to December 31, 1972, and later to June 1, 1971. Appellant last met his insured status on December 31, 1972, and he must therefore establish the existence of a disability on or before that date. See Thorne v. Califano, 607 F.2d 218, 219 n.1 (8th Cir. 1979).
In 1963 appellant suffered a work-related injury to his right leg, for which he received a temporary worker’s compensation award. Appellant testified that since the injury he experiences pain and swelling of the leg that is exacerbated by periods of prolonged walking or standing. Appellant had stopped medical treatment for his leg in 1966 because, according to his testimony, the doctors could do no more for him. The only relief he obtains is from rest and elevation of the leg. Appellant submitted medical reports from doctors who treated him from 1963 until 1966; the reports generally corroborate his testimony of pain and swelling. In a July 1966 report Dr. Harold Walters estimated that appellant had a “60% permanent partial disability at the level of the right knee joint.” This estimation was based upon appellant’s subjective complaints, the objective evidence of swelling, and Dr. Walters’ review of various doctor and medical reports that demonstrated appellant had irreversible chronic lymphatic obstruction.
Appellant did not return to work for two years following the leg injury. He, however, returned to construction work for periods of time from 1966 until 1968 and in 1971 and 1973. Appellant’s earnings record reveals wages of $11,670.44 in 1968, $2,217.28 in 1969, $1,682.01 in 1971, and by his estimate approximately $4,700 in 1973, although only wages of $1,539.14 are posted to his record. Appellant testified he was often forced to leave a job after a short period of time because of the pain and swelling in his leg.
In denying benefits, the administrative law judge (ALJ) found that appellant could return to his former job or “lighter construction work.” The ALJ relied in part on appellant’s earnings during his alleged period of disability. It is true, as the Secretary contends, that wages earned during an alleged period of disability can be evidence of ability to perform substantial gainful employment. Beasley v. Califano, 608 F.2d 1162, 1166 (8th Cir. 1979). However, in the recent case of Lanes v. Harris, 656 F.2d 285 (8th Cir. 1981), this court held that a claimant’s unsuccessful attempt to return to his former work, coupled with his testimony of disabling pain and inconclusive medical reports, satisfied claimant’s burden of proof of an inability to perform past customary work. Id. at 287.
The social security regulations create a presumption that earnings in excess of specified amounts can be evidence of ability to perform substantial gainful activity, but wages earned as a result of short periods of employment by individuals forced to quit because of impairments are exempted. 20 C.F.R. § 404.1574 (1981). The regulations, however, create only a presumption, and they do not relieve an ALJ of the duty to develop the record fully and fairly. Coulter v. Weinberger, 527 F.2d 224, 229 (3d Cir. 1975). In the present case the ALJ did not evaluate appellant’s earnings against the guidelines; nor did the ALJ adequately question appellant, obtain employment records, or make other inquiry to ascertain the job requirements, the adequacy of appellant’s performance, and his reason or reasons for terminating the jobs he held during the alleged period of disability-
The ALJ also relied on “the total lack of evidence to establish claimant’s condition for the period 1970 to 1979.” An ALJ’s duty to develop the record includes gathering evidence so that a just determination of disability may be made. Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974). Here, the ALJ ignored references in appellant’s testimony and a medical report to the existence of additional medical records relevant to appellant’s condition during the time he met his insured status.
In his disability application appellant stated that he had been hospitalized in 1969 at Jewish Hospital in St. Louis for tests which “confirmed that [the] lymph system [of his leg] was destroyed.” Dr. Walters’ report expressly refers to several doctors’ tests and treatments that formed the basis of his diagnosis of irreversible chronic lymphatic obstruction of appellant’s right leg. On remand, the Secretary must attempt to secure these records in order to be able to adequately assess the degree of impairment caused by appellant’s right leg.
The ALJ also ignored references in medical reports that appellant had a back impairment that resulted in a 1969 laminecto-my. In his request for review of the ALJ’s decision, appellant pointed out this omission to the Appeals Council and provided the Council with a billing statement from Dr. Francis Walker, a neurosurgeon, who performed a cervical myelogram and laminec-tomy in January of 1969. The Appeals Council compounded the ALJ’s error by failing to obtain these records. See Myers v. Califano, 611 F.2d 980, 983 (4th Cir. 1980) (Appeals Council’s failure to evaluate evidence submitted to it constituted reversible error). On remand, the Secretary should secure and evaluate the records concerning appellant’s laminectomy and back impairment.
The Secretary must then develop the evidence as to how appellant’s impairments, singly and in combination, affected his ability to return to his former work and to perform other work-related tasks. In addition, the Secretary must give consideration to appellant’s allegations of pain, even if they are not fully corroborated by the medical evidence. Brand v. Secretary of HEW, 623 F.2d 523, 525-27 (8th Cir. 1980).
Accordingly, the judgment is reversed and remanded to the district court with directions to remand the claim to the Secretary for further administrative proceedings.
. In August of 1979, appellant suffered a heart attack. Because the attack occurred far beyond the date on which appellant meets his insured status and there is no evidence of a disabling heart condition during the relevant time period, the heart attack cannot serve as a basis for recovering disability benefits.
. In relevant part, the earnings guidelines provide that earnings averaging more than $200 per month in calendar years prior to 1976 can be evidence of ability to perform substantial gainful activity, 20 C.F.R. at § 404.1574(b)(2)(i) (1981), but that earnings averaging less than $130 per month in years prior to 1976 can be evidence of an inability to perform substantial gainful employment. Id. § 404.1574(b)(3)(i).
In the recent case of Martin v. Harris, 666 F.2d 1153 (8th Cir. 1981), the court recognized that the regulations provide that part-time work can also be evidence of ability to perform
substantial gainful employment. 20 C.F.R. § 404.1572 (1981). The court, however, noted that the Fourth and Fifth Circuits apparently have found the regulation invalid. At 1155; Tucker v. Schweiker, 650 F.2d 62, 63-64 (5th Cir. 1981); Johnson v. Harris, 612 F.2d 993, 998 (5th Cir. 1980); Cornett v. Califano, 590 F.2d 91, 94 (4th Cir. 1978). In Martin, the court was not presented with the issue of the validity of the regulation, but remanded so that the Secretary could demonstrate by vocational evidence the availability of part-time work for the particular claimant.
. There is also record evidence that appellant had gall bladder surgery in 1966. Appellant maintains the residual effects of the surgery impaired his ability to lift. The Secretary should also obtain these records and develop the evidence.
. After development of the medical and vocational evidence, if the Secretary determines that appellant is unable to return to his former job, the burden then shifts to the Secretary to demonstrate by vocational expert testimony or other evidence the existence of alternative jobs that appellant can perform in light of his impairments and skills. Martin v. Harris, supra, at 1155 (cases cited therein).
In Martin, the court emphasized that “the underlying basis for the vocational expert’s opinion evidence must be revealed and must comport with the record.” Id. at 1155 n.1.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re CONSOLIDATED MOTOR PARTS, Inc., et al.
No. 443.
Circuit Court of Appeals, Second Circuit.
Sept. 16, 1936.
Louis I. Rothenberg, of Brooklyn, N. Y. (Samuel J. Sussman, of Brooklyn, N. Y., of counsel), for appellant.
I. Bregoff, of New York City (David J. Orgain, of New York City, of counsel), for debtor-appellee.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is an appeal from an order denying compensation to an attorney who represented certain creditors of the debt- or to the amount of approximately $5,-000 in a proceeding begun by the latter under section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207.
In April, 1935, the debtor had entered into an agreement with its merchandise creditors whereby those creditors (hereinafter designated as “old creditors”) agreed to waive payment of their claims in favor of merchandise creditors who thereafter extended credit (designated as “new creditors”).
On May 23, 1935, the debtor filed a petition for reorganization, and thereafter orders were made allowing it to remain in possession and operation of its business. The debtor prepared, and on August 14, 1935, filed a plan of reorganization under which the “old creditors” were to receive 10 per cent, in cash, and new merchandise creditors, holding claims arising between April, 1935, and May 23, 1935, and claims arising out of the business conducted under the section 77B proceeding and non-merchandise creditors were to receive 10 per cent, in cash and 90 per cent, in bonds secured by a trust mortgage upon the debtor’s machinery. The appellant, who represented “old creditors,” objected to this plan, principally on the ground that it unfairly discriminated in favor of the “new creditors.” The plan was rejected, though approximately 75 per cent, of all classes of creditors had consented to its adoption. Thereafter a new plan was filed by the debt- or which provided for equal payments of 10 per cent, in cash and 35 per cent, in corporate bonds to all creditors. At the same time Davis Laboratories, Inc., one of the new creditors, proposed an alternative plan under which all creditors were to receive 10 per cent, in cash and 35 per cent, in bonds, but the old creditors were to give up to the new merchandise creditors so much of their bonds as might be necessary to make whole the new merchandise creditors. The appellant filed specifications of objections to the alternative plan as discriminatory, but stated his concurrence in the new plan proposed by the debtor which was thereupon approved by the court. At the time of the filing of the section 77B petition, the claims of the “old creditors” amounted to $63,054.27, those of the “new creditors” to $23,761.76, and those of the non-merchandise creditors to $19,247.70. Assuming that the 35 per cent, payable in bonds be realized, the “old creditors” will receive about $22,000 more under the amended plan of the debtor than under the one originally proposed. The appellant sought compensation for contributing to this result and for substantially promoting the acceptance of a plan beneficial to the “old creditors.” His petition was denied by the court below on the ground that his efforts did not benefit the estate as a whole.
The application for compensation is governed by subsection (c) of section 77B of the Bankruptcy Act (11 U.S.C.A. § 207 (c), which so far as pertinent is as follows: “(c) Upon approving the petition or answer or at any time thereafter the judge, in addition to the jurisdiction and powers elsewhere in this section conferred upon him, * * * (9) may allow a reasonable compensation for the services rendered and reimbursement for the actual and necessary expenses incurred in connection with the proceeding and the plan by officers, parties in interest, depositaries, reorganization managers and committees or other representatives of creditors or stockholders, and the attorneys or agents of any of the foregoing and of the debtor, but appeals from orders fixing such allowances may be taken to the Circuit Court of Appeals independently of other appeals in the proceeding and shall be heard summarily.”
The appellant was an attorney for creditors and as such may be allowed compensation for “services rendered * * * in connection with the proceeding and plan.” If he had been counsel for a. creditors’ committee and had rendered substantial services in preparation of a plan of reorganization, he would have come within a familiar category. That he did not represent a large proportion of the creditors and that he assisted in bringing, about the plan finally adopted by objecting to the discriminatory features of the original and alternative plans did not, in our opinion, deprive him of a right to compensation. He rendered no less important services “in connection with the * * * plan” adopted though they were performed in court in assailing the plans first proposed, rather than in working with a committee upon a plan prior to its presentation in court. In the present case he seems to have been the very person who brought about the non-discriminatory plan which finally prevailed. In doing this, we think that he rendered substantial services “in connection with the proceeding and the plan” within the meaning of section 77B (c) (9). If he had merely done work in opposing a plan that substantially prevailed, he would hardly have been entitled to compensation from the estate.
The services by appellant in connection with a plan of reorganization which will justify an allowance from the estate under section 77B must have contributed in some substantial way to the plan finally adopted, and in nearly all cases the decision of the District Court that they have not been sufficiently important or direct to deserve an allowance must be regarded as final. But here^ the appellant contributed to the final adoption of the plan, and the justice of the plan does not seem to be questioned. Under such circumstances, and in spite of the broad discretion lodged in the District Court, we see no reason for depriving him of all compensation for his contribution to a plan that will enable the debtor to become rehabilitated and resume business. Section 77B (c) (9), 11 U.S.C.A. § 207 (c) (9), appears to empower the court to award compensation to those persons who substantially contribute to a plan of reorganization. The creditors as a whole are interested in having some workable plan adopted, and the mere fact that work which has substantially aided the plan finally approved has been performed by an attorney for creditors or stockholders owning interests adverse to some of the other parties, does not necessarily deprive him of compensation. The question is whether the work in connection with the plan has been performed in good faith and has substantially contributed to the result finally achieved.
It might be suggested that the Circuit Court of Appeals of the Seventh Circuit, in Re A. Herz, 81 F.(2d) 511, denied compensation to counsel for two creditors’ committees under circumstances closely resembling the present; but we do not read the opinion in that case as so holding. It does not appear that those committees or their counsel substantially assisted in the formulation of the plan that was finally adopted. Indeed, the court stated that the “Debtor’s Plan ultimately prevailed and was approved by the court.” 81 F.(2d) 511, at page 512. Briggle, J., who wrote the opinion, said at page 513 of 81 F.(2d): “It is not every service that may in some remote degree contribute to the general welfare of the proceeding that the court is bound to compensate under this section of the statute. If it were, the very purpose of the statute would in many cases be frustrated. Every case must stand upon its own bottom and is subject to the exercise of a sound judicial discretion by the trial court, subject to review in the event of abuse.”
Our decisions in Nolte v. Hudson Nav. Co., 47 F.(2d) 166, and In re New York Investors, 79 F.(2d) 182, involved claims to compensation from an insolvent estate on the part of attorneys for creditors or stockholders who had appeared in an equity receivership. In each case compensation payable out of the estate was denied under the settled equity practice. But section 77B (c) (9) allows somewhat broader discretion in awarding compensation than was assumed by courts of equity especially in respect to matters affecting the plan of reorganization. We think that whether an award should be made under section 77B depends on the amount of assistance that has been rendered by the persons mentioned in subdivision (c) (9) in working out the plan that has finally been adopted.
It must be remembered that the interest which the appellant represented was small and that the benefit which accrued to the other “old creditors” did not come to them at their request. Accordingly his compensation, though payable out of the estate because his services aided in promoting the plan finally adopted, must bear some fair proportion to the amount of the claims he has represented. In view of all the circumstances, we think $500 a fair allowance for the appellant’s services. We fix the award, instead of referring the matter to the District Court, in order to expedite the administration of the estate.
The order is reversed, with costs to the appellant of this appeal, and the proceeding is remanded, with directions to allow him $500 as his. compensation, payable out of the debtor’s estate.
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_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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".
Mary G. BRUCE, Administratrix of the Estate of Walter B. Bruce, Deceased, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, a corporation, Appellee.
No. 6956.
United States Court of Appeals Fourth Circuit.
Argued April 20, 1955.
Decided May 10, 1955.
Robert N. Simms, Jr., and Clyde A. Douglass, Raleigh, N. C. (John M. Simms, Raleigh, N. C., on brief), for appellant.
Murray Allen, Raleigh, N. C. (R. P. Upchurch, Raleigh, N. C., on brief), for appellee.
Before PARKER, C. J., and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This suit is brought by the Adminis-tratrix of Walter B. Bruce, deceased, against Lumbermens Mutual Casualty Company to secure a judgment in the sum of $10,000 under a policy of insurance issued to W. L. Aldridge, Jr. and O’Neals Flying Service, Inc. The declarations in the policy disclose that the business of the assured is the use of aircraft for business and pleasure, instruction of students, and commercial and passenger carrying for hire, and that the aircraft would be used in the United States, Canada and 100 miles into Mexico. The Insurance Company agreed in the policy, amongst other things, to pay on behalf of the insured all sums which the insured should become obligated to pay because of bodily injury sustained by any passenger while in or upon, entering or alighting from the aircraft, caused by accident and arising out of the ownership, maintenance or use of the aircraft.
Liability to a passenger was incurred by the insured on June 1, 1947, during the life of the policy, when Walter B. Bruce, the deceased, was killed while riding as a passenger in a plane covered by the policy. The accident occurred during an air show at the flying field of the insured for which admission was charged. Three planes were sent up, each designed to carry two passengers. Bruce went up with the pilot as a passenger in the lead plane. The plan was that the planes were to be put into spiral spins in a demonstration of safe flying. Such maneuvers are deviations from normal flight, and are known in the industry as aerobatic flights. The plane in which the deceased was a passenger took part in the maneuvers as planned but fell to the ground and crashed, and both occupants were killed.
At the time certain regulations were in effect which had been passed by the Civil Aeronautics Authority, the agency of the United States in charge of the operation of civilian aircraft in the United States under the provisions of 49 U.S.C.A. § 401 et seq. Section 60.9 of Part 50 of the Civil Air Regulations as to Air Traffic Rules defined the term aerobatic as “the performance of any intentional and unnecessary maneuvers involving an abrupt change in altitude of an aircraft, an abnormal altitude, or an abnormal speed.” Part 43 of Civilian Air Regulations General Operation Rules contained the following paragraph. “43.-409. Aerobatic Flight. No pilot shall intentionally fly an aircraft in aerobatic flight carrying passengers unless all occupants are equipped with approved parachutes.” Neither of the occupants of the plane which crashed was equipped with a parachute. The evidence, however, shows that parachutes would have been of no avail to save the lives of the occupants, because the pilot continued to execute the spins until the plane was so near the ground that parachutes could not have been used effectively.
The administratrix of the estate of the deceased brought a wrongful death action against the Flying Service in the Superior Court of Wake County, North Carolina, and secured a judgment in the sum of $15,600 which was affirmed on appeal. Payment of the judgment was demanded and refused, and subsequently the present action against the Insurance Company was brought and resulted in a judgment in its favor. D.C., 127 F. Supp. 124. This appeal of the adminis-tratrix ensued.
The defense to the present suit in the trial court and on this appeal is based on the ground that the accident was not covered by the policy, but was within an exclusion of the policy which provided in effect that the policy should not apply “(d) to liability with respect to bodily injury or damage caused by the operation of the aircraft with the knowledge of the named insured; (1) if used for any unlawful purpose, or, during flight or attempt thereat, in violation of any government regulation for civil aviation.” There is no doubt that the plane in which the deceased was killed was operated in violation of the quoted regulation, since the pilot did intentionally fly the aircraft in aerobatic flight with a passenger and the occupants were not equipped with approved parachutes. The appellant contends, however, that this exclusion does not apply in the present case (1) because the only exclusions applicable to passengers are found in subsequent provisions of the policy and do not preclude the present claim, and (2) because there was no causal connection between the violation of the regulation and the fatal crash.
The subsequent exclusions in the policy refer in express terms to Coverage A-Bodily Injury Liability, Excluding Passengers, Coverage B-Bodily Injury Liability — Passengers, and Coverage C-Property Damage Liability. Under Coverage B it is provided that the policy does not apply “to liability with respect to bodily injury to any passenger caused by the operation of the aircraft with the knowledge of the named insured: (1) during flight or attempt thereat, between sunset and sunrise unless all night flying requirements of the Civil Aeronautics Authority are complied with; (2) if the aircraft is carrying passengers in excess of the policy passenger capacity as stated in the declarations, or is loaded in excess of the gross weight permitted by the Civil Aeronautics Authority in the Type Certificate issued for the make and type of the aircraft, or in the certificate issued to the aircraft, whichever is more limited.”
It is conceded that the last mentioned exclusions do not of themselves preclude recovery in this case since the flight in question did not take place at nighttime and there was no carriage of passengers in excess of the capacity of the plane. It is therefore contended that since these exclusions refer in express terms to the liability of the insured for bodily injury to passengers, they should govern the decision of this controversy rather than the general exclusion first above described.
The appellant invokes the rule, as set out in 17 C.J.S., Contracts, § 312, that the expression in a contract of things of a class implies the exclusion of all not expressed, even though all would have been implied had none been expressed. The rule is generally given effect when a clause which sets out with particularity the subject matter that the parties have in mind is followed by a clause expressed in general terms, in which case the latter is controlled or restricted by the former; Cleveland Trust Co. v. Consolidated Gas, E. L. & P. Co., 4 Cir., 55 F.2d 211 and where there is an inconsistency between general provisions and specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions. See Restatement of Contracts § 236 (c); Southern R. Co. v. Coca Cola Bottling Co., 4 Cir., 145 F.2d 304; Fox Realty Co. v. Montgomery Ward & Co., 7 Cir., 124 F.2d 710, 714; Southern Surety Co. v. Town of Greenville, 6 Cir., 261 F. 929, 932; Nance v. Southern R., 149 N.C. 336, 371, 63 S.E. 116; In re Steelman, 219 N. C. 306, 13 S.E.2d 544.
This rule, however, is subject to the general standards applied in the interpretation of contracts which require that an interpretation which gives a reasonable effect to all the manifestations of intention in an agreement is preferred to an interpretation which leaves a part of such manifestations unreasonable or of no effect; Restatement of Contracts § 236(a); or as said in 17 C.J.S., Contracts, § 313, if both general and special provisions may be given reasonable effect, both are to be retained.
It is noteworthy that there is no conflict between the particular and the general exclusions of the policy set out above. It is true that there would seem to have been no need to exclude from the risk the specific violations of the regulations of the Civil Aeronautics Authority contained in the particular clauses in view of the sweeping terms of exclusion (d) which excludes from coverage any liability for bodily injury caused by any operation of the plane in violation of any government regulation for civil aviation; but each class of exclusions may be given effect without impairing the force of the other.
More impressive in this connection is the distorted result which would follow if the general exclusions relating to passenger injuries should be restricted to those which are particularized. Heretofore we have referred only to paragraph (d) (1) of the general exclusions, but there are additional paragraphs under this head. Thus, paragraphs (d)2 and (3) exclude from coverage liability for bodily injury caused by operation of the aircraft if its Civil Aeronautics Authority’s certificate has been revoked or suspended, or if the certificate of the pilot has been restricted, revoked, suspended or has expired. It is unreasonable to suppose that the Insurance Company was willing to assume the great risk of injury to passengers involved in the operation of a plane whose certificate had been revoked or suspended, or whose pilot’s right to operate the plane had been withdrawn by government authority, and intended to confine its exclusions as to passengers to flying at night and to the carriage of passengers in excess of the capacity of the plane in violation of the regulations. Since there is no ambiguity in the policy and no conflict between its provisions, all parts of the contract should be given effect. Stanback v. Winston Mutual Life Ins. Co., 220 N.C. 494, 17 S.E.2d 666; Lineberry v. Security Life & Trust Co., 238 N.C. 264, 267, 77 S.E.2d 652.
The second contention of the appellant, that the judgment must be reversed because no causal connection between the violation of the regulations and the accident was shown, must also be rejected. The clear meaning of the policy is not as the appellant suggests that the risk is excluded if the injury is caused by a violation of the regulations, but that the risk is excluded if the injury is caused by the operation of the plane while it is being used in violation of the regulation. It is established by the great preponderance of authority in the decisions of this and other courts that an insurer need not show a causal connection between the breach of an exclusion clause and the accident, if the terms of the policy are clear and unambiguous, since the rights of the insured flow from the contract of insurance and not from a claim arising in tort. See Myers v. Ocean Accident & Guarantee Corp., 4 Cir., 99 F.2d 485, 491 and cases cited.
In Travelers’ Protective Ass’n of America v. Prinsen, 291 U.S. 576, 54 S. Ct. 502, 78 L.Ed. 999, the evidence showed that an explosion took place as the result of a collision between a motor truck containing dynamite and a train, and the occupants of the truck were killed. Suit was brought on a policy of insurance which excluded liability for death of a person which occurs in the transportation of explosives, and it was contended that the insurer was liable because the death of the occupants of the truck might have been caused by the collision without more. The court rejected the contention, 291 U.S. at pages 581-582, 54 S.Ct. at page 504, saying: “The contract does not say that the holder of the policy is to have no claim against the insurer if he dies ‘by reason of’ his participation in the carriage of explosives. The contract says that he is to have no claim against the insurer if he dies ‘when’ he is participating in the carriage of explosives, just as it provides for a like result when he is acting as a sailor or a soldier, or is participating in war or riot, or is under the influence of narcotics or of intoxicating liquors. Courts of high authority have held that in policies so phrased there is no need of any causal nexus between the injury or death and the forbidden forms of conduct. While the proscribed activity continues, the insurance is suspended as if it had never been in force.”
Affirmed.
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_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Max FINKEL et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 5863.
United States Court of Appeals First Circuit.
Heard Nov. 6, 1961.
Decided Nov. 21, 1961.
James T. Waldron, Fall River, Mass., with whom John T. Farrell, Jr., and Clarkin & Waldron, Fall River, Mass., were on brief, for petitioners.
Michael K. Cavanaugh, Atty., Dept, of Justice, with whom John B. Jones, Jr., Acting Asst. Atty. Gen., and Lee A. Jackson and Robert N. Anderson, Attys., Dept, of Justice, Washington, D. C., were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
Taxpayer, who has been in the fish business for many years, was a stockholder in a fish meal corporation, New Bedford Fish Products Corporation, hereinafter Products, and in a fish trucking concern, Meso, Inc. Fish meal processing is a potential nuisance, and Products held the required municipal license. In 1952 its plant was temporarily shut down because business became unprofitable. In 1956 it was sold. Because the license was not transferable, the purchaser could not simply buy the assets, but required the stock. Prior to the sale, taxpayer had loaned $42,874 to Products and $12,-216 to Meso, and other stockholders had made similar loans. Products was substantially indebted to Meso. The purchaser demanded that Products be free from debt after transfer, except to the extent that indebtedness might be represented by notes, in which event the notes were to be transferred to her without recourse. In response, Meso, whose stockholders and creditors were the same as Products’, cancelled its indebtedness. This obligation had been Meso’s sole asset. Products issued notes to its remaining creditors, including taxpayer, which were thereupon endorsed over to the purchaser. In return, the purchaser tendered cash and notes totalling $75,000, of which taxpayer received $21,562.
Taxpayer charged off his Products and Meso stock in his 1956 return as long-term capital losses. No question arises as to this. Next, he sought to deduct the debt owed him by Meso as a business bad debt becoming worthless during the taxable year. The government claims that it was not a business debt. This involves considerations that we need not go into. But the purchaser paid enough for Products so that a partial payment could have been made on its indebtedness to Meso. Accordingly, Meso’s total relinquishment of the indebtedness was a voluntary capital contribution by persons, including taxpayer, who were at once its stockholders, its creditors, and stockholder-creditors of Products. It was, in fact, so entered on Products’ books. In effect taxpayer got more out of Products and less, i. e., nothing, out of Meso, but this was the result of his own action and did not entitle him to claim, vis-a-vis the government, that the debt owed him by Meso was worthless. Raffold Process Corp. v. Commissioner, 1 Cir., 1946, 153 F.2d 168; Liggett’s Estate v. Commissioner, 10 Cir., 1954, 216 F.2d 548; Bratton v. Commissoner, 6 Cir., 1954, 217 F.2d 486. We are not concerned with what might have been the situation had Meso received a pro rata dividend on its indebtedness as an ordinary creditor of Products.
Similarly, taxpayer cannot assert what might have happened had he not sold the notes he received from Products against his indebtedness. Obviously, he cannot— and does not — say that he was paid for the stock and not for the notes. All he can claim is a loss. Levy v. Commissioner, 2 Cir., 1942, 131 F.2d 544, cert. den. Levy v. Helvering, 318 U.S. 780, 63 S.Ct. 858, 87 L.Ed. 1148; Graham Mill & Elevator Co. v. Thomas, 5 Cir., 1945, 152 F.2d 564; Von Hoffman Corp. v. Commissioner, 8 Cir., 1958, 253 F.2d 828; cf. Mitchell v. Commissioner, 2 Cir., 1951, 187 F.2d 706. This he has been allowed.
Judgment will be entered affirming the decision of the Tax Court.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_execord
|
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 interpretation of executive order or administrative regulation by the court favor the appellant?" This does include whether or not an executive order was lawful. 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".
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 the interpretation of executive order or administrative regulation by the court favor the appellant? This does include whether or not an executive order was lawful.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appsubst
|
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
DAYTONA BEACH RACING AND RECREATIONAL FACILITIES DISTRICT, a body politic and corporate under the laws of the State of Florida, and International Speedway Corporation, a Florida Corporation, Plaintiffs-Appellants, v. COUNTY OF VOLUSIA, a political subdivision of the State of Florida, et al., Defendants-Appellees.
No. 78-1634
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 1, 1978.
Rehearing Denied Oct. 17,1978.
Nathan Lewin, James E. Rocap, III, Washington, D. C., Thomas T. Cobb, S. La-Rue Williams, Daytona Beach, Fla., for plaintiffs-appellants.
Raymond, Wilson, Conway, Barr & Burrows, William M. Barr, Daytona Beach, Fla., for County of Volusia, James Bailey, Robert D. Summers.
Robert L. Shevin, Atty. Gen., Harold F. X. Purnell, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for J. Edward Straughn, Dept. of Revenue, State of Florida.
Before THORNBERRY, GEE and FAY, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
In 1955, the Florida legislature exempted from taxation racing and recreational facilities to be acquired or constructed by the plaintiff, Daytona Beach Racing and Recreational Facilities District. Subsequently, plaintiff, International Speedway Corporation, subleased land from the District and constructed a racing facility. In 1973, the Florida legislature repealed the tax exemption.
The plaintiffs brought suit in United States district court in 1974 alleging that the Florida legislature’s action violated the Impairment of Contract Clause. The district court dismissed the action holding that the Tax Injunction Act of 1937, 28 U.S.C. § 1341, prohibited relief since the State of Florida provided a “plain, speedy, and efficient remedy” in state court. We affirmed without opinion. Daytona Beach Racing and Recreational Facilities District v. County of Volusia, 512 F.2d 1404 (5 Cir. 1975).
The plaintiffs then amended a pending state suit to include their constitutional claim. The plaintiffs, however, did not offer any evidence to the Florida trial court relating to their constitutional contention. The Florida trial court found for the plaintiffs on state grounds and the defendants appealed. The Florida Supreme Court reversed the trial court and the United States Supreme Court dismissed the appeal for lack of a substantial federal question. Day-tona Beach Racing and Recreational Facilities District v. County of Volusia, 341 So.2d 498 (Fla.1977), appeal dismissed, 434 U.S. 804, 98 S.Ct. 32, 54 L.Ed.2d 61 (1977).
The plaintiffs again brought suit in federal court contending that the Florida Supreme Court improperly rejected their constitutional argument since no evidence was presented on the issue in the Florida trial court. The district court dismissed the action holding that the Supreme Court’s dismissal in the prior action was dispositive on the constitutional claim. We need not consider this argument since it is plain that the Tax Injunction Act of 1937 still bars the federal courts from assuming jurisdiction in this suit. The Act states:
The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. June 25,1948, c. 646, 62 Stat. 932.
28 U.S.C. § 1341.
All that is required is that the state must provide a “plain, speedy and efficient remedy” in the courts of the state. This Florida has done, and the plaintiffs’ failure to present any evidence and argument to the Florida state court will not make the Florida remedy improper. The plaintiffs cannot fail to take advantage of the state remedy and then litigate in federal court.
The plaintiffs’ first suit was barred because the State of Florida provided a proper remedy for the litigation of their claim, and the plaintiffs’ second suit is barred for the same reason. See Kiker v. Hefner, 409 F.2d 1067 (5 Cir. 1969).
The district court was correct in dismissing the action because it is without jurisdiction to hear the matter.
AFFIRMED.
. U.S.Const. Art. 1, § 10.
. The Order dismissing the action under the Tax Injunction Act of 1937 is reproduced below:
This cause came on before the Court for a hearing on the motion of all the defendants, County of Volusia, Robert Bolin, Robert D. Summers, and J. Ed Straughn, to dismiss the complaint. The undisputed facts are that the plaintiffs seek to challenge in this court on federal constitutional claims the action of the Legislature of Florida in terminating a previously enacted tax exemption granted to the plaintiffs.
1 Section 13 of Florida Statutes, Chapter 31343, enacted in 1955 provided that no taxes or assessments were to be levied upon any of the racing and recreational facilities that were constructed pursuant to the Act. In 1973, Fla. Statutes Chapter 73-647 was enacted which repealed Section 13 of Chapter 31343, Laws of Florida, 1955, thus eliminating plaintiffs’ tax exempt status.
The plaintiffs have also filed in the State Courts of Florida a challenge to the same statute eliminating their tax exemption based upon alleged state grounds. The defendants contend that Section 1341, Title 28 United States Code, precludes this Court from considering this case and that plaintiffs must look to the State Courts for relief, including the federal constitutional grounds raised by them.
In view of Great Lakes Dredge & Dock Company v. C. C. Huffman, 319 U.S. 293 (63 S.Ct. 1070), 87 L.Ed. 1407 (1943) and Bland v. McHann, 463 F.2d 21 (5th Cir., 1972), the position of the defendants appears to have merit in that this Court finds that the plaintiffs have a “plain, speedy, and efficient remedy” in the state courts. 28 United States Code § 1341.
2 FSA § 194.171, the predecessor to which the Fifth Circuit has found satisfied the requirements of 28 U.S.C. § 1341. Carson v. City of Ft. Lauderdale, 293 F.2d 337 (5th Cir., 1961).
The plaintiffs presented the ingenuous argument that, based on cases not involving state taxes, this court should retain jurisdiction of this case so as to permit the plaintiffs to litigate in the state courts only their state claims and then, if unsuccessful, to pursue for the first time their federal claims in this court.
While such a procedure has been authorized for nonstate tax issues, it is not the procedure specifically approved in state tax matters. It is, therefore
ORDERED that the motion to dismiss be and is hereby granted and this case is dismissed. DONE AND ORDERED in Chambers at Orlando, Florida, this 7th day of November, 1974.
Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
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sc_declarationuncon
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules.
DUNN, GOVERNOR OF TENNESSEE, et al. v. BLUMSTEIN
No. 70-13.
Argued November 16, 1971
Decided March 21, 1972
MARSHALL, J., delivered the opinion of the Court, in which Douglas, BreNNAn, Stewart, and White, JJ., joined. BlackmüN, J., filed an opinion concurring in the result, post, p. 360. Burger, C. J., filed a dissenting opinion, post, p. 363. Powell and Rehnquist, JJ., took no part in the consideration or decision of the case.
Robert H. Roberts, Assistant Attorney General of Tennessee, argued the cause for appellants. With him on the brief were David M. Pack, Attorney General, and Thomas E. Fox, Deputy Attorney General.
James F. Blumstein, pro se, argued the cause for appellee. With him on the brief were Charles Morgan, Jr., and Norman Siegel.
Henry P. Sailer and William A. Dobrovir filed a brief for Common Cause as amicus curiae urging affirmance.
Mr. Justice Marshall
delivered the opinion of the Court.
Various Tennessee public officials (hereinafter Tennessee) appeal from a decision by a three-judge federal court holding that Tennessee’s durational residence requirements for voting violate the Equal Protection Clause of the United States Constitution. The issue arises in a class action for declaratory and injunctive relief brought by appellee James Blumstein. Blumstein moved to Tennessee on June 12, 1970, to begin employment as an assistant professor of law at Vanderbilt University in Nashville. With an eye toward voting in the upcoming August and November elections, he attempted to register to vote on July 1, 1970. The county registrar refused to register him, on the ground that Tennessee law author- / izes the registration of only those persons who, at the time of the next election, will have been residents of the State for a year and residents of the county for three months.
After exhausting state administrative remedies, Blum-stein brought this action challenging these residence requirements on federal constitutional grounds. A three-judge court, convened pursuant to 28 U. S. C. §§ 2281, 2284, concluded that Tennessee’s durational residence requirements were unconstitutional (1) because they im-permissibly interfered with the right to vote and (2) because they created a “suspect” classification penalizing some Tennessee residents because of recent interstate movement. 337 F. Supp. 323 (MD Tenn. 1970). We noted probable jurisdiction, 401 U. S. 934 (1971). For the reasons that follow, we affirm the decision below.
I
The subject of this lawsuit is the durational residence requirement. Appellee does not challenge Tennessee’s power to restrict the vote to bona fide Tennessee residents. Nor has Tennessee ever disputed that appellee was a bona fide resident of the State and county when he attempted to register. But Tennessee insists that, in addition to being a resident, a would-be voter must have been a resident for a year in the State and three months in the county. It is this additional durational residence requirement that appellee challenges.
Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter to the extent of totally denying them the opportunity to vote. The constitutional question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits a State to discriminate in this way among its citizens.
To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification. Cf. Williams v. Rhodes, 393 U. S. 23, 30 (1968). In considering laws challenged under the Equal Protection Clause, this Court has evolved more than one test, depending upon the interest affected or the classification involved. First, then, we must determine what standard of review is appropriate. In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the State must x show a substantial and compelling reason for imposing durational residence requirements.
A
Durational residence requirements completely bar from voting all residents not meeting the fixed durational standards. By denying some citizens the right to vote, such laws deprive them of “ 'a fundamental political right, . . . preservative of all rights.' ” Reynolds v. Sims, 377 U. S. 533, 562 (1964). There is no need to repeat now the labors undertaken in earlier cases to analyze this right to vote and to explain in detail the Judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e. g., Evans v. Cornman, 398 U. S. 419, 421-422, 426 (1970); Kramer v. Union Free School District, 395 U. S. 621, 626-628 (1969); Cipriano v. City of Houma, 395 U. S. 701, 706 (1969); Harper v. Virginia Board of Elections, 383 U. S. 663, 667 (1966); Carrington v. Rash, 380 U. S. 89, 93-94 (1965); Reynolds v. Sims, supra. This “equal right to vote,” Evans v. Cornman, supra, at 426, is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. See, e. g., Carrington v. Rash, supra, at 91; Oregon v. Mitchell, 400 U. S. 112, 144 (opinion of Douglas, J.), 241 (separate opinion of Brennan, White, and Marshall, JJ.), 294 (opinion of Stewart, J., concurring and dissenting, with whom Burger, C. J., and Blackmun, J., joined). But, as a general matter, “before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.” Evans v. Cornman, supra, at 422; see Bullock v. Carter, ante, p. 134, at 143.
Tennessee urges that this case is controlled by Drueding v. Devlin, 380 U. S. 125 (1965). Drueding was a decision upholding Maryland’s durational residence requirements. The District Court tested those requirements by the equal protection standard applied to ordinary state regulations: whether the exclusions are reasonably related to a permissible state interest. 234 F. Supp. 721, 724-725 (Md. 1964). We summarily affirmed per curiam without the benefit of argument. But if it was not clear then, it is certainly clear now that a more exacting test is required for any statute that “place[s] a condition on the exercise of the right to vote.” Bullock v. Carter, supra, at 143. This development in the law culminated in Kramer v. Union Free School District, supra. There we canvassed in detail the reasons for strict review of statutes distributing the franchise, 395 U. S., at 626-630, noting inter alia that such statutes “constitute the foundation of our representative society.” We concluded that if a challenged statute grants the right to vote to some citizens and denies the franchise to others, “the Court must determine whether the exclusions are necessary to promote a compelling state interest.” Id., at 627 (emphasis added); Cipriano v. City of Houma, supra, at 704; City of Phoenix v. Kolodziejski, 399 U. S. 204, 205, 209 (1970). Cf. Harper v. Virginia Board of Elections, supra, at 670. This is the test we apply here.
B
This exacting test is appropriate for another reason, never considered in Drueding: Tennessee’s dura-tional residence laws classify bona fide residents on the basis of recent travel, penalizing those persons, and only those persons, who have gone from one jurisdiction to another during the qualifying period. Thus, the dura-tional residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.
“[Fjreedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” United States v. Guest, 383 U. S. 745, 758 (1966). See Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J.); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, 314 U. S. 160 (1941); Kent v. Dulles, 357 U. S. 116, 126 (1958); Shapiro v. Thompson, 394 U. S. 618, 629-631, 634 (1969); Oregon v. Mitchell, 400 U. S., at 237 (separate opinon of Brennan, White, and Marshall, JJ.), 285-286 (Stewart, J., concurring and dissenting, with whom Burger, C. J., and Black-mun, J., joined). And it is clear that the freedom to travel includes the “freedom to enter and abide in any State in the Union,” id., at 285. Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly. We considered such a durational residence requirement in Shapiro v. Thompson, supra, where the pertinent statutes imposed a one-year waiting period for interstate migrants as a condition to receiving welfare benefits. Although in Shapiro we specifically did not decide whether durational residence requirements could be used to determine voting eligibility, id., at 638 n. 21, we concluded that since the right to travel was a constitutionally protected right, “any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.” Id., at 634. This compelling-state-interest test was also adopted in the separate concurrence of Mr. Justice Stewart. Preceded by a long line of cases recognizing the constitutional right to travel, and repeatedly reaffirmed in the face of attempts to disregard it, see Wyman v. Bowens, 397 U. S. 49 (1970), and Wyman v. Lopez, 404 U. S. 1055 (1972), Shapiro and the compelling-state-interest test it articulates control this case.
Tennessee attempts to distinguish Shapiro by urging that “the vice of the welfare statute in Shapiro . . . was its objective to deter interstate travel.” Brief for Appellants 13. In Tennessee’s view, the compelling-state-interest test is appropriate only where there is “some evidence to indicate a deterrence of or infringement on the right to travel . . . .” Ibid. Thus, Tennessee seeks to avoid the clear command of Shapiro by arguing that durational residence requirements for voting neither seek to nor actually do deter such travel. In essence, Tennessee argues that the right to travel is not abridged here in any constitutionally relevant sense.
This view represents a fundamental misunderstanding of the law. It is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other “right to travel” cases in this Court always relied on the presence of actual deterrence. In Shapiro we explicitly stated that the compelling-state-interest test would be triggered by “any classification which serves to penalize the exercise of that right [to travel] Id., at 634 (emphasis added) ; see id., at 638 n. 21. While noting the frank legislative purpose to deter migration by the poor, and speculating that “[a]n indigent who desires to migrate . . . will doubtless hesitate if he knows that he must risk” the loss of benefits, id., at 629, the majority found no need to dispute the “evidence that few welfare recipients have in fact been deterred [from moving] by residence requirements.” Id., at 650 (Warren, C. J., dissenting); see also id., at 671-672 (Harlan, J., dissenting). Indeed, none of the litigants had themselves been deterred. Only last Term, it was specifically noted that because a durational residence requirement for voting “operates to penalize those persons, and only those persons, who have exercised their constitutional right of interstate migration . . . , [it] may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest.” Oregon v. Mitchell, 400 U. S., at 238 (separate opinion of Brennan, White, and Marshall, JJ.) (emphasis added).
Of course, it is true that the two individual interests affected by Tennessee’s durational residence requirements are affected in different ways. Travel is permitted, but only at a price; voting is prohibited. The right to travel is merely penalized, while the right to vote is absolutely denied. But these differences are irrelevant for present purposes. Shapiro implicitly realized what this Court has made explicit elsewhere:
“It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution. . . . 'Constitutional rights would be of little value if they could be . . . indirectly denied’ . . . .” Harman v. Forssenius, 380 U. S. 528, 540 (1965).
See also Garrity v. New Jersey, 385 U. S. 493 (1967), and cases cited therein; Spevack v. Klein, 385 U. S. 511, 515 (1967). The right to travel is an “unconditional personal right,” a right whose exercise may not be conditioned. Shapiro v. Thompson, 394 U. S., at 643 (Stewart, J., concurring) (emphasis added); Oregon v. Mitchell, supra, at 292 (Stewart, J., concurring and dissenting, with whom Burger, C. J., and Blackmun, J., joined). Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right. In the present case, such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote. Cf. United States v. Jackson, 390 U. S. 570, 582-583 (1968). Absent a compelling state interest, a State may not burden the right to travel in this way.
C
In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are “necessary to promote a compelling governmental interest.” Shapiro v. Thompson, supra, at 634 (first emphasis added); Kramer v. Union Free School District, 395 U. S., at 627. Thus phrased, the. constitutional question may sound like a mathematical formula. But legal “tests” do not have the precision of mathematical formulas. The key words emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes.
It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with “precision,” NAACP v. Button, 371 U. S. 415, 438 (1963); United States v. Robel, 389 U. S. 258, 265 (1967), and must be “tailored” to serve their legitimate objectives. Shapiro v. Thompson, supra, at 631. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose “less drastic means.” Shelton v. Tucker, 364 U. S. 479, 488 (1960).
II
We turn, then, to the question of whether the State has shown that durational residence requirements are needed to further a sufficiently substantial state interest. We emphasize again the difference between bona fide residence requirements and durational residence requirements. We have in the past noted approvingly that the States have the power to require that voters be bona fide residents of the relevant political subdivision. E. g., Evans v. Cornman, 398 U. S., at 422; Kramer v. Union Free School District, supra, at 625; Carrington v. Rash, 380 U. S., at 91; Pope v. Williams, 193 U. S. 621 (1904). An appropriately defined and uniformly applied requirement of bona fide residence may be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny. But durational residence requirements, representing a separate voting qualification imposed on bona fide residents, must be separately tested by the stringent standard. Cf. Shapiro v. Thompson, supra, at 636.
It is worth noting at the outset that Congress has, in a somewhat different context, addressed the question whether durational residence laws further compelling state interests. In § 202 of the Voting Rights Act of 1965, added by the Voting Rights Act Amendments of 1970, Congress outlawed state durational residence requirements for presidential and vice-presidential elections, and prohibited the States from closing registration more than 30 days before such elections. 42 U. S. C. § 1973aa-1. In doing so, it made a specific finding that durational residence requirements and more restrictive registration practices do “not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections.” 42 U. S. C. § 1973aa-1 (a)(6). We upheld this portion of the Voting Rights Act in Oregon v. Mitchell, supra. In our present case, of course, we deal with congressional, state, and local elections, in which the State’s interests are arguably somewhat different; and, in addition, our function is not merely to determine whether there was a reasonable basis for Congress’ findings. However, the congressional finding which forms the basis for the Federal Act is a useful background for the discussion that follows.
Tennessee tenders “two basic purposes” served by its durational residence requirements:
“(1) INSURE PURITY OF BALLOT BOX— Protection against fraud through colonization and inability to identify persons offering to vote, and
“(2) KNOWLEDGEABLE VOTER —Afford some surety that the voter has, in fact, become a member of the community and that as such, he has a common interest in all matters pertaining to its government and is, therefore, more likely to exercise his right more intelligently.” Brief for Appellants 15, citing 18 Am. Jur., Elections, § 56, p. 217.
We consider each in turn.
A
Preservation of the “purity of the ballot box” is a formidable-sounding state interest. The impurities feared, variously called “dual voting” and “colonization,” all involve voting by nonresidents, either singly or in groups. The main concern is that nonresidents will temporarily invade the State or county, falsely swear that they are residents to become eligible to vote, and, by voting, allow a candidate to win by fraud. Surely the prevention of such fraud is a legitimate and compelling government goal. But it is impossible to view durational residence requirements as necessary to achieve that state interest.
Preventing fraud, the asserted evil that justifies state lawmaking, means keeping nonresidents from voting. But, by definition, a durational residence law bars newly arrived residents from the franchise along with nonresidents. The State argues that such sweeping laws are necessary to prevent fraud because they are needed to identify bona fide residents. This contention is particularly unconvincing in light of Tennessee’s total statutory scheme for regulating the franchise.
Durational residence laws may once have been necessary to prevent a fraudulent evasion of state voter standards, but today in Tennessee, as in most other States, this purpose is served by a system of voter registration. Tenn. Code Ann. § 2-301 et seg. (1955 and Supp. 1970); see State v. Weaver, 122 Tenn. 198, 122 S. W. 465 (1909). Given this system, the record is totally devoid of any evidence that durational residence requirements are in fact necessary to identify bona fide residents. The qualifications of the would-be voter in Tennessee are determined when he registers to vote, which he may do until 30 days before the election. Tenn. Code Ann. § 2-304. His qualifications — including bona fide residence — are established then by oath. Tenn. Code Ann. § 2-309. There is no indication in the record that Tennessee routinely goes behind the would-be voter’s oath to determine his qualifications. Since false swearing is no obstacle to one intent on fraud, the existence of burdensome voting qualifications like durational residence requirements cannot prevent corrupt nonresidents from fraudulently registering and voting. As long as the State relies on the oath-swearing system to establish qualifications, a du-rational residence requirement adds nothing to a simple residence requirement in the effort to stop fraud. The nonresident intent on committing election fraud will as quickly and effectively swear that he has been a resident for the requisite period of time as he would swear that he was simply a resident. Indeed, the durational residence requirement becomes an effective voting obstacle only to residents who tell the truth and have no fraudulent purposes.
Moreover, to the extent that the State makes an enforcement effort after the oath is sworn, it is not clear what role the durational residence requirement could play in protecting against fraud. The State closes the registration books 30 days before an election to give officials an opportunity to prepare for the election. Before the books close, anyone may register who claims that he will meet the durational residence requirement at the time of the next election. Although Tennessee argues that this 30-day period between registration and election does not give the State enough time to verify this claim of bona fide residence, we do not see the relevance of that position to this case. As long as the State permits registration up to 30 days before an election, a lengthy dura-tional residence requirement does not increase the amount of time the State has in which to carry out an investigation into the sworn claim by the would-be voter that he is in fact a resident.
Even if durational residence requirements imposed, in practice, a pre-election waiting period that gave voting officials three months or a year in which to confirm the bona fides of residence, Tennessee would not have demonstrated that these waiting periods were necessary. At the outset, the State is faced with the fact that it must defend two separate waiting periods of different lengths. It is impossible to see how both could be “necessary” to fulfill the pertinent state objective. If the State itself has determined that a three-month period is enough time in which to confirm bona fide residence in the State and county, obviously a one-year period cannot also be justified as “necessary” to achieve the same purpose. Beyond that, the job of detecting nonresidents from among persons who have registered is a relatively simple one. It hardly justifies prohibiting all newcomers from voting for even three months. To prevent dual voting, state voting officials simply have to cross-check lists of new registrants with their former jurisdictions. See Comment, Residence Requirements for Voting in Presidential Elections, 37 U. Chi. L. Rev. 359, 364 and n. 34, 374 (1970); cf. Shapiro v. Thompson, 394 U. S., at 637. Objective information tendered as relevant to the question of bona fide residence under Tennessee law — places of dwelling, occupation, car registration, driver's license, property owned, etc. — is easy to doublecheck, especially in light of modern communications. Tennessee itself concedes that “[i]t might well be that these purposes can be achieved under requirements of shorter duration than that imposed by the State of Tennessee . . . .” Brief for Appellants 10. Fixing a constitutionally acceptable period is surely a matter of degree. It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud — and a year, or three months, too much. This was the judgment of Congress in the context of presidential elections. And, on the basis of the statutory scheme before us, it is almost surely the judgment of the Tennessee lawmakers as well. As the court below concluded, the cutoff point for registration 30 days before an election
“reflects the judgment of the Tennessee Legislature that thirty days is an adequate period in which Tennessee’s election officials can effect whatever measures may be necessary, in each particular case confronting them, to insure purity of the ballot and prevent dual registration and dual voting.” 337 F. Supp., at 330.
It has been argued that durational residence requirements are permissible because a person who has satisfied the waiting-period requirements is conclusively presumed to be a bona fide resident. In other words, durational residence requirements are justified because they create an administratively useful conclusive presumption that recent arrivals are not residents and are therefore properly barred from the franchise. This presumption, so the argument runs, also prevents fraud, for few candidates will be able to induce migration for the purpose of voting if fraudulent voters are required to remain in the false locale for three months or a year in order to vote on election day.
In Carrington v. Rash, 380 U. S. 89, this Court considered and rejected a similar kind of argument in support of a similar kind of conclusive presumption. There, the State argued that it was difficult to tell whether persons moving to Texas while in the military service were in fact bona fide residents. Thus, the State said, the administrative convenience of avoiding difficult factual determinations justified a blanket exclusion of all servicemen stationed in Texas. The presumption created there was conclusive — “ 'incapable of being overcome by proof of the most positive character.’ ” Id., at 96, citing Heiner v. Donnan, 285 U. S. 312, 324 (1932). The Court rejected this “conclusive presumption” approach as violative of the Equal Protection Clause. While many servicemen in Texas were not bona fide residents, and therefore properly ineligible to vote, many servicemen clearly were bona fide residents. Since “more precise tests” were available “to winnow successfully from the ranks . . . those whose residence in the State is bona fide,” conclusive presumptions were impermissible in light of the individual interests affected. Id., at 95. “States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State.” Id., at 96.
Carrington sufficiently disposes of this defense of dura-tional residence requirements. The State’s legitimate purpose is to determine whether certain persons in the community are bona fide residents. A durational residence requirement creates a classification that may, in a crude way, exclude nonresidents from that group. But it also excludes many residents. Given the State’s legitimate purpose and the individual interests that are affected, the classification is all too imprecise. See supra, at 343. In general, it is not very difficult for Tennessee to determine on an individualized basis whether one recently arrived in the community is in fact a resident, although of course there will always be difficult cases. Tennessee has defined a test for bona fide residence, and appears prepared to apply it on an individualized basis in various legal contexts. That test could easily be applied to new arrivals. Furthermore, if it is unlikely that would-be fraudulent voters would remain in a false locale for the lengthy period imposed by durational residence requirements, it is just as unlikely that they would collect such objective indicia of bona fide residence as a dwelling, car registration, or driver’s license. In spite of these things, the question of bona fide residence is settled for new arrivals by conclusive presumption, not by individualized inquiry. Cf. Carrington v. Rash, supra, at 95-96. Thus, it has always been undisputed that appellee Blumstein is himself a bona fide resident of Tennessee within the ordinary state definition of residence. But since Tennessee’s presumption from failure to meet the durational residence requirements is conclusive, a showing of actual bona fide residence is irrelevant, even though such a showing would fully serve the State’s purposes embodied in the presumption and would achieve those purposes with far less drastic impact on constitutionally protected interests. The Equal Protection Clause places a limit on government by classification, and that limit has been exceeded here. Cf. Shapiro v. Thompson, 394 U. S., at 636; Harman v. Forssenius, 380 U. S., at 542-543; Carrington v. Rash, supra, at 95-96; Skinner v. Oklahoma, 316 U. S. 535 (1942).
Our conclusion that the waiting period is..not the least restrictive means necessary for preventing fraud is bolstered by the recognition that Tennessee has at its disposal a variety of criminal laws that are more than adequate to detect and deter whatever fraud may be feared. At least six separate sections of the Tennessee Code define offenses to deal with voter fraud. For example, Tenn. Code Ann. § 2-324 makes it a crime “for any person to register or to have his name registered as a qualified voter . . . when he is not entitled to be so registered ... or to procure or induce any other person to register or be registered . . . when such person is not legally qualified to be registered as such . . . .” In addition to the various criminal penalties, Tennessee permits the bona tides of a voter to be challenged on election day. Tenn. Code Ann. § 2-1309 et seq. (1955 and Supp. 1970). Where a State has available such remedial action to supplement its voter registration system, it can hardly argue that broadly imposed political disabilities such as durational residence requirements are needed to deal with the evils of fraud. Now that the Federal Voting Rights Act abolishes those residence requirements as a precondition for voting in presidential and vice-presidential elections, 42 U. S. C. § 1973aa-l, it is clear that the States will have to resort to other devices available to prevent nonresidents from voting. Especially since every State must live with this new federal statute, it is impossible to believe that durational residence requirements are necessary to meet the State’s goal of stopping fraud.
B
The argument that durational residence requirements further the goal of having “knowledgeable voters” appears to involve three separate claims. The first is that such requirements “afford some surety that the voter has, in fact, become a member of the community.” But here the State appears to confuse a bona fide residence requirement with a durational residence requirement. As already noted, a State does have an interest in limiting the franchise to bona fide members of the community. But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residence is questioned, but because they are recent rather than longtime residents.
The second branch of the “knowledgeable voters” justification is that durational residence requirements assure that the voter “has a common interest in all matters pertaining to [the community’s] government . . . .” By this, presumably, the State means that it may require a period of residence sufficiently lengthy to impress upon its voters the local viewpoint. This is precisely the sort of argument this Court has repeatedly rejected. In Carrington v. Rash, for example, the State argued that military men newly moved into Texas might not have local interests sufficiently in mind, and therefore could be excluded from voting in state elections. This Court replied:
“But if they are in fact residents, . . . they, as all other qualified residents, have a right to an equal opportunity for political representation, . . . 'Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” 380 U. S., at 94.
See 42 U. S. C. § 1973aa-1 (a)(4).
Similarly here, Tennessee’s hopes for voters with a “common interest in all matters pertaining to [the community’s] government” is impermissible. To paraphrase what we said elsewhere, “All too often, lack of a ['common interest’] might mean no more than a different interest.” Evans v. Cornman, 398 U. S., at 423. “[Differences of opinion” may not be the basis for excluding any group or person from the franchise. Cipriano v. City of Houma, 395 U. S., at 705-706. “[T]he fact that newly arrived [Tennesseeans] may have a more national outlook than longtime residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the electoral vote of their new home State.” Hall v. Beals, 396 U. S. 45, 53-54 (1969) (dissenting opinion).
Finally, the State urges that a longtime resident is “more likely to exercise his right [to vote] more intelligently.” To the extent that this is different from the previous argument, the State is apparently asserting an interest in limiting the franchise to voters who are knowledgeable about the issues. In this case, Tennessee argues that people who have been in the State less than a year and the county less than three months are likely to be unaware of the issues involved in the congressional, state, and local elections, and therefore can be barred from the franchise. We note that the criterion of “intelligent” voting is an elusive one, and susceptible of abuse. But without deciding as a general matter the extent to which a State can bar less knowledgeable or intelligent citizens from the franchise, cf. Evans v. Cornman, 398 U. S., at 422; Kramer v. Union Free School District, 395 U. S., at 632; Cipriano v. City of Houma, 395 U. S., at 705, we conclude that dura-tional residence requirements cannot be justified on this basis.
In Kramer v. Union Free School District, supra, we held that the Equal Protection Clause prohibited New York State from limiting the vote in school-district elections to parents of school children and to property owners. The State claimed that since nonparents would be “less informed” about school affairs than parents, id., at 631, the State could properly exclude the class of nonparents in order to limit the franchise to the more “interested” group of residents. We rejected that position, concluding that a “close scrutiny of [the classification] demonstrates that [it does] not accomplish this purpose with sufficient precision . . . .” Id., at 632. That scrutiny revealed that the classification excluding nonparents from the franchise kept many persons from voting who were as substantially interested .as those allowed to vote; given this, the classification was insufficiently “tailored” to achieve the
Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance?
A. No declaration of unconstitutionality
B. Act of Congress declared unconstitutional
C. State or territorial law, regulation, or constitutional provision unconstitutional
D. Municipal or other local ordinance unconstitutional
Answer:
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